Scottish Court of Session Decisions

By decree of the House of Lords, pronounced in 1871, affirming the decisions of the Court of Session in a process of suspension and interdict at the instance of Lord Blantyre, and also in a process of declarator, it was determined that Lord Blantyre was not entitled to interdict the Clyde Navigation Trustees from conducting operations for deepening the river within the limits prescribed by the Act of Parliament, by dredging or otherwise, and carrying out to sea the soil taken from the river. By a subsequent decree of the House of Lords, pronounced in 1879, affirming the decision of the Court of Session in another action of declarator at the instance of Lord Blantyre and the Master of Blantyre, it was declared that they were “proprietors of the foreshores of the river Clyde ex adverso of the” lands belonging to them on both banks of the river Clyde, “but subject always to any rights of navigation, or any rights which the public may have over the same, and subject also to any rights conferred upon the Trustees of the Clyde Navigation by their Act of Parliament.” Thereafter in a process of suspension and interdict brought by Lord Blantyre and the Master of Blantyre against the Clyde Trustees to have them interdicted from removing soil, ground, or other matter from a part of the bed of the river opposite the barony of Erskine, being part of the foreshore which had been declared to be their property in the previous action, the House of Lords, by a judgment pronounced in 1881 (affirming the decision of the Court of Session), refused the interdict craved

On 11th May 1882 Lord Blantyre caused to be served upon the Trustees of the Clyde Navigation a claim in the following terms:—“… The Trustees of the Clyde Navigation, incorporated by the Clyde Navigation Consolidation Act 1858, and their predecessors the Clyde Trustees, have, under and in virtue of their various Acts of Parliament, conducted and carried on extensive operations by the erection of jetties or transverse dykes extending out from the banks

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of the river, of connecting-dykes or training-walls extending in and along the river in front of the said lands, the deepening of the river-bed or channel, the narrowing, diverting, and strengthening the currents of the river, and the keeping the navigable channel of the river in a particular artificially limited and defined channel, and other works and operations.

“In consequence of said operations, and other operations under their various Acts of Parliament, large portions of the claimant's lands of Erskine, Bishopton, North Barr, Kilpatrick and Dalnottar, and of the lands of Glenarbuck liferented by the claimant, adjoining the river, have been taken, used, undermined, wasted, and washed or carried away, and his remaining lands have been injuriously affected by or in consequence of the operations of the Trustees before referred to.

For the damage sustained by him by or in consequence of the operations of the Trustees, and in respect of land taken, used, undermined, wasted, and washed or carried away from the estates of Erskine, Bishopton, North Barr, Kilpatrick, and Dalnottar, and from the lands of Glenarbuck, of which the claimant is liferenter, and for his remaining lands injuriously affected by or in consequence of the operations of the Trustees before referred to, the claimant claims One hundred thousand pounds.

First, The claimant makes the foregoing claim under reservation and without prejudice to his claims for the damage sustained to the east and west ferries of Erskine, both belonging to the claimant, and to have compensation for past and future injury done and to be done to the same, and to have works executed for the improvement of said ferries, all of which claims are hereby expressly reserved.

Second, All claims for accommodation works for the claimant's estates, and for the lands of Glenarbuck and accesses to the river Clyde from the said lands, either under the provisions of the Trustees' Acts of Parliament or otherwise, are also hereby expressly reserved.

In the event of this claim not being agreed to, the claimant desires and requires that the same be settled by arbitration in the manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, and in that event he also reserves his right to amend and increase his claim.

The claimant further reserves to himself all rights, powers, and privileges competent to him under the Trustees' Acts, or any of them, and under all general Acts incorporated therewith, passed or to be passed, and at common law.”

This was a note of suspension and interdict presented by the Clyde Trustees to have Lord Blantyre interdicted from following out or taking any further procedure upon the said claim, and from taking any further steps, whether under the Lands Clauses Consolidation (Scotland) Act 1845 or otherwise, for having his claim for compensation settled by arbitration.

The complainers averred that the whole works undertaken and executed by them and their predecessors had been carried out in strict accordance with, and in obedience to, the provisions of the various statutes relating to the improvement of the navigation of the Clyde.

They further averred—“None of the Clyde Navigation Statutes confer upon the respondent any right to claim compensation in respect of the operations which by said statutes the complainers are authorised to perform, nor do said statutes warrant the complainers in applying their statutory funds in payment of compensation claimed on the grounds set forth by the respondent in said claim. Said operations being conducted for the purpose of improving the navigation of the river by deepening and removing obstructions from the river-bed, do not require, nor indeed admit of, appropriation by the complainers of the solum of the ground on which the operations are executed.”

There were numerous Clyde Navigation Acts prior to the Act of 1858 (21 and 22 Vict. c. cxlix.), but by that Act the earlier statutes (which were all recited in the preamble) were repealed, “subject to the provisions of this Act.” By section 44 thereof it was enacted:—“Notwithstanding the repeal of the recited Acts, and except only as is by this Act otherwise expressly provided, everything done or suffered under the recited Acts shall be as valid as if the same were not repealed, and the repeal thereof and this Act respectively shall accordingly be subject and without prejudice to everything so done or suffered, and to all rights, liabilities, claims, and demands, both present and future, which if the recited Acts were not repealed and this Act were not passed would be incident to or consequent on any and everything so done or suffered.”…

Section 76—“Subject to the provisions of this Act, and of any agreements authorised or confirmed by the recited Acts or this Act, and to the provisions and declarations of any conveyance granted to the Clyde Trustees, the undertaking of the Trustees shall, in terms of the recited Acts, consist of the deepening, straightening, enlarging, widening or confining, dredging, scouring, improving, and cleansing the river and harbour until a depth of at least seventeen feet at neap tides has been attained in every part thereof; the altering, directing, or making the channel of the river through any land, soil, or ground part of the present or former course or bed of the river, the forming and erecting on both sides of the river of such jetties, banks, walls, sluices, and works, and such fences for making, securing, continuing, and maintaining the channel of the river within proper bounds as the Trustees shall think necessary; the digging or cutting the soil or banks of the river or bed thereof, and laying the same upon the most convenient banks of the river; the cleansing, scouring, and opening any other streams, brooks, or watercourses which now fall into the river, and the digging and cutting the banks of the same for improving the navigation of the river; the digging, cutting, removing, and carrying away and using such earth, gravel, stones, and other materials in, upon, or out of the said land, soil, or ground as the Trustees shall think fit, either for improving the navigable channel of the river, or for bringing in any other streams, brooks, or water-courses to the river, or for bringing up a greater quantity of tidal water in the river; the erection, repair, and maintenance of wharfs …. and all other works and improvements shown and described in the several plans and sections referred to in the recited Acts, and thereby authorised to be made and maintained; and the repair,

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maintenance, and improvement of the whole of the said works from time to time as may be found necessary or expedient; and subject to the provisions of this Act and the Acts herewith incorporated, the Trustees are hereby authorised and empowered to carry on and complete the whole or such and so many of the said works as to them from time to time shall seem expedient, reserving always to the proprietors of lands adjacent to the river all rights to soil acquired from the river and other rights competent to them at common law, without prejudice to the terms of the 19th section of the 5th recited Act [the Clyde Navigation Act of 1840] as saved by this Act.”

Section 4—“The Lands Clauses Consolidation (Scotland) Act 1845 is hereby incorporated with this Act, and shall apply to the undertaking hereinafter described, provided that the powers under the said Lands Clauses Consolidation Act and this Act of taking land otherwise than by agreement shall be exercised only for the purposes of the works specially authorised by the last-recited Act [an Act of 1857 continuing and renewing the powers of the Clyde Trustees], and during the period therein specified.”

Section 6—“The Harbours, Docks, and Piers Clauses Act 1847, so far as not altered by this Act, is hereby incorporated with this Act, and shall apply to the river and harbour and the whole undertaking of the Trustees as hereinafter defined,” with certain exceptions not material to the present case.

Section 6 of the Harbours, Docks, and Piers Clauses Act 1847 (10 and 11 Vict. c. 27) provides—“The undertakers shall make to the owners and occupiers of, and all other parties interested in, any lands taken or used for the purposes of this or the special Act, or injuriously affected by the construction of the works thereby authorised, full compensation for the value of the lands so taken or used, and for all damages sustained by such owners, occupiers, and other parties by reason of the exercise as regards such lands of the powers vested in the undertakers by this or the special Act, or any Act incorporated therewith, and, except where otherwise provided by this or the special Act, the amount of such compensation shall be ascertained and determined in the manner provided by the said Lands Clauses Consolidation Acts for determining questions of compensation with regard to lands purchased or taken under the provisions thereof, and all the provisions of the last-mentioned Acts shall be applicable to determining the amount of any such compensation, and to enforce the payment or other satisfaction thereof.”

The complainers pleaded—“The whole operations of the complainers and their predecessors having been authorised by and executed in accordance with the provisions of the statutes, the respondent has no valid claim for compensation in respect thereof, and the complainers are entitled to interdict as craved.”

On 3d November 1882 the Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Recals the interim interdict, and refuses the note of suspension and interdict, and decerns: Finds the complainers liable in expenses: Allows an account, &c.

Opinion.—The complainers the Clyde Navigation Trustees seek to have the respondent Lord Blantyre interdicted from following out or taking any further procedure upon a notice or intimation of claim which he has served upon them claiming compensation under the Lands Clauses Act for damage alleged to have been caused to his lands by operations carried on by them under their various Acts of Parliament.

The claim alleges that in consequence of their operations in ‘deepening of the river bed or channel, the narrowing, diverting, and strengthening the currents of the river, and the keeping the navigable channel of the river in a particular, artificially limited, and defined channel, and other works and operations, large portions of the claimant's lands of Erskine, Bishopton, North Barr, Kilpatrick, and Dalnottar, and of the lands of Glenarbuck liferented by the claimant, adjoining the river, have been taken, used, undermined, wasted, and washed or carried away, and his remaining lands have been injuriously affected.’

The complainers' plea-in-law is not very aptly framed for raising the point which they maintain against the respondent. They plead that ‘the whole operations of the complainers and their predecessors having been authorised by and executed in accordance with the provisions of the statutes, the respondent has no valid claim for compensation in respect thereof, and the complainers are entitled to interdict as craved.’ But that is the basis of the respondent's claim. He is not seeking to recover damages at common law as for a wrong done to him, but seeking compensation under the Lands Clauses Consolidation Act for the consequences of operations which he alleges to have been performed in the execution of the Act of Parliament. The only question therefore between the parties is not whether the operations of the complainers are within their powers, but whether the Act which legalises the alleged injury to the respondent's lands makes provision for compensation being paid to him, and for the amount of such compensation being ascertained under the Lands Clauses Act.

The complainers maintain that their existing Act—the Clyde Navigation Consolidation Act 1858—gives the respondent no right to compensation, however injurious their operations may have been, and takes away from him any right of compensation which he might have had under their earlier Acts, except for damage already suffered before these Acts were repealed.

The Act in question has already been judicially construed by this Court and the House of Lords in a previous litigation between the same parties. It repeals a series of prior Acts, by which powers of two different kinds were conferred upon the Navigation Trustees for the purpose of improving the harbour of Glasgow and the river Clyde. Certain of these powers could only be exercised by acquiring land either compulsorily or by agreement, and these were conferred only for a certain limited time, which has now expired. But certain other powers for deepening and widening the river until it should attain a prescribed depth of seventeen feet, and for altering, directing, or making the channel of the river through any land or soil, being part of its bed or course,’ were conferred without limit of time, and without the necessity of previously acquiring land or of obtaining the consent of the proprietors whose lands might be affected, but upon condition of compensating such landowners for any damage which might be done to them by

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the execution of the authorised works. In the previous litigation, to which I have referred, Lord Blantyre maintained unsuccessfully that these latter powers were no longer continued to the Trustees by the Act of 1858 in the same terms as before, that statute, as he construed it, contemplating that the operations in question should still be continued, but only with the consent of the proprietors whose land might thereby be injuriously affected. This contention was found, both in this Court and the House of Lords, to be unfounded; and it was held, as is explained in the judgment of the Lord Chancellor, ‘that under the Act of 1858 the Trustees had power, without his consent, to continue their dredging, deepening, and widening operations in the bed or channel of the river adjoining the Erskine estate, so as to increase the depth of the navigable channel to the extent of seventeen feet at neap tides within part of the area of the foreshore belonging to Lord Blantyre, causing the water to flow and remain at all times of the tide over parts of the bed or channel which were previously left dry during some part of every twenty-four hours.’

It is by the operations so authorised that the respondent alleges that his lands have been injuriously affected in the manner described in his claim; and the question is, whether the right to compensation which was admittedly given by the earlier and repealed Acts has been continued to him by the same enactment which continued to the Trustees the power to execute the injurious operations? This was not determined in the previous case, but the reasoning of the noble and learned Lords who took part in the judgment in the House of Lords has a very material bearing upon the question.

Their Lordships held that the 76th section of the Act of 1858, which defines the undertaking vested in the complainers, re-enacted by way of consolidation the powers conferred by the previous Acts which it repealed. The Lord Chancellor says ‘The words “in terms of the recited Acts” cannot indeed amount to a re-enactment of all that had been repealed; but they do refer to, and by reference incorporate, so much of the repealed Acts as, when examined, is found to describe and define the powers and authorities meant to be transferred to and vested in the respondents as part of the undertaking.’ The other learned Lords concur with the Lord Chancellor in his construction of the statute. Lord Penzance says—‘But I am further of opinion that, according to the true reading of this Act, it was intended, by the introduction into section 76 of the words, “in terms of the recited Acts,” to declare that the powers and duties of which the “undertaking” was said to “consist” should be exercised and performed substantially in the manner, and subject to the restrictions, by the former Acts provided; and I adopt the expression of Lord Hatherley in the case cited at the bar, that the former Acts were intended to be “summarised” compendiously by the section in question.’ Lord Blackburn says—‘What is the meaning of the phrase “in terms of the said recited Acts?” It is no doubt a very extraordinary way of carrying out the announced intention of the Legislature to repeal the former Acts and consolidate their provisions, to say that the powers of the Trustees for deepening and widening the river shall be just the same as if the repealed Acts were still in force; but if it does not mean that, what does the phrase mean? I think it does mean that, and so thinking I come to precisely the opinion more briefly expressed by the Lord President.’

Their Lordships therefore held that the powers under which the operations complained of have been carried on were not conferred by the Act of 1858, otherwise than by importing by words of reference into that statute the powers which had been conferred by and contained in the prior Acts which it repealed. It would seem to follow that if their powers, as conferred by the prior Acts, were not absolute but conditional upon compensation being paid, they do not become absolute and unconditional by being carried into the Act of 1858, but remain subject in that statute to the same qualification as before. But it is admitted that in the previous Acts the Legislature contemplated that the injury done to the land over which the powers in question are to be exercised ought to be compensated; and if the powers conferred on that condition upon the former Trustees are re-enacted and vested in the new Trustees, just as if the repealed Acts were still in force, it would seem to follow that the landowner must be compensated by the new Trustees as he would have been by their predecessors.

If this be an admissible construction of the words of reference in the 76th clause, it becomes very important to consider what is the meaning and effect of the clause incorporating the Lands Clauses Consolidation Act; because if by means of the incorporated enactment the Legislature has provided machinery for ascertaining and enforcing payment of compensation for lands injuriously affected, but not taken or purchased, that will in my opinion be conclusive in favour of the respondent's contention.

The complainers say that the respondent can take no benefit from the Lands Clauses Act— first, because the provisions of that Act are applicable only in cases where land is authorised to be taken, i.e., purchased by agreement or compulsorily for the purposes of an undertaking; and secondly, because the Aet is incorporated only for carrying into execution certain powers which are now exhausted for taking lands otherwise than by agreement.

I think this argument unsound. It is true that in the railway legislation applicable to Scotland it is not the Lands Clauses Act, but the Railways Clauses Act which gives compensation for damage to lands not taken or used but injuriously affected. The Lands Clauses Act does not in terms provide that compensation shall be payable in such cases. But the respondent does not refer to the Lands Clauses Act as the source of the right which he maintains. He reads its provisions as incorporated clauses in the Clyde Navigation Act, which does, as he construes it, give him right to compensation. And it has never been doubted in practice that when the Lands Clauses Act is incorporated with any other Act, whether special or general, giving right to compensation for land injured as well as for land taken, its provisions are thereby made available as machinery for working out the right so given in the one case just as in the other. Now, in the Clyde Navigation Act the Lands Clauses Act is incorporated subject to a proviso which is very significant. It is enacted that ‘the Lands Clauses

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Act shall apply to the undertaking hereinafter described, provided that the powers under the said Lands Clauses Act and this Act, of taking land otherwise than by agreement, shall be exercised only for the purposes of the works specially authorised by the last recited Act’ (that is, the Act of 1857), and during the period therein specified.

Now, that is not an incorporation merely for the particular purposes and for the limited period specified. The Act is incorporated without limit of time, and without exception of any one of its clauses. But after the lapse of the period specified its application as an incorporated enactment is limited by the proviso that whatever powers it may give to take land shall no longer be exercised. For all other purposes its whole enactments still remain operative as a part of the special Act, and must be considered, in the language of the fifth section, ‘as if the substance of its clauses and provisions’ (except in so far as they give compulsory powers to take land) were set forth in the special Act with reference to the matter to which that Act relates. Now, the undertaking hereinafter described to which the Act is declared to apply embraced operations for which land was authorised to be taken compulsorily, and also operations for which that is not necessary and is not authorised. But the former class of powers is given for a limited time, which is now exhausted, and the only portion of the undertaking which still remains operative is that which does not require for its execution the exercise of compulsory powers of purchasing land, but which nevertheless may involve, and the respondent says has involved, operations causing very material damage and injury to the lands of riparian proprietors. Now these are matters to which the Clyde Act relates; and the clauses of the Lands Clauses Act regulating compensation are to be read as if their substance were set forth in the Clyde Navigation Act with reference to these matters. It cannot be suggested that the peculiar terms of the incorporating clause were intended to keep alive other provisions of the Lands Clauses Act, but not the clauses regulating compensation, because there is no provision in that statute to which the complainers’ criticism that it is concerned only with the taking of land or the consequences of such taking is not equally applicable as to the compensation clauses. But if the compensation clauses are still kept in force, although the compulsory powers of taking land are exhausted, that must have been done with the intention of making them available in the execution of powers for which it is not necessary that land should be taken. It appears to me therefore that the Legislature contemplated the probability of damage being done to land which it was not necessary for the Trustees to acquire, and intended that if it were so done it should be compensated under the provisions of the Lands Clauses Consolidation Act.

Another argument was urged for the respondent which is worthy of consideration. The 6th clause of the Clyde Navigation Act incorporates the Harbours, Docks, and Piers Clauses Act 1847, and provides that that Act shall apply to the harbours, river, and whole undertaking of the Trustees as defined in clause 76. Now that Act provides that (section 6 )—[reads as above].

The respondent maintains that this clause being made part of the special Act, its language as part of that Act must be referred to the particular purposes thereby authorised, and not merely to the purposes expressed in the general Act. On the other hand, it is argued that into whatever Act the clause may be imported, its application must be limited by its own terms, and that therefore it cannot be made to apply to the execution of any work except the construction of piers, docks, and harbours; and that the provision that it shall apply to the river and whole undertaking has no other effect than to make its provisions operative throughout the whole area over which the Trustees’ undertaking extends, but always with reference to the particular works described. The argument would have great force were it not for the peculiar terms of the provision that the Act shall apply to ‘The whole undertaking as hereinafter defined,’ which must be read along with section 76 defining ‘undertaking.’ Now the undertaking as defined consists, in terms of the 76th section, ‘of the deepening, straightening, enlarging, widening, or confining, dredging, scouring, or cleansing the river and harbour until a depth of seventeen feet at neap tides,’ and of a number of other operations described, among which is included the construction of certain docks and quays. The construction of docks and piers therefore is a part, but it is only a part, of the undertaking as defined; and the respondent's contention is that to limit the application of the compensation clause to the construction of these works is to deny effect to the provision that the Act shall apply to the whole undertaking.

The undertaking,’ as used in the 6th clause, cannot, according to ordinary rules of construction, be held to mean the area over which the undertaking extends, because the clause itself refers for its meaning to the definition contained in the 76th clause. It appears to me that this is a legitimate construction of the words in question; but I prefer to rest my judgment on the ground already stated.”

The complainers reclaimed, and argued—It was admitted that the respondent's right to claim compensation for damages in respect of operations prior to 1858 was reserved by sec. 44 of the Act of that year, and such claims might be disposed of by the Sheriff and a jury; but it was denied that by sec. 76 his right to compensation for operations after that date was kept open. The Act of 1858 was passed as a code; there was in it no provision for compensation for damages done after 1858, and no such claim could be raised by implication. Assuming that the respondent was entitled to compensation, the notice was bad, because the proper machinery would be that provided by the Clyde Navigation Acts and not the Lands Clauses Act.— Lord Blantyre and Others v. Clyde Navigation Trustees, March 1, 1867, 5 Macph. 508, aff. March 3, 1871, 9 Macph. 6, Lord Hatherley, pp. 7–19—March 5, 1880, 7 R. 659, aff. March 7, 1881, 8 R. (H. of L.) 47.

The respondent replied—The powers of the complainers were by the Act of 1858 carried forward tantum et tale, and not increased at the time they were so continued. There was an antecedent improbability of any right to compensation being repealed without an express provision to that effect. It would be impossible to assess damages due in respect of operations prior and subsequent to 1858.

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At the discussion in the Inner House the complainers deleted their original plea-in-law and substituted the following—“(1) The averments of the respondent are irrelevant and insufficient to sustain the notice referred to in the note of suspension. (2) Upon a sound construction of the complainers' Acts of Parliament, the complainers are not liable in compensation to the respondent, at all events in respect of operations executed by the complainers under the powers of the complainers' Consolidation Act of 1858.”

At advising—