Scottish Court of Session Decisions

The petitioner Maxwell, who is landlord of the farms of Mainshead and Prospecthall in Dumfriesshire, presented a petition to the Sheriff craving that the respondent, his tenant for fifteen years under an agricultural lease, be interdicted from fishing for trout in a pond situated on the farm, and into which there flowed three small streams. Thereafter the petitioner presented a second application to interdict the respondent from molesting the petitioner while fishing there. Both petitions having been advocated, they were conjoined by the Lord Ordinary (Bakcaple) and a proof allowed to the parties of their averments. The legal question raised in the first petition was, whether an agricultural tenant is entitled to fish for trout in a pond on the farm, there being no stipulation on the matter in the lease? The question of fact in the second petition was, whether the respondent interfered with the petitioner or one of his friends to prevent him fishing? The following pleas in law were maintained by the parties.

Pleaded for the petitioner:— “ 1. The petitioner being the proprietor of the said pond or reservoir, and having made and stocked the same for his own use, possesses the exclusive right of fishing therein. 2. The right of fishing in the said pond not having been let to the respondent, it was exlege reserved to the petitioner. 3. The farm having been let purely as an agricultural subject, the respondent is not entitled to exercise the right of fishing in the said pond, and the petitioner is entitled to interdict against him so fishing. 3. The respondent is not entitled to prevent the petitioner or those uthorised by him from entering upon the lands ofthe said farm for the purpose of fishing in the said pond; and the respondent having attempted to prevent the petitioner and those authorised by him from entering on the said lands for the said purpose, the petitioner is entitled to interdict as craved for.”

The Lord Ordinary (Bakcaple) pronounced the following interlocutor and note:—

“ Edinburgh, 28th February1868.— The Lord Ordinary having heard counsel for the parties, and considered the closed record, proof, and whole conjoined process— advocates the causes: Finds that, by the contract of lease under which Mr John Copland, the respondent in the Inferior Court, became tenant of the farm and lands of Mainshead and Prospecthall, belonging to the Honourable Marmaduke Constable Maxwell, the petitioner, there was no express or implied exclusion of any right which the said respondent would otherwise have had at common law, as tenant under said lease, to fish for trout with the rod in the pond referred to in the petitions: Finds that, as tenant under said lease, the said respondent has at common law right to fish for trout with the rod in said pond held in lease by him: Finds that it is not proved that said respondent interfered with and prevented from fishing in said pond any of the said petitioner's family or relations whom the petitioner had authorised to fish therein; sustains the pleas in law stated for thesaid respondent, John Copland; recals the interiminterdict granted under the first of the petitionsadvocated; dismisses both petitions, and decerns: finds the said petitioner liable in expenses, both in the Inferior Court and in this Court; allows accounts thereof to be given in, and when lodged, remits the same to the auditor to tax and report.

“ Note.—The Ordinary does not think that any common law right which wouM otherwise have been in the tenant to fish for trout in the pond in question, can be held to have been excluded by the terms of the lease, or the mutual understanding of parties in ntering into it. It is not said that the tenant was informed that the exclusive use of the pond for fishing was reserved to the landlord. The land severe let as possessed by the previous tenants, but it is not thought that that general reference to the previous possession can be held to apply to such a matter as that now in question. There might be many legitimate uses of the tenancy which the previous tenants had not chosen to take, from which a new tenant entering to a lease of thelands, as they had been possessed by them, would not be debarred. The Lord Ordinary, therefore, thinks that there is no specialty in the case from the terms of the lease, or from anything that is proved to have passed when it was entered into.

“ In such a question the pond itself may be of a kind to create a conclusive specialty. A pond which is obviously, by being enclosed or otherwise, intended as a private fish preserve, may by presumable implication be excluded from the lease of a farm on which it is situated. But the Lord Ordinary thinks that there is not ground in the present case for an implication of that sort. The pond,

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which is quite unenclosed, was made as a dam or reservoir to reservoir to supply water power to a tile-work. It is situated on a stream which is supplied from various sources, and flows to the water of Cargen, and so to the river Nith. The tile-work was stopped in 1862, but it does not appear that there has been any change on the use of the pond in other respects, or in its appearance since then. The proprietor had put trout in it before that, apparently more than once; and in 1853 a grating was put on the lower end to prevent the fish running down. It has also been staked to prevent netting. That is, however, a precaution constantly taken in running streams. It has been used all along for the ordinary purposes of a farm, as driving cattle from the farm sheds to water, washing carts, &c. The present tenant has used it without objection for washing his sheep, though the previous tenants did not do so, not thinking it suitable for that purpose. Such being the nature and condition of the pond, it does not appear that there was anything to lead a proposing tenant, in the absence of information to the contrary, to consider it as anything different from an ordinary dam on a stream passing through the farm. It is not alleged that he should have looked upon it as excluded from ordinary farm uses. The grating was the only thing to indicate that it was a fish-pond. But the Lord Ordinary cannot hold that, if observed by the tenant— and it is not proved that his attention was called to it— that was such an indication that the landlord was keeping in his own hands the exclusive use of the pond for fishing as to create an implication that the tenant was to be excluded from any right in that matter which he might otherwise have had under the lease.

The case was latterly argued on the alleged right of a landlord to prevent his agricultural tenant fishing with the rod for trout in a stream running through his farm. There is not much light to be got on this question from the decisions as to the right of a proprietor to prevent mere strangers from so fishing. These authorities establish that the right of a proprietor to fish for trout is accessory to his right to the lands; or rather, that it is a right to one of the direct uses of his property. Looking to the report of the case of Carmichael v. Colquhmm in Hailes, 1033, and to the comments on that case by Lord Moncreiff in Ferguson v. Shireff, 6 D. 1363, the Lord Ordinary does not think that the case of Carmichael, as reported in the Faculty Collection, M. 9645, can be taken as evidence that it was the opinion of the Court that the public have right to fish in a private stream if they can get access to it without going upon the owner's ground. The case of Ferguson established that the existence of a public right of way along the bank of a stream does not give the public the right of angling. The principle of the decision was explained by Lord Moncreiff to be, that to hold that would be to extend and pervert the only right existing in the public—a right of access for passage— to a purpose totally foreign to its nature and object. But the weight of opinion in that case was against the existence of a right in the public to angle for trout in a private stream, wherever that can be done without going upon the proprietor's land. The case which comes nearest to the present one is the Dulee of Richmond v. Dempster, 4 Irvine, 10. The question occurred with an agricultural tenant, and it would have been necessary to decide the question as to his right as such to angle for trout if it had not been for the construction which the Court put upon the exception of persons having a right to fish for trout, in the Statute under which he was prosecuted for fishing with a net. It was decided that a tenant has not right to fish with a net, that being held to be the meaning of the exception; but the present question as to fishing with the rod was expressly reserved by the judgment of the Court.

The Lord Ordinary must therefore decide this general question of law without the aid, so far as he can discover, of any authority on the point. The decision of the criminal Court just adverted to may be taken merely to establish that, even if the tenant is entitled to fish for trout, he can only do so in the way least hurtful to the right of his landlord; and especially that he is not entitled to fish in a manner which by the Statute then under consideration was treated as so injurious as to be made criminally punishable. Neither is the present case ruled by the opinions of the Judges in the case of Ferguson, or elsewhere, as to the right of a proprietor to prevent the public fishing in a stream which is his private property, though they may reach it without trespassing on his lands. A tenant is not, like one of the public, a stranger to the lands; he holds a real though subordinate right in them. And though the character of his tenancy may, in a case like the present, be well expressed as agricultural, it is unquestionable that he holds the subjects for many purposes, both of use and enjoyment for himself and his family, which are not directly connected with their agricultural possession. The Lord Ordinary thinks that, as to any use of the subjects as distinguished from their misuse, where the lease is silent, the question is one of presumed implication as to whether the parties understood that the right was given or was reserved. The implied reservation of the right to kill game, even where the tenant may be a qualified sportsman, and the implied right of the tenant to kill rabbits and other animals, not game, are instances of such implication resting upon the general understanding and practice of the country. The Lord Ordinary thinks that the present question must be dealt with in the same way. Landlords are clearly entitled to reserve the right of angling in a stream running through the lands let to a tenant, and in practice they often do so. But where there is no such express reservation, and nothing to indicate that it is intended to reserve the right, the Lord Ordinary is disposed to think that it is consistent with general understanding and practice to hold that the right of angling for trout was communicated to the tenant like the other ordinary uses of the subjects. He has no doubt that, in the present case, that was not the understanding of the landlord, who probably did not interfere personally in letting the farm. And it is much to be regretted that the landlord's intentions in the matter had not been communicated to the tenant, so as to have saved both parties from the annoyance of this litigation. But if the general implication is, as the Lord Ordinary is disposed to hold, in favour of the right being communicated to the tenant, any understanding by which it is to be controlled must be that of both parties.

The question under the second application for interdict is entirely one of fact,—Whether the respondent interfered with the petitioner's nephew to prevent him fishing? The Lord Ordinary thinks that, the evidence on this point being quite conflicting, the petitioner, on whom the burden of proof lies, has failed to establish the ground of the application. The Lord Ordinary was satisfied at the

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proof that both parties gave, according to their recollection and belief, a correct account of what passed. Mr Copland was evidently mistaken in supposing that the Honourable J. C. Maxwell was one of a party who had been at the pond on a former day. He appears to have spoken to him under that erroneous impression, and in some irritation, in consequence of injury which he thought had on the former occasion been done to his fences. In this state of matters it was not unnatural that the parties should misunderstand one another, and that Mr Maxwell should suppose that what was said by Mr Copland, probably in an excited manner, referred to fishing in the pond, with which alone he had had anything to do.”

The petitioner reclaimed.

Claek and Lancaster for him.

oung, Scott, and Beand for respondent.

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