Scottish Court of Session Decisions

The Commissioners for the Harbour and Docks of Leith, pursuers, raised an action against the Provost, Magistrates, and Councillors of Leith, the Parish Council of Leith, the County Council of Midlothian, and others, defenders. They concluded, inter alia, for declaration that “(first) a portion of the pursuers' lands and heritages, known as the Harbour and Docks of Leith, is situated to the seaward side of the line of low water-mark, as such low water-mark existed at the date of the passing of the Representation of the People (Scotland) Act 1832 (2 and 3 Will. IV, cap. 65); (second) the said portion of the lands and heritages is situated, for the purposes of the Lands Valuation (Scotland) Act 1854 and the Acts amending the same, outwith the boundaries of the burgh of Leith, and does not fall to be valued by the Assessor of the burgh as lands and heritages situated in the said burgh.”

They pleaded—“(1) The northern or seaward boundary of the burgh of Leith being the low water-mark as in 1832, and a portion of the said lands and heritages of which the pursuers are proprietors being situated to the seaward side of and outwith the said boundary, decree of declarator in terms of the first and second conclusions of the summons ought to be pronounced.”

On 31st March 1910 the Lord Ordinary ( Mackenzie) dismissed the action, the circumstances of which appear in the following narrative, which is taken from the opinion of Lord Salvesen—“The main purpose of this action is to have it declared that a portion of the pursuers' undertaking is situated outwith the boundaries, not merely of the burgh of Leith but of the parish of Leith; and that the pursuers are not liable to be rated or assessed in respect of that portion either for burgh assessments or for poor and school rates.

The action has had a somewhat chequered history. It was raised as far back as 12th November 1909 before Lord Mackenzie, who on 31st March 1910, having heard parties in the procedure roll, dismissed it. He expressed an opinion in favour of the pursuers on the merits of the controversy, but found himself unable to give effect to it because of the declaratory conclusion containing no definition of the portion of the pursuers' lands which they claim to be situated in the county, and also because the County Council of Midlothian were not parties to the action.

The case came before us in March last on a reclaiming note for the pursuers. At the conclusion of the opening speech on their behalf it became plain that unless the summons were amended we should have no option but to adhere to the decree of dismissal. It appeared to us that no effective decree could be pronounced in favour of the pursuers in the absence of the County Council of Midlothian, who had a substantial if not the main interest in the settlement of the question whether a part of the pursuers' undertaking is situated within their jurisdiction and falls to be assessed for county rates. As, however, there had been so much procedure already we deemed it desirable to give the pursuers an opportunity of amending their summons so as to avoid technical objections. This has now been done, and a substantially new record has been made up. The pursuers have amended their declaratory conclusion by defining with reference to a plan the alternative boundaries of the burgh of Leith for which they contend, and they have also called as parties to the action the County Council of Midlothian and the Assessor of Railways and Canals in Scotland. The former have lodged a minute in which they support the conclusions of the action, and the latter has not appeared.

The boundaries of the parliamentary burgh of Leith were fixed by the Representation of the People (Scotland) Act 1832.

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The northern boundary, with which we are alone concerned, is the shore of the Firth of Forth, and there is a definition clause that ‘by the words “sea” and “shore” shall be understood the low water-mark.’ The northern boundary of Leith is therefore the low water-mark of the Firth of Forth between the points described in Schedule (M) of the 1832 Act, or it may be, as the pursuers contend, the low water-mark of the shore of the Firth of Forth between these points. On the plan the pursuers have indicated by a blue line what they offer to prove was the low water-mark in 1832; and their first contention is that this blue line constitutes a fixed boundary line which limits the jurisdiction of the burgh of Leith to the area enclosed thereby, whether the sea has since receded or has been displaced by artificial structures. On the same plan they show by means of a red line what they aver to be the low water-mark as existing at the date of the action. Assuming the correctness of these two lines, it would appear that the sea has encroached upon the land during the intervening period of nearly eighty years, and that considerable areas which were in 1832 dry at low water are now always covered by the sea. At some points, however, of inconsiderable area the existing low water-mark as shown on this plan is to the north of the blue line. In other words, the land has at these points gained at the expense of the sea. Further, between 1832 and 1909 the pursuers have constructed certain artificial works, and notably two piers and a jetty which project considerably beyond the low watermark of 1832 and still more beyond the existing low water-mark. Beyond the ends of the piers there is also an approach channel by means of which vessels of large tonnage can obtain access to the harbour.”

With regard to the approach channel, the pursuers averred that since 1832 a dredged channel extending below low water-mark had been excavated and maintained by them, and that it was vested in them, and was part of the lands and heritages included in the valuations of their property.

The defenders, the Leith Magistrates, admitted that the dredged channel was outwith the burgh boundary, but maintained that it was not a heritage owned and occupied by the pursuers.

In dismissing the action, on 31st March 1910 (vide supra), the Lord Ordinary gave the following opinion:—

Opinion—“The real question between the parties here is whether the harbour and docks of Leith are situated wholly within the burgh of Leith, or whether a part of them is situated in the county of Midlothian. If the latter view be correct, then it was competent for the Harbour Commissioners to invoke section 23 of the Lands Valuation Act of 1854. They would then be a company having ‘continuous lands and heritages liable to be assessed in more than one parish, county, or burgh,’ and might apply to have their lands and heritages valued by the Assessor of Railways and Canals. If the former view be correct, then the Assessor of Railways and Canals could not act. The valuation would have to be made entirely by the Assessor for the burgh.

The decision of this question depends upon the view taken of the northern boundary of the burgh of Leith as fixed by the Reform Act of 1832 (2 and 3 Will. IV, cap. 65). Since then there has been no extension of the burgh boundary.

The 5th section of that Act provides that the boundaries of the enumerated burghs shall be those set forth in Schedule (M). The northern boundary of the burgh of Leith set forth in Schedule (M) of the Act is ‘the shore of the Firth of Forth.’ The Act says, section 5 (10), that by the words ‘sea’ and ‘shore’ shall be understood the low water-mark. In 1832 no part of the harbour and docks were situated below low water-mark. Since 1832 the piers at Newhaven and Leith have been extended below the line of the low watermark as it existed in 1832. No case is made by the burgh that the general line of the low water-mark has altered since 1832. Their case is that with the extension of the harbour and docks the boundaries of the burgh have extended also. The argument for them was founded on such cases as Campbell v. Brown, November 18, 1813, F.C., where in dealing with rights of property Lord Glenlee observed that a boundary by the sea is moveable and fluctuating, and that when the sea goes back the shore advances, and the proprietor is entitled to follow the water to the point to which it may naturally retire or be artificially embanked. I am of opinion that this does not apply to the present case. In dealing with administrative areas certain definite procedure has been prescribed by statute. The pier extensions in question are not within low water-mark. They have been built out on the bed of the Forth. If the burgh desires to have its boundaries extended so as to include these parts of the piers they must do so in the ordinary way by petition to the Sheriff. His jurisdiction to do so is undoubted. In the case of the Dunoon Commissioners v. Hunter's Trustees, 22 R. 379, it was held that under section 11 of the Burgh Police Act 1892, a Sheriff has jurisdiction for the purposes of that Act to extend the boundaries of a burgh so as to include part of a pier within his county erected on ground below low watermark. The alternative is to proceed by way of bill, which was the course adopted by the burgh in 1907, when they promoted a bill, and proposed a clause, the 34th, in the following terms:—“No portion of the east and west piers (as now existing and as they may hereafter be extended) and the area between the same of the harbour of Leith and the works connected therewith and of the piers (as now existing and as they may hereafter be extended) and harbour of Newhaven and the works connected therewith shall, for the purposes of section 5—Boundaries of Cities, Burghs, and Towns—Rules for the construction of the descriptions contained

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in the Schedule [M]—of and of the Schedule (M) therein mentioned to the Act (2 and 3 Will. IV, cap. 65), in so far as such schedule applies to the burgh, be deemed to be below low water-mark.’

Upon the real question therefore at issue between the parties, I am of opinion that the contention of the Dock Commissioners is right, and that of the burgh is wrong.

The difficulty is to see how effect can be given to this view in the present proceedings which have been instituted by the Dock Commissioners. The unfortunate position into which they have got themselves is that their lands and heritages have been valued by the Assessor of Railways and Canals, who has valued them at £75,298, of which he has allocated £71,959 to the burgh and £3339 to the county. The Town Clerk of Leith refused to engross this valuation in the valuation roll of the burgh under section 27 of the Lands Valuation Act 1854. The Burgh Assessor valued the Docks Commissioners lands and heritages at £74,246, which includes the whole subjects included in the valuation by the Assessor of Railways and Canals. Therefore the subjects which are situated outside the burgh boundaries have been valued twice over.

The summons, which is at the instance of the Dock Commissioners, contains first, a declaratory conclusion that ‘a portion’ of the pursuers' lands and heritages, known as the Harbour and Docks of Leith, is situated to the seaward side of the line of low water-mark, as such low water-mark existed at the date of the passing of The Representation of the People (Scotland) Act 1832 (2 and 3 Will. IV, cap. 65). The second conclusion is ‘the said portion of the lands and heritages is situated, for the purposes of The Lands Valuation (Scotland) Act, 1854 and the Acts amending the same, outwith the boundaries of the burgh of Leith, and does not fall to be valued by the defender George Simpson, as assessor foresaid, as lands and heritages situated in the said burgh.’ Now there is here no indication of what portion it is that is here referred to. There is no description or delineation on a plan of the extent of the area referred to, which may be great or small. The third and fourth conclusions are for declarator that the Burgh Assessor's valuation of £74,246 includes the said portion, and that the pursuers are not liable to be rated or assessed by the burgh in respect of the said portion. This leaves the area as indeterminate as before, and there is no suggestion as to what is the value of the said portion. The fifth conclusion seeks declarator that the said portion situated outwith the burgh of Leith is also situated outwith the parish of Leith, and that the pursuers are not liable to be assessed in respect thereof by the Parish Council of Leith. Then follows a conclusion for total reduction of the entry in the valuation roll of the burgh of £74,246 as the value of the harbour and docks of Leith, and a conclusion that the Burgh and the Parish Council should be interdicted from levying any assessments on the pursuers in respect of their lands and heritages in Leith upon the said valuation. There is also a conclusion for interdict against the Parish Council levying any assessments on the pursuers in respect of the said portion of their lands and heritages situated outwith the boundaries of the burgh.

Although, as already indicated, I am in favour of the pursuers on the real question at issue between them and the defenders, I have not been able to see that I can give effect to it through the conclusions of the present action.

There are two difficulties which might perhaps be overcome by amendment if they were the only obstacles. The first is that no means are provided in the conclusions for defining what portion of the pursuers' lands and heritages is situated to seaward of low water-mark as it existed in 1832; the second is that the County Council of Midlothian, who are the parties interested to maintain what portion, if any, of the pursuers' lands and heritages are in the county, have not been made parties to the action. Even if these were remedied it would still leave the main difficulty. It appears to me that the result of a portion of the pursuers' lands and heritages being outside low water-mark is not necessarily to delete the entry of £74,246 in the valuation roll of the burgh of Leith, and there is no material for deleting part of the entry. The case is quite different from that of Sharp v. Latheron Parochial Board, 10 R. 1163. There the subjects in question were twice entered in the valuation roll, and interdict was granted against the execution of a distress warrant for poor rates. In Abercromby and Others v. Badenoch and Others, 1909, 2 S.L.T. 114, it was held that there had been an improper entry of a party in the valuation roll, and interdict was accordingly granted against the recovery of assessments. In the present case, however, the procedure adopted by the Burgh Assessor was the same as had been followed for a number of years. The whole difficulty has been occasioned by the pursuers making application for valuation by the Assessor of Railways and Canals without first ascertaining by admission or action what portion of their lands and heritages, if any, lay outside the burgh. They commenced by putting a part of their lands and heritages into the county, whereas they should have first proceeded to get it taken out of the burgh. The result is that for the current year part of their lands and heritages is liable to double assessment. It appears to me that the pursuers' remedy is by way of suspension quoad excessum if the double assessment is sought to be recovered. They must, however, in order to succeed establish (1) the extent of the area that is being double assessed; and (2) the amount of assessment that effeirs to it. This cannot be done in the present action. The first point is, in my opinion, not one appropriate for the determination of the Assessor of Railways and Canals.…

The result is that, in my opinion, the present action should be dismissed. In the

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circumstances of the case there will be no expenses found due to or by either party.”

Argued for the pursuers—The boundary of Leith was fixed in 1832 as the low watermark existing at that date, and it did not fluctuate. A boundary could only be altered vi naturæ or vi statuti. It was true that in the case of an ordinary estate a boundary by the sea was fluctuating and that the proprietor was entitled to follow the water to the point to which it might naturally retire or be artificially embanked— Campbell v. Brown, November 18, 1813, F. C. But that well-established law did not apply to administrative areas. Parliament had provided means whereby a burgh might obtain extension — Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 11; Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 96; Burghs Extension (Scotland) Act 1857 (20 and 21 Vict. cap. 70). See Midlothian County Council v. Magistrates of Musselburgh, 1911 S.C. 463, 48 S.L.R. 335. Moreover, the analogy of an estate bounded by the sea did not help the defenders, because it was only in a question with the Crown, and not with a subject superior, that a boundary was fluctuating— Young v. North British Railway Company, August 1, 1887, 14 R. (H.L.) 53, 24 S.L.R. 763. Smart & Co. v. The Town Board of Suva, [1893] AC 301, differed from the present case in that there was there no competing administrative area adjoining. (2) Esto that the boundary was fluctuating, it only varied from natural causes and was not affected by the erection of artificial structures. These were outwith the burgh when erected below low water-mark, and were in the county — Dunoon Commissioners v. Hunter's Trustees, February 16, 1895, 22 R. 379, 32 S.L.R. 285. Moreover, piers under which the tide ebbed and flowed were different from embankments. If a burgh could extend its boundaries by pushing out erections into the sea, grave injustice might be done, as it could thereby at its own hand acquire right to a valuable bed of minerals. (3) In any event, the dredged channel which was admittedly below low water-mark was a part of the pursuer's lands and heritages outwith the burgh boundary. The pursuers were clearly owners and occupiers of the channel in the sense of the Valuation Acts — See Clyde Navigation Trustees v. Adamson, June 22, 1865, 3 Macph. (H.L.) 100, and the Mersey Dock and Harbour Board v. Jones, &c., which was reported as a note to the above case at 3 Macph. (H.L.) 102. Channels were enumerated as among the undertaking of the Mersey Docks, and the whole undertaking was held to be assessable by the House of Lords. Water pipes had been held separate assessable subjects — Edinburgh Water Company v. Hay, 1854, 1 Macq. 682; Corporation of Glasgow v. M'Ewan, November 23, 1899, 2 F. (H.L.) 25, 37 S.L.R. 620, and February 3, 1899, 1 F. 523, 36 S.L.R. 437. Moreover, it had been decided that the expenses of dredging a channel below low water-mark were a proper deduction from the rateable value of a harbour — Burghead Harbour Company Limited v. George, June 28, 1896, 8 F. 982, 43 S.L.R. 754. The dredged channel was res corporalis — Lord Kinnear in Burghead Harbour Company, Limited v. George ( sup. cit.) at 8 F. 996. Lord Advocate v. Clyde Navigation Trustees, November 25, 1891, 19 R. 174 (Lord Young at 183), 29 S.L.R. 153, was also referred to.

Argued for defenders—When a burgh was bounded by the sea the boundary was necessarily fluctuating, as was the boundary of an estate in the same circumstances— Campbell v. Brown ( sup. cit.); Boucher and Others v. Mrs Crawford, F.C., November 30, 1814; Blyth's Trustees v. Shaw Stewart, November 13, 1883, 11 R. 99, 21 S.L.R. 83; Young v. North British Railway Company ( sup. cit.) per Lord Watson at 14 R. (H.L.) 53. An opus manufactum altered the boundary just as did natural change. The burgh boundary was where low water-mark was de facto at the present time. Smart & Company v. Town Board of Suva ( sup. cit.) was precisely in point and conclusive in the defenders' favour. (2) The dredged channel was not a land or heritage within the meaning of the Lands Valuation Acts and was not an assessable subject. It was outwith the harbour altogether. The pursuers had merely got licence by Act of Parliament to interfere with the solum belonging to the Crown and to take out mud. They were not owners nor occupiers of the open sea, The channel could be freely sailed over by all. The test of ownership was the right of exclusive occupation — Adamson v. Clyde Navigation Trustees, June 26, 1863, 1 Macph. 974 (L. J.-C. Inglis at 987); Clyde Navigation Trustees, July 25, 1866, 4 Macph. 1143. (It appeared at p. 1147 that waterways were not considered assessable). Burghead Harbour Company, Limited v. George ( sup. cit.) was an altogether different case. There the dredging operations were within the harbour boundaries. It was, in any event, vain for the pursuers to contend that Adamson v. Clyde Navigation Trustees ( sup. cit.) was overruled by Burghead Harbour Company, Limited ( sup. cit.), for in a recent case the authority of Adamson was left absolutely untouched — Assessor for Lanarkshire v. Clyde Navigation Trustees, 1908 S.C. 620, 45 S.L.R. 501. Clyde Navigation Trustees v. Assessor for Lanarkshire, 1910 S.C. 840, 47 S.L.R. 384, had very recently decided that the expense of dredging inside docks—but not outside them — was a proper deduction in arriving at the valuation of a harbour undertaking.

At advising—