Scottish Court of Session Decisions

The Right Hon. J. P. B. Robertson, Her Majesty's Advocate, acting on Her Majesty's behalf and on behalf of the Commissioners of Woods and Forests and of the Board of Trade, brought an action against the Trustees of the Clyde Navigation, incorporated by the Clyde Navigation Consolidation Act 1858 (21 and 22 Vict. c. 149), to have it found and declared that they were not entitled to deposit or place earth, gravel, stones, mud, soil, or other material, dug, cut, dredged, or otherwise removed from the banks or bed of the river Clyde as defined by said Act, in any part of the narrow seas of the kindgom of Scotland, and in particular in Loch Long, being part thereof, and extending from Arrochar on the north to a straight line drawn from Strone Point in the county of Argyll in the west, to Barons Point in the county of Dumbarton in the east, and to have the defenders interdicted from depositing such dredgings accordingly.

The pursuer averred that the narrow seas of that part of Her Majesty's dominions known as the kingdom of Scotland, and the solum or bed thereof below low watermark, belonged to Her Majesty jure coronoe; subject to the public rights of navigation and fishing, and that the salt water loch or arm of the Firth of Clyde known as Loch Long was part of the narrow seas; the defenders, by virtue of the powers conferred upon them by the 76th section of their Consolidation Act 1858, were entitled to lay their dredgings upon “the most convenient banks” of the river, but that for many years they had desisted from this practice, and they had been in the habit of bringing the whole of their dredgings to Loch Long, and depositing them there; the dredgings were composed of earth, gravel, stones, mud, soil, and other material, largely mixed with the sewage which is poured into the river Clyde from Glasgow and various towns and villages upon its banks and those of its tributary streams; the volume of the dredgings now amounted to several hundred thousand tons per annum, and was yearly being increased.

The defenders, while admitting the substantial accuracy of the pursuer's averments, explained that the mode of disposal of the dredgings in Loch Long which had been openly carried on since 1862, had proved satisfactory in every way, that the discharges from the dredging barges were absolutely innocuous, that their operations had in no way affected the depth of the loch, and that the public rights of navigation were not thereby injured. They stated that the action had not been raised in vindication of any public right or interest, but at the instigation of certain persons residing on the banks of Loch Long, who had undertaken to indemnify the Crown against all expenses. They further added by way of amendment the averment that they had not deposited any material on the solum of Loch Long, as the dredgings discharged from the barges did not in fact reach the bottom of the loch.

The pursuer admitted that the proceedings had been instituted under a guarantee as to expenses given by inhabitants on the shores of Loch Long and Loch Goil, and others interested in property there.

It was pleaded for the pursuer—“(1) The narrow seas surrounding the kingdom of Scotland, and the bed and solum thereof, belonging to and being invested in the Crown, subject to the public rights of navigation and fishing, and Loch Long as defined in the summons being part of said narrow seas, the pursuer is entitled to decree as concluded for. (2) The defenders having no right, either by statute or at common law, to deposit their dredgings in the narrow seas, and particularly Loch Long, or on the bed or solum thereof, their doing so without permission is illegal, and the pursuer is entitled to interdict as concluded for.”

It was pleaded for the defenders—“(1) No title to sue. (3) The action is barred by mora and acquiescence. (4). In respect that the defenders' operations do not in any way interfere with the rights of the Crown, the defenders are entitled to absolvitor.”

Upon 13th June 1891 the Lord Ordinary ( Kyllachy) found and declared that the defenders were not entitled to deposit the dredgings from the river Clyde in Loch Long, reserved the question of interdict, continued the cause, and granted leave to reclaim.

“ Opinion.—The question in this case is, whether the Commissioners of Woods and Forests, as representing the Crown, are entitled to prevent the Trustees of the Clyde Navigation from depositing in Loch Long the dredgings of the river Clyde, which dredgings consist of earth, gravel, stone, mud, and other materials, and are admitted now to amount to several hundred thousand tons per annum.

The situation of Loch Long is sufficiently well known. It is a long narrow inlet running up into Argyllshire from the Firth of Clyde, in the vicinity of Dunoon. It is 24 miles long and from half a mile to a mile and a-half broad, and is navigable all the way, or nearly all the way, to the top.

The action takes the form of a declarator and interdict at the instance of the Lord Advocate as representing the department, and the decree asked extends not merely to Loch Long, but generally to what are termed ‘the narrow seas of the kingdom of Scotland.’ There is not, however, any allegation of any deposit elsewhere than in Loch Long; and I am not prepared, and indeed have not been asked, to pronounce a judgment applicable to other places. If I were, I should require some further definition of the expression ‘the narrow seas.’ It is an expression which, in the literature of this subject, is used in different senses— The Queen v. Keyn (1876),

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L.R., 2 Exch. Div. 63, espec. 109–110, 119–174, et passim. It is sometimes used to denote the sea within cannon-shot of the shore, together with the estuaries, bays, &c., within the fauces terræ. But it is also used in another and wider sense, viz., as comprising the whole seas and channels around Great Britain and other countries on the continent of Europe.

I propose, therefore, to deal only with the case actually before me, viz., the alleged invasion by the defenders of the Crown's alleged proprietary rights in the land-locked loch, creek, or bay known as Loch Long. Upon that question I have come to the conclusion—and I am bound to say without difficulty—that the Crown is entitled to my judgment.

It is quite true, as the defenders have anxiously urged, that the action is rested entirely upon the proprietary right of the Crown, or, if the expression is preferred, of the State. There is no averment of injury, actual or anticipated, either to fishing or navigation; nor is there any averment of nuisance or of injury to the foreshore. Whatever may be the fact as to those matters, and whatever may be the motives of the Crown in asserting its alleged rights, the action is based on trespass, and on trespass alone.

On the other hand, however, it has to be noted that the defenders rest exclusively on the alleged absence of any title on the part of the Crown to interfere with their operations. They do not assert that they themselves have under their statutes or by municipal law any title to turn this inland loch into what is known in Scotland as a ‘free toom.’ Their statutory powers do not extend below Port-Glasgow; nor does our municipal law recognise the right to deposit rubbish as among the rights which the Queen's subjects possess in the seas and navigable rivers within the realm. The only such public rights known to the law are navigation and fishing. The defenders' case therefore is and must be this—not that they are exercising any right which is a burden on the Crown's right, and which the Crown, as trustee for its subjects, is bound to recognise, but that the Crown's right not only in the seas around the coast, but also in the estuaries, bays, and sea lochs within the territory, is confined to a mere protectorate for the purposes of fishing and navigation; so that, except where the interest of fishing and navigation are concerned, the Crown has no higher or better title to the water and bed of this inland loch than the defenders themselves. In short, the defenders' case is, that apart from fishing and navigation Loch Long is just as free as the centre of the Atlantic, and that therefore not only all British subjects, but also all foreigners, may make such use as they please of its water and of its solum, provided only they do no injury, or no injury which can be proved, to the interests of fishing and navigation.

I am bound to say that, so far as I can discover, this proposition is entirely novel, and is altogether opposed to every authority on the subject. It is true that there has been some controversy—turning, however, largely upon words—as to the exact nature of the Crown's right in what I may call the external sea, and particularly that portion of it which international law recognises as territorial and within the realm—Kent's Comm. i. (ed. of 1884), 27–30; Wheaton's International Law, c. 4, sec. 10, 188–190; Hale, De Jure Mares (as reprinted in Moore on the ‘Sea and Seashore’), 353, 377, 381, 384, 399, 401. But there has never, so far as I know, been any suggestion, by any writer or by any judge, that inland lochs, bays, or estuaries within the fauces terroe, are in any different positions from navigable rivers. Nor has it ever, so far as I know, been doubted that, subject to such rights of navigation and fishing as the municipal law recognises, the solum of such lochs, bays, and estuaries belongs to the Crown. There may have been questions as to the Crown's right to exclude foreigners from the external sea within three miles of the shore, as to the jurisdiction of the Queen's Courts over foreigners within the three mile limit, and generally as to the nature of the Crown's right to the sea and the bed of the sea within that limit; but the most extreme advocates of public or rather international rights have always, I think, distinguished between the external sea and land-locked waters within the fauces terroe. In the latter it has, so far as I know, been always recognised that the Crown has not merely a territorial but a proprietary right—a right differing from the Crown's right to the land of the kingdom only in this, that being burdened with certain public uses, viz., navigation and fishing, the rights of property is to a large extent extra commercium, or, in other words, within the regalia majora.

I do not think that all this could be better illustrated than by a perusal of the judgments of the English judges in the recent case of the ‘ Franconia,’ The Queen v. Keyn, supra. The question there was as to the criminal jurisdiction of the English Courts over foreigners sailing in foreign ships within three miles of the English coast; and although the decision went ultimately upon a special ground, the question was largely canvassed whether within the three mile limit the right of the Crown was proprietary, or was a mere protectorate for the purposes of fishing and navigation. I shall have to refer presently to some of the opinions which were there expressed, but in the meantime the important fact is that even those judges who held views opposed to the Crown's claim drew a careful distinction between the external sea to which the question applied, and estuaries, bays, and inland waters, as to which it was common ground that they formed part of the counties into which they ran, and were within the jurisdiction of the courts of common law. I may refer on this subject specially to the judgments of Sir Robert Phillimore and Chief-Justice Cockburn— The Queen v. Keyn, L.R., 2 Div. 71 and 162.

I confess, therefore, that it seems to me that the particular case with which I have

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to deal is entirely outside the sphere of the controversy to which the defenders appeal. In other words, I can find no authority for the defenders' argument, and, apart from authority, I should think it tolerably clear, in point of principle, that a sea loch, or land-locked bay, running up from the Firth of Clyde into the centre of Argyllshire was for all practical purposes part of that county, subject to the jurisdiction of its Sheriff, and differing from the fresh-water lochs within it only as being navigable, and so subject to the public uses of navigation and fishing.

It follows that the Crown are entitled to my judgment on the only question which is properly before me; but as the larger question, that, viz., as to the nature of the Crown's right within what has been called the ‘narrow seas,’ has been made the subject of argument, it may perhaps be right that I should indicate the opinion which I have formed on that subject.

(1) I hold it to be now acknowledged as matter of international law that the territory of Great Britain does not extend to the narrow seas surrounding the kingdom in the older and wider sense of that expression. That is to say, the ancient claims of the kings of England to the whole seas and channels between England and other countries on the Continent cannot now be maintained. This I do not understand to be in controversy.

(2) I hold it to be still an open question whether the territory of the kingdom extends, e.g., to those seas and channels along the coast which are outside the fauces terroe, and more than three miles from the shore, but which are situated between the mainland and islands forming part of the kingdom, such as, e.g., the island of Arran and the Hebrides. The question may possibly come to be material between the present parties in the event of the defenders seeking another place of deposit, but in the meantime it is hardly a question of practical interest.

(3) The more practical question, and that on which alone I heard argument, was with respect to the nature of the Crown's right in what is now acknowledged to be part of the territory of the kingdom, viz., the strip or area of sea within cannon-shot or three miles of the shore. Is the Crown's right in that strip of sea proprietary, like the Crown's right in the foreshore and in the land, or is it only a protectorate for certain purposes, and particularly navigation and fishing?

I am of opinion that the former is the correct view, and that there is no distinction in legal character between the Crown's right in the foreshore in tidal and navigable rivers and in the bed of the sea within three miles of the shore. In each case it is of course a right largely qualified by public uses. In each case it is therefore to a large extent extra commercium, but none the less is it in my opinion a proprietary right—a right which may be the subject of trespass, and which may be vindicated like other rights of property.

Such I consider is the result of all the best authorities—Scotch, English, and foreign.

It is the doctrine of Craig, Stair, Erskine, and Bell. It is the doctrine of Selden, and Hale, of Grotius and Vattel, and it has been affirmed on many occasions by high judicial authorities both in Scotland and England. It has also received practical effect in various judgments with respect, inter alia, to minerals under the sea, mussel-beds and oyster beds, maritima incrementa, and flotsam and jetsam—Craig, i. 13, 140; Stair, ii. 1, 2; ii. 1, 5; Ersk. ii. 1, 6; ii. 6, 13; Bell's Prin., secs. 639 and 640; Grotius, ii. 2,13; Vattel, 1, 23; Puttendorf, iv. 2, 6. See also authorities cited by Lindley, J., L.R., 2 Exch. Div., p. 90–91; Hale, De Jure Maris, 358, 367 (Moore); Hall's Essay, 667, 671 (Moore); Smith v. Officers of State, March 11, 1846, 8 D. 711, espec. 722; Gammell v. Lord Advocate, March 6, 1851, 13 D. 854, and 3 Macq. 419; Duchess of Sutherland v. Watson, January 10, 1868, 6 Macph. 199; Gann v. Whitstable Fishers, 11 C.B., N.S. 337, 13 C.B., N.S. 353, 11 (H.L.) 192; The Queen v. Duke of Cornwall, L.R., 2 Exch. Div. 156; and Act 21 and 22 Vict. c. 109 (1858).

Altogether, it is, I think, too late to dispute a proposition so long recognised and so well established, and in saying so I hope I am not treating with disrespect certain dicta of eminent judges to which the defenders referred. For I think it will be found that for the purposes of the present action the distinctions which these dicta involve are hardly material. It may be, for example, that the Crown's right in the sea within the three mile limit is not merely burdened with certain public uses, but that altogether it is a right which is properly described as a trust for the British public. It may therefore be not merely to certain effects, but altogether extra commercium, and so not properly to be described as ‘patrimonial.’ But whether held in trust or not, it is none the less, so far as I can see, a proprietary right—that is to say, it is a right of property, and not a mere protectorate for the limited purpose of fishing and navigation. And if the right is a right of property either in the Crown or in the State, of which the Crown is the Executive, I do not think that any of the learned judges referred to will be found to dispute that it includes a right to prevent acts of trespass like those of the defenders—acts which, as I have said, are not in pursuance of any private or public right, and of which the only justification alleged is that the Crown is not prepared to take the burden of proving that they are injurious.

I have not noticed the defenders' plea of mora and acquiescence, because it was not supported in argument and is obviously untenable. Neither do I think it necessary to do more than notice the defenders' averment introduced by way of amendment at the close of the discussion, to the effect that ‘the defenders have not deposited any material on the solum of Loch Long. The dredgings which are discharged from their barges do not, in fact, reach the bottom of

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the loch.’ I am, I suppose, bound to assume that this statement is made seriously, and that the defenders are serious in their demand to be allowed a proof of it. If therefore I thought it relevant I should have felt bound to have allowed such proof, but I do not think it relevant. For, assuming that in some unexplained manner the law of gravitation is suspended or counteracted in this part of the Firth of Clyde, I do not for my part see that it makes any difference whether the defenders' deposits reach the bottom of Loch Long or are carried out to the Firth of Clyde or are carried out to sea. The Crown, if proprietor of the solum, must also in my opinion be proprietor of the water above it, and, at all events, must have a sufficient proprietary interest in the water to have a good title to prevent acts of trespass like those in question. It certainly does not appear to me that the Crown is bound, in a question with persons who have no title of any kind, to enter into a proof as to whether the unauthorised deposits in question appreciably or injuriously affect the solum. It must be assumed that the Crown advisers have good reasons for their interference, and they are not in my opinion bound to discuss those reasons in a Court of law.

I shall therefore grant the declarator concluded for, except with respect to the narrow seas, but I shall reserve in the meantime the question of interdict. I shall also find the pursuer entitled to expenses, and grant leave to reclaim.”

The defenders reclaimed, and argued—There was no distinction between the solum within the three mile limit and the solum below low water-mark in estuaries so far as proprietary rights were concerned, although there might be so far as administration was concerned. In neither had the Crown any right of property. The Crown's right was one of trust merely for the purpose of protecting navigation or fishing. In Keyn's case the Crown's jurisdiction was not sustained, and although there was a strong minority, it was the question of jurisdiction and not of property which was there discussed. The Scots law authorities cited by the Lord Ordinary did not support his Lordship's view. The cases of Smith (cited) and of Agnew v. Lord Advocate, January 21, 1873, 11 Macph. 309, related to Crown's property in the foreshore. The Crown must make out that the solum belonged to it, but no reported case put its right so high—see Lord Advocate v. Clyde Trustees, January 23, 1849, 11 D. 391, espec. pp. 401, 403—or that navigation or fishing rights were being interfered with, and this it had failed to do. The onus of finding proof lay with the Crown, and had not been discharged.

Argued for respondents—The reclaimers asserted no title of property or even of trust, for Loch Long was beyond the limits of their statutory powers, and they had really no title to defend the action. The Crown's right to the solum was not a mere trust right, but a right of property although qualified in certain respects in the interests of the public. Dicta in the case of Keyn, and in other cases cited by the Lord Ordinary, seemed to support the Crown's proprietary right to the solum within the three mile limit, but it was not necessary to determine that, for the Crown certainly had a right of property in the solum of Argyllshire and Dumbartonshire below low water-mark within the fauces terræ. It was absurd to say that the part of Scotland so situated did not belong to the kingdom of Scotland, and that anyone, even a foreigner—because everyone had as good a title as the Clyde Trustees—could empty what they chose into Loch Long.

At advising—