Scottish Court of Session Decisions

The embankment connects two portions of land belonging to the Earl of Wemyss, for he is proprietor of the island, as well as of the point of the south shore of the south channel, at which the embankment commences. He maintains two propositions. He affirms that he is proprietor of the embankment from end to end. He says also that the effect of the construction of the embankment is to transfer a right of salmon-fishing, which formerly belonged to him, along the shore of the south channel to the embankment, which he says must be held to come in place of that shore, and so to reach the fish, which formerly he could have taken, or had right to have taken, if the ground had been suitable for the use of the necessary implements of capture. He refers to the rule that where a river deserts an old and follows a new channel, the owner of the salmon-fishing may follow the stream.

The prayer of the suspension and interdict extends to the whole embankment. The Magistrates are sought to be interdicted from fishing from any point along its entire course. In so far as relates to fishing from the southern portion of the embankment, I do not find that any right to fish upon it was maintained by the Magistrates of Perth, which necessitated or could justify the present application, and no fact of possession is stated in regard to it as having happened since 1847 A peg was put by the Magistrates in at the point of what was believed to be the mid-channel, and the Magistrates neither fished between that point and the south shore, nor set up a right or pretence of right to do so. This is made very clear by the correspondence, before the institution of proceedings, between Lord Wemyss' agents and the agents of the town. In this Court one part of one plea is so expressed as that it might cover such a pretension, but neither before the institution of judicial proceedings nor subsequently in the Court has that pretence of right been set up. No one is entitled to have a process of suspension and interdict against a neighbour who has neither, de facto, exercised any act of possession nor maintained any claim to possess the subject as to which interdict is craved. I propose, therefore, that we should refuse the interdict in so far as regards the portion of the embankment between T. and A., from mid-channel to Elcho Pier, as not justified by any act or claim of possession having been set up on the part of the Magistrates at or about the date of the application. I propose to refuse the application, but I propose in that respect varying the Lord Ordinary's interlocutor, that we should, in refusing the interdict, assign the ground on which that refusal is rested. We do not, and in this process we cannot, definitively fix any question of right in reference to the fishing at this part of the embankment. It is a sufficient ground for dismissing the application that it was unnecessary and uncalled for.

There remains the question as to the fishings from Z to B on the plan, or in other words, from the point of the mid-channel of the south branch of the river and the island. The first question to consider is, whether we can take it as established that the suspender is proprietor of the embankment itself. I am not satisfied that the Earl of Wemyss has any right of property in the embankment. The embankment was constructed upon the alveus of a public tidal navigable river. If the maxim quod solo aedificatum solo cedit applied here, the embankment would rather belong to the crown, as the proprietor of the alveus built up, than to the subject whose lands may adjoin each extremity. I do not think that such a work as an artificial embankment, performed at once and by force of a special statute, can come under the doctrine of accession by alluvio. Alluvio is a mode of acquiring property, but its special characteristic is the gradual and imperceptible addition to the land of the proprietor, who thereby has an addition made to his land. “ Per alluvionem id uidetur adjici quod ita paulatim adjicitur ut intelligere non possumus quantum quoquo momento temporis adjicitur. (D. 41, 7, 1.)

If it were otherwise, I confess that I do not see how Lord Wemyss could take benefit, for the one-half of the embankment would seem to form an addition to the island; the other half to the land on the south of the fishings from the northern portion of the embankment would then fall to be considered as fishings from the island itself a result not very favourable to the suspender.

If the claim of property in the embankment is even doubtful, and, above all, if it is prima facie against the suspender, we cannot give effect to it in this summary proceeding. But truly the right of property in the embankment cannot go far in a question as to salmon-fishings, which is a separate right, and involves in it the right to use land necessary for its beneficial exercise to the party having the right of fishing. As the right of fishing in one part is not incompatible with the property of the soil from which the fishing is exercised, the only effect of the property being held to be in the suspender, would be to make it necessary for the Magistrates to justify their use of the embankment by instructing their right of fishing as a pertinent to which they would be entitled to use it.

If the suspender's right of property is not to be assumed, his right to the fishings would require to be made out. This is done, or said to be done, by referring to a right of fishing along the south bank in the former south channel, before the embankment was constructed, and it is said that the effect of the embankment is to transfer the fishings from the south shore to that point. This is certainly by no means clear. What has happened

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