Wills' Trustees v Cairngorm Canoeing and Sailing School Ltd

The existence of a public right of navigation in a non‑tidal river depends on the river's physical navigability together with demonstrated public use of the river for navigation or a useful navigational purpose. Such a public right may include downstream-only flotation and navigation, and extends to craft appropriate to that navigability (including canoes here). Once established the public navigational character is not lost merely by a period of non‑use unless the river's physical navigable capacity ceases or Parliament intervenes.

The proprietors of the Knockando stretch of the River Spey sought declarator and interdict to prevent a canoeing school taking parties by canoe through their stretch. The defenders relied on a public right of navigation asserted to derive from historical floating/navigation on the Spey and from the celebrated 1781–82 litigation culminating in Grant v Duke of Gordon. The Lord Ordinary found a public right of navigation covering canoeing; the First Division upheld a narrower public right covering canoeing; and the House of Lords (leading speech by Lord Wilberforce) dismissed the appeal and upheld the respondents' right to navigate by canoe on the facts.

1. Disposition: Appeal dismissed. The House of Lords upheld the view that, on the facts and authorities, the Spey at Knockando is subject to a public right of navigation which, within the river's physical capacity, covers canoeing (per Lord Wilberforce; concurred by Lord Fraser, Lord Hailsham, Lord Salmon and others).
2. Meaning of Grant v Duke of Gordon (1781–82): The historical decision was treated as recognising a public right to float/ navigate downstream on the Spey; later text‑writers and contemporaneous notes of the judges support that construction (per Lord Wilberforce and Lord Fraser).
3. Tests for public navigation in non‑tidal rivers: the court adopted a two‑part practical test—(a) the river's physical capacity to accommodate the navigational use claimed; and (b) sufficient actual/public use demonstrating that the waterway has served a useful public navigational purpose (per Lord Wilberforce; the Inner House identified similar elements but added policy commentary which the House did not adopt as a separate legal test).
4. Scope of the right: The public right of navigation takes its measure from the river's physical navigability; it may include downstream‑only floating or navigation by rafts and, accordingly, canoeing falls within the right where the river's capacity and historical use so indicate (per Lord Wilberforce and Lord Fraser).
5. Permanence: Once established the public navigable character of a non‑tidal river is not lost simply by a period of non‑use; loss would require material change in physical capacity or repeal by Parliament (per Lord Wilberforce; agreeing with the Lord Ordinary that non‑use since c.1885 did not extinguish the historic right).
6. Practical consequence and remedy: On the facts the respondents were entitled to navigate by canoe through the Knockando stretch; interdict was refused in respect of canoeing. The court refused to impose court‑made regulations of public exercise of the right and indicated Parliament would be the appropriate forum for general regulatory schemes.

• First instance (Outer House, Court of Session): Lord Ordinary granted absolvitor on main conclusions (reported in the judgment).
• First Division (Inner House, Court of Session): motion to review refused, interlocutor of Lord Ordinary adhered except as to certain matters; proceedings continued on regulation point (14 Feb 1975).
• House of Lords: appeal heard Nov–Dec 1975; judgment delivered 3 March 1976 (appeal dismissed).