The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to temporary anchorage in the course of passage and that it did not extend to quasi-permanent anchorage between voyages.
Held: A right to lay up a vessel between voyages is a not necessary incident of a public right of navigation: ‘the public right of navigation is restricted in the manner for which the pursuers contend. In my opinion, the earliest point of time when navigation begins is when a vessel is being prepared for a voyage, and navigation ends when the ship is left, either unmanned or with a caretaker crew, at the end of a voyage. A ship moored between voyages is not being navigated.
The laying up of a vessel is, in my opinion, an incident of ownership; it cannot properly be regarded as a necessary incident of the right of navigation.’
Judges:
Lord Dunpark
Citations:
1976 SC 161
Jurisdiction:
Scotland
Cited by:
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 04 December 2022; Ref: scu.260032