Henry Trotter of Mortonhall v. John Hume of Ninewells and Others
Date: 9 July 1757 Case No. No 22.
If the proprietor of a salmon-fishing can erect any thing within his own bounds, by which a superior fishing may be hurt?
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Henry Trotter brought an action against Mr Hume of Ninewells and others, 1st, For ascertaining the boundaries of his fishing on the river Tweed; 2dly, For obliging them to remove a gallows and ladder erected at the east end of the island of Annabat, for the purpose of viewing the fish in the river, and to demolish a bridge between the north-bank of the river, and the east or lower part of that island.
The marches were ascertained in consequence of a proof; but with respect to the gallows and bridge, it was argued for the defenders, That as these were erected within the limits of their own property, and were of considerable use to them, they could not be obliged to demolish them, if it were even true, which was not admitted, that they proved hurtful to the pursuer's superior fishing; because every man is entitled to use his own property as he pleases, provided he does not use it in æmulationem vicini; and the only mischief the pursuer suffers by the gallows is, that the defenders are enabled to see the fish, and to catch them, before they pass the boundary.
Answered, The bridge in question is 226 feet long. It is supported by three stone pillars, and thirteen pillars of wood, by which the course of the water is greatly interrupted, and the salmon frightened from coming up that stream; and by the means of speats or land-floods, this channel of the river may, by the obstruction of this bridge, be much filled up, which would lead the salmon into the other branch belonging to a different proprietor. Besides, this is a navigable river, and therefore an article of public right; upon which it is not lawful to erect a private bridge, as is expressly decided in the civil law, l. 4. D. De flum.
With respect to the gallows and ladder, it is a machine erected eighteen feet and a half high, the water near it is shallow, and it is impossible it should fail to frighten the fish when coming up; and the island upon which it is erected is not the separate property of the defenders, but common to them and the town of Paxton; and the gallows stands within the line of the pursuer's fishing.
“The Lords, at first, found, That the defenders had no right to erect a bridge betwixt the banks of the river and the said island; and ordained them to demolish the bridge already erected by them there, and discharged them from erecting any bridge there in time coming; but assoilzied them from the conclusion of the declarator as to the gallows.”
But upon a reclaiming petition,
“The Lords assoilzied the defenders from the conclusion of the declarator as to the bridge, and adhered as to the gallows.”
Act. And, Pringle, Scrymgeour.Alt. Montgomery.
Fol. Dic. v. 4. p. 172. Fac. Col. No 42. p. 69.
