Scottish Court of Session Decisions

This action was raised by the Duke of Roxburgh, heir of entail in possession of the Earldom of Roxburgh and lordship and barony of Halydean, with the fishings, &c., pertaining thereto, against Sir R. J. Griffith of Pencraig and others, trustees of the late John Waldie of Hendersyde. The purpose of the action was (1) to have it declared that the pursuers had right “to fish for salmon and other fish of the salmon kind in the channel or portion of the river Tweed between the line marked by the letters A A on a sheet of the Ordnance Survey map on the west, the line marked by the letters B B on the said sheet on the east, the lands or estate of Edenmouth belonging to the defenders on the north, and an island or bank in the said river lying ex adverso of the farm of Banff Mill, belonging to the pursuer, on the south, and that by net and coble, rod and line, and all other lawful modes; and that the pursuer had good and undoubted right and title to practise and exercise the said right of fishing for salmon and other fish of the salmon kind in the said channel or portion of the said river Tweed from and upon the said island or bank, being the island or bank marked C on said map;” and (2) that a weir or cauld erected across the channel in question by the defenders “is an illegal encroachment upon and erection in the alveus of the said river, and is further an illegal obstruction to the passage of salmon therein, and that it is injurious to the pursuer, his rights and interest,” and should be removed.

The pursuer held the lands of Halydean, comprehending those of Sprouston, which were ex adverso of the river at the channel in question, under a barony title cum piscalionibus, and the pursuer's fishings in that neighbourhood were known as the Sprouston fishings. The pursuer's lands extended along the south bank of the river at the place in question, and opposite to them on the north bank the lands belonged to the defender. At this part of the river there were several islands, one of which, named “Banffmill Anna,” situated to the north or defender's side of the medium filum, divided the river into two channels, the one on the north being the channel in question. The defenders claimed sole right to the island as being to the north of the medium filum and in the parish of Ednam, the fishings in the barony of Ednam being their property.

The pursuer averred—(Cond. 6) “The channel to the south of the said island is shallow, and not adapted for the run of salmon or for salmonfishing, while the north channel is deep, and the main flow of the river is in that channel. The said north channel is well adapted for the run of salmon, and it is in it that the salmon in fact run. It is and has for more than forty years been the only water in that portion of the river in which the right of salmon-fishing could or can be practically exercised. The salmon-fishing in the said north channel is in fact, and has been always, or at all events for a period of greatly more than forty years, let and possessed as a part of the Sprouston salmon-fishings belonging to the pursuer. The pursuer and his authors have also always, or at least for greatly more than forty years, in virtue of their titles, fished for salmon and other fish of the salmon kind in the river Tweed ex adverso of the lands above described both above and below the place described in the conclusions of the summons by net and coble, rod and line, and all other lawful modes.” The defenders answered that salmon did run and lie in the south channel. The pursuers further averred that for more than the prescriptive period they had uninterruptedly fished in the north channel off the island in question by rod and line, “and in exercise of that right they have for greatly more than forty years used the island before referred to by fishing from and upon the same, particularly with rod and line, and for other purposes connected with the fishing. The north channel ex adverso of the said island is rocky, and not adapted for being fished by net and coble, and fishing by rod and line is the best and most lucrative mode of possessing the salmon-fishing in the said north channel.” They did not object to the defenders continuing to fish for salmon from their own bank as they had hitherto done. The possession was denied by the defenders.

The defenders averred that they also had fished in the channel by all available methods, including cairn nets so long as that mode of fishing was lawful, and also rod and line.

The pursuer's statement in regard to the cauld was as follows:—“The defenders or their author, or those for whom they are responsible, have recently illegally erected or built a weir or cauld across the said channel from their bank to the island before referred to, which obstructs the flow of the river and the run of the fish as well as the passage of boats, and prevents the pursuer's right of salmon-fishing in said channel and the neighbouring parts of the river from being fully exercised, to the loss and damage of the pursuer. The said weir or cauld is an illegal encroachment upon the alveus of the said river, and might prove injurious to the pursuer and his property in other ways.”

The defenders admitted the erection of the cauld, but explained that it was in point of fact beneficial to the fishing and run of salmon.

The defenders pleaded, inter alia—“(3) The fishings of the channel libelled are not within the pursuer's titles, because—1st, The said fishings are not within the parish of Sprouston; 2d, they are beyond the medium filum of the river Tweed ex adverso of the lands of Sprouston; and 3d, the pursuer has not had prescriptive possession of the same. (4) The defenders are entitled to absolvitor, because the fishings in question are their sole property. (5) The defenders are entitled to absolvitor

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from the conclusions relating to the cauld complained of, because—1st, The construction of the same was legal and within their rights; and 2d, because it is innocuutilitatis.”

The Lord Ordinary ( Curriehill) allowed a proof, and found as follows in fact and law—[ After stating the facts ut supra]—“That the said island, viz., Banffmill Anna, which is about an acre in extent, is situated to the north of the medium filum of the river, and that the solum thereof belongs to the defenders: ( Sixth) That from time immemorial the river below the cauld hasbeen divided intotwo main channels, called respectively the north channel and the south channel, and that the north channel flows between the north side of the said island and the north bank of the Tweed, belonging to the defenders, and that the south channel flows between the south side of said island and the south bank of the Tweed, belonging to the pursuer: ( Seventh) That from time immemorial and in ordinary states of the river by far the greater proportion of the water in the river which flows past the said cauld has flowed in the said north channel, and only a small portion in the south channel: ( Eighth) That from time immemorial salmon and fish of the salmon kind ascending the Tweed have been in use to ascend by the north channel and to lie therein, and have not been in use to lie in the south channel, or, except in time of high floods, to ascend by that channel: ( Ninth) That the bed of the north channel is so rocky that it never has been and cannot be fished by means of net and coble, and that the only practicable legal modes of fishing were by rod and line and by cairn nets, but that such nets could be attached only to the north bank of the river, and that the use of such nets on the island was impracticable, and if practicable would have been illegal: ( Tenth) That in virtue of their titles the defenders and their predecessors have for time immemorial fished for salmon in said north channel by rod and line, and also until 1857, when cairn nets were abolished on the Tweed, by means of cairn nets attached to their own north bank of the river, and that the whole of their said fishing was carried on from or upon the said north bank of the river, and never from or upon the said island: ( Eleventh) That the pursuer and his predecessors, in virtue of their titles, have from time immemorial, by themselves, their tenants and servants, been in use to fish for salmon for profit in the Tweed from Kelso, which is some miles above Sprouston, to Carham Burn, which is some miles below it, and that by means of net and coble in all practicable places, as well as by rod and line, and also to take their boats by the said north channel between their net fishings above the said cauld or weir and those below Banffmill: ( Twelfth) That for upwards of forty years, and from time immemorial, the pursuer and his predecessors, by themselves, their tenants and servants, have in virtue of their said titles been continuously, peaceably, and uninterruptedly, in the practice of fishing for salmon for profit and amusement in the said north channel, and that by means of rod and line: ( Thirteenth) That in these circumstances the pursuer and his predecessors have had full legal possession of salmon fishing in said north channel from the north side of said island, and that the pursuer has full right and title to continue said possession, and also to take boats up and down said channel for the purposes of his salmon fishings in the upper and lower water of the Tweed: Secundo, Finds ( first) that the defenders have recently, and without the consent of the pursuer, constructed in the bed of the said north channel a cauld across the upper or west end thereof, and that in ordinary states of the river the said cauld is covered by the stream; ( second) that the said cauld does not form any obstruction to the passage of salmon, but that it has the effect of diverting, to a certain extent, the flow of the river from the north channel into the south channel, and is therefore an illegal encroachment on the right of the pursuer; and ( third), and separately, that the said cauld illegally obstructs the passage of the pursuer's boats up and down the north channel; therefore finds, decerns, and declares in terms of the declaratory conclusions of the summons: Decerns and ordains the defenders to remove the said cauld, and to restore the said channel to the same condition in which it was prior to the erection of said cauld, and that within two months from this date, &c.

“ Note.—There are two questions involved in this action—(1) The right of the pursuer to fish for salmon in the north channel of the Tweed opposite the ‘Banffmill Anna;’ and (2) the right of the defenders to erect and maintain a cauld in that channel. The facts of the case as disclosed by the proof are so fully detailed in the findings of the foregoing interlocutor as to require no further explanation. I shall therefore confine the following observations to the questions of law which are raised by these facts, and in doing so I shall first consider the right of the defenders to erect the cauld complained of. That cauld is clearly proved to have caused a diversion (though not as yet to any material extent) of the flow of the Tweed from the north bank, which belongs to the defenders, towards the south bank, which belongs to the pursuer, and to have begun to wash away the island. The case therefore falls under the rule applied by this Court and by the House of Lords in Bicket v. Morris, July 13, 1866, 4 Macph. (H. of L.) 44. It is unnecessary for the pursuer to prove present damage or to state how he expects future damage to be caused. It is enough to say that the diversion of the stream may in future have serious consequences, which it is impossible at present to foresee. The pursuer is also proved to have from time immemorial used the north channel as a navigable stream for the transport of his boats from his net fishings in Sprouston Dub and the upper waters of the Tweed to those belonging to him below Banffmill. The defenders' new cauld illegally obstructs that use, as the pursuer has in my opinion established a right-of-way over that part of the Tweed for the purposes of his fishings even although he had failed in establishing a right to fish in that channel. The defenders are therefore not entitled to retain their cauld without the consent of the pursuer, who desires and is entitled to have it removed.

As to the pursuer's claim to fish for salmon in the north channel, I have, after much consideration, come to be of opinion that it ought to be sustained. Whatever may have been the effect of the original erection of the mill cauld by the pursuer's predecessors in diverting the flow of the river from the south to the north channel, the state of the river from time immemorial has been that the main flow of water passing that cauld is by the north channel and between the defenders'

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north bank of the river and the island or ‘Banffmill Anna.’ I think it not improbable that the cauld when erected had, as the defenders allege, the effect of diverting the flow from the south into the north channel, if indeed it was not the cause of the formation of the island. But from whatever cause, the main flow has been between the island and the north bank of the river. The island is undoubtedly on the north side of the medium filum of the river, reckoning from the north to the south bank, and although the evidence of the possession of the island by the de fenders as their exclusive property is slender, I think it must be held to belong to them in property. But the medium filum, though important as defining the extent of the solum of the alveus which belongs to each of the opposite riparian proprietors, is not conclusive, or in many cases material, in questions of salmon fishings; it is by possession that the extent of grants of salmon fishings attached to lands is to be defined, whether the grant is of ‘salmon fishings’ or of the lands ‘ cum piscationibus,’ and the right to fish for salmon in a river may by possession be extended beyond the lands expressly named in the grant to the effect of entitling the grantee to fish even ex adverse of the lands of an adjoining proprietor whether on the opposite or on the same side of the river— The Duke of Roxburgh v. Ramsay, 10 D. 665; Duke of Richmond v. Earl of Seafield, 8 Macph. 530. Now, the facts as to the possession are very fully and clearly disclosed in the proof. The pursuer has express grants of salmon fishings in various parts of the Tweed between Kelso and Carham Burn. Neither he nor the defenders, however, have an express grant of salmon fishings in the part of the Tweed now in question, but each has a grant of lands ‘ cum piscationibus’ which, if proper possession is proved, establishes the right to fish salmon in connection with his lands washed by the Tweed. Both parties have from time immemorial fished for salmon by means of net and coble ex adverso of their respective properties both above and below the north channel, and there is no dispute as to the general right of both to the salmon fishings in the Tweed ex adverso of their respective properties. The dispute between the parties relates solely to the north channel from a little below the end of pursuer's old cauld to about opposite the mouth of the tail race of the pursuer's mill.

Now, it is a fact, and a most important one, that in consequence of the rocky nature of the bed of the north channel it cannot be fished by means of net and coble, or otherwise than by rod and line, or by cairn nets. The defenders and their authors have fished in it regularly with rod and line, sometimes from a boat, sometimes from their own bank, but never from the island; and they were also regularly in use to fish by means of cairn nets until these were abolished by the Tweed Act of 1857.

The pursuer and his predecessors have also regularly fished for salmon in the said channel by rod and line, and always from the north bank of the island. This they have done openly, continuously, peaceably, and uninterruptedly, the fishing having been almost invariably let to tenants, chiefly professional salmon fishers, though sometimes merely sportsmen. But it is undoubted that the rod fishing in the north channel has from time immemorial, at all events for about seventy years, been systematically carried on by the pursuer and his predecessors and their tenants as part of a considerable commercial undertaking. From the formation of the island cairn nets could not be there used, and even if their use had been possible it would have been illegal, as such nets were only lawful when attached to the bank of the river, and not when attached to an island.

The defenders maintain (1) that no amount of fishing merely by rod and line can establish a right to salmon fishing; and (2) that at all events it cannot establish such a right in competition with the higher right which they have established by their cairn net fishing. On the general question I think the current of recent decisions has been tending strongly to this—that where the ordinary mode of fishing by net and coble is impracticable, rod fishing, if proved to have been carried on systematically, openly, continuously, and uninterruptedly for forty years upon a habile title, will suffice to establish a right, and specially ought to do so if, as in the present case, the part of the river in dispute is merely a small portion of a long stretch of water over the whole of which the pursuer has established or possesses an unquestionable general right and title to fish for salmon. I think it would be absurd to maintain that prescriptive possession by net and coble of every pool in a river capable of being fished by that method, exercised in virtue of a grant of lands cum piscationibus, which would undoubtedly give a general right to salmon fishing in such river, should yet be insufficient to support the proprietor's claim to fish for salmon with the rod in intervening streams and pools which do not admit of being fished by net and coble. But that is just the case of the pursuer—this north channel is merely a stream which cannot be fished by net and coble, but which is interposed between the upper and lower fishings, which undoubtedly belong to him.

The objection of the defenders, that their prescriptive use of cairn nets has given them as full a right to the whole fishings in the channel as if they had used net and coble, and has thereby excluded the pursuer's rod fishing from having the effect which it might otherwise have had, is not, in my opinion, well founded. The cairn nets (the construction of which is fully explained in the report of the case of Duke of Roxburgh v. Ramsay) did not command the whole river; they were fixed to the north bank, and only projected a short distance from it, and they were only used at night and in time of flood. They were no doubt in the case cited held to be possession of such a nature as to exclude the proprietor of the ground on which they had been fixed by the party possessing the fixing from interfering with that fishing even by rod and line, but it has never been held, and I can see no reason for holding, that their use is complete possession of the whole river in the sense in which net and coble fishing has been held to be complete possession, to the effect of excluding the proprietor of the opposite bank from using the rod and line— Duke of Richmond v. Earl of Seafield, 8 Macph. 530.

If, then, fishing with rod and line for the prescriptive period in a channel or river like that now in question by one holding a habile title is, in the absence of proof of exclusive possession by a third party, sufficient to establish a right to fish for salmon, I am of opinion that the pursuer

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must prevail in his claim. I think that, although the island may all be locally on the defenders' side of the medium filum of the river, it has nevertheless become the law of this river that the opposite riparian owners should not, as regards their respective rights of fishing, be controlled by the medium filum, but should fish from opposite sides of the north channel as if it had been the entire river, and as if its banks had been the banks of the respective parties. The principle on winch I have formed this opinion is to be found rmniug through many cases, and among others the cases of Earl of Zetland, 6 Macph. 292, and 8 Macph. (H. of L.) 144, and Wedderburn, 2 Macph. 902.

The result of the whole case is that the pursuer is entitled to decree of declarator as concluded for, and that the defenders must remove their cauld within a reasonable time, which I have fixed at two months from the date of the interlocutor. The pursuer will ultimately be found entitled to expenses—at all events to those hitherto incurred—but these are reserved in the meantime, and until the final issue of the cause. Leave is granted to the defenders to reclaim, as the present is obviously the most convenient stage for having my judgment reviewed, if the defenders should desire to take that course.”

The defenders having got leave, reclaimed, and argued—(1) The amount of possession proved by the pursuer was inadequate with reference to the kind of case which was required to be proved to establish a right beyond the medium filum. (2) Where in the endeavour to establish a prescriptive right to fishing a more energetic right was encountered, as in the present case the cairn nets of the defenders, the exercise of a less important right will not establish a prescriptive right to fishings, being merely the exercise of a privilege. In regard to the cauld, it was submitted (1) that it was not proved that there had been any throwing of the water on to the pursuer's lands; (2) that even if there had been an essential change in the current caused by the weir, it was not enough; it was necessary for the pursuer to show a reasonable apprehension of injury.

Authorities — The cases quoted in the Lord Ordinary's note, and the following— Orr Ewing & Company v. Colquhoun's Trustees, July 30, 1877, 4 R. (H. of L.) 116; Duke of Sutherland v. Rose, May 26, 1877, 4 R. 765.

Argued for respondent—There was no question as to the title of the parties, the only question was—Was their possession sufficient in amount and quality? It was submitted (1) that cairn nets were not an effective mode of fishing the channel; (2) that the cairn nets had not really fished the whole channel right across; (3) that for a prescriptive period there had been no challenge of the pursuer's rod fishing, which was the most advantageous, and indeed the only practicable method of fishing the channel from the pursuer's side. In regard to the cauld—It was not an improvement to the pursuer's fishing, and it was enough for its removal that the defenders had no right to put it there— Bicket v. Morris, quoted supra.

At advising—