Scottish Court of Session Decisions

By the Act 11 Geo. IV. and 1 Will IV. c. 115, entituled an Act for the further improvement and support of the passage across the Firth of Forth, called the Queensferry, the property of the ferry of Queensferry, its piers and landing places were

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vested in certain trustees therein named. By the 20th section of the Act it was provided—“And in respect that this ferry must necessarily continue to be the great line of communication between the southern and northern parts of Scotland, and that the interference of other traffic than that which belongs to a ferry will greatly injure the use of it as such, and incommode and detain the transit thereat, be it enacted that the pier of Port Edgar, and wharf or key, on the outside of Queensferry Harbour, and eastward thereof, the pier at Newhalls, Portneuk, and Longcraig, on the south side, with the landing places, havens, creeks, and communication by land therewith connected, and the east and west battery piers, and signal house pier, on the north side, and Haughend pier, to the west of the said signal house pier, with the landing places, havens, creeks, and communications by land therewith connected, including the whole of the creek or bay betwixt the west battery pier and the signal house pier, and the landing places therewith connected, shall be exclusively and solely used for the purpose of the ferry and passage, and for no other purpose whatever, unless by the permission of the said trustees in writing granted at a meeting or meetings regularly held for the purpose of granting such permissions, to be signed by not less than three of the trustees who may be present at such meeting, save and except the use of the Haughend pier, in the manner here in before provided: Provided always, that the roads leading to and from the said piers and landing places shall be subject to be used in the same manner and by the same persons as the same have been and are now used; anything herein contained to the contrary notwithstanding: Provided further, that nothing hereinbefore contained shall prevent the said trustees from making such arrangements in respect of the Haughend pier, either with respect to the use or the property of the same, as may to the said trustees, at a regular meeting or meetings for the purpose, seem expedient, and for the benefit of the inhabitants of the village of North Queensferry.”

By section 21 it was provided—“And be it further enacted, that it shall not be lawful for any person or persons whatsoever, except the trustees appointed by this Act, or those acting under their authority, to keep or use within the limits of the said ferry any boat or other vessel for the purpose of conveying passengers or any matter or thing for hire across the said Firth of Forth within the said limits, or in any boat or vessel within such limits to convey any passenger or other matter or thing for hire across the said Firth of Forth; neither shall it be lawful for any person or persons whatsoever, excepting the trustees appointed by this Act, or those authorised by them, to keep or use within such limits any boat or other vessel for conveying passengers, matters, or things for hire to or from any steamboat which may be passing up or down the said firth, or in any boat or vessel within such limits to convey any passenger, matter, or thing on board of any such steam vessel, or from the same, for hire; and any person offending in any of the above particulars shall forfeit and lose a sum not exceeding five pounds for every such offence.”

By Sections 44 and 45 the trustees were authorised to levy certain rates for the use of the ferry, and these were the only rates which the Act gave them power to levy.

Section 31 of the Edinburgh and Glasgow Railway (Queensferry) Act 1863 (26 and 27 Vict. c. 237) enacted—“And whereas it is intended by the North British (Edinburgh, Dunfermline, and Perth) Railway Act 1863 to authorise the North British Railway Company to purchase and acquire the Queensferry passage from the trustees acting under the Act Eleventh George the Fourth, chapter one hundred and fifteen, intituled An Act for the further Improvement and Support of the Passage across the Firth of Forth, called the Queensferry, and The Queensferry Passage Improvement Act 1848: Be it enacted, That in the event of the North British Railway Company not completing the said purchase within two years after the passing of the said Act, it shall be lawful for the Company to purchase and acquire, and for the said trustees to sell and convey to the Company, the ferry upon or across the Firth of Forth established and maintained under the said Acts or either of them, and all the piers, harbours, works, accesses, lands, houses, and Property connected therewith or belonging thereto, and the right of working the said ferry, and all other rights and interests of the said trustees in or relating to the said ferry.” The mode in which the price should be ascertained and paid was then provided for, and on the price being paid it was provided—“The said ferry shall be transferred to and vested in the company freed and discharged of all debts and incumbrances affecting the same or the rates leviable thereat and in respect thereof, and the Company shall have and may use, exercise, and enjoy the right of ferry and other rights and property so acquired by them, and may work the said ferry separately or in connection with the railways, and may levy thereat and in respect thereof any rates and duties not exceeding the rates and duties specified in and authorised to be levied by the said Act Eleventh George the Fourth, chapter one hundred and fifteen: Provided that the rates to be levied by the Company at and in respect of the said ferry for passengers, animals, and goods not conveyed on their railways shall not exceed the rates levied by the said trustees under the table of rates which was in force on the first day of May One thousand eight hundred and sixty-three.”

Section 32 provided that after the vesting of the ferry in the Company, the Company should become responsible for the maintenance of the ferry, and be bound to make a certain number of trips daily.

By section 33 it was provided that the Company might purchase vessels, erect landing stages, and make bye-laws “for the regulation, control, and government of

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the said ferry, and the piers or other works connected therewith,” and this was the only section which expressly gave the Company power to make bye-laws.

Section 34 provided—“It shall not be lawful for any person, except the officers and crews of Her Majesty's ships and boats being engaged in Her Majesty's service, or except in the case of vessels driven in by stress of weather, to make use of or to land at any of the piers to be acquired or constructed by the Company under this Act, nor to lay to or alongside the same or the works or conveniences connected therewith any vessel or boat of any description, nor to attach any rope or chain thereto, nor to land thereat or ship therefrom any passengers, carriages, animals, goods, articles, or things except in such manner and under such conditions and regulations as shall be prescribed by the Company, by the byelaws to be made by them as hereinbefore provided; and any person so using the said piers or any of them without a written authority from the Company or some person duly authorised by them or under such conditions and regulations as shall be prescribed by them, shall for every such offence be liable to a penalty not exceeding ten pounds.”

The North British Railway Company did not purchase the ferry within two years of the Act authorising them to do so, but by the North British and Edinburgh and Glasgow Railway Companies Amalgamation Act 1865 the Edinburgh and Glasgow Railway Company was dissolved, and its whole undertaking, rights, and powers were transferred to and vested in the North British Railway Company, and thereafter the North British Railway Company entered into an agreement with the trustees of the Queensferry passage to purchase from them the ferry and piers, and all rights belonging to the trustees in or relating to the ferry. In pursuance of this agreement the trustees by disposition dated 20th March and registered 12th April 1869 conveyed to the North British Railway Company, their successors and assignees, the ferry across the Forth, and all the piers, harbours, works, &c., connected therewith, and the right of working the ferry, and all other rights and interests belonging to them in or relating to the said ferry, subject to the provisions of, inter alia, the Edinburgh and Glasgow Railway (Queensferry) Act 1863 above mentioned.

In May 1889 the North British Railway Company brought the present note of suspension and interdict against “Hugh Mackintosh, Queensferry Arms, South Queensferry, praying the Court to interdict, prohibit, and discharge the said respondent from making use of or landing at any of the piers at or near the passage of the Firth of Forth known as the Queensferry or the Queensferry passage and belonging said piers to the complainers, and from laying any boat or vessel to or alongside the said piers, and from attaching any rope or chain thereto; and from landing thereat or shipping therefrom any passengers, and in particular from using in any of the ways foresaid the pier called Newhalls pier situated at or near South Queensferry, excepting always in the case of any vessel driven in by stress of weather; and further, to interdict, prohibit, and discharge the respondent, either by himself or others, from allowing the steamer ‘Queen Margaret’ from making use of or landing at any of the said piers, and from laying the said steamer to or alongside any of the said piers, and from landing passengers at or embarking passengers from any of the said piers, especially Newhalls pier, excepting always in case of their being driven in by stress of weather; and to interdict, prohibit, and discharge the respondent from using the said steamer or any other boat for the purpose of conveying passengers for hire across or partly across the said ferry from the said pier, or from plying with said steamer or any other boat or vessel within the jurisdiction of the said ferry, or to do otherwise in the premises as to your Lordships shall seem proper.”

The complainers averred—The piers in question belonged to them in virtue of the disposition and statutes above mentioned, and no one had a right, except in case of stress of weather, to use the same in any way without their consent. The respondent was owner of the steamer “Queen Margaret,” and had no right or title to use the Newhalls Pier, but though repeatedly requested to desist, he persisted in using said pier, and habitually caused the Queen Margaret to use it, and landed and embarked passengers at the pier, and carried passengers in his steamer from the pier across the ferry, and plied with said steamer for hire within the jurisdiction of said ferry.

The respondent averred—He did not employ his vessel as a ferry boat—His vessel was largely employed by him in sailing with passengers round the Forth Bridge. She also went on trips up or down the Firth, as to the harbour of Queensferry, Bo'ness, and other places, and to vessels at anchor in the roads, for all which he was willing to pay not more than 1d. for each passenger landing or embarking. The charge of 6d. which was asked by the complainers was not fair nor reasonable. The respondent's right to use the pier for such navigation was secured by the common law and the Acts of 1863. The complainers had the power to pass bye-laws or regulations, subject to confirmation by judicial authority, for such traffic as his in connection with their pier, but they had neither duly made nor published any such bye-laws. They had no power to charge rates beyond those Permitted in their Acts of 1863, and they had not duly made or published any table of rates so as to render him liable for any dues; nor could they charge for his passengers more by any table than 1d. per head. The present note was a wrongful attempt to exclude the respondent, and to restrict the use of the pier for such purposes as his to other persons who would pay more than he was willing to offer. Since this note was presented the complainers had, by

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lease or minute of agreement, dated 28th May 1889, let, at a rent of £250 for one year to Mr John Arthur, a rival steamboat owner, the exclusive right to use the pier ( i.e., Newhalls Pier) for the same purposes as those of the respondent.

The respondent pleaded—“(2) The respondent having right to use the pier for purposes of navigation by virtue of the common law as well as under the provisions of the statutes, the note is unfounded and should be refused. (3) Any power of control over the respondent's use of the pier by byelaws or table of rates not having been exercised in any due form, the note is unfounded and should be refused.”

On 30th October 1889 the Lord Ordinary ( M'Laren) repelled the reasons of suspension and interdict, refused the prayer of the note of suspension and interdict, and decerned.

“ Opinion.—This is an action of interdict at the instance of the North British Railway Company, proprietors of the Queensferry Passage, to restrain the defenders from making use of the pier at Newhalls (being one of the ferry piers) as a landing place for his steamer the ‘Queen Margaret,’ which is employed by the respondent for taking passengers into the open channel of the Firth of Forth where they may have a view of the Forth Bridge.

I understand that the action has arisen out of a difference between the complainers and the respondent regarding the rates or tolls payable to the company for the use of their pier. But no question as to tolls exigible is or can be raised under this action, nor, as it appears to me, can the complainers put forward a case founded on the allegation that the use of their pier by the respondent's steamer is a hindrance to the proper working of the ferry, because it is averred on record and is not denied that since this action was raised the complainers have let at a rent of £250 for one year to Mr John Arthur, a rival steamboat owner, the exclusive right to use the Newhalls Pier for the same purposes as those for which it is used by the respondent.

The claim of the company is founded solely on proprietary right, which they say entitles them to grant or to withhold the use of the pier as they please. The respondent contends for a qualified right on the part of the public to use the pier as a landing place for purposes unconnected with the ferry, subject to such regulations as may be enacted in the form of bye-laws under the authority of the Company's Acts, and on payment of reasonable dues or tolls for the use of the pier.

If this had been a private pier, or an adjunct to a ferry which was private property, I should have held that the public were entitled to a reasonable use of the pier as a landing stage for casual traffic, subject to the preferable right of the owner or his tacksman engaged in serving the ferry. I should have assumed the existence of such a qualified use on the part of the public on the principle that the acquisition of a private right to a part of the sea shore is always subject to the uses of navigation, whence a right arises to any member of the public to land or embark at the pier if it is a suitable landing place for his purpose. This does not imply that a ferry pier may be used for the landing or loading of goods. It may be a very unsuitable place for such traffic, and I only contemplate such a use of the pier as is neither detrimental to it by causing appreciable wear and tear, nor an obstruction to the primary purpose of the pier—that of an adjunct to the ferry.

In the present case, it appears from the recitals in the Acts of Parliament founded on, that the ferry or Queensferry passage was private property until the year 1809, when, by a local Act declared public, the administration of the ferry was vested in a body of Parliamentary trustees, who were empowered to acquire the heritable right of the ferry and all its adjuncts on making compensation to the owners.

The trust was reconstituted, and further powers were granted to the trustees by a local Act passed in 1830 (11 Geo. IV., cap. 115). This Act contains the clause quoted in the complainers’ fourth statement of facts, whereby, on the narrative that ‘the interference of other traffic than that which belongs to a ferry will greatly injure the use of it as such, and incommode and detain the transit thereat,’ it is enacted that the piers and landing places there described ‘shall be exclusively and solely used for the purpose of the ferry and passage, and for no other purpose whatever, unless by the permission of the said trustees in writing.’ It is evident that the use of the pier for which the respondent contends would not have been permissible during the period of the administration of the ferry by a board of trustees.

The acquisition of the Queensferry passage by the North British Railway Company came about this way. In the year 1863 (the North British Railway Company and the Edinburgh and Glasgow Railway Company being then separate Companies) each of these companies obtained Acts of Parliament for the extension of their respective undertakings, and in each of these Acts reference is made to the Queensferry passage. The substance of the enactments is that if the North British do not purchase or otherwise acquire the ferry from the trustees of the Queensferry passage within two years after the passing of the Act, the Edinburgh and Glasgow Railway Company may purchase, under the conditions and provisions of the Act with respect to such ferry.

The North British did not acquire the ferry within the period of two years there mentioned, but after the amalgamation of the Edinburgh and Glasgow Railway Company with the North British, the latter company, in the exercise of its Parliamentary powers, purchased the ferry from the trustees, and obtained a disposition from them which is in process. It does not seem to be very material whether the North British did so as in right of the Edinburgh and Glasgow Railway Company or in their own right, which was not absolutely cut off by the expiration of the period of two years,

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but was only subordinated to the preferential right then given to the Edinburgh and Glasgow Company. The material question is whether the railway company in taking over the ferry came under all the duties and obligations and succeeded to all the privileges of the Parliamentary trustees? As a general rule a railway company acquiring property for the purposes of its undertaking, take an unincumbered heritable estate, and is in no way affected by trusts or conditions qualifying the right of its authors. In the present case I should consider that the North British Railway is not affected by the trusts of the previous owners, except in so far as the enabling Act of Parliament made these trusts a qualification of the company's right.

Under the North British Railway Company's Act (section 36), it is provided that the public are to have an equal number of passages (including passages in connection with the railways), and equal facilities of passage as on 1st January 1863, and that the rates to be levied should not exceed the rates levied by the trustees at that date. Similar provisions are contained in the Act giving the Edinburgh and Glasgow Railway Company purchasing powers (sections 31 and 32).

Coming to the question of the exclusion of other traffic at the ferry piers, there is a very noticeable difference of expression between the 20th section of the statute of 11 Geo. IV. and the cognate provisions of the Acts obtained by the two railway companies. The provision in the Act obtained by the ferry trustees amounts to an absolute exclusion of all other traffic than that of the ferry, while in the two railway Acts it is contemplated that there may be such traffic subject to regulations or byelaws to be made by the Company acquiring the pier. The question is whether the railway company has the power of excluding the public from the use of the pier for vessels other than ferry boats, or whether the company is only empowered to regulate such use.

There is again a difference of phraseology in the Acts obtained by the Edinburgh and Glasgow Company and by the North British. The enactment quoted by the respondents, section 34 of 26 and 27 Vict. cap. 237 (the Edinburgh and Glasgow Railway Act), may be read consistently with the latter construction, and my opinion is that in such a question that construction is to be preferred which is most favourable to public right. I accordingly read this section as only prohibiting the irregular use of the pier by the public—I mean the use of it in a manner contrary to the regulations which the company is empowered to make. According to this construction the action will fail, because the company have made no regulations, and therefore the use of the pier is unrestricted. I am confirmed in this opinion by considering the terms of the corresponding section of the North British Railway Company's Act, in which there is no ambiguity (26 and 27 Vict. cap. 213, sec. 38). It is there provided in unqualified terms, with reference to the new piers which that company was empowered to construct, that it shall not be lawful for any person (with the exception of Her Majesty's service and ships driven by stress of weather) to land thereat, or to ship therefrom any passengers, &c., ‘unless with the consent of and in such manner and under such conditions and regulations as shall be settled by the company.’ It is evident that the framers of these Acts of Parliament, when they meant to take an unqualified power of excluding the public, knew how to express the power, and I have difficulty in conceiving that such language as that of the 34th section of the other Act of the same year could have been chosen in the design of claiming an equivalent power. At all events, as this is an Act obtained on the petition of a private company it is to be construed fortius contra proferentem, and I think the respondent has a good answer under this section, that he has not contravened any regulation made by the company, and that he is in the lawful exercise of a public right.”

The complainers reclaimed, and argued—The trustees in whom the ferry and piers were vested prior to 1863 had undoubtedly a right to exclude the public from the use of the piers. The complainers were now in the trustees' place, and had under the Acts which empowered them to acquire the ferry and piers to exclude the public from using the piers except with the written authority or under such regulations as they should prescribe.

The respondent argued—At common law the public had a right to free navigation, and to bring boats to shore anywhere. The public right had been excluded by the Act which vested the ferry and piers in the trustees, but it was not excluded under the Railway Acts. The railway company had not acquired from the trustees all the rights possessed by them, but only the right of ferry. The company had the power to make bye-laws to regulate the use of the piers, but they had not exercised it, and therefore the use of the piers was regulated by common law right of the public.

At advising—