Scottish Court of Session Decisions

At advising on 10th November 1978,—

LORD PRESIDENT (Emslie).—This action is intended to resolve an important question of some nicety. Is the laying and keeping of a fixed mooring on the sea-bed within territorial waters a lawful incident of the public right of navigation in these waters? Putting the matter in another way is the owner of a vessel which he uses for navigation entitled, in the exercise of the public right of navigation, to lay and keep a fixed mooring for that vessel within territorial waters? The question arises for decision in the circumstances which I shall now set out as briefly as I can.

The pursuers sue as representing the Crown. It is now common ground between the parties that the sea-bed underlying territorial waters is, like the foreshore, vested in the Crown, and that the rights of the Crown therein are patrimonial rights, i.e., rights of property. The Lord Ordinary has so held and there is a wealth of authority to support his conclusion. It follows, and this is also conceded by the defenders, that the Crown may alienate its rights by grant to a subject. The patrimonial rights of the Crown in the sea-bed are, however, subject to the limitations or burden placed upon them by the rights of the public to use it for the public uses of navigation and fishing. Indeed the obligation of the Crown is to vindicate these public rights. The Crown may not, accordingly, exercise its patrimonial rights in such a way as will interfere with the enjoyment of these public rights. Any alienation by the Crown is subject to the same restriction, and there can be no alienation for use which will constitute an interference with the public rights of navigation and fishing. By virtue of its right of property the Crown may, however, prevent any use of the sea-bed by anyone which does not fall within the scope and protection of the public right to navigate or to fish.

In reliance upon the Crown right in the sea and the sea-bed within territorial limits the nature of which, and the limitations upon which I have summarised, and which are not in dispute, the pursuers challenge certain actings of the defenders in Fairlie Bay within the Firth of Clyde and, inter alia, seek interdict in terms of the third conclusion of the summons.

For a number of years the defenders have laid down fixed moorings on the sea-bed there. These moorings are used by yachts, power boats, fishing vessels and other craft. In 1969 there were 180 of such moorings consisting of heavy anchors, lengths of chain or cable, and buoys. Some of these anchors take the form of a mushroom with a continuous hemisphere instead of two opposing flukes. These lie horizontally on the sea-bed and, by reason of their weight and shape, sink into the substratum and retain a continuous hold upon it. Some moorings for use by larger vessels consist of two anchors connected by lengths of chain to the centre of which the mooring cable is attached. The mooring cable in use is shorter, heavier and stronger than a vessel's own anchor chain and there is really no dispute between the parties that, as the pursuers aver, "the safe and orderly mooring of vessels when congregated together and left unmanned for periods of time could not be achieved by vessels using their own anchors and chains."

Prom the averments it is clear that, as one would expect, the fixed moorings are used in the normal way. Vessels leave and return to them and when vessels lie to their fixed moorings they will often be unmanned for periods of varying length. It is clear, too, that these moorings are in use on a seasonal basis and that when they are not in use during the winter they will be recovered from the sea for maintenance purposes only, when weather conditions permit.

In defence to the action the defenders maintain that they have a perfect right to continue to lay and to maintain fixed moorings in Fairlie Bay. They say, and the pursuers now accept this, that they only lay and maintain any mooring at the express request and on behalf of the owner of a vessel who wishes to have one. In these circumstances their case is that the laying of fixed moorings is an incident of the public right of navigation and that the Crown may not prevent them from doing, on the instructions of the owners of the vessels concerned, what each is entitled to do for himself. The pursuers no longer challenge the factual basis of this defence and, in particular, do not ask for proof of an averment tending to suggest that the laying of fixed moorings by the defenders is merely a speculative commercial venture on their part with a view to letting or hiring them to any boat owner prepared to pay an acceptable rent for the use of the facility. The defenders for their part concede that had this been the position in fact they could not have resisted the Crown challenge, for it is well settled that there is no public right which will entitle anyone to use the sea or sea-bed within territorial waters merely for the purpose of providing commercially, a facility which might prove to be convenient to navigators.

After debate in Procedure Roll the Lord Ordinary held that the public right of navigation is primarily a right of free passage upon the seas and that the only lawful incidents of that right are those which are necessary (the emphasis is mine) to the enjoyment of the primary right. He then proceeded to hold, for the reasons which he gives, that the laying of a fixed mooring on the sea-bed in territorial waters with the intention that it should remain there for a period or, subject to the requirements of maintenance and repair, permanently, is not necessary to the free exercise of the right of navigation as he understood it. He accordingly repelled the defences, pronounced decree of interdict in terms of the third conclusion of the summons and, in addition, granted declarator in terms of the second conclusion that "the pursuers have the sole and exclusive right to permit the laying of fixed moorings on any part of the said sea-bed."

The main question debated in this Reclaiming Motion of the defenders was whether the Lord Ordinary was well founded in holding that the laying and maintenance of a fixed mooring on the sea-bed in territorial waters is not an incident of the public right of navigation. This question was argued on the assumption that the Crown had not divested itself of its rights in the sea-bed in that area of Fairlie Bay in which the defenders' fixed moorings have been laid. No suggestion of any divestiture by the Crown was made in the Outer House. In the Inner House, however, the defenders have amended their pleadings to incorporate averments designed to show that the area of sea-bed with which this action is concerned is within that of a grant of harbour by the Crown to a subject in 1601. These averments are not admitted by the pursuers who also claim that they are irrelevant and lacking in specification. If the latter claim is sound the answer to the main question will result in the disposal of the action without inquiry. If, however, the new averments are at least sufficient to entitle the defenders to attempt to prove them any disposal of the action in the pursuers' favour must await the outcome of that proof. In short in so far as there remains a question as to the pursuers' title to complain of what the defenders have done, and are doing, they cannot ask for decree in terms of the second and third conclusions even if they succeed in persuading us that the Lord Ordinary was correct in holding that the laying of fixed moorings cannot be justified by an appeal to the public right of navigation. In spite, however, of the complication introduced by amendment I propose, as did Counsel for the parties, to consider first of all the main question upon the view that if the defenders are able to persuade us that the Lord Ordinary was wrong, and that contrary to the pursuers' contention their activities fall within the scope of the public right of navigation, the case for the Crown must fail on that ground alone. In that event the questions relating to the Charter will be of academic interest only.

As I have indicated the laying of fixed moorings by the defenders is an invasion of the Crown's right of property and the only ground upon which they seek to justify it is that what they have done is one of the incidents of the public right of navigation.

For the defenders the submission was that the public right of navigation is not merely the right of free passage upon the seas. It is the right to use the sea for sailing upon it in craft of all kinds for whatever purpose. Passage is no doubt the primary purpose for which the right exists but it has long been recognised that the right of passage carried with it a number of ancillary rights without which the primary purpose could not be freely and fully achieved and enjoyed. These ancillary rights include the right to keep a vessel at rest in the sea in a convenient place in a suitable manner either in the course of a voyage or between voyages. The right to do so by casting anchor has never been doubted. To tie up to a fixed mooring is merely one of the well recognised, ordinary and reasonable modes of bringing a vessel to rest and of keeping it at rest just as an anchor does. Lying to a fixed mooring has, for this reason, for long been accepted to be an alternative to lying to a vessel's own anchor, and it cannot be and is not contended that the right to pick up and lie to a fixed mooring is not an established incident of the public's right to keep a vessel at sea for the purposes of navigation. This being so the public right must and should include the right to lay and maintain a fixed mooring on the sea-bed, and in the sea, to enable a vessel to enjoy the undoubted right to use this well recognised mode of keeping itself safely at rest between voyages. The practicalities of navigation require that there be secure resting places for vessels for long periods of time, and if the right to lay fixed moorings for lawful use is not available to the public engaged in navigation effectual navigation would become impossible for large numbers of small vessels in Scotland. In presenting their argument counsel recognised that there was no direct authority in Scotland for or against the proposition that the laying of fixed moorings in the sea-bed in tidal waters, or in the alveus of non-tidal navigable rivers, is an incident of the public right of navigation therein. Their contention was, however, that, upon a review of the law of Scotland in the institutional writers and in decided cases, and upon examination of all relevant English cases touching upon the matter of the public right of navigation, the weight of sound opinion, properly understood, is in favour of the defenders' claim which is itself sound in principle.

Attractive though I found the defenders' argument to be I have come to be of opinion that it is unsound, and that the submissions for the pursuers in supporting the conclusion of the Lord Ordinary on this matter are to be preferred. In so saying I wish to say that I expressly reserve my opinion as to the scope of the public right of fishing and of the tests by which its incidents are to be ascertained.

It must be clearly understood that in this case the Crown does not complain of the use of any fixed mooring by any vessel but of the act of laying ground tackle on the sea-bed with cables in the sea attached to surface buoys. The casual act of picking up and lying to a mooring which is there, lawfully or unlawfully, is not a matter with which this case is concerned.

In searching for the answer to the problem presented in this chapter of the case it is helpful to begin by attempting to discover what is involved in the laying of ground tackle on the sea-bed as this has been practised by the defenders. From the pleadings the act may be seen to have the following essential characteristics. It involves the occupation of the sea-bed by tackle, linked by cable to the surface, before any vessel arrives upon the scene. It involves, too, in a real sense, a degree of permanence of this occupation for, as the pleadings show, the tackle, although intended to be used from time to time and at the will of the vessel's owner during the sailing season, is only lifted during the winter, or before the season begins in any year, for the purposes of maintenance and repair. In essence it is the provision and maintenance of a base for a vessel which may use it only infrequently. The fixed mooring will, in short, always be present even when the vessel for which it has been laid is absent. Even when the vessel is present and tied up to the fixed mooring it may be left or parked unmanned for periods of time, long or short, for a variety of reasons. In parenthesis I should add that if the right to lay fixed moorings exists as part of the public right of navigation there would be no limit to the number of fixed moorings, in different locations in coastal waters, which a vessel's owner could lay for use at his convenience.

If these are the characteristics of the fixed moorings laid by the defenders the next question is whether this use of the sea-bed, possessing these characteristics, is at all consistent with those uses of the sea and the sea-bed which the law has recognised to be lawful incidents within the public right of navigation. For the purposes of this question it is, I think, legitimate to consider not only cases concerned with the public right of navigation in tidal waters but with the public right of navigation in non-tidal waters which are navigable. For a number of purposes a distinction must be drawn between tidal and non-tidal waters which are navigable. In the latter, for example, there is no right in the public to make use of the banks in private ownership whereas hi the former no right of property in the foreshore can avail to impede those public uses of the foreshore for navigation, or for fishing or otherwise, which, in law, will always prevail against a mere right of property. When one is considering, however, the incidents of an admitted public right to navigate in navigable waters, including the permitted incidental uses of the solum over which they flow, it is impossible to find any good reason for drawing any distinction between tidal and non-tidal waters.

There can be no doubt that navigation is the action or practice of passing upon water by vessels of all kinds. It is not surprising therefore that in every consideration of the public right of navigation the analogy of passage over land has been recognised, for the right of navigation is essentially one of passage. Stair in his Institutions II-1-5 says "Fifthly, Of things appropriated there remains still the common use of ways and passages, which is like a servitude on property; for this is necessarily required for the use of man: and therefore understood as an use reserved, both in their tacit consent to appropriation, and in their custom. So all nations have free passage of navigation through the ocean, in bays and navigable rivers; …" In Campbell v. Sweeney 1911 S.C. 1319—a non-tidal river case—Lord Dundas, delivering the opinion of the Court at p. 1324, said of the right to navigate:

"But that right is essentially one of passage not dissimilar to the public right of use of a highway …"

There are observations to the same effect to be found in other cases both in England and in Scotland and I do not trouble to rehearse them. As the defenders concede, the public right of navigation is, accordingly, primarily a right of passage.

I now turn to consider what are or may be regarded in law as the incidents of that right of passage.

A convenient starting point is the immediate sequel to the passage from Stair which I have already quoted. Having declared that all nations have free passage by navigation he continues by saying that they "have also the benefit of stations or roads and harbours in the sea or rivers; and have the common use of the shores for casting anchors, disloading of goods, taking in of ballast, or water rising in fountains there, drying of nets, erecting of tents and the like." It is easy to see that these "benefits" are closely identified with the right of free passage which could hardly be freely or fully exercised without them. The striking feature of all the benefits however, is that with the exception of net drying on the foreshore which may more properly be associated with the public right of fishing, the presence of the vessel is implied and each is of a transitory nature. The same may be said of the undoubted right to beach a vessel upon the foreshore, and while Stair recognises that the examples of incidents of the right of passage are not exhaustive he appears to recognise too that all other incidents must possess the characteristics common to all the examples. All are incidents in course of passage or between passages. They are only ancillary to passage and subservient and subordinate to passage, and the transitory nature of true incidents of the public right of navigation is well illustrated in many authorities.

In Campbell v. Sweeney, for example, Lord Dundas at p. 1324 says this:

"And I apprehend that the subordinate privilege of anchoring or mooring can only be exercised as a reasonable incident in the course of such passage or navigation."

Lord President Clyde in Leith-Buchanan v. Hogg 1931 S.C. 204 at p. 212 expressly declares that "the only rights covered by the public right of navigation in a navigable river are such as may be subservient to the purposes of navigation" and when he adds that "it is true to cast anchor or even to attach a vessel to a mooring fixed on the bottom of a navigable river may be an act incidental to navigation" the examples are both of acts of a transitory character involving the presence of the vessel at the time. So far as I am aware the law has never recognised as an incident of the public right of navigation any act which does not involve the vessel's presence or which is other than transitory, and on this chapter of the discussion I content myself by quoting from the opinion of Fletcher Moulton, L.J., in Denaby & Cadeby Main Collieries Ltd v. Anson [1911] 1 KB 171. At p. 200 he is dealing with the appellants' attempt to justify the keeping of their coal hulk in Portland Harbour by reference to the public right of navigation. This is what he says:

"The public have, no doubt, the free use of the waters for the purpose of navigation, and this includes the exercise of all rights ancillary thereto. But that means ancillary to that navigation, i.e., to the navigation of the ship navigated. They have, for instance, the right of waiting in a place till the wind or the weather, or probably also the season, permits them to leave it or until they have obtained a cargo or have completed repairs. In doing all these things they no doubt exclude the rest of the public from bringing their ships to the place where they are moored, just as a man who is lawfully standing on or moving along the highway presents any other member of the public being at that moment at the same place on the highway as he is. But all this is in the exercise of the rights of navigation of the ship itself."

This passage finds an echo ha the opinion of Paull, J., in Iveagh v. Martin [1961] 1 Q.B. 232 at p. 272 and in my opinion emphasises once again the transitory nature of legitimate incidents of the right of navigation and their immediate association with the presence of the vessel being navigated.

If I am right so far in my analysis of the characteristics of acts which may be incidents of the public right of navigation it is perfectly clear that the laying of fixed anchors on the sea-bed, to remain there whether the vessel for which they are laid is using them or not, is an act the essential characteristics of which are very different indeed. To lay a fixed mooring is an end in itself and I am quite unable to see that it is an act which is at all similar in character to any of those recognised as incidents of the public right of navigation, including the act of casting an anchor to allow the vessel concerned to lie to it for a time. None of these incidents involves appropriation and reservation by the owner of a vessel of part of the sea-bed and the sea above it for use at his pleasure, and whether his vessel is there or not. In substance the laying of a fixed mooring is the establishment of a parking place for the vessel to be used only from time to time. For these reasons alone I am satisfied that it cannot be regarded as an incident of the public right of navigation as that right falls to be understood.

The matter does not end there for there is much to be said for the view that the answer to the question whether a particular use of the sea, the seabed or the foreshore is an incident of the public right of navigation may also be found by asking whether the use in question is, in a reasonable sense, necessary to the enjoyment of the right of passage. In England where the law in this field is not different from the law of Scotland there are observations of distinguished judges which appear to accept this as a proper test. In Gann v. Free Fishers of Whitstable (1865) 11 H.L.C. 192 the Lord Chancellor (Westbury) said at p. 208:

"The right to anchor is a necessary part of the right of navigation because it is essential to the full enjoyment of that right."

In the same case Lord Wensleydale, at p. 210, speaks to much the same effect where he says that "every subject has a right to navigate and to cast anchor, when and where he thinks fit, as a necessary means of safe navigation …" Further in Denaby and Cadeby Main Collieries Ltd v. Anson Fletcher Moulton, L.J., at p. 199 says "For instance it is essential to navigation that there should be a full right of anchoring or otherwise securing in position the navigating vessel …" The only comparable observations in Scotland come from the Lord Justice Clerk (Inglis) whose views always deserve attention. It was made in the case of Nicol v. Blaikie (1859) 22 D 335 which was concerned with incidents of a right of salmon fishing, a private right. In that case, dealing with public uses of the shore, he said, obiter:

"It may perhaps not be very easy to specify or define all the public uses to which the shore is subject. The most obvious are all those which are necessary or useful for navigation and fishing."

Counsel for the defenders not unnaturally seized upon this passage as indicating that the test of necessity is too restrictive and that evident utility would do. I am not, however, persuaded that the Lord Justice Clerk intended to offer two tests which are so different in kind, or that he meant by the words "necessary or useful" any more than necessary in a reasonable sense, for the enjoyment of the primary right. So understood the observation can be reconciled with those which I have quoted from the English cases. For my part I see nothing unreasonable in the proposition that the only incidents of the public right of free passage upon the seas are those which are in a real and reasonable sense necessary for its full enjoyment. Each one of the recognised incidents of the right can be seen to be necessary, in that sense, for its enjoyment, and I am prepared to hold that the proposition, accepted by the Lord Ordinary, is a sound one which accords with common sense. In the light of that proposition, of course, the defenders' claim fails not only because they do not aver that the laying of fixed moorings is necessary to navigation but because it is obviously not at all necessary to the enjoyment of the primary right. The laying of a fixed mooring involves no more than the provision of a facility which it may from time to time be convenient for a vessel to use. No one can suggest, however, that in the absence of such a facility a vessel cannot he safely at rest—safely to its own anchor—or to more than one anchor if circumstances warrant it.

Before parting with the main question I have only to add that the decision which I have reached is in accordance with the view expressed by Blackburn, J., in Marshall v. Ulleswater Co . (1871) L.R. 7 Q.B. 166 at p. 172:

"And therefore the rule of law is, that the owner of the adjoining land, and those whom he permits to go thereon have a right to cross to and from their vessels by either wading or walking over a plank but that they have no right to disturb the soil covered by water, as by permanently fixing anchors."

In Iveagh v. Martin Paull, J., expressed the view that "the right to have a permanent mooring is doubtful," but he himself favoured the dictum of Blackburn, J., which I have just set out. As I read his opinion Fletcher Moulton, L.J., in Denaby & Cadeby Main Collieries Ltd appears to speak to the same effect as Blackburn, J., when, at pp. 201 and 202 he says this—"In the first place there is no authority whatever for the proposition that the lands under the sea are subject to any other public rights than those of navigation and fishing. It must be remembered that the right here claimed is one which directly affects the owner of the soil. The fact that it involves the permanent occupation of the water over it would be sufficient to establish this; but in addition it involves mooring or anchoring on the land itself, which is a right much of the same character as a right to drive piles into his land for the purpose of fixing the position of the coal hulk. The plaintiffs therefore set up that the public have a right to do this whenever it can be shewn that a section of the public is benefited thereby. I cannot find any trace of any servitude of this wide description in any legal authority or decision, and a universal silence of this kind is the strongest proof that no such common law right exists."

My decision is, further, in accordance with that of Megaw, J., in Fowley Marine (Emsworth) Ltd v. Gafford [1967] 2 Q.B. 808, in which he held that there is no common law right to lay or maintain permanent moorings, in another person's land without his permission. In that case it was asserted that the laying of permanent moorings was "an ordinary incident of navigation" and Megaw, J., held that it was not for reasons which commend themselves to me. I have only to say that the contest proceeded on a concession that if the act was an ordinary incident of navigation the defendant's claim would succeed. The case went to the Court of Appeal but this part of the decision at first instance was not challenged. There remains to be noticed only one other case, namely, Attorney General v. Wright [1897] 2 QB 318. In this case a jury had found that there had been immemorial user by all persons navigating the waters of Leigh, of the foreshore for fixed moorings (which they themselves had laid) and gave their verdict for the plaintiffs. In the Court of Appeal the question was whether the finding of the jury was sufficient in law to support the injunction against interference with the moorings. The Court of Appeal found that there were several grounds on which the injunction could be justified and both Esher, M.R., and A. L. Smith, L.J., held, firstly, that the immemorial user of the foreshore could be supported as an ordinary incident of navigation. In the course of his opinion the Master of the Rolls at p. 320 said this:

"What is the meaning of a mooring? It is such a mode of anchoring a vessel by means of a fastening in the ground, either an anchor or something heavy, and a chain and buoy, as will allow of the vessel picking up the buoy when she returns to it, and so coming to rest. The owner of the vessel takes possession of his mooring when he returns to it. He does not assume to take possession of the land, for he only claims to come back to and use his own mooring, and that no one has the right to remove or destroy the moorings; and I should say that no one has the right to use them in order to anchor his own ship. Now, is that mode of anchoring a ship a common incident of the navigation of ships?"

He went on to hold that it was. A. L. Smith, L.J., at p. 323 expressed himself thus:

"The first question which arises is whether or not on the evidence in this case the true inference to be drawn by the Court that this mode of bringing up these craft, the fishing-boats and yachts, is an ordinary incident of the navigation of such craft. If anything were wanted beyond one's own knowledge (which I am entitled to refer to as my lord has stated), there is one thing which seems to me to shew in the strongest possible way that it is the ordinary incident of navigation of such craft as we are dealing with, namely, that they have been brought up with moorings like these from a time from which the memory of man runneth not to the contrary, and that this should always have been done."

At first sight these passages read in the context of the facts of the case appear to lend formidable support for the defenders' contention in this case but on closer examination I am not persuaded that they should be followed. In Fowley Marine (Emsworth) Ltd both Megaw, J., and Willmer, L.J., in the Court of Appeal described them as obiter—a view with which I would not presume to disagree. Megaw, J., said further that it was not clear that the words used by Lord Esher, M.R., related to the right to place moorings in another person's land and Willmer, L. J., expressed the view that they did not bear the meaning sought to be placed upon them by the defendant. It is further to be noticed that the opinion of the Master of the Rolls was expressed upon the view that the owner of the vessel "does not assume to take possession of the land for he only claims to come back to and use his own mooring and that no one has the right to remove or destroy the moorings …" If, therefore, he intended to embrace not only the use of a fixed mooring but the laying and maintenance of a fixed mooring within the public right of navigation the underlying assumption is, in my view, false, for there can be no question but that the laying of a fixed mooring involves taking possession of the solum to which it is attached. Apart altogether from these considerations Blackburn, J.'s dictum in Marshall does not appear to have been cited in Attorney General v. Wright, and if the quoted passages were intended to mean that the laying of fixed moorings is an incident of the public right of navigation I cannot accept that this is a view which accords with principle and the authoritative dicta which I have mentioned pointing towards the opposite conclusion.

The next question which arises is whether, on the assumption that the Crown has not divested itself of its rights in Fairlie Bay by the Charter of 1601, the pursuers are entitled to declarator in terms of their second conclusion. The contention that they are not rests entirely on an obiter dictum of Lord Watson in Lord Advocate v. Wemyss (1899) 2 F (H.L.) 1 at p. 8 where with reference to the sea-bed he said this:

"Whether the Crown could make an effectual grant of that solum or any part of it to a subject appears to me to be a question not unattended with doubt; but I do not think that the Crown could, without sanction of the legislature, lawfully convey any right or interest in it which, if exercised by the grantee, might by possibility disturb the solum or in any way interfere with the uses of navigation or with any right in the public."

For the defenders the submission was that every exercise by a subject of a lease or licence to lay a fixed mooring must "by possibility" interfere with the public rights of navigation or fishing. With all respect to Lord Watson I cannot believe that his words "might, by possibility" should be construed literally. I know of no case in which an act otherwise lawful has been prohibited merely because it "might by possibility" infringe the rights of another. In any event the test of mere possibility of interference with the public right of navigation does not fit in at all with the many examples of Crown grants in the sea-bed and foreshore which are familiar to us all, including grants of harbour, oyster-fishing and salmon-fishing by stake nets. Each of these grants could be said in their exercise to be a possible interference with the public right of navigation. The true view appears to me to be that the right of navigation is not to be regarded as a right to sail in every square inch of the surface of the sea or to use for casting anchor every square inch of the sea-bed. The public right is undoubtedly wide but it should not be regarded as having been infringed save in circumstances in which what is done by or with the consent of the Crown constitutes or is likely to constitute a material interference with its exercise by members of the public exercising their right reasonably. Upon this view the Crown is, in my judgment, entitled to declarator in terms of the second conclusion, it being clearly understood that in exercising the Crown right the pursuers may not authorise the laying of fixed moorings which, in the particular circumstances of any case, will constitute or be likely to constitute a material interference with the public right of navigation. If they do, the grant in question will no doubt be subject to challenge, in a number of ways, e.g., at the instance of the Lord Advocate or in an actio popularis. I am certainly not prepared to hold in this action that any fixed mooring necessarily constitutes a material interference with the exercise, in any reasonable way, of the public right of navigation or fishing.

In light of the conclusions which I have reached so far it has become necessary to decide whether the defenders' averments relating to the Crown Charter of 1601 are sufficiently relevant to entitle them to inquiry. If they are not the Lord Ordinary's interlocutor falls to be affirmed here and now.

Upon this question I can express my opinion shortly. The defenders have produced not the Charter itself but an extract therefrom in shorthand form. From that extract and from the defenders' averments all that can be said of the physical extent of the grant is that it was of a port called "Fairlie Road." In such circumstances there is clearly doubt as to the boundaries of the grant. This doubt could be dispelled by proof of possession by the grantee and of acquiescence [Magistrates of Campbeltown v. Galbreath (1844) 7 D 220—see the opinion of Lord Medwyn at pp. 223/234]. The defenders do not offer to prove either. All they aver is as follows—"The rights granted by the said Crown Charter entitled the lieges to anchor in the Harbour of Fairlie including that part of the Bay known as Fairlie Roads. The said moorings laid by the defenders are within the area referred to in the Crown Charter as the Harbour of Fairlie, which has been used for the anchoring and mooring of vessels from time immemorial".

In my opinion these averments are wholly lacking in the specification to which the pursuers are entitled. There are, in short, no averments capable of supporting proof of the extent of the harbour which was the subject matter of the grant of 1601. The defenders do not even define by averment their understanding of the limits of "Fairlie Roads" which they say is a part of Fairlie Bay within the Harbour of Fairlie. In this whole matter I have no hesitation in saying that the pursuers' criticisms of lack of essential specification in the defenders' averments are well founded. In the result, accordingly, I would refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

LORD CAMERON .—The Reclaimers in this case are a firm of boat builders who operate in Fairlie in Ayrshire. For a number of years they have admittedly laid down moorings on the sea-bed in Fairlie Bay for use by yachts, power boats, fishing vessels and other craft. In 1969 the number of moorings was 180. No later figures are set out in the pleadings but it is not said that any material reduction in the total has occurred prior to the raising of the present action. It is explained by the Reclaimers that these moorings are laid in an open roadstead where the depth of water at low tide varies between two and four fathoms. It is averred by the Reclaimers that about one-third of the boat owners who make use of the moorings own their own mooring tackle, the remainder using mooring tackle laid by the Reclaimers and owned by them. For laying and the use of these moorings the Reclaimers levy a charge on the users. It is not said in the pleadings on what basis charges are calculated or the period of use covered by the charges.

It is common ground that these moorings were laid and have remained without any permission or licence from the Respondents, who are a body corporate by virtue inter alia of the Crown Estates Act 1961. They sue the present action as representing the Crown and in pursuance of such proprietory right on the sea-bed within the limits of the territorial waters of Scotland as the Crown possesses.

There is, however, one other question which is raised in the pleadings, which in effect is a challenge to the Crown's title to pursue the present action, in respect that it is said that the operations complained of take place in an area of the sea-bed within the limits of the "port of Fairlie" and in particular in Fairlie Bay which is said to form part of "Fairlie Roads." The foundation for this contention, the averments in respect of which were added by way of amendment after the decision of the Lord Ordinary, is said to be found in a Royal Charter of 1601 in favour of Fairlie making a Grant of Port and Harbour. This subsidiary issue only arises for decision in the event of the Reclaimers' failure to establish that what was done was in exercise of the undoubted public right of navigation. I should perhaps note at this point that it is not suggested in this case that if the right for which the Reclaimers contend exists its exercise is confined to subjects of the Crown alone—which in itself is indicative of the substantial character of the issues raised in this action. The crofter-fisherman of the Western Isles who keeps his boat at a mooring laid opposite his croft has as much—or as little—right in law to do so as the owners of a 100,000 ton tanker to lay her up at moorings laid in the shelter of a deepwater West Coast loch. Subsidiary to this principal issue in this case is the question which is raised or intended to be raised in the second declaratory conclusion of the summons as to the Crown's exclusive right to permit the laying of fixed moorings in the sea-bed. That such a power to grant permission by way of lease or licence would be within the statutory powers of the Respondents under the Act of 1961, particularly sections 3 or 4 of the Act, is not challenged or questioned. Further, it is not in dispute in the pleadings as matter of fact that at least the chains of the fixed moorings in question are shorter and heavier than is usual for a cable which requires to be hauled inboard on every occasion a vessel puts to sea.

I do not need to rehearse in detail the excellent arguments with which the cases of the parties were supported in the debate before us. After consideration of these I have come to a clear conclusion that this case can be decided on the pleadings alone and that the Reclaiming Motion fails on the principal issue which is raised in the case. In addition, for reasons which I set out later in this opinion, I am also of opinion that the Reclaimers have failed to make relevant averments to support their independent and subsidiary case. I appreciate that a decision in favour of the Respondents' case could have very far-reaching consequences closely affecting the actions—and purses—of large numbers of the public who use the sea whether in pursuit of commercial or industrial objects or solely for recreation or sport. It may well be that, particularly in light of the very great increase in recent years of the use of the sea for sport or recreational purposes, and the development of facilities for the mooring of yachts and boats and their protection from the weather, there is need for power of regulation and control of the development of these facilities in the interest of the public as a whole. Whether this is something which should be left as the responsibility of the Crown Estate Commissioners in virtue of their proprietory rights is another matter which does not arise in this case, but it may be one which could usefully and properly be the subject of legislative action. I only refer to this matter because the Respondents in their pleadings make it clear what they seek is a general and unrestricted power to issue permits or licences for the laying of fixed moorings, so that they can exercise control by means of Committees charged with "the efficient management of the moorings area"—an objective which may well be regarded as one that is desirable in the public interest—but also indicative of a development in navigational uses of territorial waters which in degree if not in substance has now reached such an extent as to require regulation and control. That however is not a matter which is within the compass of the pleadings in this action and therefore cannot be weighed in the balance between the rights of the Reclaimers and those of the Respondents. As the Respondents' case rests on the simple foundation of the Crown's right of property in the sea-bed within territorial waters and as this right is not contested by the Reclaimers, the principal issue between the parties is narrowed down to the question whether there is a right that the Reclaimers can assert to lay on the sea-bed, which is admittedly not their property, fixed moorings at will as "an ordinary incident of navigation." It is averred by the Reclaimers that "the use of such moorings to hold craft at anchor is an ordinary incident of navigation" and that such is "an exercise by boat owners of their rights as members of the public to navigate" in Fairlie Bay. Nothing is said by the Reclaimers in their pleadings which purports in any way to limit the exercise of this right either as to numbers or size or weight of fixed moorings or their location within territorial waters which any member of the public may lay. Whether "members of the public" includes persons not subjects of the Crown as I have already noted is not clear upon the pleadings. Neither, so far as the Reclaimers' averments disclose, is there any limit placed upon the period of time during which fixed moorings may legally remain on the sea-bed.

If the Reclaimers' submissions are sound in law theirs is a somewhat startling proposition with very wide and far-reaching implications. The Respondents in their pleadings not only traverse this proposition but in addition make it clear that what they seek is an exclusive general power arising from their right of property to lease or licence the laying of fixed moorings so that they can exercise control by means of Committees charged with "the efficient management of the moorings area." As I have noted earlier this may very well be a desirable and even necessary objective in light of the increasing use made of the seas around our coasts for recreational and sporting purposes—a fact which may only now be regarded as one of public knowledge—but however desirable such "regularising or regulation" of mooring facilities in designated areas may be, this cannot affect the legal rights and obligations of the Crown Estates Commissioners on the one hand and the boat-owning public—represented somewhat indirectly in this action by the Reclaimers as they may be—on the other.

At this point I would emphasise that the action is concerned solely with only one of the two major public rights in territorial waters, the exercise of which may impinge upon the Crown's exclusive right of property in the seabed and its freedom to alienate or lease portions of the sea-bed. These proceedings are not concerned with or directed to the vindication of the public right of fishing whatever may nowadays be comprehended within the scope of these rights. There may well be—I say no more than this—particular circumstances which affect and are necessarily and obviously incidental to the public right of fishing which would have to be considered and assessed were that right in issue and I reserve my opinion on that matter.

What the Reclaimers assert is therefore in the last analysis an unrestricted right in any member of the public who can claim to be "navigating" territorial waters to lay as many fixed moorings in as many locations as he may select for his own navigational purpose. It is beside the mark to assert that the use of such moorings is an ordinary incident of navigation. The question is whether the laying of fixed moorings is a necessary element in navigation and therefore whether to do so is in exercise of the public right of navigation. No doubt fixed moorings may be laid and no doubt navigators may and do use them and have made use of them over many generations of sea-faring—that is not the question. Harbour Authorities no doubt may and do lay such moorings and, according to such powers as they may possess, by statute or otherwise permit (and charge for) their use by the owners of ships or vessels. But the initial question is whether it can be said as matter of law that at all times when a ship is lying to a mooring buoy, she is still being "navigated." Unless beached or in dry dock a ship is afloat, but the fact that she is afloat is not to say that she is being navigated. A ship may be "laid up" by being left secured to a mooring buoy and unmanned, but I should say that clearly she is not in the process of being navigated. I would agree that "navigation" of a ship does not necessarily mean that only when she is actually in free motion or under way is she being "navigated:

" for various good reasons she may require to anchor and to remain anchored for varying periods, and I do not see how it could be successfully argued that during the time she was anchored a ship by that token alone ceased to be in the process of navigation. It seems to me a question of fact and circumstances whether anchoring is an episode or incident in the course of navigation or whether it marks the termination of a passage or voyage and the ship cannot any longer be held to be in course of navigation or being navigated. The fact that in any given case use is made of a fixed mooring in preference to an anchor or anchors does not appear to me on the face of it to provide a satisfactory distinction in determining whether the vessel is being navigated or whether the use of a fixed mooring is a necessary incident of navigation. There is however one factual difference between the use of the ship's anchors and the use of fixed moorings which may be both relevant and important, as I think it is. The anchor is part of the normal and necessary equipment of a ship that is carried with and on board of her throughout her active life and without which she could not be regarded as seaworthy: the fixed mooring is something which is detached from the vessel when she unmoors and is in no sense a necessary element of her equipment. The mooring is entirely independent of the ship, is no part of her equipment, and is physically available for use by any other vessel which can secure to it. In short, a ship does require an anchor, which she must carry with her as a necessary fitting, but she does not require a fixed mooring laid on the sea-bed. She can navigate the Seven Seas, far less Scottish territorial waters, without need of a fixed mooring, but without an anchor she sails at her peril and that of all who sail hi her. Thus, it does not appear to me that in principle there is any basis for the contention that the right of the navigator, arising from his enjoyment of the public right freely to navigate the seas and tidal rivers, necessarily includes the subsidiary right to place an unlimited number of fixed moorings on the sea-bed in whatever place and for whatever period he in his unfettered discretion may choose.

In my opinion the basic concept of the word "

navigation" is of passage or transit through navigable waters whether they be tidal or non-tidal, of communication by sea, and in principle, it would appear to follow that it is those activities which are necessarily subservient to that essential purpose which may be exercised as of right in virtue of the recognised and undoubted right of navigation. As Mr Weir put it, in the concept of the word "navigation" is the essential notion or idea of passage, of movement in, and communication by, sea or, I would add, in all navigable waters. By the Oxford Dictionary "navigation" is defined as "the action of navigating: the action or practice of passing on water in ships or other vessels." The underlying concept is clearly one of movement as opposed to rest.

By contrast the characteristics of moorings and their use are materially different. The use of moorings involves occupation pro tanto of the sea-bed by mooring tackle before any vessel can arrive and secure to the mooring. There is necessarily a degree of permanence—and indeed it is reasonably clear from the Reclaimers' own pleadings. As Mr Weir for the Respondents put it, the essence of mooring is to provide a base for a vessel—of any dimensions—which may or may not navigate—the owner or owners may hardly ever move their vessel or the vessel may scarcely ever make use of her mooring and, further, the vessel may be left unmanned for indefinite periods. In these circumstances the Respondents contended that the laying of a fixed mooring is not a necessary incident of navigation but is no more than an incident in the course of ownership or control of a vessel. Prima facie therefore I should be slow to be persuaded in the absence of guidance or instruction from authority—whether in institutional writers or judicial decision—that the unrestricted liberty which the Reclaimers assert is by our common law an essential or necessary element of the public right of navigation.

I do not find in the institutional writers to whom reference has been made in the wide ranging debate on this reclaiming motion, any statement which would vouch the recognition in our law of such a right as that for which the Reclaimers contend: Craig: Jus Feudale I. 15 13 is silent on this matter. All that he says which is relevant is "The sea is so far common to everybody that anyone can navigate upon it" which leaves the question in the case wholly open. However, when he comes to deal with "Sea ports" he makes this observation:

"The policy of princes led men to seek in the general interest of the commonwealth, and for the preservation of public property, a reward for this mischief and they found it in the plan of handing over sea ports not so much to private individuals as to burghs and corporate bodies, with power to improve build clean equip and provide them with conveniences for shipping"

(my italics). The mischief referred to was noted by the Emperors Theodosius and Valentinian "that it is the natural fate of property held in common to fall into neglect, for men are apt to think but lightly of the responsibilities of property—which they share with others." Craig: Jus I, 15, 15. A fixed mooring may well be regarded as a "convenience for shipping"—but not necessary as an ordinary or necessary incident of the right of navigation. Stair's Institute ed. More II. 1. 5 refers to the right of casting anchors in connection with the right of free passage by navigation through the ocean and in bays and navigable rivers. Stair II 3. 61. distinguishes between ports and "creeks and stations which are natural; but ports are built artificially and need frequent reparation." Beyond what can be inferred from these passages there is nothing in Stair which points toward recognition of a public right to lay moorings on the sea-bed. As Stair was obviously considering the right of navigation as concerned with the right of free passage, the passages cited lend no aid to the Reclaimers' argument. Erskine in his Institutes does not advance the matter nor does Rankine in his work on Land Ownership. When considering public rights on the foreshore Rankine p. 262 says "the view is at least so far correct that the shore is available to the public for all the purposes of navigation and that with the exceptions on freedom of traffic … under the head of Ferries and Harbours and others … introduced by the levying of customs—it may be laid down that the public is entitled to make free use of the forshore for all purposes necessary to navigation." Rankine goes on to cite Stair in enunciating some of the "common uses" of the shore as "casting anchors, disloading goods, taking in of ballast or water rising in fountains there, drying of nets, erecting of tents and the like"—all, be it noted, rights which had this in common—that their exercise necessarily involved only a temporary and transient invasion or occupation of the foreshore. Stair's use of the phrase "casting of anchors" is indicative of something less than and in any case very different from the assertion of a right not merely to cast an anchor, which is to be lifted when the vessel is to move again, but to place tackle in the sea-bed to which the vessel may attach or secure herself at will and without the necessity of using an anchor. It is not suggested in the pleadings or in the submissions for the Reclaimers that the use of fixed moorings is something which was not known when Stair or Rankine were writing. Bell in his Principles does not carry the matter further beyond the broad general statement;—"This right to the narrow seas comprehends that of free and uninterrupted navigation." Cf. Bell's Principles para. 610. Further, as the passages cited were written in light of the assertion of the Crown's right of property in the sea-bed, upon which the laying of a fixed (and permanent) mooring would be a plain and obvious invasion, the inference which in my opinion is proper to be drawn from our institutional writers is that the laying of a fixed mooring was not to be regarded as a "purpose necessary to navigation," and certainly that no shred of positive support can be found there for the Reclaimers' basic proposition.

If then, as I think, the Reclaimers get no comfort from our institutional and other writers of authority, the next question is whether they can rely upon the authority of decided cases. Before considering any of these examined in the course of the debate, it is at least matter of comment that no case could be found by the researches of counsel in which this particular point has come before the court for decision. It is of course open to the Reclaimers to argue this circumstance as indicative of the Crown's silent recognition of the existence of this right—but it is equally open to the Respondents to point to the absence of decision as indicative that no such claim of right had previously been asserted—and certainly so far as I am aware no such right has specifically been asserted far less affirmed in any decided Scottish case.

I do not think that the cases of Agnew v. Lord Advocate (1873) 11 M 309 or Nicol v. Blaikie (1859) 22 D. 335 are of assistance to the Reclaimers, as both cases were concerned directly with fishing rights and nothing was said in them to throw any new light upon the meaning or extent of the public right of navigation, and indeed in the later case it was clear that no question of public right was concerned but the issue was essentially one concerned with rights of private property cf. per L.J.C. at p. 343. The later case of Earl of Stair v. Austin (1880) 8 R 183 was concerned with the pursuer's assertion of a right to exact harbour dues in circumstances in which he had no grant of port or harbour from the Crown but had himself constructed some harbour works on the foreshore and partly on his land above high water mark. The question of the right to lay fixed moorings did not come into direct consideration, as the decision turned upon the absence of any legal right in the Pursuer either to charge dues for the use of the facilities he had provided at his own hand or to interdict fishermen or others from making use of the foreshore to beach or otherwise secure their craft. The Scottish cases which most nearly touch the issue here are Campbell's Trs. v. Sweeney 1911 S.C. 1319 and Leith-Buchanan v. Hogg 1931 S.C. 204. In the former it was decided that while the right to moor or drop anchor may be one of the incidents of the right to navigate a public river, it can only be exercised as a reasobable incident in the course of such navigation. Such a decision on the face of it would not comprehend the right to lay at will fixed moorings in any part of the bed of such a river. The action was one of interdict by proprietors of the banks of the river Leven and the object was to interdict the defender from mooring to the river bank a floating raft used for the purpose of his boat-hiring business or of the steam launches and motor or other boats which he kept for hire. The interdict sought was granted and in giving the judgment of the Court Lord Dundas said "The defender claims the right to moor or attach his pleasure boats for public hire to the beach or pontoon" or anchor them in the alveus. "It may be assumed that the right to moor or drop anchor is one of the incidents of the right to navigate a public river. But that right is essentially one of passage, not dissimilar to the public right of user of a highway; and I apprehend that the subordinate privilege of anchoring or mooring can only be exercised as a reasonable incident in the course of such passage or navigation." Lord Dundas said nothing to suggest that it was in the right of a navigator to lay fixed mooring for himself, or that he was entitled to use a mooring for other than the transient needs of passage in the course of his navigation. The implications of this decision are clearly adverse to the Reclaimers. The case of Campbell's Trs. was canvassed in Leith-Buchanan v. Hogg but no doubt was cast upon the soundness of that decision nor of the reasoning on which it was based. In the latter case it was held that a right of navigation on the part of the public did not include a right to beach or moor boats on private ground for the purpose of carrying on the business of a boat hirer. That decision therefore does not of itself lend any support to the Reclaimers nor can they derive any help from a particular passage in the judgment of Lord President Clyde, where he said:

"But the only rights covered by the public right of navigation in a navigatable river are such as may be subservient to the purposes of navigation; and the use of the shore of the loch [Lomond] or the land immediately adjoining it for keeping boats and carrying on the business of letting them out for hire is plainly not a right of the kind. It is true that to cast anchor or even to attach a vessel to a mooring fixed on the bottom of a navigable river may be an act incidental to navigation; but that is a very different thing."

No doubt if a mooring had been lawfully laid, use may be legitimately made of it: this is all the Lord President was saying. It was far from laying down, as law the proposition that because a fixed mooring may be used in the course of navigation then it follows there must be a right to the user himself to lay one for his own use or even to use one for a purpose other than passage. Further in the recent case of Wills' Trustees v. Cairngorm Sailing School 1976 SC (HL) 30 it was not suggested that the right of navigation in the Spey included a right to lay fixed moorings at will and discretion on the part of any navigator; although the particular point was not directly in issue it was not overlooked and nothing which was said on that matter was the subject of adverse comment when the case went to the House of Lords. Thus, so far as Scottish authority touches the specific issue raised in the present action, not only is there no authority which directly supports the Reclaimers but what there is, in my opinion, is mainly adverse to them. If one then turns to English authority, I think that it can be demonstrated that not only does the course of authority there not favour the Reclaimers but there is recent English decision on the general issue raised here which is directly adverse to them. In considering the present proceedings English authority is in my opinion valuable and important as the Crown's right to the sea-bed, I apprehend, is the same in England as in Scotland.

The earliest case founded on by the Reclaimers—Gann v. Free Fishers of Whitstable (1864) 11 H.L.C. 192—was not concerned with the right to lay fixed moorings but solely with the right to cast anchor within the bounds of oyster beds as part of the public right of navigation, so does not advance the argument. The later case of Att. Gen v. Wright [1897] 2 QB 318 though strongly founded upon by the Reclaimers does not in my opinion offer them any assistance. The case arose out of a claim to place certain mooring tackle on the sea-bed on the foreshore as matter of immemorial custom—an issue which went to a jury. The verdict was in favour of the Attorney-General who sued on behalf of the navigating public: or more narrowly the fishermen and yachtsmen of Leigh—an area within the jurisdiction of the Thames Conservancy of the Port of London. The only question in the appeal was as to the immemorial use claimed. The observations of Lord Esher, M.R., and A. L. Smith, L.J., strongly founded upon by the Reclaimers, were therefore essentially obiter. While it is said that Lord Esher's reference to the mooring of H.M.S. Victory in Portsmouth Harbour were factually wrong I do not think that really matters because ex hypothesi he was dealing with a matter which arose within the limits of a naval port: equally in his reference to Cowes Roads and the mooring of yachts he did not give any indication as to who laid the moorings or on whose authority or in what maritime jurisdiction, if any, they were laid. In my opinion the decision in A.G. v. Wright is special in itself and in any event affords neither in its decision nor in the judgments expressed any help to the Reclaimers. The latter case of Denaby & Cadeby Main Collieries v. Anson [1911] 1 KB 171 was concerned with the laying of moorings for a coal hulk by a private party in a naval harbour. In that case the judgment of Fletcher Moulton, L.J., at p. 201 and 202 is a rejection of any such right as is here claimed. He said:

"The plaintiffs therefore set up that the public have a right to do this (i.e. lay and occupy permanent fixed moorings) wherever it can be shown that a section of the public is benefited thereby. I cannot find any trace of a servitude of this wide description in any legal authority or decision and a universal silence of this kind is the strongest proof that no such common law right exists."

This is a pronoucement of weight and brings the law in England up to 1911. The matter arose again in Iveagh v. Martin [1961] 1 Q.B. 232 and there Paull, J. expressed a view that the right to have a permanent mooring is doubtful. The most recent English decision is that of Megaw, J. (now Megaw, L.J.), in Fowley Marine v. Gafford [1967] 2 Q.B. 808 who, after a full review of the authorities held that there is no common law right to lay, or maintain permanent moorings in another person's land without his permission. Such a right may of course arise by custom or may be given by Statute. That judgment has not been made the subject of adverse judicial comment since although the case went to appeal (1968 2 Q.B. 618) there was no appeal on this point of the learned Judge's decision and this was noted by Willmer, L.J., at 633.

In reaching his conclusion Megaw, J., founded strongly on a passage from the judgment of Blackburn, J., in Marshall v. Ulleswater S. N. Co . (1871) L.R. 7 Q.B. 166 in which he said, in relation to rights of navigation, "and therefore the rule of law is … that they have no right to disturb the soil covered by water (i.e. soil belonging to another) as by permanently fixing anchors." Therefore, it would appear the law of England rejects the claim to lay fixed moorings as a necessary element in the exercise of the public right of navigation. If such a right as that claimed by the Reclaimers in this case were properly to be regarded as a necessary element in the public right of navigation and therefore, one may infer, one which was necessary for navigation generally it is perhaps surprising that no reference to successful assertion of such a right in other jurisdictions where the English common law is received should have been made in any of the English cases in which this issue has arisen.

To summarise therefore; no support for the Reclaimers is to be found in our institutional writers or in decided Scottish cases, while in England the weight of authority and decision is clearly adverse to them. I am therefore of opinion that on principle and upon authority the main contention for the Reclaimers fails and that the Lord Ordinary reached a correct decision upon it. The Reclaimers' subsidiary argument which only arises on the assumption that their main contentions fail, as I think they do, relates to the Grant of Port and Harbour, made by King James VI in a Crown Charter of 1601 in favour of Fairlie of that Ilk. There is in process a translation of the Charter from its original Latin and also a reproduction in the original Latin of the relevant entry in the Register of the Great Seal of Scotland 1593–1608. These two documents, however, not only bear to be capable of more than one interpretation, in particular as to what is meant or covered by the words "Fairlie Road," but give no indication by reference to any geographical or physical features of the boundaries of the Grant. In addition, and this in my opinion is of critical importance, the Reclaimers are not able to make averments as to what in fact was comprised within the area of the Grant of 1601 either by reference to identifiable physical boundaries or otherwise. From the averments made it is impossible to discern what use, if any, was ever made of the benefits conferred by the Charter far less what are identifiable today as the limits of the Grant of 1601. All that the Reclaimers say is set out in three brief sentences in Answer 3 of their amended Record. The averments set out baldly that Fairlie Harbour includes that part of Fairlie Bay "known as Fairlie Roads" and that the moorings "are laid within the area referred to in the Crown Charter as the Harbour of Fairlie, which has been used for the anchoring and mooring of vessels from time immemorial." It is upon that Charter and its terms that the Reclaimers must rely but as I have noted they make no attempt to specify the limits of the Harbour of Fairlie covered by the Grant of 1601.-

It should be noted that the Oxford Dictionary definition of "Roadstead" is "a place where ships may conveniently or safely lie at anchor near the shore"—no suggestion of a place of permanent mooring. Further, the Reclaimers do not allege that the "immemorial use" of the area described but not denned is in any way related to the 1601 Grant while in addition the matter is somewhat confused by the use of the words "anchoring and mooring." It is nowhere suggested by the Respondents that anchoring in Fairlie Bay—whatever may be covered by the description—is or was ever in contravention of the rights of the Crown. Further, the issue is not whether to make use of moorings is by itself an illegal invasion of the right of the Crown but whether the right to lay fixed moorings by or on behalf of owners or operators of ships and vessels of any kind without licence or permission by the Crown is a necessary element of the public right of navigation. In these circumstances, I do not think that the Reclaimers' averments are relevant to entitle them to a proof on this branch of the case. It was not suggested in argument that this branch could be decided in favour of the Reclaimers on the pleadings alone and therefore, if the Reclaimers' averments were relevant and I do not think they are, there would require to be inquiry into the facts. In my opinion however, both on their main and also on their subsidiary contentions the Reclaimers fail.

The question then arises as to the disposal of this Reclaiming Motion. The first declaratory conclusion by concession is unnecessary, but the Respondents seek declarator in terms of the second conclusion. In view of the statutory powers of the Respondents to grant leases or other privileges under the Act of 1961 it might be thought that this also is unnecessary as it is no more than made a general declarator in the abstract of what is a necessary consequence and corollary of the acceptance of the Crown's claim to sole and exclusive rights of property in the sea-bed below low water mark at Fairlie Bay. However in the course of the debate it became clear enough from the Respondents' averments that what is in contemplation is the introduction and development of a comprehensive scheme of licensing and control of the laying of moorings in the sea-bed over which they have jurisdiction and that charges may be imposed for the grant of such licences. How the power which the Crown possesses to regulate and control the laying of moorings is to be exercised consistently with the public right of navigation is a question which involves many interests and considerations which could go far beyond the sharp issues raised in these proceedings. The extent to which the Crown's power to make grants or issue licences or permits is limited by this over-riding public right may be thought to be open to debate, arising from a dictum of Lord Watson in the case of Lord Advocate v. Wemyss (1899) 2 F. (H.L.) 1 at p. 8. In that case Lord Watson in an obiter dictum, said this:—

"Whether the Crown could make an effectual grant of the solum or any part of it to a subject appears to me a question not without doubt: but I do not think that the Crown could, without sanction of the legislature, lawfully convey any right or interest which, if exercised by the grantee, might by possibility disturb the solum or in any way interfere with the uses of navigation or with any right of the public."

With all respect to Lord Watson's great authority I think that the possibility referred to related to a material interference with the public right and I therefore agree with Your Lordship that the interference which would preclude the Respondents from such an exercise of their powers as is indicated by the form in which the second conclusion is framed must be one that in the circumstances of a particular case or cases involves in fact or in reasonable likelihood a material interference with the exercise of the public right of navigation. That, in my opinion is an issue, the decision of which will necessarily depend upon the facts and circumstances of the particular case in which the exclusive right of the Crown is subjected to challenge.

In all these circumstances and as the Reclaimers' principal arguments rested on the claim to a competing and independent right restrictive of the exercise of the Crown's right of property exercisable in the discretion of the owners or operators of ships or boats, I think the Respondents are entitled to declarator as second concluded for. This leaves only the conclusion for interdict to which in my opinion the Respondents have clearly demonstrated that they are entitled and I am therefore for disposing of this reclaiming motion as proposed by your Lordship in the Chair.

LORD JOHNSTON .—I agree with your Lordships and there is nothing I can usefully add.