Scottish Court of Session Decisions

This was an action brought by Sir Robert Menzies of that Ilk, Baronet, in the Sheriff Court at Perth, against the Marquis of Breadalbane, in which the pursuer sought declarator that two islands or banks known respectively as the Taybridge or Sir Robert's Island and Dunskiag or Farochil Island, situated in the river Tay, were the property of the pursuer, as being part or part and pertinent of the barony of Menzies, belonging to him.

The pursuer averred that the islands in question lay ex adverso of his lands, which were situated on the north bank of the river Tay, the defender being proprietor of the lands on the south bank. He averred that the main channel of the river flowed between the said islands and the lands of the defender, and that both islands were situated entirely upon the north or Menzies side of the medium filum of the river; that the channel between them and the pursuer's other lands was only a subsidiary watercourse, which was generally dry in summer, or when the water was low, and that it formed no part of the true course or channel of the river.

The defender in answer averred that the islands in question were situated in the alveus or channel of the river; that the pursuer and defender had the property of the alveus ad medium filum; and that a large part of both islands was situated on the south or Breadalbane side of the medium filum. The defender denied that the river Tay and the channel or current thereof were entirely on the south side of said islands.

The pursuer pleaded—“(1) The said islands being part of or parts and pertinents of the pursuer's barony of Menzies, he is entitled to decree as craved. (2) The said islands, or one or other of them, being situated on the north or Menzies side of the medium filum of the river, the pursuer is entitled to decree as craved.”

The defender pleaded—“(2) The defender is entitled to absolvitor in respect ( a) that the said islands are situated in the alveus or channel of the river dividing the parties' lands; ( b) that the alveus is the property of the parties ad medium filum; ( c) that the islands belong in property to the parties according to that line; and ( d) that part of each of the said islands is situated on the defender's side of the said medium filum, and is his sole property.

Proof was allowed and led.

The import of the evidence is sufficiently set forth in the interlocutor of the Sheriff-Substitute.

On 9th January 1901 the Sheriff-Substitute ( Sym) pronounced this interlocutor—“Finds in fact (1) that the pursuer is proprietor of the barony of Menzies in the county of Perth, to which he succeeded in 1844, and that it is not disputed that at the part of his estate which is referred to in this action his boundary is the medium filum of the water of Tay; (2) that the noble defender is proprietor of the lands of Bolfracks, Wester Aberfeldy, and others on the opposite side of the water of Tay, which lands are included in certain parishes lying to the south of said river Tay, and are bounded on the north ‘by the water of Tay (3) that in the water of Tay, a short distance above Aberfeldy, where it flows between the pursuer's and defender's lands, there are two banks or islands of gravel and sand, upon which grow scrub, grass, and small trees, which islands are generally known as the Taybridge Island and Dunskiag Island, though each is known sometimes and to some persons by other names; (4) that these islands have been formed in the channel by gravel and sand being deposited by the action of the river, and that both are gradually increasing; (5) that at this part of its course the Tay runs between well-defined banks on either side, and in the case of both islands the greater body of the water of Tay, divided by the said islands, goes down the southern channel, i.e., the defender's or Aberfeldy side; (6) that the tendency that the greater body of the water shall go down that side is rather increasing by the swift flow of the stream scouring the southern channel and undermining the southern bank, which is to some extent of clay and soft material, and in the case of the bank above the Taybridge Island is specially exposed to such action by a bend in the stream; (7) that both islands lie rather to the north side of the middle of the channel as defined by said river banks, and that a line drawn down the channel of the river equidistant between said banks will pass longitudinally through each of said islands; … (10) that with regard to the Taybridge Island, which is about 645 feet long at its longest part and 238 feet 6 inches at its broadest part, the channel on the north is during dry weather dry or apparently dry, with a certain amount of percolation through the gravel, and also with a certain amount of dead or back-water standing at the upper end; (11) that this condition of the stream may last for about two months in many seasons, but in others, as for example throughout the year 1900, it does not exist at all; (12) that at times when the river is ordinarily full there is always a current down the north channel, and a great body of water passes down it whenever the river is in spate; … (17) with regard to Dunskiag Island (which is about 1400 yards higher up the river than the Taybridge Island, and is about 717 feet long at the longest part and 114 broad at the broadest part), that the northern channel is practically never dry, but always carries a considerable amount, and at times a great body of water … With these findings of fact—Finds as matter of law (1) that where a river flows between well-defined banks, as described in

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said findings of fact, the manner of ascertaining the medium filum in fixing the marches between two proprietors having respective rights usque ad medium filum, is to take the centre line of the bed or channel in which the water ordinarily runs between said banks, as shown by the permanent marks made by it, and to draw such line through any sand or gravel banks such as constitute the Taybridge and Dunskiag Islands, without carrying it round that particular channel in which for the time the greater body of water is flowing: Therefore repels the pursuer's pleas-in-law, and assoilzies the defender from the conclusions of the action: Finds the defender entitled to expenses,” &c.

The pursuer appealed to the Sheriff ( Jameson), who on 30th March 1901 adhered to the interlocutor of the Sheriff-Substitute.

Note.—.… “This is a question of a disputed boundary, and the pursuer maintains, in the first place, that, looking to the circumstances of the case, the alveus of the river Tay at the places in question must be held to be confined to the channels between the south sides of the islands in question and the southern bank of the river, and he relied upon the case of Wedderburn v. Paterson, 2 Macph. 902, and especially on Lord Barcaple's observations on page 906. With regard to these observations, I may remark, in the first place, that they are obiter, and in the next place, that the case there under consideration was one of salmon-fishings and tidal waters. On these and other grounds, I consider the observations founded on inapplicable in the present case. Counsel also referred to the case of Lord Zetland v. Glovers' Incorporation of Perth, 8 Macph. (H.L.) 144; but, again, that case referred to salmon-fishings and tidal waters, and in my opinion does not give any assistance in considering the circumstances of the present case. Counsel for the defender referred to what strikes me as a very sensible definition of the alveus of a river, taken from the American Reports, and quoted in the case of Hudson v. Ashby, L.R. (1896), 2 Ch. at p. 25—“The bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to maintain it at its average and mean stage during the entire year without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.” This definition, which I think is sound, would, when applied to the facts of the present case, include the whole of the bed of the Tay between the north and the south banks thereof, including the islands at the places in question; and the medium filum would pass down through the islands in the line shown as the division of the parishes of Weem and Dull on the Ordnance Survey map, No. 7 of process, and this line in my opinion forms the true boundary between the pursuer's and the defender's properties at the places in question. Defender's counsel also referred to the case of Gibson v. Bonnington Sugar Refining Co., Ltd., 7 Macph. 394, and particularly the remarks of Lords Cowan and Benholme on p. 399. So far, then, as the pursuer's claim is founded on the rule of law applicable to the case of two properties having a river as their mutual boundary, I am of opinion that this case fails on the facts to which the rule of law falls in the present case to be applied, in respect that neither of the islands in question lies wholly to the north of the medium filum of the river Tay.” ….

The pursuer appealed to the Court of Session, and argued—The Sheriff had adopted a wrong principle in determining the medium filum of the river; he ought to have disregarded the north channel, which was practically dry, and have taken the medium filum of the main stream, in which alone there was a constant flow of water.— Wedderburn v. Paterson, March 22, 1864, 2 Macph. 902, per Lord Barcaple, at p. 906; Earl of Zetland v. Glovers' Incorporation of Perth, July 11, 1870, 8 Macph. (H.L.), 144, 7 S.L.R. 668; M'Braire v. Mather, June 29, 1871, 9 Macph. 913, 8 S.L.R. 601. The Sheriff-Substitute's findings in fact were sufficient to support the pursuer's contention if the law laid down in these cases were applied. The rule adopted by the Sheriff resulted in depriving the pursuer of access to the bank of the main stream, and therefore of exercising his right of fishing at the point in question.

Argued for the defender and respondent—The Sheriff had adopted the correct principle. The cases cited by the pursuer had reference to rights of fishing between ex adverso proprietors, and had no bearing upon the present question, which was as to the boundaries of lands. The alveus of a river was the space between its ordinary banks, and the pursuer was not entitled to disregard a smaller channel— Hudson v. Ashby (1896), 2 Ch. 1; Jackson v. Marshall, July 4, 1872, 10 Macph. 913, 9 S.L.R. 576; Bicket v. Morris, July 13, 1866, 4 Macph. (H, L.), 44, per Lord Cranworth at p. 50, 2 S.L.R. 222, at p. 227; Gibson v. Bonnington Sugar Refining Co., January 20, 1869, 7 Macph., 394; Pool v. Dirom, July 9, 1823, 2 S. 416.

At advising—