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This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: • This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. • A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. • This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. • The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. • When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Private Water Rights in Scots Law Jill J. Robbie Presented for the Degree of Doctor of Philosophy The University of Edinburgh 2012 Table of Contents Table of Contents ......................................................................................................... i Acknowledgments ...................................................................................................... vi Declaration .............................................................................................................. viii Abstract ...................................................................................................................... ix List of Abbreviations .................................................................................................. x Chapter I – Introduction ............................................................................................ 1 A. Overview ............................................................................................................. 1 B. Methodology ........................................................................................................ 5 1. Doctrine ............................................................................................................ 5 2. Comparison ....................................................................................................... 8 C. Public and Private, Rights and Rivers ................................................................. 9 Chapter II – The Division of Things ....................................................................... 11 A. Introduction ....................................................................................................... 11 B. Roman Law ........................................................................................................ 12 C. Craig and Stair’s Division of Things ................................................................. 16 1. Craig ............................................................................................................... 17 (a) Craig’s Division of Things .................................................................................... 17 (b) Public Things ........................................................................................................ 18 (c) Public Things and the Regalia .............................................................................. 20 (d) Omissions from The Division ............................................................................... 21 2. Stair ................................................................................................................. 21 (a) Stair’s Adaptation of the Division of Things ........................................................ 21 (b)The Real Right of Commonty ................................................................................ 22 (c) The Limitation on Appropriation .......................................................................... 23 (d) Commonty and the Sea ......................................................................................... 25 (e) The Right of Passage ............................................................................................ 27 (f) Public Things and The Regalia ............................................................................. 27 (g) Omissions From The Division .............................................................................. 29 3. Comparison of Craig and Stair ....................................................................... 29 D. Later Institutional Writers ................................................................................. 30 1. Mackenzie, Forbes, Bankton and Erskine ...................................................... 30 (a) Common Things .................................................................................................... 31 (b) Public Things ........................................................................................................ 32 2. Kames ............................................................................................................. 33 3. Hume and Bell ................................................................................................ 34 (a) The Withering of Res Communes ......................................................................... 34 (b) The Rise of Regalia .............................................................................................. 36 E. Modern Scholarship ........................................................................................... 37 i F. The Modern Division of Things ......................................................................... 41 1. Things Exempt From Commerce ................................................................... 42 2. Communal Things .......................................................................................... 43 (a) Air ......................................................................................................................... 45 (b) Light ...................................................................................................................... 46 (c) The Sea .................................................................................................................. 46 (d) Running Water ...................................................................................................... 47 (e) Standing Water? .................................................................................................... 47 3. Public Rights and Communal Things ............................................................. 48 (a) Common Law Public Rights ................................................................................. 49 (i) Rights over the Sea ............................................................................................ 49 (ii) Rights over Public Rivers and Lochs ............................................................... 50 (iii) Rights over the Foreshore ................................................................................ 51 (iv) Rights over the Ports and Harbours ................................................................. 51 (v) Rights of Highway ............................................................................................ 52 (b) Statutory Public Rights ......................................................................................... 52 G. Conclusion ......................................................................................................... 54 Chapter III – The Ownership of Land Beneath Water ........................................ 56 A. Introduction ....................................................................................................... 56 B. Roman Law ........................................................................................................ 56 C. Scots Law ........................................................................................................... 58 1. Sea-Bed ........................................................................................................... 59 (a) A Dearth of Authority ........................................................................................... 59 (b) Modern Law .......................................................................................................... 61 2. Foreshore ........................................................................................................ 63 (a) Craig, Stair, Forbes and Bankton .......................................................................... 64 (b) Battles Over the Right to Kelp .............................................................................. 65 (c) The Extent of Regalian Rights .............................................................................. 68 (d) Summary of Potential Status of the Shore ............................................................ 72 (e) The Crown Asserts its Rights ............................................................................... 73 (f) The Modern Law ................................................................................................... 79 3. Rivers .............................................................................................................. 83 (a) Public Rivers ......................................................................................................... 83 (i) Navigable Rivers: Institutional Writers and Case Law ..................................... 83 (ii) Tidal Rivers and the Modern Law ...................................................................
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