Scottish Court of Session Decisions

This was a note of suspension and interdict by Lord Blantyre, proprietor of the lands of Erskine and others, on the banks of the Clyde, and the Master of Blantyre, as heir-of-entail next entitled to succeed, against the Clyde Navigation Trustees incorporated by “The Clyde Navigation Consolidation Act 1858.” The object of it was to prevent the respondents “from entering upon, taking, occupying, using, or removing, or otherwise interfering with any part of the soil” within certain areas forming the shore and bank of the river Clyde between high water-mark and low water-mark ex adverso of the complainers' estate of Erskine. The complainers, inter alia, averred that under the Act 3 and 4 Vict. cap. 118, which dealt with the Clyde navigation, the Clyde Trustees’ powers of compulsory purchase expired in eight years after the date of its passing, so far as regarded the lands in which the area in question was included. Further, the complainers' right of property in that ground was established in an action of declarator raised in the Court of Session on 11th December 1875. The Lord Ordinary (Curriehill's) interlocutor in that case was affirmed by the First Division on 19th December 1877, ante vol. xv. p. 382, and by the House of Lords on appeal on 19th June 1879, ante, vol. xvi. p. 661. The decree bore that the complainers “are proprietors of the foreshores of the river Clyde ex adverso of said lands, but subject always to any rights of navigation or other rights which the public may have over the same, and subject also to any rights conferred upon the Trustees of the Clyde Navigation by their Acts of Parliament.” The complainers now averred that notwithstanding that decree, and the expiry of the respondents' powers to take lands under the Act, the respondents had recently illegally and without authority entered upon and begun to remove by dredging and selling or carrying out to sea a portion of the ground in question without their consent.

The Clyde Trustees answered, inter alia, that by section 76 of the Clyde Navigation Consolidation Act 1858 the undertaking of the Trustees was defined as consisting, inter alia, of “deepening, straightening, enlarging, widening, or confining, dredging, scouring, improving, and cleansing the river and harbour until a depth of at least 17 feet at neap tides has been attained in every part thereof; the altering, directing, or making the channel of the river through any land, soil, or ground, part of the present or former course or bed of the river,” &c. By sec. 84 of that Act it was further provided that “it shall be lawful for the trustees to deepen the said river by dredging the bed or channel thereof … . to the extent authorised by the recited Acts and by this Act,” viz., to the depth of 17 feet at neap tides. The respondents admitted that they did not take under their compulsory powers of purchase the ground in question, but they stated that they were not bound to do so. They had, since 1840, and down to the present time, been in the habit of carrying on dredging operations upon the area in question; their right to do so was now for the first time questioned. The operations now complained of consisted of widening the deepened channel ex adverso of the complainers' lands of Erskine. “The site of these operations is in the estuary of the Clyde, and the portion of the solum which is to be removed for the purpose of widening the channel is far below high water-mark. Before the earlier operations of the respondents were commenced, the whole of that space was permanently under water, and the effect of these operations has been to confine the deep channel within its present limits.” They further denied that they required the consent of the complainers to carry on these dredging operations, or that the statutory limit of eight years applied to their operations on the area in question. The respondents referred to an action of declarator raised against them by Lord Blantyre in 1864, which, as regarded some of its conclusions, was still in dependence, and to a suspension and interdict raised by his Lordship against them in 1866— 5 Macph. 508, and 9 Macph. (H. of L.) 6.

The complainers pleaded—“(1) The ground in question being the property of the complainers, and the Clyde Trustees having no right to take or acquire the same, or to dredge thereupon, without the complainers' consent, the complainers are entitled to interdict as craved. (2) The operations complained of being illegal, unwarrantable, and unauthorised, the complainers are entitled to have the interdict made perpetual.”

The respondents pleaded, inter alia—“(3) The complainers' rights to the foreshore in question are subject to the rights of navigation and other rights which the public have over the same, and to the rights conferred on the respondents by their statutes, and also to the rights created by the royal charters granted to the magistrates of Glasgow. (4) The respondents are entitled at common law, and separatim, under the foresaid statutes and royal charters, to widen and deepen the channel of the river by dredging the area of foreshore marked 131 to the depth of 17 feet. (5) The respondents' statutory powers (now expired) of taking and acquiring land compulsorily,

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had and have no application to the dredging operations carried on by them on the said area or foreshore. (6) The respondents are not bound to obtain the complainers' consent to the said dredging operations, nor to pay compensation in respect thereof.”

On 25th July 1879 the Lord Ordinary on the Bills ( Curriehill,) granted interim interdict, which was continued on 30th December following; and on 21st January 1880 Lord Young (Ordinary) repelled the reasons of suspension, dismissed the suspension and interdict, and recalled the interdict formerly granted. His Lordship delivered the following opinion:—

“I understand this case, and I see no reason for delaying to give judgment in it. The river Clyde at the place in question is undoubtedly an estuary,—that is to say, the tide ebbs and flows there, so as to give a foreshore upon either side,—ground which is covered at high-water and dry at low-water. The limits of the channel of the river, within which the powers of the trustees extend, are specified by Act of Parliament, and are considerably—on the south side at least—within high water-mark, consisting therefore entirely of the channel of the river, where the ground is always covered with water, and a proportion of the shore on the south end, but not the whole of it. Within that channel the trustees are empowered and required, according to the funds at their disposal, to keep the channel dredged so as to render it available for the purpose of navigation. It is their duty to do so to the extent of their means; and of course the power is expressly given to them to discharge that duty. Of the foreshore,—which comprehends a portion of the channel not always covered with water, or sufficiently covered with water to be available for sailing over it, but sometimes so covered,—of that foreshore there can be no question that Lord Blantyre is the proprietor. That has been determined in his favour by a judgment of the House of Lords; but by that judgment his property is declared to be subject to any rights of navigation or other rights which the public may have over the same; and subject also to any rights conferred upon the trustees of the Clyde Navigation by their Acts of Parliament. Now, the public certainly have the right to make all reasonable use of it for the purpose of navigation, and the Clyde Trustees have the powers by their statutes, as I have stated, and a corresponding duty, to dredge and deepen it so as to make it more available for that public purpose. They are engaged in doing so now, and their operations to that end are the operations which Lord Blantyre seeks by the present proceedings to put a stop to. I am of opinion that these operations are within their powers and according to their duty, and that no reason for this Court interfering to stop them is presented on this record.

“If any damage is by these operations done to Lord Blantyre as a riparian proprietor, his claim for damages accordingly, or compensation for the injury he thereby sustains, is in no way prejudiced by the judgment which I have pronounced. I do not inquire — certainly I have not determined — whether these operations, which I do decide to be within the powers and duty of the trustees, are productive of any damage to him. If they are not, of course he has no claim; if they are, his claims are not prejudiced by anything which I now do; but I do determine that for the purpose of performing that duty which is within their power—of deepening the channel of the river within the limits to which I have referred, and therefore including a portion of the foreshore now in question which is within these limits—the trustees are not required to take land so as to make themselves proprietors of it under the Act of 1840. Upon these grounds—certainly without any prejudice to Lord Blantyre's claim to compensation if he has already or shall hereafter suffer any damage—I refuse the present suspension and dismiss it, recalling the interim interdict already granted, and of course with expenses to the respondents.”

The complainers reclaimed.