Wemyss' Trustees v Lord Advocate

This action was raised in December 1893 by Randolph Gordon Erskine Wemyss, of Wemyss, and others, trustees under a trust-disposition and conveyance granted by the said Randolph Gordon Erskine Wemyss, dated and recorded in 1891, and by Randolph Gordon Erskine Wemyss as an individual, against the Lord Advocate as acting for the Commissioners of the Treasury, the Board of Trade, and the Commissioners of Woods and Forests. The pursuers sought declarator that (1) the ground forming the foreshore of the sea or of the estuary of the Forth between high-water mark and low-water mark ex adverso of the united barony of Wemyss, including therein the ancient baronies of West Wemyss, East Wemyss, and Methil, all in the county of Fife, belonging to the pursuers, and the coal and other minerals therein, and (2) the coal and other minerals under the sea ex adverso of the said united barony and foreshore thereof, belonged in property to the pursuers as trustees foresaid, and were parts and pertinents of the said united barony, subject to the rights of the Crown as trustee for public uses, so far as regarded the seashore. They further sought declarator that they were not bound by the terms of a lease entered into between the Honourable James Kenneth Howard, one of Her Majesty's Commissioners of Woods and Forests, and the trustees of the late James Hay Erskine Wemyss, dated in 1875, and if necessary craved reduction of said lease.

The pursuers, who were infeft as trustees in certain lands, including the ancient baronies of West Wemyss, East Wemyss, and Methil, founded upon the terms of a crown charter of resignation and novodamus granted in favour of their predecessor, David, second Earl of Wemyss, in 1651, with instrument of sasine following thereon in 1652. This charter contained a conveyance of the three ancient baronies above mentioned, the several subjects being separately described therein.

In the case of West Wemyss the barony lands were conveyed with parts and pertinents, but the charter made no mention of coal—it was neither expressly granted nor reserved.

In the case of the barony of East Wemyss there was a conveyance of the lands ‘cum carbonibus carbonariis … cum speciali et plenaria ptate. et privilegio … lucrandi et effodiendi carbones et carbonaria infra fluxum maris infra bondas predict. ac etiam edificandi et tenendi salinarias patellas infra aliqua partem dict. bondarum inter lie podlockcraig et torrentem de Denburne.’

The grant of Methil was with parts and pertinents, ‘cum carbonibus et carbonariis tam subtus terra quam supra terram.’

The charter contained a clause erecting the three old baronies into one united barony, but no new grant of any kind was made in connection with the united barony.

The lands of West Wemyss and East Wemyss were never afterwards disjoined, and passed by a regular progress into the hands of the pursuers. The later titles dealt with the coal in substantially the same terms as those above set forth.

After the re-establishment of Episcopacy in 1662 David, second Earl of Wemyss, resigned the barony of Methil, which was situated within the regality of St Andrews, to the Archbishop of that see, and obtained a charter from him. The mode in which the barony was subsequently dealt with was correctly set forth in answer 1 for the defender, quoted infra.

The pursuers averred;—(Cond. 1) The united barony erected by the charter of 1651 had never afterwards been dissolved. (Cond. 3) It included the foreshore, and (cond. 4) the coals and other minerals under the foreshore and sea ex adverso thereof. (Cond. 5) The pursuers and their predecessors had from time immemorial worked the coal under the foreshore and sea ex adverso of a part of the united barony. (Cond. 6) Upon his father's death in 1864 Mr Randolph G. E. Wemyss had succeeded to the whole barony lands (except certain portions which had been alienated). These lands were partly unentailed and partly entailed, the sea-board of the entailed being more extensive than that of the unentailed lands. The unentailed lands were under the administration of the testamentary trustees of Mr J. H. E. Wemyss until 1879, when Mr Randolph G. E. Wemyss attained majority. The lease mentioned in the summons applied to the whole coal under the sea-bed ex adverso of both the unentailed and entailed lands. That lease was ultra vires of the trustees. Further, the trustees had not in accepting it come under any agreement to abandon Mr Wemyss' proprietary right to the submarine minerals. If they had, they had acted in ignorance of his rights, and the agreement was not binding on them, and should be set aside. Mr Wemyss had only recently become aware of his rights in the submarine minerals, and of the invalidity of the lease.

The defender in answer stated;—(Ans. 1) ‘… Denied that the said estates constitute one united barony. Explained that the united barony created by the said charter of 1651 was dissolved on the re-establishment of Episcopacy after the Restoration, and the superiority of the barony of Methil...