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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carswell v. The Nith Navigation Commissioners [1878] ScotLR 16_15_1 (23 October 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0015_1.html Cite as: [1878] ScotLR 16_15_1, [1878] SLR 16_15_1 |
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[Sheriff of Dumfries and Galloway.
River — Navigation Trustees — Power to take Ballast.
A party infeft on a disposition of certain lands, “with the ground that then was or should be between the present floodmark and the river Nith,” applied to the Sheriff for interdict against the removal of gravel or sand from the shore-ground belonging to him by the Navigation Commissioners of the river. They resisted the application, founding on the terms of an Act of Parliament empowering them to attend to the navigation of the river. Held that there was no such question of heritable title involved as to exclude the Sheriff's jurisdiction.
Observations on the power of the Sheriff, if there had been a competing title, to give protection against such operations by interdict pending a decision on the question of heritable right.
Navigation trustees acting under a statute empowering them to maintain and improve the navigation of a river are not entitled by themselves to destroy the solum of the river banks by taking ballast therefrom, or by authorising others frequenting the river to do so.
This was an action at the instance of Robert Carswell, residing at Glencaple, in the parish of Caerlaverock and shire of Dumfries, who was infeft on a disposition to him by Robert Thomson, dated 14th and 15th May 1868, in “All and whole that portion of land at Glencaple erected into a village, and sometime called Thomsonstown, extending to 3 acres Scotch statute measure or thereby, with the ground that then was or thereafter should be between the present floodmark and the river Nith lying at Glencaple Quay, in the parish of Caerlaverock and shire of Dumfries.” Mr Carswell applied to the Sheriff—calling as defenders the Commissioners for Improving the Harbour of Dumfries and the Navigation of the River Nith; Thomas Brisbane Anderson, solicitor in Dumfries, their clerk and treasurer; and George Little, their harbour-master—to interdict, prohibit, and discharge the defenders, and all other persons acting under their instructions or by their sanction or authority, from lifting or taking sand or other materials for supplying vessels with ballast from the shore-ground at Glencaple belonging to the pursuer. He averred—“Within a few days prior to the raising of the present action the defenders, or one or other of them, by means of carters and others employed by them or acting under their sanction or authority, unlawfully entered upon the said shore-ground belonging to the pursuer with horses and carts, lifted and carried away therefrom large quantities of sand and other material for supplying ballast to vessels frequenting the river Nith, and have otherwise injured the pursuer's said property by passing over it with horses and carts.”
The defenders alleged, in the first place, that the piece of ground in question had been conveyed to the Provost and Magistrates of Dumfries by William Maxwell of Nithsdaill for the purpose of making a harbour and improving the navigation of the river. They also narrated in their statements various clauses of the Act of Parliament 51 Geo. III. cap. 147, by which the Nith Navigation Commission was consituted, giving the Commissioners various powers for the “carrying on, improving, supporting, and maintaining the navigation.” Inter alia, they averred—“To enable ships and vessels to leave the river and port it is absolutely necessary that they shall be furnished with a certain quantity of ballast to fit them to do so, and proceed upon another voyage, and it has been since the year 1811, and still is, the practice of the Commissioners and their servants, in doing and executing what they deem necessary and expedient for carrying on, improving, supporting, and maintaining the navigation of the said river, and for the preservation of the shipping therein, to permit the masters and crews of such vessels to take from the bed and shores of the said river such quantities of sea sleech, sand, gravel, stones, and material as they have required and do require for the purposes of ballast.”
The pursuer, inter alia, pleaded—“(1) It is no part of the business of the Commissioners, and does not fall within the scope of their Act of Parliament, to supply vessels with ballast. (2) No relevant title to take ballast from the shore-ground belonging to the pursuer has been set forth by the defenders. (3) The ground in question being the property of the pursuer, and the defenders having no right to take material therefrom for ballast, he is entitled to interdict as craved.”
The defenders, inter alia, pleaded—“(4) The right of property in the Subjects in question, which is real property and heritable, and the right
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to said property being in dispute, the jurisdiction of the Sheriff Court is excluded, and the petition should therefore be dismissed with expenses. (9) The river Nith being a public navigable river, the alveus thereof and the shore and beach thereof are res publicœ and are not the property of the pursuer; and, in any event, the alveus, shore, beach, and banks of said river are subject and subservient to the purposes of the navigation of said river.” The Sheriff ( Hope) allowed the defenders a proof of their averments as to the state of possession, and thereafter pronounced an interlocutor in which, after certain findings of fact, he found in law “(1) that in the circumstances the pursuer is not entitled to a possessory judgment; and (2) that the action is incompetent in this Court, in respect that it involves a question of heritable right, and was raised before the passing of the Act 40 and 41 Viet. c. 50,” and he therefore recalled the interim interdict which he had pronounced, and dismissed the petition. He added this note:—
“ Note.—… It appears to the Sheriff-Sub-stitute that the dispute involves an heritable question, and therefore the pursuer, however good his title may ex facie appear, cannot obtain in any view more than a possessory judgment, and if the view taken by the Sheriff-Substitute be correct, not even that, because he has not established possession. Even if any possession has been established, it is not exclusive possession, for the defenders' proof shows that down to the period when the operations complained of were carried on constant use was made of the ground by shipmasters and others, including the defenders, who may be said to have used it by—in the person of their harbour-master—giving authority to others to use it.
It is unnecessary to quote from the defenders' proof to show that this is clearly proved.
The Sheriff-Substitute regrets that further litigation will (in his opinion) be necessary if the pursuer wishes to have the question he has raised decided, and all the more so as he cannot see that the defenders have any power under their Act to dig out the banks of the river or the alveus except for purposes connected with the improvement or maintenance of the navigation. It seems to him to be no part of their duty to provide ballast for ships.
As regards the pursuer's title, which is assailed in various ways, it is sufficient to say that while it seems to the Sheriff-Substitute to be good enough to found a title to a possessory judgment if possession had been proved, he reserves his opinion whether or not it would be sufficient in an action of declarator or other action for deciding heritable rights.”
On appeal the Sheriff ( Napier) adhered.
The pursuer appealed to the Court of Session, and argued—There was no competition of heritable rights here involving a question that could be tried by way of declarator. All that the defenders put forward was a right affecting the property of another, and that to the extent of a possessory judgment might be determined by the Sheriff— Johnston v. Murray, March 5, 1862, 24 D. 709; Maxwell v. Glasgow and South-Western Railway Company, February 11, 1866, 4 Macph. 447. Now, the Commissioners had no right to interfere with the property adjoining the river except for the purpose of furthering the navigation of the river. They had no right of property given them, nor had they any such right at common law— Milne Home v. Allan and Others (Eyemouth Harbour Trustees), January 8, 1868, 6 Macph. 189; Clyde Navigation Trustees v. Trustees of the Harbour of Greenock, July 8, 1875, 12 Scot. Law Rep. 595; Lord Blantyre v. Clyde Navigation Trustees, December 19, 1877, 15 Scot. Law Rep. 382. Trustees had large powers under such a statute as this, provided their object was to improve navigation, but had no other right— Todd v. Clyde Navigation Trustees, January 23, 1840, 2 D. 357.
The defenders argued—Ballasting ships was inter regalia, and was a right held by the Crown for the benefit of the public—Stair, ii. 1, 5; Agnew v. Lord Advocate, January 21, 1873, 11 Macph. 309 (Lord Cowan's judgment, 330). Besides, the provisions of the Act of Parliament regulating the operations of the Commissioners here, inasmuch as it prohibited the taking of ballast beyond a certain extent, permitted the taking of it up to a reasonable extent.
At advising—
In the first place, the contention that there is a question whether the pursuer's property extends down to low watermark is not such as can be given effect to. The title may be open to construction in a process of declarator, but in the meantime there is a conveyance on which the petitioner has been infeft and in possession for ten years, in which his boundaries are thus described—“bounded by the floodmark and river of Nith on the west parts, with the ground that now is or hereafter shall be between the present floodmark and river of Nith.” One of his boundaries is the flood-mark, the other is the river Nith, and the fair construction of the language used is that what lies between the floodmark and the river at low-water is expressly conveyed to him. We have then enough here to entitle the petitioner to say that he is infeft in a property that extends to the low watermark, which is sufficient to give a right to insist in a possessory action.
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The question remains, Whether in this action of a possessory character the pursuer is entitled to succeed. This is not a proper case of a competing title; the defenders do not aver any right of property. Their case is presented entirely on the provisions of the statute, and the sole effect of these is that there is vested in the defenders a right of making and maintaining the river as a navigable river, and of executing such operations as may have the effect of improving the navigation. Had their object in removing sand or gravel been to make the channel better for navigation, that might have been a good defence here. But the effect of the Act of Parliament is obviously limited to conferring powers for the improvement of the navigation. It gives no right such as is claimed. On this point we have, I think, very direct authority in the case of the Eyemouth Harbour Trustees. In that action trustees of a harbour maintained a right to take ballast, and it was held that they had no title enabling them to do so. It is not enough to make a competing title that the defenders should assert the right, or set up a statute the provisions of which do not in any way profess to give such a right.
We have thus a title here on one side, and no competing title on the other. The pursuer therefore is, in my opinion, entitled to succeed. Even if it could be truly said that there is here a competing title, still as the act objected to is a removal of part of the property, the Sheriff, I think, would have been quite entitled to have stopped such operations pending the question whether the property belonged to the one party or the other. I may refer for authority on that point to the cases of Johnston v. Murray and Maxwell v. The Glasgow and South-Western Railway Company. It was there held that a Sheriff had jurisdiction to grant interdict against such dilapidation. The view of the case I have formed is quite irrespective of the proof. I think the interlocutor should be recalled, and interdict pronounced as in a possessory question, leaving the Commissioners to take further action if so advised.
With regard to the right at common law to take ballast, I may say that, so far as I am concerned, I am not prepared to say that there is such a right, but if there be, it must be asserted in a very different process, and probably by persons having a different title.
The defenders have certain rights under the statute. It is not contended that the statute gives a right of property, nor does it give a right to take sand themselves or to allow others to take it. That is not protection of the navigation; that is giving away the solum, which belongs to another party. I cannot see that the pursuer has not a perfectly good title to insist in a possessory action against parties who have no title at all. There is nothing to prevent the Sheriff from considering the titles to heritable property of any value for the purpose of seeing whether prima facie there is a title in a party to insist in a possessory action. Even if there be some show of a competing title, it does not follow that the Sheriff would not have had jurisdiction to look at it, but there is none here. The Sheriff does not doubt that the pursuer has a title to a possessory judgment. He says “it appears to the Sheriff-Sub-stitute that the dispute involves an heritable question, and therefore the pursuer, however good his title may ex facie appear, cannot obtain in any view more than a possessory judgment, and if the view taken by the Sheriff-Substitute be correct, not even that, because he has not established possession. Even if any possession has been established, it is not exclusive possession;” and again—“all the more so as he cannot see that the defenders have any power under their Act to dig out the banks of the river or the alveus except for purposes connected with the improvement or maintenance of the navigation. It seems to him to be no part of their duty to provide ballast for ships. As regards the pursuer's title, which is assailed in various ways, it is sufficient to say that while it seems to the Sheriff-Substitute to be good enough to found a title to a possessory judgment, if possession had been proved, he reserves his opinion whether or
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The
The Court pronounced this interlocutor:—
“Recal the interlocutors of the Sheriff-Substitute and the Sheriff, dated respectively the 7th December 1877 and the 8th February 1878, except in so far as the preliminary pleas therein mentioned are repelled: Find, in point of fact, that the defenders (respondents) have had no possession during the possessory period prior to the date of the action of a right or privilege of taking sand for ballast from the portion of foreshore now in dispute, or of granting leave to others to do so, otherwise than by occasional acts of trespass or by tolerance of the pursuer (appellant): Find, in point of law, that the pursuer had and has a sufficient title to raise and insist in the said action for interdict, and that the defenders have instructed no title to maintain the pleas stated for them in defence: Find the pursuer entitled to a possessory judgment: Therefore and to that effect repel the defences and grant interdict as craved, and decern: Find the pursuer and appellant entitled to expenses both in the Inferior Court and in this Court,” &c.
Counsel for Pursuer (Appellant)— Balfour— Robertson. Agent— James Somerville, S.S.C.
Counsel for Defenders (Respondents)— Kinnear— M'Kechnie. Agents— J., C., & A. Steuart, W.S.
