Annandale and Eskdale District Council v North West Water Authority
| Jurisdiction | Scotland |
| Judgment Date | 03 March 1978 |
| Docket Number | No. 15 |
| Date | 03 March 1978 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Dunpark.
FishingsFishings on the SolwayJurisdiction of English authority to grant licencesLands granted by Royal Charter to burghers of AnnanRiver Eden to south of Charter area changed course to run through Charter areaEnglish water authority claimed jurisdiction to medium filum as exposed at low tide of main channel of River Eden wherever it might be, being the recognised boundary between England and ScotlandWhether Charter area Scottish territoryWhether any part of Charter area could be brought within jurisdiction of water authority by alteration of course of River Eden.
ProcessParticular forms of actionDeclaratorCompetencyDeclarator sought that certain lands Scottish territory and outwith jurisdiction of English water authorityAt time of hearing English authority not exercising jurisdiction as geographical circumstances changedRisk that circumstances might alter againWhether a live disputeWhether declarator would lead to "actual consequence."
The English North West Water Authority (the "water authority") issued licences to fish for salmon and trout within their area under sec. 25 of the Salmon and Freshwater Fisheries Act 1975. The northern boundary of their administrative area in the Solway Firth was the boundary between England and Scotland. Annandale and Eskdale District Council (the "district council"), as successors to the Burgh of Annan, exercised jurisdiction over lands granted by Royal Charter by James V in 1538 and confirmed by Royal Charter by James VI and I in 1612, including the right of salmon fishings which they leased to private individuals.
The channel of the River Eden within the Solway Firth as exposed at low tide originally ran outwith and south of the Charter area. In 1976 the course of the river altered and shifted northwards within the Charter area. The water authority claimed that the boundary between England and Scotland was the medium filum as exposed at low tide of the main channel of the River Eden wherever it might be for the time being. They therefore claimed that their area of jurisdiction was extended to include that part of the Charter area lying to the south of themedium filum of the new channel. They issued licences for fishing in waters to the south of that line. Subsequently the main channel of the River Eden reverted to a course south of the Charter area so that at the time of the hearing the water authority did not claim to exercise jurisdiction within the Charter area. There was a possibility that the river might change course again.
The district council sought declarator that the Charter area was Scottish territory regardless of the course of the River Eden, and interdict against the water authority from exercising jurisdiction over any part of the Charter area which might fall south of the River Eden. The water authority argued that there was now no line dispute so that declarator was incompetent; and that their area of jurisdiction altered with the change in the course of river by accretion.
Held (1) that competency of the declarator depended upon whether the averments of the district council were sufficient to demonstrate a real risk of the main channel of the River Eden reverting at some future date to within the Charter area, and as the river had carved out a new main channel in 1976 there was a real risk of it reverting to that channel at some future date; and that to grant declarator would lead to "actual consequence" because the question whether the water authority could exercise jurisdiction over water passing through the Charter area would be settled once and for all. Dictum of Lord Dunedin in Beardmore & Co. v. Barry 1928 S.C. (H.L.) 47, 52 referred to. (2) That there was a presumption that the lands granted in 1538 by James V to the burghers of Annan were part of Scotland and this was reinforced by the confirmation of the Royal Charter granted by James VI and I in 1612, and the lands there described were Scottish territory; therefore no part of those lands or of the waters flowing over them could be brought within the jurisdiction of the water authority by an alteration in the course of the River Eden, and licences issued by the water authority would not entitle the licensees to fish in the Charter area; and declaratorgranted. (3) That not being satisfied that the Court could effectively enforce any sanction imposed in the event of a breach of interdict by the English water authority and there being no current threat to the rights of the district council, interdictrefused.
Annandale and Eskdale District Council brought an action of declarator and interdict in the Court of Session against the North West Water Authority.
The conclusions of the summons for declarator and interdict were in the following terms:"(1) For declarator that the whole of the area described in the Royal Charter granted by King James VI in favour of the Burgh of Annan under the Great Seal on 10th July 1612, viz. that area beginning at the Sandy Pool, Birkbank, Boucherbeck, which are also included, and ascending to the top of Holinbog, bordering between Dumbretton and Warmanby, to Robgillstrand to the Cairn of Creca, and then to the top or height of Ragitshaws, and from thence to the Three Stones in Sandiegill, and from thence to the Southwood, and from thence by the mire (or well) of Grekane to the Moorbeck running to the sea, and from this to the Altarstane within the Firth of Solway; and from thence to the foot of Annan Water, shore and sand, and so from the foot of Annan Water to the Northburnfoot is Scottish territory and will remain Scottish territory regardless of the course of the River Eden and, as such outwith the jurisdiction of the defenders as water authority for inter alia the coastal areas which lie to the south of the Solway Firth. (2). For interdict against the defenders exercising or purporting to exercise in relation to any part of the said area described in the Royal Charter granted by King James VI in favour of the Burgh of Annan under the Great Seal on 10th July 1612 any of the statutory powers or functions conferred upon them by virtue of the Water Resources Act 1963, the Water Act 1973 or the Salmon and Freshwater Fisheries Act 1975 (other than that contained in para. 39 (1) (a) of Schedule 3 to said last mentioned Act), and in particular against their granting or purporting to grant licences to fish for salmon and trout within said area under section 25 of the Salmon and Freshwater Fisheries Act 1975 and against their instructing water bailiffs or other officers appointed by them to operate within the said area the powers and functions contained in Part V of said last mentioned Act; and for interdict ad interim."
Article 5 of Condescendence and the Answer thereto were as follows:(Cond. 5) "From time immemorial and, to the knowledge of the pursuers, at least from 1942 onwards, the channel of the River Eden within the Solway Firth as exposed at low tide ran outwith the Charter area and to the south of the Altarstane. At or about the beginning of 1976, however, its course suddenly shifted northwards and within the Charter area close to the land on the Scottish side of the firth. The defenders thereupon claimed that the boundary between Scotland and England was the medium filum of the River Eden as exposed at low tide and that accordingly as the channel had shifted northwards so had...
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