United Kingdom House of Lords Decisions

LORD PRESIDENT (Emslie).—The pursuers are the proprietors of both banks and the alveus of the Knockando stretch of the River Spey which lies in its middle reaches between Grantown-on-Spey and Aberlour. They also are in right of the salmon fishings in this stretch which, more particularly defined, includes at the upstream end a pool called "The Slobs" and, at the downstream end, a pool called "Craigneish." The river in this stretch and for a considerable distance downstream is non-tidal. Further, the river as a whole is admittedly not navigable by any vessel in an upstream direction.

The defenders are a company incorporated in 1969. The sole director is a Mr Freshwater who is the principal shareholder. The main activity of the company is the running of courses in canoeing and sailing. As the Lord Ordinary has found these courses provide both instruction and recreation to visitors to the area and make a useful contribution to the amenities and facilities available to the many people who take holidays on Speyside. The headquarters of the defenders are at Loch Insh a small loch situated many miles upstream of Knockando. As it was described at the hearing before us it is like an aneurism on the artery of the Spey which enters its upstream end and leaves its downstream end. Under a contract with the Forestry Commission the defenders have right of access to the waters of Loch Insh for, inter alia, a defined number of canoes. In carrying out their canoeing courses which are held during a period of about twelve weeks each summer, the defenders have made a practice of taking parties of pupils on expeditions or voyages of varying length and duration down river from Loch Insh. Some six to ten times each canoeing season these expeditions pass through the Knockando stretch and travel at least as far as Aberlour, a few miles downstream of Knockando, and sometimes to the sea. The Spey is particularly suitable for canoeing and is visited for that purpose by clubs and associations and individuals from all parts of Britain. Many of the parties of canoeists travelling downstream, including the defenders' parties, are in well organised and controlled groups which endeavour to cause as little disturbance to other interests as possible.

The Spey is one of the finest salmon angling rivers in the country and many of the private beats, including the Knockando stretch, fetch high rents and are highly assessed for rating. Part of the salmon angling on the river is rented by local angling associations.

As the result of the growth of canoeing, differences arose between the canoeing and angling interests, and difficulties were encountered in working out a modus vivendi acceptable to each interest. In negotiations it became clear that the canoeing interests maintained that canoeists as members of the public had a right in law to canoe down the Spey while the angling interests contended that there was no such right in favour of the public and that the canoeists had no other right to do so.

In the foregoing circumstances the pursuers brought this action with a view to protecting their valuable trust asset consisting of the salmon fishings in the Knockando stretch. Their first conclusion is for declarator that in the Knockando stretch they have "the exclusive right of navigation." Their second is for declarator that they are entitled to prevent the defenders, their agents, servants and pupils from canoeing or attempting to canoe in, or from landing on the banks adjacent to, this stretch of river. Their third and fourth are for interdict against the defenders themselves and by their agents servants and pupils canoeing or attempting to canoe in any part of the Knockando stretch and, so far as the defenders, their agents and servants are concerned, encouraging, advising or instructing any person to use canoes therein. The conclusions for interdict were originally directed also against the act of landing on and passing over the banks owned by the pursuers but this aspect ceased to be of importance in light of an acceptable undertaking given by the defenders. The fifth conclusion added by amendment is designed to come into play if the pursuers fail on their main conclusions In effect, it seeks regulation by the Court of canoeing by the defenders in the Knockando stretch.

After proof before answer the Lord Ordinary assoilzied the defenders from the first conclusion of the summons and from those parts of the second, third and fourth conclusions which relate to canoeing or attempting to canoe in the Knockando stretch, and refused to grant decree in terms of the fifth conclusion. As his full, clear and careful opinion shows he disposed of the action as he did essentially because he felt constrained by authority binding upon him to hold that a public right of navigation in the Spey had been established in 1781, that that right still subsists, and that it is wide enough to cover navigation by canoe. I need hardly add that these propositions which he has accepted were the key propositions of the defenders.

In this reclaiming motion the pursuers have invited us to recall the interlocutor of the Lord Ordinary and in presenting their submission expressed themselves as content with the Lord Ordinary's findings upon the evidence. Not surprisingly the debate at the hearing before us, which was conducted with outstanding skill and scholarship on both sides of the Bar, subjected the main issues which had been argued before the Lord Ordinary to careful and exhaustive scrutiny. I, for one, am much indebted to counsel for their very great assistance to the Court and I cannot do better than to express my opinion upon the critical questions for decision in approximately the order in which they were argued before us.

At the outset however the defenders renewed certain arguments of a preliminary character which cannot have impressed the Lord Ordinary for he does not mention them and it will be convenient to dispose of them.

The first of these was that the language of the first conclusion implies that the Spey is a navigable river. If it is then, as one of the main submissions of the defenders sought to demonstrate, it must be subject to a public right to navigate therein. No proprietor of the alveus and banks of a non-tidal navigable river may therefore claim exclusive right of navigation in any part of such a river. In any event, so ran the argument, the case of Grant v. The Duke of Gordon in 1781 declared certain rights of navigation in the Spey in 1781 in favour of riparian heritors, and in these circumstances the first conclusion cannot stand. In my opinion this argument is unsound. The assumption on which the conclusion falls to be tested is that neither the public in general, including the defenders, nor any one else, has any legal right to "navigate" the Knockando stretch of the Spey within the boundaries of the pursuers' estate. In particular, it is part of the pursuers' case that if the right declared in favour of the pursuing heritors in Grant in 1781 was one akin to servitude (a) it was a servitude only over the Duke of Gordon's water, and (b) it has in any event been extinguished by non-exercise for the prescriptive period. Within their boundaries the pursuers are the riparian proprietors and proprietors of the salmon fishings. Upon that assumption it is clear that the "exclusive right of navigation" claimed by the pursuers rests upon the proposition that in a truly private river passing through an estate the proprietor has the exclusive right to make any use of the water he pleases so long as such use does not reduce or alter the quantity or quality thereof passing downstream and does not injure any superior heritor by regurgitation or otherwise. The navigation mentioned in the first conclusion is simply one of the uses of the water in the Knockando stretch competent to the pursuers as proprietors of the banks and the alveus thereof and the pursuers do not imply at all that the Spey is a navigable river. Their case is that in so far as the Knockando stretch is navigable then they and they alone have the right to navigate therein. In my opinion accordingly the first conclusion is perfectly competent and is supported by sufficiently relevant averments. The rights of riparian proprietors in the running water of a truly private river within their boundaries are well settled. They do not have right of property therein but they do have an exclusive right of usufruct thereof subject only to the well defined restrictions in favour of upper and lower heritors. As Lord Kinnear put the matter in Grant v. Henry [1894] 21 R. 358 at p. 365 "He has therefore a right of use, which, although not unlimited, is indefinite and is available against all the world; …" To the same effect are the observations of (i) the Lord Justice-Clerk (Hope) and Lord Cockburn in Fergusson v. Shirreff [1844] 6 D. 1363, at pp. 1366 and 1374; (ii) of Lord Neaves in Morris v. Bicket [1864] 2 M. 1082, at p. 1092; and (iii) of the Lord President (Inglis) in Hunter and Aitkenhead v. Aitken [1880] 7 R. 510, at p. 514. If, therefore, the Knockando stretch of the river is subject to no right in the public or in any other heritor to navigate in or through it, the pursuers' exclusive right of use of the water in that stretch, subject to the well known restrictions in favour of upper and lower heritors, will include an exclusive right of navigation therein. Before leaving the matter of the first conclusion I feel bound to say that, having regard to the real issue in this action I question the necessity for it. The real issue, of course, is whether the pursuers are entitled to exclude the defenders from the Knockando stretch and it seems obvious that their entitlement need not depend upon any exclusive right of navigation therein.

The second of the defenders' preliminary arguments was that the second conclusion could not stand alone. I have already held that the first conclusion has survived the defenders' criticisms and, accordingly, this argument as presented deserves no further attention. Even if, however, the pursuers had not tabled the first conclusion at all I would have had no difficulty in holding that the second conclusion as framed is competent and supported by relevant averments. Let it be supposed that the pursuers in a question with any other riparian heritors could claim no exclusive right of navigation in the Knockando stretch of the Spey, and that the first conclusion is therefore bad. The fundamental assumption underlying the second conclusion is merely that the defenders have no relevant right. Upon that assumption the pursuers have, in my opinion, sufficiently set out on averment the circumstances in which they would be entitled to declarator in the terms sought.

Finally in this preliminary chapter the defenders argued that decree in terms of the second, third and fourth conclusions and especially in terms of the third and fourth conclusions, could not be pronounced in the pursuers' favour in the absence of proof that the defenders' activities had themselves caused or threatened damage. In presenting this argument the defenders pointed out that the Lord Ordinary has found only that repeated passage of canoeing groups through a salmon fishing beat is likely to have some adverse effects on the catch which is more than minimal, and has not found that the passage of the defenders' canoeing groups has made or is likely to make a material contribution to such damage in the Knockando stretch. As to this argument, I am unable to see why proof of damage or threatened damage is a necessary prerequisite to declarator in terms of the second conclusion. So far as the conclusions for interdict are concerned I entirely share the Lord Ordinary's opinion that proof of actual or potential damage by the defenders is not required to justify the grant of the interdict sought. The assumptions on which these conclusions fall to be tested are these. The first is that the pursuers found upon the clear basic right of proprietors to exclude those who invade their property and privacy. The second is that the defenders have entered the Knockando stretch upon a claim of right when they have none, and have continued to maintain their right to do so. In my opinion on these assumptions the Court will not refuse to protect the proprietor's right by interdict even in the absence of damage or threatened damage to property by the persistent intruder, and I am aware of no authority which requires proof of damage or threatened damage to property to justify the grant of interdict against an intruder who asserts a public right to intrude when there is none. In any event the Lord Ordinary's finding of the effect of the repeated passage of canoeing groups upon inter alia the pursuers' salmon fishings amply, in my opinion, reinforce the pursuers' justification for seeking interdict against the defenders. If the actings of the canoeing public are causing damage it cannot be a defence in the mouth of each individual member of that canoeing public to say, as the defenders say here, "it is not proved that my own particular contribution to the damage is material."

I pass now to an examination of the interesting and important questions which arise upon the merits of the dispute. In order to set these questions in their proper context it is as well to appreciate in outline the form which the competing contentions of the parties took. The defenders who supported the decision of the Lord Ordinary took their initial stand upon the proposition that the decision in the case of Grant v. The Duke of Gordon [1782 2 Paton 582; Morison's Dictionary Vol 15 12820] proceeded upon recognition of the Spey, including the Knockando stretch, as a "public navigable river" in which there was a public right of general navigation. They then contended that the public character impressed upon the river in 1782 still subsisted in 1972, that the public right of navigation has never been extinguished, and that that right is now available for exercise by the defenders. In any event, said the defenders, the Spey is navigable by canoes downstream from at least Newtonmore; it has been used for such navigation by canoes increasingly for many years; and, this use being of evident public benefit, all the necessary preconditions for recognition of a public right to canoe down the Spey have been satisfied.

The pursuers on the other hand contended that the decision in Grant declared only a private right akin to servitude in favour of the pursuing heritors over the Duke of Gordon's water which has in any event been lost by non-use. Alternatively, said the pursuers, if the decision turned upon public right it was merely a public right entitling the pursuers, superior heritors on the Spey, to pass with floats and rafts down the river to the sea. Upon neither of these views of the case of Grant does it assist the defenders. In any event, it was the pursuers' contention that a public right of navigation whether general or restricted in scope was to be equiparated with a right of way over land. It followed, therefore, so ran the argument, that prescriptive use of the river, inter alia, was essential to the establishment of the right, and that the right could be lost by non-use for the prescriptive period. Upon this approach not only was any public right held to exist in 1782 extinguished by proved non-exercise for over forty years since 1885 when the last floats and rafts passed to the sea, but the establishment of any public right of navigation by canoe was negatived by the proof which demonstrated that overt canoeing from upstream of, and through, the Knockando stretch had not been practised for the requisite period of forty years prior to the bringing of this action.

From this brief account of the respective positions adopted by the parties, it is evident that the first question to be resolved is what was the basis and significance of the decision in the case of Grant v. The Duke of Gordon in 1782. The problem arises because the basis of the decision is not immediately apparent from a consideration of the interlocutor, and because the opinions of the Judges of the Court of Session and the speeches of the Members of the House of Lords who disposed of the action are not reported.

I begin by setting out the history of the action culminating in the interlocutor of the Court of Session dated 18th January 1781, which was in these terms:

"The Lords having advised the Reclaiming Petition, Answers, Replies and Duplies, with the Memorials for the Parties, find, That in terms of the Interlocutors already pronounced in this Cause, the Duke of Gordon has a Right of Cruive Fishing in the River Spey; but find, That Sir James Grant, and the other Appellants, Superior Heritors on the Spey, have a Right and Title to pass with Floats and Rafts down the said River to the Sea, from the 26th Day of August to the 15th Day of May. And Find, That from the 26th Day of August to the End of March they are entitled to the Exercise of the said Right of floating indiscriminately, without any restriction or limitation. But that, in the exercise of that Right from the last day of March to the 15th Day of May, the persons employed in the floating must give Notice to the Tacksman of the Duke's Cruive Fishing, or their Manager personally, or at the Waulk Mill of Fochabers, now called the Fishing Quarters, between sun-rising and sun-setting, and that at least four hours before the floats are to pass, that the Duke's Fishers, or others concerned in the Cruives, may make a passage for the Floats or Rafts of passing the Cruive Dykes, and failing their opening a passage to the floats or rafts, within Four Hours after each Notice, allow the persons attending the Floats or Rafts to open a passage for themselves in the Cruive Dyke, and to pass freely without any Interruption, and decern and declare accordingly."

This interlocutor was affirmed by the House of Lords on 28 February 1782. The action was the last of a series in a running battle which began in 1725 between various proprietors of salmon fishings in the Spey and the Duke of Gordon. The object of these actions was the removal of a cruive erected by the Duke of Gordon in a reach of the river where he was riparian proprietor. The cruive which was profitable to the Duke, had the effect of preventing salmon from passing upriver and the actions were entirely inspired by the desire to eliminate the prejudice caused by the cruive to the fishings upstream.

The first of these actions in which there was any mention of the question of sending floats of timber down the Spey began in 1756. In that year Sir Ludovick Grant brought an action against Sir Robert Gordon concluding for declarator that "he had no right to use Cruives, Yairs, Braes or Dykes to the prejudice of Sir Ludovick, a superior heritor of Salmon Fishing." In a counter action Sir Robert concluded not only to have "his own Right of fishing by Currochs Cobles and Braes ascertained but to have it declared that Sir Ludovick Grant had no Right to send floats of timber down the river to the prejudice of his Fishings." After proof the Court pronounced an interlocutor finding inter alia that Sir Ludovick had right to convey floats of timber down to the sea, that Sir Robert had no right to erect cruives and must demolish them, but that Sir Robert did have right to continue his brae and dyke fishing "under such Regulations as shall be consistent with Sir Ludovick Grant's Right of Floating Timber …" The parties were then ordered to put in memorials on the question of regulations. Both parties reclaimed. The Court refused the petition of Sir Robert and as to Sir Ludovick's, continued the question of Sir Robert's right to erect Bulwarks Dykes and Braes until other owners of Braes and cruives upon the river were "brought into the Field by a proper process." Nothing more seems to have been done in this action and although Sir Ludovick's right to float timber downstream to the sea was declared there is no record of the basis of this decision or of the arguments submitted in justification of this right. With this brief reference to the action of 1756 it is not necessary for the purposes of this reclaiming motion to take up the story again until 1773.

In that year certain heritors, including the Grants of Knockando and of Carron, founding only upon their rights of salmon fishing in the upper parts of the river, sought to reduce the Duke of Gordon's right of cruive fishing granted by the Crown, in particular by a Charter of Novodamus of 1684 on which the Duke relied, and concluded inter alia for a finding that if the Duke did have right to fish by cruives or dykes, that right must be regulated in the interests of the pursuers' fishing rights. In 1774 the pursuers introduced, in the form of a new plea, a claim of right to float timber down the Spey. After sundry procedure the Court on 23 July 1778 held established the Duke of Gordon's right to put his cruives at any convenient place within his bounds, and remitted the question of the alleged right to float timber to be the subject of discussion before the Lord Ordinary. This led to the final action of the series which was brought against the Duke of Gordon in 1778.

In the action of 1778 the pursuers were Sir James Grant of Grant and others (almost entirely members of the Grant family) and all sued as proprietors of salmon fishings upstream of the Duke of Gordon's water. The terms of the declaration sought by the pursuers were as follows—To find and declare, that the pursuer, his tenants, and other inhabitants of his lands and estates, and all other persons his Majesty's subjects, have good and undoubted Right, at all times and seasons when they think necessary, to send floats of timber down the said river from the superior parts thereof, all the way to the sea and to free navigation of this river in every way that the same is capable of being navigated by boats, rafts or floats, as they think proper, and to have every obstruction, dyke or bulwark which may impede such navigation, removed. And that the said Alexander Duke of Gordon should be decreed and ordained to demolish and remove all dykes, braes, and other bulwarks whatsoever, under whatsoever name the same may pass, erected by him, his tenants, servants, or others, within the bounds of the river in which he has any interest or concern, by which the said navigation, or right of floating is or may be obstructed or any way impeded; and prohibited and discharged from erecting any such dykes, dams, braes, or other bulwarks in time coming, under such penalty as the Court shall please to modify, etc."

In 1779 Counsel for the Duke represented to the Court as follows—"That there could be no interference between the right of cruive fishing established in favour of the Duke of Gordon, and the right of floating claimed by Sir James Grant and the other Heritors, if they were not emulously exercised; and to satisfy the Court that his Grace was disposed to accommodate the appellants in the exercise of floating, during the seasons when it could be most profitably exercised, and when the river was best suited for the transportation of timber his Counsel consented that the appellants should be at liberty to float their timber down the Spey, not only from the 26th of August, yearly, when the salmon fishing ends, to the 30th of November, when it usually begins; but also to continue the exercise of floating forward to the middle of March, which must be sufficient for the purpose of floating, being the seasons best suited for the exercise thereof in this river."

The pursuers were by no means satisfied with this, notwithstanding the apparent concession of the right of floating which they had claimed, and continued to press for an unrestricted right to send down floats of timber which alone might result in the removal of the Duke's cruive. The Court nevertheless, on 26 November 1779, pronounced the following interlocutor—"On report of the Ordinary, and having advised the Informations given in for the parties in this cause, and what is above represented, of consent of the procurators for the Duke of Gordon, the Lords find, that Sir James Grant, Bart., General James Grant of Ballendalloch, Colonel Alexander Grant of Arndilly, and others, Heritors of salmon fishings on the River Spey, have right of floating timber down the said River, from the superior parts thereof, all the way to the sea, from the 26th day of August, to the 15th day of March, yearly; and remit to the Lord Ordinary to proceed accordingly." The pursuers immediately reclaimed praying the Court "to alter the same, and to find that they had right at all times, and in all seasons, to float timber down the Spey, and to navigate it by boats, currochs, and rafts, in all parts; and that the respondent had no right to erect braes, dykes, or bulwarks in the bed of the river, so as to interrupt the navigation; and to ordain all such to be demolished and kept down for ever, and the Respondent prohibited from erecting any such in time coming; at least to find, that any such bulwarks, etc, must be so constructed as to be consistent with the public Use of the river, and right of transporting timber, or any other commodities, down to the sea, or to any part of the banks of the river; and that at all times and in all seasons, without any limitation or restriction whatsoever." The Duke of Gordon put in Answers, and Replies Duplies and Memorials followed, copies of all of which, including the reclaiming petition have been made available to us. For the moment I say nothing of the arguments with which the action and the pursuers' reclaiming petition were primarily concerned. By the interlocutor of 18 January 1781 which I have already quoted the Court sustained the reclaiming petition only to the extent of allowing the pursuers to send down their floats and rafts from 26 August to 15 May each year subject to the specific requirement that quoad the period from the end of March until 15 May notice had to be given of the impending arrival of floats so that a passage might be made in the cruive. If after due notice had been given no passage was made those attending the floats or rafts were held entitled to make one for themselves. On 9 March 1781 the Court adhered to this interlocutor subject to the following variations—"The Lords having advised this petition, with the Answers, Replies, Duplies, and Observes upon said Duplies, they adhere to their former interlocutor, and refuse the desire of the petition, with the following variations; That the superior heritors on the River Spey are only to float from sun-rising to sun-setting; and also that they are to pass the cruive dyke seriatim at the Place pointed out to them by the Duke's fishers, who are always to make said openings so as to allow the floats to pass freely and conveniently, and decern and declare accordingly." In this state of the action both parties appealed to the House of Lords. For the Duke the purpose of the appeal was to restrict the period of floating to the period covered by his original concession. For the pursuers the purpose was the removal of all restrictions on the right to send down floats and rafts which had been recognised by the Court and the Sixth Reason of appeal for the pursuers was in the following terms—"The respondent is not entitled to interrupt the navigation of the River, and particularly the floating of timber or any other commodities from the higher parts of the country. The River Spey is a navigable river, and fit for the purposes of commerce. It has been used as such for ages, by the owners of estates, and inhabitants in the upper country, without challenge from the respondent or his ancestors. Supposing for a moment the river had not been used for commercial purposes prior to the present time, if any subject of commerce should now be found transportable by this river, the public could not be restrained from the free use of the river; but the Court of Session have restrained the superior heritors, and deprived them of the use thereof for a considerable part of the year, both contrary to public right and immemorial usage. The Court, by their interlocutor, have consigned to a subject the power of exercising, at his pleasure, for a certain space of time, the absolute dominion over a public navigable river, contrary to the natural and constitutional rights of the people of this Kingdom." As I have already indicated the appeals were dismissed and the interlocutors complained of were simply affirmed.

Before expressing my view on the basis of the decision of 1782 I must mention the background of fact against which it must be understood. The heritors, who were the pursuers, laid great stress upon the value of their woods and the importance of getting their timber to the sea in their own and in the public interest. It appears clear that from the Seventeenth Century onwards the river had been used to float loose logs down to the sea. A practice then developed of forming a few logs into small loose rafts and these rafts were guided downstream by a man in a curroch to whose leg they were in some way attached. In 1728, however, the York Buildings Company purchased a large quantity of timber from the Strathspey estates and introduced a more economical and less hazardous method of getting the timber downstream. The timber was formed into large rafts or floats the size of which is uncertain but there may have been up to 30 logs in each. On these rafts were set benches of oars and the rafts were steered and assisted downriver by two oarsmen. On the introduction of these floats it appears to have been the practice to use them from time to time to carry various items of country produce, such as butter, cheese, and skins. They were also used to carry other timber and, on occasions, inhabitants of the upper country travelled downstream on the floats as passengers. From the heritors' point of view the important matter was the use of these large oared floats which the cruive obstructed and it is no doubt these rafts or floats which are those specially mentioned in the interlocutor of 18 January 1781. What then was the basis of the decision? For the pursuers the argument was that the basis was one of private right in the heritors themselves, and that the right was of the nature of a servitude over the Duke of Gordon's water. There is no doubt that an argument for such a private right was presented as an alternative to the heritors' main argument in favour of the existence of a public right. The contention of the pursuers was that the two arguments were reflected in the declaration sought in the action of 1778 in which the heritors claimed a right for themselves, their tenants, and other inhabitants of their lands and estates, and all other persons his Majesty's subjects to send down floats of timber and to navigate the river freely in every way it was capable of being navigated. It was pointed out that in their reclaiming petition of 1779 the heritors appear to have dropped the claim in favour of all members of the public, and it was emphasised that the decision of 18 January 1781 did not declare any right of general navigation and that the interlocutor finding the right to pass with floats and rafts, expresses that right to be in favour of the appellants, "Superior Heritors on the Spey." Further it was pointed out that although the heritors sought in their appeal to the House of Lords in 1781 a declaration of a general right of public navigation the appeal failed. In these circumstances, said the pursuers, the Court must have rejected the argument for the public right claimed.

In my opinion the pursuers' contention fails. Even if one were to assume that a servitude over discontiguous water could be established by prescriptive use of the water upon the basis of an upper riparian owner's title to lands, there seems little doubt from the Session papers that by 1781 the practice of sending down the large oared floats had not been fortified by prescription. I need not, however, dwell on this topic because it is abundantly clear that the decision proceeded upon recognition of a public right. As the Lord Ordinary says in his careful review of the authorities which I need not rehearse, the case of Grant v. The Duke of Gordon has been consistently construed as having proceeded upon public right, and while it was possible in the Outer House to argue that all the subsequent commentaries on the case stem from the report of the decision in Morison's Dictionary, and that the reporter may have been mistaken, the reasonable accuracy of that report has now been amply demonstrated by additional material placed before us which was not available in the Court below. That material consists firstly of manuscript notes made by counsel of the opinions of the judges of the Court of Session. They were written upon the Session Papers in the Arniston Collection Vol 138 No. 6 and in the Campbell Collection Vol 40 Nos 19 and 20. It was upon material such as this that contemporary reports of decisions of the Court were largely based, and there is no reason to doubt their authenticity or accuracy. They are, of course, notes only and are, in places, telegraphically expressed, but they demonstrate beyond all question that the Court proceeded upon the view that the river was subject to a right in the public to use it to pass floats and rafts of timber down to the sea. I do not rehearse the notes of each judge's opinion in so far as it is possible to decipher the manuscript. It is sufficient to say that running through all of them is the theme that the river has been long used for the purpose of floating rafts of timber downstream, that that use of the river is of great public benefit and that these considerations demonstrate a public right to continue that use of the river. As the Lord President appears to have said (see Notes on the Campbell Collection papers) "the river is in one sense navigable—the river is publici usus for the heritors inhabitating the banks of it—injurious to Britain if these woods locked up." In addition to these notes, however, we have also had the advantage of seeing Notes of the opinions of the judges made, it appears, by Baron Hume himself, on the "Information" for Dun can Forbes and others in the action against Sir James Grant of Grant and Macdonell of Glengarry in 1804. This "Information" is part of the relevant Session papers in the Hume Collection Vol 52 (28–63) No. 7. From these papers it can be seen that in this action one of the issues raised was what had been decided in the case of Grant v. The Duke of Gordon . As in that case the main bone of contention was the exercise of the right of cruive fishing, this time in the River Ness. From these notes we find in particular that Lord Meadowbank appears to have said inter alia—"In short the transportation of the wood—the profit of that country—is the main matter—to which the fishing of salmon must give way. If case of Grant v. The Duke of Gordon was not decided on that footing it was wrong and I won't regard it. A salmon fishing and the float of wood are not in pari casu." More importantly, however, the Lord President (Sir Islay Campbell, who had been of Counsel for the pursuers in Grant v. The Duke of Gordon ) is reported thus—"In case of Grant was held that right of floating was the super-eminent right—but not to be used emulously. So notices … were ordered in that case. Otherwise judgment would have ordered the cruives to be demolished." In face of this additional material which I have mentioned there is no escape from the conclusion that Grant v. The Duke of Gordon was decided upon the basis of a public right and that that right was held available to the upper heritors as members of the public who had lawful access to the water.

The next question for decision is as to the nature and scope of the public right in the River Spey which formed the basis of the judgment in Grant v. The Duke of Gordon . So far as the decision is concerned it merely declared in favour of the heritors as members of the public with lawful access to the river, a right to pass with floats and rafts down to the sea. For the defenders the submission was, however, that the effect of the decision was to bring the Spey into the category of public navigable rivers which are inter regalia, and that in all public navigable rivers the rights of the public to navigate therein by any type of craft or vessel and for any purpose are, subject only to the law of nuisance, as unrestricted as the rights of the public to use an established highway. It does not matter, said the defenders, that the recognition of the public right in Grantdepended upon proof only that navigation by the post-1728 floats was of public benefit. The decision in short stamped the river for all time with the character of a public navigable river and as such it is available for all navigational uses by the public including those which may not be of the slightest public benefit. The basis of this argument was that in none of the institutional writers nor in any of the decided cases on navigable rivers is any distinction drawn between one navigable river and another. Even those which merely serve the useful function of floating lighter vessels or other things downstream to the sea or their market are treated as public rivers, and no distinction is drawn between such rivers and fully navigable rivers tidal and non-tidal, so far as the extent of the public right is concerned. All are regarded as if they were public roads or highways and on that analogy the public rights in any public river must be equally extensive.

In my opinion this proposition is so startling and so far-reaching that I would be reluctant to affirm it unless I were compelled or persuaded by authority or dicta to do so.

In examining it, I look first of all at the institutional writers for such guidance as they afford on the state of the law prior to 1781. Stair (II-1-5) says:

"of things appropriated there remains still the common use of ways and passages, which is like a servitude on property; for this is necessarily required for the use of man and therefore understood as an use reserved, both in their tacit consent to appropriation; and in their custom. So all nations have free passage by navigation of the ocean, in bays and navigable rivers."

Bankton (II.7.27) refers to public rivers along with the King's Highways in terms which certainly do not suggest that he is dealing only with tidal rivers. Erskine (II.1.5) says "other things, though they be of their own nature capable of property, are exempted from Commerce in respect of the uses to which they are destined. Of this last kind are, first, the res publicae of the Romans which were common not to all mankind, but to the state or community; such as navigable rivers, highways, harbours and bridges etc., the property of which belongs to the state or kingdom in which they lie, and their use to all the subjects or members of that kingdom, and to those strangers to whom it allows the liberty of trade, not only rivers themselves, and their bed, or alveus, but their banks also, are public, in so far as they may be subservient to the purpose of navigation." At II.6.17 he says "All the subjects which were by Roman law accounted res publicae are, since the introduction of feus, held to be inter regalia or in patrimonio principis as rivers, free ports, and highways—From hence the narrowing of a highway or altering the course of a river, is said by our most ancient law to infer the crime of purpresture: Reg. Maj. 1.2. C74 para 1—But as the regalia of this sort are little capable of property, and chiefly adapted as the public use, the King's right in them is truly no more than a trust for the behoof of his people; for he cannot hurt the navigation of rivers, or shut up highways.—It is rivers only which are inter regalia; by which writers generally understand navigable rivers, or those on which floats may be carried to navigable rivers. Smaller rivulets or brooks are, according to the general opinion, juris privati."

The first observation to be made upon these passages is that they were made at a time when it was assumed that in the case of navigable rivers the property in the alveus of the non-tidal reaches was in the Crown just as is the alveus of the tidal stretches. It was not until 1876 in the case of Colquhoun's Trustees v. Orr-Ewing & Co. 4 R. 344 and 4 R. (H.L.) 116 that it was recognised that in non-tidal navigable rivers which may be subject to a public right of navigation the ownership of the alveus remains in the riparian proprietors who retain all their other valuable rights and interests in the rivers passing through their lands in so far as these rights and interests may co-exist with any public right. This distinction between tidal and non-tidal reaches of a navigable river is in my opinion so important that it would be unwise to regard as authoritative any pronouncement on the scope of any public right in non-tidal rivers which did not have this distinction in mind. The second observation is that while it is fair to say that until the publication of Erskine's Institute in 1773 the rivers described as being inter regalia were labelled navigable rivers, the passage which I have quoted from Erskine's Institute II-6–7 makes a clear distinction for the first time between navigable rivers and other rivers which may be "public" rivers. The third observation which falls to be made is that all the statements quoted from the institutional writers are quite general in character and in none of them, not even in Erskine, is any attention paid to the question of the extent to which the public may make use of any particular non-tidal river in which it has been held that the Crown has a right in trust for behoof of the public. In short, even if the institutional writers may be understood to have applied the label "public" or even, before Erskine, "public navigable" to non-tidal rivers in which such a right in the Crown has been shown to exist, none of these examines the question which is of importance in this case, and none affords authoritative support for the argument of the defenders as to the effect of the decision in Grant v. The Duke of Gordon . Before leaving the institutional writers it may be as well to say that all appear to be unanimous in holding that the cardinal pre-requisite for recognition of any public right to use rivers for purposes which can be loosely called navigational, is that the river is adaptable for such navigational purposes as have been shown to be useful to the community, or of benefit to the public at large. With this pre-requisite in mind I find it difficult to suppose that when a non-tidal river has been held subject to a public right to use it for particular navigational purposes because these have been shown to be of public benefit, the riparian proprietors, who must accept the burden of the exercise of this public right, must as a result be deemed to have to accept also, as a burden upon their own valuable private rights, all other uses of the river by the public which may qualify for the description "navigational" whether they are of public benefit or not. It may be as well at this stage also to say in this connection that whereas when one is concerned with a non-tidal river which is capable of sustaining all the navigational uses of its tidal stretches and the sea, and which may properly be regarded a valuable and useful extension of the tidal waters linking the interior with the sea, the analogy of highway may not be wholly inappropriate in measuring the extent of the public right. I am not persuaded however that it is at all appropriate in the wholly different case of other non-tidal waters in which only limited navigational uses of the water are held to be of public benefit, and thus to support the existence of a public right.

I next ask myself whether the defenders' argument receives any support from the decision in Grant v. The Duke of Gordon . The decision was reached at a time when the passage in Erskine II-6–17 was the last word in the Law of Scotland on the subject of the public's right to make use of rivers for purposes which may loosely be described as navigational. In my opinion not only does the decision afford no support for the defenders' argument, it is positively destructive of it. The only public right recognised was that of carrying out the beneficial activity of passing floats and rafts down to the sea, and while it may be that the sending of the floats designed by the York Buildings Company could be described as an act of navigation, the Court and the House of Lords declined the opportunity which the heritors continued to the end to give them, of deciding that, on the strength of the proof relating to these floats and rafts, the heritors as members of the public should be held entitled to navigate the river by any practicable means and for all purposes. Support for the view that the decision in Grant did not as matter of law decide that the Spey was subject to a right of general navigation in the public is, I think, to be found in Grant v. Henry 21 R. 358. In that case the defender claimed right to fish in the Spey and rested his claim upon an averment that the Spey had been held in the case of Grant to be a public navigable river. The action was disposed of on the pleadings, and it is, in my view, of some significance that the Court merely assumed for the purposes of the defenders' argument, that there was a public right of navigation in the Spey as extensive as the physical character of the river would permit. Had it been thought that this was the effect in law of the decision in Grant I would have expected the judgment to have proceeded upon that footing.

Finally I have to consider whether in any of the authoritative commentators or text book writers, or in any decision of the Court dealing with rivers subject to rights in the public, there is any real basis for the proposition that every non-tidal river which is a public river must be available for all or any navigational use which any member of the public may choose to make of it. So far as the decided cases are concerned, we had a full citation of all the authorities dealing with Scots rivers subject to rights in the public. All were concerned with what I may fairly describe as the fully navigable river which either constituted a direct channel of communication suitable for general navigational purposes between the sea and the interior, or which formed a direct extension of a fully navigational waterway system which itself afforded full communication between the sea and inland communities. In none of them did the question focussed by the defenders' argument in this case arise. In none was it necessary, because of the nature of the rivers and their capacity for a wide range of navigational uses, all of public benefit, was it necessary to consider whether any particular navigational uses were protected by the public right. In none of them was anything said in course of any judgment which would lead to the conclusion that the defenders' argument has any real substance. The matter, however, does not end there, for in my opinion what was said by Lord Gordon in his speech in the case of Colquhoun's Trustees 4 R. (H.L.) 116 at p. 138 implies acceptance of the view that in certain rivers which are not of the fully navigable character a public right of a restricted scope may competently exist. The passage contains his own commentary upon the case of Grant v. The Duke of Gordon and is in these terms—"This case is of importance in so far as, while it recognises a right of floating timber down the river as a quasi-navigable public right, and as the chief and primary use of the river, and which, if not compatible with the cruive-fishing, would prevail over it, the Court at the same time held that that right of navigation was not so absolute that it was not subject to equitable restrictions when in competition with other rights. And accordingly the right of the upper proprietors was held subject to restriction and limitation as regards the periods during which it could be exercised, a restriction which could not have been recognised by the Court if the right of navigation had been held to be absolute and not subject to equitable limitations."

There remain for consideration the commentators and text book writers. I include in this chapter the report of the case of Grant v. The Duke of Gordon in Morison's Dictionary in which the following passage appears at p. 12822—"The Court in giving their opinions did not seem to regard the distinction betwixt public, or navigable, and private rivers. They considered a river by which the produce of the country could be transported to the sea to be a public benefit entrusted to the King as pater patriae, for behoof of his subjects in general, which could neither be given away nor abridged by him; and that this transportation as the chief and primary use of the river, if compatible with the cruive fishing, would prevail over it. They were at the same time of the opinion that these rights were not incompatible, if not emulously used and therefore proceeded to fix certain regulations according to which they were to be exercised." In my view this passage affords no support for the defenders' argument nor does the passage in Hume's Lectures Vol. IV, p. 243. In this passage Hume recognised the distinction between "proper navigable rivers" and rivers like the Spey, and went on to say of a river in the latter category, "… still it falls to be considered as a public road or highway of that region by water (iter navigabile), and as such it is no more liable to be stopped, or obstructed, than the like serviceable and common passage by land. With respect then to any stream of this description—one which is a common channel of commercial intercourse and accommodation to the country;—here the powers of the adjacent heritors are limited by consideration of those higher uses. None of them can raise any work in the channel, to hinder or obstruct the navigation; nor draw off water from it, by a cut or aquaeduct so as to lessen the depth of the stream, and reduce the burden of the vessels it may carry." In my opinion he is there merely repeating the somewhat misleading analogy of highway derived from the institutional writers who in the main were dealing with the "proper navigable" river. However that may be, I do not find therein any discussion of the range of uses available to the public in rivers which are not "proper navigable rivers, and which have been shown to serve only certain useful public purposes. In the first edition of Bell's Principles at p. 155 one finds, because of the case of Grant v. The Duke, of Gordon, a discussion of navigable rivers in these terms—"Navigable Rivers are, like the sea, public; and are, for similar purposes vested in the King. They are held as highways, or common passages, for the King's people. It is not tide rivers only which are held public, but such as are fit for the transportation of the country products, though that should be down the stream.

"The Stream is a highway for the people; of which the use is in the public without grant; and which no grant can impede or hinder." The same passage is repeated and expanded in the 10th edition to take account of the decision in Colquhoun's Trustees 4 R. 344, but neither in the edition of 1829 nor in the latest edition is any consideration given to the question of whether public rights in non-tidal rivers which are not proper navigable rivers are to be held as ample as those in navigable tidal streams. Bell's Illustrations (1838) Vol. II at p. 5 merely repeats the passage which I have quoted from the Morison's Dictionary report of Grant v. The Duke of Gordon and does not therefore advance the defenders' argument. Rankine: Land Ownership 4th edition, p. 381—in dealing with non-tidal navigable rivers—accepts on the authority of Grant v. The Duke of Gordon that it is quite sufficient for the creation of a public interest in a non-tidal river that country produce—such as logs of wood …—should have been regularly sent down the stream when in flood, but so far as I can discover he does not examine at all whether, given such a public interest derived from a particular use which is of public benefit, that interest or right necessarily involves that any member of the public may make any other navigable or quasi-navigable use of the river which he pleases whether it is of public benefit or not. In Ferguson Law of Water, p. 126, the learned author writes—"Rivers which are navigable but are not tidal are public rivers as opposed to private streams. The rights of the public in regard to them are more restricted than in the case of tidal waterways while those of the riparian proprietors are more extensive … The public right is really a right of way and approximates in fact, though not strictly speaking in legal character, to a servitude." He then goes on to distinguish rivers which are fully navigable like the Leven (see, inter alia, Colquhoun's Trustees 4 R. 344) and those which are not, like the Spey, and continues thus—"But whether they be navigable in the full sense, or, to use the expression of a learned lord, ‘quasi navigable’, they are, if truly navigable even to this limited extent, recognised as public rivers, and the right of navigation will be fully maintained. The right of navigation is the superior right, but its exercise will be regulated where it comes in contact with valuable proprietorial interests, such as fishing rights, and the riparian proprietors are entitled to their full rights of ownership so far as consistent with the public use for navigation." From this passage in Ferguson I observe once again the clear distinction between a public navigable river and a public river. I observe also the use of the analogy of servitude and the clear recognition that "the right of navigation" in public rivers will always be regulated where it comes into contact with valuable proprietorial interests. I observe finally that the learned author nowhere asserts that the right of navigation in public rivers is equally extensive in its scope in all of them. On the contrary, bearing in mind his use of the analogy of servitude and his discussion of the regulation of the public exercise of a right which is in contact with private rights, it appears to me that this passage is positively against the view urged before us by the defenders.

In the result I fold no warrant for treating the case of Grant v. The Duke of Gordon as having determined, even by implication, a wider public right than it expressly defined, that is to say the wider rights which the Court and the House of Lords plainly declined to find when they were specifically pressed to do so by the upper heritors.

From what I have said so far it follows that the decision in Grant v. The Duke of Gordon does not by itself establish a right in the defenders to canoe downstream through the Knockando stretch of the Spey and, if they have such a right, it must be discovered elsewhere. In particular, if there is a public right to canoe down the Spey the existence of such a right must be discovered by an application to the facts, in the social and economic circumstances of the country and of the area in 1972, the tests or principles which govern recognition of public right in non-tidal rivers.

What then are these tests or principles? The river in question—and here we are dealing with the Spey from far upstream of Knockando to the sea,—must be capable of accommodating the navigational or quasi navigational use or uses, which are sought to be protected by public right. This is obvious. Next, and I do not understand this to be disputed, the river must not only be capable of use for the purposes in question, but it must also be demonstrated, by sufficient actual use, to be useful for these purposes. Thirdly it must be seen that the use or uses which have been practised and are in issue are of sufficient public benefit to justify their continuance. I do not understand that the parties would quarrel with this proposition either. The problem is, however, to know whether more must be established. It arises because the pursuers renewed before us the contention, rejected by the Lord Ordinary, that a public right in a non-tidal river is for all practical purposes to be equiparated with a right of way, and that in order to constitute it, it must be proved (i) that the use or uses in question have been practised overtly and without interruption for the prescriptive period of 40 years; and (ii) that the "way" must be shown to extend from one public terminus to another. This argument rests principally on the case of Colquhoun's Trustees v. Orr Swing & Co. 4 R. 344 and 4 R, (H.L.) 116.

On the question of proof of prescriptive user it depends in particular upon the opinions of the Lord President (Inglis) and of Lord Deas in the Inner House. The relevant passages are these. At p. 349 the Lord President, contrasting tidal and non-tidal rivers, said this—"The distinction between the two is very important as regards legal principle because where the tide ebbs and flows the alveus of the river is the property of the Crown for public purposes as well as the banks of the river, and, in such a river as that, the rights of the Crown are much more extensive than they can be supposed to be in a proper fresh water river. The Crown acting through the appropriate department of State, would be entitled to deepen a river where the tide ebbs and flows and to perform any operation upon the alveus of the river that was conducive to the improvement of navigation. Not so with a fresh water river. The alveus of a fresh water river is the property of the proprietor upon the banks much as the alveus of a stream which is not navigable is the property of the proprietors upon the banks: But notwithstanding of that distinction, which is a very clear one, there may be a public use of a fresh water river for the purposes of navigation and although the rights of the Crown for the benefit of the public are not the same there, nor by any means so extensive as in the case of the estuary of a river where the tide ebbs and flows, yet undoubtedly there may be public rights of navigation, and public rights of navigation which are capable of being defended very much in the same way as they would be in any other case. The right of the public over a river of this class is more like a right of way than the right of the public which is protected by the Crown in the case of a navigable river where the tide ebbs and flows, and I am very much disposed to "deal with this case as if it were just a right of way along this river, by means of this river, where it is fitted for the purposes of navigation." In a later passage the Lord President added—"The question therefore comes to be whether there is a fresh water river, at the part of it with which we have to deal, which has been used by the public as a navigable river beyond the memory of man. Upon that question of fact I entertain no doubt whatever. I think that the evidence upon that subject is perfectly conclusive and it appears to me that the attempt to represent Loch Lomond as being not a public place is perfectly hopeless. The river Leven forms access to and from Loch Lomond, which we all know is one of the largest sheets of fresh water in this Kingdom, and is the boundary between two counties for a long distance—for somewhere I think about 30 miles. There are four very large parishes which abut upon its shore and it is surrounded by the estates of, I think, eleven different proprietors, some of them very extensive proprietors and others of them small proprietors. There are many inhabitants upon the banks of Loch Lomond and there are villages. These villages are said to stand upon the private estates of some of these large proprietors; but surely that does not prevent this Loch from being surrounded by a considerable population, who represent and are in fact the public of that district of the country; and therefore to say that Loch Lomond is a private Loch as much as if it was a small loch in the middle of a landlord's policy, appears to me to be perfectly monstrous. Therefore I do not entertain the smallest doubt that the navigation of the river Leven, having been carried on past the memory of man in the manner which has been described in the evidence, makes the Leven a public navigable river to all intents and purposes, so far as a fresh water river can be so made." Lord Deas at p. 354 expressed himself thus—"The right of navigation where the tide does not ebb and flow arises from use only and depends on the nature of that use … the right of navigation on the part of others requires use to found or support it. In the present case, therefore, I think it incumbent upon the pursuers to make out that the works objected to do or may cause obstruction to the kind of navigation which has been prescriptively practised by members of the public." Lord Shand on the other hand, was not satisfied that "a public right of navigation in a river of this kind is necessarily dependent on its past use." The action concerned the River Leven. This river which linked Loch Lomond to the sea had in fact been used from time immemorial for a wide range of navigation. The first conclusion which the Court of Session granted in favour of the pursuers was for declarator that the river was a navigable river, free and open to the public. The real point of the action, however, was to determine whether the defenders, who were riparian proprietors, were entitled to erect piers for a bridge in any part of the width of the alveus. It was on this point only that the case went to the House of Lords. In the Court of Session, however, the question of whether the Leven was a navigable river free and open to the public was clearly in issue and the words of the Lord President and Lord Deas which I have quoted were expressed in course of resolving that issue in the pursuers' favour. I do not, however, regard the case of Colquhoun's Trustees as constituting authority binding upon this Court for the proposition that proof of prescriptive use of a non-tidal river is an essential prerequisite use of a non-tidal river is an essential prerequisite of the recognition of a public right to make that use. The question did not really arise upon the evidence because the proved navigational use of the Leven covered far more than 40 years and was not really disputed. In particular the observations of the Lord President and Lord Deas were not made in a case where it was of the essence to decide whether proved use for less than 40 years would suffice, and it may well be that it was because of the extent of the proved use that the Lord President felt disposed to deal with the case as if it were just a right of way. With the Lord Ordinary therefore I am disposed to regard these observations as dictaonly and I am fortified in that conclusion by what was said by the Lord President (Clyde) in Leith-Buchanan v. Hogg 1931 S.C. 204 at p. 211. Colquhoun's Trustees was before the Court and the Lord President said this:

"As the parties are agreed with regard to the public character of Loch Lomond, it is unnecessary to say anything on the subject, but I desire to reserve my own opinion on the matter. I doubt if it has ever been settled whether the public character of the non-tidal part of a navigable river depends (1) on the fact of navigability or (2) on prescriptive possession by the public. What makes the difficulty is that actual use for navigation is probably the best evidence of navigability; but it does not necessarily follow that the public character of a non-tidal river is subject to all the qualifications attaching to rights acquired by prescriptive use. There are no doubt dicta—Macdonell v. Caledonian Canal Commissioners —and in Colquhoun's Trustees v. Orr Ewing & Co. Lord President Inglis used the possibly doubtful analogy of a public right of way so far as to make Loch Lomond ‘a public place’ and thus to supply the necessary quality of the terminus of a public right of way along the river Leven from high-water mark. But while it is intelligible to treat Loch Lomond as a continuation inland of the navigable river, the fact remains that according at least to the language of our institutional writers, the position of our ‘public rivers’ is nowhere assimilated to, but on the contrary distinguished from that of private Lochs; and I am not satisfied that the same consideration must apply to both merely because a navigable river issues from the Loch."

With Lord President Clyde I am of opinion that the question of whether proof of prescriptive use is essential to the recognition of a public right in a non-tidal river, has not been settled by authority. I further share his doubt as to the propriety of the analogy of a right of way so far as proof of public right is concerned. In all these circumstances I am satisfied that the Lord Ordinary was entitled, as he did, to examine the pursuers' contention afresh. I am further satisfied with the conclusion at which he arrived and since I find myself so completely in agreement with his reasoning, I can serve no good purpose by repeating it.

On the question of the necessity for two public termini for a river "way" if it is to be subject to a public right the pursuers relied on the passage from the Lord President's opinion which I have quoted from Colquhoun's Trustees and more particularly on the opinion of Lord Shand at p. 359 where he said:

"On the contrary if a river be navigable and a natural highway between public places … the public would be entitled to vindicate a right to use it."

In my opinion, agreeing with the Lord Ordinary, a public right to make a navigational or quasi-navigational use of a non-tidal river does not depend for its recognition or continuance on the rules relating to right of way. In particular I am wholly in accord with the Lord Ordinary's reasons for rejecting, in the case of a river like the Spey, the need for proof of two public termini essential to the creation of a right of way, and I do not rehearse them. I question whether even the case of a river like the Leven, which is a true channel of communication, a precise upper public terminus is of importance. The Spey, however, is not such a river and I do not read Lord Shand's opinion as having been directed to such a river.

In this whole matter the pursuers' argument fails. I have only to add that neither in the Grant v. The Duke of Gordon nor in Breadalbane v. Colquhoun (1881) 18 S.L.R.—a case dealing with the River Falloch at the interior end of Loch Lomond—is there any trace of an inner public terminus of the kind relevant to the constitution of a right of way, and the decision in Grant would never have been reached, so far as the post-1728 floats were concerned, if it had required proof of sending down these floats for the prescriptive period. In the matter of the constitution of public rights in non-tidal rivers the use of the analogy of a right of way or even of a highway cam only be misleading. Their navigable or useful quality exists in nature and the rights of riparian proprietors are fundamentally different and much more extensive than those of the proprietors of the solum on which a highway has been established. In the case of a public right of way it has never been suggested that the right is in the Crown for the benefit of the public or that public benefit must be shown independently of prescriptive use between public termini. A river is already there. If it is of public benefit to make of it the navigational uses of which it is capable, that benefit must clearly exist with reference to the whole inland tract of countryside through which it flows and the only reasonable view is that it should be available for appropriate "navigational" use by all members of the community who have lawful access to its banks at any point along its useful length. If I am so far correct it follows that the only tests which are relevant are the three which I set out at the beginning of this chapter of my opinion. They are indeed the tests which, it appears, were applied by the Court in reaching the decision in favour of the upper heritors in Grant v. The Duke of Gordon .

The critical question now comes to be whether upon an application of these tests a right exists in the public to canoe downstream in the Spey from above Knockando to the sea. This question in these precise terms was not dealt with by the Lord Ordinary before whom the case was conducted as if the fundamental question was whether the case of Grant v. The Duke of Gordon was decided upon private right or declared the river to be subject to an unrestricted public right of free navigation therein for all purposes. It was only before us that the question of whether Grant v. The Duke of Gordon declared a limited public right was canvassed.

It cannot be disputed upon the evidence that the Spey from at least Newtonmore to the sea is capable of navigation by canoes which draw only 6 inches of water compared with the 20 inches of the York Buildings Company's floats. In my opinion, differing from the Lord Ordinary, the act of passing by canoe downstream in the Spey, notwithstanding that, in places, the journey may present some difficulty and even some danger, can fairly be described as an act of navigation. It is clear also that the river has been thus regularly navigated by canoe through the Knockando stretch during the canoeing seasons from 1936 onwards and the extent and frequency of this navigation have been steadily increasing, particularly since the end of the Second World War. It would seem to follow that this considerable actual use of the river for canoeing has demonstrated that it is useful for that purpose. Is the navigation of the river, however, of sufficient public benefit to justify its continuance as of right? I have found this to be a narrow question of some delicacy. The answer requires the effort of balancing such public advantages, if any, which the evidence may have established against the disadvantages, not only from the point of view of the private interests in the river, but also from the wider public point of view, of the use of the river for canoeing. So far as the disadvantages are concerned they are, on the Lord Ordinary's findings upon the effect of canoeing upon angling, relatively small. There is no question here of damage to the river as a salmon river which would have serious repercussions, not only upon the private salmon fishing rights, but upon the commercial salmon fishings at its mouth, and upon an important and valuable amenity of the area which must be of some economic advantage to the Speyside community. As to the advantages the Lord Ordinary has described the defenders' activities in these terms—"The principal activity of the company is the running of courses in canoeing and sailing. These provide both instruction and recreation to visitors to the area and make a useful contribution to the amenities available for the many people who take holidays on Speyside." He deals with the canoeing generally thus:

"Mr Freshwater estimated the frequency of trips as far as Aberlour, a few miles downstream of Knockando, at six to ten times a year. The defenders' season for canoeing is confined to about twelve weeks in the Summer. The Spey is suitable for canoeing and is visited for that purpose by canoeists from all parts of Britain. Some of these, like the defenders' parties, are in well organised and controlled groups, which endeavour to cause as little disturbance to other interests as possible, while others are less particular in this respect."

Finally the Lord Ordinary albeit in a slightly different context, takes up the question which is for decision here in the following terms:

"The second branch of the pursuers' argument on this point, namely that the public right must be confined to commercial use, is more appropriate to the view which I take of the nature of a public right of navigation in a non-tidal river, but I do not think that it is sound for two reasons. First while I accept that in origin the public right of navigation existed and was preserved for the public for the economic welfare of the inhabitants of the country, I do not think that the law of Scotland, is so rigid as to be unable to extend the benefit in changing circumstances, when leisure and recreation have come to be regarded as a reasonable necessity for all. As the Lord Chancellor said in Dyce v. Hay (1852) 1 McQ. 305 in a not dissimilar context ‘There is no rule in the law of Scotland which prevents modern inventions and new operations from being governed by old and settled legal principles.’ Second, even if one looks on the right as being only for economic or commercial purposes, the provision of facilities for recreation for the visitor is an important, economic requirement of the upper Spey valley. Further it is of significance, though perhaps to be treated with some caution, as the test being applied is to some extent the test of use, that there is a number of references to pleasure boats, or boats used for recreational purposes such as angling, in the cases relating to public rights of navigation."

The cases to which the Lord Ordinary referred were Bowie v. The Marquis of Ailsa 14 R. 649; Duncan v. Lees 9 M. 895, MacBraire v. Mather 9 M. 913;Campbell's Trustees v. Sweeney 1911 S.C. 1319;Leith-Buchanan v. Hogg cit. sup. The only additional material available to us since only excerpts from the evidence were placed before us, comes from unchallenged evidence of Mr Freshwater who explained that in the canoeing season his company takes on as many as 15 staff members to teach and to control the canoeing groups, that the full length of the river is travelled by the defenders' canoes three or four times each season, and most importantly, that "the Spey is perhaps the most useful teaching river (in Scotland) in that the difficulties are not too severe … the Spey has rapids and perhaps overhanging trees which create the atmosphere. The Spey is a relatively easy river to navigate by canoe." We cannot shut our eyes to the common knowledge that the economy of Speyside is to a very large extent dependent upon the developing tourist industry and it seems clear that the use of the Spey for canoeing and the teaching of canoeing by inter alia schools like the defenders' schools and other schools, clubs and associations, make a significant contribution to the prosperity of the upper Spey valley, apart altogether from enabling members of the public to take part in the physical recreation which river canoeing provides, and to learn the skills of a challenging form of navigation. In light of all the foregoing circumstances, I have come to be of opinion, albeit with some hesitation, that there is a preponderence of public benefit in the continued use of the Spey for canoeing which is of sufficient materiality to justify recognition that the defenders as members of the public have the right to do what they have been doing since the formation of the company in 1969. It is because they have lawful access to the river that the defenders may exercise the right, and it must not be supposed that recognition of the existence of the public right in any way confers upon members of the public who do not have it otherwise any right of access to the river.

In the whole matter I am for adhering to the interlocutor of the Lord Ordinary in so far as he assoilzied the defenders from the first to fourth conclusions of the Summons and to that extent the reclaiming motion should be refused. As to the fifth conclusion we were invited by both parties, if the reclaiming motion failed, to continue the cause to enable them to investigate the possibility of devising acceptable regulations governing the canoeing. Both parties are anxious that these investigations should result in success and I am therefore disposed to do what they ask. There are obvious difficulties in the way but I suggest that it might be better not to define them and to let the parties journey hopefully. They may arrive.

LORD CAMERON .—This reclaiming motion is concerned with the rights of parties in a particular stretch of the River Spey. The determination of these rights involves the solution of important questions of law which necessarily affect the whole, or at least a very substantial portion of the river.

The pursuers and reclaimers are riparian proprietors on both banks of the river at Knockando and are also in right of the valuable salmon fishings there. The defenders and respondents operate a canoeing school from premises in the immediate vicinity of Loch Insh and enjoy certain rights to put and use canoes on that loch under contract with the Forestry Commission. In course of their business the defenders from time to time dispatch canoes from Loch Insh down the Spey and to land at various convenient spots on the banks thereof. They enjoy no contractual rights of landing anywhere on the banks and in particular in the Knockando stretch. Their right to pass through the Knockando stretch is challenged by the reclaimers who allege that their conduct is an infringement of their rights as riparian proprietors and a cause of injury to their salmon fishings. To this the respondents reply that they are entitled to pass by canoe through the reclaimers' water in respect that the River Spey is a "public navigable river" free and open to all and every form of navigation not merely to canoeists in search of recreation or adventure. This is a formidable claim and if successfully asserted could clearly have consequences of great moment, observing that a public right of navigation is paramount and, where in competition with private right, superior. It is this defence which the Lord Ordinary has sustained, regarding himself as constrained by binding authority in the matter. The case has been argued with admirable thoroughness and ability and with a full exploration of authority and I take pleasure in expressing my indebtedness to counsel for the great assistance they have afforded in the identification and solution of the issues in the case, assistance the value of which has been materially increased by the full and helpful researches into the pleadings and reports of certain earlier litigations concerned with this and other Scottish rivers and the right of parties therein.

The reclaimers seek in the first place a declarator that as owners of both banks and the alveus of the particular stretch of the River Spey they have the "exclusive rights of navigation" in that stretch, in the second place that they are entitled to prevent the respondents their agents, servants and pupils from canoeing or attempting to navigate by canoe in or from landing on the lands adjacent to this stretch and for consequential interdicts. The reclaimers have also a final conclusion separatim for regulation of the navigation of canoes by the respondents their agents, servants or pupils in this stretch of the river. It is to be observed that the reclaimers treat the issue as one of the right of navigation and in particular of the right to navigate by canoe. It is in reply to these claims that the respondents in their pleadings found upon an alleged right of public navigation in this stretch of the river. Before proceeding to deal with the main issues in this case it is necessary to deal with those pleas of the respondents which challenge the reclaimers' title to insist in the first two declaratory conclusions. The respondents do not challenge the title of the reclaimers as riparian proprietors to sue an action to protect their legal rights, but challenge their title to an exclusive right of navigation in this stretch. They say there was no exclusive private right of navigation known to the law as an incident to riparian ownership. The first conclusion is bad and therefore as the remaining conclusions hinge upon it the reclaimers must necessarily fail. The second conclusion, having no declaratory content is by itself insufficient to support the interdicts claimed, and therefore once the first conclusion is rejected no support can be found in the second.

The reclaimers, however, only assert their alleged exclusive rights in a stretch of river which ex hypothesi of their whole submissions is a private river and of which they are proprietors of the alveus and both banks. They specifically do not seek to maintain that should, contrary to their contention, the River Spey be held to be a public navigable river they could assert successfully a claim to an exclusive right of navigation in any part of it. If the use of a canoe on a stretch of river where the depth of water is sufficient to float it can be dignified by the description of "navigation," then what is being asserted by the reclaimers is in my opinion, no more than an assertion in one particular of their general right to maintain the integrity of their own marches. The reclaimers would without doubt be entitled to interdict those who sought without their license or permission as of right to pass their boundaries and trespass on their land. The same principle appears to me applicable to a water boundary line, which admittedly could be fenced against invasion by any person seeking to pass either up or down stream. Thus an upper heritor could have no title to insist (in the case of a private river) upon removal of posts on the opposite banks of a river between which wires were stretched and effectively impeded the passage downstream of a boat or canoe. But the repondents insisted that the reclaimers could have no right to sue an interdict unless some damage or reasonable apprehension of such could be averred and proved. In this they relied upon the "pet lamb" case of Winans v. Macrae 12 R. 1037 and Robertson v. Wright 13 R. 174. But neither case supports such a proposition. In Winans the pursuer specifically averred that the defender was asserting no right to pasture his lamb on the pursuer's land, and it was found in fact that the defender had not incited the lamb to trespass. In the case of Robertson the delinquents were straying cattle, but no right was asserted by their owner in support of their trespass, who, on the contrary, maintained he had taken all reasonable precautions to prevent the straying of his cattle. In the present case the respondents claim as of right to pass freely across the reclaimers' boundaries and invade at will the privacy of their property. In this contest of competing claims the first conclusion is an accurate if incomplete expression of the reclaimers' right as superior proprietors insofar as it asserts a right to exclusive enjoyment of their right of property and in the use which they are legally entitled to make of the waters of the river on the assumption, which is basic to their whole case, that the Spey is a private river in which there is no public right of navigation by canoe or otherwise. But I do not think that it is necessary to the reclaimers' success that they should obtain declarator in terms of the first conclusion. Their title as heritable proprietors of the Estate of Knockando is not impugned and their rights as such are not therefore in issue. The second conclusion proceeds upon the basis that the pursuers are heritable proprietors, as they are admitted to be. In such circumstances I am of opinion that this conclusion could stand by itself and provide sufficient support for the subsequent conclusions for interdict, in the absence of proof of the respondents' claim to be exercising a superior and irresistible public right of navigation. This is not an instance of the type of case in which the right on which the pursuer desires to found his action is not clear or admitted, and therefore it is not necessary that the prohibitory conclusions should be preceded by a conclusion declaratory of the right cf. Maclaren on Practice 648; a recent illustration of such procedure being held competent in the Outer House is Exchequer Telegraph Coy. Ltd. v. White 1960 S.L.T. 104. In these circumstances I am of opinion that the reclaimers are entitled to insist in these proceedings on the conclusions as they stand and that even if the first conclusion was held to be without sufficient legal foundation—or unnecessary—the reclaimers' title to insist in the remaining conclusions is not open to successful challenge. However I should add that I think it is clear enough, if it were necessary to declare it, that in the exercise of his rights a riparian heritor can float or sail or otherwise propel any floatable craft on the water which flows over the alveus or that part of it owned by him, provided always it is not to the injury of his neighbour or to the pollution of the stream. But for the reasons I have already given I do not think it necessary to pursue this preliminary issue further.

This preliminary issue disposed of, I come to the real question in the case; the extent of the relative legal rights of the parties in or over the waters of the Spey. First, as to the basic rights of the reclaimers in the waters of the Spey in their capacity as riparian proprietors; In such a river as this the law which governs the mutual rights and obligations of superior and inferior heritors is well settled. The superior heritor must transmit to the inferior the water of the stream undiminished in quantity and undeteriorated in quality, unless he had acquired by grant or prescription a right so to deal with the water as to diminish its quantity or destroy or injure its quality. The right to use the stream is a natural adjunct of the right of property in the banks and channel of the stream. See per Lord President Inglis in Hunter & Aitkenhead v. Aitken 7 R. 510 at 574. Subject to this, the riparian proprietor can do as he will with or on or in the water, his right of necessary abstraction is recognised and his right to operate in the channel restricted only by the obligation not to interfere with the flow or pollute the stream or cause injury to the property of his neighbour. It is otherwise as to a riparian heritor's power to erect obstructions in the bed of the river itself, cf. Morris v. Bicket 2 M. 1082 4 M. H.L. 44 at page 50 per L. Cranworth.

This basic right is not challenged by the Respondents. They maintain that any private rights enjoyed by the reclaimers are subservient to a public right which is paramount and compelling in which they are participant as members of the public. Therefore they cannot be interpelled by the Reclaimers from the exercise of that right or in consequence, interfered with in the exercise of their consequential right of passage by canoe over the alveus of the river which, in this stretch is in the ownership of the reclaimers. This is the defence which the respondents assert against the reclaimers' claim to be entitled to exclude them; it is not a defence which is limited to the use of any particular class or type of vessel or craft which can at present be used or floated on the river; it is, on the contrary, a defence which, if made good, would permit use by any type of floatable craft in any number and at all times and seasons subject only to the constraints of the law of nuisance. The right being a public right and, so it was maintained, inter regalia, could not be abandoned or lost except by action, of the Crown in Parliament or destruction of the navigable quality of the river by the operation of natural causes or action sanctioned by the legislature e.g. by such abstraction of water to serve public purposes as left the river impossible to navigate. The existence of this public right is necessarily dependent on the public enjoying or obtaining legitimate right of access to the river. A lesser basis for the establishment of this wide ranging public right was said to be found in the assertion of a right in the public to canoe in the river for the requisite prescriptive period, and thus to partake of the character of a servitude. I use the phrase advisedly. I can briefly dispose of this contention which in my opinion is ill founded. There is no proof in the evidence before us that at any time did the reclaimers or their predecessors acquiesce in the use of the river by canoeists, far less that they permitted such use for a period of forty years.

The reclaimers' retort in argument traversed all these contentions in law and in fact. They maintained that no public right of navigation existed in the river either by virtue of authoritative decision or upon the basis of prescription. In the course of the debate on the reclaiming motion a subsidiary contention was presented by Counsel for the Respondents, which in the event has turned out to be of critical importance, and, although it is not specifically raised by either party in their written pleadings, it is one which by implication at least can be held to be comprehended within them. This was to the effect that even if the river were not to be held a "public navigable river," at least a public right of lesser content, namely a right in members of the public having access to the river, to canoe therein or thereon could be vindicated—superior in competition to that of the proprietors of salmon fishings and to the general rights of riparian proprietors. The foundation of this argument was the assertion that it had been demonstrated on the evidence, and so held by the Lord Ordinary, that canoeing as a recreational or sporting activity was of such social and economic importance and value to the region of Speyside as a whole that it was to the evident public benefit and interest that this should be held to be the primary and paramount use to which the river was to be dedicated. Such use was not a matter of private but essentially of public right, and here also acquisition of the right did not depend on proof of prescriptive use though, if necessary, sufficient evidence had been adduced to establish a prescriptive right to navigate this stretch of the Spey by canoe.

This important contention was not presented to the Lord Ordinary. His decision in favour of the Respondents was based upon his acceptance of their principal contention, namely, that the River Spey was in law established to be a "public navigable river." Therefore the respondents were entitled to navigate by canoe throughout its length and therefore also in the Knockando Waters. The ground on which the Lord Ordinary founded his judgment was that the important case of Grant v. Duke of Gordon 1781 Mor. Dict. 12822 2 Pat. Appeals 582 laid down as matter of law that the River Spey was a "public navigable river," because it was proved to be capable of use and to have been used for floating logs either singly or made up in rafts downstream to the sea from the estates of superior proprietors. The Lord Ordinary's view of the effect of the decision in the case was determined by the interpretation which had been put upon that decision by later writers of eminence. The importance of the decision in the present proceedings is critical because it is the Sheet Anchor of the Respondents' contention—which is fundamental to their principal argument—that the Spey is in law a "public navigable river." If they are right then they must succeed in their defence.

In my opinion when the interlocutors of the Court of Session and the decision of the House of Lords are examined in relation to the arguments and pleadings of parties in the case, it is clear enough that the case of Grant v. Gordon did not affirm any such public right as claimed by the respondents. What it did decide in this matter of public right was very different. The public right which was declared by the Court of Session and ultimately affirmed in the House of Lords was very much less than one of full and unrestricted public navigation by any and every means available then and in the future which could be used on the river. But before I deal more closely with this case however, I think it is well to note how the institutional writers dealt with the issue of the extent or measure of public rights in Scottish rivers prior to the date of that prolonged and important litigation. Stair ii 1. 5. says this:—

"of things appropriated there remains still the common use of ways and passages which is like a servitude on property for this is necessarily required for the use of man and therefore understood as an use reserved, both in their tacit consent to appropriation and in their custom. So all nations have free passage by navigation of the ocean in bays and navigable river"

—but Stair does not define "Navigable rivers." Bankton ii. 7. 25 is in more general terms: he says "Highways are the King's and inter regalia because it is the great concern of the commonwealth that free passage and commerce be through a country. Encroachment upon them as likewise the streets of royal burghs and public rivers is purprision." It may be noted that Bankton speaks of "public rivers" but in a context which makes it clear that these are assimilated to and classified along with streets of royal burghs and highways—the common element is the public concern in freedom of passage and commerce. Erskine, who died in 1768, is more elaborate in his treatment and relates Scots to Roman law. He writes, Inst. ii. i. 5, "other things, though they be of their own nature capable of property, are exempted from Commerce in respect of the uses to which they are destined. Of this last kind are, first, the res publicae of the Romans, which were common not to all mankind, but to the state or community; such as navigable rivers, highways, harbours and bridges etc., the property of which belongs to the state or kingdom in which they lie, and their use to all the subjects or members of that kingdom, and to those strangers to whom it allows the liberty of trade, not only rivers themselves, and their bed, or alveus, but their banks also, are public, in so far as they may be subservient to the purpose of navigation." At II.6.17 he says "All the subjects which were by Roman Law accounted res publicae are, since the introduction of feus, held to be inter regalia or in patrimonio principis as rivers, free ports, and highways—From hence the narrowing of a highway, or altering the course of a river, is said by our most ancient law to infer the crime of purpresture; Reg. Maj. 1.2. C74 para. 1—But as the regalia of this sort are little capable of property, and chiefly adapted to the public use, the King's right in them is truly no more than a trust for the behoof of his people; for he cannot hurt the navigation of rivers, or shut up highways—. It is public rivers only which are inter regalia; by which writers generally understand navigable rivers, or those on which floats may be carried to navigable rivers. Smaller rivulets or brooks are, according to the general opinion, juris privati." On these passages it may be permissible to observe that Mr Erskine makes no distinction between tidal and non-tidal rivers—and states that, at this date, both the alveus and banks were public "so far as they may be subservient to the purpose of navigation." Since the authoritative decision in Colquhoun's Trs. v. Orr Ewing & Coy . 4 R. 344 and H.L. 116, that broad statement is open to correction at least so far as non-tidal waters are concerned. It is also to be noted that within the class of "public rivers" he includes not only "navigable rivers" (however defined) but "those on which floats may be carried to navigable rivers." This latter statement is important—not all rivers which will carry floats downstream are by that quality, to be comprised within the category of "navigable rivers" but, and this in my opinion is important, such rivers are to be regarded as "public rivers." And if a river is "public" it would appear to me to follow that the public are to enjoy certain rights in respect of them or the use of them—otherwise the term "public river" would not appear to have any substantial content. But what rights are to be enjoyed and upon what terms and conditions may be another question and one of fact and circumstance; upon this question Erskine is silent.

I have quoted this passage from the Institute, which is the work of the learned author and not of subsequent editors, not only because of the great weight which attaches to a Statement of the law by Erskine but also, and I think this is important, because it represented the latest and most authoritative pronouncement on this subject of "public" and "navigable" rivers prior to the Duke of Gordon's case, the Institute not being published until 1773 five years after the author's death. Thus by Scots law as at 1773 a river which could be used to float logs would be a "public river" and therefore inter regalia even though the river itself should not be a navigable river. It is in light of this statement of the law—which has never been specifically criticized or disputed in decided case or authoritative writers since its publication, nor modified by subsequent editors, that the Duke of Gordon's case was argued and decided. The case of Grant v. Gordon and the series of litigations of which it was the culmination, were unique so far as I can ascertain at the time when they arose and were decided. No earlier Scottish decision had defined a "navigable river," nor had the limits of "navigability" and consequently the possible limits of the right to be enjoyed by the public, been explored. In addition, I think it is important to keep in mind the circumstances out of which the dispute arose and the historical and social context in which the ultimate decision was reached. The River Spey had long been used in fact by superior proprietors—including the Duke—for transmitting timber in sawn logs or spars to the sea for shipbuilding and other industrial or commercial uses. The methods of achieving this purpose varied from launching loose logs downstream to the construction of rafts which were either tended by "floaters" in small currachs or by the "floaters" themselves travelling on the rafts and guiding the passage of the logs by means of oars. This last method appears to have been introduced to the Spey only after the appearance on the scene of the York Buildings Company in about 1728 and its purchases of Speyside timber. Sometimes items of country produce were placed on a raft for transmission to market and even an occasional human passenger. It was the appearance of these more sophisticated devices which led to the collisions of interest and of right which culminated in the great cause of Grant v. Gordon . The Spey in a sense was a natural channel of transport or "conveyor belt" for particular and important products of the region of Speyside—a belt however which could only go one way, so that the rafts of timber even if not already intended for breaking up on arrival in the sea could in no case return upstream. In the next place there were few roads in the countryside and few if any, suitable for carriage of loads of timber, even if wheeled transport adequate for the purpose could have been acquired. Indeed, the state of Highland roads at that time was so bad that Lord Braxfield (one of the judges in 1781) had to ride the whole North Circuit in 1784, as is recorded by Lord Cockburn in his "Memorials." Finally in 1781 the times were grave. The American Colonies were in revolt, Britain was at war with France, a war mainly fought at sea, and in the same year the Empress Catherine II formed the "Armed Neutrality" thus effectively cutting Britain off from any timber supplies from the Baltic. Timber at that time—especially shipbuilding timber—was an important war material and there was an obvious public interest, national as well as regional, in securing all available supplies of this valuable commodity. It was in this context, social, economic and political, that the case of the Duke of Gordon was decided—and it is plain enough from the report in Morrison's Dictionary as well as from the Notes of the judges' opinions that that these matters bulked very largely in their consideration of the case before them. The same comment may properly be made in the later case of Forbes v. Munro, which concerned the River Ness and was decided at a time of even greater national need and crisis, when the Grand Army lay at Boulogne under the eyes of Nelson's cruisers and the invasion beacons were laid, ready for the torch.

I come now to the Duke of Gordon's case itself and the meaning and effect of its decision. In order to understand what that decision was and why it was reached it is necessary to have regard to what was sought, what was denied, what was conceded and precisely what was decided. I do not repeat what your Lordship has already narrated of the circumstances but content myself with reference to the conclusions, the pleadings themselves, and those interlocutors of the Court of Session which disposed of the case and the decision of the House of Lords upon the appeal. I would also add reference to the manuscript notes made by counsel of the opinions of some of the judges in the Court of Session at advising in 1779 which were written upon the Session Papers in the Arniston Collection (Vol. 138 No. 6) and in the Campbell Collection (Vol. 40 Nos. 19 and 20). These notes I have found useful and illuminating; they were not however available to the Lord Ordinary. The case itself was the last of a series in the conflict which had begun in 1725 between the Duke and superior heritors most of whom were of the name of Grant, concerning the use of cruives by the Duke in assumed exercise of his rights of salmon fishing in the Spey in the lower reaches of the river. The then pursuers had brought an action in 1773 against the Duke attacking the use of cruives as an invasion of their own fishing rights and (for the first time in the series of actions) claiming that the cruives interfered with the right to float timber down the Spey. This collision of interest really came to a head because of the use by the superior heritors on the one hand of the larger and more sophisticated type of raft steered by the "floaters" who travelled on the raft itself and at about the same time the substitution by the Duke of more solidly built structures in place of the older type of cruive which was of loose construction and more easily passed over or displaced by rafts of logs and could thereafter be rebuilt or rearranged with comparative ease. The Court of Session found it unnecessary to deal with the issue raised by the pursuers as to the interference by the Duke's cruives with their use of the river for floating timber. When the case was appealed to the House of Lords the Court of Session's interlocutor appealed from was reversed and the case in March 1776 remitted to the Court to proceed upon the foundation of the respective right of parties ascertained in accordance with an interlocutor of 1727—which did not deal with the issue of floating timber at all. This led to no satisfactory result as parties did not proceed to a final decision, but new proceedings were set on foot in 1778 by Sir James Grant and others which were concluded by the interlocutors of the Court of Session of 26th November 1779 and 18th January 1781. These interlocutors were affirmed on 20th February 1782 by the House of Lords on appeal by the pursuers and cross-appeal by the Duke. The interlocutors of the Court of Session were pronounced in proceedings in which the Pursuers raised the issue of unrestricted right of public navigation in the Spey and in which a certain important concession of limited right of use for floating timber was made on behalf of the defender. There does not seem to have been any dispute between the parties on the question of whether the Spey was in law a "public river." The breadth of the pursuers' claims is set out in the declarator which they sought. Thus Sir James Grant for himself and other riparian heritors sought declarator that "the pursuer his tenants and other inhabitants of his lands and estates and all other persons, His Majesty's subjects have good and undoubted right at all times and seasons when they think necessary to send floats of timber down the said River from the superior part thereof, all the way to the sea, and to the free navigation of the River in every way that the same is capable of being navigated by boats, rafts or floats as they think proper and to have every obstruction depth or outwark which may impede such navigation removed …" This was clearly a declarator of paramount public rights of navigation and went far beyond the assertion of a, limited right to float or raft timber on the part of the superior heritor and any deriving right or obtaining licence from him. On 26th November 1779 the Court after procedure before the Lord Ordinary and on Informations given in by parties pronounced this interlocutor which stated inter alia "… of consent of the Procurators for the Duke of Gordon the Lords find that Sir James Grant (and others) Heritors of Salmon fishing on the River Spey have right of floating timber down the said River from the superior parts thereof all the way to the sea from 26th day of August to 15 day of March yearly"—and remitted to the Lord Ordinary to proceed as accords. This interlocutor which, it is specially to be noted, proceeded upon concession (i.e. the right of floating was not denied or challenged) was reclaimed by the pursuers who prayed the court "to alter the same and to find that they had right at all times and in all seasons to float timber down the Spey and to navigate it by boats currachs and rafts in all parts, and that the respondents had no right to erect braes dykes or Bulwarks in the bed of the River so as to interrupt navigation … at least to find that any such bulwark etc. must be so constructed as to be consistent with the public use of the River and the right of transporting timber and any other commodities down to the sea or to any part of the banks of the River and that at all times and in all seasons without any limitation or restriction whatever."

I pause here to note not only that the initial declarator sought was not granted, but that the interlocutor of November 1779 in effect rejected the claim of free public navigation unrestricted as to time or season or type of craft and that this was apparently acquiesced in, as the reclaimers sought such a right of floating and navigation by boats, currachs or rafts for themselves and not for the public at large. In addition, for the first time there appears a claim of right to transport "commodities" (of unspecified nature or origin) down to the sea or to any part of the river banks without limit or restriction. This was something entirely new. Voluminous and learned written pleadings followed this reclaiming petition but the pursuers fared no better because on 9th March 1781 the Court adhered to their former interlocutor and "refused the desire of the petition subject to certain minor variations as to the times within which and the conditions under which floating of timber could be permitted." There was no mention of any right of navigation as sought or of the use of the River for transporting commodities or of any right to use the banks for landing either timber or commodities. These interlocutors were subjected to appeal to the House of Lords by both parties, the Duke being dissatisfied within the extent to which the right to float was given, the pursuers being dissatisfied with the whole result. In their reasons for appeal to the Lords the pursuers specifically maintained as their final reason that "The River Spey is a navigable River and fit for the purpose of commerce." Their concluding sentence was a powerful plea of constitutional right wrongfully obstructed by the Duke; they said "The Court by their interlocutor, have consigned to the subject the Power of exercising at his pleasure for a certain space of time the absolute dominion over a public navigable river, contrary to the National and Constitutional right of the people of this kingdom"—a plain claim of public right of free navigation as in the original declaratory conclusions.

The House of Lords, without delivering reported opinions, affirmed the interlocutor of the Court of Session, cf. Grant v. Gordon, 2. Pat. App. 582 and thus by plainest implication rejected finally the claim of the Pursuers to a public right of navigation in the Spey. In light of this brief analysis I am clearly of opinion that the Duke of Gordon's case did not decide as matter of law that the Spey is a public navigable river. The point was put both to the Court of Session and to the House of Lords in the most clear cut terms and the plea was maintained to the end that the Spey was a public navigable river and that plea was rejected. No other conclusion seems to me possible. It is also clear from the notes of the opinions of those judges which have been recorded that there was certainly no majority for the view that the Spey was such a river, far less that that decision proceeded upon such a basis in law. If the Duke of Gordon's case affords no basis for the plea that it has been authoritatively decided that at least in 1781 the Spey was a public navigable river then one of the main foundations of the respondents' defence is fatally undermined. But it is said, and this is the argument which constrained the Lord Ordinary to the conclusion at which he arrived, that subsequent interpretations of the report of the case in Morrison's Dictionary lead to a different conclusion, namely that the Spey must now be regarded as a "public navigable river." Admittedly, the wording of that report could be regarded as somewhat ambiguous, but the first sentence of the report reflects admirably the sense of the opinions of the judges as far as these were noted at the time, and that sentence is important. The Court did not decide the case upon a distinction between public or public navigable rivers or private rivers and any consequent variation of rights exerciseable by the public (if any) in respect of them, but proceeded upon a particular ground of established public benefit which in turn created a limited public right precisely related to the nature of that benefit to the public which could arise from its exercise, and it is to be emphasized that the decision proceeded upon the Duke's concession of the pursuer's right to float timber downstream by raft. In my opinion therefore, the decision of the Court of Session in the Duke of Gordon's case as affirmed in the House of Lords, proceeded (1) on a rejection of the claim to a free and unrestricted right of public navigation and (2) on the affirmation of a public right of a limited and precise character based upon the evident public utility and benefit to be derived from permitting, as a measure of commerce, the floating of logs and rafts downstream to the sea. It may well be true that no such particular right had been previously affirmed in any decided case, but it is I think to be inferred from the passage from Erskine's Institute which I have quoted that the possibility of such a right was recognised in the law of Scotland and that the exercise of such a right could stamp the river with the character of a "public river" and therefore inter regalia. In such limited circumstances this limited public right could be successfully asserted by members of the public entitled to or obtaining legitimate access to the waters of the river. It is quite clear from the interlocutors pronounced that the Court in affirming the right to dispatch timber downstream by float or raft did not thereby regard themselves as having granted an indiscriminate public right to all members of the public to make all and every use of the waters of the Spey which could be embraced under the cover of the word "navigation," irrespective of the benefit or absence of benefits such use would confer upon the public, or of the quality and extent of the public interest to be served by permitting in all future tract of time such indiscriminate or unlimited use. The report of the case in Morrison's Dictionary states (and it would seem accurately) that "the Court in giving their opinions did not seem to regard the distinction between public or navigable and private rivers." The reference was to the river "as being a means of transporting the produce of the country to the sea to be a public benefit entrusted to the king as pater patriae for behoof of his subjects in general and in this transportation if incompatible with the cruive fishing would prevail over it." Such a right, if public, was obviously something different from a general and unrestricted public right of navigation by all and any means. It was limited to the service of a particular purpose:—transportation of certain country produce, not of any and every commodity of whatever type or origin; and by the Court's decree it was limited to a particular section of the public i.e. riparian heritors and those deriving right from or through them.

I turn now to consider the commentaries on the important decision, which powerfully influenced the mind of the Lord Ordinary. While the authority and respect due to writers of the statute of Professor Bell and Baron Hume is great, I do not think this is a case in which if it should appear that in certain particulars they have placed a gloss upon the report of Grant v. Gordon which may go beyond what the case did decide and, more important, did not decide, it must follow that an error once made must be perpetuated. No doubt, if over a substantial tract of time commercial transactions or dispositions of property have been conducted or made upon a particular view of the law which has subsequently been held to be mistaken or founded upon unsound authority, there may be powerful considerations against a too ready review or revision of the law. But this is not such a situation, because there is no suggestion that the actions of riparian proprietors on the River Spey or of members of the public resorting or seeking resort thereto have been conditioned or influenced by what text writers of eminence have inferred to be the effect of the decision in Grant v. Gordon, far less than it has been used in support of a claim to free passage of the river until the present proceedings. It is of course true that the decision was founded upon by the defender in his pleadings the case of Grant v. Henry 21 R. 358 in support of an alleged right to fish for trout from the banks of the river against the will of a riparian proprietor. The attempt failed on the simple ground that assuming the accuracy of the averment that the Spey was a "public navigable river" that right did not include a right to fish for trout from the bank or enter the water to do so. But the Court did not endorse the defender's interpretation of the law: the case, decided on relevancy, was taken on the assumption that the defender's averments were correct—that and no more. If the Duke of Gordon's case had decided what the respondents maintain was the decision I find it impossible to think that their Lordships would not have said so in clear terms.

In Bell's Principles para. 648 appears a passage vouched inter alia by reference to Grant v. Gordon to the effect that "navigable rivers are, like the sea, public and are for similar purposes vested in the Crown. They are held as highways or Common passages. It is not tide rivers only which are held public; but rivers above tidewater where fit for the transportation of the country products, though that should only be down the stream, are public rivers." This statement appears in the first and subsequent editions which were under the hand of Professor Bell himself. Now it will be observed that the learned author does not include these latter as public navigable rivers. As Erskine had already pointed out rivers which could carry logs downstream to join a navigable river were to be regarded in law as falling within the category of "public rivers" and I do not think that properly construed in light of the quoted supporting authority Professor Bell goes beyond the reported decisions on which his statement is principally founded.

Baron Hume at his Lectures IV 243 puts the matter somewhat differently—"by public rivers we are to understand those streams to which not only all the adjacent heritors, but the people at large have free right of access and to take the use of for fishing and navigation and other common uses." He goes on to draw a distinction between "a proper navigable river, that can be passed by vessels in both directions, this by consent of all authorities is proper public river. But even if it is not of that description and has served as a means only of floating the lighter vessels or other things downwards to the sea or to their market still it falls to be considered a public road or highway of that region by water (iter navigabile)." Baron Hume draws a distinction between a public right of fishing—which is not an incident of a right of navigation in a non-tidal river cf. Grant v. Henry 21 R. 358 and navigation from "other common uses." Such a common use, it may be suggested on the authority of Grant v. Gordon is that of floating timber downstream to the sea or to market. The reference to iter navigabile appears significant: this was the lowest and most limited servitude right of passage known to the Civil Law, which again supports the inference that this public right enjoyable in a stream which could only be used in one direction and therefore was not a "proper public river," was one directly related and limited to the particular public purpose it could be shown to secure in the hands of those having legitimate rights of access to the stream. It is to be noted also that nowhere do Bell or Hume suggest that the public right to make use of the waters of the river for transport or communication connotes a right in the public to force in invitum access over the lands of individual proprietors at the uninhibited discretion of any member of the public seeking to make use of the facility provided.

Neither Bell in his own editions nor Hume make the important distinction between the differing rights and obligations of the Crown and of riparian proprietors in the alveus of tidal and non-tidal rivers. This distinction was not established until the authoritative pronouncements in the case of Colquhoun's Trs. v. Orr Ewing, 4 R. 344, 4 R H.L. 116.

Finally, there is nothing in Bell's Principles or Hume's Lectures which specifically supports the corollary that because a river will carry rafts or timber downstream and a public right to make use of the river for this purpose arises in particular circumstances, that enfranchises and legalises all and every use of the same water by all members of the public for any purpose which could be comprehended within the description of "navigation" in any type of craft without limit of time or number and without any regard either for such positive public benefit which might be assumed to result or damage to legitimate private rights and interests which might be caused by such indiscriminate use.

In Ferguson on the Law of Water at page 126 this statement occurs "Some (rivers) as the Leven may be navigable up as well as downstream, and by boats of a considerable burden, while others such as the Spey are only navigable for practical purposes downstream and the nature of the navigation consists in floating down timber or rafts with country produce. But whether they are navigable in the full sense or to use the expression of a learned lord ‘quasi navigable’ they are if truly navigable even to this extent, recognised as ‘public river’ and the right of navigation will be fully maintained." The right there referred to is clearly the right of "navigation" to the extent and limit to which it can be exercised in fact. So far I do not think that this statement of the law goes further than what is stated in Bell or Hume in the passages I have cited nor do I think that Rankine on Landownership in the passages referred to by the Lord Ordinary in his admirable exposition of the law extends the right further nor does the passage in the Encyclopaedia Vol. XV, because what is there said, in a section dealing with "non-tidal navigable rivers," is that "the rafting of timber downstream in time of flow, has been held sufficient to instruct a right on the part of the public" and this statement is vouched by reference to the Duke of Gordon's case. In these circumstances I see no ground for thinking that subsequent commentaries have either prohibited me from considering the true import of the decision or when properly considered have extended the law beyond what was there laid down. In my opinion, the phrase used by Lord Gordon in Colquhoun's Trs. v. Orr Ewing 4 R. H.L. 116 at 138 though perhaps inelegant in form in substance accurately states the nature of the public right there held established in favour of the pursuers—that it was a "quasi navigable public right." I would conclude this part of my opinion by quoting further from the speech of Lord Gordon who said in reference to this "quasi navigable public right" and its relation to the rights of others:—

"Accordingly the right of the upper proprietors was held subject to restriction and limitation as regards the periods during which it could be exercised, a restriction which could not have been recognised by the Court if the right of navigation had been held to be absolute and not subject to equitable limitations."

If then the defenders fail to establish their claim as to the meaning and effect of Grant v. Gordon as I hold they do, and if, as I think it too plain for argument, there can be no question in the present proceedings of any private right effeiring to them to which the respondents can appeal, the question then comes to be … whether by any other means a right of public navigation can be asserted and maintained in their favour or any other form of public right upon which they can take their stand in answer to the reclaimers' contention. As I have noted when Grant v. Gordon was decided no distinction had been drawn in Scots law between the rights of the public in tidal or non-tidal rivers in respect of their capacity for and actual use. They were "public rivers" and the rights of the public were in the guardianship of the Crown and so inter regalia.What however is clearly to be inferred from that case is that the extent of the right depends on certain important practical considerations—capacity of the river for use for certain purposes of a public nature, utility for that use, and evident public benefit arising from it—the weight of that benefit being of critical importance to the decision as to existence of the particular public right. And all this was necessarily linked with legitimate access to the river. But what is also an important inference to be drawn from the decision is that the existence of the right was not dependent upon proof of prescriptive possession of it for the requisite period—this is clear from the facts, which demonstrate that the rafts from the use of which the conflict chiefly arose had not been in use as of right for anything approaching the prescriptive period. Upon whatever basis the case was decided however it is sufficiently clear that the Court regarded the right as being one of a public character, akin in certain respects to servitude in a loose sense of the word, but not requiring constitution in the same manner as a servitude in the true legal sense. Consequently if the claim of the reclaimers is to be defeated it can only be by the successful assertion of a public right enjoyable by the respondents as members of the public.

In my opinion therefore the reclaimers succeed in demolishing the respondents' answer to them so far as based on the assertion that since 1781 the Spey has been in law a public navigable river. The reclaimers however went on to maintain that in no circumstances could the Spey be so regarded in 1972, in respect that there was no proof of certain essential elements of a public navigable river, namely that it should serve as a channel of communication between two public termini the right to make public use of which had been established by prescription.

The reclaimers founded their submissions on this branch of the case on the much canvassed decision in Colquhoun's Trs. v. Orr Ewing & Coy. 4 R. 344 and H.L. 116. That case was concerned with a dispute as to the rights of riparian proprietors to erect certain bridge piers or supports in the alveus of what was admittedly a public navigable river at a non-tidal portion thereof. It was matter of admission that the river did connect the Clyde and Loch Lomond and had been used from time immemorial for navigational purposes and as a means of communication between tidal river and loch. Lord President Inglis states emphatically that for the reasons he gives in detail as to its character and its use to the various small communities around the shores of Loch Lomond, it is a public place, and that view of the matter was not challenged when the case was taken to the House of Lords. It was in these circumstances that the Lord President said "I am very much disposed to deal with this case as if it were just a right of way along this river, by means of this river, where it is fitted for the purpose of navigation." It is true that in the opinions of 3 out of 4 judges in the Court of Session it is stated that use by the public is necessary to establish the public right—not necessarily however use for the prescriptive period. Thus Lord Deas at page 354 "The right of navigation where the tide does not ebb or flow arises from use only and depends on the nature of that use." This echoes Lord President Inglis at page 350 where he said "I rather think if a river is navigable at all and has been enjoyed and used as a navigable river by the public, the rights of the public must be judged by the same rule whether the river be capable of being navigated by vessels of one kind or another, by vessels of large or small dimensions." Lord Muir did not express dissent from these expressions of opinion though he dissented on the merits of the case. Lord Shand expressly defines the requisites of a public navigable river where the river is non-tidal in the terms I have expressed and, while indicating that the right has been reinforced by the actual use made of the river, expresses the opinion that if a river is navigable and a natural highway between public places even though it may be it had not hitherto been used, the public would be entitled to vindicate a right to it. There was no criticism of that statement when the case was heard in the House of Lords, nor of the distinction which the Lord President emphasised between the legal principles applicable to tidal and non-tidal rivers. In this matter all members of the Court were agreed. From the case of Colquhoun's Trs. this at least could be taken:—that in the case of a non-tidal river its character as a "public navigable river," with all the rights in the public flowing therefrom, depends upon the fact of navigability and that it serves as a channel of communication between public termini. It is also said that actual use of such a channel is an element in constitution or at least proof of the public right, but the opinion of Lord Shand goes further and if it were necessary to decide the point I should be in favour of that view of the law, because if the law stood otherwise one heritor controlling a stretch of the alveus however small could successfully prohibit use by the public, so that while all the other elements were present to constitute an important public right, the use of what would otherwise confer an important benefit through the use of a facility adapted by nature could be inhibited by the action of one private proprietor. This however was not in issue in Colquhoun's Trs. any more than it was in the cases concerned with navigation of the Carron, the Ness or the Falloch or Endrick. In both the last cases the rivers themselves are no more than extensions of or appendices to Loch Lomond itself, a loch which at least since 1829 has been regarded as a "public loch" to which the rule laid down in Bell's Principles para. 651 would be applicable see per Lord Cringletie MacDonell v. Caledonian Canal Commissioners 1829 8 S. 882 at page 886. But it must be kept clearly in view that the issue of the necessity for proof of prescriptive use to establish the public right was not raised in Colquhoun's Trs. and the language used by the Lord President shows that he was doing no more than likening the case of a public navigable non-tidal river to that of a public right of way. Therefore it is scarcely possible to regard the decision as laying down the principle that a public right of navigation in a non-tidal river or non-tidal portion of a river necessarily depends on proof of such public use for the prescriptive period nor of the necessity that the river should be a means of passage between identifiable public termini. There are significant and in my opinion fundamental differences between a public right of way on land and a river capable of use for navigational purposes and, consequently, in my view the manner in which public rights of use therein can be asserted and are to be established. The demarcation and identification of a public right of way on land and the proof of the right of the public to use it depends on actual use of a particular line of travel or passage and use of a particular kind by members of the public asserted as of right for a particular, recognised and continuous period of time. It is therefore in itself a creature of human activity, as is the right of public use which arises consequentially. A river is the work of nature, as is its course, its character and its capacity for the carriage of traffic in persons or goods. Nor does a river disappear after a specified period of disuse for such purposes, though its course and capacity may be modified or even destroyed by human action. It is therefore not difficult to appreciate that in the one case the law will require evidence of use both to identify and to open a public right of way on land, while in the other identification and capacity and potential as a means of communication between already existing places of public access are ascertainable by instant examination. The public benefit to be gained by the use of the means made available by the work of nature needs in such a case no demonstration by reference to actual use as in the case of assertion of a public right of way over land in private ownership where no way was marked out by nature before. It might be said that where nature herself has, in the form of a river, provided for man's use, a highway, it is not for private interests to stop it up. I find support for this view of the matter not only in the opinion of Lord Shand but also in the reservation on this very point expressed by Lord President Clyde in Leith Buchanan v. Hogg 1934 S.C. at 210 as well as in the decision in the Duke of Gordon's case itself.

In my opinion this case of Colquhoun's Trs. does not in any way decide the use by the public as of right for the prescriptive period is necessary to establish the existence of a public right of navigation in a non-tidal river. None of the judges in the Court of Session or in the House of Lords give any indication that the public right of navigation in non-tidal rivers can only be established by prescriptive use by the public as of right. The analogy is drawn—but this can be pressed too far particularly where the circumstances are so markedly different. The language used by Lord Blackburn in his speech at page 122 is indicative of an analogy between a public navigable river and a public right of way, but Lord Blackburn did not say that proof of the same degree of use as is necessary to make good a claim to the existence of a public right of way on land, was essential to make a non-tidal river a public navigable river. In this opinion Lord O'Hagan concurred.

Lord Gordon agreed that the right (of navigation) … "is very much the same as a right of way"—which is a very different thing from affirming that it is identical and can only be established by the same means as are applicable to a public right of way. In any event it was not in issue when the appeal was heard in the House of Lords that the Leven was not a public navigable river. Colquhoun's Trs. however did establish another very important matter—the distinction which is to be drawn between the law which is to be applied to tidal and to non-tidal rivers. This distinction arising from the differing rules of law governing the rights of the public and of riparian proprietors in tidal and non-tidal rivers is of crucial importance in the determination of the nature and extent (if any) of the rights of the public and of riparian proprietors in the use to be made of the waters of rivers tidal and non-tidal.

As I am of opinion that the Court in the Duke of Gordon's case did not lay down criteria for the identification of a public navigable river in which the public enjoyed a free and complete right of navigation by any and every means and at all times and seasons, but was concerned to identify a public right of lesser and strictly limited character, I do not think that anything said or decided in the case of Colquhoun's Trs. is in any way in conflict with the earlier decision. The later case does not postulate as a necessary element in the establishment of a public right of navigation in a non-tidal river that there should have been such use and for such an uninterrupted period of time as would suffice to establish a public right of way on land. As Lord Kinnear put it in the later case of Grant v. Henry 21 R. 344 "the right of use a river of this kind is assimilated by the Lord President in Orr Ewing v. Colquhoun Trs. to a public right of way"—but to turn an analogy into an identification of two rights in the matter of proof of their existence is a very different matter when the elements in which the rights are to be exercised are so essentially different. For my part, if it were necessary in this case to decide the point I should be of opinion that the existence of a public right of navigation in the true sense of a free and unrestricted right in a non-tidal river—a right which is paramount and takes precedence over rights of private property—can only emerge when the river or that section of it over which the right is claimed to exist is truly a water way and serves as a channel of communication between public termini i.e. places to which the public have access as of right and to which they have an interest and purpose to resort. I am fortified in this view of the matter because while the alveus in tidal rivers is vested in the Crown and freedom of navigation in tidal waters within the jurisdiction of the Crown is a public right inter regalia a distinction in fact arises in non-tidal waters. There the alveus is in private hands and proprietorship confers private and personal rights which can be vindicated against those not in possession of such rights. Further, the banks of a non-tidal river are in private hands and there is no tidal foreshore available to the public. If a free and unrestricted right of navigation exerciseable by all members of the public, a right superior in a competition to that of the proprietors of the alveus, is to be asserted and maintained then it must, by clear inference from the grounds of decision in Grant v. Gordon arise from the evident public benefit and utility to flow and to be derived from such use. Further, such a right is one which does not depend for its existence upon establishing prescriptive use and therefore over which the proprietors of the alveus can exercise control. In such circumstances if the basis of the right of navigation is the evident public benefit of the use of the river this can be only as a means of communication—recreational uses can be regarded in this context as ancillary to the major utility and purpose of communication. A means of public communication is a means of passing to and from places to which the public have occasion and proper necessity to resort. These considerations appear to me not only relevant but fundamental to the successful assertion of a public right of free and unrestricted navigation on a non-tidal river. But, in any event and on the assumption that the identification of public termini is not an essential element in the proof of such right as are exerciseable in a "public navigable river", it must always be a matter of fact whether the river or that portion of it under consideration is from its capacity and situation adapted for use as a means of communication and passage. In the final analysis it is the capacity and utility of the waters of the stream for the purpose or purposes from which its use is demanded as of right which must be the essential test, at least in non-tidal waters where private rights of property in the alveus of the stream and its banks will be affected if the right is established. And in my opinion that utility must be of evident public benefit, not merely a matter of convenience to dwellers in the vicinity or even of a wider section of the public as a whole.

In the present case I am clearly of opinion that no such elements have been shown to exist. The river is of varying depth, incapable so far as the proof demonstrates of permitting passage upstream or even of any means of conveyance of persons or commodities downstream except by rafts which could not be brought back to their points of origin at least by water. There is a public road system which serves the same area and centres of population as is traversed or passed by the river and there was no argument or evidence that the road system is inadequate for the traffic seeking to use it. And the use of rafts for any purpose at all has long since ceased. There is neither capacity for use as a channel of communication and passage nor utility to be obtained from seeking to use the river for such purposes with the exception of such use as canoeists make and have made of the river. Not a log nor an article of commerce, far less a passenger has been deliberately floated on its waters for not far off a century. Neither by judicial decision nor by the plain facts of its nature, capacity and utility can the River Spey, at least in that portion with which this case is concerned and upstream of it, be held to be a "public navigable river" according to the law of Scotland. And equally I think that the evidence in this case demonstrates that no such public right has been acquired by prescriptive use either in respect of the notation of rafts or the passage of canoes if prescription is at all relevant in the establishment of such a right. If such a right can competently be so acquired and if it is sought to be founded on the old practice of floating, any right so acquired—and in my opinion none such was affirmed in Grant v. Gordon —was long ago lost by disuse and if of new such a right is sought to be established out of the evidence relative to canoeing it is certainly insufficient in duration circumstance or quality to support a claim of so wide a character. But the measure of a prescriptive right established is the measure of the right asserted and it would by no means follow that a prescriptive right to float logs by rafting downstream in a particular non-tidal river eo ipsocould create an indiscriminate right to make use of the river for any other purpose which could be achieved in the future, purposes which for example could never have been in the contemplation of the parties concerned when the particular prescriptive right was established. The rule of law which in my opinion would apply here is precisely the rule of law which applies to a praedial servitude—tantum prescriptum quod possessum see per L. Robertson White v. White 8 F.H.L. at 47 see also per L. P. Kinross in E. of Kintore v. Pirie 5 F. 818 at p. 847. While in my opinion it would be a misuse of language to assert that the Spey in its present state of flow serves as a "channel of communication" when the only evidence on the point is that apart from use for purely recreational purposes of an athletic character by a comparatively small number of skilled or aspiring canoeists, not even a log raft or float has passed downstream except perhaps by mischance in a flood for almost 90 years. Such a specifically limited use as is proved even if persisted in as of right for the prescriptive period could not in my opinion by itself be in any way sufficient to found a public right of free and unrestricted navigation with all that must follow upon the establishment of such a right. But if, as I think, the rights of the public in non-tidal rivers, whether they be a right of public navigation or a lesser and limited right of use of the waters for a purpose or purposes of evident public benefit or utility, depend upon the facts as to the capacity of the river to serve such uses and the public's rights of access thereto then I think it necessarily follows that proof of prescriptive use of such a natural facility is irrelevant to the establishment of the right.

If however it were necessary that prescriptive use must be proved I am clearly of opinion that on the facts in this case, the respondents must fail. The use of the river for floating logs has long since ceased as I have noted. The evidence also demonstrates effectively that canoeists have not made such unchallenged use of the waters of this stretch of the river for the prescriptive period as could establish even so limited a public right of passage, without any restriction in time or number of canoes of frequency of passage other than those imposed by the law of Nuisance.

In all these circumstances and upon all the grounds which the respondents have sought to maintain it I am of opinion that the claim that they are entitled as of right to canoe on the river in this stretch as matter of right in respect that the Spey is here a public navigable river must fail.

In view of the care and research which has gone into the preparation and presentation of this case I would add that it is because of the conclusions at which I have arrived and not out of lack of courtesy to counsel or appreciation of the quality of their submissions that I refrain from embarking upon an analysis of the numerous authorities on the law of highway and of public right of way which were cited and considered in the debate before us.

If then, in the result it does not appear established either by authority or upon evidence that the Spey is in law a "public navigable river" with as a consequence a public right of free and unrestricted navigation thereon by all kinds of craft and at all times and seasons there remains still the question whether the respondents can successfully meet the reclaimers contentions by reliance upon any lesser right of a public character and in particular whether the Duke of Gordon's case provides for them another means of solving the conflict between the parties in their favour. That case in my opinion is clear authority for the proposition that in a non-tidal river a public right of limited character can emerge to a particular use of the waters of that river without the necessity of proof of prescriptive use of the particular kind. The essential conditions are in my view capacity for such use evident public utility and benefit to arise or arising from such use and legitimate access by members of the public seeking to make such particular use. The river must therefore be physically capable of such use and it must be established that to permit the public to make such use of the river confers a public benefit either nationally or regionally of sufficient magnitude as to warrant the superimposition of such a right upon the other uses of the river to which it has been dedicated or are available to the riparian proprietors. Such a limited public right however does not create in the public a power to force or demand access to the waters of the river as of right, but is only to be exerciseable by such of the public as can obtain such legitimate and sufficient access to the river as to enable them to exercise that right. Further, public and private rights in the river (as opposed to the case of tidal waters) can subsist and be maintained side by side and it is only when their exercise brings them into collision will the public right override private if no accommodation of both can be found by agreement or by other means. It is a fundamental condition from which such a right can only flow that the facility is one created by nature and by nature made available for the use of subjects of the Crown and is not itself the consequence and creation of human activity, as in the case of a public right of way. In these circumstances and if as I think these are the necessary conditions upon which such a limited public right can subsist and upon the existence of which in this case a successful answer to the reclaimers could be asserted, the question is whether on the evidence in this case they are shown to exist and be operative. The river itself provides a passage way of a kind and can accommodate canoes with their limited draught of some 6 inches. There is ample evidence that for a considerable number of years the river has in fact been used by canoeists for recreation. The Lord Ordinary finds as fact that "the provision of facilities for recreation for the visitor is an important economic requirement of the upper Spey Valley" and this finding was not challenged by the reclaimers. The Lord Ordinary also finds that there is evidence of temporary disturbance of salmon from their "lies" by the near passage of canoes—and obviously the greater the number of canoes the greater the liability to such disturbance and of interference with the activity of anglers; equally there is little doubt of the importance and economic value of the salmon fishing rights in the Spey, a value which in turn is reflected in the economic condition and prosperity of the region. There is no evidence of permanent injury in the sense of diminution of the number of salmon resorting to the river or of damage or likelihood of damage to the salmon "redds." The proof also demonstrates that the Spey has the capacity for the use in question and the evidence also shows a degree of use which is substantially on the increase and that the promotion of this recreational activity is at least conducive to the prosperity of the region of Speyside. It is I think, matter of public knowledge that recreation is a very important economic asset to the region and an increasingly important element in its economy with consequent and direct benefit to "the inhabitants of the region" and indeed to the public as a whole. In these circumstances though with some hesitation I have come to the conclusion that upon that evidence as evaluated and assessed by the Lord Ordinary, whose assessment was not challenged, the conclusion is warranted that a public right of strictly limited character has been established in favour of the recreational use of the river for the purpose of canoeing by those members of the public who can obtain legitimate access to its waters. This however does not mean that as consequence members of the public operating canoes have any other enforceable right than one of passage downstream. Access as of right to the banks of the river where these are in private ownership would not be comprehended in this limited public right nor could moorings be laid or used in the bed of the stream or on the banks, unless with permission or by licence of the riparian heritor concerned. I think it as well to draw attention to what I regard as the specifically limited nature of any such public right as exists in favour of a limited category of the public, namely, canoeists, and to point to the contrast between what would be affirmed in this case if the respondents succeed on this limited ground in asserting a successful defence to the reclaimers' conclusions and contentions, and what might in particular circumstances be necessary ancillary consequences of the emergence of a free and unrestricted right of public navigation.

The question of regulation is also raised in the pleadings. On this matter I feel great difficulty. The situation in fact which was considered in Grant v. Gordon is very different from the present. Regulation of the competing rights in that case was comparatively easy because all concerned or interested in the approved use of the river were involved in the process or closely associated with it. Here only one riparian heritor is involved and no "regulation" as between the reclaimers and respondents could be effective beyond the actual parties concerned and in relation to one particular stretch of the river. In such circumstances it seems to me that a plea which seeks regulation ignores the realities and, as advanced, could not be supported. On the other hand, if as a result of the decision which your Lordship proposes in this case the rights of the parties inter se are clarified then it would be well that further procedure should be superseded at least until such time as the parties have had an opportunity to consider the implications of the decision and what further action towards reaching a materially satisfactory accommodation of their rights and interests they can usefully take or which other course of action they may be advised to pursue. I therefore agree in the result at which your Lordship arrives and with the further course which your Lordship proposes.

LORD JOHNSTON .—Your Lordship in the chair has narrated the circumstances out of which this action arises, summarised the numerous contentions of the parties and quoted and analysed the authorities on which the contentions are based. It is wholly unnecessary that I should add to what has been already done. It is equally unnecessary to deal with the defenders' arguments of a preliminary character, which your Lordships have considered and dismissed for reasons with which I respectfully concur.

I turn immediately to the primary question, namely, whether the pursuers are entitled to exclude the defenders' canoes from passing through the Knockando stretch of the River Spey. The contentions, at their two extremes, were, on the one hand, the pursuers' contention that the Spey, in its non-tidal stretches, is a private river in which none other than the riparian proprietors have a right or interest and, on the other hand, the defenders' contention that the Spey is a public navigable river in which the public have a general right of navigation.

The foundation of the defenders' contention is the decision in Grant v. Duke of Gordon 1782 2 Paton 582: Morrison's Dictionary Vol. 15: 12820, and it is on the Lord Ordinary's interpretation of that decision that his opinion and the interlocutor reclaimed against rest.

I turn therefore to the decision to determine (1) what was decided, and (2) so far as is possible, why it was so decided.

Your Lordships have already narrated the action's history, the pleas of the parties, the terms of the interlocutors and the manuscript notes by Counsel in the two collections of Session papers brought to our notice. It would be tedious if I were to add to the narrative and I shall do no more than attempt to set out shortly what I understand was determined under the heads above.

As to what was determined, I do not think it possible to say more than that it was held that the Duke had a right to cruive fishing in his stretch of the Spey, that the superior heritors had a right to float rafts of timber down the river to the sea, that the right of the heritors was superior to that of the Duke, that the heritors' right must not be exercised emulously but with regard to the Duke's right, that the Court conceived that it had power to regulate the excise of the competing rights, and that, in the exercise of that power, limited the heritors' right to float at certain periods of the year and subject to certain conditions.

Apart from the Duke's right to cruive fishing which was ultimately not in dispute, the absence from the Reports of the Opinions of the Judges of the Court of Session and the Speeches in the House of Lords makes it impossible to be wholly confident of the reasoning which led to the determinations which I have just noted. But the manuscript notes, to which I have referred, and the subsequent treatment of the decision, to which your Lordships have drawn attention, lead me to the conclusion that the decision sprang from the recognition that it was advantageous to the countryside through which the river flowed and to the nation as a whole that use should be made of the navigational qualities of the river to take the produce of the countryside to the sea. The refusal to grant decree in terms of the conclusions makes it clear that the right which was recognised was not a right of public navigation but a limited public right. The tests which appear to have been applied in determining whether the public had a right to use the river were, had the river navigational qualities, were they used and was it of benefit to the countryside that they should be so used.

If those tests be applied to the use the defenders now make of the river there can be no doubt, in my opinion, that they are satisfied. The Spey is used and has been used for many years for canoeing; the facilities provided by the defenders and others like them have brought many visitors to Speyside, who, in their turn, have brought prosperity to a valley which has come to rely on visitors for its livelihood. If the tests when satisfied, resulted in a public right of floating rafts of timber, is there any reason why the satisfaction of the same tests should not result in a public right of canoeing? I can see no distinction in principle between a right to float timber and a right to canoe and, provided the right is not emulously used, I can see no reason why the right to canoe should not be recognised.

Many other questions were raised during the hearing and were debated at length. Your Lordships have dealt with them in detail and since I feel that there is nothing useful I can add, I content myself with expressing my concurrence in your Lordships' opinions.

On the whole matter I am for adhering to the interlocutor of the Lord Ordinary and disposing of this case in the terms proposed.

The pursuers appealed to the House of Lords, and the case was heard on 24th, 25th, 26th and 27th November and 1st, 2nd, 3rd, 4th and 8th December 1975.

At delivering judgment on 3rd March 1976,—

LORD WILBERFORCE .—MY LORDS, this appeal has been brought against an interlocutor of the First Division of the Court of Session, in which their Lordships refused (except as to the fifth conclusion in the summons) a reclaiming motion against an interlocutor of the Lord Ordinary. That motion was brought by the appellants as pursuers in an action for declarator and interdict against the respondents as defenders, in which the Lord Ordinary assoilzied the respondents from the main conclusions of the summons.

The question at issue is as to the right of the respondents to use for the purpose of canoeing a non-tidal stretch of the river Spey at Knockando: the appellants claim that the respondents have no such right and seek declarator and interdict accordingly.

The conflict between these two activities is in part only of an economic character. Each has its commercial value: the pursuers' salmon fishing, bring large economic advantages and the defenders' canoeing school is run for profit. But essentially the conflict is between two kinds of recreation and no doubt it owes its intensity to that fact. For the same reason, each side declares its willingness to negotiate a reasonable modus vivendi, once the legal position is known. Perhaps, in spite of the history of the last 250 years of sporadic litigation over the waters of the Spey, this at last may be the outcome.

The interests of the parties can be briefly described as follows. The appellants (pursuers) own both banks and the alveus of a stretch of the Spey at Knockando: they also own the salmon fishing in that stretch. The respondents (defenders) are a limited company whose headquarters are at Loch Insh, a small loch many miles upstream from Knockando through which the river flows, at which point they have access to it. The main activity of the company consists in running courses in canoeing and sailing: these form part of the amenities and facilities which attract tourists to Speyside. During these courses the respondents have taken parties of pupils on expeditions downstream from Loch Insh: on between six and 10 occasions each season, expeditions have passed through the Knockando stretch and have continued at least as far as Aberlour, some miles below Knockando. Sometimes they have gone all the way to the sea. The respondents claim that canoeists as members of the public have a right of navigation or passage down the Spey to the sea.

The physical characteristics of the Spey are too well known to justify extended exposition—in Grant v. Gordon (below) the appellants, who indulged in this, were reproached with attempting "to dazzle the Court with a splendid and pompous description of the River." It is enough, prosaically, to say that the Spey is one of the largest rivers in Scotland and that the salmon fishings in it are amongst the most famous and valuable in the Kingdom. Its stream is fast flowing, in places running into rapids and it is these characteristics which make it particularly suitable and delightful for canoeing. Naturally it varies in depth and flow according to the season and rainfall. From Newtonmore, above the respondents' establishment, to the sea, is about 70 miles and canoes could be used throughout this stretch, though it appears that in places canoeists are advised to disembark and prospect the state of the water and of the channel before proceeding.

There was a good deal of evidence at the proof as to the effect of the arrival and passage of canoes upon the salmon in the river. This was attended with all the sincere and passionate differences of opinion to be expected from enthusiastic fishermen, some of whom said that the canoeists created a state of psychological neurosis in the fish, while others contended that they had no effect at all. The Lord Ordinary's findings were as to this suitably cautious:

"Balancing the evidence as best I can, I am of the opinion that, taking one day with another and one season with another, repeated passage of canoeing groups through a salmon fishing beat is likely to have some adverse effect on the catch which is more than minimal. I do not find it possible to put the matter higher or more precisely than that."

Your Lordships will no doubt be satisfied with this conclusion. I turn now to the legal issue.

It has been the view of all the judges in the Court of Session, which I respectfully endorse, that the result of this case must largely depend upon an ascertainment of what, as a matter of law, was decided in some lengthy litigation in the 18th century between various branches of the family of Grant on the one hand and the Duke of Gordon on the other hand, culminating in a decision of this House on 28th February 1782. The conclusions of the Lord Ordinary, on the one hand, and of the First Division on the other, differed as to this crucial matter, and, in view of this difference it has become necessary for this House to examine those proceedings very closely. Before I embark on this, it is necessary to attempt to state what was the point in the law of Scotland from which the 18th century judges must be presumed to have started.

It is well known that over a large area of the civil law, the law of Scotland is founded upon the Roman Law. This is in general true as regards such matters as the law relating to the sea, to ports and harbours, to navigable rivers and to highways. The title in the Digest relating to rivers is 43.12.1, which rests on the authority of Ulpian. This establishes the main rules in principle, which with development and adaptation have been accepted and applied as jus gentium in most Western systems of law including the law of Scotland. Their acceptance can be seen to be based in part upon the prestige and authority of the Digest, as such, in part upon the sound and clear relationship of the rules with the facts of nature and common experience. It is not necessary to cite from them in detail. The Roman law established the principles by which rivers are to be distinguished from lesser streams on account of their size or the opinion of the inhabitants (existimatione circum scolentium); it drew the distinction between those rivers which are public and those which are not—a distinction based at that time, according to the best opinion, upon whether the river is perennial; it stated the rule against interfering with the condition or navigation of public rivers. This latter rule assumed particular importance in the litigation to be described, since the Praetor restrained interferences only with navigable rivers (ea interdictema tantum flumina publica pertinet, quae sunt navigabilia). The Grant interests sought to bring themselves within the sphere of intervention of the Praetor and in order to so do sought to show that the Spey was "navigable"; this brought about some confusion both of thought and semantics. Two other rules may be mentioned: first that the channel of a public river was itself public—a rule which only came up for examination, and rejection, in Scotland in 1877. Second, that under the word "navigium" rafts are included "Navigii appellatione etiam rates continentur, quia plerum-que et ratium usus necessarius est." These rules of Roman law were unquestionably known to and relied upon by Scottish lawyers of the 18th century. They were cited by Institutional writers: they were specifically relied upon both in the Court of Session and in the then appellants' printed case to this House in 1782.

It is to the Institutional writers that we must look in order to judge the extent of the reception of these rules with Scottish law, for account must be taken of the feudal system introduced about the 11th century. As the result of this, subjects which the Roman law treated as res publicae became treated as inter regalia or in patrimonio principis. A list of these regalia in the Books of the Feus includes navigable rivers. By further development, the regalia became divided into regalia majora, which comprehended broadly subjects which the Crown held inalienably upon trust for the public, and regalia minora, being subjects of which the Crown could dispose. Navigable rivers would fall into the first of these classes. It is obvious that the super-imposition of these conceptions necessitated some, though perhaps not fundamental, adaptation of the Roman law rules.

The Institutional writers of authority whose work appeared before 1772 were Craig, Stair, Bankton and Erskine's Principles. Erskine's Institute appeared in 1773 but must have been completed in 1768 when he died and no doubt reflected the law as then understood. The relevant passages are quoted in the judgments under appeal. I shall only refer to two. In Stair II 1.5 it is said,

"So all nations have free passage by navigation through the ocean, in bays and navigable rivers"—

a general statement, as I read it, of a "jus gentium" without any criterium of navigability or any reference to use. Erskine in his Institute II 6.17 refers to the Roman "res publicae" as including navigable rivers and continues as follows:

"All the subjects which were by the Roman law accounted res publicae are, since the introduction of feus, held to be inter regalia or in patrimonio principis … But as the regalia of this sort are little capable of property, and chiefly adapted to public use, the king's right in them is truly no more than a trust for the behoof of his people; for he cannot hurt the navigation of rivers … unless that measure shall become necessary for the public security in times of general distress. It is public rivers only which are inter regalia; by which writers generally understand navigable livers, or those on which floats may be carried to navigable rivers."

It was in the light of the law as thus stated that the case of Grant v. Gordon came before the courts.

It is clear that in the final stages of this case the courts were concerned with a contest between the right, claimed by the Grants, who were upper riparian heritors, to use the river Spey for the floating downstream of logs, or logs made into rafts, and the right of the Duke of Gordon as lower riparian heritor, not merely to enjoy the fishing of salmon in the Spey, but to erect and maintain cruives which both prevented the salmon from proceeding upstream, where they might reach the Grants' waters, and also interfered with the right of floating. These cruives consisted of loose stones piled upon one another so as to form a dyke across the river, in which several openings were left in which cruive boxes were placed, so constructed as to catch fish of a certain size. The Duke claimed that he had a right to cruive fishing by virtue of a Charter of Novodamus of 1684 and that this right was affirmed by the Court of Session by an interlocutor of 14 July 1727. After a number of suits in which various parties were involved, the Grant interests, represented by Sir James Grant and others started fresh proceedings against the Duke in 1773 in which various old claims were revived and also, for the first time, there was introduced a plea for floating timber down the Spey which they pleaded "in bar of the cruives." In 1778 they raised a separate action in which they again attacked the cruives and asked for a declarator that the public had a right of floating and free navigation on the river, and to have the cruives removed. After a number of stages the case finally reached this House and was concluded on 28 February 1782. The problem is to ascertain exactly what was decided, and on what basis in law.

There are brief reports of the result of this case in Paton's Appeals and Morisons Dictionary (1782, 2 Paton 582; Morison 12820). The relevant passage in Morison is as follows:

"The Court in giving their opinions did not seem to regard the distinction betwixt public, or navigable, and private rivers. They considered a river by which the produce of the country could be transported to the sea to be a public benefit entrusted to the King as pater patriae, for behoof of his subjects in general, which could neither be given away nor abridged by him; and that this transportation as the chief and primary use of the river, if incompatible with the cruive fishing, would prevail over it. They were at the same time of the opinion that these rights were not incompatible, if not emulously used and therefore proceeded to fix certain regulations according to which they were to be exercised."

As was normally the case in 18th century proceedings there was no official report of the judgments in the Court of Session or of the speeches in this House. All that is known of the latter is that the appeal to the House of Lords was fully argued and that the decision was given by Lord Thurlow, those members of the House who might well have assisted him, Earl of Mansfield, Lord Loughborough, being engaged elsewhere. But there are grounds for supposing that these noble Lords may have been consulted by Lord Thurlow.

In this state of things a vast amount of diligence and research has been given to the discovery and protection of material upon which a reasoned view as the legal basis of the decision may be reached. Some of this was for the first time made available in this House and was not before the Court of Session. The most weighty of the material consists of (i) the cases on Appeal to this House which contain very full accounts of the previous proceedings, set out the many preceding interlocutors, and present lengthy arguments of fact and of law; (ii) Petitions, Answers, Replies, Duplies and Memorials to the Court of Session from 10th December 1779 onwards; (iii) Excerpts from Session Papers containing manuscript notes on the opinions of the judges in the Court of Session at two stages (a), dated 19 November 1779 from the Arniston Collection, Vol. 138, No. 6; (b) in 1780-1 from Campbell's Collection, Vol. 40. Both of these are of exceptional importance, (iv) Some notes of uncertain authorship, produced from the Scottish Record Office of speeches made by the Lords on 16 December 1779 on a reclaiming petition by Sir James Grant. I regard these as of some, but secondary value. In addition to this material relating directly to the cause of Grant v. Gordon there are other excerpts from the Hume collection bearing upon later causes which throw light upon what was decided in Grant v. Gordon namely, (v) papers relating to the Duke of Montrose and others v. Sir James Colquhoun of the year 1793 (Vol. 4, No. 11); (vi) the same of the year 1804 (Vol. 52, No. 50); (vii) papers relating to Forbes and others v. Grant and others of 1804 (Vol. 52, No. 7); (viii) excerpts from a case submitted in about 1874 for the Duke of Richmond and Lennox for Opinion of Counsel, with Opinion of Mr J. B. Balfour. This was said to be based on reports of the Lords' speeches, now lost. I am unable to extract anything of value from this document. Of these, item No. (vii) is of special interest and importance as recording an opinion of Lord President Campbell who, as Sir Ilay Campbell, had been counsel for the Grants—appellants in the 1782 appeal to this House.

All of these sources, and other material, were examined by your Lordships over many days in this appeal. In doing so we received, and I would like to acknowledge, the very greatest help from the learning and diligence of counsel at the Bar. A complete exegesis and analysis would require many pages, which, so interesting is the subject, I should be glad to make if to do so were likely to be productive. But since, after the argument we have heard, and after further study of my own, I have been able to come to clear conclusions, I think it better to state these with comparative brevity, all the more so since they substantially agree with those of the Lord Ordinary. I have no doubt that the following points were made out:

(1)—in fact—

(i) there had been considerable use of the Spey for floating logs from places upstream of the Duke of Gordon's waters from at least the 17th century to 1782. The floating seems at first to have been of individual logs; but after 1728, in consequence of a technique devised by the poet Aaron Hill, the floating was of timber formed into large rafts steered by men equipped with oars. These rafts drew about one and a half feet of water and were, in later years, used also for the transport of country products. The floating normally took place in the early months of the year, (ii) The solid cruive Dyke of which the pursuers complained, as interfering with navigation, was erected about the year 1750.

(2) It was decided in the Court of Session in November 1779 "of consent of the Procurators for the Duke of Gordon" that the Grants have right of floating Timber down the said river from the superior parts thereof, all the way to the sea, from 26 August to 15 March yearly." The notes of the judges' opinions (see item iii (a) above) show no very clear or united view of the Lords of Session as to the nature of the river. Lord Kames is recorded as holding the Spey a navigable river, Lord Alva as holding the Grants' "right good," Lord President (Dundas), "supposes it floatable from October to March therefore" finds "his right good." Lord Monboddo thought it not a navigable but a public river—and cites the Praetor's edict, following which the floating should be "at proper times." Lord Covington held it not a navigable river since they could only float in spate.

Against this interlocutor a reclaiming Petition was presented by the Grants praying the Court to find that they had the right to float at all times and in all seasons and to navigate the river by boats and rafts. The speeches attributed to their Lordships on this Petition (item iv above), show them generally hostile to the Grants' claim—Lord Covington on the ground that it would cancel all that had previously been decided in the Court of Session and in the House of Lords as to the Duke's right to cruive [see as to this argument below].

(3) In 1781 there followed two interlocutors. On 18 January 1781 it was found that the Duke of Gordon had a right of cruive fishing, but that the Grants had a "right and title" to pass with floats and rafts to the sea from 26 August to 15 May, i.e., for two months longer than was covered by the Duke's concession, but that between 31 March and 15 May they must give certain notices to the Duke's agents. The Duke presented a reclaiming Petition against this. On 9 March 1781 the Lords of Session adhered to their former interlocutor but imposed certain further conditions as to floating through the cruives.

It was in connection with these interlocutors that the judges' opinions, notes of which are mentioned under item iii(b) above, were delivered.

The sense of these judgments, by a strong majority, was that the river was navigable, or publici usus, and that the right of floating was a public right to which the right of fishing by cruives must, if necessary, yield.

Thus, the Lord Justice-Clerk:

"navigation the paramount right because the right of the people is not inconsistent with the fishing—not to be used emulously."

Lord Covington:

"cruives must yield to superior interest."

Lord Gardenstoun:

"one a private right the other a public one and in competition would prefer the last but happily two rights compatible—only question what regulations necessary."

Lord President:

"if two rights inconsistent would prefer the public use … month of March not enough—April and May from nature of things … the chief months, for extending to 15th May—but during these two months may be modelled … obligation to make a passage for floats."

Their Lordships, in referring to "a navigable river" or "a public river" did so in terms which justify the first sentence in the report in Morison—see above.

(4) It is absolutely clear, in my opinion, that the Grants' right to float was not upheld on any basis of private right, or servitude, or prescription, against the Duke of Gordon. This appears from the judgments in the Court of Session. It can further be shown to demonstration that on the appeal to the House of Lords any claim based on private right or servitude or prescription was abandoned: the printed cases indeed reveal that, apart from the fact that the ownerships were not contiguous, any such claim could not possibly succeed—amongst other things the offending cruive was only erected in 1750. The only "Reason" given by the appellants, apart from those relating to the legality of the cruive, was one (No. 6) which claimed the Spey as a public navigable river. The decision in favour of the right to float between 15 March and 15 May could only have been given on the basis of this claim.

(5) That the decision in Grant v. Gordon was in favour of a public right has clearly been accepted by later decisions and by later writers of authority. These decisions and writings could not, of course, make the law of Scotland by means of a communis error—but in fact they are completely in line with what on a consideration of Grant v. Gordon alone, the law appears to be. Of the authorities the clearest are the Duke of Gordon and Dodsworth and Osborne v. Sir James Grant in 1791, Duke of Montrose and Others v. Sir James Colquhoun, which reached this House in 1801 (4 Pat. App. 221) and Forbes v. Grant (both referred to above). I shall only cite two passages. In the first of these cases the Duke of Gordon's answer contains this:

"And therefore as Sir James [Grant] so far prevailed in his last process, as to have the Spey found a public River to the effect of floating the woods to the sea under certain salutory regulations proper for the preservation of the Respondent's paramount Right of Fishing"…

This shows the Duke's own view of the earlier case some nine years later. [The word "paramount" appears to be argumentative.]

The second I take from the notes of the judgment of Lord President Campbell in Forbes v. Grant :

"In case of Grant was held that right of floating was the supereminent right but not to be used emulously. So notices were ordered in that case. Otherwise judgment would have ordered the cruives to be demolished."

(Hume Collection Vol. 52 No. 7.)

Lord Meadowbanks' opinion in the same case is equally strong.

Of the writers, Hume's Lectures, Bell's Principles, Rankine on Land Ownership, Green's Encyclopaedia s.v. Water and Water Rights all support the same view of the case.

My Lords, the above conclusions represent essentially the conclusions of the Lord Ordinary. The learned judges of the First Division took a different view—against a decision of a general public right of floating. The argument which appealed to them, and a further argument developed by the appellants in this House are the following. The first was that the claim of the Grants, in 1778, was expressed in very wide terms. It was, in effect, for a free right of navigation for themselves and all other persons his Majesty's subjects, at all times and seasons to send floats down the river, and for the free navigation of the river in every way that the same is capable of being navigated, and to have every obstruction which might impede such navigation removed.(My emphasis.)

This claim, it was argued, was not accepted by the Court of Session, either in 1779, or in 1781, when the right to float between 15 March and 15 May was upheld. When the Grants appealed to this House, asserting an unrestricted right of navigation, their appeal was dismissed and the interlocutors of 1781 were affirmed. So, it is said, the 1782 decision cannot have been a decision in favour of a public right, but was at most in favour of a particular right limited to the user proved.

Secondly, it is pointed out that the Court of Session, both in 1779 and in 1781, accompanied such decision, as they gave in favour of the right to float, with restrictive regulations. This, it is argued, is inconsistent with the recognition of any right of a public nature or at least is only consistent with a right of a limited character.

These two arguments to a great extent overlap and can be dealt with together.

In my opinion, the key to an understanding of the interlocutors which were made, lies in the fact that the object of the Grants, throughout, was to obtain removal of the Duke's cruives; this they desired in the interest of their fishings in the river—see the words italicised above. It was in order to secure this removal that the issue of floating was introduced, as I have already pointed out, for the first time in the proceedings which led up to the interlocutors of 1779-81 when it was set up "in bar of the Cruives." They were quite frank about this. In their Replies, dated 10 February 1780 in the Court of Session they said:

"They are not ashamed to avow the real object of their action which is directed against braes, dykes, and, they can say, cruives … thrown in the channel of a public river."

The right of floating was, of course, only a part of their argument, for they continued to attack the Duke's right to the cruives in every way possible. In this House, of their Reasons in support of the appeal, those numbered 1–4 set out arguments against the cruives, based on illegality, invalidity of the Charter of 1684, public policy and contract. Only Reason 6 rested upon the right of floating and the navigable character of the river.

The attack on the legality of the cruives, however, quite clearly failed. As I have stated, the Duke's right of salmon fishing "in any lawful way" was upheld by interlocutor of 14 July 1727—this was in proceedings by the Earl of Moray. In further proceedings in 1732, brought by Lord Braco and members of the Grant family further interlocutors were pronounced in favour of the cruives and of the Charter of 1684 (20 February 1735, 7 July 1736, 15 July 1737). The attack was renewed by the Grants in the suit of 1773—again they sought reduction of the Charter of 1684, and a finding that the Duke had no right to fish by cruives, or at least that, if he had such a right, it must be regulated according to law. These proceedings passed through the Court of Session and reached this House which gave a judgment on 22 March 1776. By this it was declared:

"that the Interlocutor bearing date the 14th July 1727, ought to be considered in this cause as a final and conclusive judgment."

The cause was then remitted to the Court of Session to proceed upon the basis of the rights of the parties established by the said Interlocutor.

In these circumstances the difficulty in which the Court of Session found itself in 1779 is apparent. The Duke had been held entitled to fishing by cruives, judicially affirmed as long ago as 1727, by a decree treated by the House of Lords as res judicata. Against this, the Grants, in the opinions of their Lordships, had established a public right of floating. It would be clearly incompatible with the earlier decisions and interlocutors to order the demolition of the cruive constructed in 1750, yet the right of floating could not be exercised if it remained permanently in position. In the light of this conflict, the opinions given in 1781 become entirely comprehensible. Their Lordships were in favour of the Grants' claim to a public right: certain of them, at least, were of opinion that, being a public right, it was pre-eminent, and if incompatible with the Duke's right to cruives, must prevail. But was it incompatible? Their Lordships thought not, or at least that it could be made compatible by regulation. They so decided. And the conclusion must be that, whatever logical difficulties may be inherent in their Lordships' judgments, nothing in them can be said to impair their decision, and the decision of this House, that there was a public right to use the river for purposes of floating. It is perhaps ironical that the Grants then pointed out the difficulties of the course adopted: they said, of the judgment reclaimed against:

"The judgment is still conceived in such terms that it must prove a fertile source of broils and endless disputes among the parties interested in the present question: and although it does immediately affect these parties only, it must in its consequences, if understood to be a legal judgment, involve many subjects of the Kingdom in distress and ruin."

In other words, short term solutions often produce long term problems.

My Lords, it is time to leave the 18th century and to seek to apply the law then established to the facts of the twentieth. The nature of the right so affirmed is, in my opinion, clear, and classical. It is a right to use the water of the river Spey for a public purpose, namely, the floating downstream of logs or rafts according to the nature and capacity of the river. I have refrained from using the word navigation in this context because I think it confusing: the right is simply one of public use. The word navigation has come to be attached to it because the normal use of a stream is by boats or vessels, but that is not the only use. This was well perceived by the Roman jurist:

"Ait praetor: iterque navigio deterius fiat; hoc pro navigatione positum est; imo navigium solemus dicere etiam ipsam navem. Iter ergo navigio potest et sic accipi: iter navi deterius fiat. Navigii appellatione etiam rates continentur, quia plerumque et ratium usus necessarius est. Si pedestre iter impediatur, non ideo minus iter navigio deterius fit" (43.12.1.14).

So the right of floating rafts downstream is a recognised right. It is one which has found acceptance in other systems. In Canada where timber floating supports a major industry a number of cases have expounded the legal basis of the right to float. In Bell v. Corporation of Quebec (1879) 5 App. Cas. 84 the Judicial Committee of the Privy Council was concerned with the erection of a bridge over a river said to be navigable (cf. Colquhoun's Trustees v. Orr Ewing 4 R. 344). The judgment contains a number of interesting citations from French authors—notably Dalloz—which recognise the right of floating and take as a principle or test governing the character of a river, whether there is a possibility at least of the use of the river for transport in some practical and profitable way. Dalloz in addition states the proposition that a river does not cease to be in the public domain through interruption of navigation or floating "depuis un temps plus ou moins long." This point is relevant later. In Maclaren v. A-G. for Quebec [1914] A.C. 259 the Judicial Committee was concerned with a section (400) of the Civil Code of lower Canada, similar to Art. 538 of the Code Napoleon, which referred to navigable and floatable rivers and streams. The issue was as to the meaning of "floatable"—whether it included the floating of separate logs but the judgment makes it clear that the distinction between rivers which were "navigable and floatable" and other streams existed in French jurisprudence long before the compilation of the Code Napoleon. In the United States the law has taken a similar course: from many decided cases I may refer to the New York case of Morgan v. King 35 N.Y.R. 45 which was concerned with the right to float in the Racket river, a tributary of the St. Lawrence. The judgment of Smith J., following in general English authorities including Hale, De Jure Maris, upheld the claim to float as a public right. It was not necessary that the stream should be capable of being thus navigated against its current, as well as in the direction of its current:

"If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported." (1.c. p. 459.) The test applied was that of the ordinary capacity of the river.

My Lords, I have referred to these cases drawn from differing systems of law, to support the existence of a rule, which is really one of the common law of nations, resting ultimately upon facts and needs not confined to any one place or time, that the use of a river, according to its natural quality and capacity, for downstream floating is recognised by the law; and to support the use of broad and liberal principle for the statement and application of the rule. In defining the nature of this public right, it is important not to confuse its description or origin with its extent. All rights of passage, and this is what the right here is, have their origin in some user, in the case of rivers by ships, or barges, or curroughs, or scows or gabbarts, or rafts, whatever may correspond with the needs of the time. Rivers have, with rare exceptions, always been there, inviting use by man, and man since long before history has had the means and the occasion to use them. The interaction of natural and visible capacity for use with human exploitation thus produces by inevitable process a segregation between rivers of public use and other rivers or streams and which have not the character of public use. But the right for use is not for all time frozen in any one form: the law, of Scotland or of anywhere else, is adaptable to let in such other uses as change may bring about (See Dyce v. Hay 1 MacQ (H.L.) 305, 312 per Lord St. Leonards, L.C.) The extent of the right, on the other hand, depends upon the capacity and quality of the river: the one must bear some natural relation to the other. Thus, seasonal variations in the river necessitate seasonal variations in the use. Thus, too, the fact that some stretch of water is navigable or passable by some acrobatic tour de force does not establish a public right of passage. Thus, again, the establishment of a public right of passage does not open the door to every kind of user which physical prowess or exorbitant technology may make possible. The right is one for the ordinary public to use comformably with the nature of the river as water flowing past other people's lands.

What uses of the river Spey can be brought within this rule?

As I have already mentioned, the use for floating logs or rafts of logs was of a very considerable extent and prevailed over a long period. It continued during the 19th century down to the year 1885 after which there is no evidence of its continuance. As a matter of principle, it is in my opinion clear that this public right can include and accommodate a right of passage by canoe: the canoe draws only six inches of water and the use made of the stream—i.e., of passing down the stream—is similar in character. A distinction was sought to be introduced from the fact that the use for floating was commercial and that for canoeing recreational and that the admission of the former did not therefore admit the latter. But, even if one puts aside the mixed quality of the use in this case (since the respondents at least are a commercial organisation) it is in my opinion clear that once a public right of passage is established, there is no warrant for making any distinction, or even for making any enquiry, as to the purpose for which the right is exercised. One cannot stop a canoe, any more than one can stop a pedestrian on a highway, and ask him what is the nature of his use. The question is purely one of the capacity of the river.

There is support for this in the law of Scotland. In his lectures of 1821-2 Baron Hume states the following test:

"Is the river of such depth and capacity, as makes it fit to serve, and has made it in the use of serving, as a channel of transportation, upwards and downwards, for the commodities … of the adjacent country."

Some interesting and appropriate observations on this topic may be found in A-G. v. Woods 108 Mass. 436. So I conclude that use by canoeists is capable of coming within the right.

The final issue is whether the right to use the river for passage downstream has been lost by disuse. The appellant's contention is that this right can only be acquired by prescriptive use over 40 years, so it can be lost by 40 years discontinuance. This raises a question as to which there is little authority in Scots law.

The appellants invoked the analogy of a public right of way, or a highway overland. As to this they were able to cite authorities of some strength for the propositions that prescriptive use subject to technical rules is required to establish the right and that the right may be correspondingly lost by disuse for a prescriptive period.

But I am in agreement with the Lord Ordinary that a public right of navigation in a non-tidal river and a public right of way on land are not necessarily governed by the same rules. A public right of way on highways is established by use over the land of a proprietor; its exact course must be shown, and it must be between public termini. A river on the other hand is permanently there as a natural feature, it has at least one terminus—the sea. The logical consequence of this characteristic is that drawn by the Romans, viz. that all rivers, at least all perennial rivers, are considered as navigable and publici usus and this conception finds reflection in early institutional writers. Stair, "all nations have free passage by navigation through the ocean, in bays and navigable rivers" (II.1.5). Erskine in the passage I have quoted mentions simply "navigable rivers"—including those on which "floats may be carried." At the same time the alveus, and even the banks, were treated as public, a position from which Scottish law has retreated, but without, so far as I am able to perceive, the main rules as to use of the river being affected by the retreat.

As to the establishment of a public or navigable river, it was argued for the respondents as their main argument, that the only test is factual navigability, and correspondingly, as would be logical, that the character of a river once so established can only be lost by natural causes or by Act of Parliament. There is support for this in authority, Macdonell v. Caledonian Canal Commrs . (1830) 8 Shaw 881, per Lord Glenlee, Bell's Principles, section 648, Macbraine v. Mother (1871) 9 M. 913. per Lord Ormidale, Colquhoun's Trustees v. Orr Ewing 4 R. 344, 359 per Lord Shand.

My Lords, I do not think that so extreme a position can be defended: it would certainly lead to a vast extension of the rights of the public, and corresponding diminution of private rights beyond what is generally supposed. And there is no case known to me in which a river has been found to be public upon its physical character alone. But does it follow from this that, to acquire the status of a public river, prescriptive user for 40 years before the action is raised of the kind required for the establishment of a highway or right of way on land must be shown?

So far as authority goes, there appears to be no suggestion that this is the law before 1877 when Colquhoun's Trustees v. Orr Ewing was decided.

I shall not examine this case in any detail—that has been sufficiently done by the learned judges below. I accept their conclusions that, in spite of the use of certain words and phrases (particularly "prescriptively" by Lord Deas), the case is not an authority, even by dictum, for a requirement of prescriptive use of the kind suggested. On the contrary the expressions used by Lord President Inglis (see p. 350) if anything favour acquisition by indefinite or immemorial use. No subsequent decision seems to carry this matter further. That most relied on on behalf of the appellant—Bowie v. Marquis of Ailsa (1887) 14 R. 649, a complicated combination of processes, does not appear to establish a contrary rule either as to use or still less as to disuse. It was simply a case of lack of evidence—prescriptive or otherwise—to establish navigability.

What then is required? In my opinion the way is shown by the formulation of Baron Hume in his Lectures (Stair Society Ed. Vol. IV, p. 243),

"Is the river of such depth and capacity, as makes it fit to serve, and has made it in the use of serving, as a channel of transportation."

This agrees with and perhaps even reflects, the words ascribed to the Lord President in 1781 "the month of March not enough—April and May from nature of things … the chief months."

In the same sense and spirit is the dictum of Lord President Clyde in his well known judgment in Leith-Buchanan v. Hogg 1931 S.C. 204. I requote his words:

"I doubt if it has ever been settled whether the public character of the non-tidal part of a navigable river depends (1) on the fact of navigability or (2) on prescriptive possession by the public. What makes the difficulty is that actual use for navigation is probably the best evidence of navigability, but it does not necessarily follow that the public character of a non-tidal river is subject to all the qualifications attaching to rights acquired by prescriptive use."

I respectfully agree with this line of thought and I suggest that, now that it becomes necessary to resolve the question then left unsettled, the true principle should be that, in addition to physical capacity for public use according to the quality and capacity of the river (I avoid the word "navigation" for reasons already explained) there must be shown actual public use for a period of which the memory of man does not run to the contrary—in practice for a period of 40 years, this being capable of proof by evidence, and by existimatio circumcolentium. In my opinion this accords with the conception by which navigable rivers are inter regalia better than a strict rule of prescription and is also suitable for application to the particular case of a navigable river. For if a natural stream is truly to be accepted by the law as a highway, it would seem to be inconceivable that evidence of its use as such over a long period and of its reputation among the inhabitants as a public river were not to be present. If this, then, is the test, it must follow, and I would hold, that once acquired, the character of a public/navigable river is not lost by prescriptive disuse and I have already argued that the case of Bowie v. Marquis of Ailsa does not decide to the contrary.

I am, therefore, of opinion that the appellants' argument so far as based on disuse fails in law. If it became necessary to examine the fact, which, and the findings on which, are exiguous, I would incline to hold that the appellants have not proved 40 years disuse in fact.

My Lords, numerous other points were, properly, canvassed on the appeal. To do justice to all of them would lead me into more than the existing length. I wish to say that although differing in some respects from the judgments in the Inner House, I have drawn great assistance from them in their analysis of the fact and the law. Moreover, since writing this opinion I have had the benefit and pleasure of reading that of my noble and learned friend Lord Fraser of Tullybelton who deals with a number of points which I have not canvassed, or only briefly. I wish to express my entire agreement with his argument and conclusions.

For the reasons I have endeavoured to state I would dismiss the appeal with expenses in this House.

VISCOUNT DILHORNE .—MY LORDS, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Wilberforce, Lord Hailsham and Lord Fraser of Tullybelton.

I regret that I cannot agree that by their decision in 1781, which was affirmed in this House, the Court of Session decided that the Spey was a public navigable river. If it was not so held, then in my opinion the appellants should succeed in this appeal.

While I agree with my noble and learned friend Lord Fraser of Tullybelton that for a river to be regarded as a public navigable river, there must be proof of actual use for navigation and accept that use for floating large rafts of logs over a long period of time may establish navigability, unless compelled to do so by authority, I would be most reluctant to hold that a river not ordinarily navigable should be regarded as a public navigable river if it was only navigable by floats or rafts when in flood unless it was established that owing to the frequency of the floods the river was regularly used for that purpose.

My noble and learned friend cites a passage from Rankine to the effect that it is quite sufficient to establish navigability that logs of wood "should have been regularly sent down the stream when in flood, though no attempt was; ever made to take produce up." No authority is cited for this proposition and its accuracy would appear to me to depend on the content given to the word "regularly." My noble and learned friend also cites a passage from the judgment of Smith J. in Morgan v. King (1866) 35 New York Reports 454, 459, which, he says, accords with the law of Scotland, subject to two qualifications. That passage contains the following two sentences:

"The true rule is that the public have a right of way in every stream which is capable in its natural state and its ordinary volume of water of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks."

and

"If it is so far navigable or floatable in its natural state andits ordinary capacity as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported."

These passages accord with what I think most people would regard as constituting navigability of a river, but my noble and learned friend thinks that they should be read subject to the qualification that "ordinary volume of water" must be taken to include the volume at ordinary seasonal spates but cannot apply to rivers in times of exceptional floods as it would then apply to almost every river in Scotland.

I do not know quite what is meant by ordinary seasonal spates and exceptional floods and how one distinguishes them. If floatability in ordinary seasonal spates sufficed, then I think that there can be few rivers in Scotland which are not navigable.

In the prolonged litigation which culminated in the decision of the Court of Session in 1781, there was a considerable difference of opinion on whether the Spey was navigable. This may have been due to the use of the Spey being both seasonal and only possible when the river was in flood. Passages from the Lord Ordinary's findings of fact as to this have been cited by my noble and learned friend, Lord Fraser of Tullybelton, and to those passages I only desire to add one sentence from the judgment of the Lord Ordinary:

"The floating normally took place in the early months of the year when the river tends to run high."

He made no finding as to the regularity of its use for floating during a year but I infer from his use of the word "normally" that it was only exceptionally and not regularly that the river was so used at other times of the year but it is clear that it had been used for a great many years. He made also no finding that the river was capable of use for floating large rafts of logs downstream, drawing up to 20 inches, when the river was at or about its normal height.

In the action started in 1778 by Sir James Grant against him, the Duke of Gordon in answer to the contention:

"That the Spey being a public navigable river, those who are proprietors of lands or woods on its banks have an inherent right of floating their woods and other commodities down to the sea"

asserted that a public navigable river is one in which vessels

"can at all seasons have a free passage upon the river"

and that the pursuers admitted

"when the river is in flood, rafts of timber can be navigated down for fifty miles."

In his Duplies dated 1st March 1780 (Hume Collection, Vol. 14 No. 4) the Duke asserted that:

"The characteristics of a public river clearly is to be capable of navigation and passage, both up and down, with vessels of burden at all times and at all seasons of the year; whereas it is established and admitted that the Spey is only capable of transporting floats of timber downwards from the Highlands to the sea when swelled beyond its ordinary size by a high flood."

The Lord Ordinary found that the practice of floating large rafts down the Spey—and I agree with my noble and learned friends that navigability downstream will suffice—began in 1728 and that most probably the last of them to pass Knockando, passed in 1885. Before 1728 and to some extent thereafter, it may be, loose logs and small rafts guided by men in currochs had been floated down.

If any confirmation of the Lord Ordinary's findings is required, it is to be found in the "Memoirs of a Highland Lady 1797-1827" (published in 1898 by John Murray: republished in 1950). In the spring, she says, the logs were got down to the Spey:

"where the Spey floaters took charge of them."

"The Spey floaters lived mostly down by Ballindaloch, a certain number of families by whom the calling had been followed for ages to whom the wild river, all its holes and shoals and rocks and shiftings, were as well known as had its bed been dry. They came up" (to Rothiemurchus) "in the season at the first hinting of a spate …

She went on to describe how the rafts were made and covered with planks "as a sort of flooring" and wrote:

"Two rude gears for the oars completed the appointment of a Spey float. The men had a wet berth of it the water shipping in or more properly over at every lurch; yet they liked the life and it paid them well. Then they had idle times great part of the year, could live at home and till their little crofts in their own lazy way the rent being made up by the floating" (p. 160).

If the floating was only seasonal and then only took place when the river was in flood, I can well understand the view being held by some that such use did not suffice to stamp the river with the character of a public navigable river even though the seasonal use at times of flood had continued over a long period of time.

The respondents relying on this use of the river for floating, which "normally took place in the early months of the year," now seek to establish that they have the right to canoe down it at all times and seasons of the year.

The first time the right to float was challenged appears to have been in 1756 when an action was brought by Sir Ludovick Grant against Sir Robert Gordon. Sir Ludovick was the owner of lands at Freuchy and Cromdale. Cromdale is a long way above Knockando and Knockando is a long way above the fishing owned by Sir Robert Gordon which was immediately above the water in which the Duke had his cruive. Sir Ludovick sought a declaration that Sir Robert had no right to use cruives, yairs braes or dykes. Sir Robert brought a counter action seeking to have it declared that Sir Ludovick had no right to send floats down the river to the prejudice of his fishing. In this action the Court of Session pronounced an interlocutor which, inter alia, declared that Sir Ludovick had the right to convey floats of timber down the Spey to the sea, and that Sir Robert's right to fish with dykes and braes was subject to such regulation as should be consistent with Sir Ludovick's right of floating timber.

The grounds on which the Court found in favour of Sir Ludovick are not known. The Court may have done so on the ground that the Spey was a public navigable river and he had the right to float as a member of the public or on the ground that he had some kind of personal right, founded it may be on long usage. It may be that if the Court found on the latter ground, it was wrong to do so but the important fact to my mind is that when the Court of Session came to make its determination in 1779 and 1781, it must have been within its knowledge that it had already decided that a superior heritor had the right to float down to the sea and that the Court had held that the right of fishing must give way to this right.

They also had to have regard to the judgment of this House that the interlocutor pronounced in 1727—it would appear in an action between different parties—was to be regarded as a final and conclusive judgment in the cause Grant v. Duke of Gordon .

That in this action the pursuers sought to establish that the Spey was a public navigable river is clear beyond all doubt. Only if they did so, might they achieve their object, the removal of the Duke's cruive as an impediment to the public right of passage.

Sir James Grant sought the conclusion that he

"his tenants and other inhabitants of his lands and estates andall other His Majesty's subjects have good and undoubted rightat all times and seasons when they think necessary to send floats of timber down the said river from the superior parts thereof all the way to the sea and to the free navigation of this river in every way that the same is capable of being navigated by boats, rafts or floats as they think proper …"

In the course of the proceedings the Duke's counsel made a statement of great importance. He said:

"That there could be no interference between the right of cruive fishing established in favour of the Duke of Gordon and the right of floating claimed by Sir James Grant and the other heritors if they were not emulously exercised, and to satisfy the Court that his Grace was disposed to accommodate the Pursuers" (the Grants) "in the exercise of floating during the seasons when it could be most profitably exercised and when the river was best suited for the transportation of timber, his counsel consented that the Appellants should be at liberty to float their timber down the Spey not only from the 26th August yearly when the salmon fishing ends to the 30th November when it usually begins: but also to continue the exercise of floating forward to the middle of March which must be sufficient for the purpose of floating, being the seasons best suited for the exercise thereof in this river."

Although the Grants were not prepared to accept this compromise, contending that it restricted their rights, on the 26th November 1779 the Court pronounced an interlocutor, which recorded the consent of the Duke and found that the pursuers:

"have a right of floating timber down the said river from the superior parts thereof all the way to the sea from the 26th August to the 15th March yearly; and remit to the Lord Ordinary to proceed accordingly."

This interlocutor did no more than give effect to that to which the Duke had consented. The contrast between it and the conclusion sought by the pursuers is striking. It only recognised a right to float, and that only during 6½ months. It did not recognise a right of free navigation. It only recognised a right of the pursuers and not one of all His Majesty's other subjects.

Were it not for the very short manuscript notes of the judges' opinions delivered when this interlocutor was pronounced (to be found in the Arniston Coll. Vol. 138 No. 6), there would not in my opinion be any grounds for concluding that the Court had held that the Spey was a public navigable river and that established the pursuers right to float.

Those notes read as follow:

"Kaimes. The right of using the river a natural right to the inhabitants of the country—thinks the Spey a navigable river, as they float upon it. But as they don't come down frequentlythinks they may accommodate matters. Only Sir Jas. right clear. Monboddo.—not a navigable river—does not think the Crown had a right to make any grant prejudicial to the use of it as he is of opinion it is a public river—cites the Edict of the Praetor—ne quid in flumine publico sed ea tantum flumina quae sunt navigabilia—does not think that the D's right to be hurt: therefore they ought to float at proper times."

"Gardenstoun thinks their offer fair."

"Alva. Thinks their right good, but that it may & ought to be settled so that the D's right not to be hurt."

"Covington. Thinks that the D ought to exercise his rightsalve jure publico—that it ought to be comprised between the parties—not a navigable river altho' there should happen to be floats on it, unless they can get from top to foot of it. They can't float unless in speate therefore not a navigable river. President, suppose it floatable from Octr. to March. Therefore find his right good & in respect of the D's consent that it shall be allowed from the 26th August to the 14th March."

I find these notes very puzzling. Why if the Court held the river to be a public one or a public navigable one on which all members of the public had a right of passage, was only Sir James' right clear? If members of the public had rights of passage, why were the pursuers' exercise of their rights restricted to just over half a year? The Court must have known that the Crown had no power to abridge the right of passage on a public navigable river, yet they all agreed that there should be a compromise which restricted the pursuers' rights.

I find them even more difficult to understand in the light of the notes of the judges' opinions delivered on the pursuers reclaiming petition on the 16th December 1779. Those notes record that Lord Kaimes said:

"He was very clear of the Opinion on the Interlocutor, and the pursuer could never have such a Right as was prejudicial to the Duke of Gordon's Fishing which he considered as the primary right …

"Lord Hailes observed

"that if the pursuers' Argument was good, every Right of Cruive Fishing in Scotland might be destroyed. There was no river where a few trees might not be tied together and floated down. The pursuers misunderstand the Interlocutor. The consent of the Duke of Gordon prevented him from ever challenging the Judgment and as to the time Consented to for Floating, the proper point was exactly fixed so as to make both rights effectual. No doubt floating might be carried on in April and May but so might it in June, July and August so as to render the Cruives good for nothing. The Duke had woods upon the River above the Cruives, equally valuable as those of the Pursuer.

"Lord Alva liked the Interlocutor better now than when it was pronounced.

"Lord Covington could never agree to the unlimited demands of the Pursuers, because it was in fact annulling all that had been done by this Court and the House of Peers for these great number of years in various decisions establishing the Duke of Gordon's right to Cruives.

"Lord Justice Clerk said the Petitioners offered to prove by what he thought Unquestionable Evidence That they had been alwise in use to float down timber at any time of the year, and that the months of March and April were the most convenient of any. That there were very often Floods in these months which at any rate prevented the Fishing. He for his part knew that there were often high floods at that time of the year, and that during great part of the winter the River might be locked up as we have seen it of late years, and that if it was not afterwards open, this great and valuable property in these very extensive woods must be rendered useless. Insomuch that it is maintained that Contractors for the Timber would give up their Bargain if thus limited in floating. He could not therefore think but that this matter deserved the serious consideration of their Lordships.

"Lord Justice Clerk further wished to have a condescendance of the particular way in which the Cruive Dyke used to be opened for the Floats and by whom. If it was without much Trouble of Expense, perhaps taking off no more than the uppermost stones for the Breadth of the Bench, he did not think that should stop the Floating at any time. But that he never could enter into the Idea maintained in the Petition that thisOccasional Right of Floating should defeat the Duke's right of Cruive Fishing now established in this River.

"Lord Gardenstoun was of the same opinion.

"Lord Kaimes said he would also be of that opinion if they satisfy him that the Floating did no hurt to the Fishing. He only wished to have them compatible.

"Lord Kennet Observed that this was always taking the River Spey to be a Navigable River, which he did not at pronouncing the Interlocutor consider it, nor could he yet alter his opinion.

"Lord Braxfield said it was better to argue no more just now, but order the Petition to be answered."

The compromise offered by the Duke recognised the pursuers' right to float during 6½ months of each year, and that being so, the Court may well not have concerned itself with the character of the right since by their Interlocutor of 1779 they had done no more than give effect to the terms to which the Duke had consented, in a judgment which, as Lord Hailes said, the Duke could not challenge.

On this reclaiming petition the pursuers again sought a declaration that they had the right at all times and at all seasons to float timber down the Spey and to navigate it by boats, currochs and rafts in all parts, but again the Court did not grant it.

On the 18th January 1781 it pronounced the following interlocutor:

"That, in terms of the Interlocutors already pronounced in this cause, the Duke of Gordon has a right of cruive fishing in the River Spey; but find that Sir James Grant, and the other Pursuers, superior heritors on the Spey, have a right and title to pass with floats and rafts down the said river to the sea from the 26th day of August to the 15th day May …"

The interlocutor went on to impose restrictions on the floating between the 1st March and the 15th May. During that period notice was to be given to the Duke's men between sunrise and sunset so that the Duke's men could make a passage through the cruive for the floats.

The only difference between this interlocutor and that of 1779 were that in this the pursuers were described as superior heritors on the Spey and not as heritors of salmon fishing on the Spey, the extension of the period of floating beyond that to which the Duke had consented and subjecting its exercise after the 1st March to restrictions.

The Duke objected to the extension of the period and reclaimed but on the 9th March 1781 the Court pronounced an interlocutor adhering to that of the 18th January 1781 but varying it by declaring:

"that the superior heritors on the river Spey are only to float from sun-rising to sunsetting: and also that they are to pass the Cruive Dyke seriatim at the place pointed out to them by the Duke's fishers who are always to make openings so as to allow the floats to pass freely and conveniently …"

Notes of the judges' Opinions delivered on the pronouncement of one of the interlocutors of 1781 (to be found in Campbell's Collection Vol: 40 Session Papers 1780-1781) reveal a considerable divergence of judicial opinion on whether the Spey was a public navigable river. It is said that the majority were in favour of the view that it was but the important question is, was the case decided on that ground? In my opinion it was not. If it was decided on that ground, the refusal of the Court to pronounce an interlocutor in accordance with the conclusion sought by the pursuers appears to me inexplicable. The Lord President thought the question of navigability of little importance. Lord Kaimes thought it of no consequence whatsoever, so did Lord Covington. How could they have held those views if the decision of the Court depended on the Spey being held to be a public navigable river?

The very brief report of the case in Morison's Dictionary 12820 commences with the sentence:

"The Court in giving their opinions did not seem to regard the distinction betwixt public, or navigable, and private rivers."

If this was so, it seems inconceivable that the basis of the Court's decision was that the Spey was a public navigable river for such a conclusion was fundamental if it was held that the rights of the pursuers enured to them as members of the public.

I have already drawn attention to the very minor differences between the interlocutors of 1781 and that of 1779 and the conclusion to which I have come is that the 1781 interlocutors did no more than accept, as had that of 1779, that to which the Duke had consented and slightly extend the concession; and this appears to me to be the explanation of the observations of the Lord President, Lord Kaimes and Lord Covington.

The matter is, however, I think, put beyond all doubt by the Pursuers' Case on their appeal to this House from, inter alia, the interlocutors of 1779 and 1781. In relation to that of January 1781 they contended that the Court had:

"in Effect found, that the Appellants had no right of navigating the River Spey: for they made the Exercise of that Right depend on the mere Will or Consent of the Respondent …"

If it had been held by the Court of Session in 1781 that the Spey was a public navigable river, I would have expected that to have been stated in their Case and their contention to have been that the Court was in error in subjecting the exercise of the right held by them as members of the public to restrictions.

But that was not the case presented. After stating that

"The King, as the Guardian of the public rights, is bound to remove every Obstruction or Annoyance in Highways, Bridges and Public Rivers …"

their Case went on to say:

"The Doctrine of Law being incontrovertible, it remains to shew, that the River Spey is a public and a navigable River."

If the Court of Session had decided that it was, the appellants on their appeal to this House would not have thought it necessary to establish that it was a public navigable river.

This House dismissed the appeal, and affirmed the decision of the Court of Session. It cannot in my view be taken that the House held that the Spey was such a river as no alteration was made to the interlocutor pronounced by the Court of Session.

Before the Court of Session the pursuers had put forward the alternative argument:

"That supposing the Spey was not to be a public navigable river, the Appellants by immemorial Possession have acquired such Right of Floating."

This plea was not repeated in their Case for the appeal to this House. I do not think any significance should be attached to that. It would have been surprising if it had been. Whether or not the pursuers had in law any right of floating if the river was not a public navigable river, was not in view of the Duke's concession in issue. To attain their object of securing the removal of the cruive, they had to establish that the river was a public navigable river and that they did not succeed in doing either in 1779 or 1781 or on the appeal to this House for none of the interlocutors pronounced recognised that.

The Lord Ordinary in this case said that he would have had difficulty in reading Grant v. Duke of Gordon as establishing a public right of navigation but that he could not ignore the meaning which had, he said, almost invariably been attached to it. It was with hesitation that in the light of the way in which the case had been treated that he held that it had been established in 1781 that "there was a public right of navigation in the Spey."

The First Division all agree that Grant v. Duke of Gordon did not establish that the Spey was a public navigable river on which the public had a general right of navigation. The Lord President found no warrant for it:

"having determined, even by implication, a wider public right than it expressly defined, that is to say, the wider rights which the Court and the House of Lords plainly declined to find when they were specifically pressed to do so by the upper heritors."

Lord Cameron and Lord Johnston were of the same opinion. The First Division held that Grant v. Duke of Gordon had only decided that there was a public right limited to floating. They did not feel compelled by the way the case had been regarded to hold that it was decided that the river was a public navigable river. While I agree that the decision recognised a right of floating by the pursuers during the period specified and at no other times, I cannot agree that the right was recognised as a public one. In my opinion it is apparent that the right recognised was that to which the Duke had consented.

No authority was cited to establish that a public right of passage down a river could be prohibited during many months of the year, or be subjected to restrictions during the months it could be exercised or that there could be a public right of passage limited to floating.

In 1791 there was further litigation between Sir James Grant and the Duke. Sir James lodged a Bill of Suspension and Interdict against the Duke complaining that for four or five years the Duke and his contractors, Messrs Dodsworth and Osborne, had floated down from Glenmore timber of all kinds and sizes "not in rafts or made up floats" in great quantities in the summer and harvest seasons causing great damage.

The Bill contained the following passage:

"But it will not be alleged that anything is yet found affording a right or privilege the Duke of Gordon or to the proprietors and manufacturers to float at any season … or that His Grace can exercise such operations during the summer or betwixt the 15th May and 26th of August to the total exclusion of the other heritors who tho' found to have right of floating stand prohibited by the judgment" (of 1781) "before recited from exercising said right during the said period."

In his Answer to the Bill the Duke said:

"that Sir James's right of floating is only a limited and restricted right, and can be exercised only at certain periods and under certain modes and regulations; and it appears that this right was only agreed to and originally granted upon the Duke's permission and consent."

and

"it is a point established that the Respondent" (the Duke) "and every other heritor has a right of floating his timber down this river. He has been in the immemorial possession of that right as well as Sir James Grant; and therefore as Sir James Grant so far prevailed in his last process as to have the Spey found a public river to the effect of floating the woods to the sea under certain salutory regulations."

The passage I have cited from the Bill does not appear to be consistent with Sir James and the other pursuers thinking that they had succeeded in 1781 in getting the Court to hold that the river was a public navigable river. The first passage cited from the Duke's answer does not suggest that Sir James's right was held by him as a member of the public and apart from the use of the word "public," the second passage rather suggests that Sir James's right was thought to be founded on immemorial possession.

It is true that the Duke recognised that Sir James had "so far prevailed … as to have the Spey found a public river to the effect of floating" but I do not think that the use of the word "public" by the Duke is a sufficient basis for rejecting the conclusion to which I have come as to the 1781 decision.

In 1794 there was litigation between the Viscount of Arbuthnot and others and James Scott in which the pursuers claimed that a dam dyke in the North Esk was so constructed as to injure their fishings very materially. Lord President Campbell, who had been counsel for the pursuers in Grant v. Duke of Gordon and Lord Braxfield were members of the Court.

The report of the case in 6 Bell states that:

"The Court, … were of opinion that wherever there are rights in a river vested in different proprietors it is the duty of the Court to regulate the exercise of those rights in such a manner as to enable, if possible, each proprietor to enjoy his respective interest: And the right of floating wood down a river, which was claimed by the Duke of Gordon, and disputed by the inferior heritors, who were possessed of rights of cruive fishing, was given as an instance of the proper exercise of this power in the Court; there the right of floating was restricted to that period when the cruives are taken out, by which means the rights of both heritors were preserved, 1781 March 9 Duke of Gordon."

This report which clearly got the parties in Grant v. Duke of Gordon wrong, I find interesting for it appears that Lord President Campbell and Lord Braxfield were both members of a Court which treated the right of floating as upheld in Grant v. Duke of Gordon as a right vested in the proprietors and not as a right possessed by the public.

The fact that it appears from Baron Hume's notes on the Information for Sir Duncan Grant in the action against Sir James Grant of Grant and Macdonell of Glengarry in 1804 that Lord Meadowbank had said that the right of floating was the main matter and that salmon fishing must give way to it and that if Grant v. Duke of Gordon had not so decided it was wrong and he would not have regard to it, and that Lord President Campbell, counsel for the pursuers in that case, said that in that case it was held that the right of floating was the super-eminent right, does not seem to me to support the view that in Grant v. Duke of Gordon it was decided that the right to float was a public right. If that had been thought by Lord Meadowbank and the Lord President, it is surprising that they did not say so. The language they used shows that they regarded the right of floating as the more important of the two rights, not that they thought it to be a public right.

No useful purpose would, I think, be served by my referring to the many writers who have treated Grant v. Duke of Gordon as deciding that the Spey was a public navigable river. If regard is had only to the brief report of the case in Morison's Dictionary, then I can understand that conclusion being reached. The key to understanding what was in fact decided appears to me to be the concession made by the Duke and it is clear that the interlocutors of 1779 and 1781 were based and modelled on that concession.

I find it not without interest that when in the 1870's Mr J. S. Balfour was asked to advise the Duke of Gordon as to the legality of a claim to trout fishing in the Spey by a member of the public, he expressed the opinion that the question depended on whether or not the Spey was a public navigable river and came to the conclusion that Grant v. Duke of Gordon

"when examined not in the light of the reports only, but of the Session papers and M.S. Opinions now before me"

did not decide that the Spey was a public navigable river.

For the reasons I have given, I think he was right. I also think that the case did not decide that there was any public right of floating.

As the Court of Session and this House did not decide in Grant v. Duke of Gordon as they were asked to do, that the "Occasional Right of Floating" exercised when the river was in spate or "when swelled beyond its ordinary size by a high flood" over a great many years stamped the river with the character of a public navigable river, and indeed rejected the pursuers' claim that it had that character, it would be wrong now to hold that its use for floating in the 18th and 19th centuries established that it had that character.

Having reached that conclusion, it is unnecessary for me to consider what it is necessary to establish to prove that a river is a public navigable river and whether a river which once had that character can lose it by non-use of a right of passage.

I agree with my noble and learned friend Lord Fraser of Tullybelton's observations with regard to the reasons given by the First Division for finding in favour of the respondents and with his conclusions with regard thereto.

I would find in favour of the appellants on the ground that it has not been established that the Spey was or is a public navigable river and that the right the respondents claim to canoe down it at all seasons of the year is consequently not established. I would allow the appeal.

LORD HAILSHAM OF ST. MARYLEBONE .—MY LORDS,the point in this appeal is deceptively simple, I say deceptively because, although it can be very simply stated, it has occupied more than two weeks of hearing time in your Lordships' House and involved some of the most erudite and interesting legal argument that I have recently heard.

The appellants, pursuers in the proceedings, own both banks and the alveus of a non-tidal stretch of the river Spey known as the Knockando Estate. They are thus the owners of some of the most valuable salmon fishing in Scotland. The respondents, defenders in the proceedings, organise training courses for canoeists upstream of the appellants' property, and on a number of occasions every year take a party of canoeists downstream past the appellants' property. They return, presumably by road, to their place of business. They obtain access to the Spey at Loch Insh by means of an arrangement with the Forestry Commission, who are the proprietors of Loch Insh. The respondents, however, are not themselves heritors of any property on the banks of the river. If navigable at all (which is one of the questions in dispute) the Spey is navigable only downstream.

The simple question to be decided is whether the appellants are entitled to exclude the respondents and their parties from canoeing down the Spey at Knockando, or whether the respondents, with their parties, can come downstream as they please. Both parties are reasonable folk and are willing to compromise, but not unnaturally attempts at compromise have failed until the strict legal position has been ascertained.

Both before the Lord Ordinary and the Inner House the outcome of the dispute was resolved in favour of the respondents. The Lord Ordinary, though with some hesitation, found the Spey to be a public navigable river within the meaning of the phrase as it has been used by the institutional writers and in numerous decided cases. The Inner House disagreed, but nevertheless decided that there was a public right of a more limited kind to which they thought authority and the facts of the case gave rise. This right of downstream only navigation was held to include canoeing down for recreation. Their Lordships decided that this right arose from affirmative answers being given to three tests which they formulated as follows, (1) that the use sought to be protected must be one which the river was capable of accommodating; (2) that there must be sufficient actual exercise of the use to show that the river was in fact practically useful in the manner in which claim was made to its use, and (3) that the use in question was of sufficient public benefit to justify its continuance. In the actual formulation of the third test, the Lord President and Lord Cameron differed slightly from one another. The Lord President seems to have regarded the question as one of degree, which could be decided by weighing up the advantages, in this case of canoeing, against the advantages, in this case of protecting the proprietary rights of the riparian heritors for the purpose of salmon fishing and otherwise, and deciding that there was "a preponderance of public benefit in the continued use of the Spey for canoeing which is of sufficient materiality to justify recognition that the defenders as members of the public have the right to do what they have been doing since … 1969." On the other hand, Lord Cameron formulated the third test, not so much as a matter of preponderance, but as a matter of the intrinsic value of canoeing, i.e. of assessing the intrinsic public benefit of canoeing as a recreation so that it was of "evident public benefit, not merely a matter of convenience to dwellers in the vicinity or even of a wider section of the public as a whole." Since, as will be seen, I depart altogether from the third test as a means of deciding this matter, I will not canvass the rival merits of these similar, but distinct, variations on the theme, though I will return to what appear to me the objections common to both.

In adhering in the main to the interlocutor of the Lord Ordinary, the Inner House varied that interlocutor in so far as it assoilzied the defenders on the fifth conclusion of the summons which sought a decree of regulating navigation by canoe by the defenders. Since this part of the original interlocutor was recalled at the request of both parties, no separate question arises upon it.

The present proceedings are not the first, and it may be not the last, occasion on which the rights (if any) of navigation on the Spey have been disputed, and a great deal of the argument revolved round what exactly was decided in the Court of Session and your Lordships' House in the famous case Grant v. Duke of Gordon (1782) 2 Paton 582, Morisons Dictionary vol. 15, 12820, frequently referred to in subsequent cases, but never itself adequately reported, so Little indeed that both counsel were driven to examine in detail the written notes of eighteenth century counsel taken down at the time apparently by a quill pen, of the judgments in the Court of Session as they were actually delivered and preserved intact in the Arniston and Campbell collections. This, as was disclosed by Lord Cockburn in his "Memorials" (1856) was because the Scottish judges of that age violently objected to law reporting in the conventional sense. "The fellow takes doon ma very words" cried an outraged Lord Esgrove of an aspiring reporter, if Lord Cockburn is to be believed (op. cit. p. 165).

For the respondents it was argued, and it was clearly thought by the institutional writers, and by the Duke of Gordon himself in a subsequent suit, that the decision meant that the Spey was declared to be, in effect for ever, a public navigable river, at least to the limit to which it was capable of accommodating craft of draft sufficiently slight to include canoes. The appellants denied this, and claimed that the case decided no more than that superior heritors on the Spey had a private right not available to members of the public as such, which could be acquired, and by inference could therefore be lost, by prescription, and this right, which they argued had since disappeared by non use, in any event did not cover canoes, and, if it did could not do so if the purpose of the canoeing was purely or mainly recreational. In any event, a public right of navigation could, they said, only arise between two public termini, and though, I conceive, one such at least exists on the Spey at the mouth of the river, none, they argued, had been shown to exist upstream of Knockando.

This controversy led your Lordships deeply into the law of Scotland, indeed of various other countries as well. In my opinion such an enquiry is absolutely necessary in order to determine the rights of the parties. It is not less necessary if a successful attempt is so made to arrive at an intelligible and rational account of what was (or was not) decided in the Duke of Gordon's case, supra. I will deal with some at least of the questions involved, first generally and then in their application to the River Spey.

Before I do so, I think it well to rehearse my understanding of what has been proved about navigation in the Spey as a matter of fact, either in these proceedings or in previous reported cases. As I have said, the Spey is not navigable in any ordinary sense upstream. But from time immemorial, by which I mean for several centuries at least, at least until 1885, the Spey had been used for the notation of timber downstream as far as the mouth. Sometimes this took the form of the floating of groups of single logs (what in Canadian cases cited to us was called flotation "à bûches perdues"), but, at least frequently, of rafts, manned and steered either by individuals on the raft or by the occupant of a curragh attached to the raft by a rope. As a result of arrangements begun in the eighteenth century by an English company engaged in the extraction of timber upstream of Knockando, large rafts were used drawing 20 inches of water, and manned fore and aft by steersmen using sweeps. The main purpose of these operations was the evacuation of the timber itself which, of course, had mainly, if not entirely, belonged to the riparian heritors, from their place of origin to the sea where it was used in connection with shipbuilding. But other products of the country, such as cheese, and the occasional passenger, were also carried. From the eighteenth century onwards much, perhaps most, of the flotation was carried out by contractors under arrangements from the original owners of the timber. But there is no sufficient evidence to show that timber from estate owners who were not riparian was treated in this way. The Lord Ordinary found that there was no "public place" in the conventional sense of the word upstream of Knockando to which the public could resort for flotation as of public right. I regard myself as bound by this finding, though I confess that I find it surprising. It follows from this that I must assume that riparian heritors could in fact have excluded members of the public as such from using the Spey upstream of Knockando if they had acted in concert. After the construction of the railway line, flotation became less common, and the Lord Ordinary has found that no raft descended the Spey after 1885. I am not satisfied myself that he found that after there had been a complete non user of whatever right there was. On the contrary, he found in a slightly different context that he was "prepared to assume" that "probably" canoes had appeared on the river "in the [19] 20's" and had "passed through Knockando." Accordingly in so far as the burden rests on the appellants to show non user for the prescriptive period of 40 years after 1885, I do not think they have discharged it, even though I am prepared to accept that, in the words of the Lord Ordinary, "any canoeing in that area before the late 1930's was not of such an extent and character as would establish a [new] public right at that place." In other words in so far as the burden lay on the respondents to show any new prescriptive right of canoeing through Knockando in 1972, when the proceedings commenced, they had failed to discharge that burden, but, if there were a general right of navigation including navigation by canoe existing prior to 1885, I do not believe that the appellants have established that it no longer existed in 1972.

I now turn to the interesting questions of law involved in the appeal.

What, in Scottish law, is a "public navigable river?" What is meant by "navigability"? What public rights are conferred thereby? How are they acquired? What is their nature? How, if at all, are they lost? To what limitations are they subject during their life?

As I shall show, and as text book writers have acknowledged (see, for instance, Rankine on Land Ownership, 4th edn., p. 533, Ferguson on the Law of Water and Water Rights 99, 100) part of the difficulty and confusion surrounding the subject is the result of inconsistency and imprecision by the authorities, in the use of nomenclature, and where the nomenclature is neither inconsistent nor imprecise, in the inappropriateness of the accepted classifications when applied to the geographical facts of the Scottish landscape. In part this is due to the fact that the nomenclature and classification is based on Roman law, to a short discussion of which I now turn as essential to the proper understanding of the Scottish authorities as they have developed over the period of two centuries to which our attention has been attracted.

I accept the warning of Lord Dunedin in Cantiere San Rocco v. Clyde Shipbuilding and Engineering Co. 1923 SC (HL) 105 at p. 123 when he said:

"The Roman law, though interesting, is only of service as showing the foundation on which the Scots law rests. The real question must always be what is the law of Scotland."

In the present case, however, the foundations are very clearly discernible, both in the Institutional writers to which we were referred and in the judgments of reported cases. Indeed it is not too much to say that it is really impossible to have a full understanding of what the judges and other authorities have said without appreciating the context of Roman legal thinking in which they were giving their opinions. Moreover, as I shall show, between the eighteenth century and the present, there has been a substantial movement in the Scottish law on the subject away from Roman conceptions, and if we are to understand eighteenth century writers and cases we must study them against the background of contemporary legal learning as well as in the light of more recent decisions. In addition, in the comparative obscurity of some of the decisions, I derive, as will be seen, a certain assistance by way of illustration and comparison from other systems, notably the French (as surviving in Quebec) and Roman Dutch law, members of the same family.

In Roman law the first classification of water courses was into rivi and flumina. This gives rise to no difficulty in the present case. The two criteria of a flumen by which it is to be distinguished from a rivus were "magnitudo" and "existimatio circumcolentium". By both criteria, the Spey is a flumen. (See Digest 43 title XII).

It is the classification of flumina which gives rise to difficulty. They were divided into flumina publica and flumina privata. (Digest 43 titles XII-XIV). Unhappily for us who dwell in moister climates, the definition of a flumen publicum is inappropriate to our needs. It depended on whether or not the flow of water was normally constant through the year or whether it dried up in summer. "Publicum flumen esse Cassius definit, quod perenne sit" (Digest loc. cit.), and this has led, as Rankine (op. cit. supra) points out, to "considerable confusion" in the Scottish authorities which has "arisen from the random use of the phrases ‘public river’ and ‘private river.’" The original distinction

"is that of the Roman law, already noticed, turning upon the permanent or occasional nature of the flow of water; and to this signification the words ought to be confined, though the private rivers in this country would be thereby reduced to a very small number. But the terms are also more frequently used to signify navigable and non-navigable rivers, those in which the public have and those in which they have not certain rights of user. It will be well to discard the former use of the terms as of no practical importance, and to adhere to the more useful modern terminology."

It is to be noted that Ferguson (op. cit.) proposes to discard the traditional classification altogether and to adopt one more modern, and, for Britain, more logical. For reasons of convenience, however, I shall adhere henceforth to Rankine.

Of rivers considered flumina publica in Roman law, a minority were "flumina navigabilia." These bore the relation to flumina publica, of species to genus. Navigability was, and is now, a question of fact (Rankine, op. cit. p. 281), but, from the earliest days, and throughout the countries where legal systems are founded on the Roman, the conception of navigability included, and in my opinion to this day includes, navigability downstream only by raft (Digest 43 Tit. XII, 14):

"navigii appellatione etiam rates continentur, quia plerumque et ratium usus est necessarius."

The praetorian interdict in protection of the right also expressly included reference to rafts.

Comparison can also be made as regards Canada and pre-revolution French law, to Bell v. Corporation of Quebec 5 App Cas 84 esp. at 93 and as regards Metropolitan France, the Code Napoleon art, 538:

"Les fleuves et rivières navigables ou flottables… sont considerées comme des dépendances du domaine public."

As regards American law see Kent's Commentaries 11th edition marginal page 427 (top page 583) and the New York case Morgan v. King (Sep. 1860) 35 New York Reports 454. As regards Scottish Law see: Bell's Principles 648. Erskine Institutes II 1.5 note (b). Hume's Lectures, Vol. IV, 243. Rankine, op. cit. p. 281. After all, as Lord Justice Clerk Glenlee is reported to have said in Grant v. Gordon (Duke), supra, in counsel's manuscript note to which I have referred, in the Rhone and the Rhine, before the advent of steam, downstream only traffic was the rule and not the exception. Incidentally, it is clearly stated by Lord Cockburn in the memoirs to which I have already referred at p. 127 that Bell, in preparing his great work, habitually consulted Sir Ilay Campbell, and it must, therefore, be fairly confidently assumed that, where Bell gives this important case as an authority for his proposition that downstream only traffic by raft counted as navigability and that Grant v. Gordon (Duke) was an authority to this effect, he did so with the knowledge and approval of Sir Ilay Campbell who was counsel for the pursuers in the case.

There are, of course, a number of ways (at least one of which was referred to by the Lord President in the instant appeal) in which the law of Scotland has moved away from the law of Rome. In the first place, Roman law never came to terms with tidality which was known only on the confines of the Western Empire, and the distinction between tidal and non-tidal stretches of river, which bulks large in English and Scottish law, was unknown to them. Secondly, Roman law always classified the bed of public navigable rivers, whether tidal or not, as res publicae, which in Scottish terms was thought to include the ownership by the Grown of the alveus or bed of the river. This, as the Lord President pointed out in the instant appeal, was almost universally believed at the time when Grant v. Gordon (Duke), supra, was decided, and, indeed we were shown, in another connection, an opinion by an eminent member of the Faculty so late as 1875 which really assumed this to have been the case in the non-tidal Spey at that date. However, since Colquhoun's Trustees v. Orr Ewing (1877) 4 R. 344 (S.C.) and 4 R. (H.L.) 116 only two years after Mr. Balfour's opinion, it must be taken as Scottish law, as it is English law, that the right of the Crown to property in the alveus applies only to tidal stretches, and then perhaps only as a presumption, and that, in non-tidal stretches, the ownership of the alveus is in the riparian heritors, usque ad medium Slum aquae, so that at Knockando the whole alveus is in the pursuers. Contrary to the Lord President's opinion, I do not think that this makes any difference to the nature or limitations of the public right of navigation. There is no trace in Colquhoun's Trustees v. Orr Ewing (supra) of any suggestion that it does. Even where the alveus was held to be public property, the right of navigation was always a publicus usus of the stream by members of the public, that is to say a right of public use as distinct from property in the alveus (cf. Justinian Inst. II, 1; Buck-land's Introduction to Roman Law, 3rd Edn. 185, Girard Manuel Elementaire (1898) p. 233). There is no reason to suppose that the nature of this right was altered simply because in 1877 it was detached finally from the ownership of the bed, and became in essence a right of passage either in both directions or, as the case may be, downstream only. Nor is there any reason to attach to this right the peculiar incidents applicable to rights of way on land.

In one other respect at least Scottish law has departed from its Roman ancestor. The right of fishing, at least for trout and coarse fish, which was certainly accepted by the Roman law in a public river (cf. Justinian Inst. loc. cit.), and long cherished as a supposed right by the common people of Scotland, was finally decided not to exist in the last quarter of the nineteenth century in Grant v. Henry 21 R. 358. That case is of some interest in the instant appeal because it relates to the Spey and was decided on the pleadings on the assumption that the Spey was a navigable river. Since it was so decided, it cannot be treated as an authority to that effect. But I am not sure that it is altogether without significance that the assumption was made, and that the matter was disposed upon that assumption without a contest on the facts. However that may be, I do not find it without significance that in the text book already cited, Ferguson on the Law of Water and Water Rights p. 126, a similar assumption is made in the following terms:

"The character of such rivers" [i.e. rivers which are navigable but not tidal] "varies in accordance with the volume of water, and depth and character of the channel. Some, as the Leven, may be navigable up as well as downstream, and by boats of a considerable burden, while others such as the Spey, are only navigable for practical purposes downstream, and the nature of the navigation consists in floating down timber or rafts with country produce. But whether they be navigable in the full sense, or, to use the expression of a learned lord" [i.e. Lord Gordon in Colquhoun v. Orr Ewing, supra]"‘quasi-navigable,’ they are, if truly navigable even to this limited extent, recognised as public rivers, and the right of navigation will be fully maintained. The right of navigation is the superior right, but its exercise will be regulated where it comes in contact with valuable proprietorial interests, such as fishing rights, and the riparian proprietors are entitled to their full rights of ownership so far as consistent with the public use for navigation."

Morison's dictionary (M. 12820) after criticising the Court for not seeming to regard the distinction between public and private rivers expressly cites Grant v. Gordon (Duke) supra as an authority for the proposition that the Spey is public:

"They considered a river by which the produce of the country could be transported to the sea to be a public benefit entrusted to the King as pater patriae, for behoof of his subjects in general, which could neither be given away nor abridged by him: and that this transportation as the chief and primary use of the river, if incompatible with the cruive fishing, would prevail over it. They were at the same time of the opinion that these rights were not incompatible, if not emulously used and therefore proceeded to fix certain regulations according to which they were to be exercised."

What the Duke of Gordon's case in fact decided, I will examine later, but, as I hope to have shown by now, the type of down stream navigation described in it is clearly within the scope of what since Roman times, and in all countries where Roman law is the essential origin of the municipal law, the type of navigation described is well within the definition of the right of public use as it was understood for the purposes of the praetorian interdict by which it was protected, and by the Scottish writers as being with the category of regalia majora. In passing, I may say that I can find no passage in any writer or authority, nor, so far as I can recollect was any serious argument addressed to us from the bar, to support a suggestion that the regular seasonal variations in rivers due for instance to spate or its absence, or, as in Canada, to freezing over which may render the stream difficult or impossible of navigation during particular months of the year, prevents a stream regularly navigable at other times from acquiring the status of a public navigable river. To my mind such a suggestion would be contrary to principle and contradict the general rationale upon which the doctrine is based. It follows that the type of navigation proved in connection with this case to have been in use in the Spey for centuries is clearly such as to render the Spey a public river for the purpose of Scottish law. I am not by any means saying that a private right of navigation in the nature of a servitude might not exist between heritors. But no clear example of such a right was produced before us, probably, as I would thinly because, even between inheritors, the public right of navigation is normally sufficient.

This is the logical point at which it would be proper to discuss a number of contentions for the appellant. I discuss them on the assumption that I am right in including in the public right of navigation accorded by Scottish law, following the Roman, the downstream only traffic of the kind I have attempted to describe as immemorial on the Spey, and that I am also right in assuming that the rationale of accepting this doctrine is that stated in the passages in Erskine, Hume and other writers referred to above, namely, the desirability of evacuating country produce including timber from upland districts to harbours and ports on the estuary of rivers, or even to more populous districts downstream.

The first, and to my mind the easiest of these questions to dispose of, is the contention of the appellants that there must be two public termini for the creation of a right of way either on land or water. There are a certain number of authorities to this effect about rights of way on land to which we were properly referred. But rights of way on land are always, so far as I know, exercised in either direction. In any case, however, I need say nothing about these cases since for the reasons indicated in both Courts below I do not think the analogy between land and water rights necessarily holds good. Appellants' counsel also relied on various cases, particularly Colquhoun's Trustees v. Orr Ewing 4 R. 344 (C.S.), 116 (H.L.), relating to navigable rivers, and especially the Leven between Loch Lomond and its outfall into the Clyde, where the right of navigation was of traffic in both directions. But I do not think that same considerations apply to cases where the right of navigation is for downstream only traffic by raft and curragh. I would have thought that from the very rationale of the right, the need to evacuate the country produce, there must be one public terminus ad quern, and normally this would be the outfall of the river into the tidal estuary to which the country produce would be evacuated. But I am not convinced that in such a river there is a need for a public terminus a quo at the upper end of the one directional navigable stretch. The natural waterway exists for members of the public at large who obtain legitimate access to the course of the stream. The right seems to me to be universally accepted as for the benefit of the public at large and not simply for the riparian heritors who will no doubt nonetheless be the principal beneficiaries. It seems to me to be unreasonable to cast upon those who have legitimate advantage of a right exercised from time immemorial the necessity of establishing upstream of themselves a permanent terminus a quo which they may not wish to use, when they have perfectly legitimate access to the water for a law exercise of the right. I do not read the words in the passage in Hume's Lectures, volume IV at page 243, to which I have already made reference, which refers to "free right of access" not only by the adjacent heritors but the public at large, as forming part of the definition which follows in the next sentence. The expression "free right of access," where it occurs in that passage, I read as referring to the course of the stream when the members of the public are upon it, and not to access by members of the public to the banks of the stream. The definition I consider to be contained in the words which follow that sentence, that is to say:

"The ground of distinction between the two" (i.e. private and public rivers) "seems to me therefore here—Is the river of such depth and capacity as makes it fit to serve and has made, it in the use of serving, as a channel of transportation upwards or downwards for the commodities and produce of the adjacent country."

I have already pointed out that the words "upwards or downwards" are strictly disjunctive for the learned author goes on to say:

"Even if it" (i.e. the river) "has served as a means only of floating the lighter vessels or other things, downwards, to the sea or to their market, still it falls to be considered as a public road or highway of that region by water (iter navigabile), and as such it is no more liable to be stopped, or obstructed, than the like serviceable and common passage by land."

A second contention of the appellants which I equally find it necessary to reject was that, assuming that a public right of navigation is found to have existed in the Spey, it was limited to use for serious transportation or commerce and could not extend to canoeing purely or mainly for recreation. I find this wholly unacceptable. Canoeing as such is well within the use I have found to be established on the Spey. Except in shape a canoe is not distinguishable in principle from a curragh, any more than a mule would be distinguishable from a horse where what is in question is the use of a bridle way. I can find no authority for saying that the use of a right of way on land or water can be made to depend on the purpose for which, as distinct from the manner in which or the vehicle on which, it is used, and in principle I find the suggestion that it can be so limited most unattractive. Once a right of way is established for horses, carts or foot passengers on land, or for rafts or canoes on water, I cannot see that it can possibly matter whether the use is for recreation, business or the commercial carriage of goods or persons.

A much more contentious and difficult question raised in the proceedings is the question how a right of navigation can arise, and similarly how it can be lost. The appellants contended that it can arise only by prescriptive use for forty years, and that, in consequence, it can be lost by an interruption of use for the same period. For the respondents it was contended that the sole test of whether it existed was the capacity of the river concerned to take traffic of the kind proposed, that, once this capability was proved, navigability was, as it were, indelibly impressed on the character of the river, and that, once acquired, it could never be lost, save by a physical alteration in the nature of the stream, as for instance by silting up, as happened to the ancient harbour of the city of Ephesus, or the creation of a natural bar at the mouth (as in Bowie v. Marquis of Ailsa 14 R. 649) or a landslide. The respondents' view is the more consistent with theory and with the language of the Roman and Scottish institutional writers, and possibly with some of the observations of Lord Shand in Colquhoun's Trustees v. Orr Ewing, supra, and Lord Glenlee in Macdonell v. Caledonian Canal Commissioners 8 Shaw 881. Nevertheless I consider that an intermediate position is preferable. Rankine (op. cit. p. 281) indeed considered that public use might be the only test, and, though he tentatively rejected this view in favour of the view that "use would be taken as only one, but an important element of proof," he seems to have thought use as an essential ingredient in the conception of navigability.

Speaking for myself I cannot conceive of a public right of navigation in a settled country, even if in theory it is a right based on capacity, which did not have to be established by use for a substantial period of time on a substantial scale openly carried on. This seems to me to follow from the nature of the capacity required which, as I see it, is not just not a bare possibility of accommodating occasional craft, but a possibility of accommodating craft operated by ordinary persons in the course of ordinary use. In this I agree with the Lord Ordinary and the Lord President in the present case, and with Lord Inglis in Colquhoun v. Orr Ewing and with the passage in Hume's Lectures which I have quoted above.

Moreover I derive considerable support for my opinion by the analogy and reasoning of the old French writers quoted at p. 92 of the report of Bell v. Quebec (Corporation) 5 App Cas 84. In particular the following from Dalloz' works:

(1) Voire par Eau No. 52,

"Il ne suffit pas pour qu'une rivière soit réputée navigable qu'elle soit en quelques points de son cours susceptible de porter bateaux. Il faut qu'il puisse s'y établir une navigation régulière; que l'on puisse y naviguer librement, y circuler en bateaux, bacs et radeaux, au moins pendant une partie de I'année."?

and he adds:

"En d'autres termes, la seule possibilité de naviguer sur un cours d'eau n'emporte pas pour le public le droit de naviguer; il faut possibilité et permanence dans une certaine mesure."

In another passage cited at the same place after a reference to the author (Daviel) of a Traité des Cours d'Eaux, the same author, Dalloz (Rép. tit. "Eaux" No. 39) is quoted as saying:

"Il ne suffit même qu'une rivière porte des batelets ou bacs pour le passage des personnes ou voitures, il faut qu'elle puisse être parcourue dans une espace assez considérable pour faire l'office de chemin et servir de moyen de transport."

It is, perhaps convenient that I should say that, in the above passages "bac" is the ordinary word used for ferryboat and that "batelet" means a small boat. If this be right, although in theory capacity can be argued to be the sole test of navigability, the nature of the capacity needed to establish the right is such as to necessitate evidence of use over a substantial period, and a substantial stretch of water, even though, strictly speaking, the right to navigate is not a right acquired by prescription.

In the present case the point is not absolutely necessary for decision. The rights established on the Spey existed for far more than 40 years, and were sufficient in scope to cover the use by canoes proposed by the respondents. Nevertheless I am of the opinion that both capacity and use are required in order to establish a right of public navigation on a Scottish river, capacity because this is the essential prerequisite, and use because I can conceive no means of establishing capacity in a settled country in the broad and reasonable sense for which I have been arguing unless there is evidence of a general use of the kind I have endeavoured to describe. I am the more glad to do so, because the extreme view propounded by the respondent would make riparian heritors of all kinds, and not merely the owners of valuable salmon fishing rights, vulnerable to new and unpredictable public rights emerging from time to time with changes of social habit and marine technology. The resultant double test gains in practicality what it may seem at first sight to lack in strict conformity with logic, and gives riparian heritors an opportunity to challenge new types of user at their inception.

I am further fortified in this opinion by the reflexion that what I have now held to be the law of Scotland happens to coincide with what I believe to be the law of England which, without going into the authorities, I take it to be as stated in Jowitt's Dictionary of English Law at p. 1211:

"The question whether a river is navigable or not seems to depend partly on its size and the formation of its bed, and partly on the use to which it has been put."

I have already expressed the opinion that, in the instant appeal, the appellants did not establish non user for the requisite period of 40 years after 1885 to the extent necessary to give rise to a loss of right, if a public right of navigation can be lost in this way.

But I have now to say that I do not consider that it can be so lost at least from mere non use. It would seem to be contrary to principle that a right inherent in the Crown as part of the regalia majora (as the public right of navigation is accounted in Scottish law) or as part of the res publicae (as it was accounted in Roman) should be lost in this way. No sufficient authority in respect of a waterway was produced before us, as I do not count Bowie v. Marquis of Ailsa 14 R. 649 which was cited to that effect, as conclusive of the matter. On the contrary, I prefer to regard that case as a failure on the part of the proponents of the right to establish an adequate user and capacity to found a right of navigation. I prefer not to say what might be the decision if a riparian heritor made an artificial obstacle in the course of a river which remained undisturbed for the prescriptive period. I am clear, however, that a right of navigation of this kind cannot be lost by mere disuse while the physical condition of the stream is unaltered. This was also the opinion of the French writer Dalloz cited in Bell v. Quebec Corpn .supra, at p. 92, for he is reported as saying:

"Il a été decidé en ce sens qu'une riviere anciennement navigable ne cesse pas dêtre comprise parmi les dépendences du domaine [public] par cela seul que la navigation ou le flottage y aurait été interrompu depuis un temps plus ou moins long."

It follows from what I have said that I agree with the Lord Ordinary, but with less than, his expressed hesitation, that on the facts found and within the limits imposed by its size, flow, and the formation of its bed, the Spey is a public navigable river for traffic proceeding downstream, and has been used as such for centuries before 1885, that that right extends to canoes, and has not been lost in fact and is not capable of being lost since that date by mere non use. It follows also that I do not accept the reasoning of the Lords of the Inner House, though I concur in their conclusion. I do not believe that a new and limited public right of navigating canoes can arise in a river not otherwise navigable. No authority other than Grant v. Duke of Gordon was placed before us to support this possibility. If a public right of navigating canoes exists, it exists only because the river in which it was exercised is, as I have found to be the case in the Spey, otherwise navigable according to the depth and flow of the water and the formation of the bed, and the public use to which it has been put. I accept the first test proposed by the Inner House, and, with a slightly different formulation, the second as tests of navigability, but not as tests for the creation of the supposed limit of public right, which I do not think exists. I reject the third test in either of its formulations. I accept, of course, that in the institutional writers and in the cases, the rationale of the doctrine of the law regarding public rights of navigation by flotation or generally includes the necessity of evacuating country produce from upland areas. But I do not think it open to a court to create new rights by reference to any supposed public benefit either of the particular activity promoted, or by reference to any alleged preponderance of advantage over other activities. If the latter criterion were to be proposed, I would be at a loss to know how the court could proceed without embarking on what would in effect be a full scale planning enquiry in which all kinds of interests would be entitled to be heard and to call evidence. Apart from salmon fishing, these interests would include ghillies, tourist boards, hotels, experts on the balance of payments, owners of mills and industrial premises and almost every other conceivable local and national interest, and the resulting debate would become wholly unmanageable on the basis of ordinary litigation between parties, even between presumably representative parties, such as the present.

It remains for me to discuss the case of Grant v. Duke of Gordon itself. From what I have said it must be apparent that it does not much matter what the unreported remarks of the judges may have been, since the evidence clearly established facts which in my view make the Spey public and navigable irrespective of the reasoning in the oral judgments so far as they are preserved for our study and the terms of the interlocutor pronounced. The Spey was navigable and on the evidence could only have been held so, especially as at that time the law of Scotland was supposed to be far closer to the Roman doctrine than it subsequently turned out to be.

Nevertheless it is clear to my mind, both from the unpublished notes of counsel, and of the published interlocutor, that that is also exactly what the Court and this House decided. A majority at least of the judges actually said this in effect. The interlocutor imposed on the Duke of Gordon terms which were inconsistent with his voluntary concessions. Since it seems that the heritors could not avail themselves of prescription for what they wanted, these imposed terms must have been based on the existence of a public right of navigation and nothing else, and when the case went as far as your Lordships' House, the case for any private right does not seem to have been argued at all.

Nevertheless, the case does involve genuine difficulties. If the right of the heritors was public and not private, why and by virtue of what power did the Court regulate the rights of both parties? And why was the interlocutor sought by the Grants affirming an unlimited public right withheld? Without a detailed note of the judgments, it is not possible with absolute certainty to say. Nevertheless I believe a possible explanation is as follows. At the time when the relevant decision was taken in 1781 the Courts had been faced with a long series of actions over a period of nearly 60 years in the earlier course of which the right of navigation was not raised as an issue. From first to last the object of the Grant interest in the dispute had been to demolish the Duke of Gordon's cruives for salmon. It was a battle between two rival salmon fishing interests, and not between navigators and fishers. From first to last the bone of contention was that the upstream fishing interests of the Grants regarded the Duke's cruives as impeding the upward passage of the fish. The rights of flotation were introduced, first by one side and then the other, as tactical weapons in the battle of the cruives. By the time the case was decided in 1781 and a triumphant legal adviser of the Duke inscribed the word "Victory" on the back of his papers, the Duke was in possession of an interlocutor endorsed by this House and affirming his right to the cruives. This right was thus res judicata between the parties. The judges clearly felt that the two rights should be reconciled if they could be made compatible, though they (or some of them) said, correctly, that if, and in so far as they proved incompatible, the public right should prevail. The Duke himself, recognizing this, made an offer which was not considered sufficient, and the Court went on to take the sensible course of regulating the rights on the basis of an arrangement that would secure them all. This, I believe, was what Morison meant when he complained that the Court had not regarded the difference between public and private rivers. But in a later case when a new outbreak of litigation arose in 1793 and the Grants complained of an abuse by the Duke of his right of flotation in right of an estate upstream of them, the Duke expressly admitted and averred in his documents that the earlier case had decided the Spey to be public. That this was the true version was universally thought to be the case by subsequent authors and judges, in my opinion rightly, but right or wrong, it has, in my opinion, passed into the law of Scotland, and it would be a strange thing if your Lordships were now to come to an opposite conclusion.

In order to complete the matter I should conclude by mentioning that a number of points on the pleadings were argued, especially by the appellants, who complained that the Court of Session were not entitled to come to the conclusion they did. However, on the view I have taken of the case, they are of no importance, since the effect of what I have said means that I adhere to the interlocutor, on grounds differing materially from the point which involved the disputed factors. In the result I consider that the appeal fails, with the usual consequences as regards expenses.

LORD SALMON .—MY LORDS, after I had had the advantage of reading the speeches of my noble and learned friends Lords Wilberforce, Hailsham of St. Marylebone and Fraser of Tullybelton, with all of which I agreed, I intended to do no more than gratefully adopt every reason so lucidly formulated by my noble and learned friend Lord Fraser of Tullybelton for dismissing the appeal. I have since however been privileged to read the speech of my noble and learned friend Viscount Dilhorne who is in favour of allowing; the appeal. Out of respect for the reasons which he advances, I add a very few supplementary observations of my own explaining why I myself feel unable to agree with him.

In my opinion the judgment in the celebrated case of Grant v. The Duke of Gordon given in the Court of Session in 1781 and affirmed in this House in 1782, decided that the Spey was a public navigable river. What that case did decide is no doubt arguable because there is no record of the speeches in this House and nothing but somewhat scrappy notes of the judgments in the Court of Session. These notes which have been set out verbatim in your Lordships' speeches do however strongly suggest to me that the majority of the judgments decided that the Spey was a public navigable river. More-over, the same view was expressed in virtually all the cases following that decision and in the opinions of all the latter learned commentators—as my noble and learned friend Lord Fraser so clearly demonstrates. Although the matter cannot strictly be regarded as res judicata, I would not lightly disregard such a great weight of authority all pointing so clearly in favour of dismissing the present appeal.

My noble and learned friend Viscount Dilhorne attaches great importance to the statement made by the Duke of Gordon's counsel in the proceedings prior to the interlocutor of 1779. It reads as follows:

"That there could be no interference between the right of cruive fishing established in favour of the Duke of Gordon, and the right of floating claimed by Sir James Grant and the other heritors, if they were not emulously exercised; and to satisfy the Court that his Grace was disposed to accommodate the Appellants" (the Grants) "in the exercise of floating, during the seasons when it could be most profitably exercised and when the river was best suited for the transportation of timber, his counsel consented that the Appellants should be at liberty to float their timber down the Spey not only from the 26th August yearly, when the salmon fishing ends, to the 30th November, when it usually begins; but also to continue the exercise of floating forward to the middle of March which must be sufficient for the purpose of floating, being the seasons best suited for the exercise thereof in this river."

Since the Grants were not prepared to accept this compromise the statement by the Duke's counsel appears to me to carry the matter very little further although it might be thought to acknowledge that these were the seasons during the year when floating down the river could be most profitably exercised and when the river was best suited for the transportation of timber. On the 26th November 1779 the Court of Session pronounced an interlocutor recording the consent of the Duke and finding that in accordance with it the pursuers had the right of floating timber down the Spey to the sea from 26th August to the 15th March yearly and made a remit to the Lord Ordinary to proceed accordingly.

The pursuers were not content with this interlocutor and by a reclaiming petition sought a declaration that they had the right at all times and at all seasons to float down the Spey and to navigate by boats, currochs and rafts in all parts. On the 18th January 1781 the Court of Session pronounced the following interlocutor:

"That in terms of the interlocutors already pronounced in this cause" [These terms, I think, originated in the interlocutor of 1727] "the Duke of Gordon has a right of cruive fishing in the river Spey; but find that Sir James Grant and the other Appellants, superior heritors on the Spey, have a right and title to pass with floats and rafts down the said river to the sea from the 26th day of August to the 15th day of May …"

The interlocutor went on to impose certain restrictions which I need not recite, for they are set out in my noble and learned friends' speeches, concerning the temporary removal, on notice, from the river of the cruives to allow the passage of floats and rafts. The Duke objected to the extension of the period to the 15th May and reclaimed but on the 9th March 1781 the Court adhered to the interlocutor of the 18th January 1781 but added some further restrictions irrelevant for present purposes. No doubt, one of the Grants' motives for pressing their rights to float and navigate timber down the river was to cause the removal from time to time and as often as possible of the Duke's cruives which tended to harm their own fishing in their own waters.

It seems to me that the significant difference between the interlocutor of 1779 and the interlocutors of 1781 was that the first interlocutor in reality decided nothing. It merely gave effect to what the Duke had conceded earlier. On the other hand, by the later interlocutors, the court had to decide whether or not the pursuers had a legal right to pass floats and navigate rafts down the river. If the pursuers had no such rights the court would have had no power to declare, as it did, that such rights might lawfully be exercised from the 26th August to the 15th May, nor, indeed, to make any order allowing any floating or navigation by the pursuers at any time in the Duke's water save with his permission. He had refused to give any such permission beyond the middle of March.

There are only two ways in which the pursuers could have obtained the rights which they claimed and which were accorded them by the Court of Session, (1) as a public right vested in them as members of the public on the basis that the Spey was a public and navigable river; (2) as a private right like a servitude acquired by them through prescription or by grant. I am not impressed by the fact that (a) the interlocutor of 1779 and (b) the interlocutors of 1781 described the pursuers respectively as "heritors of salmon fishings on the River Spey" and "superior heritors of the River Spey" and made no reference to the pursuers' "tenants or other inhabitants of his lands and estates and all other persons His Majesty's subjects" mentioned in the conclusion. After all, the pursuers were not bringing a representative action. Nor does there seem anything inconsistent between the pursuers' various descriptions in the interlocutors and their status as members of the public.

The decision in the House of Lords cannot have been based on the ground that the pursuers had any private right to float and navigate the river. Although they had relied in the Court of Session on this ground in addition to the ground based on their right as members of the public to float and navigate the Spey, when the case came to the House of Lords they had clearly abandoned the former ground. The only ground upon which they relied in their printed Case in the House of Lords was that "the River Spey is a navigable river and fit for the purposes of commerce. It has been used as such for ages, by the owners of estates and inhabitants in the upper country without challenge from the respondent or his ancestors." There is certainly no difficulty in seeing why the pursuers abandoned their claim to any private right; they produced no express title to such a right nor did they cite any authority in support of such a private right. Moreover, the pursuers could not have acquired by prescription any right to float or navigate down the river which could have entitled them to interfere with the Duke's cruive which had been built in about 1750 and had continued to be used up to the raising of the action in 1778. It is perhaps trite to point out that 1778 is not 40 years but only about 28 years after 1750. My noble and learned friend Viscount Dilhorne agrees that the decision in 1781 and affirmed in 1782 recognised that the pursuers had a right of floating during the period specified but not a public right, only a right to which the Duke had consented. As I have however already pointed out the period specified in the 1781/1782 decisions extended to 15th May but the Duke had never consented to any date beyond the middle of March.

If, as I think they did, the Court of Session and the House of Lords decided that the Spey was a public and navigable river it is at first sight difficult to understand how they felt entitled to "regulate" the pursuers' public right of floating and navigation since the public right would necessarily be paramount to the Duke's private right of fishing. I agree with my noble and learned friend Lord Fraser of Tullybelton that the probable explanation is that according to the legal thinking of the age the Court at that time considered that it could go further than perhaps it would today in regulating the public right: see Lord Kames on Principles of Equity, 3rd ed. 1778 (published in his lifetime) at p. 52. In my view, the purpose of those regulations was to ensure that the public rights should not be used emulously and it was then generally supposed and, I think, still may be, that they should not be so used.

My noble and learned friend Viscount Dilhorne says:

"I would be most reluctant to hold that a river not ordinarily navigable should be regarded as a public navigable river if it was only navigable by floats or rafts when in flood unless it was established that owing to the frequency of the floods the river was regularly used for that purpose."

He does not state what he means by "ordinarily navigable" nor what meaning he gives to the word "regularly." I do not think that he can mean that to be "ordinarily navigable"—a river must be navigable substantially for the whole of the year. The St. Lawrence, e.g., is completely frozen for many months in the year and during that time is clearly not navigable. But surely no one can suppose that the St. Lawrence is not a public and navigable river. "Regularly" cannot only mean regularly during the whole year but, in my view, includes regularly during a substantial part or parts of the year.

It appears from the findings of the Lord Ordinary that from 1728 onwards a large quantity of timber was formed into large rafts, each steered by two men and, I gather, regularly floated down the river each year. During the Napoleonic wars the demand for timber was so great that large areas of forest along the Spey were felled and floated down the river in the last years of the 18th century and the first years of the 19th century. Later, owing to reduced demand and the advent of railways, the amount of timber floated down the river fell. As the Lord Ordinary held,

"The floating thus appears to have varied from time to time, but there is no doubt that at some periods the amount of timber floated was very large, sometimes many rafts going down at one time."

The Lord Ordinary also held that,

"the floating normally took place in the early months of the year when the river tends to run high."

It seems a reasonable inference from these findings that the floating took place regularly during these months—and these months, as we know, extended to the 15th May. Four and a half months is surely a substantial part of the year and during this period the river seems to have been navigable and was being regularly navigated by the public, no doubt almost wholly for commercial purposes. But once & river is found to be a navigable public river and to have been so used for a very long time I do not think that the public's right to navigate can be restricted to navigation for any particular purpose or by any particular type of curroch or raft; certainly, in the present case, canoes cannot be excluded. There is no authority which suggests that a public navigable river may not be used by the public for purposes of exercise and recreation as well as transport and commerce so long as it is not used emulously.

My Lords, for these reasons I would dismiss the appeal.

LORD FRASER OF TULLYBELTON .—MY LORDS, the pursuers (now appellants) are the proprietors of the estate of Knockando in the former counties of Moray and Banff. The estate includes the land on both banks of the River Spey along a considerable stretch which is defined in the first Conclusion of the Summons. The Spey at Knockando is not tidal and the appellants are therefore proprietors of the alveus or bed of the river along the whole stretch where they own both the banks. They also own the salmon fishing in that section of the river. As the Spey is one of the finest salmon rivers in Scotland, the appellants' fishing rights are very valuable and command a high rent.

The defenders (now respondents) are a company whose principal activity is running courses in canoeing and sailing. Their headquarters is on Loch Insh, a small loch through which the River Spey flows many miles upstream from Knockando. The defenders have a contract with the Forestry Commission, the proprietors of Loch Insh, by which they are allowed to put a certain number of canoes and boats on to Loch Insh. The courses run by the respondents take place mainly in Loch Insh and in parts of the River Spey immediately above and below the Loch, but the respondents also take their pupils on longer trips down the river, and on some of these trips the canoes have been in the habit of passing down the appellants' stretch at Knockando. They traverse the Knockando stretch about six to ten times per year in the canoeing season, which lasts for about twelve weeks in summer. The Spey is a suitable river for canoeing as, in addition to attractive scenery, it provides navigational hazards which are interesting to canoeists without being unduly dangerous. It is visited by other canoeists from all parts of the United Kingdom. The Lord Ordinary found that some of them travel, like the respondents' parties, in well-organised groups, but that others are less particular.

The appellants aver that their fishings have been adversely affected by the passage of the respondents' canoes down their stretch of the river, because they say the canoes disturb the salmon and render them impossible to catch for some hours after the canoes have passed. The appellants therefore wish to prevent, or at least limit, the passage of canoes. Meetings between the parties failed to reach agreement, and the question of their respective rights in the river at Knockando has accordingly been sharply raised. The Lord Ordinary, after hearing a considerable amount of evidence, much of it conflicting, as to the extent to which the passage of canoes interfered with the catching of fish, concluded that:

"Repeated passage of canoeing groups through a salmon fishing beat is likely to have some adverse effect on the catch which is more than minimal."

But the Lord Ordinary also held, and I agree with him, that the evidence about damage by canoeists to the fishing was irrelevant, because the issue between the parties does not depend for its solution upon proof of such damage. That issue, as raised on Record and as argued before the Lord Ordinary, may be stated thus. The appellants say that the Spey at Knockando was, on the date when the action was raised, a private river in which they had the exclusive right of navigation. The respondents say that it was a public navigable river in which they, as members of the public enjoying legitimate access to the water of Loch lush, were entitled to canoe down to the sea, and to pass through the Knockando stretch on the way. If the appellants are right, they can exclude the respondents without proof of damage to their fishings. If the respondents are right, the risk of damage to the fishings by reasonably careful navigation must be accepted by the appellants.

The conclusions of the summons are for declarator of the rights claimed by the appellants and for interdict against the respondents canoeing on the appellants' stretch of the river. There are also conclusions for interdict against the respondents or their pupils landing on, and passing over, the appellants' land adjacent to the river, but the respondents gave an undertaking not to land there and this matter does not now arise. The Lord Ordinary decided the issue in favour of the respondents and he therefore assoilzied them from the main conclusions of the summons. The First Division, while holding that the Spey was not a public navigable river in the full sense, held that the respondents had established what Lord Cameron described as:

"a public right of strictly limited character … in favour of the recreational use of the river for the purpose of canoeing by those members of the public who can obtain legitimate access to its waters."

The Division therefore adhered to the Lord Ordinary's interlocutor subject to a minor amendment. It was suggested by counsel for the appellants that the First Division was not entitled to reach the decision they did because the question of a limited public right had not been properly raised on Record, but I agree with the learned judges of the First Division that that matter is sufficiently raised by implication and I shall consider it in due course.

The Lord Ordinary has made full, and admirably clear, findings in fact as to the use made of the River Spey in earlier times, and his findings were accepted by both parties. On the view that I take of the law, the facts as to the past use of the river are important, and I shall state them as shortly as I can. I quote the following passage from the Lord Ordinary's Opinion:

"From at least the 17th century until towards the end of the 19th century there was a practice of floating timber down the river and much of that timber came from above Knockando and must have passed through the Knockando stretch. The first reference to this is a contract of 1630 … It appears that in these early times there were two methods of floating. One was free floating, by which logs were thrown loose into the river and pursued by men down the banks, whose job it was to free logs which became jammed. This method appears to have been practised, sometimes involving very large numbers of logs, until the late 18th or early 19th century, when it fell into disuse, probably because of the erection of bridges at various places on the river. The other early method involved the construction of small rafts of logs each guided by a man in a curragh. In 1728 the York Buildings Company purchased a large quantity of timber from the Strathspey estates and introduced a more economical and less hazardous method of floating. The timber was formed into large rafts, the size of which is uncertain, but there may have been in the order of 30 logs or more in each raft. The rafts were steered by two men equipped with oars for that purpose. The York Building Company's operations only lasted a few years, but their method of floating, or something like it, appears to have persisted until the floating was finally abandoned."

During the Napoleonic Wars there was a great demand for timber and large areas of forest were felled and floated down the river in the last years of the 18th century and the first years of the 19th. Later in the century the amount of timber floated down the river fell, partly because of reduced demand, and partly because of the development of railways. The Lord Ordinary continued as follows:

"The amount of floating thus appears to have varied from time to time, but there is no doubt that at some periods the amount of timber floated was very large, sometimes many rafts going down at one time. The men who carried out the floating appear to have been in the main independent contractors rather than servants of the estates, or of the purchasers of the timber. The purpose of the rafts was to a large extent to transport the timber of which they were constructed, downstream, but they did also act as load carrying craft in that they, sometimes at least and perhaps frequently, carried on them loads of sawn timber, or other timber such as oak. There is some sketchy non-contemporaneous evidence to suggest that the country people took advantage of the rafts to transport themselves and local produce, such as butter and cheese, down the river. There is no evidence to suggest that any timber, other than timber from the estates of riparian proprietors, was ever floated, and, indeed, having regard to the fact that the forests close to the Spey, at any rate above Knockando, all belonged to a few large riparian proprietors, it could scarcely be otherwise."

His Lordship found that the last float of timber to pass through Knockando was in 1885. After 1885 there was no use of the river for floating or for any other activity related to navigation, apart from use by boats of fishing proprietors in their own waters, until some time after 1920 when canoeing began. One other important fact is that from 1750 until some date after 1782 the Duke of Gordon, who owned an estate on the Spey at a point below Knockando, exercised a right, expressly conferred on his family by royal charter, of fishing in the Spey by the use of a cruive. A cruive was a kind of rough dam built of stones and extending across the river, having in it traps for catching salmon. Cruives were used in other rivers also and were apparently very effective in catching salmon; for that reason they were strongly objected to by proprietors of fishings further upstream who took any opportunity of challenging the right of the cruive owners to maintain them. As recently as 1965 cruives were understood to be in existence in two or three places in Scotland, though at least two of them were used not in the way originally intended but as obstructions to assist the operation of river nets below them—see Report of Committee on Scottish Salmon and Trout Fisheries, 1965 (Cmnd. 2691), paragraph 191. Throughout much of the 18th century the proprietors of fishings on the Spey conducted a series of litigations against the Duke of Gordon with the object of securing the removal of his cruive, mainly because it spoiled their fishing but also because it interfered with the floating of timber. In that object they never wholly succeeded but they had a qualified success in the Court of Session in 1781, in a judgment affirmed by the House of Lords in 1782—Grant v. Duke of Gordon Mor. 12,820 affirmed 2 Paton 582—and the attempt to discover the legal basis for that decision occupied much time in the courts below and in the argument before your Lordships' House. Before I turn to consider that case it will be convenient to attempt a summary of the relevant law of Scotland as it was understood immediately before the case was decided.

The institutional writers divided rivers into two classes, public and private. In making that distinction they followed the civil law and adapted the theory of the public river to the feudal system by treating public rivers, along with other res publicae of the civil law, as vested in the king inter regalia in trust for behoof of his people—Erskine's Institute 2.6.17. The institutional writers did not adopt exactly the same tests as the Roman law for distinguishing between public and private rivers but they did follow the Romans in treating public rivers as including those which were navigable—Craig Jus Feudale 1.16.8 and 11 (Stair Society Edition p. 306 and p. 308), Stair Institutes II.3.68, Bankton Institute II.8.27. According to Roman law rivers were regarded as navigable if they were used by boats or rafts even if they could go downstream only—Dig. XLIII. XII.I. The only one of the Scottish institutional writers who throws any light on what was then considered by the law of Scotland to be a navigable river is Erskine in his Institute (loc. Cit.)who states:

"It is public rivers only which are inter regalia; by which writers generally understand navigable rivers, or those on which floats may be carried to navigable rivers."

I read that as meaning that a river, on which it was possible to float timber down to another river which was fully navigable or to a lower stretch of the same river where it was navigable, was public. Erskine's Institute was first published in 1773, the author having died in 1768. It is reasonable therefore to treat his opinion on this matter as being an up-to-date statement of the law as it was understood immediately before the Duke of Gordon's case. All the institutional writers proceeded on the view, now known to be erroneous so far as non-tidal rivers are concerned—see Colquhoun's Trustees v. Orr Ewing (1877) 4 R. 344, 4 R. (H.L.) 116—that the alveus of a public river belonged to the Crown and not to the riparian proprietors, and no doubt their opinions on non-tidal public rivers are coloured by that view but, with respect, I would not go so far as the Lord President in regarding their pronouncements, so far as relevant to this appeal, as lacking in authority on that account.

Grant v. Duke of Gordon, cit. supra, was the climax of fifty years of litigation but, unfortunately, no full copies of the judges' opinions in the Court of Session or of the speeches in your Lordships' House are now available, if, indeed, they ever existed. There is, therefore, room for much argument as to the basis of the decision but it is of great, possibly decisive, importance to the instant appeal to discover what the basis was. The respondents have all along argued that it proceeded upon recognition of the River Spey, including the Knockando stretch, as a navigable river in which there was a public right of navigation at least to the extent of allowing floats and rafts to pass downstream. The appellants, on the other hand, contend that that decision declared only a private right akin to a servitude in favour of the upper heritors over the Duke of Gordon's water. In order to understand the decision, it is necessary to appreciate the circumstances in which it was made. The Duke of Gordon had, under a charter of novodamus from the Crown, dated 1684, the right to have a cruive in the Spey. So far as appears from the information before us, he was the only proprietor of fishings on the river who enjoyed that right. In 1725 an action had been brought against the Duke in relation to his fishings in a part of the river below Knockando by other proprietors of fishings in the same part of the river and it had been concluded by an interlocutor dated 14th July 1727 in the Court of Session, subsequently affirmed on this point by the House of Lords, which declared, inter alia, that the Duke of Gordon "hath right to fish with cobles, currochs or in any other lawful way" in that part of the river. As the Duke had produced his titles, including the charter of 1684, the interlocutor amounted to a finding that he had a right to use a cruive for fishing in that part of the river, provided that a cruive was lawful—a matter which was not beyond dispute. That interlocutor was referred to in the subsequent litigation, as will be seen.

Then in 1756 an action, to which the Duke of Gordon was not a party, was brought by Sir Ludovic Grant against Sir Robert Gordon, for declarator that Sir Robert had no right to use cruives, yairs, braes or dykes in the Spey to the prejudice of Sir Ludovic, a superior heritor of salmon fishing. By an interlocutor of 19th February 1761 the Court of Session declared inter alia that Sir Ludovic Grant had right to:

‘convey floats of timber down the said river to the sea"

and that Sir Robert Gordon had no right to erect or use cruives for fishing in the River Spey. Subsequently the Court superseded determining the question with regard to Sir Robert's right of erecting dykes and braes (which were less obstructive than cruives) until the Duke of Gordon and the other owners of braes or cruives on the river "were brought into the field by a proper process." In pursuance of that direction, Sir Ludovic brought an action against the Duke of Gordon and others in 1761, but after some preliminary steps it was apparently allowed to drop.

The prelude to the action which is important for present purposes was begun in 1773 at the instance of Sir James Grant of Grant and others, all of whom bore the surname of Grant, and to whom I shall collectively refer as "the Grants," against the Duke of Gordon. The Conclusion of the action was to have the rights of cruive fishing granted from the Crown to the Duke's family, particularly by the Charter of 1684, reduced and to have it found that the Duke had no right to fish by cruives or dykes, or at least that if he had a right of cruive fishing the same must be "regulated according to law." The action was based originally upon the Grants' right of salmon fishing in the upper parts of the River Spey as their sole title, and there seems to be no doubt that the real reason for the action was that they objected to the damage to their fishings done by the Duke's cruive. But at an early stage they introduced an additional plea based on the right of floating timber down the Spey which they asserted, and which they used as a weapon against the cruive. After sundry procedure in the Court of Session the action came before the House of Lords and in March 1776 (reported 3 Paton 679) the House ordered that the interlocutor of 14th July 1727 ought to be considered in this cause as a final and conclusive judgment and they remitted the case to the Court of Session:

"to proceed upon the foundation of the respective rights of the parties ascertained and established by the said interlocutor of 14th July 1727."

In 1778 the Court held that the Duke, in virtue of the charter of 1684, had the right to put his cruives in the River Spey at a certain part but they made no order on the question of floating, apparently because there was no Conclusion for that in the action. That was the end of the action of 1773 and I come at last to the action of Grant v. Duke of Gordon decided in 1781 and (on appeal) 1782. It was brought in 1778 by the Grants, the conclusion being (according to the printed Case for the appellants in the House of Lords):

"To find and declare that the pursuer [sic] his tenants and other inhabitants of his lands and estates, and all other persons His Majesty's subjects, have good and undoubted right, at all times and seasons when they think necessary, to send floats of timber down the said river from the superior parts thereof, all the way to the sea, and to the free navigation of this river in every way that the same is capable of being navigated by boats, rafts, or floats, as they think proper, and to have every obstruction, dyke or bulwark, which may impede such navigation removed." (my emphasis.)

They also asked for an order on the Duke to demolish all dykes, braes and bulwarks, by which the navigation or right of floating may be obstructed. The Duke lodged a Minute offering a compromise on the narrative:

"That there could [would] be no interference between the right of cruive fishing established in favour of the Duke of Gordon, and the right of floating claimed by Sir James Grant and the other heritors, if they were not emulously exercised."

and he offered to consent to the Grants being at liberty to float their timber down the Spey from the 26th August annually when the salmon fishing ended to the middle of March following. By interlocutor dated 26th November 1779, which bore to be pronounced of consent of the parties, the Court found that the Grants:

"heritors of salmon fishings on the river Spey, have right of floating timber down the said river, from the superior parts thereof, all the way to the sea, from the 26th day of August to the 15th day of March yearly."

The Grants reclaimed against that interlocutor on the ground that they had the right to float throughout the year without restriction, and among their arguments were the following. First:

"that the Spey, being a public navigable river, those who are proprietors of lands or woods on its banks, have an inherent right of floating their woods and other commodities down to the sea"

and secondly:

"that supposing the Spey not to be a public navigable but a private river, the appellants, by immemorial possession, have acquired such right of floating."

I read the second of these pleas as being equivalent to a claim to a servitude right based on prescriptive possession. After elaborate procedure, the Court of Session pronounced an interlocutor on 18th January 1781 in which they found that the Grants "superior heritors on the Spey, have a right and title to pass with floats and rafts down the said river to the sea, from the 26th day of August to the 15th day of May. And that from the 26th day of August to the end of March they are entitled to the exercise of the said right of floating indiscriminately, without any restriction or limitation. But that in the exercise of that right from the last day of March to the 15th day of May they must give notice"—to the Duke's fishermen—"between sunrise and sunset and at least four hours before the floats are to pass so that the fishermen could make a passage for the floats or the rafts through the cruive dykes." That interlocutor was adhered to in a further interlocutor dated March 9th 1781 subject to a variation that:

"The superior heritors on the River Spey are only to float from sun-rising to sunsetting; and also that they are to pass the cruive dyke seriatim at the place pointed out to them by the Duke's fishers, who are always to make said openings so as to allow the floats to pass freely and conveniently …"

Thus the restrictions about giving notice and floating between sunrise and sunset were to apply throughout the year. The interlocutors of the Court of Session were appealed to the House of Lords, and on 28th February 1782 this House ordered that the appeal be dismissed and the interlocutors complained of affirmed.

There are obvious difficulties, to which the Lord Ordinary drew attention, in explaining the decision of the Court of Session, affirmed by the House of Lords, as having treated the pursuers' right of floating as a public right. In the first place, why did the Court not grant the declarator concluded for to the effect that the pursuers "and all other persons" had the right to take floats down the river? The interlocutor of 26th November 1779 describing the pursuers as "heritors of salmon fishings on the River Spey" and the interlocutors of 18th January and 9th March 1781 describing them as "superior heritors on the River Spey" suggest that their rights of floating were in virtue of their position as owners of salmon fishings or of land, though it is difficult to see why ownership of salmon fishings should carry a right to float timber. But I think that counsel for the respondents was right in saying that the decision, in the House of Lords at least, cannot have been made on the ground that the right to float was a private right hike a servitude because, although the Grants had so contended in the Court of Session, they did not repeat the contention in the House of Lords. In their printed case in the appeal to the House of Lords the only one of the reasons asserting a right of floating was Reason VI, where it is clearly based on the proposition that "the River Spey is a navigable river and fit for the purpose of commerce. It has been used as such for ages, by the owners of estates, and inhabitants in the upper country, without challenge from the respondent or his ancestors." Moreover the interlocutor of 18th January 1781 bears that the pursuers had "a right and title" (my italics) "to pass with floats and rafts down the said river to the sea …" although they had, in fact, produced no express title to such a right, and I agree with the Lord Ordinary that there is no principle, other than public right or express grant, on which the superior heritors could have had a right and title to float down parts of the river discontiguous from their estates.

The Grants do not appear to have cited any authority in support of an argument for such a private right. Further, it is clear that the Grants could not have acquired by prescription any right to float which included a right to break down the Duke's cruive, because the cruive had been built only about 1750 (well within the prescriptive period) and had continued in existence and use right up until the raising of this action in 1778. I therefore regard the references to the pursuers being superior heritors as merely descriptive and not as indicating the ground of the decision. One cannot be sure why decree of declarator was not pronounced as concluded for, but the reason probably was that the Court felt themselves embarrassed by the interlocutor of 14th July 1727, which they had been directed by the House of Lords in 1776 to treat as a final and conclusive judgment. They probably felt that a declarator of the pursuers' right to float, without qualification, would be inconsistent with the Duke's right of cruive fishing.

In the second place, there is a more formidable difficulty in explaining how the Court and the House of Lords felt entitled to "regulate" the superior heritors' right of floating as they did, if it was a public right which, as such, would necessarily be paramount over the Duke's private right of fishing. This point was relied upon by the superior heritors in their appeal to the House of Lords in Reason VI, and it was probably in the mind of the author of the report in Morison's Dictionary (Mor. 12,820) when he wrote:

"The Court in giving their opinion did not seem to regard the distinction betwixt public or navigable and private rivers."

I think the explanation is that moist, if not all, of the members of the public who had a practical interest in maintaining the right of floating were parties to the action as pursuers, and that the Court must have thought that regulation, even though it could only apply inter partes, would in practice be effective to accommodate the competing rights of floating and fishing. Moreover if the views stated by Lord Kames in Principles of Equity, (3rd Ed., 1778, published during his lifetime) p. 52 (4th Ed., 1800) pp. 39/40 represent the accepted legal thinking of the age, the Court at that time must have felt entitled to go further in regulating the exercise of a public right of floating than it would today.

There are other reasons why I think that decision proceeded from recognition of a public right in the Grants, the pursuers. The notes of the judges' Opinions in the Court of Session, written on the Session Papers by the counsel concerned (Arniston Collection, Vol. 138, No. 6 dated 19th November 1779, evidently referring to the Court of Session Interlocutor of 26th November 1779 and Campbell Collection, Vol. 40, 1780-81, evidently referring to either the interlocutor of January or that of March 1781) show that the majority of the judges held that the Spey was a navigable river. The same conclusion emerges even more plainly from the notes apparently made by Baron Hume on a copy of the "Information" for Duncan Forbes and others in his action against Sir James Grant of Grant and Macdonell of Glengarry in 1804 (Hume Collection, Vol. 52 No. 7). The learned author attributes to Lord President Ilay Campbell, who had been one of the counsel for the Grants in the Duke of Gordon's case, an Opinion to the following effect:

"In the case of Grant it was held that the right of floating was the super-eminent right—but not to be used emulously. So notices etc. were ordered in that case. Otherwise judgment would have ordered the cruives to be demolished."

The reference to "notices etc." is I think to the four hours notice and the other restrictions imposed by the Court on the floaters. I refrain from further quotations from the notes on these Session Papers, partly because they do not of course bear to report the exact words of the judges, but mainly because I do not consider that it would be useful to repeat the quotations and the comments upon them made by my noble and learned friend Lord Wilberforce and by the Lord President. I am wholly in agreement with the Lord President's conclusion that, in face of this material, which had not been before the Lord Ordinary,

"there is no escape from the conclusion that Grant v. The Duke of Gordon was decided upon the basis of a public right and that right was held available to the upper heritors as members of the public who had lawful access to the water."

That conclusion is fortified by the way the decision was referred to in the contentions of parties in cases in 1791 and 1793 and also in textbooks to which I refer below. The 1791 case was a Bill of Suspension and Interdict at the instance of Sir James Grant, to have the Duke of Gordon and Messrs Dodsworth & Osborn interdicted from floating timber, and in the Answers we find a statement that,

"Sir James so far prevailed in his last Process" [i.e. Grant v. Duke of Gordon ] "as to have the Spey found & public River to the effect of floating the Woods to the Sea …" (my italics).

The 1793 case was Colquhoun v. Duke of Montrose (1793) Mor 12827 where Sir James Colquhoun was claiming a right of fishing by stobs and nets in the River Leven at the outlet from Loch Lomond and the Duke of Montrose and others, superior heritors, sought to have the nets removed. The Memorial for Sir James Colquhoun to the Court (Hume Collection, Vol. 52, No. 50) contains a statement (at page 42) to the effect that in the Duke of Gordon's case the Court had treated the navigation as a public right, and it seems unlikely that the author of that memorial on behalf of the proprietor of the nets would have made that statement against his client's interest unless he had believed it to be obviously right.

But I am, with respect, unable to agree with the Lord President and the other learned judges of the First Division that the public right which was sustained in the Duke of Gordon's case was a limited right of floating. In my opinion, floating was treated by the Court of Session as a form of navigation and the decision was reached upon the view that the Spey was a navigable river. The Lord President found support for his view in Grant v. Henry (1894) 21 R. 358 where a right to fish for trout in the Spey was asserted by a member of the public on the ground that the Spey was a public navigable river. His Lordship found it significant that the Court merely assumed for the purposes of the argument that there was a public right of navgiation in the Spey. But the case was disposed of on the pleadings, which included averments by the defender that the Spey had been navigated by "rafts boats, currachs and other native craft from time immemorial," and Lord Kinnear, who gave the leading Opinion, could not have decided, without proof, whether these averments (which were apparently not admitted by the pursuer) were correct. That was probably why he proceeded on an assumption. Lord Kinnear added that he did not see that it could make any difference to the question he was discussing whether the river was navigable by one class of vessels or another, and I infer from that that he was not suggesting any restricted right of navigation. Lord McLaren (at p. 366) seems to have regarded a public right of navigation in the river as established. Accordingly I do not think the case supports a limited interpretation of Grant v. Duke of Gordon . Grant v. Henry may be contrasted with the Sheriff Court case of Seafield v. Jamieson reported in the Elgin & Morayshire Courier for 26th July 1867, which was also concerned with a claim by a member of the public to be entitled to fish for trout in the river Spey. Sheriff-Substitute Macleod Smith, after a proof, found that the Spey had been held in the Duke of Gordon's case to be a public (navigable) river, and also found that from time immemorial the river had been constantly used for floating down rafts of timber up to 60 feet in length and 20 feet in breadth. The Opinions of the judges in Grant v. Duke of Gordon, as recorded in the Arniston and Campbell Collections, seem to me to show that they were basing then decision on the view that the Spey was subject to a public right of navigation, not to some more limited right. There are also other, and in my opinion conclusive, reasons why that must be the effect of the decision.

In the first place, no authority was cited to us suggesting that the law recognised any public right of a navigational nature falling short of a full right of navigation in a non-tidal river. It is true that in Orr Ewing & Co. v. Colquhoun's Trustees (1877) 4 R. (H.L.) 116, Lord Gordon (at p. 138) referred to the Duke of Gordon's case as having recognised a right of floating timber down the river "as a quasi-navigable public right" but his Lordship cannot have intended to classify it as a separate legal right separate from a right of navigation because he went on to say, in the same sentence, that "the Court at the same time held that the right of navigation was not so absolute that it was not subject to equitable restriction …"

In the second place subsequent writers of authority in the law of Scotland who refer to the Duke of Gordon's case quote it as authority for the proposition that floating was enough to establish not merely a public right, but a public right of navigation. Thus in Hume's Lectures, Vol. 4 (Stair Society edition) p. 243, the learned author says:

"If it is a proper navigable river, that can be passed by vessels in both directions; this, by the consent of all authorities is a proper public river. But even if it is not of that description and has served as a means only of floating the lighter vessels or other things, downwards, to the sea or to their market; still it falls to be considered as a public road or highway of that region by water (iter navigable), and as such it is no more liable to be stopped, or obstructed, than the like serviceable and common passage by land."

And after developing that matter, he quotes as authority Grant v. Duke of Gordon . See also Bell's Principles of the Law of Scotland, (10th edition, ed. Guthrie) paragraph 648, and (1st edition, 1829) paragraph 155, Rankine on Land Ownership, (4th edition) p. 281 and The Encyclopedia of the Laws of Scotland, vol. 15, paragraph 1135, "Water and Water Rights" (by Mr James Keith, K.C. and other). These are the textbooks to which I referred above as showing the right of navigation was held to be a public right. I refer to them here because they cite Grant v. Duke of Gordon as their authority in relation to the right of navigation. It is true, as Lord Cameron pointed out, that Professor Bell refers to rivers above tide water which are fit for the transportation of the country products as "public" and not "navigable," but in the context I do not consider that the learned author intended to draw any distinction between these things. On the contrary, paragraphs 648 (10th edition) and 155(ii) (1st edition) are both headed "Navigable Rivers" and they seem to me to be intended to explain the criteria by which certain rivers though not tidal, are held public because they are navigable.

Finally it has to be remembered that by the civil law, a river that was floatable was considered to be navigable, and the same seems to be true in French Canada (see MacLaren v. Att.-Gen. for Quebec 1914 AC 258) and in at least some states of North America (Morgan v. King (1866) 35 New York Reports 454—see below. It is therefore in no way surprising that that should also be the law of Scotland.

For these reasons I agree with the Lord Ordinary's conclusion on this part of the case that there was in 1781 (strictly I think 1782) a public right of navigation in the Spey at the point where the Duke of Gordon's cruive was situated. The Lord Ordinary held that it followed from that that there was at that date the same public right at Knockando, as he found no material difference between the nature and use of the river at Knockando and the nature and use relied on in the Duke of Gordon's case. I agree with that conclusion. The decision in Grant v. Duke of Gordon would not have been res judicata against the owner of Knockando in 1782—see Duke of Atholl v. The Glover Incorporation of Perth (1899) 1 F. 658—and it is not so between the parties to this appeal, but it decided much of the relevant law. There is no suggestion that the Spey has changed its character since 1782 in any way that could affect the right of navigation, nor that the right has been abolished by Act of Parliament, but the appellants maintained that the right of navigation or floating which existed them had been lost by non-use. That contention requires a consideration of the nature of a public right of navigation in a non-tidal river, and I turn now to that matter.

The fundamental requirement for a public right of navigation in a non-tidal river is of course that the river must in fact be navigable in the sense of being capable of use for the passage of vessels or rafts, or at least of single logs, with reasonable safety so as to provide a useful means of communication. But it has never been decided how navigability is to be proved—see Rankine on Land Ownership, (4th edition) p. 281. As late as 1931 Lord President Clyde said in Leith-Buchanan v. Hogg 1931 S.C. 204, 211 that he doubted,

"if it has ever been settled whether the public character of the non-tidal part of a navigable river depends (1) on the fact of navigability, or (2) on prescriptive possession by the public."

There are judicial dicta in favour of both views especially in Colquhoun's Trustees v. Orr-Ewing (1877) 4 R. 344, where Lord President Inglis and Lord Deas considered that use was necessary to establish the navigable character of a river while Lord Shand thought it was not. Similarly in Macdonell v. Caledonian Canal Commissioners (1830) 8 S. 881 Lord Cringletie and the Lord Justice Clerk considered that a loch (and I think they would have included also a river) was private unless it had been "immemorially used" for public purposes such as navigation, but Lord Glenlee thought that there could be a public navigable river "even though never used as such." Baron Hume in his Lectures, Vol. 4, p. 243 states that the test of a public river is this:

"Is the river of such depth and capacity, as makes it fit to serve, and has made it in the use of serving, as a channel of transportation, upwards or downwards, for the commodities and produce of the adjacent country." (My italics.)

Ferguson on Water and Water Rights, p. 130 also considers that the actual fact of navigation must be proved.

I have reached the opinion that a public right of navigation in a non-tidal river depends not only upon the theoretical navigability of the river, but also on proof of its actual use for that purpose, although I think the word "prescriptive" in this context is apt to mislead by suggesting that navigation is a servitude right, which it is not, or at least that it is closely analogous to a right of way on land. I base my opinion on this point particularly on the statement by Hume, quoted above, and I rely also on the opinions of the Lord President and Lord Deas in Colquhoun's Trustees and Lord Cringletie in Macdonell. It is also consistent with French law which was stated by the Privy Council in Bell v. Corporation of Quebec [1879] 5 App. Cas. 84, 93 thus:

"The French authorities evidently point to the possibility at least of the use of the river for transport in some practical and profitable way, as being the test of navigability."

In all the Scottish cases that were brought to our attention where a public right of navigation was involved, the river had evidently been used for navigation (or at least for floating), for many years and there was no question of setting up a new right. That is what is to be expected in a country lake Scotland which has been inhabited and relatively settled for centuries. It seems most unlikely that any river in Scotland which is capable of providing a useful channel of communication or transport would not have been used by now, especially in the days before 1781 when there was no competition from railways and motor lorries. If the fact of navigability alone was decisive, without proof of actual use, the result might be intolerable for riparian heritors. It would mean that a new right of navigation might emerge suddenly, and might seriously interfere with existing rights of a riparian proprietor such as a right to withdraw water from the river for industrial purposes, subject of course to returning it fit for use by inferior heritors. And it might be open to any person to insist on attempting to navigate any river, however small, by asserting that it was capable of being navigated. I am aware of no authority which compels or encourages me to hold that the law of Scotland leads to such inconvenient results. In my opinion therefore it is not now possible, as a matter of law, for a public right of navigation, hitherto unsuspected, to be successfully asserted in a non-tidal river that has not been used for some form of navigation from time immemorial. The expression "time immemorial," when used in relation to the acquisition of rights of way on land by prescription has until recently been treated as equivalent to forty years—Rankine op. cit.—p. 54, but the prescriptive period for establishing a public right of way on land has now been reduced to twenty years—Prescription and Limitation (Scotland) Act 1973, section 3(3). That Act is concerned with inter alia the establishment by positive prescription of positive servitudes and public rights of way over land but it does not, in my opinion, apply to the period of use required to prove navigability of a river. In the latter context I think "time immemorial" must retain its customary meaning of 40 years, though it is possible that proof of actual use for less than 40 years might suffice if there were proof that the river had long been regarded as a public channel of communication by public opinion in the neighbourhood, what was called in Roman law existimatio circumcolenlium—see Digest loc. cit. supra.

The use which is required for proof of navigability must, in my opinion, be regular habitual use, not necessarily throughout the year, but at least for a sufficient part of normal years to make the river of substantial practical value as a channel of communication or transportation. See Rankine op. Cit. p. 281:

"It is quite sufficient for the creation of this public interest that country produce … should have been regularly sent down the stream when in flood …" (my italics).

That cannot of course apply to rivers which are used only in times of exceptional floods, as it would then apply to almost every river in Scotland, but if it is read as applying to rivers which are subject to regular seasonal spates it is quite acceptable. It is clear from the Lord Ordinary's finding that "the floating normally took place in the early months of the year when the river tends to rim high" that the Spey was used regularly enough to fall well within the test stated by Professor Rankine. This matter was considered in a case from New York—Morgan v. King (1866) 35 New York Reports 454, 459—which was mentioned by my noble and learned friend Lord Wilberforce towards the end of the hearing. In that case the learned judge, Smith J., was of course stating the law of New York (which he said was derived from that of England) but his explanation of the matter is in my opinion consistent with the principles of the law of Scotland, subject to two qualifications:—

"In this country, we have many streams of considerable extent, not navigable by boats, lighters or rafts, but capable of floating to market single logs or sticks of timber. In many cases large tracts of land bordering upon their banks were originally covered with dense forests, the valuable products of which would have had no avenue to market if the public easement in the streams had been restricted to navigation by boats or rafts. The true rule is, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines or of the tillage of the soil upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current, as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported."

The qualifications are, first that the capability of the stream for navigation has to be proved by actual use, and, second, that the "ordinary volume of water" includes the volume at times of ordinary seasonal spates.

Mr. Jauncey for the appellants argued that the only use that could establish a public right of navigation was use for commercial purposes such as transporting goods, and that use for purposes of mere recreation such as canoeing would not do. But I see no reason why actual use for recreation should not be as effective to prove navigability as use for transporting goods. The material point is not the purpose of the navigation but the fact of the capacity of the water for use in navigation—see Att.-Gen. v. Woods (1871) 108 Mass. 436 at 440. In any event I do not consider that the respondents' canoeing has been proved to be merely recreational. They carry on their canoeing activities as a business and, for aught that we can tell, some of their pupils may be servicemen or others who are learning to canoe for professional reasons and not merely as a recreation. So even if this argument for the appellants had been sound in law, it would, in my opinion, fail on the facts of this case.

The Lord President considered that, in addition to navigability proved by actual use, there was a third test that had to be satisfied before a public right of navigation could be established in a non-tidal river. He formulated the third test thus:

"Thirdly, it must be seen that the use or uses which have been practised and are in issue are of sufficient public benefit to justify their continuance," and in a later passage when applying that test to the Spey, he expressed the opinion,

"That there is a preponderance of public benefit in the continued use of the Spey for canoeing which is of sufficient materiality to justify recognition that the defenders as members of the public have the right to do what they have been doing since … 1969."

Lord Cameron formulated substantially the same test in rather different words. Mr. Jauncey submitted that the Lord President's conclusion as to the preponderance of public benefit was not justified as the question had not been raised in the pleadings, nor considered in evidence. If the question arose I would agree with that submission. Any enquiry into the matter would be very wide ranging, as it would have to include the whole length of the river affected by canoeing in order to determine whether canoeing was, on balance, beneficial to the public in the district. It is not even certain that the enquiry would be limited to benefits to the district. I doubt whether such an enquiry would in any event be appropriately conducted by the courts. But I am of opinion that the question does not arise, and that there is no separate test by reference to the sufficiency of public interest. It was not based upon any authority and, with the greatest respect to the learned judges who approved of it, it seems to me to involve a judgment of the value or importance of a public use, as distinct from its volume, for which there is no justification. I am therefore of opinion that provided navigability is proved by actual use, no question arises as to whether the use is of sufficient public benefit.

Mr. Jauncey submitted also that the rules applicable to the creation of a public right of way on land applied to the establishment of a public right of navigation in a river, and in particular that it could only be established between two public places. In my opinion this submission is unsound. The first, and I think the only, case suggesting that a public right of navigation could be established only between two public places was Colquhoun's Trustees v. Orr Ewing, cit., supra, in the Court of Session, per Lord President Inglis. But the importance of that case is that it decided that the alveus of a non-tidal navigable river belonged to the riparian proprietors, and Lord President Inglis explained the public right of navigation as being analogous to the right of way. It would not of course follow that the analogy was complete in every respect, and I do not think it is. The River Leven had been treated as public in Colquhoun v. Duke of Montrose (1793)—see especially the report in 3 Paton 221, at page 225, per Lord Justice Clerk—long before the Orr Ewing case, and the point did not arise for decision in the latter case. The Lord President was the only member of the court who suggested that two public termini were necessary, and the case is not, in my opinion, authority for that proposition. Lord President Clyde in Leith Buchanan v. Hogg did not regard Orr Ewing as authority on that point and I respectfully agree.

One of the recognised purposes of a public right of navigation is to serve as a means of floating commodities such as timber downwards to the sea or to the market, and there seems no reason why they must begin their journey at a public place. On the contrary, I would infer from the passage in Hume's Lectures (vol. 4, p. 243) to which I referred near the beginning of my speech that he contemplated the journey beginning on the private property of a riparian proprietor just as in fact occurred on the river Spey. If the navigable part of the river extends down to the mouth, as it normally will, there will be one public terminus in the sea. Provided that the person exercising the right has legitimate access to the river, either by being himself a riparian proprietor or by obtaining permission from someone else who is, he is entitled to use the public right of navigation.

In my opinion there is a great difference between a right of navigation in a river and a right of way on land. The latter right was described thus by Lord Watson in Mann v. Brodie (1885) 12 R. (H.L.) 52, 57.

"According to the law of Scotland, the constitution of [a right of way] does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription … I am aware that there are dicta, to be found, in which the prescriptive acquisition of a right of way by the public it attributed to implied grant, acquiescence by the owner of the soil, and so forth; but these appear to me to be mere speculations as to the origin of the rule, and their tendency is to obscure rather than to elucidate its due application to a case like the present."

Until the right of way is constituted along a definite route, it does not exist at all, and even after it has been constituted there may not be any visible indication of its existence. But a river exists as a physical feature plainly marking the route of any right of navigation and the purpose of use by the public is not in my opinion to constitute the right but to prove that the river is navigable. The theoretical basis of the right is that the Crown has not, and could not have, alienated the right to use the river for navigation but has retained it in trust for the public—see the Institutional writers referred to above and see also Colquhoun v. Duke of Montrose (1793) Morison 12820, at 12827 Observation from the Bench. If that is right, there is no reason why the establishment of a right of navigation should be subject to the same requirements as the constitution of a right of way on land, and I do not think it is.

The main importance of the enquiry into the method of establishing the right of navigation is for its bearing on the question of whether the right can be lost by non-use. If it were a servitude right it would be lost by non-use after 40 years by analogy with other servitudes in rivers—see Hunter and Aikenhead v. Aitken (1880) 7 R. 510, 516—and with a right of way on land—see Mann v. Brodie (1885) 12 R. (H.L.) 52, perLord Watson at 62, and Macfarlane v. Morrison (1865) 4 M. 257. The point is of practical importance here because the Lord Ordinary has found that the last use of the river at Knockando for floating occurred in 1885 and that there was no navigation by the public after that date until canoeing began some time in the 1920's. So if the right of navigation could be lost by non-use, it may well have been lost after 1885. But for the reasons I have endeavoured to explain, the public right of navigation is not a servitude and is not fully analogous to a right of way on land, and in my opinion it is not capable of being lost by non-use. We heard some argument on the question whether all rights of way on land could be lost by non-use, or whether there was a class of ancient highways held jure coronae, in which the public right of passage could not be lost by non-use—see Waddell v. Earl of Buchan (1868) 6 M. 690. It is not necessary for the purposes of this appeal to decide whether there is in Scotland any such class of ancient highways and I reserve my opinion upon the question. Even if all public rights of way on land can be lost by non-use, that does not, in my opinion, lead to the conclusion that a right of navigation in a non-tidal river would be similarly lost. The only case which might possibly seem to indicate that a right of navigation could be lost by non-use is Bowie v. Marquis of Ailsa (1887) 14 R. 649, 667, where the Lord Justice Clerk referred to evidence that the River Boon had formerly been used by smacks, but had not been used for the last 40 years, but there was no question in that case of a right of navigation having been lost, and the observation is not relevant to that matter. I am therefore of opinion, agreeing with the Lord Ordinary, that the right of navigation could not be lost by non-use and it follows that the Spey, having been held to be a public navigable river in 1782, and not having been shown to have undergone any physical change since that date, still is such a river.

That brings me to the final question. What is the extent of the right which was established in 1782 and was still in existence when this action was raised? The measure of the right is in my opinion the physical capacity of the river. It was proved that the Spey had been used on an extensive scale for floating large rafts which must have drawn at least several inches of water, and in my opinion there can be no doubt that the right to pass such rafts down the river is amply wide enough to include the right to pass canoes, which are much smaller, and draw less water, than the rafts. That would be enough for the decision of the question with which this appeal is directly concerned, but I should add that in my opinion the public right of navigation which has been established would extend to permit any operation that could be reasonably described as navigation, by any vessel that could be reasonably described as a boat as that word has hitherto been understood. I make these qualifications in order to indicate that the right is not in my opinion unlimited. It would not, for example, include operations which would be more like acrobatic feats than navigation, or operations that resulted in a substantial proportion of the vessels or the floated objects being so damaged before they reach their destination as to be unmarketable. Nor do I consider that it would include passage along the river by revolutionary new types of craft that may some day be invented. Subject to these limitations, it is a general right of navigation up to the full capacity of the river.

Before parting with the case I would like to express my appreciation of the industry and learning so skilfully applied by counsel on both sides in finding old materials and in explaining their bearing upon this appeal.

For these reasons, I would dismiss the appeal and affirm the interlocutor of the First Division.