Menzies v Breadalbane
| Jurisdiction | Scotland |
| Judgment Date | 01 November 1901 |
| Date | 01 November 1901 |
| Docket Number | No. 15. |
| Court | Court of Session |
Lord Trayner, Lord Justice-Clerk, Lord Young.
PropertyRiverMedium filumMain and subsidiary channels.
Held that where the alveus between the banks of a river is divided by an island or islands into a main and subsidiary channels, the subsidiary channels being at times dry but carrying water when the river is in its ordinary state, the medium filum of the river is the centre line of the alveus from bank to bank, and not the centre line of the main stream.
This was an action of declarator raised in the Sheriff Court at Perth by Sir Robert Menzies of that Ilk, Baronet, against the Marquess of Breadalbane, to have it found and declared that two islands or banks in the river Tay, called the Taybridge and Dunskiag or Farochil islands respectively, belonged to the pursuer as part or part and pertinent of his barony of Menzies in the county of Perth.
The pursuer averred that the islands were situated ex adverso of the pursuer's and defender's lands, the pursuer's lands being on the north side of the river and the defender's on the south; that the islands were on the pursuer's side of the river, the main channel and current of which was entirely on the south side, i.e., the defender's side of the islands; that the channels on the north side of the islands were only subsidiary, forming no part of the true course of the river, and that they were dry in summer or when the river was low.
He further averred and pleaded that the islands had been exclusively possessed as part and pertinent of the barony of Menzies from time immemorial, or at least for the prescriptive period, but it is sufficient for the purposes of this report to say that the averments were denied by the defender, and, after proof, were held by the Court not to be established.
The defender averred that the islands were in the alveus of the river, of which the northern channels formed part of the true course; that the pursuer and defender had each right usque ad medium filum; that the medium filum was the centre of the alveus, and that a considerable portion of both islands lay to the south thereof and consequently belonged to him.
The pursuer pleaded, inter alia;(1) The said islands being part of or parts and pertinents of the pursuer's barony of Menzies, he is entitled to decree as craved. (2) The said islands, or one or other of them, being situated on the north or Menzies side of the medium filum of the river, the pursuer is entitled to decree as craved.
The defender pleaded, inter alia;(2) The defender is entitled to absolvitor in respect (a) that the said islands are situated in the alveus or channel of the river dividing the parties' lands; (b) that the alveus is the property of the parties ad medium filum; (c) that the islands belong in property to the parties according to that line; and (d) that part of each of the said islands is situated on the defender's side of the said medium filum, and is his sole property.
The Sheriff-substitute (Sym) allowed proof, the import of which, so far as relevant to this report, is embodied in the following interlocutor issued by him on...
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