Wemyss' Trustees v Lord Advocate

Judgment Date11 December 1896
Docket NumberNo. 41.
Date11 December 1896
CourtCourt of Session
Court of Session
1st Division

Ld. Stormonth-Darling, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 41.
Wemyss' Trustees
Lord Advocate.

Superior and Vassal—Crown—Sea—Barony Title—Submarine Coal—Prescription.—

Superior and Vassal—Title—Grant of coal infra fluxum maris.—

Superior and Vassal—Title—Disjunction of united barony by division of superiority.—

Superior and Vassal—Crown—Barony—Union of baronies with different titles—Possession.—

Homologation—Adoption—Minor—Transaction by curators without concurrence of minor.—

In a question between the Crown and a vassal, held (1) that the grant of a barony, with parts and pertinents, cannot, apart from prescriptive possession explaining the grant otherwise, be construed to carry the coal under the bed of the sea ex adverso of the barony lands; but (2) that, if coal below low-water mark has been openly worked from barony lands for more than the prescriptive period, such possession is sufficient to shew that the coal below low-water mark, so far as the same is workable from the barony lands and within the lateral boundaries of the barony, was included in the original grant.

Opinion by the Lord President that the right of the proprietor of a barony to work as much coal as he can under the sea from the barony lands infers a right of property in an area of coal susceptible of definition should the Crown shew an interest to sue for definition.

A grant of land adjoining the seashore, with the privilege of working the coal infra fluxum maris, confers a right to work the coal underneath the foreshore, but implies an exclusion of any right to coal beyond low-water mark, so that possession of such coal is possession without a title.

By crown charter of resignation and novodamus granted in 1651 the three baronies of W., E., and M., which were separately described, were united into a single united barony. Upon the restoration of Episcopacy in 1662 the superiority of the barony of M., which was within the regality of St Andrews, reverted to the Archbishop of St Andrews, and the vassal resigned the lands to the archbishop, and obtained a charter from him. At the Revolution the superiority again passed to the Crown, and crown charters of the whole lands of W., E., and M. were subsequently granted to the vassal. These charters, however, did not re-erect the three baronies into a single barony.

Held that, as a barony cannot be held of different superiors, M. ceased to be part of the united barony in 1662, and that, as it had never been re-united therewith, possession of submarine coal ex adverso of the lands of W. could not be founded on to instruct a title to such coal ex adverso of the lands of M.

A crown charter of resignation and novodamus erected three baronies, W., E., and M., which were separately described, into a united barony, but did not expressly make any additional grant. The description of the lands of W. contained no boundary seawards. After the union of the baronies the proprietor worked the coal under the bed of the sea beyond low-water mark ex adverso of W. for the prescriptive period.

Opinion by Lord Adam that the proprietor was not entitled to found on this possession further than as explaining his title to W.

The right of a proprietor of estates adjoining the sea to work coal below low-water mark was challenged by the Crown during his minority. The estates to which the minor had succeeded consisted in part of entailed and in part of unentailed lands. The administration of the unentailed estate was vested in the testamentary trustees of the minor's father, who were also the curators of the minor. These trustees, without the concurrence of the minor, entered into a transaction with the Crown, whereby they on their part accepted a lease of the whole coal below low-water mark ex adverso of both the entailed and unentailed estates, and the Crown agreed not to claim damages in respect of the coal which had been worked in the past. After he came of age the proprietor accepted an assignation of the lease, and subsequently applied for and obtained from the Crown a reduction of the royalty payable under, and a modification of the mode of working enjoined by, the lease. When he so acted in regard to the lease, the proprietor was unaware that he had well-founded claims to the coal below low-water mark, and that the lease was the result of a compromise, involving a surrender of his claims, between his father's trustees and the Crown.

In an action of declarator brought by the proprietor against the Crown upwards of fourteen years after he had reached majority, held (1) that the trustees having had no right to transact in regard to the entailed estates, their whole agreement with the Crown was null; and (2) that the actings of the proprietor after he came of age, while he was ignorant of his rights, did not infer homologation or adoption of the transaction, and that he was not barred from challenging it.

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...

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