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predecessors have had possession of the foreshores on both sides of the river along their whole property, of such a character and for such a length of time, as to show that the undefined grant of barony really included the foreshores in question. The proof clearly establishes, that from time immemorial Lord Blantyre and his predecessors have exercised upon the foreshores in question on both sides of the river nearly every conceivable right which an undoubted proprietor could have exercised. They have regularly, themselves or by their tenants, used for pasturing their cattle those por tions of the foreshore which though covered at high water produced grass available for pasture. They have regularly cut the reeds which grew on the foreshore, and used the same for thatching and other purposes; and, until the supply failed, owing to the pollution of the water, they regularly cut the sea-weed which grew upon the foreshores, and carried off that ware as well as the drift ware for the purpose of manuring their lands. They have also carried away large quantities of sand and stones from the foreshore, and used the same for building houses and walls and forming roads upon the estate, and in particular, some thous ands of cartloads of sand were taken for the construction of the new mansion house of Erskine, the building of which was begun in 1824 and was not finished till 1835 or later, and for the formation of an approach to the new house. During the same period also, the rubbish and debris from the foundation of the new mansion house and from the ruins of the old, were deposited in large quantities upon the foreshores of the policy grounds, and upon that great quantities of sand and soil dredged from the bed of the river have been at the request or with the permission of Lord Blantyre and his predecessors deposited on the foreshores, whereby the surface has been elevated above the level of high water, and has long been used as an addition to the arable or grazing ground of the estate. Similar operations have from time to time been performed on other parts of

the foreshore on both sides of the river, whereby a considerable extent of ground has been reclaimed. Then above Erskine ferry on the south side of the river, and above and below that ferry on the north side, wharfs and harbors have been made upon the foreshores by Lord Blantyre and his predecessors. They have also been in use to grant permission to third parties to take away sand and gravel from the foreshore, and they have also repeatedly prevented, and by legal process have interdicted, many persons from removing such materials without their permission. They have also run fences across the foreshore in continuation of the boundaries of the several farms, so as to confine the stock on one farm to the pasturage on the foreshore opposite the same; and they have, with sand, gravel, and stones, taken from the foreshore, made extensive embankments along the margin of the river. They have also been in use regularly to shoot and fish upon the foreshores, to beach boats and land cargoes on the foreshore, and to do many other similar acts. They have also excluded the public from the foreshore, and indeed for many miles no access to the foreshore can be had except through the pursuers' policy grounds. Now, none of these acts of possession, which, as I have said have been carried on for time immemorial (some of them having been proved to have taken place during last century), have ever been objected to or interfered with by the Clyde trustees, the Crown, or by any other persons.

"These acts of possession are not of the nature of a servitude, as the defenders maintained them to be, and they can be attributed only to the exercise of a right of property. Had the possession been confined to acts of one particular kind, such as merely pasturing cattle or taking sea-weed, it might possibly have not been sufficient as an assertion of a right of property; but the various acts of possession above enumerated really seem to embrace every use of the subject of which it was capable, many of them involving the removal of the substance of the

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bondas et vice-comitatus eidem proxime adjacentes venientium.' The charter then confirms and grants to the burgh and magistrates, inter alia, etiam libertatem usum et possessionem quam predictus burgus noster de Glasgew et magistratus ejusdem habuerunt eligendi unum ballivum qui aque presit lie ane water baillie infra dictum fluvium de Clyde ubi mare fluit et refluit et infra integras bondas ejusdem subtus Pontem de Glasgew ad lie Colchstane et corrigendi omnes injurias et enormitates super dicto fluvio commissas infra bondas ejusdem.' Then there is a grant to the provost, bailies, &c., of Totum et integrum dictum burgum nostrum et civitatem de Glasgew cum omnibus et singulis terris domibus edificiis tenementis... lacubus torrentibus... ripis saxis salmonum piscariis aliisque piscationibus in dicta aqua et fluvio de Clyde... una cum omnibus aliis privilegiis et immunitatibus quibuscunque tam ecclesiasticis quam secularibus eisdem spectantibus jacentibus infra predictum burgum libertatem territorium et jurisdictionem ejusdem; ac cum libertate dicti fluvii de Clyde ex utroque latere a Ponte de Glasgew ad lie Colchestane nec non cum libertate et immunitate navium stationum lie of the readis of Inschegrcine, Newwark, Pot of the rig vel alicujus alterius navium stationis infra dictum fluvium de Clyde inter Pontem de Glasgew et lie Colchstane predictum pro onerando et exonerando mercimonia et bona ad dictum burgum,' &c. Then follows a new erection of the burgh in unum liberum burgum regalem cum omnibus et singulis libertatibus privilegiis immunitatibus et jurisdictionibus que de juribus et regni nostri consuetudine pertinue. runt pertinent aut juste pertinere poterint ad aliquem liberum burgum rega lem.' And then follows the following grant, upon which a considerable part of the argument for the Glasgow trustees was founded: Damus et concedimus liberam potestatem libertatem et privilegium prefato nostro burgo de Glasgew burgensibus et inhabitantibus ejusdem negociandi to lie tred et traffique vendendi et mercimonia faciendi infra omnes partes dicti fluvii

et aque de Clyde cum extraneis omnibusque aliisque personis ibidem venientibus et reparantibus et edificandi portus et navium stationes propugnacula et lie gittieheidis ad reddendum dictum fluvium magis navigabilem infra integras bondas dicti fluvii a dicte Ponte de Glasgew ad lie de Clochstane et ad recipiendum eorum naves cymbas et naviculas infra bondas dicti fluvii in quantum estus maximus lie spring-tyde fluit; et capiendum lapides et arenam infra aliquam partem dicti fluvii in quantum dictus estus maximus fluit, ad construendum propugnacula portus navium stationes et lie gitticheidis et ad reparandum et emendandum eadem et cum eisdem naves suas cymbas, naviculas aliaque vasa saburrandum; una etiam cum potestate et privilegio ipsis exigendi, petendi et levandi anchoragia et lie schoir silver aliasque devorias omnium mercimoniorum cymbarum navicularum aliorumque vasorum appellentium apud lie Broomie Law de Glasgew vel ad aliquam aliam partem infra dictum fluvium de Clyde secundum usum et consuetudinem.'

"The Clyde trustees maintain that, in virtue of this charter, the property. of the banks and shores of the Clyde, from the bridge of Glasgow to the Clochstane, which are respectively far above and below the limits of the pursuers' land, was conveyed to the provost and magistrates of Glasgow, and that they, the Clyde trustees, have now vested in them all the rights conferred by that charter upon the magistrates. As to the interpretation of the charter, I am of opinion that the right of property on the shores and banks was not thereby conferred on the magistrates. The right of appointing a magistrate, called a water bailie, to prevent disorders taking place in the river, was undoubtedly conferred on the magistrates. Power also was given to them to maintain and improve the navigation of the river, and for that purpose to take sand and stones from any part of the river and to make bulwarks and jetty-heads, &c. They were also authorized to ballast their own vessels with material taken from the river, and to levy tolls on all ships using the river,

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and on goods exported and imported from or into the bounds in question. But the grant of such powers and privileges as these does not necessarily or naturally imply a grant of property in the foreshores. It is, in my opinion, nothing more than a grant of authority to the provost and magistrates of Glasgow to perform, for the purposes of navigation, all such acts upon the shores and banks of the river as the Crown itself might have done for similar purposes, and it merely constitutes a burden on the right of property in the foreshore to whomsoever these may belong. It may be that the Crown, though trustee for these public uses, might not have been bound to perform any such operations for the maintenance or improvement of the naviga. tion, but it undoubtedly had power to do so; and even an express grant of the foreshore to an individual must always have been subject to a reservation -implied, if not expressed-of the right of the Crown, as trustee for the public, to maintain and regulate the navigation. And I do not think that it was incompetent for the Crown to delegate these powers to the burgh of Glasgow, as being deeply interested in the river.

"But it is to be observed that this power of taking sand and stone from the river-unlike all the other subjects and privileges conferred by the charter -is given, not to the provost, bailies, and council of the burgh at all, but to the burgh itself, and the burgesses and inhabitants thereof, as part of a general clause conferring upon these burgesses and inhabitants power, liberty, and privilege of trading in every part of the river and water of Clyde. Even, therefore, if the power and privileges of this charter were all transferred from the provost and magistrates to the Clyde trustees, I do not think that any right of property, either in the alveus of the Clyde or in the foreshores thereof, was by that charter conferred upon the provost and magistrates, or was capable of transmission to the Clyde trustees. But further, I am of opinion that the Clyde trustees have failed to connect themselves in any

way with that charter. They derive their existence solely from statutes which do not confer upon them any right to that charter. In either view of the case, therefore, it follows that the performance of any of the operations, or the exercise of any of the powers authorized or conferred upon the burgh of Glasgow by the charter in question, even if regularly carried on from 1636 to the present date, could not have the effect of giving to that community, or to the Clyde trustees, any right of property in the foreshores, or any higher right than the maintenance and protection of the public navigation; and, in particular, could not have the effect either of divesting the Crown of its radical right of property in the foreshore, or of interfering with any right to the foreshore conferred by the Crown upon the proprietor of the adjoining lands. And, accordingly, in the debate upon the proof, the counsel for the Lord Advocate expressly stated, in answer to a question put by myself, that the Crown held that no right of property in the foreshore has ever been been vested in the provost and magistrates of Glasgow or in the Clyde trustees, either under the said charter or in any other way. On this branch of the case, therefore, I am of opinion (1) that the charter in question is not of itself a title to the property of the foreshores; and (2) that even if full possession had been enjoyed by the grantees of that charter and their successors, by the performance of all the operations authorized, and the exercise of all the powers conferred by it, the title is not one which, by such possession, could be explained to be, or converted into, a title of property. In short, the charter, so far as it may relate to the foreshores, was a mere grant of a power or faculty to perform certain operations on lands belonging to the Crown, or to a grantee of the Crown, for the maintenance and improvement of public navigation, and is something entirely different from a grant of lands which, by prescriptive possession of certain other lands not specified in the grant, but as parts or pertinents of the lands named, is held to have been in

1879

tended to include these unnamed lands as well as those expressly mentioned. "The charter of 1636 being thus of little avail to the Clyde trustees in the present question, it is necessary to examine their alleged statutory title to the foreshore of the Clyde. The history of the legislation begins with the act 32 Geo. 2, c. 62 (1758), which conferred upon the magistrates and council of the City of Glasgow power to deepen and improve the Clyde from Dumbuck Ford (which is at the western extremity of Lord Blantyre's property) up to Glasgow Bridge, and to perform all necessary acts in and upon the bed and banks of the river for that purpose. "For the precise terms of the statute reference is made to the act itself; but I may specially notice the 2d and 37th sections, which provide that the magistrates and council may open stone quarries and dig stones or other materials out of any waste or common ground lying near the said navigation, without paying anything for the same -they always filling up and levelling all holes or pits which should be thereby made; and in case sufficient materials could not be found in such waste or common ground, then it should be lawful for the magistrates and council to dig and gather such materials in, and carry the same out of, the grounds of any person or persons near the said navigation works (not being the ground whereon any houses stand, or garden, orchard, yard, planted walk or walks, or avenue to a house), where such materials could be found for effecting the purposes aforesaid, and for keeping the works in order and repair, the magistrates and council making reasonable satisfaction to the owners in the manner pointed out by the statute. Now it is very probable that, under the terms waste or common ground,' may be included the foreshores of the river, which, undoubtedly, are to a very considerable extent covered with stones, sand, or gravel and mud, and which, therefore, may properly be called waste ground. But the power to take away stones and

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gravel therefrom, without paying anything for the same, does not confer upon the magistrates and council any right of property in the foreshore. Such a power would have been entirely unnecessary if the foreshores had been already conveyed to them by the charter of 1636; and the whole language of the statute seems to imply that all the operations contemplated, whether in alveo or in the shores and banks, were to be performed on the property of others, whether of the Crown or of subject proprietors, who were to be entitled to receive compensation except where the grounds were waste, in which case no compensation was to be claimable. I therefore think that the powers given to the magistrates and council, under this statute at all events, could not interfere with the right of property on the foreshore, whether vested in the Crown or a subject, and was merely a burden imposed upon the proprietor not only of the foreshore but also of the adjacent dry land, of submitting to some little inconvenience for the general public good.

"The Act of George II, was followed by other statutes conferring further and additional powers on the magistrates and council of Glasgow, for the purpose of improving and maintaining the navigation of the Clyde. It is unnecessary to specify the details of these statutes, because the powers conferred are substantially of the same kind as, though more extensive than, the powers conferred by the original act. The statutes referred to are-10 Geo. 3, c. 104 (1770); 49 Geo. 3, c. 74 (1809). It is only necessary to say that in all of these acts the rights of the proprietors of lands affected by any of the operations authorized are fully protected, the trustees being authorized to take or acquire land, or to execute works thereon, only on condition of making compensation for all ground taken or injured by them in the performance of their statutory duties.

"The next act, 6 Geo. 4, c. 117 (1825), is an important one-(1). Be