Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
James, Duke of Hamilton, and Others, v. Neil Macallum and others In-dwellers in Glasgow
Date: 12 February 1724 Case No. No 49.
Heritors infeft in fishings prosecuted parties for fishing in a certain river. Pleaded, the defenders fished in a part of the river not belonging to the pursuers. The pursuers found to have no right to prevent this, although the defenders had no property in the river.
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The Duke of Hamilton and other heritors who were infeft in the salmon-fishing upon the river Clyde, pursued Macallum and others, who came from Glasgow, and fished salmon in the said river.
It was pleaded in defence, That the pursuers had no right to that part of the water in which the defenders had fished, the same belonging to the town of Glasgow, who had a right of fishing, and the defenders had at least their tacit allowance.
Answered for the pursuers, That since the defenders could pretend no right to the fishing themselves, any person who had an express right to the salmon fishing, which was inter regalia, might debar them; because, by their fishing the salmon were diminished and carried off by those who had no title to take them: That the pursuers could even hinder those who had a right to fish from using excess in fishing below them; such as building cruives too high, or otherwise hindering the salmon from coming up the river; much more could they hinder those who had no manner of title to fish; and, in this action, they had the concurrence of the procurator-fiscal for his Majesty's interest.
Replied for the defenders, That any person may fish and take what is nullius, and are restrained by no law, providing they can have access to the river; and since the heritors, upon whose grounds they fish, do give them allowance, no heritor, upon any other part of the water, has a right to quarrel them: That the argument from cruives, which are regulated by express acts of Parliament, could be of no weight against the defenders, who had done nothing prohibited by any law. And as to the concurrence of the procurator-fiscal, it was answered, that his power went no farther than with respect to the penalties in the statutes against fishing in an unlawful time or manner. The Lords found, that the pursuers and fiscal were not entitled to any such action against the defenders, except they had fished upon the pursuer's part of the river.
Act. Arch. Hamilton.Alt. James Boswell.
Fol. Dic. v. 3. p. 367. Edgar, p. 30.
