Where trustees were appointed by statute for the purpose of improving the navigation of a river, by deepening and widening and artificially confining its channel, and by other operations; and they and their predecessors had prosecuted this work for more than a hundred years under a series of statutes; and their subsisting act empowered them for the purposes of their undertaking ‘to dig or cut the soil, ground or banks of the said river, and soil, sand or gravel in the bed thereof, and to lay the same upon the most convenient banks of the said river,’-a riparian proprietor raised an action of declarator against them, seeking to have it found, inter alia, that they were bound to fill up the foreshore between the banks of their artificial channel and the original river’s banks to the level of his adjacent lands, or at all events above the level of spring tides, by depositing thereon the stuff dredged from the river, or otherwise, in order to give him access at all times to the river, and to obviate a nuisance created by deposit from the tide upon the above mentioned parts of the foreshore, and occasioned as alleged by the operations of the trustees; and likewise brought a suspension and interdict against the trustees to prohibit them taking the soil and mud dredged from the bottom of the channel out to sea, instead of depositing it upon the adjacent banks with a view to making them up to the required level.
Held (1) that in the circumstances the exercise of one power conferred upon the trustees by these statutes did not alter the character of the other, or convert it into an ancillary or dependent obligation: but that having cut and dug away, or otherwise removed soil from the bed of the river, they were not obliged to deposit it on its banks, but had a discretion as to its disposal uncontrolled by the fact that power to dispose of it in a particular way was attached to the power to remove it.
Held (2) that the selection of one particular method of operation, and its practice even through a long course of years, by trustees empowered by statute to execute a work of public importance, even where that method is recognised in the empowering statute, does not tie them down to adhere to that method as the only competent method of procedure, or entitle persons interested to object to a subsequent alteration of plan in the discretion of the trustees; and that in the particular case, though the method suggested by the act had been employed for many years, and was well known to Parliament when passing the present empowering acts, yet the trustees’ discretion was as wide as when they first adopted it.
Held (3) that the obligation imposed by ss 13 of the original Clyde Navigation Act of 1758 upon the trustees, to ‘raise and strengthen,’ where necessary, as well as to ‘maintain and repair’ the banks of the river, was continued down to and by the Act 1840, but was abrogated, so far as the future was concerned, by the Act of 1858; with this exception, that under ss 44 of this last Act the obligation subsisted so far as the repairing of damage occurring to the banks subsequent to 1858, but traceable to operations performed under the previous Acts.
Observed per Lord Chancellor, that though, where parties empowered by statute, as above- mentioned, have kept within the limits of their authority, if injury result, and the statute makes any provision for its redress, redress must be sought in the statutory way; while if the statute do not make any provision for relief, it must remain without remedy; still that injury arising either from a malfeasance contrary to the powers of the Act, or a nonfeasance, according to the obligations and duties imposed by the Act, may be sought to be redressed in an ordinary action, if the statute do not provide for it a special remedy.
Citations:
[1871] SLR 8 – 454
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Scotland
Cited by:
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 February 2022; Ref: scu.575987
