Parker and Others v. The Lord Advocate [1904] UKHL 491 (17 May 1904)

Parker and Others


The Lord Advocate.( Ante, March 18, 1902, 4 F. 698, 39 S.L.R. 537.)


Subject_Crown — Mussel-Fishing — Property.

Mussel-scalps on the foreshore and bed of the estuary of a public navigable river belong to the Crown as a patrimonial right, and not merely in trust for the public.


The case is reported ante ut supra.

The pursuers appealed.

At delivering judgment—


Lord Chancellor—In this case I think the judgments of the Lord President and the Lord Ordinary are complete and exhaustive, and I do not wish to add a single word to them. The Lord President has, I think with great precision, traced the origin and the application of the Crown rights, and I do not think there is any difference in the law applicable to those Crown rights between the law of England and the law of Scotland. I am therefore of opinion that the judgment of the Lord President and his colleagues should be affirmed and this appeal dismised with costs.

Lord Macnaghten—I am of the same opinion. The judgment of the Lord President is so clear and complete that I do not desire to add a word to it.

Page: 492

Lord Davey—I concur. I have carefully considered the judgment delivered by Lord Kincairney in the Outer House and by the Lord President with the concurrence of his colleagues in the Inner House and the decisions which are therein referred to—and I think that the opinion unanimously expressed by those learned Judges is amply borne out by the authorities quoted by them. Whatever doubts may have been entertained or different opinions expressed in former times, it must now be taken to be established by a series of authorities extending from at least the beginning of the last century that mussel scalps and mussel fishings may be a competent subject of grant by the Crown. I do not think that the attempt made by the appellants to explain the grants of mussel fishings by attributing them to the exercise of the prerogative of the Crown over property held in trust for the public in supposed analogy to English law can be maintained; and I think that the better opinion is that which I consider to be now established law in Scotland, viz.—that mussel fishings are part of the heritable patrimonial property of the Crown. I cannot add anything to the reasons for their judgment expressed by the learned judges.

Lord Robertson—I entirely agree in the judgment of the Lord President and in the appreciation of that judgment expressed by my noble and learned friend on the Woolsack.


Counsel for the Pursuers (Appellants)— Haldane, K.C.— Macmillan— Grant Sanders. Agents— J. A. B. Horn, S.S.C., Edinburgh— Bramall, White, and Roberts, London.

Counsel for the Defender (Respondent)— The Lord Advocate (Dickson, K.C.)—The Solicitor-General ( Dundas, K.C.)— Vaughan Hawkins—Pitman. Agents— Davidson & Syme, W.S., Edinburgh— R. Ellis Cunliffe, London.