Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 8_601, [1871] SLR 8_601

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SCOTTISH_SLR_Court_of_Session

Page: 601↓

Court of Session Inner House First Division.

Thursday, June 29. 1871.

8 SLR 601

Macbraire

v.

Mather and Young.

Subject_1Property
Subject_2Salmon-Fishing
Subject_3Public River
Subject_4Medium filum — “Fording.”
Facts:

Held that the proprietor of a salmon-fishing on the English side of the Tweed is not entitled—although the Tweed at that point is a public river—to station a man in a boat, or on a “ladder” in the water, on the Scotch side of mid-channel, for the purpose of watching the ascent of the salmon, and signalling their approach to the fishermen on the English side of the river—such practice being an encroachment on the right of salmon-fishing enjoyed by the Scotch proprietor.

Headnote:

This was a note of suspension and interdict presented by James Macbraire, Esq. of Broadmeadows, in the county of Berwick, against Charles T. N. Mather, Esq. of Longridge, in the county of Northumberland, and George Young, fishmonger, Berwick-on-Tweed. Mr Macbraire and Mr Mather are proprietors of salmon-fishings opposite one another respectively on the Scotch and English side of the Tweed. Mr Young is the lessee of Mr Mather's fisheries.

The prayer of the note was as follows:—“May it therefore please your Lordships to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondents, or either of them, and their servants or others in their employment, or acting by their instructions or authority, from rowing or otherwise taking any boat or boats, or raft, or other floating engine, to the north of the middle of the channel of the river Tweed ex adverso of the complainer's lands of Broadmeadows and Tweedhill, for the purpose of watching for fish coming up the river, and also from fixing or placing any ladder or other engine in or on the alveus of the Tweed to the north of the middle of the channel of the river ex adverso of the complainer's said lands; and also from scraping or excavating or otherwise interfering with the alveus of the Tweed to the north of the middle of the channel of the river ex adverso of the complainer's said lands; or to do otherwise in the premises as to your Lordships shall seem proper.”

The practice described in the first part of the prayer is known as “fording.”

The Lord Ordinary ( Ormidale) pronounced an interlocutor, finding that the fisheries of the complainer and the respondent Mather extend respectively across the Tweed to the middle of the river from bank to bank. The interlocutor proceeds—“Finds also as matter of fact (3) that the respondents, especially in or about the month of June last, by themselves or others, encroached on the complainer's right of salmon-fishing foresaid, by taking a boat or boats to the north of the middle of the Tweed, and by fixing or placing a ladder in the alveus of the river, to the north of the middle of the channel thereof, ex adverso of the complainer Mr Macbraire's foresaid lands, for the purpose of watching for fish of the salmon kind coming up the river, in order to catch the same: But finds also as matter of fact (4) that the complainer Mr Macbraire has not proved that he is the proprietor of the alveus of the river Tweed, or any part of it, ex adverso of his said lands of Tweedhill; or that the respondents have excavated or scraped said alveus to the north of the middle of the channel of the river ex adverso of Mr Macbraire's said lands: Finds also as matter of fact (5) that at and between the foresaid fishings, belonging respectively to the complainers and respondents, the Tweed is a tidal river about 150 yards broad, and used by the public for the purpose of passage in pleasure boats; and further, that at said locality it forms the boundary between England and Scotland: Therefore, in the foregoing circumstances, interdicts, prohibits, and discharges the respondents from taking any boat or boats or other floating engine to the north of the middle of the said river Tweed ex adverso of the complainer's lands of Tweedhill, and fixing or placing any ladder or other engine in or on the alveus of the Tweed to the north of the middle of the channel thereof ex adverso of the complainer Mr Macbraire's said lands, for the purpose of watching for fish of the salmon kind coming up the Tweed, in order to catch the same, and to that extent sustains the reasons of suspension and interdict, and decerns; and quoad ultra repels the reasons of suspension and interdict, recalls the interim interdict formerly granted, and decerns: Finds the complainers entitled to one-half of the expenses of process incurred by them as the same may be taxed.

The respondents reclaimed.

Watson and Johnstone, for them, argued—The Tweed is a public river, and the complainer has no title to prevent members of the public rowing to any part of the stream. The respondents being thus lawfully there, cannot be prevented from watching the salmon and signalling their approach.

The Solicitor-General and Asher objected to that part of Lord Ormidale's interlocutor in which lie found that the complainer had failed to prove that Mr Mather had scraped the alveus to the north of the mid channel.

At advising—

Judgment:

Lord President—The first complaint in this Case is that on a number of occasions during the month of June 1870, the respondent George Young has, in violation of the complainer's rights, taken a boat to the north of the mid-channel of the river, fixed or anchored the same within the

Page: 602↓

Scotch water for the purpose of watching, by means of a ladder, either fixed in the boat or in the bed of the river, for fish coming up the river, with the view of rowing a shot to catch them when seen. The days are specified on which the alleged wrongful acts were done. The respondent's answer is “denied under reference to the respondent's statement.” His statement on this point is as follows:—“At those parts of the river where the stream flows in a rapid and narrow channel, and especially near fords, the proprietors of fisheries on both sides of the river, or their tenants or servants, have from time immemorial been in the habit of watching the fish as they ascend the shallow water. They do this by rowing a boat to the shallow part, and anchoring, or otherwise keeping near the same part, and watching the fish therefrom, and sometimes they place a ladder in the boat to give the watchman a better view, and sometimes this ladder is placed temporarily in the bed of the river, and the watchman stands thereon. When he sees the salmon ascending the river he gives warning to the other fishermen, who thus know when to make a shot or draw their net. This mode of fishing is called ‘fording the fish,’ and has been practised from time immemorial. The respondent, Mr Mather's tenant of the fishings, and his servants ford the fish at the place complained of in the ordinary way, and according to the immemorial custom of fishers in the Tweed.” As regards immemorial usage there is no evidence. The point to be observed is that the respondent practically admits doing the thing complained of. The question is whether he is entitled to do this upon the Scotch side of the medium filum. This proposition is clear, that no proprietor of a fishing on the English side can exercise the right of fishing, or do anything in the way of exercising that right beyond the medium filum. It comes to the same thing whether the fish are actually captured on the English or the Scotch side. Fish might be actually captured on the English side by a shot which extended to the Scotch side, but that would not make the shot a legal one. What is done by the man on the ladder is part of what is done to catch the fish. This is prima facie an illegal invasion of the Scotch water. I could understand that in certain special circumstances a fisher might be entitled to go across the imaginary line which forms the medium filum for some purpose lawful in itself, beneficial to him, and certainly not injurious to his opposite neighbour. But these conditions are not fulfilled by the act done here. The relative situation of the properties is such as to make it in the highest degree probable that the doing of it will be prejudicial to the Scotch proprietor. There is a ford across the river immediately below two shots, one on the English and the other on the Scotch side. The English shot comes next the ford. In the ford, as usually happens, one part is deeper than the rest, and the deepest part is nearer the Scotch side. Consequently, to view the passage of the fish across the ford, the English fisher despatches a man to the Scotch side in a boat with a ladder. It is against reason to say that this is not likely to have the effect of driving the fish more to the English side. The Scotch proprietor has very good reason to object to the invasion of his water for such a purpose. It is said by the respondent that this is not a trespass, because the water and the alveus on the north side does not belong to the Scotch proprietor; he has no property in the river, but only in the fishing. That is sound in law. But the Scotch proprietor is entitled to the exclusive occupation of the water for fishing purposes, and for fishing purposes to exclude others. But the respondent says that the public may come there, and if a member of the public chooses to stand in a boat and watch the salmon, and to give a hint to the fishers on the English side when they are coming, no one can stop him. This is really begging the question. If a member of the public uses his privilege as such for this purpose, he in reality ceases to be a member of the public, and becomes an ally of the English fishers. He comes not for navigation, but for fishing purposes. I more than doubt whether, even if he were to come in a pleasure boat, he could defend his taking up his station there on the ground of public privilege, while he was in fact exercising that privilege for the purpose of aiding the capture of salmon on the English side. But the present case is far clearer. The man who comes there does not pretend to come there as a member of the public. He comes avowedly as a salmon fisher, a servant of Mr Young's, in a boat, which he is not entitled to use except at certain seasons, marked and branded as a fishing boat. It is impossible to say that he does not come for fishing purposes. On this part of the case I entirely concur with the Lord Ordinary. With regard to the second part of the complaint—the alleged scraping of the alveus of the northern side by the respondent—I also agree with the Lord Ordinary. The first aspect is unfavourable to the respondent. One does not at first see his right to interfere with the solum at all. And, accordingly, if he was versans in illicitis, even although it was not distinctly proved that he interfered with the solum on the north side, I should be disposed to grant the interdict craved. But he is not versans in illicitis. He is in the exercise of a recognised right, of smoothing the channel to facilitate the drawing of the net. The operation is rather encouraged by the Tweed Fisheries Act of 1857. No doubt he cannot invade the alveus on the Scotch side. But I do not think that it is proved that he did so, still less is it proved that he did so intentionally. It is difficult to ascertain the exact line of the medium filum in a river like the Tweed, especially by the rough methods resorted to by the witnesses. One witness makes the breadth of the river 144 yards, and another 150 yards. According as we adopt one measurement or the other, there has or has not been an encroachment. On the whole, I am satisfied that encroachment on the alveus has not been made out.

Lords Deas and Ardmillan concurred.

Lord Kinloch—“Fording” cannot be regarded as anything else than part of the process of fishing. When this is done by means of a boat, the salmon are fished by two boats in combination; when it is done by a ladder, this is just putting an engine for fishing into the fishing grounds of the complainer. It cannot be doubted that this proceeding is likely to be prejudicial to the complainer's fishing, and I think he is entitled to interdict.

The Court adhered, finding no expenses due since the date of the Lord Ordinary's interlocutor.

Solicitors: Agents for Complainer— Tods, Murray & Jamieson, W.S.

Agents for Respondents— Hope & Mackay, W.S.

1871