Scottish Court of Session Decisions

This was a note of suspension and interdict for Lieut.-Colonel West and others, proprietors of salmon-fishings in the river Dee, against the Aberdeen Harbour Commissioners. The following narrative of the facts of the case is taken from the note of the Lord Ordinary:—

The complainers are proprietors of salmon-fishings in the river Dee, the one called “The Pot” and the other “The Fords,” which extend for a considerable distance on both sides of the river above the Wellington Suspension Bridge, the “Pot” being immediately above the bridge, and the “Fords” immediately above the “Pot.” The respondents, the Aberdeen Harbour Commissioners, incorporated by sundry Acts of Parliament, are proprietors of the Midchingle fishings on the Dee, which begin at a point immediately below the “Pot” and extend downwards for a considerable distance on both sides of the river. The Dee is a tidal river, and the tide flows to a point considerably above the “Fords” fishings. The complainers object to certain operations by the respondents on the north or left bank of the river, in the Midchingle water, as being prejudicial to the “Pot” and the “Fords” fisheries. The respondents deny the right of the complainers to interfere with these operations unless a case of injury to the upper fishings by illegal operations can be established, and they maintain that the operations are neither illegal or injurious. Hence the present application for interdict.

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The respondents are by their Acts of Parliament vested with the whole works of the harbour, which includes within its limits the waterways and banks and works from the Suspension Bridge to the sea. In the year 1872, in pursuance of the Act of Parliament obtained by them in 1868, they diverted the channel of the river for a considerable distance below the Suspension Bridge, the effect of which was to a great extent to obliterate the old channel and destroy the fishing stations or shots of the Midchingle fishings, and of a part of the fishings immediately below, known as the “Raik” and “Stell” fishings. By the statute referred to— 31 and 32 Victoria, c. 138, sec. 82—it was enacted that the Harbour Commissioners should, before completing the diversion of the river, “make out and provide on lands belonging to them, or to be acquired by them for the purposes of this Act, such number of new shots or stations for fishings, and in such situations on either side of the new channel of the river, and with such extent of servitude or privileges on the banks thereof, and such access thereto as shall be requisite for the proper fishings of the river when so diverted, and as shall in case of difference be fixed by arbitration in manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, for the settlement of cases of disputed compensation by arbitration.” The persons who in 1868 were proprietors of the Midchingle, Raik, and Stell fishings did not insist upon the construction of the new shots or fishing stations, but entered into an agreement with the respondents by which they sold to the latter, for a price to be fixed by arbitration, the whole of the said salmon-fishings. That agreement was confirmed by the “Aberdeen Harbour Act 1871,” and the sale was afterwards duly carried out by the fishings being conveyed to the respondents for the price of £5100. The Act of 1871 repeals, inter alia, the 82d section of the Act of 1868, the same having been no longer necessary or applicable to the changed circumstances.

The respondents are, further, proprietors of the banks of the river, including the foreshores and alveus of the old channel, and of the foreshores of the existing channel, in virtue of conveyances from the proprietors of the lands of Midchingle, and from the Crown, and also of a decree of declarator at the instance of the respondents against the Lord Advocate, as representing the Commissioners of Her Majesty's Woods and Forests and the Board of Trade, dated 14th July and 15th October 1874. They are thus proprietors not only of the fishings of Midchingle, Raik, and Stell in the diverted channel (the extent of which has been considerably shortened by the diversion of the river), but also of the banks and foreshores on both sides of the river below the Suspension Bridge, and of all the works connected therewith.

By the Act of 1868 the respondents are authorised to execute the works marked on the deposited plans on the lands, water, and property described in the deposited Book of Reference; and by section 72, “to alter, enlarge, improve, remove, and maintain the piers, breakwaters, lighthouses, lines of rails, and whole other buildings and works, machinery, and conveniences hereby vested in them.” By section 74 they are empowered to deviate laterally from the lines of such works within the limits of lateral deviation marked in the deposited plans, and from the levels of the said works, as shown on the deposited sections to any extent not exceeding five feet; and by section 75 they are, within these limits, authorised ‘1 to make any deviation from or alteration on the deposited plans and sections which to them may appear expedient, provided always that they shall, before adopting and carrying the same into execution, submit the plans and sections of such deviation or alteration to the Board of Trade, and no deviation or alteration shall be adopted or executed by the Commissioners unless approved by the said Board of Trade, signified in writing under the hand of the secretary or otherwise as they may think proper.” None of these sections are repealed by the Act of 1871, and both Acts are to be read together as one Act.

After obtaining their two Acts of 1868 and 1871, the respondents proceeded, in 1872, to straighten and narrow the channel of the river from the Suspension Bridge downwards, and in the course of their operations, which were completed in March 1873, they constructed a high embankment on the north or left bank of the river, the face thereof being pitched—that is, roughly paved with large stones firmly packed together—to prevent injury to the embankment from wash of the water. The pitching was carried down to about the level of low water, a line of piles being inserted in the face of the embankment about thirty feet above low-water mark in order to increase its strength. The slope of the embankment from the ) piles to low water was about 1 in 3, which was found to be so steep that it was impossible for the respondents, in exercising their rights of salmon-fishing, to draw their nets upon the north side of the Midchingle channel.

In September 1875 they proceeded to lay down gravel and other materials about or below low-water mark, for the purpose of making the slope of the north bank less abrupt; but before proceeding with further alterations involving an alteration or deviation from the levels in the deposited plans and sections, they applied to the Board of Trade for their sanction, which was obtained in the month of January 1876 after opposition on the part of the present complainers. The respondents then proceeded to carry out the alterations of their original plans thus sanctioned by the Board of Trade, none of which are in excess of the deviations allowed by the statute. They removed the pitching from the lower part of the embankment for a space of about 130 yards along the river. They then made a perpendicular cut of from 18 to 20 inches into the earth of the embankment, and carried the embankment out towards the river on a slope of 1 in 7 instead of 1 in 3, after which they replaced the pitching and proceeded to strengthen the upper part of the embankment by depositing stones and shingle where the perpendicular cut had been made, and to deposit a quantity of stones and gravel in the river to a distance of 13 fathoms from the line of piles —that is, 48 feet from the bottom of the original pitching, so as to make a gradual gravelly slope available for the drawing of salmon nets. The result of these operations would have been to reduce by two or three feet the depth of water along the foot of the embankment, where after the diversion of the river the current was somewhat deeper than on the south or right bank, or in the centre of the stream. It does not

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appear from the evidence whether prior to the diversion there was any such difference in the depth of the various parts of the channel.

Such being the position of matters in February 1876, the complainers presented the present note of suspension and interdict for the purpose of having the respondents restrained (1) from depositing sand, mud, stones, or other similar materials, and from carrying on, or causing to be carried on, any operation or constructions on the existing bed or alveus of the Dee within the limits of the Midchingle salmon-fishery, at least in such a way “as either materially to obstruct the free passage of salmon and fish of the salmon kind in the water of the said river, or to enable the respondents either to fish for salmon where they could not previously fish, or more advantageously than they would be able to do unless the said operations were executed;” and (2) “from altering the bed or the bank of the existing channel of the said river within the said limits, and the lines and levels thereof, as the same are shown on the plans and sections deposited with reference to the Aberdeen Harbour Act 1868.” Interim interdict, in terms of the first branch of the prayer of the note, was on 21st March 1876 granted by the Lord Ordinary on the Bills in pursuance of a remit from the Lords of the First Division. The note was passed, the record closed, and a proof before answer allowed.

The complainers pleaded, inter alia—“(1) The operations complained of being illegal and unwarrantable, the complainers are entitled to suspension and interdict as craved. (7) The respondents as salmon-fishing proprietors are not entitled to execute any operations in the bed and on the banks of the river except such as are necessary to repair any injuries caused thereto by floods or otherwise, and to restore the said alveus and banks to the condition in which they were at the completion of the diversion on 1st March 1873.”

The respondents pleaded—“(3) The respondents are entitled in the exercise of their statutory powers to construct the banks of the said channel of the river Dee in such a manner as will enable them to exercise their right of salmon-fishing from the left as well as from the right bank of the river. (4) The respondents, as vested in the property of the river bank, are entitled to make any alteration on the same which may be requisite for the proper fishing of the river, provided such operations are not inconsistent with the provisions of the Act of Parliament, and obtain the approval of the Board of Trade. (5) The complainers not being in any way injured or threatened to be injured by the operations complained of, they have no title or interest to obtain the interdict sought.”

The Lord Ordinary recalled the interim interdict, and refused the suspension, adding the following note to his judgment. After a narrative of the facts (given above) the note was as follows:—

“ Note.— … Various questions are raised in the record as to whether the operations complained of are or are not works undertaken by the respondents in connection with their duties as Harbour Commissioners. But at the hearing after the proof both parties were agreed that the question truly at issue between them is, whether the respondents, as proprietors of the said Midchingle salmon fishings, are entitled to make shots upon the north bank of the river for the purpose of enabling them to exercise their undoubted right to these fishings. The respondents do not now maintain that any of the operations complained of are necessary for the purposes of navigation, or have been undertaken by them in pursuance of their duties as managers of the harbour or conservators of the river. On the contrary, they admit that they have been undertaken for the purpose and in the expectation of enabling themselves to fish more conveniently on the left bank of the river than they can at present do.

“The complainers, on the other hand, maintain — (1) That they, as upper heritors, have a title to complain of these operations of the respondents, whether injurious to the upper fishings or not, on the simple ground that no lower heritor, especially in a tidal river, is entitled to put stones, or sand, or mud, or any such article, in the bed of the river; (2) That in point of fact the operations complained of are prejudicial and injurious to the upper fishings, in respect that they obstruct the passage of salmon, or give the respondents an undue advantage in the capture of salmon as they pass up the Midchingle waters.

“With reference to the first contention of the complainers, that they as upper heritors are entitled to complain of operations by a lower heritor on the alveus of the river without instructing damage to their own fishings, or shewing that the operations are of the nature of fixed permanent obstructions, declared illegal by the various Fishery Statutes, as explained by decision of the Court, the complainers’ counsel were unable to refer me to any authority. The cases of Bicket v. Morris (H. of L.) 4 Macph. 44; Mather v. Macbriar, 11 Macph. 522; and Jackson v. Marshall, 10 Macph. 913, to which reference was made, are all cases of proprietors of opposite banks of the river complaining of operations by the opposite heritors in the alveus, of which each was proprietor ad medium filum, and in the whole of which each had a common interest to prevent encroachment. In the case of Forbes v. Smith, 2 Sh. 602, and 1 W. and S. App. 583, which was also cited, the question was one between the proprietor of one bank of a river without right of salmon-fishing and a party who, having no right to the land on either bank of the river, but a right of salmonfishing, had made fixed erections in alveo of the stream to the injury of the banks of the river, and these erections were on that ground ordered to be removed. The only other authority cited by the complainers was the case of Copeland's Trustees v. Maxwell, 13th June 1810, F.C., where stones placed by the lower heritor on the Nith at the edge of a pool below the Burgh Mills dam-dyke at the Bridge of Dumfries, were, in an action at the instance of the upper heritors, ordered to be removed. The report is extremely meagre, and not very accurate. I have examined the session papers, which contain the whole proof, and a plan prepared by order of the Court, and sworn to by the surveyor who prepared it, showing the whole localities and operations. The main object of the action was to have the defenders found liable in the penalties of the Act 1696, c. 33, for fishing below dam-dykes, and so far the defenders were assoilzied. But they were ordered to remove the stones, which are shown by the plan to have been

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an artificial pile projecting from the right bank of the river nearly half way across, immediately below the pool in question. They were of such a height that the fish could only get over them at full tide, and they thus plainly formed an obstruction to the passage of the fish to a gullet or slap in the dam-dyke, by which they found their way to the upper waters. None of the authorities, therefore, cited by the complainers support their first contention that they are entitled to have all materials removed from the lower part of the alveus, whether or not these are injurious to the upper fishings or illegal under the Fishery Statutes.

The next question is, Whether, in point of fact, the operations of the respondents complained of are illegal, as forming or calculated to form a fixed permanent obstruction to the free passage of the fish up and down the river? One thing is very clear, and that is, that if the operations complained of do not form a fixed permanent obstruction to the passage of the fish up and down the river, the mere fact that they may enable the lower heritor to use his net more advantageously than before, and so as to catch a greater number of fish, cannot give the upper heritor any title to complain. This I take to be the principle of the decision in the Bermoney Boat case ( Hay v. The Magistrates of Perth), 12th May 1861, 1 Macph. (H. of L.) p. 41. Now, I am of opinion that the complainers have failed to prove that any such obstruction will result from the respondents’ operations, and indeed that the respondents have proved that there will be none. The river is at the place in question about 30 feet wide at low water, its least depth being about 3 feet at the south side and centre, and its greatest present depth at the north bank, where it is about 5 or 6 feet deep. The effect of altering the slope of the embankment, and of depositing gravel along the foot of that slope, will certainly reduce the depth of the current there, and may tend to divert the fish nearer to the centre of the river, or even to the south side altogether; but the notion entertained and expressed by some of the complainers’ witnesses, that this gravel bed, which will still be covered at low water with about 3 feet of stream, would so frighten the fish as to turn them back to the sea and prevent them from ascending the river at all, appears to me to be entirely visionary. All the witnesses for the respondents, and some of the most trustworthy witnesses of the complainers, and particularly Mr George Davidson (who is a member of the Don District Fishery Board, a tenant of fishings in the Don with a rental of £1500 a-year, and whose father was pro indiviso proprietor of one-third of the Midchingle fishings before they were purchased by the respondents), distinctly say that the operations complained of will in no way obstruct the passage of the salmon, although the respondents may be able to catch more fish than heretofore.

On these grounds, therefore, I am of opinion that the complainers have entirely failed to make out any case for succeeding in the first branch of the prayer of their note of suspension. But the respondents do not rest their case solely upon the failure of the complainers to make out the operations complained of to be illegal and injurious obstructions. They maintain that everything which they have done and intend to do is lawful and within the express powers conferred upon them by their Acts of 1868 and 1871. I am of opinion that they have successfully maintained that proposition.

In the first place, it is clearly proved that without the operations complained of, the Midchingle salmon-fishings cannot be advantageously enjoyed on the north bank of the river in its new channel. But the Act of 1871 expressly enacts (section 4) that the respondents after acquiring the salmon-fishings in question may hold and enjoy them ‘and exercise all the rights of fishing for salmon belonging thereto, with all the necessary facilities therefor, in like manner and to the same extent as the proprietors could have done before such purchase.’ And it is further provided that upon the completion of the diversion of the river the complainers may by reason of the acquisition of the said river fishings, ‘acquire, and take, and may hold and enjoy the rights of fishing for salmon within and along the new channel of that part of the river Dee which is by the recited Act authorised to be diverted, with all the necessary facilities therefor, in like manner and to the same extent as the right of fishing for salmon in the present channel between the points of commencement and termination of the diversion is or may be held and enjoyed by the proprietors of the salmon-fishings therein.’

Now, what were the rights of the proprietors of the Midchingle fishings prior to the purchase thereof by the respondents? and what were the necessary facilities therefor to which they were entitled? It appears from the proof that prior to 1834 the Midchingle fisheries were used and exercised by means of four shots—two on the south bank and two on the north,—those on the north being the ‘Old Man's Head,’ a little below the Suspension Bridge, and on a part of the old channel corresponding very nearly to the part of the new channel in which the operations complained of are being carried on,—and ‘Muck's Hole,’ which is farther down the river, and to which the present proceedings apparently do not refer. But it is also proved that in 1834 an agreement was entered into between the proprietors of the ‘Midchingle’ fishings, now represented by the respondents, and the proprietors of the ‘Pot ’ and ‘Fords’ fishings, now belonging to the complainers, by which the whole of these three fisheries were to be wrought as one fishery, a proportion of the total fish caught being accounted for to the proprietors of ‘Midchingle’ fishings. All the three fishings were fished under that agreement from 1835 until the Midchingle fishings were acquired by the respondents in 1872, when, of course, that joint agreement came to an end. It is further proved, that in working the fishings the shots on the north side of the old channel were entirely disused after 1834, and, as might have been expected, fell into disrepair; and even those on the south side of the river were comparatively little used. The fishing was, in point of fact, mainly carried on in the ‘Pot’ and ‘Fords’ reaches of the water. Now, had the agreement in question for the joint working of the fisheries been terminated by mutual consent at any time before the Midchingle fishings were acquired by the respondents and the channel of the river was diverted, I think it cannot be doubted that the proprietors of Midchingle would have been at once entitled to perform all operations on the north bank of the old channel necessary to enable them

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to use the old shots on that bank. But if so, it appears to admit of equally little doubt that the respondents, as proprietors of the fishings in the diverted channel, are entitled to have at least the same facilities as the former proprietors would have had in the old channel—that is to say, they are entitled to adopt the present north bank of the river to the purposes of their fishery, provided they do so without causing any fixed or permanent obstruction to the passage of the fish. As I have already said, it is not only not proved that their operations will create such obstruction, but it is proved that no such obstruction will be caused. Indeed, the respondents are only doing that for themselves, as now proprietors of the fishings, which before the purchase, and but for the purchase of the fishings, they would, under the Act of 1868, have been compelled to do for the former proprietors.

“It is perhaps not very material to the case to observe—but still it may be noticed—that whereas during the four years preceding the diversion of the channel the proportion of the joint produce of the three fisheries accounted for to the proprietors of Midchingle as their share of the catch was 9700 lbs. weight per annum—the quantity of fish actually taken on Midchingle by the respondents themselves during the four years following the division was only 4100 lbs. per annum— clearly showing that the diversion of the river without the restoration of the shots on the north bank has caused, and will continue to cause, great deterioration of the Midchingle fishings. Unless, therefore, the present proprietors are found entitled to exercise the full right of fishing on both sides of the river, the complainers will be unduly and unfairly benefited to the prejudice of the respondents.

“As regards the second branch of the prayer of the note of suspension, it is really unnecessary to say anything. The alterations complained of are not beyond the lines of deviation authorised by the statute, and the sanction of the Board of Trade has been duly obtained. The complainers therefore appear to me to have no title to insist in this part of their application.

“On the whole matter, I am of opinion that the interdict must be recalled, and the note of suspension refused, with expenses.”

The complainers reclaimed.

At advising—