Scottish Court of Session Decisions

The trustees of the late Sir James Colquhoun of Luss raised this action against Archibald Orr Ewing & Co., calico printers and turkey-red dyers, Levenbank, concluding, firstly, for declarator

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(1) that “the river Leven throughout its course from Loch Lomond until it falls into the river or Firth of Clyde at Dumbarton is a navigable river, free and open to the public”; (2) “that the defenders have no right to execute any works which will in any way interfere with or obstruct the navigation thereof, or the free use of its banks, and of the towing-path along the bank of the said river, for the purposes of navigation;” and (3) that they had no right to erect bridges, piers, or other works on the river, which would injuriously affect the pursuers' interests as proprietors of salmon-fishings. Secondly, for declarator that a bridge which the defenders were then erecting at Dillichip, and its piers and supports, “do at present, and will when completed, obstruct the free navigation of the said river, and the use of its banks and towing-path, to the injury of the pursuers, and will also injuriously affect their rights and interests in the salmon-fishings in the said river and loch.” Thirdly, that the defenders should be ordained to remove “the said bridge and the piers and supports thereof, in so far as the same obstruct or interfere with the navigation of the said river Leven, and the use of the said river and its banks and towing-path as the same has hitherto been possessed and enjoyed by the pursuers, their predecessors and authors, or that in any way injuriously affect the rights and interests of the pursuers in the salmon-fishings of the said river and loch.” The defenders were proprietors of certain print and dye works near Dillichip, Bonhill, on the east or left bank of the Leven. The North British Railway from Balloch to Dumbarton ran along the west bank, and having purchased certain ground upon that side for the purpose, the defenders proceeded to connect their works at Dillichip with the railway by the construction of a branch line and a bridge across the river. Before doing so, they communicated in 1872 with Sir James Colquhoun, Mr Smollett, and other proprietors interested, and no objection was made. Sir James Colquhoun's factor, Mr Andrew Wylie, wrote at that time the following letter to the engineers employed by the defenders:—

“ Camstradden, Luss, 14 th May 1872.

“Dear Sir,—Referring to our conversation lately about the proposed railway branch from Alexandria to Dillichip, across the Leven, I am directed to state that Sir James Colquhoun will make no objection, provided his fishing and other rights are not interfered with.”

The bridge was thereafter constructed. It consisted of iron girders resting on two sets of stone piers, each set consisting of two stone pillars or piers of five feet diameter, placed near each other in a line transversely to the bridge. The west piers were on the towing-path on the bank of the river, and the line of the path was altered to allow of their being placed there. They were placed in a line three feet apart. The east piers were in the bed of the river towards the left bank, and were also three feet apart. The span of the bridge between the west and east piers was ninety feet wide.

The pursuers' averments were to the following effect:—The Leven was a navigable river used by steamboats and also by gabbarts or scows, the latter affording a convenient and inexpensive means of conveying supplies to, and produce (particularly wood) from, the pursuers' lands and farms on Loch Lomond to the Clyde or places on the Leven. The scows were occasionally towed, and the towing-path was used for that purpose. The pursuers were also proprietors of salmon-fishings in the Leven, and of those in the Clyde belonging to Dumbarton, and of other fishings in Loch Lomond. The erection of the pillars for the bridge on the towing-path would interfere with the towing of vessels, inasmuch as the horses would not be worked with the same freedom as formerly; and the erection of the pillars for the bridge in the bed of the river would obstruct the passage of vessels, or at least of the scows or gabbarts, up and down the river. These pillars in the river would also obstruct the passage of salmon up and down. The alveus of the river was not the property of the defenders. The most material interest which the pursuers had in the matter was the effect the bridge as it was being constructed would have on the value or return from the estate under their charge. The erection of the bridge would materially interfere with the transmission of the produce from the farms and of goods to them. These articles would not be transmitted as conveniently and cheaply as hitherto, but would have to be carried by road or rail, and the value of the lands would be diminished, and the rents to be obtained lessened. The pursuers further averred, that the impediment which the bridge will cause in the conveyance of wood from the pursuers' lands down the Leven would prevent merchants from giving the same price for it as formerly. As a considerable quantity of wood from the estates was likely to be in the market in a few years, amounting in value to several thousand pounds, any reduction of price would be a serious loss to the trust-estate.

The defenders answered—Admitted that occasionally, in times of flood, small boats of a light draught of water, and known as gabbarts, pass up and down the river Leven, and carry goods of various kinds down the river, being towed up it empty. Admitted that sometimes in high flood the steamers used for the navigation of Loch Lomond have been towed unloaded up and down the said river. Explained that the tide does not reach nearly so high up the river Leven as the bridge in question, and that the alveus of the river there is the private property of the riparian proprietors, each up to the medium filum where the lands on the opposite banks belong to different proprietors. Explained that the west piers are placed about ten feet back from the west bank of the river, so as to leave (as they leave in fact) a sufficient towing-path between them and the river, and that thus no inconvenience is caused by the said bridge to the towing of boats. Further, explained that the east piers are placed a short distance above the entrance or intake of a lade from said river, and at a point in a direct line or nearly so up the stream from the catch-water wall of said lade, where they do not and cannot form an obstruction to the passage of boats up or down the river; and the span spans over the whole of that part of the river which at that point is available for or is used for the passage of boats. Further, explained that said piers are built in or nearly in a line with what was formerly and naturally the east bank or margin of the river at that point, a portion of the bank having been there cut away to form the entrance to the lade,

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said entrance and lade coming in place of the original bank of the river, and the solum thereof, and of the site of the pillars, being the property of the defenders; at all events, in the original condition of the bank of the river at that point the said east piers would not have interfered with the use of the river by boats. The allegation that the piers form an impediment to the passage of salmon is altogether unfounded. Quoad ultra denied, and explained that the operations connected with the said bridge were commenced on 3d March 1875, and that they were almost completed when this action was raised. The construction of said branch railway and bridge was entered on and carried out with the full knowledge and consent of the pursuers and their predecessors, and the pursuers and their predecessors acquiesced in the said operations. There are and have for many years been three bridges farther up the river Leven than Dillichip, and the maximum height of two of these is less than the height of the bridge now complained of—Balloch Bridge being two feet and Bonhill Bridge eight inches less in height. There are also two bridges below Dillichip, both of which are erected upon piers placed in the bed of the stream. The bridge built by the defenders will not detrimentally affect the use of the river Leven by the pursuers, nor injure their interests in any way.

The pursuers pleaded—“(1) The river Leven being a public navigable river, the defenders have no right to make any erection in the channel of the river, on its banks, or on the towing-path, which will in any way interfere with the free navigation thereof. (2) The pursuers, their predecessors and authors, having by themselves and by their tenants and others had hitherto the free use of the river and its banks and towing-path, for purposes of navigation and floating timber, the defenders are not entitled to do anything which will impede or obstruct the said uses hitherto had by them. (3) The pursuers, as proprietors of the rights of salmon fishing before mentioned, are entitled to challenge the works of the defenders in so far as the same will impede the passage of the fish up and down the river. (1) The operations complained of being to the obstruction of navigation, and to the injury of the pursuers, they are entitled to have a decree as concluded for, with expenses.”

The defenders pleaded, inter alia—“(2) The erection of the bridge in question and the execution of the relative works having been lawful, and in exercise of the defenders' rights, the defenders are entitled to absolvitor. (3) The river Leven having been for upwards of forty years dedicated to manufacturing uses, as condescended on, and the bridge in question being necessary for the proper conduct and enjoyment of the works in question, and constituting no interference or material interference with any uses claimed by the pursuers, the defenders are entitled to absolvitor. (4) The pursuers and their authors having acquiesced in the erection of the bridge and works libelled, they are barred from insisting in the conclusions of the summons. (5) None of the pursuers' interests being injuriously affected by the operations complained of, they are not entitled to sue the present action.”

Both parties were allowed a proof of their respective averments, the purport of which, as affecting the question at issue, sufficiently appears from the Lord Ordinary's interlocutor and note and from the opinions of the Court. The following interlocutor was pronounced:—

“ Edinburgh, 12 th June 1876.—The Lord Ordinary having considered the cause, Finds and declares that the river Leven throughout its course from Loch Lomond until it falls into the River or Firth of Clyde at Dumbarton is a navigable river, free and open to the public; and that the defenders have no right to execute any works which will in any way interfere with or obstruct the navigation thereof, or the free use of its banks and of the towing-path along the bank of the said river, for the purposes of navigation, and decerns: Finds and declares that the piers recently erected by the defenders in the bed of the said river near to the east bank are an obstruction to the free navigation thereof; Therefore decerns and ordains the defenders forthwith to remove the said piers: Finds the pursuers entitled to expenses, but subject to modification; allows an account thereof to be given in, and remits the same when lodged to the Auditor to tax and report.

“ Note.—The pursuers ask to have it declared that they have a public right of navigation in the river Leven. The defenders, on the other hand, contend that the river is private, and that no public right of navigation exists.

It is certain that for a long period of time the river has been navigated by a particular class of vessels called scows and gabbarts. They descend the river by the force of the current; but they are towed up by horse haulage. There is a towing-path on the right bank. It ends about 800 yards from Loch Lomond, after which the boats are poled up to the loch.

The river has been thus used for the purpose of carrying to the Clyde the produce of the lands on Loch Lomond side, and of bringing to that district what was required by the proprietors and their tenants. An attempt was made, but in the opinion of the Lord Ordinary unsuccessfully, to shew that the navigation had been carried on for a more general purpose.

The traffic was carried on to some extent by boats belonging to the owners or tenants on Loch Lomond side; but chiefly by boats belonging to persons who kept them in readiness for hire. It was formerly more considerable than it now is. But though it has been diminished by the railways, it is not unimportant. It is probable, however, that loaded boats will not be taken up the river, and that the navigation in that direction will be confined to empty boats intended to bring down a cargo.

The Lord Ordinary is of opinion that a public right of navigation exists in the River Leven. That it is navigable is proved by the fact that it has been navigated. It is the natural channel of communication between an extensive district and the Clyde. It is within the definition of a public or navigable river as given by Erskine, ii. 6, 17, and by Bell in his Principles, sect. 648.

The defenders contended that no right of public navigation could exist when the navigation could not be carried on in both directions without the use of banks for haulage. For this proposition no authority was cited, and it is not supported by the dicta of the institutional writers. Whether the public have the right to use the bank of a navigable river for traction, the Lord

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Ordinary does not stop to inquire. Such a right has existed for time immemorial in connection with the navigation of the river Leven, and it does not appear to be important whether it depends upon common law or on usage.

If the Lord Ordinary is right so far, the next question is, whether the bridge is an obstruction to the navigation. The pursuers make two complaints—first, with respect to the alteration of the towing-path, and, second, in regard to the piers which are placed in the bed of the river. The Lord Ordinary does not think that they have any well-founded cause of complaint as regards the former, but the latter, in his mind, presents a very serious question for consideration.

The piers are situated in what must be considered the bed of the river. The defenders no doubt contended that the site on which they stand had originally formed part of the bank, which was removed to form teupon that ground oughth lade of the defenders' mills. But this is at the best no more than a conjecture. At anyrate the water has been in use to flow over the site beyond the memory of man, and though it had at one time formed part of the bank, it must, as the Lord Ordinary thinks, be taken to be a part of the alveus of the river.

But the defenders maintain that the piers do not obstruct the navigation. On this question the evidence is very contradictory. On the whole the Lord Ordinary prefers that of the pursuers. The witnesses for the defenders give a very unintelligible account of the manner in which they have been accustomed to conduct their boats between the piers and the right bank of the river. One thing, besides, is very evident, that in descending the river a boat will have less space and time to clear the bridge than to clear the obstruction presented by the defenders' catch-water dyke.

The defenders further maintained that they were not encroaching on the right of the public, even though the piers were to be considered to be an obstruction. They argued that the river had been employed for other uses than that of navigation, and that if a reasonable space was left for the exercise of that right the public had no right to complain though the navigation might be made less convenient than before. They rely on the case of Grant v. Gordon, M. 12,820, where regulations were made for the floating of timber down the Spey, and salmon-fishing by means of cruives.

The Lord Ordinary has not been able to adopt that view. He thinks that the defenders cannot place in the bed of the river any obstruction which materially affects the navigation, and that they cannot appeal to what has hitherto been done as any sanction for such an act. It is to be presumed that the uses to which the river or its bed has been put do not injure the navigation, or if they do, that the public have lost their right to object. But prior encroachments will not, in the opinion of the Lord Ordinary, justify further encroachments.

The case of Grant is a peculiar one. It related to the regulation of two co-existent rights in the river, the one of floating down timber, and the other of salmon-fishing by means of cruives. It had been previously decided that fishing by cruives was a lawful mode of fishing, and it was certain that it had been exercised for time immemorial. It is true that the pursuers alleged that in recent times alterations had been made on the dykes, which impeded the navigation. But with both these co-existent rights the Court could do no more than regulate the possession of both. This does not, in the opinion of the Lord Ordinary, justify the introduction into the bed of the river Leven of a new obstruction to the navigation.

No case was made as to the alleged obstruction of the passage of salmon.”

The defenders reclaimed, and argued—The Leven was not a public river in the sense that a place overflowed by the sea was. The rule against structures in the alveus was limited to places where the sea ebbed and flowed. Here the law of ways applied, and the rights of parties depended upon use. All that the riparian proprietors could assert was a right of servitude of passage. That right must be exercised in the way least burdensome to the servient tenement. It was said that, apart from proof of the fact, the obstructions were illegal. But by reason and principle the bed of the river was the property of the riparian proprietors. There was nothing to subject that right of property to any limitations or restraints. The water covering it did not have that effect. But if it did, mere fitness for navigation was not enough. There would require to be proof of use of the water as a navigable river as a foundation of the right. There was here no proof of such use. Nothing was taken down the loch and river except what was incidental to the places on the banks. The Acts 1690, cap. 33, and 1695, cap. 113, appointing fairs at Tarbet and Luss, established nothing about Loch Lomond, and did not show that it was a public place. The proprietors on the banks were the only people with whom trade was carried on. There had been no public use continuously for forty years. There was, further, no obstruction caused to the navigation, and that being so, by the letter of 14th May 1872 Sir James Colquhoun had consented to what had been done.

The pursuers argued—They were not bound to show that damage was caused by the obstructions. They were entitled to put a stop to any operations in the alveus of the stream. Even if the alveus belonged to the riparian proprietors, they had no right in the matter. The public were proprietors of the surface. It was so settled in Bicket v. Morris, May 20, 1864, 2 Macph. 1082, 4 Macph. (H. of L.) 44. It was there established that ex adverso proprietors can prevent one another from erecting anything on their own half of the stream without qualifying injury. That was because the water was affected, and it was common property. The right of the public in a navigable river like the Leven was similar to their right in a highway. No limit or obstruction could be offered to the width of a road; much less to a river where the navigable stream was always more or less shifty. No engineer could speak with certainty as to what might not be obstructions in such a case. It was impossible to say whether operations might or might not be injurious. But if that were necessary, present injury was proved here.

Authorities— Colquhoun v. Duke of Montrose, Dec. 21. 1793, M. 12,827; Grant v. Gordon, March

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9, 1781, M. 12,820, 2 Pat. (H. of L.) Apps. 582; Duke of Buccleuch v. Cowan, Dec. 21, 1866, 5 Macph. 214; Craig, i. 16, 11; Act 29 and 30 Vict. cap. 62, sec. 7; Erskine's Insts. ii. 6, 17; Bell's Prin. secs. 650 and 651; Macdonell v. Caledonian Canal Commissioners, June 5, 1830, 8 S. 881; Menzies v. Macdonald, March 10, 1854, 16 D. 827; Carron Company v. Ogilvy, March 7, 1806, 5 Pat. (H. of L.) Apps. 61; Acts 1690, cap. 33 and 1695, cap. 113; Thomson's Acts, vol. ix. 184 and 501; Lord Hale, de jure maris, quoted in Hall on the Sea-shore (ed. by Loveland); Angel on Water-courses, 552, 556, 560, 561; Fairlie v. Eglinton, Jan. 26, 1744, M. 12,780; Edmonstone v. Lanark Twist Company, June 27, 1810, Hume's Decns. 520; Bicket v. Morris, May 20, 1864, 2 Macph. 1082, 4 Macph. (H. of L.) 44; Stair's Insts. ii. 1, 5; Woolrych on Rivers, 40; Act 11 Geo. IV. cap. 69, sec. 22. Right-of-Way Cases— Wood v. Robertson, March 9, 1809, F.C.; Galbreath v. Armour, July 11, 1845, 4 Bell's Apps. 374; Thomson v. Murdoch, May 21, 1862, 24 D. 975; Sutherland v. Thomson, Feb. 29, 1876, 3 Rettie 485.

At advising—