Scottish Court of Session Decisions

Note.—The respondents, in virtue of a right granted to them by Mr Carrick Buchanan, proprietor of the lands of Finlayston, on the south bank of the river Clyde, have recently erected certain timber-ponds on the foreshore between high and low water mark ex adverso of these lands, and to the eastward of Port-Glasgow. The present application, at the instance of the Trustees of the Clyde Navigation, was instituted for the purpose of preventing the erection of these ponds, and is now insisted in to the effect of having the respondents ordained to remove them. The complainers have stated their readiness, however, to allow the ponds to remain if the respondents will grant an obligation in terms the same as those granted by other persons occupying similar timber-ponds in the neighbourhood, undertaking to remove the ponds whenever required to do so by the complainers. The respondents have declined to grant this obligation, but are willing to give an undertaking to remove the ponds if their existence at any time should be injurious to the navigation of the river, or if the complainers should at any time require the ground for operations under their statutes.

The ground in question lies some distance to the eastward of the line across the river which forms under section 75th of the Consolidation Act of 1858, the western boundary of the river under the charge of the complainers for the purposes of navigation in virtue of their Acts. The river at that part is upwards of a mile in breadth. The timber-ponds, beginning at high-water mark, are a considerable way within low-water mark, and at a distance of upwards of 1000 feet from the navigable channel of the river. It is not alleged by the complainers that they have any intention of executing operations on the ground under their Acts of Parliament, nor do they say that the occupation of the ground as timber-ponds has any injurious effect on the river for the purposes of navigation, or is calculated to have any such effect. A good many similar ponds have been in existence for a number of years without being productive of any such injury, and indeed the complainers' willingness to have allowed the ponds in question to be erected, provided only their previous sanction had been obtained, sufficiently shews that it was not on account of any dreaded injury to the navigation that the present action was instituted, but rather for the purpose of maintaining, I assume quite properly, what the complainers believe to be their right of absolutely preventing such erections unless made with their sanction.

The complainers are willing that before answer as to the legal rights of parties, the respondents should be allowed a proof of their averments, because, if Mr Buchanan, from whom the respondents derive their right, has the property of the foreshore, it might be ultimately held that an action like the present might not be maintainable against him, or others deriving right from him, unless it could be averred that the operations complained of were injurious, while an averment to that effect might not be necessary as against parties who had not a title from the owner of the foreshore. The respondents maintain that a proof is not necessary to enable the Court to dispose of the legal question which the action raises, and I have ultimately come to adopt this view.

There can be no doubt that the complainers are entitled, in virtue of the Statutes under which they act, to prevent any operation on the bed of the river below high-water mark, which will be productive of injury to the navigation, and that under their Acts they are entitled to execute such operations as are in their judgment required for the deepening and improvement of the navigable channel, until throughout its length a depth of 17 feet has been attained. The respondents admit this, and concede that their ponds must at once be removed if their existence should be an interference with these rights, or should become so from any change of circumstances. The question between the parties is whether the complainers have the higher right, which they claim, of preventing any occupation of the foreshore even where such occupation is harmless as regards the navigation of the river.

In support of the action the complainers refer to the Clyde Navigation Consolidation Act, 1858, sections 75, 76, and 77, and the 97th and following sections, which authorise the levying of rates and duties on goods and vessels. By section 75 the limits of the river are defined as including ‘the whole channel or waterway of the said river forming the harbour,’ as far down the river as the line from Newark Castle there mentioned; and by section 76 the undertaking of the Trustees is stated to consist of the ‘deepening, straightening, enlarging, widening, or confining, dredging, scouring, improving, and cleansing the river and harbour, until a depth of at least 17 feet neap tides has been attained in every part thereof,’ and of the other works there enumerated including the erection of banks, walls, and works, for maintaining the channel of the river within proper bounds, and the digging and cutting the banks and other works which, in the opinion of the Trustees, are necessary ‘for improving the navigation of the river,’ or ‘for improving the navigable channel of the river.’ The complainers maintain that these provisions give them the entire control of the river below high-water mark, without any limitation, The right contended for is thus very extensive, and seriously affects the riparian proprietors. I am humbly of opinion that the complainers' rights under their Statutes are not of the unlimited nature maintained by them, but are limited by the purposes of their trust, viz., the making and maintaining of a suitable navigable channel, of the depth specified in the Statute, throughout the river's course. I think that whatever operations are in their opinion required to effect this purpose the complainers are entitled to execute, and whatever obstructions are put in the way of the execution of this purpose they are entitled to have removed; but the Statutes do not, I think, give them the further and unlimited powers for which they contend. They have no property in the foreshore. Subject to the use of the shore in so far as required for navigation, the right of property remains either in the Crown for other public purposes, or in the riparian proprietor if he has acquired the right by express grant, or by such a grant as will confer a right if followed by possession, where such possession has actually taken place. If the complainers should require to occupy part of the shore permanently by their works, they must acquire the right by purchase from the proprietor, whose right of property is not only not taken away, but is expressly recognised by section 77th of the Statute. But it is said that the right

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