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Scottish Court of Session Decisions >>
The Town of Burntisland v The Town of Kirkcaldy. [1684] 3 Brn 497 (00 January 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Brn030497-0751.html Cite as:
[1684] 3 Brn 497
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Town of Burntisland v. The Town of Kirkcaldy
1684.
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January 17.—The Burghs of Easter and Wester Kinghorn, alias Bruntisland, give in a libel to the Privy Council, against the Town of Kirkcaldy, craving to have them prohibited from keeping any ferry or passage boats between their Town and Leith, seeing it is no ways a secure port for taking in men and horses, nor are they furnished with so good boats as the pursuers; but the king's subjects are oft in hazard, and many times drowned; and that ferries are juris publici and inter regalia; and that Craig, feud. lib. 1, dieg. ult. reckons angariæ seu parangarice præstationes navium inter regalia; and if the king had his militia forces to transport in haste, Kirkcaldy could not serve him, but only they; et jus portûs non cuivis competit.
Answered,—That Kirkcaldy is a burgh-royal, and by its situation lies on the sea, and so naturally accommodated to serve passengers; and the lieges are best judges of their own conveniences, and ought not to be restricted; and the more passages the better. And for goods and merchandise, if they be landed at Bruntisland or Kinghorn, no cart can well draw them up that steep path and brae near Kinghorn, for they dip so deep in the sand. And they have no other way to serve the east parts of Fife if Kirkcaldy were prohibited. And though the 20th Act of Parliament, 3d James III., and the other Acts relative, only name Kinghorn, and not Kirkcaldy, (this would also exclude Bruntisland, though it be also called Wester Kinghorn, and all the other sea towns there;) yet these acts do not contain a full enumeration of all our ferries; neither can it exclude others who have been in possession, near prescription, of boats not only for transporting and carrying goods, (which is common to all burghs,) but also of ferry-boats for passengers, (though they have not convenience yet for landing horses, but they are mending their harbour;) and that their charters from the king bear the right of a free port; and Bruntisland, at a conference or meeting, offered to allow them one or two boats.
The Privy Council, finding this a case merely civil, and depending on a declarator, referred them to the Session, as the Judge Ordinary for deciding such cases; but recommended it to be summarily discussed there. Vide 8th Feb. 1684.
Vol. I. Page 261.
February 8.—The debate between Burntisland and Kirkcaldy anent the right of Ferry-boats, mentioned 17th January, was reported by Carse; and the Lords being unclear, they nominated the President, Blair, and Carse, to call both parties before them, and study to settle and accommodate the difference betwixt them. But they not having prevailed, the parties at last submitted to Sir John Cunningham: who by his decreet-arbitral restricted Kirkcaldy to four boats, and Dysart to two; Burntisland and Kinghorn having as many as they please. Quær, how far these two burghs may quarrel this decreet, it being only their Magistrates who submitted, who cannot alienate the Town's privileges.
