Scottish Court of Session Decisions

An action was raised at the instance of the Duke of Atholl and seven other proprietors of salmon-fishings on the river Tay, its tributaries, and Loch Tay against the Glover Incorporation of Perth and other proprietors of salmon-fishings on the Tay and their tacksmen, concluding for declarator that the defenders were not entitled “to fish in any part of the river Tay for salmon or fish of the salmon kind with nets of the description known as hang-nets or drift-nets;’ and for interdict against the defenders fishing with these nets.

The pursuers averred—“(Cond. 3) The defenders, the said lessees, by themselves and their sub-tenants, have during the past season been in the practice of using in their said fishings a species of net known as the drift or hang-net. The use of the said nets has been expressly sanctioned by the defenders, the foresaid proprietors, as lessors of the fishings occupied by said lessees. These nets are from 200 to 280 yards in length, and from 12 to 15 feet in depth. They are fitted with a small rope along the bottom, sunk with lead, or a heavier rope which keeps the net sunk without lead. There is a cord along the top with cork floats placed at distances from 10 to 12 feet apart. The mesh is generally about 12 inches all round. The said nets are used at the turn of the tide both at high and low water when the current is least, when they are run out of a boat over the stern in a straight line across the river, and they maintain that position as practically fixed or stationary for a considerable time. They are attached by one

Page: 482↓

end to the boat to prevent their being lost, especially at night. During slack-water they are fixed or stationary, and the water is practically slack for the whole or nearly the whole of the time during which the nets are in. The salmon caught in them are either hung or caught by their gills, according to the size of the fish, and become entangled in the net. As often as the floats indicate that a fish is caught, the boat leaves its position and is rowed along the line of the net, and the fish is then and there taken out, the net being left as before. The fishermen are generally provided with a long cleek or gaff, and this is often used to secure fish that strike the net and are only momentarily entangled or confused. The length of time the nets are in the water is generally about three quarters of an hour, and during that time they remain stretched across the current of the stream, and they effectually obstruct the passage of fish either up or down. At each tide the whole breadth of the river is blocked against the passage of fish by a series of these nets for a period of about three quarters of an hour, and at a time specially favourable for the run of the fish. These nets are used not only for the purpose of taking fish as aforesaid, but for the purpose of acting as leaders to toot-and-haul-nets fixed at the shore, and for keeping back the fish not so taken that they may be taken by the draught-nets that are used as soon as the turn of the tide makes such fishing available. The statements in answer are denied.”

They further averred that the portions of the river where these nets had been used were perfectly suited for net-and-coble fishing in the ordinary way. They maintained that the use of these nets by the defenders was illegal at common law, and contrary to the provisions of various Acts of Parliament, and averred that the use of them during past seasons had been very injurious to the fisheries on the river, both by the illegal capture of a large number of fish and by scaring the fish away.

The defenders, while admitting the substantial accuracy of the description of the method of fishing given by the pursuers, denied that the nets were fixed or stationary, that they blocked the whole breadth of the river, and that they were used as leaders for the toot-and-haul-nets. They averred—“(Ans. 5) The pursuers are called upon to specify the Acts of Parliament upon which they found. In an action raised by the Earl of Wemyss and others against the Earl of Zetland and others, it was decided by the Court of Session, on 18th November 1890, that fishing in the river Tay, in waters adjoining those belonging to certain of the defenders, by means of nets of precisely the same description as those complained of in this action, was a legal and proper mode of fishing. The said action was raised for the purpose of obtaining a judgment as to the legality of the said mode of fishing; it was a test case, and the decision has since regulated all dealings with salmon-fishing rights in the river Tay.”

The defenders pleaded—“(1) Res judicata, in respect of the judgment referred to in Answer 5, or at all events the pursuers are barred by that judgment from questioning the legality of the mode of fishing employed by the defenders.”

The Lord Ordinary ( Low) on 5th November 1897 repelled the first plea-in-law for the defenders and allowed a proof before answer.

The defenders reclaimed, and the Court varied the interlocutor by adding after “defenders” the words “in so far as it is stated as a bar to proof being allowed, reserving it quoad ultra.”

A proof was held, and as the result the pursuers admitted that the hang-nets which they were seeking to have declared illegal could not be distinguished in construction or use from the nets which were held to be not illegal in the case of Wemyss v. Zetland, November 15, 1890, 18 R. 126. The proof was further directed to the defenders' plea that the decision in that case constituted res judicata in the present.

In Wemyss v. Zetland there were seven pursuers, of whom three reappeared as pursuers in the present action, while two were represented by their heirs; accordingly three of the eight pursuers in the present action were new. That action was directed solely against Lord Zetland and his tenants, and he was not called as defender in the present action.

The defenders led evidence and produced minutes of the Tay Fishery Board, and letters of its clerks, with a view to showing that the selection of the pursuers in both actions was matter of arrangement among the individual members of the Board, and that they were really representatives of all the proprietors.

Mr Mackenzie, one of the clerks to the Tay District Fishery Board, deponed—“The expenses of the action at the instance of Lord Wemyss and Others v. Lord Zetland and others, in 1889 and 1890, charged in our business accounts against the proprietors in the Tay fishery district, were included in the assessment laid on those persons, including, I believe, the expenses found due to Lord Zetland by the pursuers of the action. (Q) Were they first paid by the general assessment upon all the salmon-fishery proprietors as an expense incurred on their behalf?—(A) They were paid in the ordinary course; they were recovered as part of the assessment. All the fishery proprietors were asked payment of them, and none of them declined; they paid. The expenses were all paid. (Q) And you levied this assessment on Lord Zetland himself?—(A) My recollection is that these expenses were included in the ordinary assessment, and no one objected. (Q) Was not the only reason why that action was not taken at the instance of the Board as such, that you had been advised, or you advised the Board, that they could not sue common-law actions, and that the proper way for the Board to sue a common-law action was to sue in individual names?—(A) The Board having been precluded by a previous decision of the Court from suing such an action, the only course was for the

Page: 483↓

Board to appear by individuals. But for that decision I presume the action would have been taken at the instance of the Board.”

The Lord Ordinary ( Stormonth-Darling) on 18th May 1898 repelled the defenders' plea of res judicata, and assoilzied them from the conclusions of the summons.

“ Opinion.—It is now admitted by the pursuers that the hang-nets or drift-nets which they seek to have declared illegal in the river Tay cannot be distinguished in construction or use from the nets which were held by the Second Division of this Court to be not illegal in Wemyss v. Zetland, 18 R. 126. That being so, the action must fail in the Outer House, whatever may be its fate elsewhere.

But the fact that I am bound by authority to assoilzie the defenders does not absolve me from dealing with the plea of res judicata, because that plea has only been repelled as a bar to proof, and quoad ultra it has been reserved. It must therefore be disposed of one way or other in the light of the proof which has been taken, and there are possible views of the case in which it may come to have greater practical importance than it has at the present stage.

I am of opinion that it ought to be repelled. The subject-matter of the two actions being the same, and the media concludendi the same, the whole question comes to be whether the parties are in law identical.

In the action of Wemyss v. Zetland, on which the plea is founded, there were seven pursuers, of whom three reappear as pursuers of the present action, and two are represented by their heirs. Thus among the present pursuers, who are eight in number, only three are new. But I am satisfied on the evidence that even these three were truly represented in the former action, because the minutes of the Tay Fishery Board and the letters of its clerks clearly establish that the selection of pursuers in both actions was matter of arrangement among the individual members of that Board in order to get over the difficulty that by the decision in the case of Robertson, 15 R. 40, the Board itself had no title to sue an action for restraining an illegal mode of fishing. If, therefore, the sole question had been whether the present pursuers were open to the plea of res judicata, I should have held that they were.

But then it is necessary also to inquire whether the defenders who state the plea are in titulo to state it. Now, the defenders in this action are the proprietors of four of the lower salmon-fishings on the Tay, and their respective tenants. Not one of these persons was a defender in the former action, which was directed solely against Lord Zetland and his tenants. Their interest, no doubt, is the same; and it was strongly maintained that identity of interest in a question of this kind is the same thing as identity of person. The present defenders cannot, of course, be in titulo to plead the former decision as in their favour, unless it would have been pleadable against them if it had gone the other way. I ask, therefore, whether a judgment in 1890 adverse to Lord Zetland would have been res judicata against the Glovers' Incorporation and the other defenders in this action?

I fail to see why it should. There is no evidence of any concert or co-operation among the lower proprietors such as there undoubtedly was among the upper. Lord Zetland was not put forward by the lower proprietors as their representative; he was selected for attack by the pursuers. The present defenders, so far as appears, had no control over his conduct of the case. If he had failed in the Courts of Scotland, and had chosen not to appeal, why should the present defenders have been foreclosed from ever taking the judgment of the House of Lords on a question deeply affecting their individual rights, merely because their interest in that question was the same as his?

Erskine's statement of the law (bk. iv. tit. 3, sec. 3) is—‘No defender is entitled to the plea of res judicata, or that the cause has been already finally determined, unless the decree founded on in proof of that allegation has been given forth in a process litigated between the same parties or their ancestors or authors respecting the same subject, and proceeding upon the same media concludendi that are contained in the subsequent actions brought against him by the pursuer.’ There is, of course, no hardship in a man being held bound by the conduct of his ancestor or author in a litigation about a subject which has descended to him. I am aware that that phrase has been extended beyond the limits of strict representation. Succeeding heirs of entail in questions about the entailed estate, as in Leven v. Cartwright, 23 D. 1038; different members of the same voluntary association in questions about the affairs of the association, as in Gray v. M'Hardy, 24 D. 1043; the body of heritors in a parish and the common agent in a prior locality in questions with individual heritors, as in Duke of Buccleuch v. Common Agent of Inveresk, 7 Macph. 95; individual shipowners on the Clyde and the Clyde Trustees in questions about the regulation of the river, as in Glasgow Shipowners' Association, 12 R 695—are all instances of that extended representation. The widest extension of all is in the case of rights-of-way, where it has been held that a decree against individual members of the public would be res judicata against all the world ( Macfie, 11 R. 1094). That, I say, is the widest extension, because there is no bond of union among members of the public except community of interest. On the other hand, an actio popularis like a right-of-way case is exceptional, and the principle underlying all these cases is that a particular individual or estate is not to be harassed by a second action about the same thing, where the question has once been fairly tried out at the instance of some-one who was either the author, or the associate, or the mandatory, or in some proper sense

Page: 484↓

the representative, of those who are trying to raise the question over again. That seems to me to afford no warrant to a defender, against whom and against whose estate no previous action has ever been directed, for pleading res judicata on the strength of a decision in favour of somebody else with whom he has no sort of bond or connection, except that their interests happen to be the same—just as, in my judgment, he would not be precluded from disputing the former decision if it happened to be adverse. In either case, of course, the former decision would have its full weight as an authority, but it would not have the more stringent effect of foreclosing even the consideration of the merits.

This very question was mooted in one of the Tay fishing cases at the beginning of this century ( Earl of Kinnoull v. Dalgleish, March 21, 1805, 4 Pat. 671), for Lord Kinnoull and other proprietors, who had obtained interdict against the use of stake-nets on the fishings of Mr Hunter of Seaside, pleaded that case as res judicata against another lower proprietor, Mr Dalgleish of Scotscraig. I read Lord Eldon's judgment at p. 677 of 4 Patou's App., in rejecting that plea, as going quite as much on the fact that the respondents were different, as on a possible slight variation in the question at issue founded on a difference of locality. I shall therefore repel the defenders' plea of res judicata, but I shall assoilzie them, with expenses.”

The pursuers reclaimed, and argued—It was admitted that there was no material difference in the nets and modus of working them from those affected by the judgment in Wemyss v. Zetland, Nov. 18, 1890, 18 R. 120, but this was not fishing by net-and-coble, but by fixed engines, and accordingly that judgment ought to be reconsidered. In any event, it did not constitute res judicata in the present action. Taking the standard laid down by Erskine in book iv. tit. 3, sec. 3, quoted by the Lord Ordinary, the case was still higher than the Lord Ordinary had put it, for in the first place the evidence did not show that the pursuers were the same. The actions were not at the instance of the Board, for that would be ultra vires— Tay District Fishery Board v. Robertson, Nov. 16, 1887, 15 R. 40. Nor were the actions authorised by the same individuals, for three of the pursuers here were not pursuers in the former action, and none of them were represented there, there being no evidence that they had entered into any agreement to that effect. Nor was the subject-matter of the actions the same. It was not enough that the question should be one of general public law in which the parties were interested. There must be a particular subject and common interests in it—a patrimonial interest in some heritable subject, and not different interests in several subjects— MacArthur v. County Council of Argyll, March 1898, 25 R 829, Lord Kyllachy, at p. 831. Each proprietor ha sasine only in his own salmon fishings, and there was no common interest in the same subject. If the respondents' contention were sound, they would be bound to argue that the decision against Lord Zetland was res judicata, not only against proprietors in the Tay, but all over Scotland. This argument was closely connected with the question whether there was any identity between the defenders in the two cases. It had been shown that there was not such identity of interest as was equivalent to identity of persons, and not one of these defenders had been a defender in the previous action, which was directed solely against Lord Zetland. There was no evidence of any concert or co-operation between the lower proprietors, and it therefore could not possibly be maintained that there was any identity between the defenders in the two actions. As to the alternative view that the present defenders were represented by the pursuers in the first action, which was argued now for the first time, it was not supported by any averments, there was no evidence to support it, and it was open to the same objections as the first view. The first action had been compared to a special case to which all the proprietors assented, but the Court would be very slow to hold them bound, unless they specially gave their assent to being so bound.

Argued for respondents—The Lord Ordinary's statement of the conditions of res judicata was substantially correct, and these were all fulfilled in the present case. As was stated by him, the minutes of the Tay Fishery Board, and the letters of its clerks, clearly showed that the three new pursuers were represented in the case of Wemyss v. Zetland, because the selection of pursuers in both actions was matter of arrangement among the members of the Board in order to get over the difficulty raised by the case of Robertson. Nor could there be any doubt that the subject of the two actions and the media concludendi were the same, the subject-matter being the right of salmon-fishing in which the proprietors had a common interest, and the legality of a certain mode of fishing. But while the present defenders were not defenders in the last action, identity of interest in a question of this kind was equivalent to identity of persons. A question of the legality of fishing having been sharply decided by persons having a right and interest was sufficient to bind persons having that same right and interest, viz., the right in travelling fish. The defenders' interest was the same as Lord Zetland's—to have the legality or illegality settled; they were therefore represented by him, and the decision in his case would be binding on them. The Court would look, not at the individuals, but at the community of interest— Jenkins v. Robertson, April 5, 1867, 5 Macph. (H. of L.) 27, at p. 35; Gray v. M'Hardy, June 4, 1862, 24 D. 1043. The case of the Earl of Kinnoull v. Dalgleish, to which the Lord Ordinary referred, was clearly distinguishable, because there the whole question of legality depended upon the locus, and accordingly the difference of locality made all the difference between the cases. Alternatively the pursuers in Wemyss were representing not only the interest of the upper proprietors, but of the whole

Page: 485↓

proprietors of salmon-fishings in the Tay, and accordingly all the parties in the two cases were the same. This was proved by the correspondence. The whole proprietors were represented in the first case because they afterwards paid the expenses, thus homologating the action of their representatives, which was equivalent to a mandate. The first action was therefore like a special case, to which all the proprietors assented. It made no difference that the present defenders were thus represented by pursuers, for the action was a test one, fought by their representatives. It was not necessary to have antagonism between the parties if they were the same in the two actions, and the same interest was at stake.

At advising—