Fleming & Ferguson v Paisley Magistrates
| Jurisdiction | Scotland |
| Judgment Date | 04 June 1948 |
| Date | 04 June 1948 |
| Docket Number | No. 53. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
Statute—Compulsory Powers—Harbour—River—Execution of works—Imperative or permissive—Undertakers empowered to form harbour on river and to improve and "maintain" the navigation—Action by riparian shipbuilders to compel maintenance of navigable channel—Cart Navigation Act, 1885 (48 and 49 Vict. cap. clxxiii), sec. 12.
The Cart Navigation Act, 1885, by sec. 12, enacts that the undertakers "may make and maintain" specified works which include "the widening, straightening, deepening, improving, and maintaining at a depth of 17 feet below high water mark of ordinary spring tides, of the said navigation."
Shipbuilders, who owned the only shipbuilding yard on the river Cart, and who desired to have a navigable channel between their yard and the sea, brought an action against the undertakers for declarator that the defenders were bound to maintain the navigable channel of the river at a depth of 17 feet and for a decree ordaining them to implement their obligation.
Held that there were no grounds for the contention that the provisions of sec. 12 in regard to maintaining the navigation were imperative and not merely permissive, when regard was paid to the general scope and objects of the Act and the context in which the provisions occurred; and defenders assoilzied.
Julius v. Bishop of OxfordELR, (1880) 5 App. Cas. 214,applied.
Fleming & Ferguson, Limited, brought an action against the Provost, Magistrates and Councillors of the Burgh of Paisley, in which the conclusions were:—"(1) For declarator that the defenders are bound by the provisions of the Acts constituting the undertaking of the Cart Navigation, and in particular by the obligation to maintain the navigable channel of the river Cart at a depth of 17 feet below high water mark of ordinary spring tides. (2) For decree ordaining the defenders to implement the said obligation, and for the expenses of the action."
The following narrative of the parties' averments and contentions is taken from the opinion of the Lord Ordinary (Mackintosh):—"In this action the pursuers, who are shipbuilders in Paisley with yards on the river Cart, seek a declarator that the defenders, who are the authority now vested in the statutory undertaking known as the Cart Navigation, are bound by the provisions of the Acts constituting the undertaking and “in particular by the obligation to maintain the navigable channel of the river Cart at a depth of 17 feet below high water mark of ordinary spring tides.” They also ask for a decree ordaining the defenders to implement “the said obligation.” The pursuers, who are now the only shipbuilders on the river Cart, say that the channel of the river, which runs from Paisley north for a distance of some 2 to 2½ miles to where it joins the Clyde, is not deep enough to allow of the vessels they are now building getting down it, and they aver that they can only remain in their present yard “on the footing that a navigable channel is maintained by the responsible authority at or near the statutory depth of 17 feet below high water mark of ordinary spring tides.” The defenders, who admittedly are the responsible authority, say that they have spent close on £40,000 in dredging since the navigation was vested in them in 1938, but it was not suggested on their behalf that the channel of the river from Paisley to the Clyde was kept at a depth of 17 feet. They expressly deny that they are under any obligation to maintain the navigable channel at this depth, and consequently plead that the pursuers' action is irrelevant.
"The point at issue raises a pure question of statutory construction. The pursuers found on the provisions of section 12 of the Cart Navigation Act, 1885,1 and especially subsections
(2), (3) and (4) thereof, and say that these three subsections cover the whole extent of the navigation as now administered by the defenders under the Paisley Corporation (Cart Navigation) Order Confirmation Act, 1938, and that on a true construction of the provisions of said section 12 of the Act of 1885 the defenders are now under a statutory obligation to maintain the navigable channel of the river from the Abercorn Bridge in Paisley down to the Clyde at a depth of 17 feet below high water mark of ordinary spring tides. The Act of 1885 is one of seven former Acts which by virtue of section 7 of the 1938 Act (which is the Act which now regulates the whole navigation other than the Inchinnan Swing Bridge, which had been vested in the Corporation by an earlier Act of 1920) are declared to remain in full force so far as not then or previously repealed. Section 12 of the 1885 Act had not been repealed prior to the 1938 Act and was not included in the Sixth Schedule to the 1938 Order, which sets forth the provisions of the former Acts which on the passing of the 1938 Act were repealed. Section 12 of the 1885 Act is accordingly still in force, and it was not disputed that the works referred to in subsections (2), (3) and (4) of that section, taken together, extend over the whole stretch of the river from Abercorn Bridge to the Clyde,i.e., the whole stretch of the river which is included within the Cart Navigation undertaking. The defenders maintain that the provisions of section 12 of the 1885 Act, though still in force, were and are enabling and permissive only, and that they are under no obligation to do anything whatsoever by reason of the continued presence of this section in the statutory code which they now administer. The provisions of section 12 of the 1885 Act are admittedly expressed in language which is merely permissive in form, but the pursuers contend that the powers given by the section are powers granted by the Legislature for the purpose of effectuating a legal right, and that in these circumstances the powers conferred must be regarded as being coupled with a duty on the responsible authority to exercise them. Whether that contention is well founded or not is the issue for the determination of which the present action has been brought."On 17th March 1948, after a Procedure Roll discussion, the Lord Ordinary assoilzied the defenders.
At advising on 4th June 1948,—
LORD PRESIDENT (Cooper).—The Lord Ordinary has fully narrated the facts and the contentions of parties, and I have little to add to his reasoning and conclusions, with which in the main I am in complete agreement.
The single purpose of this action is to compel statutory undertakers to execute one of the works authorised by a private Act. It is not anactio popularis, nor is it brought by or with the concurrence of the Lord Advocate in the public interest. The pursuers are one of the riparian traders on the river Cart, the only firm of shipbuilders on the river, and their declared object is to obtain at the expense of the defenders facilities for bringing down the river the ships which they build.
So far as I am aware, no such action has been attempted since the middle of the 19th century, when the "railway cases" in Scotland and England (two of them in the House of Lords) laid down the broad principle that in general an action will not lie to compel the construction of such works. This rule is stated in many textbooks, notably in
Constable, Beveridge and Macmillan on Provisional Orders (p. 131), and the authors of that work add that the rule is not confined to railways but equally applies to all kinds of undertakings, the compulsory powers for which are similarly expressed. That is the conclusion which I should myself have drawn from the decisions, and it is the conclusion which has since been accepted in practice. Such private Acts are now legion; and for generations they have conformed, more or less closely, to a uniform pattern of model clauses—a power to make the authorised works in the lines and according to the levels shown on deposited plans and sections, a power to enter upon and take lands described in...To continue reading
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