Head 25: 3 Flashcards
(14 cards)
Who holds rights over rivers lochs and the sea and the foreshore?
In theory, the rights are held in trust by the Crown for the public (regalia majora.
These rights are (subject to one exception) implied by law. They do not appear on the Land Register.
What rights do the public have over the foreshore?
1) Navigation
2) White fishing (fishing other than salmon, mussels and oysters)
3) Recreation
Marquess of Ailsa v Monteforte 1937
Monteforte was an ice cream seller. It was held that he was not allowed to sell his ice cream on the foreshore since?
⁃ [So the public right of recreation does not include the right to sell refreshments.]
What rights to the public have in tidal waters?
There is a right of:
⁃ 1) Navigation and
⁃ 2) ‘White’ fishing
NB these are owned by the Crown (at least the sea bed is)
Who owns non-tidal waters?
Normally in private ownership.
What rights do the public have over non-tidal waters in private ownership?
No implied rights (for the public). So if you own a river/water then you have the rights to fish in them but others don’t.
What right can be acquired over non-tidal waters?
The right of navigation can be acquired by 40 years use over non-tidal waters. This operates like prescription but is NOT in the 1973 Act.
Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd 1976
The pursuers owned a valuable stretch of the River Spey including the salmon fishings. They sought to interdict the canoeing school from canoeing along this stretch of the river. It was established that canoeing caused a certain amount of damage to the salmon fishings. But there was evidence that this canoeing had been going on for 40 years. The HL held that the effect of the 40 years use is that the river is deemed navigable.
⁃ NB this was very important but now not so much since you can do this under s 6 exemptions of the Land Reform Act 2003.
What is navigation in waters?
Moving boat through the water, and acts reasonably ancillary thereto.
Lord Advocate v Clyde Navigation Trs (1891)
The defenders were interdicted by the Crown from depositing dredgings from the River Clyde into a loch.
⁃ In other words, navigation does not include depositing rubbish.
*Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1979
The defenders were interdicted from laying down fixed moorings.
⁃ So navigation does not include putting down fixed moorings (you can’t put your anchor down).
Scammell v Scottish Sports Council 1983
Limited beaching of your boat is acceptable (i.e. occasionally bumping the bottom) but you can’t wade along the river bed and propel your boat by hand.
⁃ [However, under the Land Reform Act 2003 this may be possible.]
How are rights over water encorced?
Any member of the public can enforce the right, either against the owner or against a third party causing interference. The Crown can also enforce these public rights.
Walford v David 1989
The defender had a lease from the Crown Estate Commissioners to moor fish cages on the sea bed. It was alleged this interfered with one of the recognised routes from Scalpay to Skye and interdict was sought.
⁃ It was held that for a successful action there had to be material interference with the right of way not just inconvenience and since in this case there was only inconvenience it was not enforceable.
