Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Stonehaven by James Barclay Grahame, curator bonis to Francis Barclay Grahame, Esquire of Morphie, heir of entail in possession of the lands of Morphie and others, and the trustees of the deceased Barron Grahame, Esquire of Morphie, against the St Cyrus District Committee of the County Council of the County of Kincardine, and two carters in their employment.

The pursuers prayed the Court, inter alia, “to interdict the defenders and each of them and all others acting for them or under their instructions, from lifting, removing, and taking or carting away boulders, stones, gravel, or other material from the beds, channels, and banks of the river North Esk ex adverso of the lands of Morphie and Stone of Morphie, belonging to the said Francis Barclay Grahame, and

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so far as within the area of the salmon fishings in North Esk belonging to him and the pursuers, the trustees of the said late Barron Grahame, Esquire of Morphie.”

The defenders maintained that the St Cyrus District Committee as road authority were entitled under the Roads and Bridges (Scotland) Act 1878, section 123, and the Act 1 and 2 Will. IV. cap. 43, section 80, to take stones for the purpose of repairing roads from the place in question upon the ground (1) that it was open uncultivated land or waste, and (2) that whether it was open uncultivated or waste land, or enclosed land, the stones were not required for the private use of the pursuers.

The Act 1 and 2 Will. IV. cap. 43, section 80 (referred to in the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51), section 123, and contained in Schedule C to that Act annexed), enacts as follows:—“It shall be lawful for the trustees of any turnpike road, or any persons authorised by them, to search for, dig, and carry away materials for making or repairing such road and the footpaths thereof, or building, making, or repairing any toll-house, bridge, or any other work connected with such road, from any common land, open uncultivated land or waste, or to deposit mud or rubbish thereon, without paying any surface damages or anything for such materials except for stone to be used for building, and to carry the same through the ground of any person, such trustees or other persons authorised by them filling up the pits or quarries, levelling the ground wherefrom such materials shall be taken, or fencing off such pits or quarries so that the same shall not be dangerous to any person or cattle, and paying for or tendering the damage done by going through and over any enclosed or arable lands for or with such materials used or rubbish, such damages to be ascertained as hereinafter mentioned; and also it shall be lawful for such trustees and other persons authorised by them as aforesaid to search for, dig, and carry away such materials in or out of the enclosed land of any person where the same may be found, and to land or carry the same through or over the ground of any person (such materials not being required for the private use of the owner or occupier of such land, and such land or ground not being an orchard, garden, lawn, policy, nursery for trees, planted walk or avenue to any house, nor enclosed ground planted as an ornament or shelter to a house, unless where materials have been previously in use to be taken by the said trustees), making or tendering such satisfaction for stones to be used for building, and for the surface damage done to the lands from whence such materials shall be dug and carried away, or over or on which the same shall be carried or landed, as such trustees shall judge reasonable.”

A proof was allowed. It appeared that the place from which the District Committee claimed right to take stones was a shingle bank lying upon the northern side of the river North Esk. At this point the river curved to the south, and the shingle bank lay upon the bend of the curve. It was considerably above the level of the water in the river except at times of exceptional flood. At one time the river at this point had divided and flowed in two channels enclosing an island chiefly composed of shingle, but containing a small piece of pasture land, which still remained, and was bounded partly by the present channel of the river and partly by the shingle bank. The more northerly of these two channels had now become filled up. Part of the shingle bank lay upon what had formerly been part of the more northerly channel.

To the north of the shingle bank, and not separated from it by any fence, there was a strip of pasture land, which was bounded partly by the river, partly by the shingle bank, and partly by a flood embankment and fence. This fence ran down to the bank of the river at both ends, the upper end being some distance above and the lower some distance below the shingle bank.

Over this pasture land there was a cart track, not fenced, and marked only by ruts by which the defenders had obtained access to the shingle bank. This track ran from a road which led into the public road to Bervie.

The Court ultimately held it proved that the pursuers and their fishing tenants required all the stones upon the shingle bank for their own use.

On 22nd September 1899 the Sheriff-Substitute ( Burnet) issued the following interlocutor:—“Finds that the bed, channels, and banks of the river North Esk etc adverso of the lands of Morphie and Stone of Morphie, belonging to the said Francis Barclay Grahame, and so far as within the area of the salmon-fishings belonging to him and the trustees of the said late Barron Grahame of Morphie, are enclosed lands within the meaning of section 80 of 1 and 2 Will. IV. cap. 43, and that the defenders are not entitled to remove therefrom any boulders, stones, gravel, or other material, except such material as is not required for the private use of the said Francis Barclay Grahame and the said trustees as proprietors thereof aforesaid: Finds that the whole boulders, stones, gravel, and other material now lying in the said bed and channels and upon the said banks are required for the private use of the said proprietors, and that the defenders are not entitled to remove the same: Therefore declares the interim interdict already granted to be perpetual, and decerns: Finds the pursuers entitled to expenses,” &c.

Note.—“The object of this action is to have the defenders interdicted from taking boulders and other material from the bed, channels, and banks of the river North Esk ex adverso of the lands belonging to the pursuers. The right to take such material is rested upon the provisions of the Act 1 and 2 Will. IV. cap. 43, sec. 80, and there is little or no dispute about the law of the case, for it has been solemnly decided in regard to this very river that the expression ‘lands’ in the statute means and includes beds of rivers— Lyell's Trustees v. Forfarshire Road Trustees, 1882, 9 R. 793.

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That decision is said by Professor Rankine in his note upon the section (Land-Ownership, 2nd edition, App. p. 801, note) to deserve reconsideration, but it has not yet received it, and I must therefore hold that the subjects sought to be protected by interdict here, which are banks of shingle and boulders thrown up by the stream, are ‘lands’ to which the provisions of the section are applicable.

The section describes the land from which material may be taken by road trustees for road purposes as of two kinds— ( first), ‘any common land, open uncultivated land or waste;’ and ( second), ‘the enclosed land of any person.’ From the former, the trustees for the public roads are authorised to take material (except building stone) for nothing, being bound only to level and fence the ground from which it has been removed, and to pay the surface damage caused by the removal. In regard to the latter, their rights and liabilities are similar, except that no material may be so taken by them which is required for the private use of the owner or occupier of the land.

It does not appear from the report of Lyell's case that the Court expressly decided under which of these categories the bed of the river there in question was held to fall. But by the interlocutor there pronounced the rights of the owner were carefully protected, and it may be inferred, therefore, that the river bed was there regarded as falling within the description of ‘enclosed land’; and I think the banks of shingle and boulders must be so treated in the present case. At all events, they are plainly not ‘common land,’ nor can they be described as ‘uncultivated’ or ‘waste’ land, seeing that from their nature both the cultivation and use of them otherwise are out of the question.

The pursuers accordingly attempted to make out that all the boulders and such material as the defenders have hitherto been in the habit of taking from the bed, channel, and banks of the river are in point of fact necessary for the proper upkeep of the banks and the maintenance of the fishing stations, and that they are therefore excepted from the defenders' statutory right of removal as being required for the owner's private use. I think the pursuers have successfully shown this. They have proved, in my opinion, that the maintenance of the banks of this river is of the greatest importance to the preservation of the fishing station upon it, and is, moreover, a matter of great difficulty, requiring constant labour and attention. They have proved that the boulders sought to be abstracted by the defenders form the natural and most suitable material for maintaining the banks, and that, in the opinion of fishermen and others most competent to judge, the supply of these boulders is barely sufficient for that purpose. It may be that at times a surplus of boulders may be found over and above the quantity actually required for the banks at the moment, and which might therefore fall under the description of material which road trustees may lawfully abstract. But it is impossible to foresee these accumulations, and equally so to foretell what increased demands upon them the sudden changes in its course and volume (to which this river is proved to be peculiarly subject) might at any moment occasion. I do not therefore see my way to deal with this case by regulating, by means of remit to a man of skill, as was done in Lyell's case, the operations of the defenders. I think these operations cannot, for the present at least, proceed without detriment to the landowners; and the proof led does not suggest any system of supervision by which the exercise by the defenders of their statutory privileges could be so regulated as to be for the future rendered innocuæ utilitatis. It seems to me that, applying the principles of interpretation of the section explained in Yeats v. Taylor, 1863, 1 Macph. 221, in the circumstances proved in this case, the whole supply of boulders and such material is no more than is required at present, and may reasonably be expected to be required in future, for the private use of the proprietors for the proper maintenance of the banks and fishing stations of the river owned by them.”

The defenders appealed to the Court of Session, and argued—This shingle bank was “land” within the meaning of the Turnpike Act (I and 2 Will. IV. c. 43), section 80— LyelVs Trustees v. Forfarshire Road Trustees, May 18, 1882, 9 R. 792, Indeed this case was a fortiori of Lyell, because here it was not proposed to take stones from the river bed but only from the bank. That case was rightly decided. The “land” here was not “enclosed land,” and it did not therefore signify whether the pursuers required the stones for their own use or not. But even if the “land” was “enclosed land,” the defenders were entitled to take the stones because they could do so without prejudice to the pursuers' legitimate requirements. It was not proved that the pursuers would either immediately or within any reasonable time require all the stones for their own use. In any view, the defenders should be allowed to take stones from the bank subject to regulation by the Court, as was done in Lyell, cit.

Argued for the pursuers—If the case of Lyell decided that the beds and banks of rivers were “lands” within the meaning of the Turnpike Act, it was wrongly decided, and one decision did not make the law. The beds and banks of rivers were not intended to be included under “lands” in the Act. Apart from that, however, this place, if “land,” was “enclosed land” in fact and in law. The case of Lyell, cit., was itself an authority for that proposition. Here all the stones were required for the proprietors' own purposes, and the pursuers were therefore entitled to interdict as craved.