Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0833.html
Cite as: [1882] SLR 19_833, [1882] ScotLR 19_833

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SCOTTISH_SLR_Court_of_Session

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Court of Teinds Inner House Second Division.

[Sheriff of Dumfries and Galloway.

Friday, May 12. 1882.

(Before Lords Young, Craighill, and Rutherfurd Clark.)

19 SLR 833

Earl of Galloway

v.

Stewarts.

Subject_1Fishings
Subject_2Salmon
Subject_3Fishings
Subject_4Solway — Privileged Fixed Engine — Salmon-Fishing Act 1861 (24 and 25 Vict.c. 109), sec. 11 — Salmon Fisheries (Scotland) Act 1862 (25 and 26 Vict. c. 97), sec. 33 — Solway Salmon Fisheries Commissioners Act 1877 (40 and 41 Vict. c. ccxl.), secs. 3, 4, and 5.
Facts:

Held that no fixed engine used for taking salmon in the Solway Firth can be a privileged fixed engine in terms of the Act of 1877, for which the user cannot produce a certificate of privilege granted by the Commissioners appointed by that Act. The rights of the Crown are not excluded from the saving clauses of section 4 of that Act.

The Crown lodged with the Solway Salmon Fisheries Commission a claim of privilege to use certain nets. This claim was withdrawn before it had been determined, and the Crown tenant, whose lease had nearly expired, did not press the claim on his own account. The Crown thereafter let the fishings to a new tenant, restricting him to legal modes of fishing. The Lords interdicted this tenant from using these nets, in respect they had not been shown to the Commissioners to be privileged, and no certificate to that effect had been produced.

Headnote:

The defenders in this case, John and Robert Stewart, were tacksmen of salmon-fishings belonging to the Crown on the shores of the Solway Firth ex adverso of the lands of several proprietors, stretching from Luce Bay round Burrow Head into Wigtown Bay, and marching on their northern boundary with the lands of the pursuer Lord Galloway, who held the fishings ex adverso of his own lands partly (and these immediately adjoined the defenders' fishings) on lease from the Crown and partly as his own property. The pursuer's fishings were all situated in the district of the river Bladenoch, as such was defined by a bye-law made by the Commissioners acting under the Salmon Fisheries (Scotland) Act 1862. The defenders' fishings were outside of the statutory district of the Bladenoch. Fixed engines in the form of bag-nets had been used by the pursuer and by the defenders' predecessors in their respective tenancies. On the 10th of April 1878 the Solway Commissioners held a Court at Wigtown, at which the pursuer obtained certificates of privilege for his nets in the fishings which belonged to him. The Court, however, held the engines in use on the fishings leased from the Crown by the pursuer and other tenants of the fishings afterwards leased to the defenders, to be unprivileged and illegal. A claim that the engines on the latter fishings were legal and privileged was lodged by the Commissioners of Woods and Forests on 16th July 1878, but afterwards withdrawn on the 24th of October
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following. The tenants of the fishings at that time, the defenders' predecessors, took no steps to vindicate their right to use fixed engines, and warrants were issued in February and March 1879 for the removal of the whole nets, and they were removed accordingly.

The defenders' lease was granted as from Martinmas 1879. It bore to be “subject to the provisions of the laws and statutes now or to come in force regulating salmon-fishing in Scotland.” The defenders produced a letter from the Commissioners of Woods and Forests in reply to an inquiry of theirs while negotiating the lease, whether fixed engines were permissible in the fishings in question, answering that “the mode or modes of fishing to be exercised are only such as are legal,” and that “what particular mode or modes are legal at any particular place is a matter for local inquiry;” and also a letter from the Commissioner of Salmon Fisheries in reply to a similar inquiry, giving his opinion that they were entitled “to use bag, stake, or fly nets” as might best suit their purpose. The defenders thereafter erected the bag-nets now in dispute.

The present action was raised by the pursuer to interdict the defenders from the use of bagnets or other fixed engines, alleging hurt and prejudice to his own fishings from such use.

The pursuers maintained that the nets in question were privileged fixed engines in the sense of the Solway Act of 1877, and that their fishings were exempted jure coronœ from the restrictive provisions of the Act.

After proof the Sheriff-Substitute ( Rhind) found, inter alia—“That the 33d section of the Act of 1877 applied to salmon fisheries ‘on the waters and on the shores of the Solway Firth, situated in Scotland,’ and in its interpretation clause it was expressly provided that the proprietor of a salmon-fishery should also include Her Majesty, in right of her Crown; that the saving clauses of the 11th section of the English Act of 1861, which is extended to Scotland by the said section of the Act of 1862, and the similar clauses in the subsequent Act of 1877, could not be held to include the right or title of the Crown, which cannot be said to catch salmon in pursuance of any ‘grant or charter or immemorial usage,’ but were exclusively applicable to private patrimonial rights vested in subjects of the Crown; that the Act 1877 had not been passed for the purpose of declaring salmon-fishing by stake-nets or fixed engines in the Solway to be illegal, which had already been done by the Act of 1862, but to provide an executive authority for putting in force the provisions of section 33 of Act 1862 along the Scottish shores of the Solway; that the results of the Acts of 1862 and 1877 had been to deprive the Crown of the right to use bag-nets or fixed engines for the taking of salmon in the waters of the Solway Firth; therefore, that the defenders' contention that the Crown is exempt from the provisions of the Act of 1877 could not be maintained; that the use of bag-nets by the defenders was injurious to the pursuer's fishings; that the nets in question not having been certified by the Commissioners were unprivileged and illegal; and granted interdict.”

The defenders appealed to the Second Division of the Court of Session, and argued—That the Crown did not require the Commissioners' licence, and that even if it did its rights could not be prejudiced by the negligence of its servants in not obtaining one.

At advising—

Judgment:

Lord Young—I cannot agree with the Sheriff-Substitute that the saving clauses of the Act of 1877 cannot be held to include the right of the Crown. But I am nevertheless of opinion that the fixed engines of the respondents are not privileged engines according to the Act of 1877, and that the Earl of Galloway has a sufficient title to complain of them as illegal, as they are so unless privileged under the Act of 1877. I think there is no need to go to prior Acts on the subject of fixed engines. All fixed engines in England are illegal unless privileged in terms of the Act of 1861. That Act makes certain contrivances privileged fixed engines for the purpose of protecting and preserving existing rights within certain limits. Previous Acts had put down all fixed engines. The Scottish Act of 1862 extended the provisions of the English Act of 1861 in regard to fixed engines to the Solway fisheries on the Scottish side. That was superseded by the Solway Act of 1877. Its language, however, is not altogether the same as that of the English Act. The latter Act says—“But this section shall not affect any ancient right or mode of fishing as lawfully exercised at the time of the passing of this Act by any person by virtue of any grant or charter or immemorial usage;” while the words of the Act of 1877 are only these—“Such fixed engines as were in use for taking salmon during the open season of one or more of the years 1861, 1862, 1863, and 1864, in pursuance of any grant or charter or immemorial usage.” That is the definition given in the Act of privileged fixed engines which are to be protected for the preservation and protection of existing rights. Commissioners who are appointed to itinerate for the purpose of executing the policy of the law, are directed to inquire into the legality of all fixed engines in the Solway in Scotland—“The Commissioners appointed under this Act shall inquire into the legality of all fixed engines erected or used for taking salmon in the waters and on the shores of the Solway Firth in Scotland, as the same have been fixed under the authority of the Salmon Fisheries (Scotland) Act 1862, and in the rivers flowing into the same.” In the course of one of these journeys they were proceeding to inquire into certain fixed engines on Crown fishings, but where the fixed engines were in the possession of tenants of the Crown, and found and intimated the character of these nets according to the provisions of the Act; and the Commissioners of Woods and Forests lodged a claim of privilege. This was on 16th July 1878. They afterwards withdrew this on 24th October. Then the only person before the Commissioners was the Crown tenant M'Queen, whose lease was nearly out. He having no interest to continue the strife, lodged no claim on his own behalf. So there was nothing to show that these were original fixed engines. They were therefore declared not to be privileged fixed engines to the satisfaction of the Commissioners, and one sufficient reason was the absence of any evidence to the contrary. And so they were removed in the following year. The Crown then let the fishings to the respondents, and in answer to an inquiry

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on the part of the latter, replied that only legal modes of fishing were to be exercised, and so put the respondents to their own inquiry. It is scarcely possible to doubt that the tenants knew the real state of the facts, but chose to take the adventure. The nets were not exactly on the same spot, but were in the same region as the former tenant's, and were in exercise of the same right—a lease from the Crown. The question is merely—Are these nets privileged or not? Fixed engines they are. Are they privileged? If not, the Earl of Galloway has a title to interdict them. I am of opinion that they are not, for it is not proved to the satisfaction of the Commissioners that they came under any of the exemptions in the Act of Parliament. The only party interested has offered no evidence to the contrary. In short, they are not privileged fixed engines in the sense of the Act of 1877, and the Earl of Galloway having sufficient title is entitled to interdict as craved.

Lord Craighill—I am entirely of the same opinion.

Lord Rutherfurd Clark—The question here is, Whether the fixed engines used by the respondents are privileged or not under the Act of 1877? I do not think an engine can be privileged unless the person using it produces the certificate of the Commissioners under the Act that it was used for the statutory period prescribed.

The Lord Justice-Clerk was absent.

The Lords recalled the Sheriff-Substitute's interlocutor, and granted interdict of new.

Counsel:

Counsel for Appellants (Defenders)— Mackintosh— Murray. Agents— Russell & Dunlop, W. S.

Counsel for Respondent (Pursuer)— Brand— M ‘Kechnie. Agent— Thomas Carmichael, S. S. C.
1882