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SCOTTISH_HoL_JURY_COURT

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(1825) 1 W&S 590

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.

2 d Division.

No. 51.

William Dalgliesh, Esq. of Scotscraig, Appellant

v.

John Duke of Athole, and Others, Respondents

June 28. 1825.

Subject_Interdict — Salmon Fishing. —

Circumstances under which (reversing the judgment of the Court of Session) a party, who had been interdicted from fishing by stake-nets within certain bounds, was held not to have committed a breach of the interdict.

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In 1804 the respondents, proprietors of lands on the upper banks of the river Tay, raised an action of declarator and interdict against the appellant, and others, inferior heritors, holding rights of salmon fishing both in the river Tay and in the sea, setting forth, that these inferior heritors had unlawfully made use of stake-nets, and therefore concluding, that “it ought and should be found and declared, by decree of the Lords of Council and Session, that the said defenders have no right, by themselves, or others employed or authorized by them, to erect or use the yairs, stake-nets, or machinery aforesaid, or other machinery of the same nature, for the purpose of catching salmon or other fishes in the said river of Tay;” and for interdict “against erecting or using in future the machinery foresaid, or other machinery of the same nature, for the purpose of catching salmon or other fishes in the said water or river of Tay, in all time hereafter.” On the 7th March 1812, the Court of Session sustained the respondents' title for having the “yairs, stake-nets, and other machinery of the same nature removed, as having been placed within the high-water mark, for the purpose of catching salmon, or other fishes, opposite to lands bounded by the river, firth, or water of Tay, on those sides or parts where such yairs, stake-nets, or other machinery, are placed, and as far down as Drumley-sands, without prejudice to the rights of such of the defenders as have fishings in the sea; repelled the defences, and found and declared, that the defenders have no right, by themselves, or others employed by them, to erect or use yairs, stake-nets, or other machinery of the same nature, for the purpose of catching salmon, or other fishes, within the foresaid bounds; decerned and ordained the defenders to desist and cease from using the yairs, stake-nets, and other machinery complained of, and to demolish and remove the same; and prohibited and interdicted them from erecting or using in future the machinery foresaid, or other machinery of the same nature, for the purpose of catching salmon, or other fishes, within the said bounds, and decerned accordingly.” On appeal, the House of Lords ordered and adjudged, “That the said interlocutor complained of be varied, by inserting after the words as far down as” the words “the east end of,” and by leaving out after the word “sands” the words “without prejudice to the rights of such of the defenders as have fishings in the sea.” And the Lords find, that the river, frith, or water of Tay, extends at least as far down as the east end of Drumley-sands. And it is declared, that attending to the nature of the

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summons in this cause, no judgment ought to be given in this cause with respect to any rights of fishing claimed in the sea. And it is further declared, that this judgment is to be without prejudice to any application made, or to be made, to the Court of Session in this cause, for the purpose of ascertaining whether the river, water, or frith of Tay, doth or doth not extend farther to the eastward than Drumley-sands; and in case the Court shall find that such river, water, or frith doth so extend, nothing in this judgment contained is to prevent the Court from making any such order as may be just and according to law, touching or relating to any yairs, stake-nets, or other machinery of the same nature, within the high-water mark, placed for the purpose of catching salmon or other fishes opposite to any lands to the east of Drumley-sands, which shall be found to be bounded by the said river, frith, or water of Tay. And it is farther ordered and adjudged, that, with these variations and declarations, the said interlocutor complained of in the said appeal be, and the same is hereby affirmed.” The case having then returned to the Court of Session, their Lordships, on the 8th July 1817, pronounced this interlocutor:—

“Find, that the eastern end of the Drumley or Drumlaw-sands, is the eastern end of the sand-bank denominated Abertay on some of the charts referred to, lying on the southern side of the river or frith of Tay, and as delineated and marked Abertay on the plan in process, made by John Bell, and referred to and signed by Mr James Jardine, civil engineer, as relative to his report: remit to the said James Jardine to draw a straight line, south and north, from the said eastern end of the Drumlaw or Drumley-sands, now called Abertay, as delineated on the aforesaid plan, and mark the points where the said line intersects the northern and southern shores: Find, that the river, frith, or water of Tay, extends as far down as the line so to be drawn; sustain the title of the pursuers in this action to have such yairs, stake-nets, and other machinery of the same nature, removed,' as have been placed within the high-water mark for the purpose of catching salmon or other fishes opposite to the lands bounded by the river, frith, or water of Tay, as herein described, and to be marked on the said plan; repel the defences, and find and declare that the defenders have no right, by themselves, or others employed by them, to erect or use yairs, stake-nets, or other machinery of the same nature, for the purpose of catching salmon or other fishes within the aforesaid bounds as now extended; decern and ordain the defenders to desist and
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cease from using the yairs, stake-nets, and other machinery complained of, and to demolish and remove the same; and prohibit and discharge them from erecting or using in future the machinery aforesaid, and other machinery of the same nature, for the purpose of catching salmon or other fishes within the said bounds, and decern accordingly.”

On advising a report by Mr Jardine, their Lordships, on the 21st November, “approved of the report, and of the additions to the printed plan in process, which is subscribed by the Lord Justice-Clerk, of this date, as relative hereto: Find,, that the river, frith, or water of Tay extends as far down as the line described in the petition; and that the prohibition and interdict contained in the judgment of the Court extends to all the fishings above, or to the westward of that line, and decern.”

The estate of the appellant, Mr Dalgliesh, is bounded on the north by the river, and on the east by. St Andrew's Bay, forming part of the North Sea or German Ocean. The respondents, alleging that he and his tenant, James Halliday, were engaged in fishing salmon by stake-nets within the prohibited bounds, presented a petition and complaint to the Court of Session against them for breach of interdict, and praying that they should be ordered to remove the stake-nets, and be found liable in damages and expenses. In defence they stated, that the stake-nets were placed within the tide-mark of the North Sea or German Ocean, and not within the prohibited bounds. The Court, before answer, remitted to Mr Jardine “to visit and inspect the situation of the stake-nets complained of, and to report to the Court whether the complaint appears to him to be founded or not; and to accompany his report with a plan, shewing the exact situation of the stake-nets, with such explanations as he shall think necessary.” A report was accordingly made, which, after describing the various localities, stated, that “in fine I am of opinion, that the stake-nets complained of are all placed within the tide-mark of the North Sea or German Ocean, and that no part of any of the stake-nets in question is placed within the tide-mark of the river or frith of Tay.” Objections were then stated by the respondents to this report, in which they contended, that it was proved by ancient documents and title-deeds, that the place where the stake-nets were erected was within the bounds pointed out by the Court, and therefore, although Mr Jardine was of a different opinion, yet it could not rule the decision of the case. Their Lordships, on the 28th June 1823, on advising the proceedings, found the

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appellant and his tenant guilty of a breach of the interdict referred to, and ordained them to remove the stake-nets; “but in respect the erection appears to have proceeded from mistaken notions on the subject, and not from disrespect to the orders of this Court, found no damages or expenses due.” ^*

Dalgliesh appealed.

Appellant.—The judgment finding him guilty of a contempt of Court, proceeds not only without evidence, but in direct opposition to the only evidence submitted to the Court, which was in his favour. From the report and plan of Mr Jardine it is established, that the stake-nets are situated not within the river, but in the sea; and as the interdict applies only to the river, it is impossible that the appellant can be convicted of a breach of interdict. Besides, the respondents did not allege that they were erected within the river, but only “near the mouth of the river or frith of Tay.”

Respondents.—The river Tay flows from the west towards the east, and the mouth or embouchure is formed by Buddenness on the north side, and Tentsmoorness on the south. The point called Buddenness extends farther towards the east, or more to the ocean, than Tentsmoorness. From the latter, point a long sand-bank, called Drumley or Abertay-sands, projects and stretches across to Buddenness, and has been uniformly considered as the boundary between the sea and the river. There are several channels through it, and particularly one which is denominated the West Pool, formed by a part of the bank stretching out towards the ocean. By the judgment in the declarator, the interdict was extended to the east end of Drumley-sands, meaning, of course, the extreme outer or southern edge. But the appellant has placed his stake-nets across the channel denominated the West Pool, being within the southern side of the bank, and consequently, both according to the spirit and words of the judgment, they are within the prohibited bounds.

The House of Lords ordered, “that the said interlocutor complained of in the said appeal be, and the same is hereby reversed, and that the petition and complaint be dismissed; but, inasmuch as the southern limits of the river, frith, or water of Tay, are not defined in the interlocutors pronounced upon this subject, to which the said petition and complaint bears reference, this judgment is to be without prejudice to the question, Whether

_________________ Footnote _________________

* 2. Shaw and Dunlop, No. 420.

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the places where the stake-nets complained of in the said petition and complaint were put, or any of such places, be or be not within the limits of the said river, frith, or water.”

Lord Gifford.—In this case it does not appear to me that the Court below ever fixed what was the southern boundary of the river or frith of Tay, or the limit betwixt it and the sea or St Andrew's Bay. If that line or boundary were once fixed, it is my opinion that Mr Dalgliesh, or his tenant, might erect his stake-nets within six inches of that boundary line,—indeed, as close to that line as possible. I do not mean to give any opinion regarding the report of Mr Jardine, who was employed by the Court of Session to report as to the facts; and it appears to me to be of little consequence whether he be correct in principle or not. It is here quite clear, that the Court of Session never fixed a south boundary, and therefore there could be no contempt. Is it possible, if this case were remitted, that any further proceedings could take place under it?

Mr Keay,—My Lord, I am afraid not.

Lord Gifford.—Then the judgment must be reversed.

Solicitors: Spottiswoode and Robertson— J. Chalmer,—Solicitors.

1825