Session Cases At 200: A River Runs Through It

Session Cases At 200: A River Runs Through It

Lord Tyre

From swerve of shore to bend of bay, brings us to Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd – Lord Tyre’s favourite of the Session Cases. Vote for your top three here.

In about 1972 the instructors and pupils of the Cairngorm Canoeing and Sailing School began to venture down the River Spey from Loch Insh as far as Aberlour in the county of Moray. In so doing they paddled through a stretch of salmon fishings at Knockando owned by the Rt Hon George Neville Clive, Second Baron Wigram of Clower and others, the Trustees of Major Hugh Wills. The trustees’ consequent and unsuccessful application for interdict reached the House of Lords four years later, where it engaged the Judicial Committee for a full two weeks.

The report of Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd at 1976 SC (HL) 30 conveniently includes all of the judgments in the Outer House (Lord Maxwell), the 1st Division and the House of Lords. It is rich in historical detail. The issue was whether the Spey was a public navigable river. Timber had been floated down river from Rothiemurchus Forest for at least 40 years during the 19th century. Timber rafts were sometimes used by local inhabitants to transport butter, cheese and themselves. There was sporadic use by picnickers and mussel pearl fishermen.

For their part, the trustees produced evidence that the passage of the canoes caused the fish to suffer a sort of PTSD that induced them to lie still in deep pools, rather than coming up to be caught, as they were meant to do.

Citation of authority began with Ulpian in the Digest, and made its way forward through the institutional writers, the French jurist Dalloz, the 18th century cruive (a dyke or weir) fishing practices of the Duke of Gordon, and the commercial use of various Scottish rivers.

The trustees lost at every level, for differing reasons. The House of Lords (including, appropriately, Lord Salmon) held that a public right of navigation could not be lost by non-use, and that use for recreation was as effective to prove navigability as use for commercial purposes. The case is a fascinating illustration of conflict between old and new recreational and economic activities, and I commend it to anyone interested in Scottish legal and cultural history.

When I visited the café at the Loch Insh Outdoor Centre a few years ago, they had on the wall a splendidly witty poem about the Wills’ Trs litigation, written by, I think, one of the solicitors involved in the case. Does anyone know if it is still there, or where a copy could be obtained?

Finally, the case has law reporting interest. Frequent reference is made to the unreliability of the reporters of cases in Morison’s Dictionary. And Lord Hailsham mentions the violent objection of 18th century Scottish judges to law reporting: according to Lord Cockburn, in what could be adopted as an advertising slogan by the Scottish Council of Law Reporting, Lord Esgrove exclaimed “The fellow takes doon ma very words”!

Lord Tyre is a Senator of the College of Justice and member of the Scottish Council of Law Reporting

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