The inter regalia are the rights falling to the Crown (ie: The King/Queen of Scots) in Scots property law. The term derives from Latin inter (among) and regalia (things of the king).
There are two classes of rights, divided into:
The regalia majora (major regalia), which are inseparable from the person of the sovereign. The regalia minora (minor regalia), which may be conveyed to a subject.
The regalia majora The regalia majora are royal rights which cannot be alienated by the Crown. Examples are:
the Crown's right in the sea and seabed in respect of public rights of navigation and fishing; the Crown's right in the foreshore in respect of public rights of navigation, mooring boats and fishing; and the Crown's right in the water and bed of navigable rivers, again in respect of public rights such as navigation.
The regalia minora Under feudal law, which operated in Scotland from the Davidian Revolution until 28 November 2004,Abolition of Feudal Tenure (Scotland) Act 2000 s.1 all land in Scotland was originally owned by the Crown (ie: The King/Queen of Scots of the time). Certain rights in the land, called the regalia minora, could be reserved to the Crown when the Crown granted land to a Crown vassal. Today, following the abolition of feudalism, any of the regalia minora that has not been expressly granted to the owner of land through previous grant or another individual as a separate legal tenement, still remains the property of the Crown under the regalia minora.Steven, A. and Gretton, G. (2017) Property, Trusts and Succession, page 226.
Right to fish salmon Termed by Gretton and Steven as the "most important legal separate tenement."Steven, A. and Gretton, G. (2017) Property, Trusts and Succession., page 227. Riparian (water) law is an area of Scots property law concerning the ownership of sections of rivers and their attached rights.For full discussion, see J. Robbie, Private water rights in Scots law, PhD Thesis: https://era.ed.ac.uk/handle/1842/7796. Subsequently published as J. Robbie, Private Water Rights, Edinburgh Legal Education Trust (Edinburgh, 2015). However, despite any rights for fishing given to owners of the land under Scots riparian law, the Crown alone has the right to fish salmon. In practice, the Crown can transfer ownership, lease or license these rights to other individuals, often at high value due to the commercial interests of salmon fishing. The holder of the right of ownership in the salmon-fishing rights is treated as a separate legal owner from the owner of the land, as a separate legal tenement.Stair II, 3, 69. Viscount Stair is an institutional writer and as such is a source of law in Scots law. Anyone fishing for salmon without permission of the owner of the tenement (ie: the salmon fishing right) commits a criminal offence under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003.Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, section 6.
Right to shellfishing (mussels and oysters) Historically, this right had been considered part of the regalia majora, and therefore could be exercised by the general public fishing in the territorial sea of Scotland. However, following Parker v Lord Advocate, A.C. 364, (1904) 6 F. (H.L.) 37, (1904) 12 S.L.T. 33 it has been established that the right of mussel gathering and right of oyster gathering are a separate legal tenement and are the property of the Crown if not expressly granted to the owner of the mussel-bed land. The Crown's right to take mussels and right to take oysters is of continued relevance due to the commercial success of Scottish seafood.In 2017, Fish and seafood accounted for the majority of food exports in Scotland and were worth approximately £944 million, up 23% from the previous year and 16% of total food and drink exports. The Crown, or a subsequent owner, can transfer these rights to the owner of the mussel-bed or another individual through a disposition. There are two alternatives to this option to obtain the right: (1) Obtaining the right of ownership of the tenement (shellfishing rights) through prescriptive possession. The rationale for this tenement belonging to the Crown as regalia minora, and not held for the general public under the rights of regalia majora, appears to be due to the risks incumbent with overfishing the sea-bed.Stair Memorial Encyclopaedia, Vol 18, Property, Ch 5, The Separate Tenements, para 333.
Right of port The Crown has the right to operate ports and ferry services as separate tenements of the land, and this right continues to be held by the Crown except where the tenement has been granted to the owners of the land.Stair Memorial Encyclopaedia, Vol 18, Ch. 6, Water, The Separate Tenements, para 334. Modern ports and harbours are now largely covered by private legislation and the Harbours, Docks and Piers Clauses Act 1847 (c 27).For full authoritative discussion and current legislation concerning harbours, see Stair Memorial Encyclopaedia, Vol 11. However the underlying authority for (i.e.: the deeds of) ownership for historic ports may still be in a separate legal tenement so the right of port is of continued relevance. In a piece of land subject to a separate tenement of port, no individual is permitted to use the foreshore without paying the relevant harbour fees.Edinburgh Magistrates v Scot (1836) 14 S 922. Where no historic grant of port from the Crown exists, there is nothing to preclude the Owner of the land adjacent to the water operating and charging for port facilities (except where the land concerned is the foreshore as this is subject to public rights of access under the regalia majora). In practice however, aspects of maritime law regulating ports will also be required to be complied with where an individual establishes a port. However, both the separate legal tenements of the right to port and right to ferry can be acquired by an individual either by express grant from the owner of the tenement, whether the Crown or the owner of the land, or by positive prescription.
Right of ferry The Crown has the right to operate ports and ferry services, and this right continues to be held by the Crown except where the tenement has been granted to owners of the land. The Crown's right to ferry was often granted to royal burghs, as the Crown did not have the capacity to provide these services.Stair Memorial Encyclopaedia, Vol 11, para 1301. An example of a Crown ferry can be seen at the River Forth, where Queen Margaret established a ferry service between North & South Queensferry. While the Crown right of ferry still exists, bridges have often been constructed to replace traditional Crown ferry services, as was the case with the North & South Queensferry ferry after the opening of the Forth Road Bridge in 1964. The Scottish Government owned company Caledonian MacBrayne now operates the majority of ferry routes in Scotland.For a critical analysis of the Scottish ferry system, see R. Pedersen, Who Pays the Ferryman? The Great Scottish Ferries Swindle (Edinburgh, 2013). In cases of land subject to a separate tenement of ferry, no individual may carry passengers as a ferry other than the Owner, their family, guests of the Owner and employees of the Owner.London Midland and Scottish Rly Co v M'Donald 1924 SC 835, 1924 SLT 630. Where no historic grant of port or ferry from the Crown exists, there is nothing to preclude the Owner of the land adjacent to the water operating and charging for port or ferry facilities (except where the land concerned is the foreshore as this is subject to public rights of access under the regalia majora). In practice however, aspects of maritime law regulating ferries and other water-based public transport will also be required to be complied with where an individual establishes a ferry service. However, both the separate legal tenements of the right to port and right to ferry can be acquired by an individual either by express grant from the owner of the tenement, whether the Crown or the owner of the land, or by prescriptive possession.Stair Memorial Encyclopaedia, Vol 18, Property, Ch 6, Water, The Separate Tenements, para 334.
Right to mine gold and silver Under the Royal Mines Act 1424, the oldest Act still in force in Scots law, the Crown reserves all rights to mine gold or silver under the inter regalia minora. Where the owner of the land does not also expressly own the tenement of mining rights, the Crown alone has the right to mine silver or gold. The owner of the land has a statutory right to obtain a grant of ownership from the Crown of the mining tenement, provided the owner pays to the Crown the value of 1/10th of all metal mined under the Mines and Metals Act 1592.Steven, A. and Gretton, G. (2017) Property, Trusts and Succession. Page 227.
Right to hold fairs and markets A landowner in Scotland is not entitled to hold fairs or markets without an express grant of that right from the Crown.Stair Memorial Encyclopaedia, Vol 18, Ch 5, para 210. This right is of little relevance in modern times, with fairs and markets largely being regulated in the first instance by local government statute but its status as a right of the Crown under the regalia minora and as a separate tenement continues to be valid law.Central Motors (St Andrews) Ltd v St Andrews Magistrates 1961 SLT 290.
Petroleum and natural gas Under the Petroleum Act 1998, and previously the Petroleum (Production) Act 1934,Section 1. all crude oil and natural gas found in Scotland belongs to the Crown unless the right to the fuels in the strata had been expressly granted to the owner of the land.Petroleum Act 1998 Section 2.
Right to ownerless property While not classed as capable of creating a separate legal tenement, it is recognised that the Crown has two rights to ownerless property in Scots law falling under the regalia minora. As part of the regalia minora,Lord Hunter, Lord Advocate v. University of Aberdeen, p. 542, citing , vol. 1, ch. 16, pp. 40 and 45; , vol. 2, ch. 3, p. 60, and vol. 3, ch. 3, p. 27; Bankton, An Institute of the Laws of Scotland in Civil Rights, vol. 1, ch. 3, p. 16; and Bell, Principles of the Law of Scotland, s. 1293. it may alienate these rights so that another individual can take ownership., col. 1010. These are:
Bona vacantia Under Scots law, ownerless property is classed as bona vacantia (lit: vacant goods), and falls into the ownership of the Crown.For an accessible discussion of bona vacantia and ultimus haeres in Scots law, see G L Gretton and A J M Steven, Property, Trusts and Succession 3rd ed. (London, 2017) ( "Gretton & Steven") at 3. Other jurisdictions employ similar concepts of ownerless property, see bona vacantia. This is because the Scots law adoption of the principle that quod nullius est fit domini regis ("that which belongs to nobody becomes our lord the king's [or queen's]").Lord Patrick in Lord Advocate v. University of Aberdeen 1963 S.C. 533 at p. 554, Inner House, Court of Session, citing Sands v. Bell & Balfour (22 May 1810), F.C.; Lord Hunter in Lord Advocate v. University of Aberdeen, p. 549, Outer House, Court of Session, citing an earlier edition of , s. 1291(3).
All property (both moveable or heritable) is liable to become bona vacantia, as the Scottish Law Commission note:"‘As a result of the discarding of litter, every day Her Majesty becomes the owner of countless items such as cigarette ends, crisp packets and chewing gum.’"Scottish Law Commission, Report on Prescription and Title to Moveable Property (SLC Report No 228, 2012) para 5.2. Available: https://www.scotlawcom.gov.uk/publications/reports/ Moveable property is said to be abandoned after the expiration of the right of ownership by negative prescription. Heritable property cannot be abandoned.Scottish Environment Protection Agency v Joint Administrators of the Scottish Coal Company CSIH 108.