Simpson v Attorney General

Aug. 5. LORD MACNAGHTEN. My Lords, before the incident occurred which led to the present action, the navigation of the river Ouse between St. Neots and St. Ives, a distance of about sixteen miles, was maintained by means of six locks. Below St. Ives it was maintained by means of a lock built in a stanch stretching across the river, and situated about half a mile below St. Ives, where the passage of boats and vessels used to be impeded by shallows and “hills of gravel,” and where the tide now ends. The six locks were constructed under the authority or under the cover and protection of certain letters patent in the early part of the seventeenth century by a predecessor in title of the appellant Simpson. He put them upon land of his own, which he had acquired for the purpose. By the use of these locks boats and vessels were enabled to pass from one level to another, and so to get round six ancient mill-dams which penned back the water, deepening the reach above, but forming an obstruction in the course and channel of the river and interrupting the waterway. The St. Ives stanch was originally constructed in the same century, but at a later date, by the then owner of the navigation for the benefit of the traders on the river, who agreed to pay a charge or toll on going through the stanch. It was afterwards dealt with by an Act of Parliament, passed in 1720 (6 Geo. 1, c. 29), which authorized one Henry Ashley, who was also a predecessor in title of the appellant Simpson, his heirs and assigns, to rebuild and improve the stanch, and then to take a toll over and above the toll due or payable before the Act was passed. The Act of 1720 also authorized and empowered Henry Ashley, his heirs and assigns, to improve the passage for boats and vessels on the river within the county of Huntingdon from a place called Hollowell, below St. Ives stanch, right away up to St. Neots, and for that purpose to cleanse, scour, and deepen the river where and as often as occasion should require.

In the early days of the navigation after the six locks were built there was a good deal of trouble and litigation in connection with them, principally about the charges demanded from the traders on the river. Ultimately the charge or toll for passing through the six locks came to be settled at the uniform rate of 3d. per customary load at each of the six locks. Thenceforward until the introduction of railways the navigation appears to have been a profitable concern, and naturally enough no attempt was ever made to unsettle the toll. When railways were introduced, traffic on the river fell off, and the owners of the navigation had to lower the toll by allowing an increase in the weight or quantity of the customary load.

In the year 1893 the appellant Simpson bought the navigation. Everything was then out of repair. He paid several thousands for his purchase. He had to spend about 10,000l. more on the property to put it in order. But he soon found that there was little or nothing to be made of it. Trade on the river was dying out. At the same time there was a growing increase in pleasure traffic. But the owners of pleasure-boats protested against paying any toll, and evaded payment when they could. At last, in self-defence, Simpson took the step of shutting up the six locks and the stanch. Thereupon this action was brought. The Attorney-General at the relation of the county council of Huntingdonshire, and the county council of Huntingdonshire, came forward as plaintiffs. Simpson was made defendant. The plaintiffs claimed a declaration that the six locks and the stanch with their appurtenances formed part of the river Ouse, that the Ouse from St. Neots to the sea was a public navigable river, and that all members of the public were entitled to pass through the six locks and the stanch, but, as regards the passage of boats and vessels laden with goods or merchandise, subject to the statutory toll mentioned in the Act of 1720 in respect of the passage through the stanch, and subject to the toll of 3d. per customary load in respect of the passage through each of the six locks. They also asked for a declaration that the defendant was bound to maintain all the six locks and the stanch in an efficient state and condition, and to provide attendants and all appliances necessary to work the same and to enable the public navigating the river to have free and convenient passage through the same, subject only in the case of boats laden with goods and merchandise to the tolls aforesaid. The plaintiffs also sought to have the rights which they claimed enforced by injunction.

Farwell J. decided that the Ouse, including the six locks, the stanch, and their appurtenances, was a public navigable river, and that all members of the public were entitled to pass through the six locks without paying any toll whatever, and through the St. Ives stanch on payment of the statutory toll in the case of boats and vessels laden with goods or merchandise; but he held that the defendant was not bound to maintain or work any of the six locks or the stanch, and he granted an injunction to restrain the defendant from obstructing or interfering with any of Her late Majesty's subjects in the exercise of their rights as thus declared. He gave no costs to either side.

The defendant appealed from the whole judgment, except from the order as to costs. The plaintiffs did not appeal.

The Court of Appeal differed from Farwell J. on many points of importance, and varied his order. As varied, the order is substantially in terms of the plaintiffs' claim, except that the tolls payable in respect of the six locks are declared to be “such tolls, rates, and charges as may from time to time be reasonable, that is to say, such tolls, rates, and charges as will from time to time provide a reasonable profit for the defendant beyond the necessary cost of repair and maintenance.” As regards the six locks, the declaration of the Court is that the defendant is bound to maintain them in an efficient state and condition, and to provide attendants and all appliances necessary to work the same. As regards the St. Ives stanch, the declaration is that so long as the defendant takes the statutory toll in respect thereof he is bound to maintain and repair it, without prejudice to any question as to his obligations in respect thereof, in the event of his ceasing to take the statutory tolls. An injunction was granted to enforce the rights so declared, but no costs were given to either side.

From the order of the Court of Appeal both parties have appealed to this House. The defendant appeals from the whole order. The plaintiffs seek to omit the words “such tolls, rates, and charges as may from time to time be reasonable,” and to limit the toll to a toll of 3d. for each of the six locks. And they appeal against the order as to costs.

Pausing here for a moment, I would ask your Lordships to consider the practical effect and necessary result of the order of the Court of Appeal. The litigation, so far, has been disastrous to Simpson. The judgment of Farwell J. stripped him of every particle of beneficial interest in the six locks. But stripped and despoiled as he was he was yet allowed to go away scot-free. Not content with that privilege or immunity, he appealed to the Court of Appeal. There he fared worse. He is now under orders to repair, maintain, and work the locks, to keep a staff of attendants, and to provide all necessary appliances for the purpose. True, he may take reasonable tolls, such tolls as will “provide a reasonable profit beyond the necessary cost of repair and maintenance.” I am sure the Court was serious. But where is the profit to come from? Pleasure-boats are to pay no tolls. The present tolls on goods and merchandise are not enough to keep the navigation open. Will...