Kirkwall, Orkney, 23 July 1883 - John Campbell Mellis

JOHN CAMPBELL MELLIS, Sheriff-Substitute of Orkney (38)—examined.

25245. The Chairman,
—We have asked you to come here for a moment in consequence of the statement made by a delegate named John Brown, crofter, Kelton. He complained that on a certain shore which was accessable by the public road, the people were not allowed to gather drift sea-ware and sand at their own discretion. He thought that a great hardship : what is the law on that subject?
—I always understood the law to be that they are not entitled to take sand except by permission of the
adjoining proprietor. As to drift sea-ware, I should say what comes on the shore is considered the proprietor's, but whether they ever interfere with it, I do not know, but I should say it belonged to the proprietor in the first instance—either the Crown or the propietor of the adjoining land.

25246. Sea-ware, drift and fixed, belongs to the proprietor of the shore?
—I understood so.

25247. And has the Crown no claim? I mean does the proprietor have the right in common law, or is it in virtue of a charter from the Crown?
—Sea-ware I should say is usually included in the titles of the riparian proprietor, but apart from that, I should fancy the right would remain with the Crown.

25248. Is that growing sea-ware or the drift?
—I am not aware of any distinction as to the right of parties.

25249. Sir Kenneth Mackenzie.
—Mr Brown compared it to jetsom?
—Lots of wood are regulated by statute—by the shipping statutes—and wood is to be taken possession of by the receiver of wreck, for behalf of whomsoever it belongs to, if the owners are known, or if it is not known who the owners are it belongs to the Crown, and it is sold for its behalf.

25250. Mr Fraser-Mackintosh.
—You would draw a distinction between some timber driven ashore and a tree in its native state?

25251. Receivers of wreck have nothing to do with tree timber blown ashore—a tree with its roots attached?
—I never turned my attention to that point, as to who would have the property in a tree.

25252. Mr Cameron.
—With reference to the remarks about the rights of the Crown, you are aware, I presume that the right of the Crown to the foreshore in Scotland has always been disputed by riparian owners, and whenever a strong case has been taken to the law courts, the Crown have always been worsted and the riparian proprietor has succeeded?
—I understood the law to be thus, that when it belongs to either the Crown or the proprietor if his titles include it, and whichever it belongs to, it is held for the benefit of the public for public uses, such as passage and traffic and white fishing, and general uses that could be made of it by the public. But I quite understand that the foreshore belongs, subject to these public uses, as a rule to the riparian proprietor.

25253. But what is meant was that you are aware that the claim of the Crown to the foreshore has been disputed by riparian owners and carried to the highest courts of law, and that where such claims had a good title the question between the Crown and the riparian owners has been invariably decided in favour of the riparian owners and against the Crown ?
—The onus lies I should say with the proprietor to prove that he has a title wherever it is disputed, but at common law I should say originally it belonged to the Crown.

25254. Are you aware that it has always been held by riparian owners in Scotland, that there is a difference between Crown rights to the foreshore in England and in Scotland?
—I cannot say I am aware particularly of the distinction between the two countries.

25255. The Chairman.
—The witness seemed to be under a sort of impression that the fact that roads running along the shore and separating it from the proprietor's land would deprive the proprietor of a right to the shore and make the shore as it were more public property than it would otherwise be?
—Well, I should say the law does not recognise any such thing whatever, not in the very slightest, although it might seem a natural thing enough to an ordinarily intelligent, but not educated man. I think I must guard myself against giving legal opinions in the county, without having some case before me, because it might commit me afterwards. Might I be allowed to say that one thing has impressed me in comparing Orkney with the Western Islands. There is a strong desire in the Western Islands to stay at home in the land of their fathers which may be laudable or not; but in Orkney, I have been impressed by the enterprise of the young fellows in going off and making their way in the world. There is no feeling amongst the present generation of sticking to the place, they stick to it and keep to their traditions when abroad, and look forward to coming back; but they show not the smallest instinct to stick to it because they were born there. They began many years ago to go abroad, going to Hudson's Bay, and I have no doubt most of the people there in the fur trade would be Orcadians, and from that time I suppose there is hardly a part of the globe where you will not find numbers of Orcadians. I have the honour to be captain of a battery of volunteers in Kirkwall, and I find it is almost hopeless trying to keep up instruction in drill, just because nearly one-half of the battery are new men every year. You can quite see the difference of that from a steady lot of men every year. Half the men are new every year, and while you may trust to the older men knowing their duties, the younger men are not familiar with them, and that is what has drawn my attention to the matter.

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