The Lord Advocate, Pursuer (Respondent) v. The Trustees of the Clyde Navigation, Defenders (Reclaimers)
- United Kingdom
- Type of court
- Nov 25, 1891
- UNEP, InforMEA
- Court name
- Court of Session
- Seat of court
- Lord Kyllachy
Lord Rutherfurd Clark
- Reference number
- 19 Rettie 174
- The Trustees of the Clyde Navigation (the Defenders) were dredging large quantities of material from the bed of the Clyde River in order to create a navigable channel in the River. The material consisted of earth, gravel, stones, mud and sewage of several thousands tons per year. The Defenders were carrying the material to Loch Long, a sea loch, and deposited it there.
In 1891, the Lord-Advocate raised an action for the Crown against the Trustees claiming that the narrow seas surrounding the Kingdom of Scotland, and the bed and solum thereof, belonged to Her Majesty jure corone, subject to the public rights of navigation and fishing. Loch Long was a part of these narrow seas. The defenders had no right to deposit the said material in any part of the seas of the Kingdom of Scotland, and particularly in Loch Long, or on the bed or solum thereof.
The defenders did not deny the facts alleged against them, but they stated that they had made investigations that showed that their operations did not alter the purity of the waters of the Loch. Besides that they alleged that the Crown was not really acting in the public interest, but in the interest of the persons living on Loch Long. The defenders did not interfere with any right of the Crown.
The Crown contended that it was not necessary that any damage was being done by the acts of the defender, but that the Crown, holding Loch Long as part of their Realm, had a title to prevent any interference with it if no legal right existed to justify such interference.
The Court decided that Loch Long was part of the country as it practically enclosed it and shut it off from the ocean except at its outlet; it therefore belonged to the realm.
It also analyzed the argument by the defenders that the territorial right of the State was not a proprietary right as such, but was a right of mere protectorate, for the purposes of fishing and navigation. Therefore the Crown could not exercise the same right to prevent trespass as an ordinary proprietor of a part of the solum of the country.
The Court held that there were no authoritative treaties or decisions confirming this point of view, and the Crown was not limited to a duty of police as described by the defenders. The right of the Crown in Loch Long and its solum was a right of property, and the Crown therefore was entitled to stop any intruder from coming to Loch Long. The Crown could exercise this right without any allegation of injury, actual or prospective, to the public uses of the area.
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