Scottish Court of Session Decisions

This is an action of declarator brought by Colonel Baillie of Redcastle, Lord-Lieutenant of the county of Ross, against Mr Penrose Hay, solicitor in Inverness, as representing the commissioners under the Inverness Burgh Act for the police purposes of the Act. Colonel Baillie seeks to have it declared that Kessock Ferry and the pier on the Inverness-shire side of the ferry do not lie within the Parliamentary boundaries of the burgh of Inverness, and therefore that the pursuer is not liable to the commissioners in assessment under the Act. The assessment is sought to be imposed under the 34th section of the Inverness Burgh Act, which provides that the commissioners shall assess all the lands, tenements, houses, buildings, and other heritages of every description, and situated within the Parliamentary bounds of the burgh, valued at four pounds or upwards of yearly rent. The Lord Ordinary (Jerviswoode) found that the pier of Kessock to the extent of one-half of it was situated within the Parliamentary bounds of the burgh, and was therefore an assessable subject under the Act. The case then came before the Court on the 15th of June last, and it being thought necessary to ascertain the exact state of the facts on which the action is founded, a proof was allowed. To-day the case came up for advising on the reported proof. The facts brought out by the proof appear from the annexed opinion of the Lord Justice-Clerk. His Lordship said—This action of declarator raises a question of some nicety, and requires a good deal of consideration. Colonel Baillie's estate is entirely on the north side of the county of Ross, and under the same title he holds the Ferry of Kessock, which is an incorporeal right For the purpose of enabling him or his tacksmen to exercise their right, piers were erected on both sides, the Inverness one costing nearly £5000. It appears that this pier is built entirely below high-water mark, and for some part of its length below low-water mark. The soil upon which the pier is built is not the property of Colonel Baillie. I suppose that the Crown might have interfered with the erection. The Admiralty or the Department of the Woods and Forests might have done so if it had obstructed the navigation. But they have not done so, and it may be fairly enough presumed that their reason for not doing so was that the pier was for the convenience of the lieges who were using the ferry. The effect of their acquiescence is not to create in Colonel Baillie any right of property, and as the solum does not belong to him, neither does the structure. But he is proprietor of the ferry, and it may be said that the pier may be owned as an adjunct of the ferry. But if the pier were dissociated from the ferry, there is no sense in which it could be said to belong to him—every stone of it would be the property of the Crown. That being so, the question is, Is Colonel Baillie liable to be assessed for the pier? and that question requires us to consider Colonel Baillie's title to the ferry, and the nature of the subjects. After reading the 34th and 35th sections of the Act founded on, his Lordship said—I should have the greatest doubt whether these terms comprehend an incorporeal right such as a right of ferry. But that is not a question which we are called upon to solve, because it is not proposed to assess Colonel Baillie for the ferry. Still I do not think that the description comprehends any incorporeal right. The pier, then, being an adjunct to the ferry, the question is whether it can be made the subject of assessment—that is to say, that part of it which lies between high and low water, for that is the only portion of it which is situated within the Parliamentary bounds. It is difficult to answer that question affirmatively. What is a ferry? Just a highway; as much so as a road; and a right of road is an incorporeal right. In a case of right of ferry it is difficult to see, apart from special legislative enactment, why a highway across the sea should be made assessable more than a turnpike road, which is a highway across the land. His Lordship proceeded to say that if the water across the ferry were bridged over that would make a road which could not be assessable, and there could be no difference in the principle of assessment by a mere alteration in the mode of transit. The Court accordingly altered the interlocutor of the Lord Ordinary, and held the pier and ferry not liable to assessment.