Scottish Court of Session Decisions

This case came up by Reclaiming Note against the interlocutor of the Lord Ordinary, which stated the circumstances, and was as follows.—

“6 th March 1873.—The Lord Ordinary having heard parties’ procurators, and considered the closed record, proof adduced, and whole process: Finds and declares that in the existing state of the river Tay, and of the alveus thereof ex adverso of the pursuers’ lands and barony of Seggieden, the pursuers have the exclusive right of fishing for salmon and fish of the salmon kind in the river Tay ex adverso of the said lands and barony, to the eastward of a line drawn from a point on the north bank of the river, 118 yards to the westward of the centre of the Seggieden burn, to another point on the south bank of the river, 34 yards to the westward of the west gable of a lodge known as ‘Lower Mary Lodge,’ and including therein the exclusive right of fishing, as in a question with the defenders, from the bank lying in the said river opposite to the said lands and barony to the eastward of the said line; and that the defenders have no right to fish for salmon or fish of the salmon kind in the said river ex adverso of the said lands and barony to the eastward of the said line; and before further answer, remits to Mr John Young C.E., Perth, to mark off the said line upon the plan No. 7 of process; and also to put down upon the north bank of the river a march stone, or other distinctive mark at the point to the westward of Seggieden burn, from which the said line is drawn; and, in the meantime, reserves all questions of expenses.

Note.—There are certain points which appear to the Lord Ordinary to be clearly established in the evidence in this case, viz.:—

(1) That at and for long prior to the date when the north channel of the river Tay was shut up by the Navigation Commissioners at the upper end of Darry Island, in or about the year 1840, the tenants of the pursuers’ fishings were in use to

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fish the upper part of what is called the Flookie Station of the Seggieden fishings, starting from Seggieden pier, and rowing close past the lower or east end of Darry Island in a southerly direction, across to the south channel of the river, and thence returning to the hauling ground on the north side of the river below the Seggieden burn; (2) that after the north channel was so shut up the pursuers’ tenants continued to fish the Flookie Station, beginning a little below Seggieden pier and rowing out across the river In the same direction as before, and thence down to the hauling ground beyond Seggieden burn; (3) that since the north channel was so shut up, a gravel bank has been formed in the alveus of the river ex adverso of the pursuers’ lands, to the eastward of Darry Island, and to the north of the medium filum of the river, and that the lower part of this bank is separated from the part adjacent to the island by what is described by the witnesses as a narrow trink or gully, running from north to south across the bank, somewhat below the line of Seggieden pier; (4) that since the formation of this bank the pursuers’ tenants have been in the habit of fishing on all necessary occasions from immediately below this trink or gully at low water from the bank itself, and at other times by means of the Beard-money boat; (5) that the tenants in the defenders’ fishings have never fished below the line of this trink or gully, and have never at any period been in use to fish regularly from the east or lower end of Darry Island, although they may have taken an occasional shot there, as deponed to by several of the witnesses adduced on their behalf.

In this state of the facts, it is the formation of this bank which has given rise to the main difficulty which the Lord Ordinary has felt in dealing with the case. Because, if the views maintained on the part of the defenders are correct, to the effect that the whole of this bank is in reality an extension of Darry Island itself, created by a process of gradual and imperceptible accretion from natural causes, it might be difficult to hold that the defenders were not entitled to follow the island, or that the pursuers were entitled to the exclusive right of fishing from and across this bank, although resting on what was beyond doubt prior to 1840 the alveus of the river ex adverso of the property of the pursuers.

But the case cannot, in the opinion of the Lord Ordinary, be dealt with as one of the gradual increase of an island from natural causes, because, 1 st, it is not quite clear upon the evidence that the formation of the bank began exclusively at the lower end of the island, and extended downwards; for there are some of the witnesses who seem to speak of it as running ‘from Seggieden burn up towards the east end of the island.’ 2 d, The trink or gully which runs across the upper part of the bank in a line below Seggieden pier, and prevents the two portions of the bank from being joined together, separates the larger portion of the bank from the island, and tends to confirm the view that the bank was partly formed by accretion upwards from the direction of Seggieden burn. And, 3d, the formation of this bank can scarcely be said to be the result of natural causes, inasmuch as it is proved by all the witnesses to have been occasioned by the alterations in the current of the river consequent upon the shutting up of the north channel of the river by artificial operations.

In these circumstances, it appears to the Lord Ordinary that the boundaries of the rights of fishing in question must be regulated with reference to the position of the island as it existed at the time the north channel was closed up, and to the possession which the parties may respectively have had of their fishings since that alteration was made. And if an action of this description had been brought before the north channel was closed, the Lord Ordinary does not think that the pursuers would have been entitled to have a boundary line drawn so far to the westward of Seggieden burn as that proposed by them. Because this line, in the view the Lord Ordinary takes of the case, would have given them an exclusive right to a portion of water to the eastward of the lower end of the island, over which, according to the custom of the Tay, and the occasional exercise which the defenders appear to have had of a right of fishing at that place, the defenders were, it is thought, entitled to let their nets sweep when necessary in fishing at that end of the island.

The right of the defenders to fish round the island, as given by their charter, is very broad; and, in so far as the Lord Ordinary is aware, there is no direct authority on the question, how far such a right of fishing can be held to extend beyond either extremity of an island, in a question with proprietors of fishings on the banks of the river immediately above and below the island. In so far as regards the rights of a proprietor of island fishings, as in a question with proprietors of the banks on either side of and immediately opposite the island, there is no difficulty. Because, the island being interposed between the opposite banks, the proprietor of the fishings round an island is understood to have right to fish to the middle of each branch of the river, which in its natural course separates the island from the mainland. But when the question comes to be raised, as here, with reference to the extent to which such a right of fishing may be carried at the extreme end of. an island, there is, in the view the Lord Ordinary takes of it, no room for the application of the rules relative to the medium filum of a river being the boundary. Because when the extreme point of the island is reached there is at that place no proprietor opposite to the owner of the island on the east; but the rights of the opposite proprietors, on the main banks of the river, come directly into operation as against each other.

The conclusion, therefore, which the Lord Ordinary has, in this state of matters, arrived at, is that the defenders, in respect of the custom of the Tay, by which a proprietor of a fishing is entitled to a sweep or swing of 24 fathoms beyond his own march in paying out or hauling in his net, and of the occasional exercise which the defenders appear to have had of their right of fishing at the end of the island, are entitled to a sweep of 24 fathoms or 144 feet, at the east end of the island beyond low water mark, which is, in his opinion, the defenders’ line of march at that place, into which they may row or allow their nets to swing when fishing at the point of the island. And, applying this rule to the present case, the Lord Ordinary has fixed the line to the eastward of which the pursuers are entitled to an exclusive right of fishing at 118 yards, or 354 feet, instead of 138 yards as claimed by them, to the westward of Seggieden burn, on the following

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grounds:—The distance of that burn to the eastward of Seggieden pier, as proved by Mr Young's report, is 496 feet, and low water mark at the east end of the island, as shown upon Mr Stevenson's plan, is very nearly in a line, but a few feet to the westward, of the east end of the pier. The Lord Ordinary has therefore assumed 500 feet as the distance between Seggieden burn and the low water mark, and deducting 118 yards or 354 feet from that, there remains a clear 24 fathoms, within which the defenders will be free to fish beyond their own march, according to the custom of the Tay.

In so fixing the line, the Lord Ordinary has guarded the interlocutor by the words ‘in the existing state of the river,’ a course which appears to have met with the approval of the Court in the case of Wedderburn, 22d March 1864, ‘as leaving it open to the parties to try any question which may arise in the event of any substantial change in the alveus of the river.’—2 Macph. p. 909.

It was contended on the part of the defenders that the case was not one in which it was necessary or proper that any line of boundary should be fixed, and that they were on that ground entitled to be assoilzied from the whole conclusions of the action. Even if the point were open, the Lord Ordinary would not, in the circumstances, have been disposed to give effect to it, because it is pretty clear upon the evidence that there have been several disputes, and that there may in all probability be further disputes between the tenants and of the respective fishings relative to the boundary lines. But the question is one which the defenders are, it is thought, precluded by the pleadings from now raising; as they distinctly state, in answer to the 8th article of the Condescendence, that they are ‘willing that the limits of the fishings should be ascertained and determined,’ and the defence is throughout prepared on that footing.”

Against this interlocutor Mrs Drummond Hay, by leave of the Lord Ordinary, reclaimed, and argued that the Lord Ordinary had given the effect of law to the local custom of the river Tay as to the space of 24 fathoms allowed at either end of each proprietor's fishings. To that they objected.

Authorities cited— Earl of Zetland v. Corporation of Perth, 6 Macph. 292, Aff. 8 Macph. H. L. 144; Wedderburn v. Paterson, 2 Macph. 902.

At advising—