Scottish Court of Session Decisions

This was a note of suspension and interdict presented by Lord Blantyre, proprietor of certain lands on the river Clyde, against the Clyde Navigation Trustees, craving the Court to interdict the “respondents, and all others acting under their orders or authority, from using or disposing of any soil or other matter cut, dredged, or otherwise taken from any part of the banks, channel, or bed of the river Clyde, upon or ex adverso of the complainer Lord Blantyre's lands and estates of Erskine, Northbarr, and Bishopton, on the south side of the said river Clyde, and the complainer's lands of Kilpatrick, Shorepark, Dalnottar, and Glenarbuck, on the north side of the said river, out to the central base line or medium filum of the said river ex adverso of the said respective lands, otherwise than by depositing or laying the soil or other matter so cut, dredged, or taken upon the most convenient banks of the river upon or ex adverso of the said lands, at such parts thereof as shall be approved of by the complainers; or at least to interdict, prohibit, and discharge the respondents, and all others acting under their orders or authority, from using or disposing of any soil or other matter cut, dredged, or otherwise taken from any part of the banks, bed, or channel of the said river above the present low-water mark, or above low-water mark as it existed prior to the operations of the respondents and their predecessors, under their various Acts of Parliament, situated upon or ex adverso of any of the said lands, otherwise than by depositing the soil or other matter so cut, dredged, or taken upon the most convenient banks of the river upon or ex adverso of the said lands, at such parts thereof as shall be approved of by the complainers;

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and in any event, to interdict, prohibit, and discharge the respondents, and all others acting under their authority, from carrying away and throwing into the sea at Loch Long, or elsewhere, any of the said soil or other matter, and from using or employing the same for any purposes other than the purposes of the respondents' undertaking as defined by their Acts of Parliament; or to do otherwise,” &c.

A variety of Acts of Parliament have been passed for the improvement of the navigation of the river, and in particular the following Acts, viz.:—The Act 32 Geo. II., cap. 62, passed in the year 1758; the Act 10 Geo. III., cap. 104, passed in the year 1769; the Act 49 Geo. III., cap. 74, passed in the year 1809; the Act 6 Geo. IV., cap. 117, passed in the year 1825; the Act 3 & 4 Vict., cap. 118, passed in the year 1840; and the Act of 1858, viz., 21 & 22 Vict., cap. 149, by which the respondents, the Trustees of the Clyde Navigation, were constituted a body corporate.

By section 76 of the said Consolidation Act of 1858, it is provided that, “subject to the provisions of this Act, and of any agreements authorised or confirmed by the recited Acts or this Act, and to the provisions and declarations of any conveyance granted to the Clyde Trustees, the undertaking of the Trustees shall, in terms of the recited Acts, consist of the deepening, straightening, enlarging, widening or confining, dredging, scouring, improving, and cleansing the river and harbour, until a depth at least of 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; the forming and erecting, on both sides of the river, of such jetties, banks, walls, sluices, and works, and such fences for making, securing, continuing, and maintaining the channel of the river within proper bounds, as the trustees shall think necessary; the digging or cutting the soil or banks of the river, or bed thereof, and laying the same upon the most convenient banks of the river; the cleansing, scouring, and opening any other streams, brooks, or watercourses which now fall into the river, and the digging and cutting the banks of the same for improving the navigation of the river; the digging, cutting, removing, carrying away, and using such earth, gravel, stones, and other materials therein, upon or out of the said land, soil, or ground as the Trustees shall think fit, either for improving the navigable channel of the river, or for bringing in any other streams, brooks, or watercourses to the river, or for bringing up a greater quantity of tidal water in the river .… and, subject to the provisions of this Act and the Acts herewith incorporated, the Trustees are hereby authorised and empowered to carry on and complete the whole or such and so many of the said works as to them from time to time shall seem expedient; reserving always to the proprietors of lands adjacent to the river, all rights to soil acquired from the river, and other rights competent to them at common law, without prejudice to the terms of the 19th section of the fifth recited Act, as saved by this Act.”

The complainers alleged that the respondents, in the course of their operations in cutting and excavating the river banks and bed, and of their dredging operations, obtain a large quantity of soil and other matters, “which they are bound, both at common law and under the said Acts of Parliament, to lay down upon the most convenient and suitable portions of the banks ex adverso of or from which the same are taken. The respondents' predecessors for a number of years did so Instead of continuing to deposit the soil and other matters, the respondents have recently commenced a practice of carrying the said soil or other matters away in steamers or hopper barges fitted for the purpose, into deep water in Loch Long and elsewhere, and there throwing the same into the sea.”

This practice, the complainers alleged, was illegal, the respondents being bound to lay the soil on the most convenient banks of the river, and the banks on the complainer's properties were most convenient for the purpose.