Scottish Court of Session Decisions

James Alexander Campbell and others, trustees of the late James Campbell of Tullichewan, raised an action in the Sheriff Court at Dumbarton against John Sweeney, concluding for (1) decree ordaining the defender “to remove from the foreshore on the west bank of the river Leven, or from the portion of the bed of the said river to the middle thereof, ex adverso of the said foreshore forming parts or portions of the estate of Tullichewan belonging to the pursuers, ( a) an iron rod or pin placed by him, or others acting for him or under his instructions, in the said foreshore or in the said portion of the bed of the said river; and ( b) any steam-launch or steam-launches, and motor, rowing, and/or other boats, house-boat or boat-house, or pontoon belonging to or used by the defender, attached to or resting on any portion of the said foreshore, or attached to any part of the said portion of the bed of the said river, or to the said iron rod or pin, or to any fixture which may be substituted for the said iron rod or pin”; and (2) interdict against the defender fixing any rod or pin or any other fixture in the said bank or bed of the river, or mooring or fixing to the said bank or bed, or any fixture therein, any steam-launch or launches, &c.

The pursuers averred that the estate of Tullichewan included the bank and the bed of the river to the middle thereof at the place in question, which was near Balloch, and pleaded, inter alia—“(2) The defender, or others acting for him or under his instructions, having, without the authority of the pursuers, fixed the iron rod or pin condescended on in the foreshore on the west bank of the river Leven at or near Balloch, or on or to the portion of the bed of the said river ex adverso of the said foreshore forming parts or portions of the estate of Tullichewan belonging to the

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pursuers, and having fixed or attached to the said iron rod or pin or to the said foreshore or bank or to the bed of the said river the house-boat or boat-house or pontoon and other boats, all as condescended on, decree of removal and interdict should be granted as craved, with expenses.”

The defender, who carried on a boathiring business at the place in question, denied that the bank and bed of the river there formed part of Tullichewan, and pleaded, inter alia—“(3) The river Leven being a public navigable river, the defender as a member of the public is entitled to navigate the same and moor his boats therein, and the defender's actings which are complained of being proper incidents of the right of navigation, he should be assoilzied, with expenses. (4) The public having from time immemorial and beyond the memory of man, and in any case for more than forty years, been in use to moor their boats in said river and land and embark from the banks thereof, the defender has right so to do, and the pursuers are not entitled to interdict and removing as craved.”

On 23rd June 1910 the Sheriff-Substitute ( Blair), afrer a proof, pronounced the following interlocutor—“ Finds in fact… (4) that the river Leven is a public navigable river … (11) that … the portion of the foreshore (at the point in dispute)… does not belong to the pursuers … (13) that boat-hiring on the river Leven at this point with the use of the foreshore … has been carried on for more than forty years without let or hindrance by members of the public; (14) that from time immemorial the public have been accustomed to moor rowing and other boats in the bed of the river Leven ex adverso of the foreshore in question; (15) that such right is one of the incidents of navigation in a public navigable river … Finds in law (1) that the pursuers have failed to prove that they have any right to the alveus of the river ad medium filum ex adverso of the foreshore in question; (2) that they have no right to that portion of the foreshore other than as members of the public; (3) that the river Leven being a public navigable river the public have a right as one of the incidents of navigation to keep boats for hire, and to moor such boats in the bed of the stream without the consent of the pursuers: Accordingly refuses the prayer of the petition, refuses the interdict craved against the defender, finds the pursuers liable to the defender in expenses, …”

Note.—“… There is no doubt whatever that the river Leven is a public navigable river ( 4 R. (H.L.) 116); and with that decision is carried to the public all the rights incident to navigation, whatever these may be. It is claimed by the trustees that being owners of the lands of Tullichewan, bounded, they say, throughout by the river, the solum of the stream ad medium filum belongs to them, and that they are entitled to interdict any person from mooring boats in the stream. There is, as far as I know, no direct case in Scotland where this question has been raised, and I cannot say that I am surprised, for I should have imagined that navigation on any water, tidal or otherwise, is impossible without the right to drop anchor in the stream navigated. In my opinion, therefore, the right to moor or anchor a boat is one of the incidents of navigation with which the pursuers or those who derive a title from them cannot interfere— Attorney-General v. Wright, 1897, 2 Q.B., p. 318.

“So also with the question of boathiring. This river has been used for navigation purposes from time immemorial in the course of trade and pleasure, and I do not see what concern it is of the pursuers whether those who have a right so to use the stream make profit out of it or not. It is, in my opinion, immaterial whether these persons carry goods or passengers for hire.…”

The pursuers appealed, and argued—(1) The pursuers' title, at all events as explained by possession, established their property in the bank and alveus, ad medium filum, of the river at the disputed point. There was, in any event, a presumption in their favour— Hindson v. Ashby, 1896, 2 Ch. 1. That gave them a title to object to any interference with the navigation of the river— per Cairns, L.C., in Lyon v. Fishmongers Company, 1876, 1 A.C. 662, at p. 673. (2) The river was admittedly navigable, but that did not make it public for all purposes— Grant v. Henry, January 12, 1894, 21 R. 358, 31 S.L.R. 263, per Lord Kinnear, Lord Kyllachy (Ordinary); Orr Ewing & Company v. Colquhoun's Trustees, July 30, 1874, 4 R. (H.L.) 116, 14 S.L.R. 741, per Lord Blackburn at p. 122, p. 746. The alleged dedication to the public of the bank at the place in question was not proved, and in any case was irrelevant. The defender therefore could found only on his right as a member of the public to navigate the river and on anything that was incidental thereto, i.e., incidental to his own navigation and not that of others— Denaby and Cadeby Main Collieries, Limited v. Anson, 1911, 1 K.B. 171. Now, mooring the raft or pontoon permanently to the bed of the river and attaching thereto or to the bank or bed boats kept for hire was not an incident of navigation by the defender as a member of the public. On the contrary, the permanent mooring of the pontoon and boats in the river was just such an obstruction to the navigation of the river as not even a riparian proprietor, much less a member of the public, was entitled to cause— Orr Ewing & Company v. Colquhoun's Trustees, cit.; Attorney-General v. Terry, 1873, 9 Ch. App. 423; Booth v. Rattè, 1890, 15 A.C. 188. The public right of navigation of such a river was similar to the public right of user of a highway, and that certainly did not include the right to station a vehicle permanently on the highway. The pursuers were therefore entitled to interdict in the terms craved, or in such modified form as to give effect to their contentions. [In the

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course of the argument Lord Dundas referred to Houston v. Barr, 1911 S.C. 134, 48 S.L.R. 262.]

Argued for the defender (respondent) — (1) The pursuer had not established property in the bank and bed of the river at the disputed point. Even if the estate were bounded there by the river, that would exclude the bed and the bank so far as used for purposes connected with navigation, just as in the case of boundary by a canal with a towing path— Fleming v. Baird, January 12, 1841, 3 D. 1015. (2) Even if the pursuers' titles could be construed as including the bank and the bed of the river, they had become public in virtue of the use by the public from time immemorial— Duncan v. Lees, June 20, 1871, 9 Macph. 855, 8 S.L.R. 564, per L.P. Inglis. At all events, the use by the public of the bank and the bed at the place in dispute must be taken into account in considering what the rights of the defender were, especially where the pursuers were founding on alleged possession to explain their titles. Rights of ferry, the right to put mooring posts in the bank of a river, and other rights connected with the use of a public navigable river, might be acquired by user— Duke of Montrose v. Macintyre, March 10, 1848, 10 D. 896, per L.C.J. Hope, at p. 900; Carron Company v. Ogilvie, 1806, 5 Pat. 61; Colquhoun v. Loch Lomond Steamboat Company, 1853, 2 Stuart 214—and possession was a good basis for a right claimed and used as an incident of navigation— Attorney-General v. Wright, 1897, 2 Q.B. 318. But independent altogether of possession the respondent's use of the bank and bed of the river was entirely within his rights as a member of the public. The channel of a navigable river was juris publici— Colquhoun v. Duke of Montrose, &c., 1793, M. 12,827, at p. 12,829—whether the bank and bed were private property or dedicated to the public, and the public had a right to use the river for purposes of navigation and all purposes incidental thereto—Stair, ii, i, 5 (5); Rankine, Law of Landownership, 4th ed., p. 281. The respondent therefore as a member of the public had a right to navigate the river, and it made no difference whether he used that right for profit or for pleasure. Mooring or anchoring was clearly an incident of navigation, and in virtue thereof the respondent was entitled to have the pontoon moored where it was, and the other boats attached thereto or moored to the bank or bed of the river, provided, as was the case here, no unreasonable obstruction to navigation was caused, and the use made of the river was for a public purpose— Rex v. Russel, 1827, 6 B. & C. 566. Even if the respondent was not entitled to have the “pontoon” moored where it was, he could not at all events be interdicted from mooring his boats when not in use.

At advising, the opinion of the Court was delivered by