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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Foote & Co. [1879] ScotLR 16_794 (19 July 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0794.html
Cite as: [1879] ScotLR 16_794, [1879] SLR 16_794
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[Sheriff of Perthshire.
v.
River
Facts:
The right of property in the alveus of a stream belongs to the riparian owners just as any other proprietary right, subject only to the limitation that nothing be done capable of producing an alteration on the interests of other riparian proprietors, who need not qualify or establish actual injury to these interests in order to have any such operation interdicted.
Twenty tons of ancient boulders and stones which interfered with the sweep of the salmon-nets in a river were removed by the tenants of the fishings by means of blasting by dynamite. Held that the opposite riparian proprietor was entitled to interdict against such operations in alveo, which were beyond those of an ordinary character, and were such as might possibly have a permanent or appreciable effect on the current, or might injure the rights and interests of the opposite proprietors.
The pursuer of this action, General Robert Richardson Robertson of Tulliebelton and Ballathie, was heritable proprietor of the lands and estate of Ballathie, and salmon-fishings thereof, situated on the right bank of the Tay. The Baroness Willoughby d'Eresby was proprietrix of the lands and estate of Stobhall, on the left bank of the Tay, opposite the pursuer's lands of Ballathie, and the defenders of the action, Andrew Foote & Company, and the individual partners of that company, were her Ladyship's tenants of the net-fishings ex adverso of Stobhall, one of the principal stations on which fishings was that known by the name of the “Pot Shot.”
The pursuer averred—“(Cond. 4) About three weeks ago the defenders commenced operations on the alveus or bed of the river opposite the Pot Shot. These operations were carried on by means of three or more boats moored on the river and eighteen men. The defenders Alexander Foote, Peter Foote, and Laurence Christie alternately assumed a diving dress and proceeded to the bottom of the river, and there bored large stones and rocks, which were afterwards blown up by means of dynamite or other explosive substance. Chains were then attached to those stones and rocks, which were afterwards, by means of a windlass and platform placed upon two boats, deposited near the Stobhall shore, in the channel of the river.” It was further stated that these operations, though at first confined to the defenders' own side of the river, were afterwards extended to the pursuer's side. “(Cond. 6) The effect of these operations may be very seriously to deteriorate pursuer's salmon-fishings both by net and rod, and to alter, divert, or change the course of said river opposite the pursuer's lands. The defenders have no right to conduct such operations, or to interfere in any manner of way with the alveus or bed of the river at the place mentioned, and the channel of the river ought to be restored to its former condition, so far as that can now be done.” The pursuer therefore brought this action in the Sheriff Court of Perthshire to have the defenders interdicted “from proceeding further with the removal from the alveus or bed of the river Tay, opposite the fishing station called the Pot Shot, tenanted by them, of large stones and rocks, and from interfering in any way with said alveus; and also for an order upon them to restore the alveus to the condition in which it was at the time they commenced the operations after described.”
The defenders admitted “that about the time mentioned they commenced operations to remove stones from the alveus or bed of the river at the ‘Pot Shot,’ and that these operations were carried on by means of boats and men, and that a diving dress was used by the defenders Alexander Foote and Peter Foote, who went to the bottom of the river, where they bored two stones, which were blown up with dynamite. Denied that any rocks were bored or blasted.” They stated that the result of their operations was to permit the river to
_________________ Footnote _________________
* Decided 16th July.
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The Sheriff-Substitute ( Barclay) assoilzied the defenders from the conclusions of the action, but on appeal the Sheriff ( Lee) pronounced an interlocutor recalling the Sheriff-Substitute's interlocutor and finding as matter of fact—“ First, In and about the month of June 1878 the defenders, as lessees of the salmon-fishings in the river Tay ex adverso of the estate of Stobhall, belonging to the Baroness Willoughby d'Eresby, were carrying on in the bed of the said river, at the place known as the ‘Pot Shot,’ certain operations for the removal therefrom of boulders and fragments of rock, in order to improve their fishings at said station: Second, The said boulders and fragments of rock were of large size, and had formed part of the bed of the river at that place from time immemorial, at least for many years prior to the date of the defenders' lease; and the salmon-fishings occupied by the defenders are not proved to have been exercised at any time free from the presence of the said boulders and fragments of rock: Third, The operations in question were conducted from boats moored together in the river, so as to form a platform; and consisted in sending a diver therefrom to work at said boulders or fragments of rock, to the effect of blowing them up by means of dynamite, after which the pieces were lifted by mechanical power on to the platform, and deposited near the side of the river, at a point marked C on the Ordnance plan produced: Fourth, The said operations were prejudicial to the interests of the pursuer as proprietor of the salmon-fishings ex adverso of his lands of Ballathie on the opposite side of the river, and the defenders have failed to prove that said operations were necessary to the proper working of the fishings leased by them, or that there is any custom on the river Tay permitting the use of such means for the improvement of a fishing station.” And also finding, “in point of law, that the operations complained of are an illegal and unwarrantable interference on the part of the defenders with the alveus or bed of the river: Therefore repels the defences, and decerns in terms of the conclusions for interdict: Quoad ultra, in respect that it is impossible now to give effect to the conclusions for restoration, dismisses the petition and decerns, reserving to the pursuer all other claims competent to him in the premises, and to the defenders their answers as accords,” &c.
“ Note.—The defenders in this case are tenants under the Baroness Willoughby d'Eresby of what are known as the Stobhall salmon-fishings in the river Tay. These fishings are ex adverso of the lands belonging to the Baroness, which are situated on the left bank of the river, and in the parish of Cargill. The lands on the opposite or west side of the river are in the parish of Kinclaven, and form part of the estate of Ballathie, belonging to the pursuer General Richardson Robertson, who admittedly has right to the salmon-fishings ex adverso of his property. It appears that in or about the month of June 1878 the defenders commenced certain operations for the removal of boulders and stones from the alveus or bed of the river, at what is called the ‘Pot Shot,’ belonging to the Baroness, being a fishing station wrought from the Stobhall side of the river, and further down the river than the ‘Ballathie Shot’ belonging to the pursuer, and wrought from his side of the river. It is proved that the stones which formed the subject of these operations were, if not part of the solid rock, large boulders and fragments of rock which have formed part of the bed of the river past the memory of man. Two of them were pieces of rock described as being like lintels, and of the same formation as the rock at that part of the river. Andrew Foote (a defender) speaks of them as having been known for forty-five years. Others appear to have been boulders of crystalline limestone, three to five tons in weight, deposited in the bed of the river at some remote period.
The operations in question Were conducted from boats moored together in the river, so as to form a platform from which a diver was enabled to work at the stones to the effect of blowing them up by means of dynamite, after which the fragments were lifted with a crane or other mechanical power, and deposited near the defenders' side of the river, at a point (C on the plan) where they are said to interfere materially with the rod-fishing, which is by a usual arrangement carried on by the proprietors or their tenants on alternate days over the whole river, irrespective of sides, instead of being exercised by each on every day of the week ex adverso of his own side only.
The defenders' operations had been begun without the consent of the pursuer, and they were carried on until interrupted by the interim interdict granted in this case on 29th June 1878. They are objected to as being an illegal interference with the alveus or bed of the river, and to some extent (particularly as regards the stone marked D on plan) as having been carried on upon the pursuer's side of the medium filum of the river.
It is contended for the defenders—(1) That their operations are necessary for the proper working of the fishings occupied by them; (2) That the custom and practice of the river Tay sanctions such operations; and (3) That the pursuer's allegations of damage to his fishings, and as to the position of the stone D, are ill-founded in fact. The defenders do not allege that they had any express authority for such operations from the Baroness Willoughby d'Eresby, and they do not plead that her Ladyship ought to be called as an interested party.
In the opinion of the Sheriff the pursuer has established a sufficient interest and title to object to the operations in question, and it is incumbent on the defenders to justify them. He thinks that the removal of these boulders and stones, and the deposit of the fragments at the point C, is clearly proved to be prejudicial to the pursuer's fishing rights. He also holds it proved that in the removal of the stone D the defenders' boats were moored on the Ballathie side of the centre of the river, and their operations were not confined to
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It was assumed that restoration was the measure of Lord Wemyss' right; and Lord Anderson in repelling the defenders' objections to the action was careful to distinguish between repairs rendered necessary by winter floods bringing down stones and gravel, and operations of a novel character upon the bed of the stream. These he referred to as deserving severe scrutiny. It was not contended that they could lawfully be undertaken by a riparian proprietor at his own hand. The position of the defenders in this case is in remarkable contrast with that of Lord Wemyss in seeking authority to restore the ‘Upper Mary.’ They have asked no authority for their operations, but have assumed the right of altering the bed of the river, and of deciding for themselves what operations are necessary or reasonable and proper in the fair prosecution of their fishings. They have claimed the right of breaking-up and taking out of the river that which has formed part of its bed from time immemorial, and of doing so, free from any supervision or control, by means of a fixed platform, and of artificial appliances of recent introduction. It appears to the Sheriff that the onus of justifying such a course of proceeding lies upon the defenders.
The question therefore comes to be, Whether the defenders have succeeded in showing that the operations in question were either necessary or sanctioned by practice as being within the fair and reasonable exercise of a right of fishing ex adverso of one bank of the river. The Sheriff has carefully gone over the proof, and has found it impossible to avoid the conclusion that the defenders have failed in both points. The fishing at the Pot Shot appears to have been carried on from time immemorial notwithstanding the presence of these boulders and fragments of rock; and although the removal of them will undoubtedly tend to lengthen and improve that shot, and may even make it into a different station altogether, it is not possible to say that such removal is necessary for the proper working of the fishings of which the defenders hold a lease. The defenders are not entitled in working their fishings to alter the bed of the river to suit their own convenience or their views as to the best mode of working them. It was admitted that they were not entitled at their own hands to remove a piece of the rock, however inconveniently situated for their nets; and it appears to the Sheriff that the blowing up of boulders and fragments of rock fixed into the bed of the river, or which are known to have formed a part of the permanent bed of the river at that place, and are not alleged to have been brought down by any recent flood, is equally beyond a fishing proprietor's rights in the fair prosecution of his fishings. At least it is equally indefensible on the plea of necessity.
With regard to the alleged custom and practice of the river Tay, it is sufficient to observe that the defenders have failed to prove any custom or practice which would at all justify that which has been here attempted. The removal of stones by the Tay Navigation Commissioners under their Act of Parliament is of no application, nor is any evidence by Mr Galletly or others as to removal of stones below the bridge, where the river bed is under the superintendence of these Commissioners. And as to such instances as those mentioned by Andrew Foote, even if none of them had been interdicted, they are quite insufficient to establish a practice or custom capable of binding the lieges as a part of the law of property. Some reasonable latitude will always be allowed in the bona fide clearing away of obstructions brought down by the floods of the previous winter. Roots of trees and stones may perhaps be allowed to lie for some years, in the hope that the floods of another winter may carry them away. It will not follow that they therefore become irremoveable by the proprietor interested in the fishings. So long as removal can be shown to be a mere repair for restoring the river to its ordinary condition, such removal may probably be allowable under proper conditions. But it is quite another thing for fishing tenants like the defenders to take upon themselves the removal, by such means as were used in the present case, of boulders which, so far as appears, have always formed a part of the bed of the river. It is vain to say that the removal of these will make no alteration in the flow of the river. The nature of the thing done must prove to anyone who has seen a river in different states of the water that a change more or less material must be produced. Besides, if fishing tenants are to be allowed to carry on such operations at their own hand in the case of ancient boulders and fragments of rock which have formed a part of the river bed for many years before they acquired their temporary right of fishing, and upon the plea that the river will not be materially altered, and that they will improve the fishings, where is the alleged right of alteration and improvement to end? On what principle could they be prevented removing a portion of the solid rock? The only safe principle as regards operations
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On these grounds the Sheriff has held that the defenders' operations are an illegal and unwarrantable interference with the bed of the river, and has granted interdict. It appears to him that, in any view, such alterations should not have been attempted in the summary and arbitrary manner adopted by the defenders.
The conclusions for restoration are, however, clearly inoperative. Restoration is, in the circumstances impossible. The pursuer will have it in his power to compel the removal of the stones deposited at the point C, if they are not removed voluntarily. At least his claims, both as to that matter and any other remedy which he may be advised to seek, are reserved entire.”
The defenders appealed, and argued—Their position was that of their landlord, and the nature of the fishing must be considered. They had not interfered with the rock, and only blasted away two boulders not attached to the rock in any sense. The evidence as to the use of nets showed the necessity for what had been done. The pursuer had not shown what injury had actually been done to him, and he must establish injury if he was to prevail. The practice had been to remove boulders from the bed of the Tay, and they had only been doing what had been done before, what was quite legal, and what was an operation in the ordinary sense falling within their rights.
Authorities— West v. Aberdeen Harbour Commissioners, Dec. 8, 1876, 4 R. 207 (and Lord President there); Duke of Sutherland v. Sir C. Ross, May 26, 1877, 4 R. 765 (and Lord Gifford there), and 5 R. (H L.) 137.
Replied for the respondent—He enjoyed a double capacity, for he was at once proprietor of the salmon-fishings and of the alveus. The alveus did not belong to the appellants beyond the medium filum. There was much injury done to them by this operation, for with a stream like the Tay a large and permanent change in the stream might be caused by such proceedings. This was not the case of removing small-sized stones, but two huge boulders were destroyed by the use of dynamite. There would be no limit to such proceedings unless this were stopped. The right to the bed of the river was in the riparian proprietors just as any other portion of their property, subject of course to certain obligations as regarded it.
Authorities— Duke of Roxburghe v. Waldie's Trustees, Feb. 18, 1879, 16 Scot. Law Rep. 364; Orr Ewing v. Colquhoun's Trustees, July 30, 1877, 4 Macph. (H. of L.) 116; Bickett v. Morris, May 20, 1864, 2 Macph. 1082, 4 Macph. (H. of L.) 44; Jackson's Trustees v. Marshall, July 4, 1872, 10 Macph. 913, L.R., 1 Sc. App. 47; Mather v. M'Brair, March 14, 1873, 11 Macph. 522 (and Lord Deas there). Cf. also Stuart v. M'Barnet, March 30, 1867, 5 Macph. 753, 6 Macph. (H. of L.) 123; Lord Advocate v. Lord Lovat, March 7, 1879, 16 Scot. Law Rep. 418; Duke of Richmond v. Earl of Seafield, Feb. 16, 1870, 8 Macph. 530 (Lord Justice-Clerk there).
At advising—
The case originated in the Sheriff Court at Perth by a petition at the instance of General Richardson Robertson, the pursuer, praying that the defenders Messrs Andrew Foote & Company should be interdicted “from proceeding further with the removal from the alveus or bed of the river Tay opposite the fishing station called the Pot Shot, tenanted by them, of large stones and rocks, and from interfering in any way with said alveus.” The petition also prays that the defenders should be ordained to restore the alveus to the condition in which it was at the time they commenced their operations.
The pursuer General Robertson is proprietor of the lands called Ballathie, on the right bank of the river Tay, directly opposite to the Pot Shot, which is on the left bank, and belongs in property to the Baroness d'Eresby. The pursuer is also proprietor of the salmon-fishings in the Tay ex adverso of his lands of Ballathie; and the Baroness d'Eresby is proprietor of the salmon—fishings ex adverso of her lands on the opposite side, and they are tenanted under her by the defenders. It is of importance that it should be kept in view that the parties are entitled to exercise the rights of fishing over and across the whole breadth of the river, although it is not and cannot be disputed that the solum or alveus ad medium filum fluminis belongs to them respectively, not however to use it as they please, but subject to the restrictions afterwards noticed.
It was in this position of matters that the defenders without the leave of the pursuer, either asked or given—without even notice to him or judicial authority—commenced and carried on the operations complained of. And it is admitted on the part of the defenders that they in or about June 1878 “commenced operations to remove stones from the alveus or bed of the river at the ‘Pot Shot,’ and that these operations were carried on by means of boats and men, and that a diving dress was used by the defenders Alexander Foote and Peter Foote, who went to the bottom of the river, where they bored two stones, which were blown up with dynamite.” This admission might be of itself enough to justify the pursuer's applying for an interdict, but the proof shows that the defenders' operations were much more extensive—that upwards of twenty tons weight in boulders and stones had been removed by the defenders from the alveus of the river before the interdict was applied for. Not only so, but the defenders in place of their acknowledging that they were wrong, and engaging to abstain from such operations in future,
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(1) In regard to the first of these grounds of defence, I may remark that it is not, I think, proved that the defenders' operations were wholly on their side of the medium filum. On the contrary, I rather think that it must be taken as proved that one at least of the large stones which the defenders removed by blasting was on the pursuer's side of the medium filum. But whether it was so or not is really of little or no consequence according to my understanding of the nature and effect of the principles laid down in the case of Bickett v. Morris, 2 Macph. 1082, and affirmed by the House of Lords, 1 Sc. App. 47—principles which were adopted and followed in the subsequent cases of Jackson and Others v. Marshall, 10 Macph. 913, and the Duke of Roxburghe v. Darby Griffith's Trustees, 16 Scot. Law Rep. 364. According to these principles I take it to be conclusively settled that although the solum or alveus of a private river belongs in severalty to the two riparian proprietors betwixt whose properties the river flows, the share of each extending usque ad medium filum aquœ, there is no such property in the water itself, except in so far as each proprietor has actually taken it for a legitimate use. The two riparian proprietors between whose estates the river flows—and it may be also the upper and lower proprietors—have a common interest in the stream which entitles each of them to prevent anything being done whereby the regular and natural flow or course of the water may be altered or affected. From this it necessarily follows that a riparian proprietor is also entitled to insist that nothing shall be done even in alveo, whether on the one side or other of the medium filum, whereby the regular and natural flow of the water may be altered or materially affected. This principle was, I think, recognised and given effect to in all the cases I have referred to, and especially in the case of Bickett v. Morris as ultimately decided in the House of Lords. The Lord Chancellor makes this very clear when he states (p. 55)—“The proprietors upon the opposite banks of a river have a common interest in the stream, and although each has a property in the alveus from his own side to the medium filum fluminis, neither is entitled to use the alveus in such a way as to interfere with the natural flow of the water.” Lord Cranworth again observes (p. 59) that riparian proprietors are allowed to say—“We have a common interest in the unrestricted flow of the water, and we forbid any interference with it.” “This,” he adds, “is a plain intelligible rule easily understood, and easily followed, and from which I think your Lordships ought not to allow any departure.” And Lord Westbury made statements to a similar effect; and in particular he observed (p. 61)—“When, however, it is said that the proprietors of the bank of a running stream are entitled to the bed of the stream as their property usque ad medium filum, it does not by any means follow that that property is capable of being used in the ordinary way in which so much land uncovered with water might be used; but it must be used in such a manner as not to affect the interests of riparian proprietors in the stream.” It is true that the case of Bickett v. Morris, and the other cases to which I have referred, relate to erections or obstructions in alveo, and not to the removal of boulders, stones, or other materials from the alveus. But I cannot see how that can make any difference in principle, as I assume at present that the effect on the stream is the same—that is to say, that the effect in the one case and in the other is to alter the natural and ordinary flow or current of the stream. Accordingly, it is impossible, I think, to read the opinions of the noble and learned Lords who took part in the judgment in Bickett v. Morris without seeing that they recognised no such distinction as that just noticed.
(2) The defenders, however, maintained that their operations were not only on their own side of the medium filum, but also that they were in no respect injurious to the pursuer. In regard to the facts upon which this plea is founded, the evidence, I must own, is not uniform, but to some extent conflicting. The broad fact, however, that upwards of twenty tons weight of boulders and stones have been removed from the alveus by the defenders, and that to enable them to do so they were obliged to resort to diving, boring, and blasting by dynamite is undoubted. Now, it is difficult to understand how such operations could take place without altering and interfering with the regular and natural flow of the river. It is only reasonable, I think, to infer that they did. But the matter is not left to inference merely. The pursuer's witnesses—and many of them are quite positive and distinct in their statements—say that the defenders' operations were and must have been injurious to the pursuer, particularly as regards his rod-fishing. Looking, then, at the whole proof, I cannot doubt that enough has been established to show that the operations complained of were of such a character as to warrant the interdict which the pursuer applied for and obtained. It was laid down in Bickett v. Morris that it is not necessary for a party complaining of operations in alveo to show that injury has been actually sustained, or even that it is imminent. The Lord Chancellor (p. 55) after noticing the opinions of the Judges in this Court on the point, to the effect that no proprietor is entitled to encroach upon the alveus of a running stream, and in particular the opinion of Lord Benholme, that no human being can with certainty know what the effect of an encroachment may be, and that when it is done it must be taken to be injurious whether damage can be qualified or not, and the opinion of Lord Neaves that the idea of compelling a party to define how an encroachment will operate upon him or what damage or injury it will produce could not be supported, goes on to say—“These views appear to me to be perfectly sound in principle, and to be supported by authority.” Lord Cranworth expressed himself much to the same effect, and Lord Westbury (p. 62) concluded his observations in the case by saying—“It is wise, therefore, to lay down the general rule that even though immediate damage cannot be described, even though the actual loss cannot be predicted, yet if an obstruction be made to the current of the
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(3) The only other plea which seems to be relied upon by the defenders was what they called the practice or custom of removing stones and boulders from the river Tay. But first, it does not appear to me that any such practice or custom has been shown to exist. That in some instances in the course of many years proprietors or their tenants on the banks of the Tay, as probably on the banks of other rivers, may have done what they had no right to do, is very likely; but that can never be held to justify what is ex hypothesi illegal. It may well be doubted whether any practice or custom, however general and well established, could do so. But be that as it may, I am very clear that no such general practice or custom has been established in the present case. So far from that being so, it is proved by the defenders themselves that in one instance at least the alleged practice was interdicted.
While, therefore, on the grounds I have now stated, and having regard to the authorities I have referred to, I am of opinion that the judgment of the Sheriff-Principal appealed against is right and ought to be affirmed, I am not to be understood as holding that a proprietor is not entitled munire ripam, or to remove boulders, stones, logs of wood, or other obstructions temporarily arising in the river by a flood or other circumstances, so as to restore the channel or alveus to its natural condition. Neither am I to be understood as holding that every trivial or immaterial interference with the alveus, which can do no harm to anyone, will be a sufficient warrant for an interdict. In regard to that part of the pursuer's petition which prays that the defenders should be ordained to restore matters to the condition in which they were before they commenced the operations complained of, I may observe that it was not insisted in, for the reason, as observed by the Sheriff-Principal, that restoration could not now be effected.
The chief difficulty which I feel in the case is rather a difficulty in point of fact than one in point of law. It appears to me that the law applicable to a case of this nature is sufficiently fixed by the decisions referred to at the bar, and in particular by the judgments both of this Court and of the House of Lords in the case of Bickett v. Morris. In a private river, although the property of the alveus—that is, of the solum of the alveus—is divided between the proprietors of the respective banks, each being proprietor of one-half of the alveus adjoining his own property and up to the medium filum of the stream, yet neither proprietor is entitled to appropriate by building or otherwise, or materially to interfere with, even his own half of the alveus without the consent of the opposite proprietor, and the opposite proprietor objecting to any proposed operations in alveo is not bound to show that damage will result to his property from these operations. It is enough if there be any risk or possibility of injury, even in exceptional or rare states of the river. This was the special point decided in Bickett v. Morris, and Lord Westbury in giving judgment states that it is the first decision “establishing the important principle that a material encroachment upon the alveus of a running stream may be complained of by an adjacent or an ex adverso proprietor without the necessity of proving either that damage has been sustained or that it is likely to be sustained from that cause.” His Lordship observes—“The examination that has been given at the bar to the cases cited upon that point of law certainly had led me to the conclusion that it has not yet been clearly established by decisions.
I have felt much difficulty upon it, because undoubtedly a proposition of that nature is somewhat at variance with the principles and rules established on the subject by the civil law. I am, however, convinced that the proposition as it has been laid down in the Court below, and as it has received the sanction of your Lordships in your judgments, is one that is founded in good sense, and ought to be established as matter of law.”
While, therefore, I hold it fixed law that there must be no material interference with any part of the alveus of a river, still if it could be clearly and indubitably shown that the operation of a proprietor in his own half of the alveus was so trifling in its nature or so evanescent in its endurance that it could not possibly have any permanent or appreciable effect on the current, and could not possibly injure in any way whatever the rights and interests of the opposite proprietor, I do not think that the judgment in Bickett v. Morris, or that any of the other judgments, would extend to such a case. I think there must always be at least the possibility of injury to the opposite proprietor, and if such injury is shown to be impossible (and the onus of showing this will always rest on the party who is doing anything in alveo), then as I read the cases the general right of a proprietor to use his own property would apply.
A very good example of this occurs in the present case, for I think it is shown that when the salmon-nets got entangled with a loose stone in alveo the practice on both sides of the river, and by all parties, was to pull such stone to the shore by means of the net or otherwise, so as to prevent a similar accident from occurring again. So long as this practice was confined to small stones no complaint has been made, and I think no such complaint could be made. The removal of such
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It is just here, however, that the appellants' case I think fails upon the facts. In the first place, the boulders removed were of very considerable size. Upwards of twenty tons have been taken out of the alveus of the river, and placed elsewhere, and although the abstraction of twenty tons of stone may not involve very large cubic contents, it is impossible to say that the effect may not be quite appreciable upon the current, or even serious, especially if loose sand or gravel is uncovered or left unprotected, which the current may then wash away. It is impossible to say where the alteration may end. Then the operation itself was a most formidable one. It was done by divers, by boring, blast, or shot-holes, and by blasting with dynamite, and it must have occasioned considerable disturbance in the old bed of the stream. In the next place, it is left doubtful whether one at least of the boulders removed was not on the opposite side of the medium filum from the appellants' bank, and thus not on the property of the appellants or their landlord at all; it was at least very near the centre of the river. And then lastly—and I cannot help attaching some importance to this—the operations complained of were performed at the appellants' own hand, without judicial authority, without notice to the respondents, and without giving the respondents any opportunity, by preliminary survey or otherwise, of ascertaining or estimating the probable consequences, or even of ascertaining exactly what has been done. After the boulders are blasted and their fragments removed, it is impossible with any precision to ascertain the original state of matters in the subaqueous alveus of the stream.
On the whole, therefore, I think the safe course is that adopted by the Sheriff, and that is to stop by interdict any further proceedings of the same nature. To refuse the interdict would be virtually to declare that the appellants may go on and do in future as they have done in the past, and I cannot tell to what lengths they might go. I think the very least that can be required is that the appellants must obtain precedent—judicial authority—before any operations are undertaken at all similar to those complained of. This is only fair to the opposite proprietor, and it will then be seen before any mischief is done whether there is any possibility of injury being suffered. Blasting rocks in alveus is an operation which cannot be undone. The blasted rocks cannot be replaced, and this is a sufficient reason for requiring judicial sanction, and for the previous hearing of both parties. I do not say that serious injury or any injury at all has been done by the removal of the boulders which has been already effected. That question, in the form of damages or possible reparation, is not before us, but I think I am entitled to say that such removal might very possibly cause injurious effects, and therefore should not be allowed, at least without very careful previous investigation.
It is quite another matter what operations will and what will not infer an interference with the interests of other riparian proprietors; but if there be no such interests interfered with, the right may be enjoyed as an ordinary right of property. It would have been hardly necessary to express the nature of this right were it not that in the argument some expressions falling from the Court and the House of Lords have been construed to imply that operations on the channel of a river are beyond the title of a riparian proprietor, apart altogether from present or possible interference with the collateral rights of others. I think this a misapprehension of the decisions in question, and that it would lead to very erroneous results. These cases all proceeded on the principles to which I have referred. In the case of the Duke of Roxburghe we held that one riparian proprietor was not entitled to dam-up and restrain the current of the water in a question with the owner of the opposite bank having a joint right of salmon-fishing. In the case of Jackson v. Marshall we held that a proprietor could not protect his own property by embankment
Page: 801↓
But all these cases simply show that if the operation on the channel of the stream be material and capable of producing an alteration on the interests of other riparian proprietors, it is not necessary to qualify or establish actual injury. When, however, these cases are carried further, to the effect that apart from injury to others such operations are beyond the title of the riparian proprietor, we are led into legal results contrary to well-established principles. It would follow that when a proprietor is owner of both sides of the stream for a considerable extent he can neither add to or take from or alter the alveus of the stream within his own land. But this is manifestly at variance with everyday practice. A man may embank his own land to protect it against floods if the only land affected is his own; and a lower proprietor whose property lay two miles down could not be heard to interfere with him. A similar state of matters exists as to making reservoirs and so forth. Nay more, a proprietor in these circumstances may divert the course of a stream within his own land subject to the same restriction. Now, if it were true that it is beyond the title of a riparian proprietor to interfere with the alveus of a stream, this could not be the case.
It may be, I think, laid down as a general principle that the ownership of the alveus is in the riparian proprietors, subject only to one limitation, and that is the interest of other proprietors who may be affected by anything done in or to the channel of the stream. Of course the probability of injury to the interests of others is very largely increased where the proprietor who undertakes operations in alveo only owns one bank of the river, or where upper owners enjoy further down stream and beyond the marches of their own lands such a right as salmon-fishing only.
Now, as to the present question with reference to these two boulders, it was quite legitimate to remove them in order to give proper facilities for fishing; that is clear, provided no one else was injured. It appears, however, that these boulders formed an old part of the alveus, and that truly their removal merely had for its object the prevention of the net catching as it was being drawn, to the loss of the fishermen. Now, such a removal has been effected without doing any harm, and therefore we may assume that it is possible, and especially in the case of smaller and more recent boulders quite legal. The case then is much narrowed. But in the present instance the exercise of the right is not one of an ordinary but of an extraordinary character. While it is true that the Tay is daily, almost hourly, changing its bed—while these boulders might at one time have been projecting as they were to the extent of three feet or so, and at another time be flush with the bed of the stream—while it is also true that other boulders may come down in place of those removed—the question still remains, whether your Lordships would be justified in permitting such operations as have here taken place? If so, why is there to be any prohibition as to the blasting of solid rock or the removal of waterfalls? Are they also to be subjected to the action of dynamite? I do not think we can adopt such a view. This case appears to me to go beyond the bare enjoyment of an ordinary right, and to partake of the nature of an extraordinary operation. I am accordingly in favour of adhering.
The Court adhered.
Counsel for Pursuer (Respondent)— Balfour— Murray. Agents— Tods, Murray, & Jamieson, W. S.
Counsel for Defenders (Appellants)— Trayner— Johnston. Agents— Begg & Murray, Solicitors.