Scottish Court of Session Decisions

This was a case of a special nature. The pursuers, Charles Tennant and Co., were proprietors of very extensive works, situated at St Rollox, Glasgow, on a Cut of Junction between the Monkland Canal, and the Collateral Cut of the Forth and Clyde Canal, which terminates at Port-Dundas, Glasgow. They had occasion to import and export a very great amount of goods, annually, along the canal, and paid about £3000 a year of canal dues. The other pursuers and suspenders were extensive shippers on the Forth and Clyde Canal. The pursuers and suspenders alleged that the Cut of Junction between the two Canals (the Forth and Clyde and the Monkland), was only about four feet nine inches in depth; and that the Forth and Clyde Canal, and its Collateral Cut to Glasgow, in various places did not exceed eight feet three inches or eight feet six inches in depth. They also alleged that they were put to great inconvenience in using the canal, on account of the small size of the only boats which could navigate it, especially such as could alone go up to the works at St Rollox on the Cut of Junction between the two Canals. They therefore raised first a suspension and interdict, and afterwards a declarator, against the Proprietors of the Forth and Clyde Navigation, libelling on a series of statutes which were passed at intervals, between the 8th G. III. and 1st G. IV. c. 48; setting forth that, in terms of these statutes, the said proprietors were bound to deepen the Forth and Clyde Canal (including the Collateral Cut) to the depth of ten feet; that they were also bound to deepen the Cut of Junction to the same depth with the Canal; and that they were not entitled to levy dues until they so deepened the Canal and Cut of Junction, and should be interdicted from doing so. The summons also contained conclusions of repetition of dues already paid, as having been illegally exacted. The Proprietors of the Forth and Clyde Navigation pleaded, that, according to the true construction of the statutes they had fulfilled every obligation incumbent on them towards the public; that they were not bound by the statutes to add to the depth of the Canal, though they had been permitted by them to do so; and that there was no ground on which payment of the Canal dues could be resisted.

The Lord Ordinary pronounced this interlocutor:—“Finds that the defenders are not bound to deepen and enlarge the Forth and Clyde Canal, or any part of it, to the depth of ten feet: Finds that they are not bound to alter, enlarge, and deepen that part of the said canal extending from Port-Dundas to St Rollox Works, ‘so as to be of the same depth and dimensions with the remainder of the Collateral Cut, and of the other parts of the Main Canal:' And therefore, and in respect that the whole other declaratory conclusions of the libel, as well as the reasons of suspension, are founded on the affirmative of the two preceding propositions, sustains the defences, and assoilzies the defenders from the whole conclusions of the declaratory action; and in the suspension, repels the reasons of suspension; refuses the interdict, and decerns; and finds the defenders and respondents entitled to expenses.” ^*

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^* “ Note.—In this case, as in many others in which a series of statutes have been successively passed for modifying, altering, or extending the limits and the administration of a great public undertaking, it has happened that the expressions used in the various enactments are not be accurately suited to each other as altogether to exclude questions of construction founded upon nice verbal criticism; but on the present occasion, and even giving the pursuers full benefit of all the cavils which can be raised on the occasional inaccuracy or apparent inconsistency of expression in those different enactments, it does not appear to the Lord Ordinary that there are any grounds for either of the propositions maintained by them.

“The first in the order of the argument in the cases, though forming the second conclusion of the libel, is that which relates to the deepening of that part of the canal from Port-Dundas to St Rollox Works to the general statutory depth of the canal. The pursuers’ argument on this point is founded, 1st, On the original statutes of the 8th and 11th Geo. III. cap. 62 and 63, enacting that the Collateral Cut should extend to the city of Glasgow, or to a point at or near ‘to the Town-head of Glasgow;' and 2dly, On the assumption that the ‘Town-head of Glasgow’ denotes a point locally situate at or near St Rollox Works, and farther to the eastward than Hundred-Acre Hill, or Port-Dundas, at which the canal, of the general statutory depth, now terminates.

“Looking at the terms of the various statutes, the Lord Ordinary considers this proposition to be utterly untenable. The main object of the line of navigation was to connect the Forth and Clyde, and with that was combined the communication between that line and the city of Glasgow, by what was termed a Collateral Cut, both being of the depth of seven feet. By the act of the 11th Geo. III., in some respects altering the statute of 8th Geo. III. originally authorizing the canal, the Collateral Cut was to be made ‘from the said Main Canal passing by Stocking field to or near a place called Thimblefield, to or near Cowcaddens, and to or near the Town-head of the city of Glasgow.’ The sense attached to these last expressions appears to the Lord Ordinary to be sufficiently ascertained, not only by the proceedings of the parties, but by the subsequent statutes. At first the Collateral Cut was completed to a point called Hamilton Hill, where a basin was established for the trade of Glasgow; and it seems to have been understood by all parties concerned, that this was the accomplishment of the Collateral Cut, as originally contemplated. Accordingly the subsequent statutes of 24th Geo. III. cap. 57, and 27 Geo. III. cap. 55, passed in relation to this undertaking, expressly bear that the Collateral Cut from the Main Canal to the city of Glasgow has been completed, the expression in the first statute being that, it had been completed ‘to the city of Glasgow, or neighbourhood thereof,' and in the latter that the Collateral Cut had been completed ‘as far as or near to the Town-head of the city of Glasgow,' being the very words employed in the former statute of the 11th Geo. III.

In these circumstances, and considering the nature of the point in dispute, the Lord Ordinary cannot listen to the averment now made at the distance of half a century, that this was all a misrepresentation by the canal proprietors, and that the Town-head of Glasgow then denoted a particular point, totally different from that to which the canal had, at the passing those statutes, been extended.

“Next comes the statute of 30 Geo. III. by which the Canal Company were empowered in the first place to deepen the whole Canal and the Collateral Cut connecting it with Glasgow to the depth of eight feet; to prolong the Collateral Cut from Hamilton Hill, its original termination, to Hundred-Acre Hill, now Port-Dundas, and from that point to connect the navigation with the Monkland Canal. The latter operation had been the subject of an agreement between the proprietors of the two Canals, by which the proprietors of the Forth and Clyde Canal bound themselves to join the two ‘by a Canal of the same size and depth as the Monkland Canal.’ Accordingly, nothing can be clearer than the distinction made in the statute 30 Geo. III. passed, in part, at least, for carrying this agreement into effect between the depth of the Canal and Collateral Cut as far as Hundred-Acre Hill or Port-Dundas, the new point of connexion with Glasgow, and the depth of the line between Hundred-Acre Hill and the Monkland Canal. It authorizes the first to be made ‘of such depth of water as shall be equal to eight feet at least,' and the latter to be by a ‘Canal not exceeding the above dimensions.’ Accordingly, as far as Hundred-Acre Hill, now Port-Dundas, the Canal was made eight feet deep, being the depth of the general line of communication, and the latter four feet and a half, being the depth at that time of the Monkland Canal, and the depth stated in the estimate lodged in the Parliament-office previous to the passing of the statute.

“Considering all these circumstances,—the terms of the statutes, and the practical construction put upon them by all parties concerned, the proposition of the pursuers that the Collateral Cut of the general statutory depth must be extended from Hundred-Acre Hill, or Port-Dundas, to the Monkland Canal, or at least to St Rollox Works, appears to the Lord Ordinary to be unwarranted and absolutely untenable.

“The other point regards the depth of the main line of the Canal and Collateral Cut connecting it with Glasgow, forming the subject of the first conclusion of the summons. The Canal is confessedly eight feet deep at least. But it is maintained by the pursuers that the depth ought to be ten feet, and that while it is not completed to that depth, they are not bound to pay the statutory dues. From the nature of the statutes referred to, it is unnecessary to enquire into the question, how far terms, in expression merely permissive, are to be construed as imperative or binding against the proprietors of an undertaking like that in question, when they are combined in the same statute, with the power to levy dues to a certain amount. It so happens here, that by the statute of 27 Geo. III. authorizing the deepening of the Canal, no additional Canal dues were allowed to be levied; while, on the other hand, the statute 46 Geo. III. which did raise the dues, and under which the dues at present exigible are levied, contains neither an obligation, nor even a permission, to deepen the Canal beyond eight feet, the depth at which it then stood. So that there are no grounds for construing the levying of the dues now exigible, as conditional on the deepening of the Canal beyond eight feet.

“The first statute authorizing the depth of ten feet, is that of 54 Geo. III. cap. 195, which authorizes and empowers the Forth and Clyde Navigation, 1st, To enlarge and extend the basin at Port-Dundas, and to make various other improvements. 2dly, To alter, widen, and enlarge the said Canal, &c.' in such way or manner as the said company of proprietors, or their governor or council, shall think fit, for making the same ten feet depth of water in every part thereof, navigable and passable for boats, barges, and other vessels.’ The statute also empowered the borrowing of a sum of £40,000 sterling, for the purpose of enlarging and extending the basin at Port-Dundas, and for altering, widening, and enlarging the Canal, ‘for making the same ten feet depth of water in every part thereof, or for any or either of such purposes.’ There appears no ground for construing this statute as imperative on the matter of deepening the Canal. It contains no counterpart which can he considered as a consideration for such an obligation. For even as to the borrowing of money, the sums so raised might be lawfully expended, and, as it is averred by the defenders, were expended on the other operations referred to.

“The only other statute founded on by the pursuers is the 1 Geo. IV. cap. 48, which neither authorizes an increased levy of dues, nor contains any enactments, either permissive or imperative, in regard to deepening the Canal. It enables the proprietors, indeed, to borrow a sum of £80,000, upon the preamble that ‘it would be highly beneficial to the public if the company of proprietors were empowered to borrow a farther sum of money to enable them to carry into effect’ the powers of the preceding statute of the 54 Geo. III. ‘for deepening the said Canal, Collateral Cut, and Cut of Junction, to the full depth of ten feet;' and it also contains a removal of a limitation within which the profits of the company were, by former enactments, confined to 10 per cent at most.

“In regard to this latter provision, it may be observed, that it proceeds on a preamble totally unconnected with the deepening of the Canal, and which therefore cannot affect the present question. As to the power of borrowing money, the parties are at issue on the fact. The pursuers aver, and the defenders deny that any money was borrowed under the authority of that statute. The point certainly admitted of being very easily ascertained, if the pursuers had been disposed to press it, which, from some passages in their revised case, it rather appeared to the Lord Ordinary they are not. But, at any rate, it appears to him that the averment is irrelevant to the conclusions of the present action. For even if the money had been borrowed, and assuming, which he thinks doubtful, the right of the public to found on the terms in which the power to borrow is expressed, the utmost extent of the obligation imposed by the enactment would be that of expending the sum so borrowed ‘in deepening the Canal to the full depth of ten feet.’ It never could support the conclusion of the present action that the defenders were bound to make the whole Canal of that depth, unless it was coupled with another averment, which is nowhere made in the record, that the sum so borrowed was sufficient to carry that operation into effect.

“Upon the whole, then, the Lord Ordinary considers the demands of the pursuers to be entirely unfounded, and to have been made under circumstances which fully warrant him in finding them liable in expenses.”

The pursuers and suspenders reclaimed.