Scottish Court of Session Decisions

Subject_1 SALMON FISHING.

Fullerton and Colonel Scott
v.
Straiton

1752, July 7.
Case No. No. 3.

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Kinndber stands infefted in the fishing in the water of Northesk tam intra fluxum maris quam extra opposite to his own lands of Wardroperton to the north of the river, and Colonel Scott is infeft in them with the salmon fishing in the sea, and north of them are the pursuer Straiton's lands of Kirkside, in which he is also infeft with the salmon fishing in the sea. The river has now altered its course, and does not enter the sea till it is opposite to the lands of Kirkside, who therefore pursued declarator that Kinneber could only fish the river opposite to his own lands, and that he alone had right to fish the mouth of the river. The case was reported by Kilkerran; and found that Kinneber had still right to fish the river though not opposite to his own lands; but in respect the pursuer had the right of fishing in the sea opposite to his lands, and which sea we reckoned all that was below the highest flood-mark, therefore we found that Kinneber could fish no farther down the river than the highest flood-mark at any time of the tide, and that below that highest flood-mark the pursuer had the right of fishing; and this construction of the sea was founded on what was said to have been the judgment of the House of Lords in a question betwixt Duke of Gordon and Earl of Murray tauching the Duke's tug-net fishing in the Spey.—7th July.

Upon advising a petition against the interlocutor between these parties mentioned supra 7th July last with answers, we altered that interlocutor, and found that notwithstanding the change of the course of the river, Kinneber has right to fish to the lowest flood-mark; but found that when the sea covered the channel of the river, Kirkside had a joint right with him of fishing opposite to his own lands.—17th November.