Scottish Court of Session Decisions

This was a litigation between Sir John Stuart, one of the Vice-Chancellors of England, and Lieu tenant-Colonel Alexander Cockburn M'Barnet, with reference to the right of salmon fishing in the river Balgy in Ross-shire. Sir John Stuart is proprietor of the estate of Balgy, and M'Barnet is proprietor of the lands of Torridon, between which the river Balgy runs. The proceedings commenced by a petition for interdict in the Sheriff Court of Ross-shire presented by M'Barnet against Sir John Stuart and his son. In that petition M'Barnet narrated that he was heritable proprietor of the estate of Torridon and of the half of the salmon fishings of the water of Balgy and linn thereof, and that he had by himself and his authors possessed the right of salmon fishing under titles from time immemorial, and that Sir John Stuart and his son had illegally commenced to fish for salmon from the Torridon side of the river, and ex adverso of his lands, and craved interdict against their so doing, and against their invading his right to half of the salmon fishing of the river. Interim interdict was granted, and a record was thereafter made up, in which the parties condescended upon their titles and possession of the fishing. M'Barnet, under titles which were derived from a subject superior, was infeft in the lands of Torridon and others with the “salmon fishings of the water of Torridon and Lochanaskaith, and the half of the salmon fishings of the water of Balgy and linn thereof,” &c. Sir John Stuart, on the other hand, held under Crown titles, which gave him right to the lands of Balgy cum piscatwnibus. M'Barnet averred that under his titles he and his authors had from time immemorial possessed and enjoyed the one-half of the salmon fishings of the Balgy from the Torridon side, both by net and coble and rod and line, and every other lawful mode of fishing, and without challenge. Sir John Stuart, on the other hand, maintained that from the narrowness of the stream and the steepness of the banks on the other side, the whole Simon fishing had been conducted and exercised from and ex adverso of the lands of Balgy—that the river could not be fished by net and coble from the opposite side, that it was so narrow that it could be swept by the cast of a salmon rod, and that he and his predecessors had had from time immemorial the exclusive possession of the fishings of the river, and had exercised the right of salmon fishing in it to the exclusion of all other persons.

The Sheriff-Substitute having allowed a proof, the interdict process was advocated under the provisions of the 6 Geo. IV., c. 120, sec. 40.

In the meantime, however, an action of declarator had been raised by Sir John Stuart against M'Barnet, in which he sought to have it found and declared that he had the only good and undoubted title to the lands of Baly, in the county of Ross, with the salmon fishings in the river or water of Balgy, and that he had the sole and exclusive right and privilege of fishing for salmon, and fish of the salmon kind, in the said river or water; or otherwise, that he had right to the salmon fishings in the said water or river ex adverso of the said lands of Balgy, and that he had good right and title to fish for salmon, and other fish of the salmon kind, in th said water or river ex adverso of his own lands, and that by net and coble, rod and line, and every other legal mode; and further, that it ought and should be found and declared that the defender had no right of salmon fishing in the said water or river, and that he was not entitled to fish therein for salmon, or fish of the salmon kind; and that the defender should be decerned and ordained to desist and cease from fishing in the said river with rods, nets, leisters, or any other engines or instruments whatever, in all time coming; and should be prohibited, interdicted, and discharged from fishing in said water or river for salmon, or other fish of the salmon kind, in all time coming, and from troubling or interrupting the pursuer in the peaceable possession and exercise of his right of salmon fishing in the said river or water.

A record was made up between the parties in this action, in which the statements as to rights and possession which had been made in the interdict were substantially repeated. The pursuer claimed the exclusive right to fish in the river; alleging that the defender held under titles from a subject superior who had no right of salmon fishings in his title and could not therefore legally give such a right; and that the modes of fishing which could be practised from his side of the river were not recognised by law as possession on which a title could be founded. The defender denied these statements.

Upon this state of the record the pursuer, inter alia pleaded in the declarator (which became the leading process) as follows:—1. The pursuer and his predecessors having had, under their titles, exclusive possession of the salmon fishing in the said water or river, and there being no salmon fishing ex adverso of the defender's lands by any mode of fishing which is legal or recognised by the law as a possession on which a title can be founded, the pursuer is the sole and exclusive proprietor of the same, and is entitled to decree of declarator to that effect. 2. The defender has no right to the salmon fishing in the said water or river, or to any part thereof, in respect (1) that he has not a Crown grant of salmon fishings; and (2)that he and his ancestors have had no possession of the said salmon fishings, or any part thereof. 3. At all events, in respect of the pursuer's titles, and of the possession which has followed thereon, the pursuer is entitled to decree of declarator, in terms of the alternative conclusion of the summons; and in respect that the defender has no right to salmon fishings in the said river, the pursuer is, in any event, entitled to interdict as craved.

The defender pleaded, inter alia—1. The pursuer has no title to sue the present action, except in so far as he seeks, under the terms of the second or alternative conclusion of the summons, to establish a right by prescription to one-half of the salmon fishing of the water of Balgy, being the salmon fishing ex adverso of his own lands, and from the side or bank of the river on which they are situated. 2. The pursuer having only a grant of lands cum piscationibus, has no title under which he could by prescription acquire a right of salmon fishing in the water of Balgy, except in

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connection with his own lands, and from the side or bank of the river on which they are situated, and he could only acquire such limited right of salmon fishing by forty years' possession thereof, by net and coble. 3. The pursuer having no title to lands or fishings on the Torridon side of the Balgy, and there having been no possession, as averred by the pursuer himself, by him and his authors, of salmon fishing from that side by net and cable, the present action, in so far as it relates to the salmon fishing from the Torridon side of the Balgy, and to the defender's exercise thereof, is groundless. 4. The defender, in virtue of his titles, has the exclusive right to half of the salmon fishing of the water of Balgy, being the salmon fishing ex adverso of the lands of Torridon, and from the Torridon side of the said water. 5. At any rate, the defender, in virtue of his titles, and the possession which has followed thereon, has exclusive right to the said half of the salmon fishing of the water of Balgy. 6. The pursuer having no right or title to the salmon fishing in the Balgy from the Torridon side thereof, is not entitled to challenge or object to the defender's titles to the said salmon fishing, or to his fishing for salmon ex adverso of his own lands, and from his own side of the river.

In the interdict process Lord Ordinary Jerviswoode (before whom the case came to depend) continued interim interdict against Sir John Stuart and his son trespassing on the lands of Torridon for the purpose of fishing for salmon ex adverso of them, and quoad ultra refused the interdict craved.

This judgment was adhered to by the First Division.

Thereafter in the declarator a proof was allowed the parties of their respective averments, which was taken on commission. Of consent, the proof in this action was held as proof in the process of interdict. The import of the evidence will sufficiently appear from the opinions of the Court as given below.

After hearing parties upon the case and the proof, Lord Jerviswoode in the interdict repeated the foresaid judgment, by which interdict ad interim, had been granted, and found no expenses due to either party. In the declarator, his Lordship found—“1st, That under the titles set forth on the part of the pursuer on the record, he has right to, and is infeft on the lands of Balgy and others, with all right of salmon fishing in the river of Balgy or Balgay, heretofore belonging to the estate of Applecross; and finds that the pursuer and his authors, as proprietors of the subjects above mentioned, did, for a period of forty years and upwards prior to the year 1845, possess and exercise the right of fishing for salmon by means of net and coble, and other legal modes of fishing, in the river or water of Balgy but in so far only as the same runs ex adverso of the pursuer's said lands of Balgy and others. 2d, That the defender is proprietor of, and stands infeft in the lands of Torridon and others, with the ‘salmen fishings of the water of Torridon and Lochanaskaith, and the half of the salmon fishing of the water of Balgy and linn thereof, with houses,’ &c., conform to the writs produced, and which are referred to in the statement of facts on his behalf; and finds that the defender and his authors, for a period of forty year and upwards, under their titles and infeftments in the said subjects, have by themselves, their tenants therein, and others, fished for salmon in the said water or river of Balgy ex adverso of their said lands of Torridon, by means of fishing with rod and line and otherwise, and occasionally, but not continuously, by means of net and coble. 3dly, With reference to the preceding findings, finds, in point of law, that the pursuer holds no right and title to fish for salmon in the said river or water ex adverso of the said lands of Torridon, the property of the defender, or to enter on the said lands for the purpose of fishing in the said river or water therefrom, or to interfere with or prevent the defender, by himself, his tenants, and others, from fishing with the rod, or by other legal means, in the said water or river of Balgy, for salmon or other fishes ex adverso of the defender's said lands of Torridon; and with reference to these findings in fact and in law, assoilzies the defender from the first declaratory conclusion of the summons: Finds and declares in terms of the first alternative conclusion of the summons, and quoad ultra dismisses the same: Finds no expenses due to either party, and decerns.

“ Charles Baillie.”

In a note appended to this judgment, the Lord Ordinary, inter alia, stated the following views:—

“The titles of the parties are in pari casu, in so far as neither of them can point to a direct grant from the Crown of salmon fishing. But there is a material difference in favour of the pursuer, as respects legal consequences, between the character of the possession had by him and by his authors as compared with that of the defender, in so far as fishing for salmon on the water of Balgy has been prosecuted on the Balgy (pursuer's) side by means of net and coble, while that on the defender's side has not been so continuously. It is true, and is one of the peculiarities here, that for a considerable period the fishings of both parties were held by the same tenants, and that these tenants, while thus exercising a right derived in art from the defender or his authors, did in fact fish the river with net and coble, and pay a portion of the rent to the defender or his authors therefor. But the net used by them was shot from and drawn to the Balgy shore or bank of the stream, and therefore, as it appears to the Lord Ordinary, the act of so doing cannot be held in law as amounting to an act of possession of the fishings through the right of the defender, as proprietor of Torridon.

It is true, too, that the authors of the defender had profitable possession of salmon fishings, as attached to their lands, by letting and drawing rents therefor. But this will not, as the Lord Ordinary thinks, supply the want of a direct grant from the Crown, and in absence of such grant, come in the place of possession of salmon fishings, by the known symbols of net and coble.

While the Lord Ordinary is thus unable to see his way to any judgment here which will directly sustain a right on the part of the defender to salmon fishings in the stream in question, he is strongly impressed with a conviction that he would err were he to give effect to the pleas of the pursuer, and to the conclusions of the summons to their full extent. It appears to him to be clear that in fact the possession of the fishings had by the pursuer and his authors has been confined entirely to that which had its direct connection with the lands of Balgy themselves, and that, so far as respected such fishings as were profitably enjoyed by the proprietors of Torridon, no dispute or question had been raised until recent times. Indeed, it seems to be sufficiently proved that for a considerable period the fishings of both sides of the river were let to, and were in the occupation of, the same tenants, and that the authors of the pursuer allowed a portion at least of the rents payable

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by the tenants of the whole fishings to be drawn by the proprietor of Torridon for the time, as in his own right. In such a state of circumstances, and in the absence of direct grant from the Crown to either party, the Lord Ordinary is not prepared to hold that the pursuer is entitled to prevail here, so far as to have declarator of sole and exclusive right, or to have the defender interdicted from fishing for salmon by lawful means from his own lands in the water of Balgy, so far as that stream forms the boundary thereof.”

Against these judgments both parties reclaimed to the Inner House. Sir John Stuart contended that the interdict should be recalled, and that he wits entitled to decree in terms of the conclusions of the declarator. M'Barnet, on the other hand, in the interdict reclaimed against the finding as to expenses, and in the declarator, in so far as the interlocutor pronounced upon the right and possession of the pursuer, and in so far as it found and declared in terms of the first conclusion of the summons, or so far as its findings affected his rights; and also in so far as it dealt with expenses and craved to be found entitled to expenses, and to be assoilzied from the first conclusion of the summons, at least in so far as it affected his rights.

At advising,