United Kingdom House of Lords Decisions

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Cite as: [1831] UKHL 5_WS_351

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SCOTTISH_HoL_JURY_COURT

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(1831) 5 W&S 351

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1831.

1 st Division.

No. 27.

Magistrates of Dingwall and Others, Appellants.—Lord Advocate (Jeffrey)—Lushington

v.

Honorable Mrs. Hay M'Kenzie, with concourse of His Majesty's Advocate, Respondent

July 11, 1831.

Subject_Breach of interdict — Fishing. —

Circumstances in which (affirming the judgment of the Court of Session with a qualification) an interdict was renewed against fishing in part of a river, and although no prayer to that effect was contained in the petition of complaint.

In 1825, Mrs. Hay M'Kenzie, as heritable proprietrix of the fishings in the river Conon, brought an action against the Magistrates

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of Dingwall and others, concluding to have it found that she had the exclusive right to fish in the river Conon, and to have them prohibited from fishing there. In defence, it was alleged that the river Stavaig was the same with that of the Conon; that the magistrates held a charter, dated in 1587, giving them right to fish along the banks of the Stavaig river, from a march between the lands of Balblair and Breakenord down to the sea, and that their right to these fishings had been judicially ascertained by a decree of the Court of Session in 1778, in a question with one of Mrs. M'Kenzie's predecessors.

In the course of the preparation of the cause the Lord Ordinary, on the 11th of March 1828, pronounced this interlocutor:

“The Lord Ordinary, having heard counsel for the parties upon the whole cause, and in particular upon the demand now made for an interdict against the defenders to fish above the march between the lands of Balblair and Breakenord, in respect it is averred that the defenders have been fishing above the said march, which, by their admissions on the record, they are not entitled to do, in the meantime prohibits, interdicts, and discharges the said defenders, or any of them, their tenants, servants, fishers, or dependents, from fishing or killing salmon in any part of the river Conon above the line delineated on the plan in process as the march between Balblair and Breakenord; but in respect, the defenders do not admit that the said line is accurately laid down in the plan, without prejudice to the parties to ascertain the exact march between Balblair and Breakenord before the interdict is declared perpetual, grants diligence at the defenders' instance against havers, for recovering the printed informations in the case which depended between the commissioners of the annexed estates and the Magistrates of Dingwall, founded on as res judicata by the defenders, or copies of these informations, &c.”

The magistrates having, as was alleged by Mrs. M'Kenzie, continued to fish above the march, and particularly in two pools called Pool-Oure and Pool-Breakenorde, she, with concourse of the Lord Advocate, presented a petition and complaint against the magistrates, alleging that they had violated the interdict, and praying to have it found that they “had been guilty of a contempt of court and breach of interdict, and in respect thereof to find and amerciate the said defenders in the sum of 200 l. sterling,

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or such other sum or sums of money, or to punish them otherwise by imprisonment, as in the discretion of your Lordships shall seem just, and so to deter others from committing the like in time coming; and further to find the said defenders, conjunctly and severally, liable to the complainers in the sum of 1000 l. of damages, or such other sum, more or less, as your Lordships may be pleased to modify as the amount thereof, together with the expences of this complaint and whole procedure to follow hereon, or to do otherwise in the said whole matter as to your Lordships shall seem just.” In answer to this complaint, the magistrates denied that they had fished above the march, and while they admitted that they had fished in the two pools, they asserted that these were situated below the march. The parties being at issue as to the precise position of the march, the Court, on the 4th June 1829, “before further answer, remit to Neil M'Lean, land surveyor in Inverness, to examine the ground on the northern bank of the river Conon, delineated on the plan by Alexander Sangster, specially referred to in the pleadings of the parties; and in reference to the site of the old houses of Breakenord and Balblair, as laid down in that plan, as also in reference to the entry of the burn of Altnacack into the river Conon, to ascertain where the line, delineated on the plan as the march between Balblair and Breakenord, falls to be placed on the ground, and to strike the bank of the river; to report to the Court such explanations as he may deem necessary, of the modes he shall have adopted in following out the purpose of this remit, accompanied by a hand-sketch sufficient to illustrate the matter in dispute; and he is further directed to mark on his sketch such parts of the river as shall be pointed out to him where it is alleged that the magistrates have fished illegally.” On the report being made by the surveyor, their Lordships, on the 11th of July 1829, renewed “the interdict as granted by the Lord Ordinary against the respondents fishing in the Pool-Oure and Pool-Breakenord; and in the meantime direct the complainers to keep an exact account of the fish caught in these two pools; and, with this finding and direction, remit the cause to the Jury Court to proceed as directed by the statute.”

The Magistrates of Dingwall and others appealed against this interlocutor.

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Appellants.—Although the redress sought by the respondents is confined to a demand for fine, imprisonment, and damages, yet the Court below have by the interlocutor complained of, without any prayer to that effect, renewed the interdict granted by the Lord Ordinary, have extended it beyond its original terms so as to make it applicable to Pool-Oure and Pool-Breakenord, and have ordered an account of the fish to be kept. The interlocutor, therefore, is clearly ultra petita, is inapplicable to the true state of the rights of the parties, and amounts in effect to a new interdict, different from the original one, for the alleged breach of which alone the complaint was presented. Besides, there was no sufficient evidence laid before the Court to justify them in prohibiting the appellants from fishing in the pools. Indeed, a remit is made to the Jury Court which necessarily assumes that the facts require to be investigated, and therefore it was premature and incompetent to issue such a prohibition.

Respondents.—It was within the power of the Court below, under the complaint, to regulate the interim possession until the matter of fact should be ascertained as to whether there had been a violation of the interdict; and as there was sufficient evidence to satisfy the Court that it was at least doubtful whether the pools were not situated above the march, it was competent for them to prohibit the appellants from fishing there, and to order the respondent to keep an account of the fish which she might there catch.

But assuming that the Court proceeded on the feeling that the appellants had been guilty of a breach of interdict, they were not called on either to fine or imprison, but might competently issue a more mitigated judgment, of which the appellants can have no reason to complain. The proof which was adduced was sufficient to establish that the pools were situated above the march; and as it is admitted that the appellants fished there, they were guilty of a breach of interdict.

Lord Chancellor.—My Lords, this case has now resolved itself into a mere question, with respect to the costs of the present appeal; because as to every thing in the Court below, the whole proceeding appears to be put an end to, in consequence of some considerations unnecessary now to discuss, as they have occurred since the appeal. In this view we must consider the case as it was, when the interlocutor

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was appealed from and brought before us for decision. One of the interlocutors in this case, and the governing one, which is not appealed from, is that whereby the Lord Ordinary “prohibits, interdicts, and discharges the said defenders, or any of them, their tenants, servants, fishers, or dependents, from fishing or killing salmon in any part of the river Conon above the line delineated on the plan in process as the march between Balblair and Breakenord; but in respect the defenders do not admit that the said line is accurately laid down in the plan, without prejudice to the parties to ascertain the exact march between Balblair and Breakenord before the interdict is declared perpetual, grants diligence at the defender's instance against havers, for recovering the printed informations in the case which depended between the commissioners of the annexed estates and the Magistrates of Dingwall, founded on as res judicata by the defenders, or copies of these informations.” Then comes the interlocutor of the 4th June 1829, which does not carry it much further—does not certainly specify the pools as pools—but refers to the line under dispute. Next we have the interlocutor appealed from—that of the 11th July 1829—and it unfortunately introduces the mention of two pools. If those had been left out, there would have been no doubt that what the Court meant to do by this interlocutor was to renew the former interlocutor; and when you come to examine it very narrowly, it does not seem to be decisive respecting those two pools—for it says, that the respondent shall not fish in those two pools, but that the complainer may fish, keeping an account; which shews that it was to have effect till the final hearing and adjudication of the cause. Nevertheless, it appears to their Lordships, who have considered this case, that, though that is not absolutely inconsistent with the interlocutor of the Lord Ordinary, it certainly would have been much clearer if, professing to renew the interlocutor of the Lord Ordinary, the Court had just adopted the terms he used, and had prohibited the fishing above the line delineated on the plan in process as the march between Balblair and Breakenord, instead of introducing mention of the pools, which leaves a doubt as to their identity. Whether a wrong name may be given to the pool, or the pool has changed its bed, and which would have left open the question as to the physical existence of those pools, which, it is to be observed, in two of the maps out of three, are not named at all—the Pool-Oure and the Pool-Breakenord—their Lordships think that, after this unnecessary introduction of these pools into the last order, it was not unnatural that the appellant should be led into the doubt; they think that he was sent to the inquiry with a certain degree of restraint upon him, which precluded a lull and fair inquiry; and, therefore, under

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these circumstances, we are to consider whether or not the costs should be given, which is now the only question before your Lordships. Without saying that the interlocutor, in its material part, is wrong, I would yet move your Lordships to affirm the judgment, with a declaration, which I shall pen myself, that the mention of these pools shall not affect the question touching the boundary line. There may be still some litigation as to the course of that line, and it is better that we should express, in words, that which is the understanding of the parties, and the feeling of your Lordships. But no costs of appeal can be given.

The House of Lords ordered and adjudged, That the interlocutors complained of be affirmed, with this declaration, that the mention of Pool-Oure and Pool-Breakenord, in the said interlocutors complained of, shall not prejudice, bind, or at all affect the question touching the course of the boundary line, nor decide whether the said line was below or above the said two pools.

Solicitors: Richardson and Connell,— Moncrieff, Webster, and Thomson,—Solicitors.

1831