Trustees of Stonehaven Harbour - Lushingto - Robertson v. Sir Alexander Keith - Lord Advocate (Jeffrey) Sandford [1831] UKHL 5_WS_234

UKHL
Trustees of Stonehaven Harbour - Lushingto - Robertson v. Sir Alexander Keith - Lord Advocate (Jeffrey) Sandford
[1831] UKHL 5_WS_234
Held (affirming the judgment of the Court of Session), that statutory trustees, under a power to open quarries, had no right to enter to and take stones from a quarry open and worked prior to the statute.The town of Stonehaven is situated on the east coast of Kincardineshire, which is bold and rocky. It is contiguous to the sea, and stands on low ground between the sea and a high bank. In this bank, which is called the Braes of Stonehaven, there has been for time immemorial a quarry called the Red Craig Quarry. In the neighbourhood of the town, and along a great part of the coast, there is an unbroken barrier of rocks, the value of which was said to be very trifling to the proprietors, but the stones which could be excavated from them were well adapted to the building of a harbour. The Red Craig Quarry was in possession of and claimed by the respondent, Sir Alexander Keith of Dunnottar, as his property, under titles from the family of Keith, and more recently from the commissioners on forfeited estates. Although the validity of his tide was disputed, it was admitted that he had for several years let the quarry and drawn rents for it.

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In 1825 an act of parliament was obtained (under which trustees and commissioners were named), proceeding on the narrative,—“The harbour of the burgh of barony of Stonehaven, the head burgh of the county of Kincardine, situate in the bay of Stonehaven, on the east coast of that part of Great Britain called Scotland, is of great utility to navigation in general, being one of the most accessible harbours between the Firth of Forth and the Murray Firth, and would be rendered of still greater utility, and more advantageous to trade and navigation, if the same were enlarged, deepened, and protected by additional piers and breakwaters, and proper works erected therein, or in the said bay adjoining thereto, and if the streets and avenues leading thereto were widened and repaired, and if rules and regulations were established for preserving due order within the same.” Power was therefore given to erect piers, quays, &c.; and it was “farther enacted, that it shall and may be lawful for the said commissioners, or any person or persons appointed by them for that purpose, and they and such person or persons are hereby empowered, to open quarries in any waste or common in the said county of Kincardine (not being farther distant than one mile from the high-water mark), or within high-water mark on the shores of the said county, and to dig, gather, and take away therefrom stones, gravel, sand, clay, furze, heath, rubbish, or other materials necessary for constructing any of the works authorized by this act, without making any compensation for the same; and also to open quarries, and to dig, gather, and take away therefrom stones, gravel, sand, clay, furze, heath, rubbish, or other materials (timber excepted) in and out of any grounds, whether inclosed or not, (not being the ground whereupon any house stands, nor a garden, orchard, planted walk, lawn, or avenue to any house, or any piece or parcel of ground set apart or used as a nursery for trees, previous to the passing of this act), where the said materials can most easily be found, within two miles of the said harbour, for the construction of the said works, making recompense for the damage thereby occasioned in manner herein-after mentioned: Provided nevertheless, and be it further enacted, that it shall not be lawful for the said commissioners, or any other person or persons, under the authority of this act, to dig, gather, take, or carry away any such materials in or from any inclosed grounds or

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In virtue of this authority, and alleging that the Red Craig Quarry was situated within a mile from high-water mark, and part of a waste or common, the trustees intimated their intention to enter the quarry, and excavate stones for the use of the harbour, without making any compensation to Sir Alexander Keith. In the course of the discussion which ensued relative to their right to do so, they farther founded upon a feu contract between the Keith family and certain feuars of Stonehaven in 1624, which contained this clause:
“Whilk persons and inhabitants that shall happen to be feuars in the said town in all time hereafter shall have property belonging only to the said feuars and feus thereof, the commonty and privileges after mentioned, viz. in commonty of pasturage of all and haill the Braes of Stonehaven, as wind and weather shears, betwixt the common way that passes on the west end thereof to Montrose, eastwith to the Bridge of Downie,” &c.:
“As likewise, for upholding of the common weal of the said town, of building of bridges and calseys, the said noble lord, for himself and his foresaids, has dispensed, and by thir presents dispenses with, in favour of the said inhabitants, to be employed as said is, the whole land-customs within the said town and privileges thereof in all time coming, and for collecting and ingathering thereof, and furthering of all common works requisite and justly for that effect, to all persons having interest, it is specially condescended that the said noble earl, his bailies, ane or more, with ane neutral man chosen amongst the said inhabitants, who shall do for them as conjunct bailie, shall in one voice pronounce and give out sentence in all actions civil concerning the common weal of the town,” &c.
It was alleged by the trustees, that the feuars had thenceforth enjoyed the privilege of taking stones from the quarry, and had derived a revenue by letting the braes and selling the stones. Sir Alexander admitted that the feuars had been allowed occasionally to take stones for their ordinary purposes; but he alleged that this was a mere tolerance, and that at all events it could not warrant a more extensive right than that which had been possessed. The trustees did not aver that they had any title to this feu contract; but Sir Alexander intimated his readiness to argue the question, on the supposition that they had obtained such a title.

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Against the threatened act of the trustees he presented a April bill of suspension (which was passed), in which he prayed that the appellants should be prohibited “from entering upon and opening quarries in the suspender's said lands and barony of Dunnottar, or any part thereof, more especially his said quarry of Red Craig, and from quarrying or carrying away stones or other materials therefrom, without making good to the suspender and his tenants in the said lands and quarry all damage occasioned by their proposed operations, and paying for stones or materials used or taken by them therefrom.”The Lord Ordinary suspended the letters simpliciter, found the trustees liable in expenses, and issued the subjoined note of his opinion:
“The feuars of Stonehaven appear to have no title to any thing but the pasturage of the braes. This is plain from the words of their contract of feu, when stated with accuracy (which has been too much neglected); and then there seems to be no doubt that the suspender has title and possession sufficient to exclude strangers, and the chargers seem to be strangers, for the act of parliament appears not applicable to quarries existing as open quarries previous to its date.”
The trustees having reclaimed, and it being pleaded, that as the question truly at issue related to the Red Craig Quarry alone, whereas the Lord Ordinary's judgment, taken in connexion with the prayer of the suspension, applied to the whole estate of Dunnottar, parts of which might fall under the powers conferred by the statute, the Court, “in respect of it being admitted by the suspender and understood that the interlocutor reclaimed against shall apply only to the Red Craig Quarry,” adhered. *The trustees appealed.Appellants .—1. It is not disputed by the respondent that the quarry is situated within a mile of high-water mark; but his defence is rested on the ground that no power was conferred upon the appellants to work quarries which had been opened previous to the statute, and to this the Court below had given effect. Although it is true that power is given to the appellants to open quarries in any waste or common, yet it was never intended

Footnote

* 7 Shaw and Dunlop, No. 205.

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But, 2. The respondent has no valid title to the quarry, while, on the other hand, the feu contract of 1624 in favour of the feuars, (to which the appellants can, if necessary, obtain right,) with the possession following thereon, bestows upon them a complete right to take stones from the quarry.Respondent .—1. The sole question is, Whether the appellants shall be allowed to take stones from the quarry without making compensation to the respondent? but nothing is more directly contrary to the spirit of British legislation than that the property of any private person shall be seized for public purposes without compensation. When words, therefore, are found in a statute which apparently have this tendency, they must be strictly interpreted as inconsistent with those general principles which regulated the legislature. Under the statute in question, the appellants are merely empowered to open quarries in any waste or common. If it had been intended to empower them to appropriate to themselves quarries which had been already opened and in the possession of others, this would have been explicitly stated, because this would have been an encroachment on the existing rights of private individuals, and the act would not have been passed unless either their consent had been proved or compensation provided; but the Red Craig Quarry has been open from time immemorial; and from the mode in which the statute was expressed the respondent could not possibly suppose that it was meant to deprive him of his property, and therefore he did not oppose it, which otherwise he would have done.

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2. As the respondent is merely defending his possession, it is unnecessary for him to do more, in a question with one who has no valid title, than to show that he is lawfully in possession; but his title is perfectly good; the feu contract confers upon the feuars only a servitude of pasturage; and even supposing that it could be construed so as to give them right to take stones from the quarry, this must be limited to ordinary purposes, and cannot be extended to the effect of enabling them to build a harbour.Lord Chancellor .—My Lords, in this case I do not propose to trouble your Lordships at any length with the reasons upon which I shall humbly advise you to affirm the decree pronounced by the Court below. It is perfectly clear, when you look at the construction of this act, that the trustees of the harbour were mere trespassers as far as regards their claim, whatever may be the right of the feuars. I should rather say, that I can see no right that the feuars have; but the trustees are not the feuars; they have no privity with them, much less any identity; and the consequence is, they rest their title entirely upon the act. When you look into the clause, it is quite clear from the first branch of it what is meant, though it is inartificially drawn, as many of these private acts of parliament are; and a great misfortune it is to this House and every other Court. Many days of argument would be saved if they were drawn in a more careful and technical manner, so as plainly to state their intent, and not leave the Courts, as in cases of wills made by ignorant persons, to discover a meaning where the authors may have had none. This clause, however, leaves no doubt of the right to open quarries upon commons and waste places within a mile of high-water mark, and the trustees have a right to do that without compensation. Then come the words, “and to dig, gather, and take away therefrom stones, gravel, sand,” and so on. Now it is said, though the term “quarries” is not the last antecedent to which the “therefrom” can apply, it can, however, apply to nothing else. What is the other antecedent? “Any waste or common within high-water mark.” You are to dig and carry away and gather the stones, sand, gravel, and so on, “therefrom,” that is, from the wastes

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The House of Lords ordered and adjudged, That the interlocutors complained of be affirmed.Appellants' Authorities .—Wolfe Murray, Dec. 8, 1808 (F. C.); Feuars of Dunse, Nov. 22, 1732 (1,824); Leslie, Nov. 27, 1793 (14,542). Respondent's Authorities .— 2 Ersk. 2, 9, 14, 34; Leslie, Nov. 27, 1793 (14,542); 2 Ersk. 9, 4; Feuars of Dunse, Nov. 22, 1732 (1,824).Solicitors: J. Duthie— Moncreiff, Webster, and Thomson,—Solicitors.