Scottish Court of Session Decisions

This is a petition and complaint at the instance of Lord Lovat, with concurrence of the Lord Advocate, complaining of a breach of interdict said to have been committed by Mr Macdonell, of South Morar, and concluding with the usual prayer. The petitioner made the following statements:—The complainer is heritable proprietor of, and duly infeft in the lands and estate of Morar, with the fishings after-mentioned, being part of the barony of Glengarry, lying within the lordship of Gartmorar and Lochaber, and sheriffdom of Inverness. He completed a feudal title to the said lands and estate in 1816, in which year he was infeft upon a precept from Chancery, inter alia, in all and whole the twelvepenny lands of Morar, comprehending therein the particular lands and others therein mentioned, “cum silvis piscationibus et pertinen. omnes jacen. infra dominium de Gartmorar et Lochaber et Baliam vestram. Et quæ terræ cum terris de Sleismein de Glengarry cum piscationibus et pertinen. earund. jacen. infra dominium et Baliam vestram in liberam baroniam erectae fuere Baroniam de Glengarry vocat, per Cartam sub magno sigillo de dato vigesimo septimo die mensis Martii anno Domini millesimo sexcentesimo vigesimo septimo in favorem Donaldi MacAngus MacAlister de Glengarry.” The complainer's said lands are bounded on the south by the river Morar, and are usually designated by the name of North Morar. He and his predecessors, in virtue of their titles, have for time immemorial, or at least for forty years, exercised the sole and exclusive right of salmon-fishing in the river Morar ex adverso of their said lands and estate; and in particular, in that part of said river which forms the northern boundary of the lands of South Morar. During the said period the complainer and his predecessors have enjoyed uninterrupted possession of the said right of salmon-fishing, and they have constantly and continuously exercised the same by means of net and coble, in so far as practicable and convenient or expedient, and also by other lawful means.

The respondent is proprietor of certain parts and portions of the estate of South Morar, which are bounded on the north by the river Morar, and lie opposite to the said lands of the complainer. The respondent, or persons authorised or employed by him, were in the habit of encroaching and trespassing upon the complainer's said right of salmon-fishing in the said river, by angling for salmon therein ex adverso of the complainer's said lands of North Morar, and by spearing salmon in said part of the river.

Accordingly the petitioner, on or about the 8th day of October 1861, presented to your Lordships a note of suspension and interdict against the respondent, craving your Lordships “to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondent, by himself of others in his employment, or having his authority and permission, from fishing or angling for salmon, from spearing salmon, and from erecting or using yairs or other machinery for the taking of salmon in any part of the river Morar ex adverso of the lands of North Morar, belonging to the complainer, being part of the barony of Glengarry, and lying in the lordship of Gartmorar and Lochaber, and sheriffdom of Inverness; or to do otherwise in the premises as to your Lordships shall seem proper.”

A variety of procedure took place under this note of suspension, and a proof was led. Ultimately, on advising this proof, the Lord Ordinary ( Kinloch) pronounced the following interlocutor:—

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“ Edinburgh, 12 th December 1866.—The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the process, proof, and productions—Finds that for forty years and upwards prior to the 8th day of October in the year 1861, the suspender and his predecessors in the lands of Morar have, by virtue of a title to these lands cum piscationibus, fished for salmon in the river Morar ex adverso of the said lands, by legal and competent modes of fishing salmon: Finds that though the respondent and his predecessors in the lands of South Morar have for a similar period fished for salmon in the said river, it has not been shown that any title to fishings exists in the person of the respondent, or of any one whom he represents, or with whom he has legally connected himself: Suspends, interdicts, prohibits, and discharges in terms of the prayer of the note of suspension and interdict: Declares the interdict perpetual, and decerns: Finds the respondent liable to the suspender in the expenses of process; allows an account thereof to be lodged, and remits to the auditor to tax the same and to report.”

Mr Macdonell reclaimed against this interlocutor, but his reclaiming note was withdrawn, and it became final. The petitioner then “states that notwithstanding the said interdict, and in breach thereof, and in contempt of the authority of your Lordships, the respondent on several occasions during the months of June, July, August, and September 1867, or during one or more of said months, did fish for and take, and did spear salmon in the said river Morar, ex adverso of the petitioner's said lands of North Morar, by means of net and coble, and also by erecting and using a scaffold or other machinery for taking and spearing salmon opposite said lands, and did take salmon and land them on the petitioner's said lands, on the north side of the said river, and did draw his net and coble on the petitioner's said lands, and did spread his nets thereon.”

The respondent, in his answers, made the following statements:—

“The respondent desires, in the very outset of his answers to this complaint, to disclaim any intention to commit a breach of interdict, or to resist or fail to obey the judgment of the Court. He would add, that any manifestation of disrespect to the authority of the Court would be altogether contrary to his feelings, and that his regret would be extreme if he thought that any conduct of his was reasonably subject to such a construction.

The judgment of Lord Kinloch, upon which this complaint is rested (for the reclaiming note against it was not insisted in), proceeded on the ground that the respondent, as proprietor of South Morar, had no title to salmon-fishings in the river Morar. At the date of the judgment the respondent had no title except his title to South Morar; and he was not prepared to contest the soundness of the judgment, and consequently withdrew his reclaiming note.

It was, however, clear, and was admitted, that while the complainer's possession of salmon-fishing in the river under his title ‘cum piscationibus’ was limited to fishing from his own lands on the north bank, the respondent had a co-extensive possession of salmon-fishing, exercised by fishing from his lands on the south bank, and that his possession was not limited to the south bank, but to a certain extent extended to the north bank also. Therefore, although the respondent had no Crown title valid to support his possession, it was clear, or seemed to him to be so, that the complainer had not a title to the whole salmon-fishings of the river, but that the title to these fishings, to the extent to which the respondent and his predecessors had possession, was in the Crown. But the respondent was not, in the action between him and the complainer, in a situation to plead the title of the Crown, and hence the judgment, which, it will be observed, does not deal with the title of the Crown at all, or affirm, directly or indirectly, that the complainer's title was exclusive or extended to the whole salmon-fishing in the river.

Since the date of the judgment the respondent has obtained from the Crown a lease for seven years, from Martinmas 1866, of the salmon-fishings of the lands of South Morar, belonging to him, ‘but subject and without prejudice to the rights which may now legally belong to Lord Lovat in and to the salmon-fishings ex adverso of his lands of Morar.’

On 29th March 1867, after the lease had been arranged, but before it was actually executed, the respondent's agent intimated the fact by letter to the complainer's factor. No answer was returned to that letter.”

The respondent in respect of this lease pleads that the interdict was no impediment to the exercise of his rights as lessee; that as there is no form of process by which the interdict could be recalled, the only course open to him was to act upon the lease till it was challenged. The answers conclude with the following statement:—

“The respondent again expresses his respect for the judgment and interdict of the Court, and again disclaims all intention of acting contrary thereto. It was indeed in deference to that judgment that he applied to the Crown for the title which he now holds and maintains, and that he ceased to assert a right to fish irrespective of that title, which had no existence when the judgment was pronounced. The respondent holds it to have been decided that he has no title to fish in his own right, and he has never since the judgment attempted to do so. The possession challenged by the complainer as a breach of interdict was in truth the possession of the Crown exercised through the respondent, as a lessee of the Crown; and as this was and is well known to the complainer, it is submitted that the present petition and complaint ought to be dismissed as inapplicable to the circumstances of the case.”

A minute of mutual admissions was adjusted by the parties as follows:—

That the complainer and his authors have, for forty years and upwards prior to 8th October 1861, fished the river Morar for salmon by rod, spearing, hand-nets, or scringe-nets, from the north side of the said river.

That the complainer and his authors have, from 1825 or 1826 to 8th October 1861, fished the said river for salmon by net and coble from the north side of said river.

That in fishing from the north side by hand-net or scringe-net, the mode is as follows:—One end of the net is held on the north bank, while the other end is by hand drawn across the river and brought back to the north bank, on which the net is drawn; and that in this operation no use is made of the south bank, and no boat is used.

That the respondent and his authors have, for forty years and upwards prior to 8th October 1861, fished the river Morar for salmon by rod, spearing, hand-nets, or scringe-nuts, from the south side of the said river.

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That the respondent and his authors have, from 1825 or 1826 to 8th October 1861, fished the said river for salmon by net and coble from the south side of said river.

That in fishing from the south side by hand-net or scringe-net, the mode is as follows:—One end of the net is held on the south bank, while the other end is by hand drawn across the river and brought back to the south bank, on which the net is drawn; and that in this operation no use is made of the north bank, and no boat is used.