Scottish Court of Session Decisions

In the year 1858 John Alexander Gavin Campbell of Glenfalloch, and the then Marquis of Breadalbane, raised a process of suspension and interdict against the late Sir James Colquhoun of Luss, Bart., to have Sir James interdicted from making certain operations upon the banks of the river Falloch, near the mouth of the Arnan or Garabal burn, to which point on that river the steamers of the Loch Lomond Steamboat Company were at that time in use to navigate the Falloch. By a joint-minute of March 16, 1859, the parties to that process intimated that an agreement had been come to by the parties on the matters then in dispute, and the action was taken out of Court accordingly. By that agreement it was provided, inter alia, that Sir James might under certain conditions complete the operations against which interdict was sought, that steamers might under certain conditions navigate the Falloch as far as the mouth of the Arnan or Garabal burn, and might land passengers on the estate of Glenfalloch at a point designated in the agreement. Any damage caused to the lands of Sir James in consequence of the turning of the steamers or the surge of their passage was to be compensated by the steamboat company. By the 7th article of the said agreement it was provided that Sir James Colquhoun should be at full liberty to defend the banks of the river by wattling, ‘or in any other way that does not interfere with the alveus or channel of the river.’ In particular, he was to be at liberty to do so in the parts of the river therein specified, on the condition that Lord Breadalbane, and others interested in the navigation of the Falloch, shall be at liberty to erect and maintain poles or marks along that part of the river, so as to show the navigable channel on occasion of flood. By the eighth article of the said agreement it was provided as follows:—‘Lord Breadalbane, and others interested in the navigation of the Falloch, shall be at liberty, by dredging or otherwise, to remove the sand, gravel, or other debris which may collect in the river, also the bar at the mouth of the river, and in Loch Lomond, so as to preserve the

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free navigation of the river; but no such dredgings to be deposited on the lands of the said Sir James Colquhoun, nor shall any of the machinery connected therewith be placed on such parts of the banks of the river as belong to him, nor any of the individuals employed in such operations be allowed to trespass thereon.’” Within a very few years after the date of this agreement the steamers ceased to ply up the Falloch, and began regularly to use a pier at Ardlui, at the mouth of the Falloch, the property of Sir James Colquhoun. Since that year and up to the date of the present process, the mouth of the Falloch had gradually silted up, and a bar of sand had been gradually formed, and no operations had been performed by Lord Breadalbane under the eighth article (above quoted) of the agreement of 1859 with the view of clearing the channel.

In August 1880 Sir James Colquhoun's trustees began operations with a view of throwing an iron suspension foot-bridge—for the convenience of their tenants, and particularly for children who resided on the side of Falloch, opposite to that on which the public school was built—across the Falloch, at a point 300 yards above the point at which it falls into Loch Lomond. This bridge was of a construction which, if it had been completed, would have prevented the passenger steamers which formerly went up to the Garabal burn from passing up, but which the trustees maintained, and Lord Breadalbane denied, would have permitted the largest of the scows or gabbarts, which for more than seven years had been the only vessels navigating the Falloch, to go up the river. At all events the trustees offered to make their bridge such as would allow any such scow to navigate the river. Lord Breadalbane objected to the erection of any bridge over the Falloch, maintaining that the Falloch was a navigable river, and that therefore nothing ought to be permitted which would impede its being used for all purposes of navigation. He further maintained that the operations proposed were contrary to the good faith of the agreement of 1859.

In these circumstances Lord Breadalbane brought this process of interdict to have the trustees interdicted from the erection of any bridge which would obstruct his right of navigation in the Falloch.

The Lord Ordinary ( Rutherfurd Clark) after a proof granted interdict as craved.

Colquhoun's trustees reclaimed, and argued—What was proposed was to make for the convenience of their tenants a bridge, both piers of which would stand on their own lands, and which would not, as the proof showed, interrupt any vessel of the kind which had for more than seven years been the only kind of vessels passing up the Falloch, or indeed any vessel which could get up the Falloch unless the mouth of the river should be cleared of the sand which had silted it up. The complainer did not even say he meant to execute any such operations. The bridge, therefore, could not stop any navigation of which the river was or was likely to be capable. The evidence showed that this was not a public navigable river.

Authorities— Colqulhoun's Trs. v. Orr Ewing. Jan. 26, 1877, 4 R. 344, and (H. of L.), 4 R. 116.

Answered for Lord Breadalbane—The Falloch was proved to be a public navigable river. It was in the power of Lord Breadalbane at any time to deepen the mouth of the river, and that was contemplated in the agreement of 1859. The respondents were not entitled to do anything which would make the navigation less free than it naturally was.