Scottish Court of Session Decisions

This was an action of declarator at the instance of the Provost, Magistrates, and Town Council of the Royal Burgh of Tain, proprietors of the lands of Morrichmore, which extend along the south shore of the Dornoch Firth, against W. H. E. Murray, Esq. of Geanies, proprietor of the lands of Arboll, which are also situated on the same shore, although they are discontiguous from the lands of Morrichmore, being separated from them by the Inver channel or bay, the conclusions of which were to have it found and declared “that the legal boundary or march between the salmon-fishings belonging to the pursuers in the estuary or sea adjacent to all and whole the lands of Morrichmore, in the county of Ross, also belonging to the pursuers, on the one part, and the salmon-fishings belonging to or claimed by the defender in the estuary or sea adjacent to all and whole the lands of Arboll, or part thereof, also belonging to or claimed by the defender, on the other part, is the medium filum of the Fendom Burn and Inver channel at low water, as delineated with a red line laid down on the copy Ordnance map produced herewith, or such other line as shall be found to be the legal boundary or march between the said respective salmon-fishings in the course of the proceedings to follow hereon.”

The titles of the pursuers and of the defender respectively contained grants of salmon-fishing ex adverso of their lands, but prescribed no boundaries within which the respective rights were to be exercised, and there was no evidence of possession of the fishings.

The pursuers averred—“The lands of Morrichmore

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consist of a large low-lying piece of ground, bounded on the north-west by the Dornoch Firth, on the north-east by the open sea, and on the south-east at low water by the Fendom Burn and Inver channel, which at high water form an estuary called Inver Bay. The foreshore of the Morrichmore is called the Whiteness Sands, and extends several miles in length, with an average breadth of about one mile from high to low watermark on the north-west side, and about 250 yards on the north-east side.… The defender's lands lie to the south-east of the pursuers' lands of Morrichmore, and are separated therefrom at low water by the Fendom Burn and Inver channel, which at high water form an estuary called Inver Bay. The Fendom Burn is a large stream formed by the confluence of a considerable number of burns. In ordinary spring tides the sea runs up it for 3 1 4 miles above the western march of the defender's lands (the march nearest to the Morrichmore). At low water the channel of the Fendom Burn at the said march is 246 feet in width, and too deep to be forded. In order to cross from the defender's lands to the Morrichmore at low water it is necessary to take a boat out by sea, or, passing entirely off defender's lands on to those of others, to proceed up the stream to a ford situated at fully half a-mile's distance from the nearest march of defender's lands, and to travel back from that ford upwards of a mile on the lands of Morrichmore or the foreshore in order to reach the fishing-ground and the nets. This ford is available only at low water, the depth at high water being from 8 to 10 feet, according to the state of the tides. At no state of the tide is it possible to pass by land or ford from the defender's lands to the Morrichmore or the Whiteness Sands, except by passing through the lands of other proprietors, and when the ford above mentioned is not available on account of the state of the tide this involves a detour of several miles.”

The defender's statement in answer was as follows:—“Denied that the Fendom Burn is properly speaking a fresh-water stream at all, but explained that it is a water-course by which the superfluous water from the Morrichmore and the adjoining lands drain in ordinary weather into the head of the Inver channel or bay, and that in drought it is totally dry. Under no conditions is it practicable for the ascent of fish of the salmon kind, nor have they ever been found there. The said Inver channel is therefore merely an indentation of the coast (a large part of it being on the foreshore ex adverso of the defender's lands), in which the water is entirely salt at all states of the tide. The retention of water in the said channel being assisted by a sand-bar at the mouth thereof, and the bed of the bay being composed of soft sand, the course of the channel at low water is constantly changing. After very high tides the channel has been noticed to alter its course by several hundred yards, and its configuration now is entirely different from what it was when the plan produced by the pursuers was made by the Ordnance Survey in 1872.” The defender stated that as the course of the Fendom Burn was to the east, the result as fixing as the boundary the line contended for by the pursuers, would be to deprive him of the greater part of the salmon-fishings ex adverso of his lands.

The Lord Ordinary ( Trayner) on 20th July 1886, before answer, remitted to Mr George M. Cunningham, C.E., who reported as follows:—“… That the defender's lands of Arboll lie to the south-east of the pursuers' lands of Morrichmore, and are separated therefrom at high water by Inver Bay, and at low water by the channel of that bay.

“The Fendom Burn is a very small stream running into the head of Inver Bay, the head of the bay being about a mile and a-half from the western march of the defender's lands. A short distance further up at South Pitnellies the burn is little else than a mere ditch; it does not appear to the reporter to be in any sense of the word a salmon river.

“The Fendom Burn from its source to where it enters the bay is about four miles in length following the sinuosities of the stream, and of this length it is tidal for about a mile and a-half.

“At low water the width of Inver channel, opposite the western march of the defender's lands, is about 246 feet, but whether it can be forded depends on the state of the tide. On the 18th of August last the depth of water in the channel opposite the defender's march was at low water 2 feet 6 inches.

“I have prepared a plan extending from the village of Inver to where Inver Bay joins the Dornoch Firth, showing the position of the channel on the 18th of August last, and the depth of water at various points along it, marked in feet and inches as it was at low water on that day.

“It will be seen that at the bar, or where it joins the Dornoch Firth, the water was just six inches deep, and for a distance of 400 yards up the channel it did not exceed at any place 1 foot in depth. Further up it got deeper, varying from 1 to 8 and 9 feet. I may mention that the tide on 18th August was said to be an exceptionally low one, and the depth of water at low water of spring-tides may therefore sometimes be a foot or so more than marked.

“The range of the tide on the above date was 11 feet 5 inches. By the Admiralty chart the range of ordinary spring-tides is 11 feet.

“The depth of water at the bar is at low water almost the same as at the village of Inver, and the practicability of fording the channel at either place depends entirely on the state of the tide. When Inver Bay cannot be forded at any point, no doubt a long detour would be necessary to get from the lands of the defender to those of the pursuers, unless by using a boat to cross Inver Bay.

“At the request of the pursuers I have marked on the Ordnance map in blue and lettered A B the ford referred to by them as ‘a ford situated at fully half a mile's distance from the nearest march of defender's lands.’

“No doubt this ford would be generally used by anyone coming down the road leading directly to it from the main road on the south? it is, of course, only available at or about low water. But the channel can be forded equally well at other points between that and the Dornoch Firth, and the reporter himself forded it in a cart on 7th August last at two places below the village of Inver.

“I have at the request of parties laid down in blue on the Ordnance 6 inch map the course of the Inver channel as on the 18th of August last. It

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will be seen that it has changed very considerably since the date of the Ordnance Survey in 1872; but there is nothing remarkable in that, as the whole bay being of sand the action of wind and tide must bring about frequent changes.

“I was asked by the pursuers to define ‘the medium filum of the channel of the Fendom Bum and Inver Bay at low water.’ I have accordingly drawn a dotted blue line down the centre of the Inver channel as it was on 18th August last. I do not consider that channel to be the Fendom Burn, because in my opinion the Fendom Burn terminates where it enters Inver Bay, about a mile and a quarter above the village of Inver.…

“I have also laid down on the Ordnance map a dotted red line, indicating what I think very fairly represents the general outline of the coast along a considerable portion of the Dornoch Firth at the place in question. I find that the line so laid down is a segment of a circle having a radius of 2 1 2 miles, and I have drawn from the centre of that circle a strong red line to the west boundary of the lands of Arboll, and therefore a line at right angles to the direction of the circumference of the circle at that point? and if I am right in the conclusion which I have formed regarding the matters dealt with in this report, I would respectfully submit that the line so drawn should form the western boundary of the fishings of Arboll.”

On 10th June 1887 the Lord Ordinary found and declared that the legal boundary or march between the salmon-fishings belonging to the pursuers in the sea adjacent to the lands of Morrichmore and the salmon-fishings belonging to the defender in the sea adjacent to the lands of Arboll, was the line laid down by the reporter.

“ Opinion.—The pursuers conclude for decree finding and declaring that the legal boundary between the salmon-fishings and those of the defender Mr Murray is the ‘ medium filum of the Fendom Burn and Inver channel at low water,’ or such other line as the Court may fix.…

“The pursuers' contention that the medium filum of the Fendom Burn and Inver channel should be adopted as the boundary line, proceeded upon the averment that the Fendom Burn and Inver channel (at all times practically the same in line and direction) afforded a natural boundary between the properties of the parties respectively, and should therefore be accepted where it reaches the sea, as the point from which the boundary line of their respective fishings should be drawn seaward. The ascertained facts, however, do not coincide with the pursuers' statements.

“From the report of Mr Cunningham it appears that the Fendom Burn is not at all of the character alleged by the pursuers; that it terminates where it flows into the Inver channel at a considerable distance from the sea, and does not there form any boundary between the properties of the parties; while the Inver channel cannot be regarded as a boundary at all, its character and line being subject to great and frequent changes through the effects of sea and wind.

“There being therefore no natural boundary which can be appealed to in aid of the solution of the present question, and no possession on the part of the pursuers proved or offered to be proved which could throw light upon the rights of parties, it appeared to me that the only mode which could be adopted to fix the boundary line which the pursuers desire to have fixed was that which was followed in M'Taggart v. M'Douall, 5 Macph. 534. I called the reporter's attention to that case, and desired him to lay down a boundary line between the fishings of the parties on the principle there adopted and since approved— Keith v. Smyth, 12 B. 66. Mr Cunningham did not find it possible to follow exactly the mode adopted in M'Taggart's case on account of the difficulty (arising from the natural contour of the coast-line) in obtaining any straight line which would represent the average line of coast. But he suggests a line of boundary which appears to be as favourable for the pursuers as any they could get, unless it were a perpendicular line dropped seaward from the mouth of the Inver channel. This line (from the mouth of Inver channel) is, in my view, for several reasons, a line to which the pursuers are not entitled. I adopt therefore the line suggested by Mr Cunningham, and find that to be the boundary between the fishings of the parties.”

The pursuers reclaimed, and argued—The question here was whether an artificial line laid down by the reporter, or whether the natural boundary should be taken as the legal boundary. The fishings were at all times separated by a permanent watercourse; this was the material averment of the pursuers and the report established it. The method followed by the reporter in ascertaining the average line of the coast was entirely new— M' Taggart v. M'Douall, March 6, 1867, 5 Macph. 534, per Lord Justice-Clerk 545; Keith v. Smyth, November 7, 1884, 12 R. 66; Laird v. Reid, March 14, 1871, 9 Macph. 699; Stewart Gray v. Fleming and Richardson, January 9, 1885, 12 R. 530. There was between the properties a boundary, consisting of a combination of river and sea. “Inver” meant the mouth of a river. The bar at the mouth showed its character. It was a clear physical boundary. The pursuers were therefore entitled to the fishings up to the medium filum of the channel.

The defender argued—The pursuers' case was that there was here a natural boundary, and that there was no need of an artificial line. But the report showed that there was no proper natural boundary, and the reporter was therefore bound to follow the rule of M'Taggart's case, and, as far as was possible in the circumstances, he had given effect to it.

At advising—