Scottish Court of Session Decisions

By section 11 of 11 Geo. Iii. cap. 31, intituled “an Act for the Encouragement of the White Herring Fishery, it is enacted that all persons employed in the said fisheries “shall have and exercise the free use of all ports, harbours, shores, and forelands in Great Britain or the islands belonging to the Crown of Great Britain, below the highest high-water mark and for the space of 100 yards on any waste or uncultivated land beyond such mark within the land, for landing their nets,

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casks, and other materials, utensils, and stores, and for erecting tents, huts, and stages, and for the landing, pickling, curing, and reloading their fish and in drying their nets, without paying any foreland or other dues or any other sum or sums of money or other consideration whatsoever for such liberty (except as hereinafter is excepted), any law, statute, or custom to the contrary notwithstanding.”

In October 1894 the Campbeltown Shipbuilding Company raised in the Sheriff Court at Campbeltown against Dugald Robertson, boatowner, Campbeltown, and his mother, Mrs Euphemia M'Millan or Robertson, residing with him, an action “to interdict the defenders and all others acting for them or either of them, or under the instructions of them or either of them, from entering upon the pursuers' property, called the Trench Point, lying within the burgh of Campbeltown and county of Argyll, and which is bounded on the north by an intended new road through the Trench field, and on the south and east and west by the sea, so far as said property extends above the line of high-water mark of ordinary spring tides, and injuring, destroying, and removing any pillars, posts, fences, and buildings, and foundations of any of the same, erected or to be erected by the pursuers on said subjects above said line, or any other way disturbing the pursuers in the possession of the same, or any part thereof.”

Both defenders lodged defences, and pleaded, inter alia, that the fence was erected below high-water mark. The defender Dugald Robertson also pleaded—“(5) In any case the defender, the said Dugald Robertson, being employed in the British white herring fishery, is entitled under section 11 of the Act 11 Geo. III. c. 31, to the free use of the shores below the highest high-water mark and for the space of one hundred yards on any waste or uncultivated land beyond such mark within the land for all purposes connected with the said fishery.”

A proof was taken, which disclosed the following facts. The pursuers' property at Trench Point extended both to the east and to the west of the point. Before 1894 they used the ground to the east of the point as their shipbuilding yard, that ground being enclosed. The ground to the west of the point was unenclosed. On a part of it wood was stored by the company, the rest was waste ground, and was used by the fishermen for hauling up boats upon, drying nets, &c. In the autumn of 1894 the pursuers found that some of the timber stored in the unenclosed ground had disappeared, and resolved to fence in the ground down to high-water mark with an iron fence. Before doing so they offered to put a gate in the fence so that Dugald Robertson would have a passage through which to reach his boats, but to this Robertson would not agree. On 23rd October 1894, while the fence was being erected, Mrs Robertson entered on the ground and scraped about half a barrowful of cement from the foundation of one of the uprights of the fence and refused to desist when asked to do so by the pursuers' cashier. The action of interdict was consequently raised. In April 1895 Robertson erected a gangway over the fence, having its supports in the pursuers' ground on each side of the fence. He also tied his fishing-boats to the fence and continued to use the ground for grounding and repairing his boats, &c. After the action was raised the pursuers determined to use the ground within the fence for extending their shipbuilding yard, for building ships upon it, and storing material and such like purposes, and applied to the Board of Trade for permission to build a retaining-wall partly on the foreshore.

On 24th November 1897 the Sheriff-Substitute ( MacWatt) granted interdict against Mrs Robertson, but assoilzied the male defender on the ground that he did not threaten to injure the fence before the action was raised.

The defenders appealed to the Sheriff ( Dundas), who on 2nd February 1898 pronounced the following interlocutor:—“Recals the interlocutor of the Sheriff-Substitute, dated 24th November 1897, complained of: Finds in fact (1) that the pursuers have erected an iron fence upon their property at Trench Point, referred to in prayer of the petition; (2) that the said fence is situated wholly above, or landward of the limit of high-water mark of ordinary spring tides; (3) that on 23rd October 1894, while the said fence was being erected by the pursuers, the defender Mrs Euphemia M'Millan or Robertson entered upon the pursuers' ground and scraped about half a barrowful of cement from the foundation of the third upright from the north end of the said fence, and declined to desist when asked to do so by Latimer M'Innes, the pursuers' cashier; (4) that the defender Dugald Robertson lodged defences to this action, that in April 1895 he erected a gangway over the said fence, having its supports in the pursuers' ground on either side of the fence, that he has on various occasions tied his fishing boats to the said fence, and that he has used and still asserts his right to use the ground to the east of the said fence above the high-water mark of ordinary spring tides, being part of the property of the pursuers for grounding and repairing his boats and for other purposes: Finds in law that neither of the defenders is entitled either at common law nor in virtue of the Act 11 Geo. III., cap. 31, to enter upon the pursuers' property, subject as after mentioned, nor to interfere with, use, or injure the said fence or the foundations thereof: Therefore recals the interim interdict, and interdicts the defenders from entering upon the pursuers' property, called the Trench Point, lying within the parish of Campbeltown and county of Argyll, and to the south of the road intended to be made through the Trench Point field in continuation of the road known as Askomil Walk, bounded by the line of the said intended road on the north, and by the sea on the other parts, so far as the said property extends above high-water mark of

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ordinary spring tides, subject always to any right which the defender Dugald Robertson may have under the said Act 11 Geo. III., cap. 31, to enter upon or use the said ground westwards of the said fence, and from injuring, destroying, or removing the said fence, being an iron fence erected by the pursuers upon or towards the west side of their said property, and the pillars, posts and foundations of the said fence, or in any other way disturbing the pursuers in the possession of the same.

Note.—…..“3. As regards Dugald Robertson, the pursuers have taken advantage of the defenders' appeal to argue that interdict ought to have been granted against him also. I have, differing from the conclusion at which the Sheriff-Substitute has arrived upon this point, given effect to the pursuers' contention. I think that the nature of the defences lodged by this defender, his actings since the proceedings have been in Court, and his own evidence in the witness-box, afford quite sufficient warrant for pronouncing interdict against him as well as against his mother, unless the separate defence stated by him, to be immediately noticed, can be successfully maintained.

4. The separate defence to which I refer is based upon the provisions of the Act 11, Geo. III., cap. 31, sec. 11. The defender Dugald Robertson insists that this plea should be definitely dealt with, and I shall therefore express my views upon it. The Act does not in my opinion confer upon fishermen a right to enter upon ground above the foreshore as defined in the Act, unless the same is ‘waste or uncultivated’ (see Hoyle v. M'Cunn, 21 D. 96, decided upon a construction of exactly similar words occurring in the Act 29 Geo. II., cap. 23, sec. 2, since repealed, and Scott v. Gray, 15 R. 27). The ground here in question is certainly ‘uncultivated.’ But I do not think it can fairly be characterised as ‘waste.’ It is part of the pursuers' shipbuilding yard, and they have enclosed it by the fence in question with the view apparently of levelling the ground and using it for the purposes of their increasing business as shipbuilders. This they could not do if the defender or other fishermen is free to occupy the ground for the purposes indicated in the Act. The defence under consideration is therefore, in my judgment, bad. My interlocutor, however, reserves to the defender Dugald Robertson any rights which he may have as a fisherman in virtue of the said Act, as regards the unenclosed portion of Trench Point lying to the west of the fence.” …

The defenders appealed, and argued—At the date of the raising of the action the ground west of Trench Point was waste ground, and the fishermen were entitled to beach their boats upon it in terms of 11 Geo. III., c. 31, sec. 11. In the record there was not a word about using the ground fenced as part of the shipbuilding yard. Making use of the ground for storing; wood was not changing waste or uncultivated land into cultivated ground. Interdict should be refused.

Argued for pursuers—The only right given to fishermen by the statute was to use ground which for the time being was waste or uncultivated. But their having done so for a lengthy period did not prevent the proprietor from making use of his ground for industrial purposes. Whenever he did so the ground ceased to be waste or uncultivated. The pursuers were entitled to fence their own ground in order to enclose it as part of their shipbuilding yard or for storing purposes. When this was done the ground ceased to be waste, and the fishermen were not entitled to interfere with the fence or trespass on the ground— Hoyle v. M'Cunn, December 10, 1858, 21 D. 96; Scott v. Gray, November 15, 1887, 15 R. 27.