Scottish Court of Session Decisions

These are notes of suspension and interdict which have been presented by Lord Lovat, Lord Saltoun, Mr Edward Ellice, M.P., Colonel Fraser Tytler of Balmain, Mr Fountaine Walker of Foyers, and Mr Baillie of Leys, all of whom were interested in the salmon fishings on the Ness and the Beauly. The one note was directed against Archibald Tait, salmon fisher in Inverness, and the other against Patrick Grogan Mackenzie of Flowerburn, in Ross-shire, and his tutors and curators. The prayer of each note was to “interdict the respondent either by himself or others in his employment, or having pretended right or liberty from him, from fishing for and taking salmon or other fish of the salmon kind by means of stake-nets, stell-nets, or other fixed engines or machinery,” in any part of the estuary of the Ness and Beauly. The suspenders averred that this mode of fishing was practised by the respondents, and that it was illegal and injurious to their rights of salmon fishing.

The respondent Tait, in his answers, denied that he used stell-nets; and explained that in fishing he employed the ordinary mode of net and coble, which he thus described:—“One end of the ropes to which the net is attached is held by a man on shore whilst the net is paid out from the stern of the coble. During stormy weather and strong tides a drag or weight is attached to the seaward end of the net for the purpose of keeping it in position, and the coble returns to shore with the rope. The net is not in any way fixed or made stationary.… The above mode of using the net and coble is rendered absolutely necessary on most occasions in consequence of the tides which prevail at the fishings.” He also said that this mode had been in use from time immemorial.

The statement of the other respondent was somewhat different. He said that his mode of fishing, though sometimes called stelling, is fishing by ordinary net and coble:—“In stelling, a shot is made with the ordinary net and coble in the following manner:—One end of the net or the rope attached thereto is held on the shore by a man or two men; the net itself is taken out in the coble and paid out of the stern of the same in the usual way, and the rope attached to the outward end of the net is brought back to the shore by the coble.… The net is not fastened to any stake or fixed or permanent thing in the water, nor is the net itself kept fixed or stationary throughout the operation of fishing, though, for the purpose of steadying the net, a stone or light anchor is sometimes attached to the outward end of the net.”

Lord Barcaple on 25th August 1865 passed the notes in order to try the question whether the mode of fishing practised was illegal, but he refused the interdict in hoc statu. The suspenders reclaimed, and urged that interim interdict should be granted. It was mentioned by the respondents that the salmon fishing had been closed on the day after the interdict was refused, and would not be open again until 11th February next.

The Court after discussion adhered—Lord Deas dissenting.