Scottish Court of Session Decisions

Prior to 1894 Sir John Campbell Orde was proprietor both of the estate of Balranald, comprehending the farms of Balranald, Paiblesgarry, and Penimore, and of the township of Knockantorran, which adjoined the farm of Paiblesgarry, all in the parish of North Uist. The crofters of Knockantorran were in the habit of removing seaware from the shore ex adverso of the farm of Paiblesgarry for the purpose of manuring their arable lands, and, on the other hand, the tenant of Paiblesgarry was in the habit of removing seaware from the shore ex adverso of Knockantorran.

In 1894 Sir John Campbell Orde sold the estate of Balranald to Alexander Macdonald. Thereafter the latter raised an action in the Sheriff Court at Lochmaddy against Donald Macdougall and other twenty-three crofters of the township of Knockantorran to have them interdicted “( First) From collecting or carrying away or interfering with any seaware, tangle, or other growth or substance which may be growing or thrown upon any part of the farms and lands of Balranald, Paiblesgarry, and Penimore, in the Parish of North Uist and county of Inverness, belonging to and occupied by the pursuer, or upon the seashores ex adverso thereof; and ( secondly) from entering upon, passing through, or using any part of said farms and lands, or the roads or paths thereon, or the seashore ex adverso of said lands for the purpose of collecting, carrying away, or interfering with any such seaware, tangle, or others foresaid.” He averred that the taking of seaware by the crofters of Knockantorran from the shore ex adverso of Paiblesgarry and by the tenant of Paiblesgarry from the shore ex adverso of Knockantorran was “merely a temporary arrangement affecting tenants on the same estate, and was brought to an end when the pursuer became proprietor of the estate of Balranald.”

The defenders averred “that at the date of the alleged sale of the lands of Balranald from Sir John Powlett Campbell Orde to the pursuer, the crofter defenders were all crofters holding their lands, under and in virtue of the Crofters Holdings (Scotland) Act 1886, from the said Sir John William Powlett Campbell Orde, and having an inalienable right to certain shares in the seaware and tangle cast on the shore ex adverso of Paiblesgarry, on Balranald lands as far north as Hunglam, as parts and pertinents of their holdings, and they still hold their lands, and the right to gather, collect, and take away the drift seaware and tangle from ex adverso the shores of Paiblesgarry and Balranald, with right of access to the seashore there, across the lands of Paiblesgarry, by themselves or their servants, and with carts and horses, for exercising said right, and they cannot be deprived thereof so long as they continue tenants of their said holdings under said Act. It is also averred that, when having fair rents fixed for their holdings by the Crofters Commission in the year 1887, it was expressly stated to the Commissioners, and admitted as correct by Sir John Orde, the then proprietor of both Balranald and Knockantorran lands, that the crofter defenders had the rights to seaware and tangle, as here set forth, on Paiblesgarry shore, and as far north as Hunglam on Balranald shore, as part of their holdings, and their rents were accordingly fixed on that footing, and still remain as then fixed.… It is averred that, without the right to the seaware and tangle in question, the holdings of the crofter defenders would be valueless as agricultural subjects, and the defenders, by the deprivation of their immemorial rights, would be starved out of their holdings.”

On 22nd April 1896 the Sheriff-Substitute ( Webster) pronounced the following interlocutor:—“Before answer, allows the pursuer a proof of his averments, and to the crofter defenders Donald Macdougall (Archy's son) and others a conjunct probation: Allows to these defenders a proof of their averments as to their rights as tenants of the township farm of Knockantorran to collect and carry away seaware, tangle, or other growth or substance of a seaweed nature, which may be growing or thrown upon the lands of pursuer, and of entering or passing over said lands for these purposes, and to the pursuer a conjunct probation.”

The pursuer appealed to the Sheriff ( Ivory), who on 28th May pronounced the following interlocutor:—“Recals the interlocutor appealed against: Finds that the

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defenders have not averred any relevant right to collect or carry away seaware or tangle from the lands of Balranald, Paiblesgarry, and Penimore, belonging to the pursuer, or from the seashore ex adverso thereof: Therefore interdicts the defenders, and all others acting for them or under their instructions, from collecting or carrying away any seaware or tangle from the lands of Balranald, Paiblesgarry, and Penimore, belonging to the pursuer, or from the seashore ex adverso thereof; and also from entering upon, passing through, or using any part of the said lands for the purpose of collecting or carrying away such seaware or tangle.”

The defenders appealed to the Court of Session, and argued—The Crofters Commission fixed their rents on the ground that their right to take seaware from the shore ex adverso of Paiblesgarry was part of their holding. This they were entitled to do under section 12 of the Crofters Act 1886 (quoted in rubric). If this was denied by the pursuer, it was impossible to determine the question without a proof. The judgment of the Sheriff-Substitute should be reverted to.

Argued for pursuer—The interlocutor of the Sheriff was right on two grounds: (1) the title from which the pursuer derived his right was a barony title, bounded by the sea giving him exclusive right to the seaware opposite his lands— Birie v. Rose, February 1, 1884, 11 R. 490; (2) the defenders had failed to instruct a relevant title either under the Crofters Act or otherwise. Section 12 of the Act did not apply, it only dealt with the power of enlarging a croft, and in any event it did not give any right as regards the collecting of seaweed ex adverso of another man's land. A right to take seaware ex adverso of another's land was not good against singular successors in the ownership of the land— Duncan v. Brooks, May 17, 1894, 21 R. 760. There was no averment here of anything but a permission given by the landlord which he was entitled to withdraw— Carr v. Maclean, June 19, 1889, 16 R. 810.