Scottish Court of Session Decisions

This was the sequel of the case of Baroness Gray against Sir John Stewart Richardson of Pitfour and Mrs Fleming of Inchyra, reported 14th July 1876, 3 R. 1031, 13 S.L.R. 230, aff. 4 R (H. of L.) 76. In that action the Court of Session found “that the pursuer had the sole and exclusive right of salmon-fishing in the river Tay ex adverso of that piece of ground formerly called the Meadow Pows or Powlands of Inchyra, which lies to the westward of the shore indicated by the letter C on the plan No 79 of process … Find that neither of the defenders have any right of salmonfishing ex adverso of the said piece of ground.”

That decision was affirmed in the House of Lords.

This was an action at the instance of Edmund Archibald Stuart Gray, of Gray and Kinfauns, the successor of Baroness Gray, against Mrs Fleming of Inchyra, and her husband the Rev. Archibald Fleming, and against Sir James Thomas Stewart Richardson of Pitfour, the successor of Sir John Richardson, to have it found and declared “that the western boundary of the salmonfishing in the river Tay belonging to the pursuer, ex adverso of that piece of ground formerly called the Meadow Pows, or Powlands of Inchyra, which formerly belonged to the pursuer's predecessors, and which now belongs to the defender Sir James Thomas Stewart Richardson, is a line drawn across the said river due south from the point indicated by the letter P on the plan produced, and that the eastern boundary of the said fishing is a parallel line drawn across the said river due south from the point indicated by the letter C on said plan: Or otherwise, that the western and eastern boundaries of the pursuer's said fishing are lines drawn across the said river from the points indicated on said plan by the letters P and C, or by the letters Q and C, in such direction, either due south across the said fiver, or at right angles to the medium filum thereof; or otherwise, as may be ascertained and fixed by our said Lords in the course of the process to follow hereon;” and that it should be found and declared that the defenders had no right of salmon-fishing in the river within these boundaries, or within such limits as might be fixed by the Court. There were also conclusions for interdict.

The pursuer stated that “for a number of years previous to the year 1874 the defenders Mr and Mrs Fleming and their fishing tenants had been in the practice of fishing for salmon ex adverso of the said Meadow Pows or Powlands of Inchyra,” but that in that year Baroness Gray had raised the action which terminated in the judgment above quoted, by which the pursuer's rights to the fishings ex adverso of that piece of ground formerly called the Meadow Pows or Powlands of Inchyra, which lies to the westward of the stone indicated by the letter C on the plan, was established.

Mr and Mrs Fleming's answer to this was as follows—“Admitted that for a number of years previous to 1874 the defenders and their fishing tenants fished for salmon ex adverso of the said Meadow Pow. Explained that they did so as they believed they had the right thereto, and explained further that the said fishings ex adverso of the Meadow Pow are not of sufficient extent

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to be profitably fished by themselves, while the defenders could do so, because they are proprietors of the ‘Hen’ fishing, which lies immediately contiguous above the said Meadow Pow.”

The Meadow Pow or Powlands of Inchyra at one time formed part of the lands of Inchyra, but came by excambion to form part of the lands of Cairnie, the property of Sir James Richardson. The pursuer's fishing ex adverso of the Meadow Pows was called the “Meadow Pow,” and the fishing immediately to the west was called the “Hen,” and belonged, with one-half of the lands of Inchyra, to the defenders Mr and Mrs Fleming. The fishing immediately to the east of the “ Meadow Pow” was called the “Dadhead,” and belonged to the defender Sir James Richardson.

The pursuer averred that the eastern boundary of the “Meadow Pow” fishing was fixed by the former judgment to be the point C, and that the western boundary was the point P, being the march at high-water between the Meadow Pow and the other lands of Inchyra, and also between the parish of St Madoes on the east and Kinnoull on the west, and that the true boundaries riverward of the fishing were—On the west, a prolongation of the line O, Q, P, being the march between the parishes; and on the east, a prolongation of a line drawn through the points A, B, C, on the plan, or else parallel lines drawn from P and C across the river, either due south or at right angles to the medium filum.

Mr and Mrs Fleming denied that the western boundary of the Meadow Pow fishing started from P. They averred that it was a line drawn due south from the point Q to the medium filum, and that they had had exclusive possession from time immemorial of the “Hen” fishing up to that line. They further averred that the “effect of holding the true boundary between the ‘Hen’ fishing and the ‘Meadow Pow’ fishing to be a line drawn at right angles to the medium filum would be to give a different line as between these kavels and all the others, and to give the defenders less and the pursuer more than the just and equal half of the salmon-fishings of Inchyra; and further, … would render the ‘Hen’ fishing unworkable from its accustomed hailing places or to profit, while at the same time it would not make the ‘Meadow Pow’ fishing of sufficient size to be worked by itself.” They also averred that Sir James Richardson and his predecessors had never enjoyed possession of any fishing to the west of a due south line drawn from the point C.

Sir James Richardson admitted that the eastern boundary riverward of the pursuer's fishings was a line drawn from C across the river at right angles to the medium filum. He averred that if the line A, B, C, or the twelve o'clock line, was adopted as the eastern boundary of the pursuer's fishings, the result would be to give the pursuer a considerable fishing ex adverso of the Meadow Pows. If the twelve o'clock line through P or Q was adopted as the western boundary of the pursuer's fishings, the result would be to give the defenders Mr and Mrs Fleming a considerable part of the fishing ex adverso of the Meadow Pows.

The Lord Ordinary ( Fraser) on 12th June 1884 allowed a proof.

Sir James Richardson reclaimed, and the pursuer concurred with him in asking that a remit should be made in order that the boundaries might be laid down as in the cases of Laird v. Reid, March 14, 1871, 9 Macph. 699, and M'Taggart v. M'Dowall, March 6, 1867, 5 Macph. 534.

Mr and Mrs Fleming maintained that ex adverso was a flexible term which was capable of explanation by proof of possession.

The Court on 4th July 1884 recalled the Lord Ordinary's interlocutor, and made this remit:—“Before further answer, remit to Mr George Cunningham, C.E., to consider the statements of parties on record, with the plans produced, and decree-arbitral of 1795 [referred to in the previous case], and to inspect the fishings of ‘Meadow Pow,’ and adjoining fishings on each side thereof, and the position of the old march-stones on the banks of the river; and having met with and heard the parties or their agents, to lay down on the Ordnance Survey map a straight line representing the average direction of the middle line of the river, and to report —(1) Whether the eastern boundary of the ‘Hen’ fishing and the western boundary of the ‘Meadow Pow’ should be determined by a line through the point Q or through the point P, or through what other point on the land: (2) Whether the lines forming the boundaries of the ‘Meadow Pow’ fishing, through the points Q or P, or other point as aforesaid, on the west, and C on the east, should be drawn at right angles to the medium filum, or due south, according to the twelve o'clock line, or in what other manner, as shall seem to him best fitted to secure to each of the parties the fishings ex adverso of the lands of Inchyra, of Meadow Pow, and of Cairnie respectively; with liberty to any of the parties to request the reporter to lay down any other line or lines on any other principle tending to elucidate or illustrate the questions in dispute; and direct the reporter to accompany his plan with such explanations as he may think necessary or useful,” &c.

Mr Cunningham reported as follows:—“I have now laid down on an Ordnance Survey map a straight line representing the average direction of the middle line of the river, so far as ex adverso of the lands of Meadow Pow, and which line I have marked with the letters M F. I beg to suggest that the eastern boundary of the Hen fishing and the western boundary of the Meadow Pow fishing should be a line passing through the points Q and P, and represented on the Ordnance map by the black dotted line indicating the division of the parishes of Kinnoull and St Madoes as far as the centre of the river, and which line is marked Q P N; and that the eastern boundary of the Meadow Pow fishing should be the line C D drawn from the point C at right angles to the line representing the medium filum of the river.

It appears to be admitted, and the old march stones on the banks of the river above referred to, with the exception of the stone at Q, which has been displaced, and now lies in the ditch there, generally indicate, that the fishings of Inchyra, which belong in alternate lots to Mr Stuart Gray of Kinfauns and to Mr and Mrs Fleming of Inchyra, are fished by what is known as the twelve o'clock line—that is, a due south line. This arrangement may work very well where proprietors have alternate fishings, and where the river is running in an easterly direction, but it is evident that it can never be a rule of universal application, or one which could reasonably be enforced against an adjoining owner in the position of the

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defender Sir J. T. Stewart Richardson; and therefore as regards the eastern boundary of the Meadow Pow fishings I have no hesitation in reporting in favour of the line above suggested.

If the twelve o'clock line were adopted, and drawn from the point C, it would extend the fishings of Meadow Pow so as to be ex adverso of a considerable portion of land which, with the fishings, belong to Sir James Stewart Richardson.

As regards the eastern boundary of the Hen fishing, and the western boundary of the Meadow Pow, if the twelve o'clock line were enforced, and drawn either from the point P or the point Q, and assuming the eastern boundary to be the line from the point C at right angles to the medium filum line, as I have suggested, the lands of Meadow Pow would practically be deprived of any fishing, a result which could not have been contemplated.

Neither can I recommend as the western boundary of the Meadow Pow fishing, a line at right angles to the medium filum line, owing to the above-mentioned arrangement or practice between the two alternate owners of the Inchyra fishings, as I think, keeping that in view, it is more equitable to adopt the line I have suggested.

If the pursuer and the defenders Mr and Mrs Fleming were to agree to adopt the right angle to the medium filum line as the division between all their fishings, it would at once remove all difficulty; and in that case the western boundary of the Meadow Pow fishing and the eastern boundary of the Hen fishing would be a line at right angles to the medium filum, drawn from the point Q.”

Counsel were heard on Mr Cunningham's report, when it was argued for Mr and Mrs Fleming—That the western boundary of the Meadow Pow suggested by the reporter could not be taken, because it was against the terms of the decree-arbitral of 1795 (for which vide the previous case); that the decree-arbitral was a contract by which it was agreed that the land kavels should be massed and divided into two lots, and also that the water boundaries of the fishings should be fixed. The western boundaries of the Meadow Pow fishing, as fixed by the decree-arbitral and possessed ever since, was a due south line drawn from Q. Moreover, that both they and the pursuer were proprietors of kavels, and that by the rule of the kavels the fishing boundary was a due south line.

Argued for the pursuer—He was entitled to have either due south lines on both sides or lines at right angles to the medium filum, but the lines ought to be parallel on both sides. The decree-arbitral fixed the boundaries by points, leaving the direction of the line to be afterwards determined. The question being as to the meaning of a former judgment, it was to a certain extent matter for regulation by the Court. The pursuer had no objection to the boundaries suggested by the reporter.

At advising—