SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

SE10/08

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

TUMMEL VALLEY LEISURE LIMITED

Pursuers and Appellants

against

BRANISLAV SUDJIC

Defender and Respondent

__________________

Act: Clarke, QC instructed by Blackadders, Solicitors, Dundee

Alt: Francis, Advocate, instructed by R F MacDonald, Solicitor, Kirkcaldy

PERTH, 15 April 2010. The Sheriff Principal, having resumed consideration of the cause, answers the question in the stated case in the affirmative; therefore allows the appeal and recalls the sheriff's interlocutors of 26 February 2009, except insofar as it certifies Andrew Hamilton as an expert witness, and 8 May 2009 complained of; grants decree against the defender and respondent as claimed; ordains the defender and respondent to dismantle and remove the decking structure constructed at the rear of his property at Moulinearn, by Pitlochry overlooking the River Tummel and that within three months from the date hereof; certifies John Young as an expert witness; certifies the appeal as suitable for the employment of senior counsel; finds the defender and respondent liable to the pursuers and appellants in the expenses of the appeal and the cause; allows an account thereof to be given in and remits to the sheriff clerk at Perth to assess said expenses and to the sheriff to grant decree therefor.

NOTE:

[1] This is an appeal by way of stated case in a matter of some importance to the parties and perhaps also to the wider fishing community. The pursuers and appellants are the owners of the salmon fishings on a stretch of the River Tummel extending to approximately 11/2 miles in length ex adverso the lands known as East Haugh of Dalshian. This part of the river includes the Moulinearn Pool which is ex adverso the property of the defender and respondent. The appellants' rights extend to both banks of the river and entitle them to fish for salmon by any lawful means. The River Tummel forms part of the Tay River system and the lawful means of fishing include fishing by fly or by spinner.

[2] In about 2003 the respondent erected decking over the bank of the river adjacent to his house. The decking structure extends out from the lawn of the respondents' property over the river bank for a distance of approximately 8 metres and is supported at its outer end by a steel girder resting on three cast iron poles set into the bank. The bank beneath the decking slopes gently but becomes steeper immediately beyond the decking. The appellants considered the decking to be an obstruction preventing them from enjoying the full extent of their right to fish for salmon and in the present action seek an order requiring the respondent to remove the decking.

[3] Following proof the sheriff made two findings in fact and law, firstly, that the decking did not materially interfere with the appellants' rights to fish and, secondly, that the appellants' right to fish for salmon had to be exercised in a manner which was least prejudicial to the respondent's rights as a riparian owner whilst being consistent with the appellants' enjoyment of the full beneficial use of the right to fish. Having made these findings in fact and law he then absolved the respondent.

[4] In this appeal counsel for the appellants does not challenge the second finding in fact and law (which appears to be derived from Miller v Blair 1825 4S 214) but submits that the first finding in fact and law is inconsistent with the sheriff's findings in fact and reflects a misdirection as to the nature and extent of the appellants' rights. Counsel submitted that it was clear from the sheriff's note that he felt able to make the first finding in fact and law only because he took the view that the appellants' right was to catch fish and not to catch fish by any particular means. Thus, while he had found in fact that the ability to fly fish part of the Moulinearn Pool was affected by the erection of the decking structure, nevertheless he had reached the view that the appellants had not been deprived of the enjoyment of the full beneficial use of the right to fish because it was still possible to fish the whole Pool by spinning.

[5] Counsel for the appellants submitted that this amounted to an error of law. The appellants had a right to catch fish by all lawful means available to them. It was beyond question that a right to fish by fly was paramount in the beneficial enjoyment of a right of fishing and that it had greater attraction and value than any other rights such as spinning. The sheriff had found in fact that fly fishing was the most popular form of salmon fishing, that the bank over which the decking had been erected had been used for fly fishing in the past but that fly fishing over part of the Moulinearn Pool was not now possible because of the decking. It was submitted that the restriction on fly fishing was an obvious and material limitation of the appellants' right to fish by any lawful means. While this restriction was sufficient by itself to warrant the remedy sought, counsel pointed out that the sheriff had also found in fact that the flow of water and steepness of the bank immediately in front of the decking made it difficult for wading, especially at times of high water, and that the presence of the decking also affected the ability of anglers to walk up and down the bank of the river at times of high water when carrying fishing rods and other fishing equipment. Furthermore, even if fishing by spinner, the decking restricted a fisherman's ability to play a fish and to land it. Counsel submitted that when these findings in fact were taken together it was clear that the sheriff had been wrong to hold that there was no material interference with the appellants' right to fish. Reference in this regard was made to Fotheringham v Passmore 1984 SC (HL) 96.

[6] Counsel invited me to hold that, on the facts found by the sheriff, there had been interference with the appellants' rights and that accordingly they were entitled to have the cause of the interference removed. Reference in this regard was made to Rankine on The Law of Land-Ownership in Scotland 4^th edn. page 315 and Berry v Stewart 1815 6 Paton 102. To these may be added Berry v Wilson 1841 4D 139 to which the sheriff was referred. It was recognised that the sheriff had found in fact (FF17) that the erection of the deck had had no effect on the financial value of the appellants' fishing rights but counsel submitted that it was clear that that finding was made in the context of the fishing rights as a whole whereas the proper approach required a consideration of the particular effect on the particular pool in question. He submitted that in any event it was not necessary to show any patrimonial loss before one could insist on the removal of an obstruction which constituted a material interference with the right to fish.

[7] In reply counsel for the respondent submitted that whether the appellants were entitled to insist on access to the bank over which the decking had been erected depended on whether or not such access was necessary for the beneficial enjoyment of the right to fish for salmon. The expression used in the court's interlocutor in Miller v Blair "full beneficial use of his right of fishing" had to be read subject to the comments in Lord Advocate v Sharp 1878 6R 108 and Middletweed Ltd v Murray 1989 SLT 11. Counsel submitted that these comments emphasised the test of "necessity" and equated "beneficial enjoyment of the fishings" with "useful possession" of the fishings. In judging of that matter counsel submitted that a "minimalist" approach ought to be taken and claimed to find support for that proposition in Bowers v Kennedy 2000 SC 555. Against this background counsel accepted that the central issue in the case was the extent of the appellants' rights and in particular whether their right was to catch fish, as suggested by the sheriff, or whether their right was to catch fish by all means available to them, which would include fly fishing. He submitted that fishing by spinning constituted "useful possession" of the fishings and that accordingly the sheriff had been right to hold that the erection of the decking had not interfered with the appellants' rights.

Discussion

[8] Since this is a summary cause appeal I am bound to take the sheriff's findings in fact as stated and explained in his note. The effect of the erection of the decking is summarised in three findings in fact in particular which are as follows:

(FF 20) The decking can render an area of the Moulinearn Pool more difficult to fish by fly fishing. The area in question amounts to 30-40 feet toward the tail of the pool. The ability to fly fish part of the pool which forms a back eddy where the salmon rest and lay up has been affected. The impact the decking has on the ability to cast a fly depends on the direction of the wind and whether or not the angler is right or left handed and on the ability of the angler.

(FF 21) The decking affects the ability of anglers to walk up and down the banks of the river at times of high water when carrying fishing rods and fishing equipment.

(FF22) The decking restricts a fisherman's ability to play a fish in order to land it and restricts the ability to land a fish whichever method of casting is employed.

[9] It is clear from the sheriff's note (see the first paragraph of his conclusion at page 8) that when he refers in finding in fact 20 to the ability to fly fish part of the pool being affected he means that there is part of the pool which can no longer be fished by fly and can now only be fished by spinning. Although he does not say so in terms I think it can be inferred that it is therefore necessary to have access to the bank at the point at which the decking has been erected if one is to be able to fly fish the whole of the Moulinearn Pool. Furthermore, it is clear that the part of the pool which can no longer be fished by fly is where the salmon rest and lay up and accordingly is where the most productive fishing is to be had (see finding in fact 18). Accordingly I think counsel for the appellants was well founded in his submission that, in relation to this pool, there is a material limitation on the appellants' ability to fish by fly as a direct result of the erection of the decking. Given that fly fishing previously took place from the bank where the decking has been erected it is clear that there has been a material alteration of the manner in which the appellants' rights of fishing can be exercised in this particular pool quite apart from the other restrictions canvassed in findings in fact 21 and 22.

[10] Against this factual background I turn to consider the law. As I have already indicated, counsel for the appellants took no issue with the sheriff's second finding in fact and law and in my opinion it is well vouched by Miller v Blair, Lord Advocate v Sharp and Middletweed Ltd v Murray, all of which are to similar effect, namely that the person having the right to fish for salmon (who is not a riparian proprietor) is entitled to have such access to and use of the banks of the river as are necessary for the beneficial enjoyment of that right. This right of access and use is "an accessory, inherent in and necessarily incident to" the right of salmon fishing: per Lord Ormidale in Lord Advocate v Sharp - and "can only be made use of so far as necessary to carry into effect the principal right to which they are accessory": per Lord Balgray in Miller v Blair. It follows from this formulation that it is first necessary to be clear about what is the nature and effect of the right to which the use of the bank is accessory before one can consider what use of the banks is necessary for the beneficial enjoyment of that right, this latter question being essentially one of fact and degree in the circumstances of the particular case.

[11] In the present case I think it is clear that the right of the appellants includes a right to fish by fly and also, no doubt, a right to fish by spinning, the choice being theirs. It is not entirely clear whether the sheriff has fully recognised that that is the nature of the appellants' right. Both parties interpreted his decision as being founded merely on a right to catch fish without any right to choose the means by which that right was exercised. If that is the correct view of the sheriff's reasoning in my view he has fallen into error. On the other hand, when one reads the sheriff's judgment as a whole, I do not think that his decision necessarily involves a denial of the appellants' right to fish by fly. Rather his decision, properly analysed, can be seen to be founded on the proposition that the beneficial enjoyment of the right of fishing can be satisfied as much by the ability to fish by spinning as by the ability to fish by fly with the result that, provided the appellants are able to fish by one means or another, it cannot be said that there is any interference with their rights. In other words the sheriff has apparently reached his decision on the basis that no meaningful distinction can be drawn between fishing by fly and fishing by spinning when it comes to assessing what is necessary to give the appellants the full beneficial enjoyment of their rights. It seems to me that that is the import of the first paragraph on page 9 of the sheriff's note when the note is read as a whole.

[12] Counsel for the appellants was at pains to emphasise that fly fishing was paramount in the beneficial enjoyment of a right of fishing and that it had a greater attraction and value than fishing by spinner. However the sheriff's findings in fact do not explicitly touch upon that question other than by inference from his finding that fly fishing was the most popular method of fishing for salmon (FF 14). Furthermore, finding in fact 17 apparently contradicts the submission, at least in part, although the basis for making that finding, namely the fact that the decking structure occupied only one thousandth part of the riverbank forming the beat owned by the appellants, seems to me of doubtful validity. Whether that is right or not however I am bound to accept the finding in fact as stated and accordingly I do not think that it is open to the appellants to argue that the decking has had an economic impact on them, a factor which in my opinion would have been apt to strengthen their argument (see for example the observations in Lord Advocate v Sharp regarding profitability per Lord Ormidale at page 112 and Lord Gifford at page 114). One is left therefore with the finding in fact that fly fishing is the most popular form of salmon fishing in Scotland and elsewhere. In my view it is reasonable to infer from this finding that fly fishing is more attractive and enjoyable than other means of fishing and to that extent it seems to me that this finding is contradictory of the sheriff's apparent view that the beneficial enjoyment of the right of fishing can be satisfied as much by the ability to fish by spinning as by the ability to fish by fly.

[13] I am bound to say that this issue could have been better focussed in the evidence adduced before the sheriff and counsel for the appellants acknowledged the validity of this view. I can readily understand the force of his submissions that fly fishing is paramount and of greater value than other rights but one might have expected that case to have been better underpinned by the evidence and the findings in fact, which the appellants had the opportunity of influencing by proposing an appropriate adjustment of the stated case. Despite these shortcomings I have nevertheless come to the view that there is sufficient in the sheriff's findings in fact to demonstrate that the apparent basis of his decision is unfounded whichever way one construes his reasoning. As I have already indicated, the appellants have a right to fish the whole of the Moulinearn Pool by fly and the erection of the decking has had the effect of restricting that right and, what is more, restricted it in relation to the most productive part of the pool. On the strength of finding in fact 14, I do not think it can be said that there is no meaningful distinction between fishing by fly and fishing by spinner and in my opinion fishing by spinning does not afford the appellants the full beneficial enjoyment of their right. So far as concerns the requirement that the use of the bank must be the least prejudicial to the owner of the bank, it was not suggested that there was any less burdensome way that the whole pool could be fished by fly if that was the right of which the appellants were to have the beneficial enjoyment. The requirement does not mean that the person having the right to fish must suffer something less than the full beneficial enjoyment of that right. This is even more clearly so if what is suggested is that the person having the right to fish, in this case by fly, ought to refrain from exercising his right at all.

[14] Having reached this conclusion I did not understand it to be suggested by counsel for the respondent that the appellants were not entitled to the remedy which they seek. In any event I am satisfied that the authorities referred to by counsel for the appellants support the view that the respondent ought to be required to remove the decking. Parties were agreed that a period of three months would be an appropriate period within which that should be done.

[15] Parties were also agreed that the expenses of the appeal and of the cause should follow success, that the appeal should be certified as suitable for the employment of senior counsel and that John Young should be certified as an expert witness, the expert for the respondent having already been certified by the sheriff.