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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duke of Fife v. George (Clerk to Deveron Fishery Board) [1897] ScotLR 34_440 (23 February 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0440.html
Cite as: [1897] ScotLR 34_440, [1897] SLR 34_440
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SCOTTISH_SLR_Court_of_Session
Page: 440↓
Court of Session Inner House First Division.
v.
Facts:
Sub-section 6 of section 6 of the Salmon Fisheries Act 1862 empowers the Fishery Board Commissioners to make general regulations with respect, inter alia, to the construction and use of cruives, … “provided that such regulations shall not interfere with any rights held at the time of the passing of this Act under royal grant or charter, or possessed for time immemorial.”
By Schedule F of the Salmon Fisheries Act of 1868 the Commissioners made a regulation that no cruive should be less than 4 feet broad.
A proprietor owned a right of salmon-fishing by cruives under royal charters, which contained no specific provisions as to the size of the cruives.
In an action raised against his predecessor in 1774 by upper riparian proprietors for the purpose of regulating the size of the cruives, the Court found that the cruives must be an ell (37 inches) in breadth. Since that date the cruives were uninterruptedly maintained of that breadth.
Held (1) that the above proviso did not exempt these cruives from the application of the new regulation; (2) that the cost of altering them so as to be in conformity with it must be borne by the proprietor.
Kennedy v. Murray, July 8, 1869, 7 M. 1001, followed.
The Duke of Fife, in virtue of ancient royal grants, was the proprietor of the salmon fishings in the river Deveron from the sea for about four miles upwards; he was also proprietor of the lands on both sides of the river for the same extent. The royal grants and the title of the Duke and his predecessors connecting therewith comprehended the right of fishing both by cruives and by net-and-coble. The cruive-dyke belonging to him was situated on the river about two miles from the sea.
In an action of declarator in the Court of Session at the instance of Lord Banff and others, proprietors of upper fishings in the river, against James second Earl of Fife, the Duke's predecessor, raised for the purpose of regulating the position, dimensions, and use of the cruives and cruive-dyke belonging to the Earl, the Court, by interlocutors, dated 16th February and 8th December 1773 and 4th August 1774, found that the defender and his tacksmen “were entitled to maintain and uphold the cruive-dyke now belonging to the first party in the
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form and shape in which it then was, but that the defenders were bound to place three cruives at least in the said dyke; that each of these cruives must be an ell in height and an ell in breadth.” By these interlocutors it was further found “that the said Earl of Fife was entitled to withdraw water from the river at the cruive-dyke by a lade for the purpose of driving the said Back Mill belonging to his Lordship, the entry to the mill-lade from the river to be 2 feet above the bed of the river.” These interlocutors were, on appeal, affirmed by the House of Lords.
In two subsequent actions raised against the Earl for transgressing the terms of these interlocutors, the Court in 1784 found that it had not been proved that any alteration had been made in the cruive-dykes since the decrees, and accordingly assoilzied the defenders. The present Duke of Fife and his predecessors have uninterruptedly maintained, under and in virtue of the above interlocutors, cruives of the width of an ell (37 inches).
By section 6, sub-section 6, of the Salmon Fisheries (Scotland) Act 1862 (25 and 26 Vict. cap. 97) it is provided that “The Commissioners shall have the powers and perform the duties hereinafter specified; that is to say … To make general regulations with respect to the following matters, viz., the due observance of the weekly close-time; the construction and use of cruives; the construction and alteration of mill-dams or lades or water-wheels, so as to afford a reasonable means for the passage of salmon; the meshes of nets (so that they shall not intercept smolts or salmon fry); obstructions in rivers or estuaries to the passage of salmon: Provided that such regulations shall not interfere with any rights held at the time of the passing of this Act under royal grant or charter or possessed for time immemorial.”
Section 10 of the Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. cap. 123) provides that “the bye-laws contained in the schedules annexed to the Act shall … so far as consistent with the Acts 25 and 26 Vict. cap. 97, 26 and 27 Vict. cap. 50, and 27 and 28 Vict. cap. 118 … be as valid and binding as if the same had been expressly enacted in this Act.”
Schedule F contains, inter alia, the following regulations—“We, the Commissioners appointed under the said Acts, and empowered thereby to make general regulations with respect to the construction and use of cruives, do hereby make the following general regulations with respect to the construction and use of cruives:—… (2) No cruive shall be less at any part of it than 4 feet broad in the clear, provided that where an upright post is used to support the cruive, thereby dividing the width into two parts, the aggregate width exclusive of such post shall not be less than 4 feet.”
In October 1894 the Fishery Board for Scotland drew the attention of the Deveron Fishery Board to the bye-law in Schedule F quoted above, and suggested that the Duke of Fife's cruives were not in conformity with it.
A Special Case was accordingly presented by (1st) the Duke of Fife, and (2nd) the Clerk to the Deveron Fishery Board. The questions submitted to the Court were—“(1) Is the first party entitled, in the circumstances set forth, to maintain and continue to use the said cruives at their present width? or (2) Is the first party bound, when called upon to do so by the Fishery Board represented by the second party, to widen the said cruives to a width of 4 feet each? or (3) Is the said Fishery Board entitled so to widen said cruives?“
The parties agreed that the widening of the cruives would in the summer months prejudice the first party's water supply for Rack Mill.
Argued for first party—The extent of his rights had been defined by a judgment of the Court of Session and the House of Lords, as explaining the ancient grants, and accordingly this was a typical case falling under the proviso of sub-section 6 of section 6 of the 1862 Act. This was distinguishable from the case of Kennedy v. Murray, July 8, 1867, 7 M. 1001, because there the possession was required to explain the use, while here there was immemorial possession of a defined use. The decision of the Court in 1874 was one as to heritable rights, which it was competent for the Court to fix for all time coming— Marquis of Huntly v. Nicol, March 5, 1896, 23 R. 610. If the contention of the second party were accepted, the whole effect of the proviso would be taken away. Moreover, if the cruives were widened it was agreed that there would be a most injurious effect on the right of water supply to the mill, and the Court would be slow to hold that this right was to be impliedly injured by the regulations.
Argued for second party—The decision of the Court founded on by the first party was merely a regulation of the mode of exercising the right, and such a regulation was one which might be altered from time to time by the Commissioners under their statutory powers. The plea founded on the proviso in section 6 of the 1862 Act would have the effect of nullifying the enacting part of the clause. It had been considered and repelled in the case of Kennedy v. Murray. That case further showed that the expense of the alteration must be borne by the first party.
At advising—
Lord President—The main question raised by this special case is, whether the first party is entitled to maintain and continue to use his cruives at their existing size, which is 37 inches, or is bound to conform to the regulations of the Commissioners, which require cruives to be of the width of 4 feet.
Now, de facto, the Duke's cruives, 37 inches wide, have been there for upwards of a hundred years; but then their origin is very clearly shown in the Special Case. The first party does not ascribe the size of the cruives to any specific provision to that effect in the royal charters under which he
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A special point was made regarding the effect of widening the cruives on the flow of water into the mill-lade. But I suppose the necessary result of widening cruives is to affect the flow of the water; and this is one of the incidental results of the regulations which must be submitted to. Here, again, the first party has no special right conferred by charter which places his mill-lades in a protected position. The provision in the decree which relates to this matter is again of a regulative character, confers no immunity, and does not denote any right of the character which is safeguarded in the Act of 1862.
I am, therefore, for answering the first question in the negative. It was decided in the case of Kennedy that the cost of the operations necessary to produce conformity with the regulations falls on the proprietor; and therefore the second query should be answered in the affirmative. This does not necessarily imply that the Board might not be entitled, in case of failure on the part of the proprietor, themselves to widen the cruives; and therefore, considered in the abstract, the third query is not properly alternative to the second. But it is so put, and no circumstances are stated as giving rise to it except the contention of the first party on the question of expense. Accordingly, I think that we should hold it to be superseded.
The right of cruive fishing, and, so far as I know, all other rights of salmon fishing, are exercised under conditions and regulations imposed by Act of Parliament, or otherwise any alteration of such conditions and regulations would, in one sense, be an interference with such rights of salmon fishing. If that be the meaning of the Act, I do not see how the Commissioners could make any regulations altering or affecting the previously existing conditions and regulations, as that would be interfering with the right of fishing.
It appears to me, therefore, that regulations altering or modifying the existing regulations, are not, in the sense of the Act, interference with the right of fishing, but merely with the mode and manner in which such right shall be exercised.
In this case one of the conditions or regulations under which the Duke's right was exercised was that the cruives should be at least one ell in height and one ell in breadth—that is, 37 inches.
One of the general regulations issued by the Commissioners required that no cruive shall be less than 4 feet broad in the clear. It appears to me that this regulation does not interfere with the Duke's right of fishing, but is merely an alteration of the conditions on which it is to be exercised, and that his Grace is bound to conform to it.
It is said, however, that if the cruives are so widened his supply of water to the Rack Mill may or will be prejudicially affected. It appears to me, however, that his right to take water is not interfered with by the regulation.
I think, therefore, that the first question should be answered in the negative.
I think the second and third questions should also be answered in the negative. I think the Duke is not bound to widen the cruives unless he pleases, and that the Fishery Board are not entitled to widen them.
The remedy is that if the Duke proceeds to fish with cruives of a less breadth than 4 feet he may be stopped by interdict.
Page: 443↓
The Court answered the first question in the negative, the second in the affirmative, and superseded consideration of the third.
Counsel for the First Party— Dundas— Clyde. Agents— J. K. & W. P. Lindsay, W.S.
Counsel for the Second Party— H. Johnston— Campbell. Agent— Alexander Morison, S.S.C.