Scottish Court of Session Decisions

174 CASES DECIDED IN THE [fourth series.

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

2d Division.

Ld. Kyllachy.

The Lord Advocate, Pursuer (Respondent).-Lord-Adv. Pearson-

H. Johnston-Dickson.

The Trustees of the Clyde Navigation, Defenders (Reclaimers).-

D.-F. Balfour-Asher-Ure.

Crown-Property-Trust for public-Sea below low-water mark-Sea water intra fauces terrœ-Three mile limit-Territorial waters.-

The Crown has a right in the water and the solum of sea lochs intra fauces terrœ below low-water mark such as will entitle it to prevent any person from using them for purposes other than the recognised public uses, and that without any allegation of injury, actual or prospective, to these public uses.

The rule applied to prevent the Clyde Navigation Trustees from depositing dredgings from the Clyde in Loch Long.

Opinions that the right of the Crown to the solum of sea lochs intra fauces terræ is a proprietary right, and not a mere trust for public uses.

Opinions (per Lord Young and Lord Kyllachy) that the Crown has also a proprietary right in the solum of the sea from low-water mark as far as the three mile limit, upon the open coast.

The Trustees of the Clyde Navigation, in pursuance of their statu-tory duties and powers, were in use to dredge large quantities of material from the bed of the Clyde to make and maintain the navigable channel of that river. The material so dredged consisted of earth, gravel, stones, mud, and sewage. For some years this was deposited on the banks of the river near where it was taken out, but for convenience and economy's sake, the dredgings having come to amount to several hundred thousand tons per annum, the trustees fell upon the plan of carrying the dredgings to Loch Long, a sea loch running twenty-four miles up from the Firth of Clyde, and nowhere more than two miles broad, and depositing them at a place where the water was about thirty-five fathoms deep.

This had gone on for many years, when in 1891, the Lord-Advocate, for the Crown, raised an action against the trustees for declarator " that the defenders are not entitled to deposit or place earth, gravel, stones, mud, soil, or other material, dug, cut, dredged, or otherwise removed from the banks or bed of the River Clyde, as defined by the said Clyde Navigation Consolidation Act, 1858, in any part of the narrow seas of our kingdom of Scotland, and in particular in Loch Long, being part thereof, and extending from Arrochar on the north to a straight line drawn from Strone Point, in the county of Argyll, on the west, to Baron's Point, in the county of Dumbarton, on the east." A conclusion for interdict, to correspond with this declarator, followed.

In his condescendence the Lord Advocate merely set out the constitution of the Clyde Trust, and the fact that they were disposing of their dredgings as stated. He averred as to his own title,-

" The narrow seas of that part of Her Majesty's dominions known as the kingdom of Scotland, and the solum or bed thereof below low-water mark, belong to Her Majesty jure coronæ, subject to the public rights of navigation and fishing. The salt water loch or arm of the Firth of Clyde known as Loch Long is part of the said narrow seas." He made no averment of damage or nuisance of any kind.

He pleaded;-(1) The narrow seas surrounding the kingdom of Scotland, and the bed and solum thereof, belonging to and being vested in the Crown, subject to the public rights of navigation and fishing, and Loch Long as defined in the summons being part of said narrow seas, the pursuer is entitled to decree as concluded for. (2) The defenders having no right, either by statute or at common law, to deposit their dredgings in the narrow seas, and particularly in Loch Long, or on the bed or solum

vol. xix.] COURT OF SESSION, &c. 175

No. 39.

Nov. 25, 1891.

Lord Advo-cate v. Clyde Navigation Trustees.

thereof, their doing so without permission is illegal, and the pursuer is entitled to interdict as concluded for.

The defenders did not deny the facts alleged against them. They stated, however, that investigations had been made by the Admiralty and by skilled persons on behalf of the Government to ascertain what effect the defenders' operations had had upon the soundings of the loch or the purity of its waters, and that the result had been to shew that the soundings were unaltered and the purity of the water unaffected. They averred as matter of fact that the dredgings never reached the bottom. They further averred that the action was not taken in vindication of any public interest, and was inimical to the important public interests committed to the defenders; that the Crown were not really acting in the public interest, but to further the private interests of persons living on Loch Long, who had guaranteed the expenses of the Crown in this action.

The Crown admitted that there was no obstruction to navigation, and admitted further the alleged guarantee.

The defenders pleaded;-(1) No title to sue. (4) In respect that the defenders' operations do not in any way interfere with the rights of the Crown, the defenders are entitled to absolvitor.

The Lord Ordinary (Kyllachy), on 13th June 1891, pronounced this interlocutor:-" Finds and declares that the defenders are not entitled to deposit or place earth, gravel, stones, mud, soil, or other material dug, cut, dredged, or otherwise removed from the banks or bed of the Elver Clyde, as defined by the Clyde Navigation Consolidation Act, 1858, in Loch Long, being part of the narrow seas of the kingdom of Scotland, extending from Arrochar in the north to a straight line drawn from Strone Point, in the county of Argyll, in the west, to Baron's Point, in the county of Dumbarton, on the east, and decerns: Reserves meantime the question of interdict, and continues the cause," &c.*

* " Opinion.- . . . The action takes the form of a declarator and interdict at the instance of the Lord Advocate as representing the department, and the decree asked extends not merely to Loch Long but generally to what are termed ' the narrow seas of the kingdom of Scotland.' There is not, however, any allegation of any deposit elsewhere than in Loch Long; and I am not prepared, and indeed have not been asked, to pronounce a judgment applicable to other places. If I were, I should require some further definition of the expression 'the narrow seas.' It is an expression which, in the literature of this subject, is used in different senses. It is sometimes used to denote the sea within cannon-shot of the shore, together with the estuaries, bays, &c, within the fauces terræ-The Queen v. Keyn, L. R., 2 Exch. Div. 109-110, 119-174, et passim. But it is also used in another and wider sense, viz., as comprising the whole seas and channels around Great Britain, and between Great Britain and other countries on the continent of Europe.

" I propose therefore to deal only with the case actually before me, viz., the alleged invasion by the defenders of the Crown's alleged proprietary rights in the land-locked loch, creek, or bay known as Loch Long. Upon that question I have come to the conclusion-and I am bound to say, without difficulty-that the Crown is entitled to my judgment.

" It is quite true, as the defenders have anxiously urged, that the action is rested entirely upon the proprietary right of the Crown, or, if the expression is preferred, of the State. There is no averment of injury, actual or anticipated, either to fishing or navigation, nor is there any averment of nuisance or of injury to the foreshore. Whatever may be the fact as to those matters, and whatever may be the motives of the Crown in asserting its alleged rights, the action is based on trespass, and on trespass alone.

" On the other hand, however, it has to be noted that the defenders rest ex-

176 CASES DECIDED IN THE [fourth series.

No. 39.

Nov, 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

The defenders reclaimed, and argued;-The Crown's right must be put as high as a proprietary right, for there was no averment of any interfer-

clusively on the alleged absence of any title on the part of the Crown to interfere with their operations. They do not assert that they themselves have under their statutes or by municipal law any title to turn this inland loch into what is known in Scotland as a ' free toom.' Their statutory powers do not extend below Port-Glasgow, nor does our municipal law recognise the right to deposit rubbish as among the rights which the Queen's subjects possess in the seas and navigable rivers within the realm. The only such public rights known to the law are navigation and fishing. The defenders' case therefore is and must be this-not that they are exercising any right which is a burden on the Crown's right, and which the Crown, as trustees for its subjects, is bound to recognise, but that the Crown's right, not only in the seas around the coast, but also in the estuaries, bays, and sea lochs within the territory, is confined to a mere protectorate for the purposes of fishing and navigation, so that, except where the interest of fishing and navigation are concerned the Crown has no higher or better title to the water and bed of this inland loch than the defenders themselves. In short, the defenders' case is that-apart from fishing and navigation -Loch Long is just as free as the centre of the Atlantic, and that therefore not only all British subjects, but also all foreigners, may make such use as they please of its water and of its solum, provided only they do no injury, or no injury which can be proved, to the interests of fishing and navigation.

" I am bound to say that, so far as I can discover, this proposition is entirely novel, and is altogether opposed to every authority on the subject. It is true that there has been some controversy-turning, however, largely upon words- as to the exact nature of the Crown's right in what I may call the external sea, and particularly that portion of it which international law recognises as territorial and within the realm. But there has never, so far as I know, been any suggestion by any writer or by any Judge that inland lochs, bays, or estuaries within the fauces terrœ, are in any different position from navigable rivers. Nor has it ever, so far as I know, been doubted that, subject to such rights of navigation and fishing as the municipal law recognises, the solum of such lochs, bays, and estuaries belongs to the Crown. There may have been questions as to the Crown's right to exclude foreigners from the external sea ¦within three miles of the shore, as to the jurisdiction of the Queen's Courts over foreigners within the three mile limit, and generally as to the nature of the Crown's right to the sea and the bed of the sea within that limit. But the most extreme advocates of public or rather international rights have always, I think, distinguished between the external sea and land-locked waters within the fauces terrœ. In the latter it has, so far as I know, been always recognised that the Crown has not merely a territorial but a proprietary right,-a right differing from the Crown's right to the land of the kingdom only in this, that being burdened with certain public uses, viz., navigation and fishing, the right of property is to a large extent extra commercium, or, in other words, within the regalia majora-Kent's Com. i. pp. 27-30 (edition of 1884); Wheaton's International Law, c. 4, sec. 10, pp. 188-190 ; Hale, De Jure Marts (as reprinted in Moore on the ' Sea and Seashore'), pp. 353, 377, 381, 384, 399, 401.

" I do not think that all this could he better illustrated than by a perusal of the judgments of the English Judges in the recent case of the ' Franconia.'-The Queen v. Keyn, supra. The question there was as to the criminal jurisdiction of the English Courts over foreigners sailing in foreign ships within three miles of the English coast; and although the decision went ultimately upon a special ground, the question was largely canvassed whether, within the three mile limit the right of the Crown was proprietary, or was a mere protectorate for the purposes of fishing and navigation. I shall have to refer presently to some of the opinions which were there expressed, hut in the meantime the important fact is that even those Judges who held views opposed to the Crown's claim, drew a careful distinction between the external sea to which the question applied, and estuaries, bays, and inland waters, as to which it was common ground that they

vol. xix.] COURT OF SESSION, &c. 177

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

ence with navigation, fishing, or any other public use, nor was it said that the defenders were creating a nuisance. Now, the Crown had no proprie-

formed part of the counties into which they ran, and were within the jurisdic-tion of the Courts of common law. I may refer on this subject specially to the judgments of Sir Robert Phillimore and Chief-Justice Cockburn-The Queen v. Keyn, L. R. Exch. Div. ii., pp. 71 and 162.

" I confess, therefore, that it seems to me that the particular case with which I have to deal is entirely outside the sphere of the controversy to which the defenders appeal. In other words, I can find no authority for the defenders' argument; and, apart from authority, I should think it tolerably clear, in point of principle, that a sea loch, or land-locked bay, running up from the Firth of Clyde into the centre of Argyllshire was, for all practical purposes, part of that county, subject to the jurisdiction of its Sheriff, and differing from the freshwater lochs within it only as being navigable, and so subject to the public uses of navigation and fishing.

" It follows that the Crown are entitled to my judgment on the only question which is properly before me ; but as the larger question, that, viz., as to the nature of the Crown's right within what has been called the ' narrow seas,' has been made the subject of argument, it may perhaps be right that I should indicate the opinion which I have formed on that subject.

" (1) I hold it to be now acknowledged as matter of international law that the territory of Great Britain does not extend to the narrow seas surrounding the kingdom in the older and wider sense of that expression. That is to say, the ancient claims of the kings of England to the whole seas and channels between England and other countries on the Continent cannot now be maintained. This I do not understand to be in controversy.

" (2) I hold it to be still an open question whether the territory of the kingdom extends, e.g., to those seas and channels along the coast which are outside the fauces terrœ, and more than three miles from the shore, but which are situated between the mainland and islands forming part of the kingdom, such as e.g. the island of Arran and the Hebrides. This question may possibly come to be material between the present parties in the event of the defenders seeking another place of deposit; but in the meantime it is hardly a question of practical interest.

" (3) The more practical question, and that on which alone I heard argument, was with respect to the nature of the Crown's right in what is now acknowledged to be part of the territory of the kingdom, viz., the strip or area of sea within cannon shot, or three miles of the shore. Is the Crown's right in that strip of sea proprietary, like the Crown's right in the foreshore and in the land 1 or is it only a protectorate for certain purposes, and particularly navigation and fishing?

" I am of opinion that the former is the correct view, and that there is no distinction in legal character between the Crown's right in the foreshore, in tidal and navigable rivers, and in the bed of the sea within three miles of the shore. In each case it is of course a right largely qualified by public uses. In each case it is therefore to a large extent extra commercium; but none the less is it, in my opinion, a proprietary right-a right which may be the subject of trespass, and which may be vindicated like other rights of property.

" Such I consider is the result of all the best authorities-Scotch, English, and foreign.

"It is the doctrine of Craig, Stair, Erskine, and Bell-(Craig, i. 13, p. 140; Stair, ii. 1, 2,; ii. 1, 5; Ersk. ii. 1, 6; ii. 6, 13; Bell, 639). It is the 7doctrine of Seldon and Hale, of Grotius and Vattel-(Grotius, ii. 2, 13; Vattel, i. 23, Puffen-dorf,iv. 2, 6; see also authorities cited by Lindley, J., L. R. 2 Exch. Div. p. 90-91; Hale, De Jure Maris, 358, 367 (Moore); Hall's Essay, 667, 671 (Moore);-and it has been affirmed on many occasions by high judicial authorities both in Scotland and England. It has also received practical effect in various judgments with respect, inter alia, to minerals under the sea, mussel-beds and oyster-beds, maritima incrementa, and flotsam and jetsam-(Smith v. Officers of State, 8 D.

M

178 CASES DECIDED IN THE [fourth series.

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

tary right. [Lord Rutherfurd Clakk.-Is the solum of Loch Long part of the United Kingdom?]-It was. [Lord Rutherfurd Clark.-Then, according to your argument, there is a part of the United Kingdom not given out to anyone which does not belong to the Crown ?]-Yes, the reason being that its physical conditions did not allow a right of property to exist. There was no such distinction as the Lord Ordinary thought there was between sea-water intra fauces terrœ, and on the open sea-coast. Nor could there be, for there was in both cases alike an impossibility of continuous dominium or possession. Eights of jurisdiction might be much larger on land-locked seas than on the open coast, but that again was based on fact. You could shut up an intruder in such a loch, or you could prevent him entering. The narrow seas were as

722; Gammed v. Lord Advocate, 3 Macq, 419 ; Duchess of Sutherland v. Watson, 6 Macph. 199; Gann v. Whitdable Fishers, 11 C. B., N. S., 337, 13 C. B., N. S., 353, 11 H. L. 192; The Queen v. Duke of Cornwall, see L. R., 2 Exch. Div. 156; 21 and 22 Vict. c. 109).

" Altogether, it is, I think, too late now to dispute a proposition so long recognised and so well established, and in saying so I hope I am not treating with disrespect certain dicta of eminent Judges to which the defenders referred. For I think it will be found that, for the purposes of the present question, the distinctions which these dicta involve are hardly material. It may be, for example, that the Crown's right in the sea within the three mile limit is not merely burdened with certain public uses, but that altogether it is a right which is properly described as a trust for the British public. It may therefore be not merely to certain effects, but altogether, extra commercium, and so not properly to be described as ' patrimonial.' But whether held in trust or not, it is none the less, so far as I can see, a proprietary right-that is to say, it is a right of property, and not a mere protectorate for the limited purpose of fishing and navigation. And if the right is a right of property either in the Crown or in the State, of which the Crown is the Executive, I do not think that any of the learned Judges referred to will be found to dispute that it includes a right to prevent acts of trespass like those of the defenders-acts which, as I have said, are not in pursuance of any private or public right, and of which the only justification alleged is that the Crown is not prepared to take the burden of proving that they are injurious.

"I do not think it necessary to do more than notice the defenders' averment, introduced by way of amendment at the close of the discussion, to the effect that ' the defenders have not deposited any material on the solum of Loch Long. The dredgings which are discharged from their barges do not, in fact, reach the bottom of the loch.' I am, I suppose, bound to assume that this statement is made seriously, and that the defenders are serious in their demand to be allowed a proof of it. If, therefore, I thought it relevant I should have felt bound to have allowed such proof; but I do not think it relevant. For, assuming that in some unexplained manner the law of gravitation is suspended or counteracted in this part of the Firth of Clyde, I do not for my part see that it makes any difference whether the defenders' deposits reach the bottom of Loch Long or are carried out to the Firth of Clyde, or are carried out to sea. The Crown, if proprietor of the solum, must also in my opinion be proprietor of the water above it; and, at all events, must have a sufficient proprietary interest in the water to have a good title to prevent acts of trespass like those in question. It certainly does not appear to me that the Crown is bound, in a question with persons who have no title of any kind, to enter into a proof as to whether the unauthorised deposits in question appreciably or injuriously affect the solum. It must be assumed that the Crown advisers have good reasons for their interference; and they are not, in my opinion, bound to discuss those reasons in a Court of law.

" I shall therefore grant the declarator concluded for, except with respect to the narrow seas, but I shall reserve in the meantime the question of interdict."

vol. xix.] COURT OF SESSION, &c. 179

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

common as the high seas as regards their uses, for the one was as inexhaustible as the other. In truth, no distinction could be taken between the open coast and such a loch as regarded property. Property in the solum was not in the least necessary for the full enjoyment of the rights for which Government were, by tacit international agreement, allowed to exercise their protectorate.1 Look at the measure of the right as regarded extent. It was measured by a cannon shot, an excellent way of measuring jurisdiction, but not appropriate to property. Again, unless the line beyond which there was no property were fixed at low-water mark, where was it to be drawn ? Whyat three miles ? But unless some natural limit was taken, and good sense could recognise none but the shore, very awkward international complications would certainly arise. Now, as regarded authority, the " Franconia " case decided nothing as to property, for the point there was jurisdiction, and there were dicta on both sides. Stair2 did, no doubt, say that the ocean in the narrow seas " may become proper," but that was on the view that it might be appropriated by " bounds and meaths," which, it was submitted, was impossible. The passages quoted by the Lord Ordinary from Erskine and Bell did not affirm property, but only a trust for certain public uses, a trust which the Crown did not say was infringed by the defenders. So, too, the cases cited by the Lord Ordinary did not affirm anything more than rights of fishing 3 and free navigation.4 Any further doctrine was obiter merely. The doctrine of the Crown's right being a mere trust was supported by obiter dicta quite as weighty.5 The point was not decided in Officers of State v. Smith.6

Argued for the pursuer;-The Lord Ordinary's judgment was sound, and was borne out by the cases to which he had referred. The same controversy between a protectorate on the one hand and property on the other had been raised as to the foreshore, but it had been shewn there,- and the same reasoning would apply here,-that it was fallacious to attempt to separate a trust right entirely from a right of property. The right in the one case as in the other was a right of property extra com-mercium to a certain extent, i.e., although it might be alienated, the trust for the public would still be imposed on it.7 The "Franconia " case was no doubt a case of jurisdiction, but the opinion of Cockburn, C. J., pointed out very clearly the distinction between the high seas and estuaries or lochs, a distinction which was all important here. To the other authorities there fell to be added the weight of Lord Stowell's opinion in the ease of the Twee Gebroeders,8 s in which his Lordship held that portions of the sea might be prescribed for.

At advising,-

Lord Justice-Clerk .-The pursuer in this case is the Sovereign acting

1 Bell's Prins., sec. 640.

2 Stair, ii. 1, 2 ; ii. 1, 5.

3 Commissioners of Woods and Forests v. Gammell, March 28, 1859, 21 D. 4, 31 Scot. Jur, 431, 3 Macq. 419; Duchess of Sutherland v. Watson, Jan. 10, 1868, 6 Macph. 199, 40 Scot. Jur. 119.

4 Agnew v. Lord Advocate, 11 Macph. 309, 45 Scot. Jur. 214; Gann v. Whit-stable Fishers, as cited by Lord Ordinary.

5 E.g., per Lord Fullerton in Lord Advocate v. Clyde Trustees, Jan, 23, 1849, 11 D. 391, 21 Scot. Jur. 110, in H. L., March 12, 1852, 1 Macq. 46, 24 Scot. Jur. 379, Paters. Ap. 6.

6 Officers of State v. Smith, March 11, 1846, 8 D. 711, 18 Scot. Jur. 364, in H. L. July 13, 1849, 6 Bell, 487, 21 Scot. Jur. 534.

7 Agnew, as cited; Smith's case, per Lord Wensleydale in the House of Lords; Duchess of Sutherland, ut cit.-see Lord Neaves, 6 Macph. 213.

8 1801, 3 Rob.'s Adm. Reps., p. 336.

180 CASES DECIDED IN THE [fourth series.

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

through the properly appointed Department, and the purpose of the action is to interdict the defenders, who are the statutory commissioners in charge of the Clyde Navigation, from throwing large quantities of solid matter into the waters of Loch Long. The basis of the case for the Crown is that the place at which it is alleged that these masses of matter are thrown into the sea forms part of the realm, and that the Department, which is authorised to act for the Crown in matters relating to such part of the realm, is entitled to prevent any person, who has not received lawful authority to do so, from depositing anything upon the solum. The contention of the Crown is that it is not necessary to aver that any damage is being done by the acts of the defenders, but that the Crown, holding Loch Long as part of the realm, has a title to prevent any interference with it, if no legal right can be shewn to justify such interference and to exclude the original right in the Crown to the loch.

The defenders, on the other hand, state no defence in the nature of a claim of right to do what they are doing, based upon any grant, express or implied, in their favour obtained from the Crown, or conferred by parliamentary authority, such as will supply them with an answer, as on the ground of right conferred, to the contention of the Crown. Their only plea upon the merits of the case is that, as their operations do not in any way interfere with the rights of the Crown, they are entitled to absolvitor. Claiming no special right in themselves, their defence is that the Crown has no right which they are infringing.

It would appear from the Lord Ordinary's opinion that there was an elaborate discussion before him upon the rights of the realm to the solum of the sea below low-water mark upon the open sea-coast, and there was a considerable amount of argument and a citation of numerous authorities upon the same subject in the debate before us.

In the view I take of this case, it is quite unnecessary for us to consider any such matter as the Crown's right to the solum of the sea within the three mile limit from the coast, where that coast faces the open sea. The considerations . of law applicable to the three mile limit could only be of consequence in this case if the solum of Loch Long could be held to be in the same position as the solum of the sea below low-water mark. I understand that the defenders maintain that there is no difference. Their argument is that, as the sea comes up Loch Long, the solum of the loch is in exactly the same position as regards the rights of the Sovereign to the property as the solum below the sea on the coast within the three mile limit. They maintain that, if they can shew that the realm has no right of property within that three mile limit, then it can have no right of property in the solum of Loch Long.

Whether the Crown has or has not a right of property ex adverse of the coast does not, in my opinion, affect the question which is before us. It is, of course, clear that, if the solum on the coast is the property of the Crown, a fortiori the solum of a narrow land-locked arm of the sea, not two miles broad at any point, must be in the Crown also. But the converse would by no means necessarily hold, that, if the solum on the coast is not in the Crown, then the solum of a narrow estuary is not part of the realm, but is a " no-man's land," like the bed of the Atlantic Ocean. On the contrary, it appears to me that the considerations which might apply to the solum opposite to the sea-coast would not apply to the other at all. Let it be assumed to be settled law that there is no right of property below low-water mark on the sea-coast-an assumption

vol. xix.] COURT OF SESSION, &c. 181

No. 39.

Nov. 25, 1891.

Lord Advo-cate v. Clyde Navigation Trustees.

which, in my opinion, is not sound-the question whether the solum of a strip of land-locked water such as Loch Long belonged to the realm would by no means be closed by such settlement of the law in relation to the solum on the sea-coast. I therefore prefer to consider the case quite apart from questions regarding the solum within the three mile limit. If it be plain that Loch Long is part of the realm, without its being necessary to rely upon any law relating to the three mile limit, then all considerations in regard to the three mile limit are unnecessary to the case.

The first question is this-is Loch Long part of the realm? This is a question the answer to which can be given without any proof. There is no more need for proof on that question than there would be in a case relating to the City of Edinburgh to establish that that city is part of the British realm. The geographical position is known. It is a narrow estuary running inland from the Firth of Clyde, enclosed by Scottish land except at its narrow outlet to the Firth of Clyde.

That such a place should not belong to the country which practically encloses it and shuts it off from the ocean except at its outlet, but should be as free to all the world to do anything with it as a part of the open sea, is, in my opinion, not only not in accordance with law, but contrary to all accepted ideas as to the occupation and ownership of a country by the chief power of the nation which actually possesses it. I hold it to be quite settled law that such an estuary as Loch Long is as much a part of the property of the realm as the counties within the embrace of which it may lie, that the chief Courts of the country have the same jurisdiction over it as they have over the immediately neighbouring locality, and that no other Courts than those of this country have any jurisdiction over it whatever. In short, I hold it to be part and parcel of the country. The common consent of nations recognises the sole right of each nation in its own estuaries, such as that of Loch Long, to the exclusion of all intrusion on the part of other nations, unless permitted by treaty following on conquest or by pacific international agreement for common benefit.

In opposition to this view it is maintained for the defenders that, whatever may be the territorial right of the State in such an estuary, it is not a proprietary right, and that therefore the Crown cannot exorcise the same right to prevent trespass which can be exercised by an ordinary proprietor of a part of the solum of the country. Their case is that the right of the State is one of mere protectorate, for the purposes of navigation, fishing, and the like, but that in all other respects the State has no right to interfere with anything done in Loch Long, whether by a British subject, or by a Frenchman, German, American, or any other foreigner, unless in the execution of its duty of protectorate of public uses such as I have stated.

I can find no authority for any such proposition, which is certainly startling as well as novel. It appears to amount to this, that the Crown is limited, as regards localities such as Loch Long, to a duty of police, while all the world can use the loch at pleasure as long as it cannot be shewn that damage is actually being done to those interests for which the protectorate exists. The defenders practically maintain that, unless the Crown in its police capacity undertakes to prove that what is being done is in fact injurious to the uses to which the community has right, independent of property, it cannot succeed in preventing what would be a palpable act of trespass if done on any property above high-water mark, and this even although the person or body committing

182 CASES DECIDED IN THE [fourth series.

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

the act have no right whatever greater than that possessed by any individual citizen, or even by a foreigner. It seems strange that, if such a view of the law be sound, it should not long ere this have been so established as to be found formulated in our authoritative law treatises and confirmed by decisions. But I can find no trace of any such law. On the contrary, whatever questions may be raised as regards the solum within the three mile limit, all the authorities concur in giving the proprietary right in estuaries to the Crown. It is true, of course, that the powers of proprietary right are modified by certain public uses which the community are entitled to enjoy, but these are restrictions solely in the interest of the whole public, and in no way impinge upon the rights of the Crown to deal with members of the public who go outside the public uses which are admitted to be a restriction on the full exercise of proprietary rights, and commit trespasses, which have no connection with these public uses, unless, indeed, it be to infringe them and to endanger them.

I hold on the authorities that the right of the Crown in Loch Long and its solum is a right of property, and that the Crown is entitled to stop any intruder from coming to Loch Long, and there throwing large quantities of solid matter into the loch. Having that right, I further hold that it is not a relevant defence on the part of those admittedly so casting solid matter into the loch to aver that they are doing no harm. They are doing that which they have no right by statutory or customary law or by contract to do, and I am unable to see how the Crown can be prevented from interdicting the trespass. This is on the view of property which I hold to be very clear, but I should hold the same as regards the Crown's right even if that right was one of property in trust only for the recognised public uses of such a place. Even in that view the Crown would, in this matter, be in no different position from that of many public bodies who hold property expressly for the public use, the conditions of their trust preventing the sale or alienation of the property, but who, nevertheless, are entitled to exercise all the rights of proprietors to prevent those having no title from interfering with it in any other way than in the reasonable exercise of such admitted public rights of use. It is certain that what the Clyde Trustees have been doing does not fall within any of the public uses, subject to which the Crown holds Loch Long, and I can see nothing to prevent the proper authority acting for the Crown from interfering to stop any persons from doing in Loch Long acts which they can shew no title to do, and which on any other property would amount to a trespass if done without title.

I am therefore very clearly of opinion that the title of the Crown to ask for declarator and interdict against these proceedings is beyond all question, and that, accordingly, the Court should adhere to the interlocutor of the Lord Ordinary, and, if it prove to be necessary, grant interdict against the defenders.

Lord Young .-I greatly regret-we all regret-everybody must regret-that this question should have been raised, and I cannot help thinking that it might have been avoided. The Clyde Trustees have a public duty to perform, not only to the harbour of Glasgow, but through that to the whole community. They must, until some useful method is discovered for the employment of the dredgings which they take from the bed of the river, have some place to put them, or cease to take them out. It seems to be contemplated in the Clyde Statutes that they should place the dredgings on the banks, but it is quite intelligible that that plan is too expensive to be encountered if it can be avoided.

vol. xix.] COURT OF SESSION, &c. 183

No. 39.

Nov. 25, 1891. Lord Advocate v. Clyde Navigation Trustees.

I cannot doubt that there is some place within measurable distance where these dredgings may be thrown out into the sea without detriment to the public interests. I cannot help thinking that on a conference between these two public authorities, the Clyde Trustees and the Crown, an arrangement might have been arrived at without raising any legal question. Unfortunately, however, the legal question is raised; the Clyde Trustees claim right to deposit their dredgings in Loch Long, the Crown asserting that they have no such right.

The question having arisen, we have to determine it, and it is, whether there is a legal title of property to Loch Long in the Crown. My opinion is, and, I confess, without doubt or hesitation, that Loch Long is part of the territory of Scotland. Any part of it that is not in Argyllshire is in Dumbartonshire. It is the property of the Crown, if it is part of the territory of Scotland, as it certainly is. The use of it, of course, is subject to such limitations as nature puts upon it. It can only be used as property so far as that is consistent with the fact that it is constantly covered with salt water to a great depth. But it is the property of the Crown jure coronœ. On that I have no doubt.

The Crown must use the property in the public interest. But that is not a matter for us. If the department of Government which is charged with the administration of the Crown's duties in this matter uses this property in a manner detrimental to the public interest, or fails to use it in the interest of the public, there is a remedy, but it is not to be found here. The Government must be called to account, and it can be most sharply and effectually called to account elsewhere. It is said that they are using their right in a way that is inimical to the public interests committed to the defenders, and it is said they have taken a guarantee from private individuals for their expenses. The Crown admit they have taken such a guarantee, and I shall only say I am surprised that, acting, as they say they are, in the public interest, they should have condescended to do so. But I am bound to assume, even although I thought the contrary to be the case, that the Crown is using this Crown property consistently with the public interest, and is forbidding all uses of it that are inconsistent with the public interest. I think it is the absolute legal right of the Crown authorities to prevent a use of the solum which is inconsistent with their view of the public interest.

That would be sufficient for the decision of the case. But we had much discussion and citation of authority on the question of the three mile limit. But that authority is pertinent only if the property there is in the same position as in Loch Long. Otherwise it is not. I have no objection to indicate my own view, it is only my individual view, that the Crown has a right of property within the three mile limit. What about the building of piers and jetties 1 Is it doubtful that piers so built are built on Scottish land, on ground vested in the Crown, and applicable to any purpose which it will serve ? There are many such piers. I cannot distinguish between that part of the three mile limit on which these piers are built, the part adjacent to low-water mark, and that part which lies further out.

Lord Rutherfurd Clark concurred.

Lord Trayner .-I think it unnecessary to express any opinion in this case on the question which was argued before us as to the extent and character of

184 CASES DECIDED IN THE [fourth series.

No. 39.

Nov. 25, 1891.

Lord Advocate v. Clyde Navigation Trustees.

the Crown's right to the solum underlying external seas within what is known as the three mile limit. That question does not and cannot arise in reference to the solum of Loch Long, which forms no part of the external seas surrounding the United Kingdom, but is an inland arm of the sea, or Firth of Clyde, entirely within the United Kingdom. Being within the territory of the United Kingdom, the solum of Loch Long must either be vested in the Crown or in a subject proprietor deriving right from the Crown. It is not suggested, however, that the solum of Loch Long is or has ever been vested in any subject of the Crown, and therefore it follows that it is still vested in the Crown.

To what extent and effect it is vested in the Crown is a different question. It was maintained for the defenders that the right of the Crown in the solum of such a loch (as in the foreshore, or the solum of a tidal navigable river) is not proprietary, but merely a right in trust for the public for certain public uses. On this question there is a considerable difference of opinion. For my own part, I agree with those who think that the right of the Crown is a proprietary right, burdened with rights in favour of the public, no doubt, but still a proprietary right.

But it is not necessary to maintain that view for the decision of the present case. Assume that the only right which the Crown has is a trust right for public benefit. The title of the Crown to the solum of Loch Long is the only title to that solum which exists, and in respect of that title is in a position to resist any attempt to invade the rights which the trust title confers. A trustee vested in lands for trust purposes has a good and sufficient title to prevent any stranger from squatting thereon, or from interfering in any way with the lands to which he has no title whatever.

Now, this appears to me to be the position of parties in the present case. The Crown has, and alone has, a title to the solum of Loch Long; the defenders have no title to it whatever. The defenders have, therefore, no right to use the solum of Loch Long, and the Crown has the right and title to prevent them using it if they try to do so.

The defenders, however, maintain that the Crown cannot interfere with the proceedings complained of, except it shews that these proceedings are injurious to the special public uses in trust for which the Crown holds. I think this argument cannot be sustained. It is the duty of a trustee to prevent any unwarranted invasion of the trust subjects, and he is, in my opinion, entitled to interdict any such invasion on the ground, admitted or proved, that he is the vested holder of the subjects and that the invader has no title to them whatever. He is under no necessity to state or to prove that the invasion of his right, threatened or actual, is or will be injurious.

I agree substantially with the views expressed by the Lord Ordinary, and I am of opinion that his interlocutor should be affirmed.

The Court adhered.

Donald Beith, W.S.-Webster, Will, & Ritchie, S.S.C.-Agents.

19 R 174

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.