Scottish Court of Session Decisions

Subject_1 PROPERTY.

James Brodie
v.
The Magistrates and Town-Council of Nairn, The Earl of Finlater, and David Davidson

Date: 14 June 1796
Case No. No 40.

When a person has a grant of salmon-fishing in a river, which, at the date of the grant, ran into the sea opposite to his own lands, upon its afterwards changing its course, and discharging itself into the sea opposite to the property of his neighbour, who has a right to the sea fishing there, the former continues to have an exclusive right to the fishing in the river, so far as it is distinguishable from the sea.

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The property of the burgh of Nairn, on the Murray Frith, is bounded on the east by the barony of Lochloy and Inchoch, belonging to James Brodie. In 1589, James VI. granted a charter to the Magistrates of the burgh, and their successors, confirming their former privileges, and particularly, that “lie zaires infra fluxum maris dicti portus construendi, ac super lie stellis, tam in aqua dulci quam salsa, infra omnes bondas et libertates, dicti nostri burgi piscandi, cum libertate de lie tug-net infra mare, aliisque omnibus privilegiis, asiamentis, libertatibus et commoditatibus in quibus ipsi, eorumve predecessores, aliquibus temporibus, retroactis in usu et possessione extiterunt infra dictum nostrum vicecomitatum de Nairn.”

These fishings were afterwards feued out by the burgh, and now belong to the Earl of Finlater and David Davidson.

Mr Brodie and his predecessors have, from time immemorial, been infeft, “in all and sundry fishings of the said lands of Lochloy and Inchoch, as well of salmon as other fishings, as well in salt as in fresh waters.”

The burgh, or their vassals, had been accustomed, besides their sea or stell-fishings, to possess exclusively the fishings in the river of Nairn, which ran eastward into the sea, opposite to, and considerably within, the property of the burgh; but as the coast consists of loose sand or gravel, the river frequently shifts its channel; and about twenty or thirty years ago, it came to run into the sea, at low-water, opposite to the property of Mr Brodie.

In order to settle a variety of questions which arose in consequence of this change in the course of the river, Mr Brodie brought an action of declarator against the Magistrates of Nairn and their vassals, in which a proof was led.

The boundary between the respective sea-fishings was fixed by the Court, according to the title-deeds of the parties, and the evidence adduced.

As to the fishing in the river, it was thought, that, at low-water, the defenders had an exclusive right to it, notwithstanding the change in the course of the river, agreeably to the decision, December 1752, Straiton against Fullarton, No 21. p. 12797. as varied by the judgment of the House of Lords, 8th April 1756; and that, at high-water, the fishing in the river, so far as covered by the sea opposite to the pursuer's property, was included under his sea-fishing.

The Lords unanimously found, “That the pursuer has no right of salmon-fishing in the river of Nairn, so far, and at such times, as the stream of water of the said river can be distinguishesd from the water of the sea.”

Lord Ordinary, Justice-Clerk. Act. Solicitor General Blair, M. Ross, Monypenny. Alt. Geo. Fergusson, C. Hope. Clerk, Gordon. Fac. Col. No 222. p. 520.