Scottish Court of Session Decisions

The following narrative in this case is taken from the opinion of the Lord Ordinary ( Curriehill):—“The pursuer Lieutenant-Colonel Murray is infeft upon Crown titles in the barony of Touchadam, including, inter alia, ‘the lands of Polmaise, Saint Clare, … lying within the sheriffdom of Stirling, with the fishing of one boat upon the Water of Forth belonging thereto; as also with the right and privilege of one tide's fishing of salmon yearly whensoever the deceased William Murray of Touchadam, or his heirs of

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taillie after specified, shall please to make their option, from the Abbeyford to the Pow of Alloa in the said Water of Forth and sheriffdom foresaid, of the whole boats and nets within the said bounds, with the farm shotts of two boats within the said bounds, conform to use and wont.’

The defenders the managers of Allan's Mortification in Stirling are infeft in ‘All and Whole the salmon-fishing and other fishing in that part of the river of Forth which belonged to the lands of West Grange, called the Longrack, and whole privileges belonging to that fishing.’ These fishings are within the ‘bounds’ specified in the pursuer's titles above recited.

Founding upon the said titles, and upon earlier titles similarly expressed, Colonel Murray's fishing tenant, James Greenhorn (with his landlord's consent), sometime ago raised against Joseph Bisset & Company, the tenants of the Longrack fishings belonging to Allan's Mortification, an action for payment of various sums of money as the respective values of one tide's fishing in each of the years 1876, 1877, and 1878. The action was sisted to enable Colonel Murray to raise an action of declarator of his right against the managers of Allan's Mortification; and an action of declarator having accordingly been raised at the instance of Colonel Murray and Mr Greenhorn against Allan's Mortification and Joseph Bisset & Company, the two actions were conjoined.

In the declarator the pursuers ask to have it declared that in virtue of the titles and of the usage following thereon Colonel Murray ‘has the right and privilege of one tide's fishing of salmon yearly, whensoever he shall please to make his option, from the Abbeyford to the Pow of Alloa in the Water of Forth and sheriffdom of Stirling, of the whole boats and nets within the said bounds, with the farm shotts of two boats within the said bounds, according to use and wont;’ that the Longrack fishings are within these bounds; and ‘that in virtue of the said right and privilege the pursuer the said John Murray, and the other pursuer as in his right, are entitled to claim and receive the whole fish caught within the bounds of the said Longrack fishings during such one tide in each year as may be selected by the pursuers, or in the event of the said fish being retained by the defenders, to claim and receive the value of the said whole fish so caught during said tide.’ [This conclusion is not now insisted in so far as it relates to the ‘farm shotts.’] There is an alternative conclusion for declarator (which, however, is not now insisted in by the pursuers) to the effect ‘that in virtue of the said right and privilege the pursuers are entitled to the sole and exclusive right of fishing within the bounds of the said Longrack fishings for or during such one tide in each year as they may select, and also to the full and exclusive use of the whole boats and nets of the defenders for the purpose of the said fishing during the said tide.’ There is also a declaratory conclusion that the defenders Bisset & Company are bound to pay to the pursuer Greenhorn the value of all fish caught by them in the years 1876, 1877, and 1878, during the tides selected by the said pursuer during the said years, and there is a petitory conclusion for payment of £60, or whatever other sum may be found to be the value of the said fish. The pursuers maintain that they are entitled to select the tide's fishing either before or after the fishing has actually taken place.

The defenders resist both actions on various grounds, of which the most important are the following—(1) That the title of Colonel Murray confers no valid right to take the fish, or the value thereof, caught by the proprietor or tenants of Longrack fishings, or to use the nets and boats of these parties; (2) that in any view the privilege is personal to the proprietor of Polmaise, and is not communicable to tenants; (3) that the alleged right is of the nature of an innominate servitude, and is therefore invalid, and, separately, is not binding on the defenders as singular successors of the Earl of Mar, who, at the date of the original grant by him on which the pursuers found, was also the proprietor of the fishings now belonging to the defenders; (4) that the defenders have had free and uninterrupted possession of the fishings under their titles unburdened by the pursuer's alleged right; and (5) that in any event the measure of the right is the usage of more than the last forty years, which has been an annual payment of £1 as ‘bailie-tide’ for each boat employed in the defenders' fishings.”

The Lord Ordinary pronounced this interlocutor—“Having considered the conjoined actions, in the declarator finds, declares, and decerns that the pursuer John Murray, in virtue of his titles and possession had under the same, has the right and privilege of one tide's fishing of salmon yearly, whenever he shall please to make his option, in the Longrack fishings, in the Water of Forth, of the whole boats and nets used by the defenders in said fishings, according to use and wont; and that in virtue of said right and privilege the pursuer the said John Murray, and the other pursuer James Greenhorn as in his right, are entitled to claim and receive the whole fish caught within the bounds of the said Longrack fishings during such one tide in each year as may be selected by the pursuers, such selection being always made before the fishing of such tide is begun, or in the event of the said fish being retained by the defenders or others, the tenants or occupiers of the said fishings to claim and receive the value of the said whole fish so caught during said tide: Finds, declares, and decerns that the defenders Joseph Bisset & Company are bound to make payment to the pursuer the said James Greenhorn of the value of all the fish caught by them in the years 1876, 1877, and 1878, during the tides selected by the said James Greenhorn during the said years, and decerns: In the conjoined actions finds that the value of said fish, at the rate of £2 sterling for each of two boats used by the said last-mentioned defenders in the said tides during each of said years, amounts to the sum of £24 sterling: Decerns and ordains the said Joseph Bisset & Company to pay to the said James Greenhorn the said sum of £24 sterling, with interest at the rate of £5 per centum per annum from the 13th day of November 1878 until paid: Quoad ultra assoilzies the whole defenders from the conclusions of both actions, and decerns.

Note.—[ After the narrative quoted above]—These defences render it necessary, in the first place, to ascertain from Colonel Murray's titles the true construction of the grant upon which the pursuers found; in the second place, to explain

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these titles where they are obscure or ambiguous by the usage which may have followed; and, in the third place, to determine whether, in virtue of these titles and of the subsequent usage, the pursuers are entitled to succeed in their present claim to any, and if so to what, extent.

In 1635 the Earl of Mar appears to have been proprietor of the whole of the salmon-fishings in the river Forth from Stirling to Alloa, except a limited right of salmon-fishing by means of only one boat, attached to the lands of Polmaise, on the south side of the river, then belonging to Sir William Murray of Touchadam, a predecessor of the pursuer Colonel Murray. In addition to that right Sir William Murray and his predecessors appear to have been in use to enjoy one day's fishing annually over the whole of the Earl of Mar's water within the bounds mentioned. The earliest written title extant or produced in reference to this matter is a document entitled ‘Letters of Approbation,’ dated 22d June 1635, granted by the Earl of Mar to Sir William Murray in the following terms, viz.:—‘Be it kend till all men be thir pnt. Ires., We, Johnne Erle of Mar, Lord Erskyne and Gareoche, &c: Forsameikill as Sr. Williame Murray of Touchadame, knicht, and his predecessors, hes bene in peicabill possessioun and vse be thaimselfis and yair servandis, in yair names and at yair directioun, be vertew of yair richtis off ane dayis salmond-fisching yeirlie quhan he sould pleis to mak chois yairof, off the haill cobillis and nettis vpon the Watter of Forthe betwix the Brig of Stirling and the Pow of Alloway, and for the respect and favour we carie to the said Sr. Williame Murray, nawayis intending to prejudge him of yat privilege he and his predecessoris hes bene in vse and had heirtofoir, we, be thir p'nts, ar content and maist willinglie consents that the said Sr. Williame Murray bruik and injoy the said libertie of fisching within the foir-said boundis as he and his predicessoris hes bene in vse and custome, conforme to thair said richtis and possessioun, qlk we sall not quarrell nor impugne, and thairfoir willis and requyris the tennentis an dfischeris vpoun the said Watter, within the landis and boundis foirsaid, to reddilie ansr. and obey the said S. Williame Murray and his foirsaids with yair haill cobbillis and nettis for the said fisching quhan they sal be requyrit be him yairto, conforme to vse and wount; and consentis thir p'nts be reg'rat in the Buikis of Counsall and Sessioun ad futuram rei memoriam.’

“Sir William Murray was succeeded by John Murray, who was proprietor of Polmaise, in 1659, and who in 1676 resigned the same in the hands of the Crown in favorem of his eldest son John Murray jun., who obtained a Crown charter on 23d June 1676 in favour of himself and the heirs therein mentioned, of, inter alia, ‘Totas et integras terras de Polmais Sinelare nunc vocat Johnstoune cum do'ibus edificiis hortis pomariis p'tibus pendiculis et pertinen. hujusmodi quibuscunq. jacen. infra vicecomitat. n'rum de Stirling predict. cum piscaria vnius cymbae supra dict. Aquam de Forth ad easdem pertinen. ac etiam cum jure et privilegii vnius estus lie an tyde salmonum piscariarum annuat. quando placebit dict. Joanni Murray juniori ac suis predict. electionem earundem facere a lie frae the Abayfoord to ye Pow of Alloway in dict, aqua et vicecomitat. n'ro prescript, integrarum cymbarum lie cobles et return lie nets infra predict. bondas ejusdem et cum lie the ferme shots duarum cymbarum illi et suis predict. infra easdem bondas supraspec'at secundum vsum et consuet.’ By that Crown charter the whole subjects therein contained, including the right and privilege foresaid, were erected into the barony of Touchadam. It has been followed by a complete feudal progress of titles—the last being a Crown writ of clare constat in favour of the pursuer Colonel Murray, dated. the 1st and recorded in the Register of Sasines the 2d September 1862, the subjects in question being therein described in the terms quoted at the beginning of this note.

It will be observed that the terms of the Crown charter of 1876 and subsequent titles differ in some material respects from those of the Earl of Mar's letter of approbation in 1635. In the first place, the ‘jus et privilegium’ which in the ‘letter’ is said to be ‘a day's fishing,’ is in the Crown titles only ‘one tide's fishing.’ In the second place, in the ‘letter’ the Earl of Mar requires the tenants and fishers in the river ( i.e. his own tenants and fishers) to attend and assist with their nets and cobles. There is no such direction in the Crown titles. And, in the third place, the privilege is, by the charters, declared to include the ‘farm shotts’— i.e., the first shots—of two boats, which are not alluded to in the letters, and which, as already explained, are not now claimed by the pursuers.

Now, if the claims of the pursuers had depended solely upon the ‘letters of approbation,’ and if the terms of that document were to be construed apart from all proof of usage, I should have been inclined to hold (1) that the right or privilege of fishing thereby recognised was a privilege limited to the lifetime of Sir William Murray, though it might be exercised by him through his tenants or others having his authority; (2) that in exercising the privilege he was entitled to select any day which he might choose during the fishing season—to demand the attendance and assistance of the Earl of Mar's whole tenants and fishers within the specified bounds, with their nets and boats—and to carry off the whole produce of the day's fishing; but (3) that the privilege was one which the Earl would not have been bound to renew to Sir William Murray's successors.

The numerous references, however, in the ‘letters’ to usage as fixing the measure and the mode of exercising the privilege, render it impossible to fix any satisfactory meaning upon the terms of the document without inquiring into that usage. Now, we have an important piece of evidence on that point in a decree of the Court of the lordship and barony of Alloa, dated the 14th July 1659, in an action at the instance of John Murray of Touchadam against John Millar and others, ‘anent his tide fishing.’ Millar was the tenant or fisher of the West Grange fishings (of which Longrack formed a part), and he was sued for fifty shillings Scots ‘as the pryce of two salmond and two grilses detained be him aff the fishes taken be ym. in that tyd dew to the said Johne Murray for his salmond coble in the Water of Forth, this instant year of God 1659 year, conform to his right thereof.’ Millar compeared personally and confessed that he had detained the fish, admitted his liability for the value, and was decerned to pay the amount, with expenses.

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These proceedings show that the privilege had been continued in favour of Sir William Murray's successors—that it was recognised in Lord Mar's own Barony Court as a subsisting privilege—and that it was exercised by Mr Murray selecting a tide and claiming from the tenants and fishers the whole of the fish caught during that tide, or their value, and not by himself fishing the river either with or without the assistance of Lord Mar's tenants and fishers.

These facts throw some light upon the terms of the Crown charter of 1676, which, as I have explained, was expede upon a resignation by this John Murray in favour of his son John Murray junior. The words in that charter by which the right and privilege of a tide's fishing are conferred, renewed, or recognised, are as follows, viz:—‘Cum jure et privilegio estus lie an tyde salmonum piscariarum annuat… . integrarum cymbarum lie cobles et return lie nets infra predict bondas … secuudum vsum et consuet.’ These words, when read in the light of the decree of 1659, would indicate that the right or privilege, whatever it may have been originally, had come to be regarded as a right to demand one tide's salmon-fishing ( i.e., the produce of one tide's fishing) of all the boats and nets within the specified bounds, and such appears to have been the practice during more than a century after the year 1676.

The estates of the Earl of Mar were forfeited in 1715, and were sold by the Commissioners of Forfeited Estates in 1724 to James Erskine of Grange, who conveyed one-half thereof in 1725 to David Erskine of Dun, and a Crown title was expede in favour of these two persons. Thereafter various portions of the estates were sold by James and David Erskine to purchasers, and, inter alia, the lands of Easter Grange of Cambuskenneth (called also Black Grange), and the salmon-fishings thereof, were sold to or acquired by Scott of Scotstarvit, and the lands of West Grange and fishing were acquired by David Toshack and spouse. The fishings of West Grange, which include Longrack, were in 1779 acquired from Toshack's successors by the defenders ‘Allan's Mortification,’ whose title was completed by charter of confirmation in 1785, granted by John Francis Erskine, Esq. of Mar.

Various questions in relation to the ‘bailietide’ occurred during the eighteenth century between these purchasers or their fishing tenants and the predecessor of the pursuers. One of these arose in an action raised in 1763 by Scott of Scotstarvit against William Murray of Touchadam and Polmaise, who by his Crown titles had (as has been already mentioned) a right of salmon-fishing with one boat in connection with Polmaise, which is on the south side of the river, immediately opposite Scott's lands of Easter (or Black) Grange. The action was one of declarator by Scott and his son, as proprietors of the Black Grange salmon-fishings, to ascertain their right in said fishings alleged to have been encroached on by the proprietors of Polmaise. Proof was led, and many printed pleadings were lodged on both sides, and prints of these documents were at the close of the proof in the present action tendered by the pursuers as evidence for them, but were rejected as inadmissible. It is, however, competent to refer to the final decree of this Court in the action referred to, not as evidence, but by way of precedent. The final interlocutor, which is dated 9th August 1763, and is signed by the Lord President (Dundas), is as follows:—‘Upon report of Lord Edgefield, and having advised the state of the process, testimonies of the witnesses adduced, writs produced, together with the informations and additional informations given in hinc inde, the Lords find the pursuers have right to the salmond and other fishing on that part of the river Forth adjacent to their lands of Easter alias Black Grange of Cambuskenneth, and to fish the same with boats, nets, and every other lawfull way, and to draw their nets on either side of the said river as most convenient: Find that William Murray, defender, has right to fish on the said river opposite to the said lands of Easter alias Black Grange of Cambuskenneth with one boat only, and to draw his nets on his own side; and likeways that he has right to exact one tide's fishing yearly when he, the defender, shall chuse the same, and that of all the fishers’ boats and nets employed by the pursuers or their tenants in the said fishing, in name of bailie's tide; but find that the defender has no right or title to the farm's shott or first shott of the above-mentioned one boat's fishing upon the said river, and decern and declare accordingly.’ The importance of that decree as an authority in the present case consists in this, that the Court, after full inquiry and proof of usage, found that the proprietors of Polmaise had under their titles a good right to exact the ‘bailie-tide’ out of the Black Grange fishings, which are within the specified bounds, and immediately adjoin the Longrack fishings. If, therefore, the present pursuers can establish a usage of exacting ‘bailie-tide’ out of the Longrack fishings, the decree of 1763 is undoubtedly an authority in support of their claim to have their right to such exaction judicially declared and enforced.

In support of their averments as to usage the pursuers found upon, inter alia, certain proceedings in the Sheriff Court of Stirling in 1785 and 1788, at the instance of their predecessor Sir William Murray against various fishers in several parts of the river, and among others against ‘James M'Bea at Craigmill, who is sued for payment of £1 sterling as the bailie-tide of two boats fished by him on Longrack, demanded in August then last … which boats are liable to the petitioner in virtue of his rights for the foresaid bailie-tide, but of which they refuse payment or delivery of the fish.’ The proceedings in the action were protracted, and in the course of them the Master of Allan's Mortification was cited as a defender for his interest, and appeared and resisted the action. The decree in Scott of Scotstarvit's action was produced and founded on, and the right of the proprietor of Polmaise to exact a ‘bailie-tide,’ though questioned, was in the end recognised. The defenders, indeed, seem to have at last recognised the right to his ‘tide,’ and to have been willing that he should have either the fish caught or the value thereof, if duly demanded. What was really in dispute between the parties was the time and mode of making the demand. The pursuer maintained that he was not bound to select his tide until the close of the season, and that he was then entitled to claim the value of the largest catch which had been taken, while the defenders maintained that the selection should be made during the season and before the tide's fishing was commenced, and that nothing could be claimed by the pursuer unless

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so demanded. After much procedure, in the course of which the Sheriff-Substitute held that Sir William Murray was bound to make his selection and demand either before or immediately after the fishing of the tide, the fact of the demand having been made was referred to the oath of M'Bea, who deponed negative, and the result was that on 8th February 1788 the Sheriff-Substitute found that ‘it is incumbent on the pursuer or his tacksman to make a demand upon those liable for their bailie-tides yearly within the legal fishing season, and that the defender M'Bea having deponed that no such demand was made upon him is not now liable.’ The pleadings show very plainly that prior to 1788 the pursuer's predecessors were in use to exact a bailie-tide, and that the demand was generally made for the value of the fish.

It does not appear that subsequent to that time, and until recently, there had been any question between the parties interested as to whether the demand should be made before or after the fishing of the tide. I think that the Sheriff-Substitute was wrong in holding that the pursuer had the option of selecting his tide either at the beginning or at the end of the fishing. He was, in my opinion, bound to demand his tide ‘before the nets were wet.’ Any other construction, indeed, of the pursuer's right would be entirely inconsistent with the terms of the grant in the ‘Letters of Approbation,’ on which he founds his claim, because, as I have already pointed out, the terms of that document clearly imply that the grantee was, on the day selected by him, to go or send his servants to the river, and then call upon the Earl of Mar's tenants and fishers to assist him with their boats and nets. Such a right could clearly not be exercised unless at the beginning of the day's fishing. And there is nothing in the later titles to indicate that they must in that respect be construed differently from the ‘Letters.’ But, as I have said, the question did not after 1788 assume any practical importance, because, as the proof shows, there has been, since an early period in the present century, a uniform practice of commuting the tide's fishing into an annual money payment. The proprietors of Polmaise and their fishing tenants have been in use to exact from the fishers, not only of Longrack but of the river generally between Stirling and Alloa, an annual payment in lieu of ‘bailie-tide,’ and such payment has been uniformly made, though doubtless not without grumbling.

Until about forty years ago the payment was usually 10s. sterling per boat, but for the last forty years it has been increased to £1 sterling per boat, that being, until within the last twenty or thirty years, a fair estimate of the value of one tide's fishing of one boat, taking the average of the whole season. The amount of payment, however, appears to have been made (at all events until within the last twelve or fifteen years) matter of special arrangement at the beginning of a season, or at the beginning of a tack between the Polmaise fishing tenants and the parties liable in the burden. Thus the witness George Stevenson, who was tenant of Longrack in 1837 and 1838, says—‘I know about the bailie-tide. It was exacted from me in respect of the Longcrack fishings. (Q) How did you arrange as to the payment of the bailie-tide during the two years you had Longrack?—(A) I do not know exactly. There was just a private agreement to take so much in respect of the bailie-tide. There would be £1 paid for each boat, but I never saw a statement of the account. I never heard the sum that was paid—it was just slumped in with the other expenses. (Q) How much was paid when you were tenant of Longrack?—(A) I cannot say; it would be 10s. at least, perhaps £1. I have heard it was 10s. in the old times, but it came to be £1. (Q) Was it just a matter of bargain each year at the beginning of the season?—(A) Entirely that—just a private arrangement with the tacksman of the Little Hole fishing.’ To the like effect is the testimony of other witnesses. ‘Little Hole,’ it should be explained, is the name of the pursuer's fishing attached to Polmaise.

I think, therefore, that it may be held proved that there has never been any absolute fixed sum exigible or payable in respect of this bailie-tide, but that from time immemorial, and indeed for a period of two centuries and a-half, there has been a usage on the part of the proprietors of Polmaise to exact, and on the part of the proprietors of the other fishings on the Forth and their tenants to hand over or pay, either the actual produce of a tide's fishing or a sum of money yearly in lieu thereof, as ‘bailie-tide,’ and that the amount of commutation has been in use to be settled by private arrangement from time to time as an approximation of the actual value of the fish, the result being that it has increased from 10s. sterling per boat to £1. In these circumstances, if the pursuer Colonel Murray has a valid right to exact the ‘bailie-tide’ at all, he is entitled to demand either the produce of the tide's fishing or its actual value, but he must make his selection and demand his ‘tide’ before the fishing of that tide is begun.

The question, however, still remains, whether notwithstanding the terms of the pursuer's titles and the proven usage, the right is one which he is legally entitled to enforce against the defenders to the effect of demanding from them either the produce of the selected tide's fishing or the value thereof? The defenders, as I have already said, maintain that as they are singular successors of Lord Mar, and as their titles contain no reference to the burden, they are, notwithstanding the long usage, under no obligation to continue to submit to the exaction. The case of Scott of Scotstarvit is undoubtedly an authority. But as that judgment may perhaps not be conclusive of the question, it is desirable to ascertain clearly the true nature of the right claimed by the pursuers. One view insisted in by the pursuers is that the right is of the nature of an annual duty or prestation or casualty effeiring to the heritable office of Bailie of the Forth, and that the pursuer being expressly infeft in the prestation, and having been in use to exact the same, he and his tenants are now entitled to continue the exaction. In support of this argument the pursuers refer to a number of cases, such as M'Lay, M. 10,887, The Earl of Moray, M. 10,903, and various other cases reported in the Dictionary under the word ‘Prescription.’ But the argument, in my opinion, utterly fails. In all the cases referred to the casualties were attached to an existing heritable office, and were possessed by the actual holders of the office. But in the present case there is nothing of the kind. The pursuer Colonel Murray is not Bailie of the Forth, and, so far as the proof shows, there never

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was any such officer. The oases, therefore, which are referred to have no bearing on the case.

Neither can the right be said to be a right of property. No doubt the right of salmon-fishing is a separatum tenementum, which admits of being enjoyed apart from the possession of land, and which may be indefinitely subdivided—a good instance of which is to be found in the pursuer's own title, for while Lord Mar and his successors were proprietors of almost the whole fishings on both sides of the Forth from Stirling to Alloa, the pursuer is proprietor only of the fishings opposite to his lands of Polmaise, in so far as the right is to be enjoyed by means of one boat drawing the nets only on his own side. But the right and privilege of the ‘tide's fishing’ now claimed is something quite different. The grant, as interpreted by the usage, does not give to the pursuers any right of property—it confers upon him no active right which he can exercise either himself or through others. He is not entitled to dip a net of his own in the water; all that he is entitled to is to name one tide in each year, and to demand the produce of that tide, or its value, from the fishers of Longrack.

The right, therefore, appears to me to be of the nature of an innominate servitude, not necessarily binding on singular successors of the original granter, but capable of being made binding upon them by prescriptive usage such as is proved to have existed in the present case. The defenders have been proprietors of the Longrack fishings for one hundred years, and during all that time they and their tenants have knowingly and uninterruptedly submitted to the exaction. The burden more nearly resembles the servitude of thirlage than any other burden known to the law. In thirlage questions the payment by a landowner of dry multures during the prescriptive period, although he has taken none of his corn to the mill, implies an acknowledgment on his part that his lands are subject to the servitude. And so in the present case I think that the defenders, by their long continued and uninterrupted submission to the pursuer's exactions, have virtually acknowledged that the grant has imposed upon them a burden from which they cannot now escape. In short, the burden, although it might not have been binding on them as singular successors, if challenged at the time when they acquired the subjects in 1779, is one which they cannot now effectually repudiate.

The result, therefore, of the whole matter is that the pursuers are entitled generally to prevail in the action, but the decree of declarator which they ask must be qualified by a finding that they must make their selection of the bailie-tide in anticipation of the fishing, and not after it is finished. It is said, no doubt, that if they take that course the defenders will find ways and means of evading their right—that they will fish the waters carelessly or negligently, and will rather allow fish to pass the nets than take the trouble of catching them for the pursuers. On this point I shall merely say that if any such course shall be adopted by the defenders in mala fide, I cannot doubt that the law will be found strong enough to prevent such infraction of the pursuer's right. But I would suggest that the judicious course for all parties to follow is to commute, by an annual or periodical arrangement, the value of the fishing for a money payment.

As to the actual value of the tide's fishing during the years 1876, 1877, and 1878, for which the pursuer claims £60— i.e., at the rate of £5 a boat each year—there does not appear to me to be any satisfactory evidence. The defenders, however, aver in the record that £1 per boat is far below the true value of the tide's fishing, and on the whole I think that £2 per boat may be taken to be the fair value of the fishing during the years libelled. Decree will therefore be given for the sum of £24, which is about the sum sued for in the original action.”

The defenders reclaimed.

Authorities— M'Lay v. Skelmerlie, July 10, 1673, M. 10,887; Gardner v. Earl of Aboyne, Nov. 27, 1734, M. 14,517; Aboyne v. Farquharson, Nov. 16, 1814, F.C.; Aboyne v. Innes, July 10, 1819, 6 Paton's App. 444; Magistrates of Edinburgh v. Scott, June 10, 1836, 14 S. 922; Harris v. Magistrates of Dundee, May 29, 1863, 1 Macph. 833; Mactaggart v. Macdouall, March 6, 1867, 5 Macph. 534; Patrick v. Napier, March 28, 1867, 5 Macph. 603; Erskine Inst., ii. 9, 23, and iii. 7, 8; Bell's Prin., secs. 992 and 1016.

At advising—