Factual and Procedural Background
The Plaintiffs own both banks, the alveus and the salmon fishings of a stretch of a non-tidal river (“the Knockando stretch”). The Defendants operate a commercial canoe-training centre many miles upstream. By contractual licence with the Forestry Commission they lawfully launch canoes on an upstream loch and, six to ten times each summer season, lead parties downstream past the Plaintiffs’ stretch. The Plaintiffs claimed that canoes disturb salmon and diminish the value of their fishings and therefore sought: (i) declarator of an exclusive right of navigation, and (ii) interdict (injunction) prohibiting the Defendants, their staff and pupils from canoeing through, landing on, or encouraging others to use the Knockando stretch. The Defendants answered that the river is a public navigable river in which every member of the public enjoys a right to pass downstream, and that they therefore cannot be excluded.
After proof, Judge [Lord Ordinary] held that historic use of the river for floating rafts of timber established a public right of navigation dating from at least 1782 (Grant v. Duke of Gordon). The First Division (without Judge [Avonside]) adhered, but analysed the right as a general public right of navigation co-extensive with the physical capacity of the river and not lost by later non-use. The Plaintiffs appealed.
Legal Issues Presented
- Is the relevant stretch of the river subject to a public right of navigation?
- If so, does that right encompass modern canoeing for recreational and commercial training purposes?
- Can a public right of navigation be lost by non-use, and if not, has it in fact been lost here?
- Are the Plaintiffs entitled to declarator and interdict excluding the Defendants absent proof of damage?
Arguments of the Parties
Plaintiffs’ Arguments
- The river is “private”; any historical floating was by private permission and has long ceased (last in 1885); consequently any right has prescribed.
- A public navigation right must arise, and be measured, like a public right of way—i.e. by forty years uninterrupted use between two public termini; those elements are absent.
- Even if a limited public right ever existed it covered only commercial timber rafting, not modern recreational canoeing.
- Without proof of damage the Defendants have no defence to interdict on a private river.
Defendants’ Arguments
- Grant v. Duke of Gordon (1782) judicially recognised the river as a public navigable river; the right was then and remains vested in the Crown for the public.
- Navigability in Scots law depends on physical capacity plus historic public use; neither prescription nor dual public termini are required.
- Once established, a public navigation right cannot prescribe by non-use; occasional canoeing since the 1920s negatives any alleged total abandonment.
- The right of navigation covers any craft the river can carry; canoes draw far less water than the historic rafts and are plainly within the right.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Grant v. Duke of Gordon (1782) 2 Pat 582 |
Historic recognition of a public right to float timber downstream; establishes river as public navigable. |
Treated as authoritative that the river carried a public navigation right which, although regulated in 1782, still subsists. |
| Colquhoun’s Trs. v. Orr-Ewing (1877) 4 R 344; 4 R (HL) 116 |
Distinction between tidal and non-tidal rivers; public navigation analogous (but not identical) to a public right of way. |
Used to reject need for dual public termini and to affirm that ownership of alveus in non-tidal parts does not defeat public navigation. |
| Leith-Buchanan v. Hogg 1931 SC 204 |
Left open whether prescriptive possession is essential to public navigation; emphasised physical navigability. |
Cited to support view that capacity plus historic use suffice; no prescriptive loss by non-use. |
| Mann v. Brodie (1885) 12 R (HL) 52 |
Nature of public rights of way on land; forty-year non-use may extinguish such rights. |
Contrasted to show that river navigation, unlike land way-leaves, is not lost by mere non-use. |
| Morgan v. King (1866) 35 NY Rep 454 (US) |
Public right exists if stream can ordinarily float produce; actual use evidences navigability. |
Relied on as persuasive analogy demonstrating that seasonal raft navigation suffices for public status. |
Court’s Reasoning and Analysis
1. Historic Use and Navigability: The court accepted the Lord Ordinary’s findings that for at least two centuries, until 1885, large timber rafts (drawing c. 20 inches) were habitually floated from the upper river, past Knockando, to the sea. That satisfied the classic Roman-law based criterion of navigability—capacity plus long-standing public use for downstream carriage of produce.
2. Nature of the Right: Drawing on institutional writers (Erskine, Hume, Bell) and subsequent authorities, the court held that such use stamps the waterway with the character of a public navigable river; the right is one held inter regalia by the Crown for all subjects. It is not a servitude and is not constituted, nor can it be lost, by the rules applicable to land-based rights of way.
3. No Prescriptive Extinction: Because the right is public and paramount, mere non-use—even for a period exceeding forty years—cannot extinguish it. In any event occasional canoeing since the 1920s negatived total abandonment.
4. Extent of the Right: The measure is the physical capacity of the river. Canoes, drawing about six inches and causing minimal disturbance if navigated responsibly, fall well within that capacity; the right is not restricted to commercial rafting but extends to any ordinary craft suitable to the water.
5. Ancillary Issues: Dual public termini, and proof of commercial purpose, are not pre-conditions to the public right. Damage to riparian fishings, while regrettable, does not curtail the paramount public right so long as navigation is exercised without emulous intent.
Holding and Implications
Appeal dismissed. The river in question is a public navigable river; the Defendants, as members of the public gaining lawful access upstream, may canoe through the Plaintiffs’ stretch. The Plaintiffs are not entitled to declarator or interdict excluding such navigation.
Implications: The decision re-affirms that long-standing downstream flotation is sufficient to confer a permanent public navigation right over non-tidal Scottish rivers and that such right is not lost by subsequent inactivity. Recreational canoeing is a legitimate exercise of that right. While the judgment does not impose statutory regulation, it leaves open the possibility of legislative or consensual arrangements to minimise conflict between canoeists and riparian fishery owners.