United Kingdom House of Lords Decisions

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Cite as: [1815] UKHL 6_Paton_102

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SCOTTISH_HoL_JURY_COURT

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(1815) 6 Paton 102

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 21

John Berry, of Inverdovat, and William Berry, W.S., Appellants

v.

Archibald Campbell Stewart, of St Fort, and his Tutors, Respondents

House of Lords, 14th April 1815.

Subject_Salmon Fishing — Right “cum Piscationibus” — Possession. —

Held that the appellants had only a general right to fishings in the Frith of Tay, and that they had not proved forty years' possession of salmon fishing ex adverso of their lands, in order to entitle them to fish salmon under that title. Affirmed in the House of Lords. (2) Held that they were not entitled to erect a new quay and pier on their own lands, prejudicial to the right of salmon fishing in the respondents. Cause remitted as to the pier.

This action was raised about the right to fish salmon in the Frith of Tav, ex adverso of the lands of Inverdovat, belonging to the appellants.

The fishings to which the appellants laid claim were two in number. The eastmost one was called “Low Water Fishings,” and the other was situated ex adverso of those portions of the lands of Inverdovat, called in the plan Wellgate, and in another place, “Welgate,” and “Pluck the Crow.”

The respondents, on the other hand, maintained that the appellants had shown no right to these fishings; and, further, that they were part of the fishings of Broadheugh, and of that marked “W. Gordon's fishings” on the plan, now belonging to the respondent, Mr Stewart.

But the appellants argued, 1. That there was a general right of salmon fishing annexed to their lands of Inverdovat,

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and which, consequently, must give them a right to fish ex adverso of every portion of the same, except in so far as their general right is limited by special grants in favour of the respondent, and his authors; and, 2. That the fishings of Broadheugh, and the fishing marked “W. Gordon's fishings,” belonging to the respondent, were limited in their nature, and did not comprehend those particular fishings claimed by the appellants. Besides, the appellants' right to make those operations on the quay of Newport harbour (which the respondent has been found entitled to prevent), is beyond all doubt, and did not interfere with the respondents' fishings.

June 30, 1810.

The title-deeds of the appellants did not contain any grant from the Crown express of salmon fishing. Their titles contained only the general conveyance of fishings, but this, they contended, together with forty years' possession of salmon fishings ex adverso of their lands, was, in the law of Scotland, sufficient to entitle them to that right, where there was no express right of salmon fishing in favour of another. The Lord Ordinary ordered a proof of immemorial possession of fishing salmon opposite to their lands, on reporting which the Court pronounced this interlocutor:

“The Lords having advised the state of the conjoined processes, and heard parties' procurators in their own presence in the process of declarator, Find that the pursuer (John Berry) has instructed no right to the salmon fishings claimed by him; therefore sustain the defences, assoilzie the defenders from the conclusions of the summons and decern. And in the two processes of suspension and interdict, at the instance of Mr Berry, find the letters orderly proceeded and decern; find Mr Berry liable in expenses in the said process of declarator, and the said two processes of suspension, and that to both classes of defenders and chargers; appoint an account to be given in, and remit to the auditor to tax the same; but supersede extract,” &c.

The Court also, in the suspensions and interdict which had reference to the appellants erecting, on their own property, new quays or piers, opposite to Newport, and to prevent them from proceeding with these as injurious to the respondents' fishings of Broadheugh of same date, suspended the letters simpliciter. On reclaiming petition the Court adhered.

July 6, 1810.

Against these interlocutors the present appeal was brought. After hearing counsel,

It was ordered and adjudged, that the interlocutors complained of be, and the same are hereby affirmed, save so

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far as they relate to the erecting of the new pier at Newport harbour. And it is further ordered, that the cause be remitted to the Court of Session, to review the interlocutors, so far as they relate to such pier.

Counsel: For the Appellants, John Clerk, Jas. L'Amy.
For the Respondents, Sir Saml. Romilly, J. Moncrieff.

Note.—Unreported in the Court of Session.

1815

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