Scottish Court of Session Decisions

The summons in this suit, at the instance of the Earl of Zetland against the trustees of the late Hugh Tennent, Esquire, of Errol, concludes that “it ought and should be found and declared that the pursuer has good and undoubted right to the salmon-fishings in the river Tay between Corbieden, on the east, and the Pow of Lindores, on the west, and that from the south shore as far as the middle line of the said river, and including the

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exclusive right to fish for salmon, and other fish of the salmon kind, in the South Deep or South Channel of the said river, so far as opposite to the said estate of Easter Errol belonging to the defenders, and particularly from and upon the banks or fishing-stations called “Lower Peesweep,” “Haggis,” and south side of “Hobby Horse;” and it ought and should be found and declared that the defenders and their successors in the said lands and estate of Easter Errol have no right or title to fish for salmon, or other fish of the salmon kind, to the south of the middle line of the said river, and in particular from the said banks or fishing-stations, or in any other part of the South Deep or South Channel of the river Tay ex adverso of the said estate of Easter Errol; and further, the defenders ought and should be prohibited and interdicted from molesting or interfering with the pursuer in the exercise of his said rights, and particularly from fishing by themselves, their tenants, or others, from the said banks or fishing-stations, or in any other part of the said South Deep or South Channel ex adverso of the said estate of Easter Errol.

The pursuer set forth that he is proprietor of and infeft in the lands and estate of Ballmbriech in the county of Fife, and lying on the south side of the firth or estuary of the river Tay, with the fishings attached thereto, conform to Instrument of Sasine dated 14th May, and recorded in the General Register of Sasines on 4th June 1839, proceeding on a precept from Chancery in his favour dated 13th May 1839. The lands in his title are described as follows:—“Totas et integras illas partes et portiones terrarum et baroniæ de Ballinbreich, viz., terras dominicales de Ballinbreich, terras de Heighams, terras de Logie, terras de Flisk, easter and wester, terras de Fliskmillan, terras de Balhelvie, terras de Pittachope, jacen. in vicecomitatu de Fife, cum piscariis dict. Baroniæ super aqua de Tay, et cymbis portatoriis dict. aquæ inter Corbieden et fontes aquæ de Earne prout medium fiumen dict. aquæ currit, quatenus Joannes Comes de Rothes et Patricius Crawfurd de Auchinames armiger, sicut deriven, jus a dict. Comite de Rothes, habent jus ad dict. piscationes, … et similiter terras seu insulas vulgo vocat. Red Inch et Know Inch, bondat. inter pratum (portum) seu lie Haven ex occiden., aquam de Tay ex boreali, et orien. pratum et terras de Parkhill ex australi et orien. partibus, necnon salmonum piscationes aliasq. piscationes super aqua de Tay inter terras de Mugdrum et orien. finem prædict. insularum,” and extend along the south side of the river Tay from Corbieden westward for about six miles, as far as the Pow of Lindores. The pursuer avers that he and his predecessors have, for greatly more than forty years, been in the uninterrupted possession of the right of fishing for salmon by net and coble and otherwise in the river Tay from Corbieden on the east to the Pow of Lindores, which is the westmost point of the pursuer's estate.

The defenders set forth that they are proprietors, and thus infeft in the lands of Easter Errol, situated on the north side of the river Tay, and separated from the pursuer's property by that river, including therein “all and whole the lands of Dallalie, Easter and Wester Randerstone,” &c., “together with the salmon fishings and other fishings pertaining to the said lands of Randerstone and Dallalie, all lying within the parish of Errol and sheriffdom of Perth.” The said lands and estate and others were erected into a haill and free barony and burgh of barony, conform to a charter and infeftment thereon under the Great Seal, of date 21st July 1662, made and granted in favour of John Earl of Northesk, and his heirs male. The grant of said lands and barony and others was renewed in favour of David Earl of Northesk, by charter of resignation, dated 25th April 1707 The said Charter conveys, inter alia, to the Earl and his heirs male, as parts of the lands and barony of Errol:—“Totas et integras terras de Dallalie, Easter and Wester Randerstounes domus,” &c., “Una cum salmonum piscaria aliis piscariis ad dict. terras de Easter Randerstoun et Dallalie pertinent.” The island of Mugdrum, situated about a mile further up the river than the western extremity of the defenders' land, is, at high water, about a mile long and less than a quarter of a mile in breadth, and divides the Tay into two channels called North and South Deep. At low water, however, the shore of the island extends down the river a considerable distance ex adverso of both the pursuer's and defender's lands. The salmon fishings claimed by the defender as pertaining to his lands, consist of three stations, called Peesweep, Haggis, and Hobby Horse, all on the south side of the shore of said island, and all lying directly ex adverso of pursuer's and defenders' lands, with the exception of the Hobby Horse station, which lies a little to the east side of the defenders' lands.

The defenders state that in virtue of their title to the salmon-fishings above set forth, “the defenders and their predecessors in the said lands have from time immemorial, and for much more than forty years prior to July 1870, possessed the salmon-fishings in the river Tay from the said bank or banks ex adverso of the said lands; and in particular, they have possessed for the period foresaid the foresaid salmon-fishings, called the Lower Peesweep, South Haggis bank, and South Higham or Hobby Horse bank fishings. This they have done by fishing for salmon with net and coble from the said fishing stations and bank or banks ex adverso of their said lands, southwards into the stream of the river, and by hauling their nets on the said bank or banks, and that without challenge or interruption; and that neither the pursuer nor any of his predecessors ever by themselves or their tenants fished at the said fishing stations or from any part of the said banks, nor until July 1870 did they ever allege any right to do so, or state any objection whatever to the defenders' exclusive possession thereof. The pursuer has no title to the salmon-fishings in any part of the river opposite the defenders' lands, and in particular the salmon fishings specified in the second article of the condescendence are not within the said part of the river.”

The pleas in law for the pursuer are—“(1) In virtue of his title founded on, the pursuer has the exclusive right to the salmon fishings in the river Tay between Corbieden and the Pow of Lindores, to the south of the middle line of the river. (2) In virtue of his title founded on, and of the possession which has followed thereon, the pursuer has the exclusive right to fish for salmon and other fish of the salmon kind in the river Tay between Corbieden and the Pow of Lindores, to the south of the middle line of the river. (3) The banks or fishing stations called Lower Peesweep, Haggis,

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and south side of Hobby Horse, being situated between Corbieden and the Pow of Lindores, and to the south of the middle of the river, the pursuer has the exclusive right to fish for salmon at the said stations. (4) The South Channel or South Deep of the river Tay between the places above mentioned being wholly to the south of the middle line of the river, the pursuer has the exclusive right to the salmon fishings therein. (5) The defenders have no right or title to fish for salmon, or other fish of the salmon kind, from the said banks or fishing stations, or in any other part of the South Channel or South Deep of the river Tay between the places above mentioned. (6) The titles founded on by the defenders having reference to lands and fishings in the county of Perth only, can confer no right to the fishing stations in dispute, which are situate within the county of Fife. (7) In the circumstances stated, the pursuer is entitled to decree in the terms concluded for.”

The pleas in law for the defenders are—“(1) The pursuer having no title to the salmon fishings from the bank or banks referred to in the condescendence, or at the said fishing stations called Lower Peesweep, Haggis, and south side of Hobby Horse, his claim thereto falls to be repelled. (2) The right of the pursuer to salmon fishings cannot be extended beyond his previous possession thereof, and neither he nor his predecessors having ever possessed the said fishings, his claim thereto cannot be maintained. (3) The defenders being in right of the said fishings in respect of their title thereto above set forth, are entitled to absolvitor, with expenses. (4) In respect of the defenders' title to the said salmon fishings, and of the immemorial and exclusive possession thereof of them and of their predecessors, the defenders are entitled to absolvitor, with expenses.”

The Lord Ordinary, after a proof, pronounced the following interlocutor:—

“ Edinburgh, 31 st July 1872.—The Lord Ordinary having heard Counsel, and made avizandum, and having considered the proof, debate thereon, productions, and whole process, Finds as matter of fact that the defenders and their predecessors in the lands of Easter Errol, described in the statement of facts on their behalf, have possessed, as set forth in the sixth article of the said statement of facts, without challenge or interruption on the art of the pursuer or those in his right, the salmon shings in the river Tay from the bank or banks eferred to in the said article ex adverso of the said lands; and, in particular, that they have so possessed the salmon fishings called the Lower Peesweep, South Haggis Bank, and South Higham or Hobby-Horse Bank fishings: Therefore sustains the defences, assoilzies the defenders from the conclusions of the summons, and decerns; finds the pursuer liable to the defenders in expenses, of which allows an account to be lodged, and remits the same to the Auditor to tax and to report.

Note.—Whatever may be the result of the renewed litigation regarding the subject-matter of the present process in its future progress, it appears to the Lord Ordinary that he cannot, consistently with former judgments, come to any conclusion here other than that to which the present interlocutor gives effect.”

The pursuer reclaimed.

Authorities— Wedderburn v. Paterson, 2 Macph. 902; Earl of Zetland, 6 Macph. 292, aff. 8 Macph. 144; Milne, 13 D. 112; Hepburn, 2 S. 525; Young, M. 9636; Macbrair, 9 Macph. 913; Stuart v. M'Burnet, 5 Macph. 753, aff. 6 Macph. (H.L.) 123.

At advising—