Scottish Court of Session Decisions

Upon 14th September 1888 a shoal of “caaing” whales (so called because they are “caaed” or driven ashore) was driven into Hoswick Bay, Shetland, from a distance of some miles at sea. The whales were stranded upon the sea shore of or adjacent to the lands of Hoswick, and were killed in the sea by the captors wading in water waist deep. They were thereafter dragged upon the beach, flenched, and sold by auction, the sum realised being £450.

John Bruce, Esquire, of Sumburgh, proprietor of 33 1 4 merks of the 72 merks of which the lands of Hoswick consisted, who had in no way either directly or indirectly taken part in the capture, brought an action in the Sheriff Court at Lerwick against Robert Smith, fisherman, Sandwick, and others—a committee acting for the captors and in possession of the sum realised—for payment of £69, 7s. 3d, as his share of the said sum.

He averred—“The heritors of Shetland have, as a pertinent of their lands, and conformably to the laws, usages, and rights of the islands, right to one-third share of all caaing whales stranded and killed on the shores of their lands… . According to the custom and the laws, usages, and rights of the islands, the largest heritor or proprietor sells the caaing whales so stranded, retaining his proportion and dividing the remainder among the salvors, and others interested. … In this case, however, the salvors repudiated the heritors' rights, and without consulting the pursuer, who is the largest heritor, at their own hands realised the whales.”

The pursuer pleaded—“(2) The heritors of Shetland having as a pertinent of their lands, and by the laws, usages, and rights of the said islands, right to one-third share of all caaing whales stranded and killed on the sea-shores of their respective lands. (3) The pursuer being a proprietor of 33 merks 2 ures land in the town or room of Hoswick, is entitled to decree for £60, 7s. 3d., being the proportion effeiring thereto of the heritors' share of the whales before referred to.”

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The defenders pleaded—“ Preliminary—(1) This action is irrelevant as laid. On the merits—(1) The whales having been killed below low-water mark, and pursuer having no right nor title to the ground below high-water mark, he has no title to pursue this action, and defenders are entitled to absolvitor, with expenses. (2) The defenders being ready and willing to pay to the pursuer his proportional share of any damage done to the beach, should be assoilzied from the conclusions of this action. (3) In any event, the expenses connected with the preparation of the blubber for market, and the sale thereof, must be deducted before the pursuer's alleged share can be calculated, and this not having been done by pursuer before raising this action defenders are entitled to their expenses. (4) Even should a custom such as is alleged by pursuer have existed in the past, it existed on account of the inability of the captors to resist the landlord's demands, is opposed to recent legislation, and should not be looked to as a rule for settling this action.”

Upon 24th December 1888 the Sheriff-Substitute ( Mackenzie) repelled the preliminary pleas for the defenders, and allowed a proof.

“ Note.—With regard to the plea of irrelevancy, it is to be noted that the claim made by the pursuer is a most unusual one, and one which, although not unknown to the courts of law in Scotland, is opposed to the general principles of the common law of the country, and can only rely for its substantiation on the grounds of local usage and custom. The question of relevancy therefore resolves itself, as it seems to me, into the question whether the pursuer has stated the existence of a usage which, on being established as a fact, would render his claim a legitimate inference therefrom.

To this extent I am of opinion that the pursuer has stated a case which he may be allowed to prove.

It was argued by the defenders that as the pursuer does not allege any property in the ‘foreshore’ of his lands that his other allegations are irrelevant. But it is to be remembered that we have here to deal with a peculiar and unique claim founded upon usage alone, and it is difficult to conceive a claim which, if consistent with public policy, might not be proved in this way. It appears to me to be sufficient for the relevancy of the present action that the pursuer asserts a usage, and brings himself under the operation of that usage in language which is sufficient to convey the necessary and logical inference.

“‘he customs, and the laws, usages, and rights of the islands’ is a phrase which is perhaps a little too comprehensive and ill-defined.

It would have been well had the word ‘immemorial’ been used, but neither of these objections are to my mind sufficient to render the pursuer's case irrelevant… .

An unreported case— Scott v. Reid and Others — decided by the Lord Ordinary (Lord Cockburn) in the year 1838, has been referred to, but except as an authority in support of the relevancy of the pursuer's averments, it does not, in my opinion, fall to be discussed at the present stage of the case.”

The unreported judgment of Lord Cockburn was as follows—“The Lord Ordinary finds that the pursuers (the proprietors) have right to one-third of all caaing whales stranded and killed on the shores of their respective lands, and that the defenders are not entitled to carry off or intromit with this, the pursuers' share thereof; and declares, prohibits, and decerns accordingly: Finds the pursuers entitled to their expenses incurred under these declaratory and prohibitory conclusions, &c.

“ Note.—The pursuers are infefted ‘with pertinents and privileges,’ and the main point at issue in this process of conjoinecd advocation and declarator is whether the pursuers as heritors in Zetland be entitled to any portion of whales of a certain description termed caaing whales when they are stranded, whether by natural or by artificial means, on the seashores bounding their lands.

The Sheriff-Substitute disposed of the case which forms the subject of the advocation, and related to a single shoal, by deciding they were not. But no weight can be attached to this judgment, because though it professed to proceed expressly on evidence of usage, no proof had been taken or allowed. The Lord Ordinary (Corehouse) before whom the cause then depended recalled that interlocutor, and a declarator having been brought, his Lordship allowed ‘a proof of the averment that by the immemorial usage of the Zetland Islands the landholders of Zetland have a right to a share of all caaing whales stranded and killed on the shores of their properties.’

The present Lord Ordinary presumes that that interlocutor was intended to fix the relevancy of the fact thus directed to be established. But if this point be still open, then he is of opinion that it is not only relevant but conclusive. The general legal rule no doubt is that he who takes a fish at sea is not bound to share it with the proprietor of the land on the shore adjoining which he strands it. But it is possible for this rule to be modified by a local inveterate usage. And there is the less aversion to recognise such a custom when the district where it has arisen is so distinguished by natural situation or local history that its growth may almost be accounted for by the peculiar circumstance of the place. The irreconcileableness of the custom to the common law, instead of being a reason for refusing effect to it, is only a fact which proves its inveteracy… .

In appreciating the proof there is one point to which the pursuers attached great importance, but to which the Lord Ordinary can attach none whatever. In order to make the usage of letting the heritors have a share of the whales probable and accountable they state that these Zetland Islands were formerly part of Norway; that for a long while after they were ceded in pledge to Scotland they were expected to be redeemed; that for this and other reasons the law of Scotland did not externd

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to them; that by the law of Norway the heritor participated in these fishes; and that therefore the usage on which the pursuers now found is, like many other customs still lingering in Zetland, the mere continuation of the old law of the place.

Now, the Lord Ordinary thinks this inconclusive and unimportant, and for these reasons—First, There is no proof whatever what the Norwegian law on this subject was or is. A work called “Gulathing's lang land leiger Balkr,’ and another called ‘Debes Feroa Reserata,’ and ‘Torfæus,’ and the ‘Log-Bok Islendinga,’ all of which are said to be of great authority, have been referred to, but the opinion of no Norwegian or Danish lawyer has been produced to establish the actual fact of the law. In this situation the Court can know nothing either of the authority or the meaning of these or other foreign law books. What chance would a Norwegian Court have of being right on a point of Scotch law if, instead of examining a learned witness, it tried to grope its way through a few detached passages of Erskine or Morrison. Second, Whatever was the case originally, it is certain that the law of Scotland has prevailed in Zetland for at least two centuries. This is surely time sufficient to have worn out any pre-existing foreign law, at least to the extent of making the gradual growth of customs agreeable to our own law not improbable. Third, Whatever be the origin or the policy or the likelihood of the usage as contended for by either party, what the Court has now to ascertain is the actual fact of its existence. It may, as the defenders say, be an unfair and barbarous thing, and contrary to general legal principle, that cap-tors who have all the trouble and risk should be obliged to share the spoil with landowners whose proper soil they never touch; or it may, as the pursuers say, be a remnant of the ancient Northern rule; and it may be politic, because, though at first brought to the public shores, the adjoining land is always practically used in saving and disposing of the animals; and because if matters were not accommodated by a fixed division, the heritors might ruinously compete with their people, or might prevent them taking the fish at all. These are considerations which, if we were to speculate on the subject, might deserve to be weighed; but they are of little use as evidence, when we must look to the fact, and not to its causes or its consequences.

Now, whatever doubt there may be as to the origin or policy of the usage, or as to the exact share which it has been accustomed to assign to the heritor, it does not appear to the Lord Ordinary that there is any doubt, under the proof, of the fact that the practice of the heritors sharing to some extent or other has immemorially existed. According to the defenders, there has been no difference between Zetland and its whales and any other place and its ordinary fishes. The common rule of law, they say, has always been practically applied; and they altogether deny the existence of any usage of any division whatever.

The Lord Ordinary conceives this view to be clearly repugnant to the great body of the parole proof. He conceives it established by the evidence for the pursuers—First, That the heritors have immemorially claimed as their right a portion of the whales stranded or brought to the shores adjoining to their lands, except perhaps when the shoal happened to be insignificant, or its arrival unknown, or it was hurriedly abstracted. Second, That though this claim has been oftener made by certain estates than by others, this has only been because these estates adjoined voes or bays better fitted to attract and receive the animals, and the claim has not depended on any arrangement peculiar to these places, but on the general usage and understanding of the islands. Third, That this claim, though often grudged by those who had to suffer from it, has nevertheless been immemorially submitted to as founded on practice and on right, except in the case of a few secret or violent abstractions, plainly felt by all parties to be improper. Fourth, That the stranding of whales has occurred with sufficient frequency, and in sufficient numbers, to show that the usage has not been casual or unimportant, but has extended over a long course of time, and to thousands of these animals, and has been practically acted upon as the rule for adjusting claims of great value.

These results are confirmed rather than refuted by the witnesses for the defenders. …

Now, there certainly seems to have been some grumbling. The people grumbled when the whales were shared by the heritors, and the heritors when they were abstracted by the people. But since the rule of partition was practically yielded to, this aversion to its being enforced or evaded only shows that it was no matter of indifference, but understood to be founded on deep-seated practice. It was, no doubt, occasionally resisted, but only as the exercise of some other rights are—secretly or by force. There is no appearance whatever of the heritors ever having shrunk from asserting their claim, or of the people openly and regularly setting it at defiance, as each would respectively have done if they had been conscious that the usage was a pretence. The contract of 1739 did not introduce the practice, but only regulated it, in so far as the Crown, through its admiral, and the heritors were interested. It is scarcely conceivable, indeed, that so peculiar an usage could not only be introduced for the first time, but maintained on any such private arrangement. Accordingly, the contract plainly proceeds on the pre-existence of the custom, and hence the long subsequent practice is never referred to by the witnesses, but went on upon the understanding of an independent and inveterate custom.

The written evidence is strongly of the same tendency, but has far superior claims to credit. It consists chiefly of contracts, leases, and legal proceedings; and the light which these documents supply is not only valuable from its clearness, but because it

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proceeds from a variety of real transactions, extending over a large portion of time, unconnected and free from all suspicion of being influenced, as living witnesses may be supposed to be, by the existence or anticipation of any dispute or law suit. The statements, admissions, and arrangements disclosed in these papers seem to the Lord Ordinary to be perfectly incomprehensible if it be true that all this idea of the usage in question was a mere dream. Its existence, as the basis of a real and valuable right, seems to have been acted upon on all occasions… .

The Lord Ordinary, therefore, holds the custom as set forth by the pursuers to be proved; and if it be, then it is unnecessary to consider the effect in law of the existence at a subsequent period of a directly opposite custom, because no such case is raised by the evidence. The defenders have proved that occasionally whole whales, or even whole shoals, were removed by the people, particularly by those of Weisdale; but whatever force this fact may have in impeaching the evidence of the pursuers, it unquestionably does not create the case in which, assuming the pursuers' proof to be complete, the Court has to adjust the legal result of an equally complete proof of a posterior and opposite usage.

In determining the extent of the pursuers' share, it must be recollected that their claim is adverse to the ordinary law, and that therefore they are entitled to no more than what it is proved that immemorial usage has given them. Now, the state of the fact seems to be this—The heritors sometimes got a half, and sometimes a third, never more than the one, and never less than the other. But this variation from the occasional presence and the occasional absence of the Crown, which seems to have always got one-third when it, by its officer the admiral, chose to assert its rights, leaving the other two-thirds to be divided among the captors and the heritors equally. Now, the Crown has stated in a minute in this case that it relinquished its claim on behalf of the captors. The exact meaning or effect of this, particularly as to the gift being permanent, cannot be determined under this declarator. It is, or may be, a question between the captors and the Crown: but quoad the pursuers, it is immaterial whether the Crown cedes or keeps its own share; for anyhow it is not theirs. The Lord Ordinary does not think that under the proof they can claim more than one-third.

In awarding them this, the Lord Ordinary thinks that they are also entitled to costs, because the custom on which they found ought never to have been denied.” …

Before the proof it was admitted by the parties “that the custom in Orkney is different from that alleged by the pursuer to exist in Shetland with reference to driven or caaing whales. The custom in Orkney, the only other udal district or country in Scotland, does not recognise any claim by the landlord to a share in caaing whales.”

Upon 18th June 1889 the Sheriff-Substitute, after a proof both oral and documentary (the import of which sufficiently appears from his note and from the opinions of the Judges), issued the following interlocutor:—“Finds in fact … (6) That under reference to the particulars contained in the subjoined note, the custom alleged by the pursuer has, in a very large number of instances, prevailed, but that it has not invariably done so; that there have been instances in which the alleged rule has not been observed, and in which it has varied, and that the alleged custom has not been submitted to by the salvors without great complaint, and in some cases has given rise to more formal though ineffectual protests; (7) That the custom in Orkney is opposed to that alleged by the pursuer: Finds in law that the custom alleged by the pursuer is not sufficiently inveterate, uniform, or uninterrupted, and is not of a kind to derogate from the ordinary rule of law with regard to wild animals: Finds that the pursuer is not entitled to the sum sued for; therefore assoilzies the defenders from the conclusions of the action, reserving all claims by the pursuer for damages which may have been done to his property by the operations of the defenders, &c.

Note.—This is an action of a very peculiar character. It is brought by a proprietor of lands in Zetland against certain defenders who represent the captors or salvors of a shoal of whales which were driven to land and killed after a fashion common in this country at a part of the mainland of Zetland where the pursuer along with others is a pro indiviso proprietor. The claim of the pursuer is founded on title and usage, and a proof of that usage has been led in its support.

The defence amounts to this, that even should such a usage exist, which is denied, it is not usage or custom of a kind which can constitute law. There are other minor points of defence as to the payment of the expenses of flensing the whales, and as to the pursuer's title to the foreshore below high-water mark. The defenders at the same time offer to pay their share of any damage which may have been done to the beach by their operations.

The pursuer's title to his lands in Hoswick is contained in No. 67 of process, being a disposition in his favour which contains a clause of ‘pertinents.’ It has already been held in this Court that in Orkney and Zetland the foreshores belong to the riparian proprietors, as all the lands are udal or allodial— Pottinger v. M'Combie & Company, 1887. The question of title, however, is not the main point of dispute in this case, for the usage alleged by the pursuer is of a wide and general character, apparently irrespective of narrow distinctions between high-water mark and low-water mark. It is, that ‘the heritors of Shetland having as a pertinent of their lands, and by the laws, usages and rights of the said islands, right to one-third share of all caaing whales stranded and killed on the sea shores of their respective lands, the pursuer being a proprietor of 33 merks 2 ures land in the town or room of Hoswick, is entitled to decree for £69, 7s. 3d., being

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the proportion effeiring thereto of the heritor's share of the whales referred to.’ This is the allegation of a usage which would interpret the expression ‘pertinents,’ and determine the extent of the pursuer's rights under his title.

The pursuer is met at the outset of his case by the difficulty that a claim of this particular nature is elsewhere unknown to the law. It is a claim to the possession, or at least to a share in the possession, of wild animals.

By the Roman law (Digest, xli. 1, 1, 1, and 1, 3; Justinian II., i. 12, 13; Gaius, ii. 66, 67) a wild animal when caught belonged to its captor—(Puffendorf, iv., vi., ‘Grotius de Jure, B. ac. P. ii., ii., sec. iii. 2, and sec. iv. and v.) This rule forms part of the law of Scotland. (Stair II., i. 5, 33; Erskine II., i. 10.) An exception which at first sight might lead to difficulty on this point is made in the case of ‘whales.’ It is not contended, however, by either side that the ‘caaing whale,’ the animal at present in question, comes under the designation of ‘royal fish’ (see Erskine, II., ii. 10, and reference to ‘Leges Forestarum,’ sec. 17); and even though the Crown at one time, either through the admiral or otherwise, exercised any right in these whales, there is none now claimed, and on the last occasion on which this matter formed the subject of an action ( Scott and Others v. Reid and Others, July 11, 1838) it was pointed out by the Lord Ordinary [Lord Cockburn] that if the pursuers as proprietors were entitled to one-third share, it was immaterial to the issue how the other two-thirds were disposed of. Provisions are found in mediaeval codes as to certain oil fish (Rolles d'Oleron, XXXVII.), but there is no evidence in this case which would differentiate a ‘caaing whale’ from an ordinary wild animal except the main custom in dispute. The contention that any other law than the law of Scotland falls to be applied in this case has been dealt with in the case above referred to, and the Lord Ordinary's remarks on that head need not be repeated. Nor have any foreign lawyers been adduced in this case to inform the Court as to foreign law. In the case above referred to ( Scott and Others v. Reid and Others, July 11, 1838, unreported) the question of custom was decided by the Lord Ordinary in a conjoined action of advocation and declarator. That judgment is necessarily of great weight, but I have considered that while it is binding on the parties to it, and of retrospective effect as a declarator, it must be taken along with the other evidence which has accrued during the fifty years that have passed since its date.

The parole proof is mainly confined to the last fifty years, and I may here state in a general way its import.

In the year 1838 there were whales driven ashore at Hillswick. This shoal consisted of 300. L. Robertson, who speaks of it, was a tenant on the Busta estate on which it was driven. The proprietors took a third, though not without a grudge on the part of the men. The witness says that was the custom all his remembrance, ‘but notwithstanding it was with a grudge. They got it because we had to give it. Possibly it was through fear. I suppose if we had objected to give it the proprietor could say we could leave the property, and we had nowhere else to go at that time.’ This passage is quoted as being, practically speaking, a brief compendium of the plea which runs through the whole case of the defenders… .

On the Quendale property there is evidence of a number of shoals from the year 1843 till 1868. In all of these the proprietor shared to the extent of one-third. Mr Grierson admits the fact of the men having grumbled, but says that they did so no more than about other things—such as private property in land.

In the year 1871 a shoal of whales was captured in Lerwick Sound, and driven aground on the shores of Lady Nicolson's property. The blubber was bought by Mr Leask, and he, notwithstanding a protest by the salvors, paid one-third of the price to the proprietrix, and two-thirds to the men. James Angus, one of the salvors, says, ‘the share was taken from me against my will.’ …

Lastly, the evidence as to the pursuer's own property, or of property in which he had a share or in his neighbourhood, falls to be noted. There is a considerable quantity of evidence with regard to whales, from 1820 to the date of the shoal now in dispute. In the earlier cases there appears to have been little expressed objection to the landlord's claim. At Channerwick, in 1832, there is evidence that some at least of the men carried off their full shares, and that the dispute was aggravated by the proprietor claiming a half instead of a third. In 1834, although the dates are not very clear, it appears that some of the Sandwick men refused to give their share to the proprietor on whose shores the whales had come. In 1843 there were whales at Sandwick and Hoswick. On that occasion it is proved that the question was openly discussed between the salvors and the proprietor. The men formed a committee, and approached the proprietor with a statement that they meant to keep the whole of the proceeds of the whales. Mr Bruce, the landlord, replied that they might take it, but that he would raise the rent. The men, calculating that whales came only occasionally, while rent is a constant charge, gave way. At other shoals, in 1853 and 1856, the proprietor got a third of the proceeds, but on the latter occasion not without a somewhat heated disputed with the captors. The books produced by the pursuer contain a record of the division of the shoals on his property.

To put the result of the proof shortly, it appears that in a great majority of the occasions spoken to the proprietor obtained his one-third share. The exceptions are Vidlin in 1825, at Lerra Voe in 1826, at Flotta 1857, various instances at Weisdale, one instance at Melby, and the cases in which captors who were not tenants of the proprietor of the lands refused to give up

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their full claims. See James Manson, and the other instances mentioned above.

The proof led as to the stranding of the whales in the present case leaves the impression in my mind that the animals were driven and killed in the usual way, with the additional circumstance, if it be of any weight, that none of them were brought above high-water mark.

With regard to the documentary evidence, it of course mainly consists of writings by the proprietors themselves; and except where these writings constitute contracts with individuals, it is obvious that they can only be taken as evidence of the alleged custom from the proprietors' point of view. The complaints, grumblings, and refusals of the captors are not recorded in writing—we only now hear them from the lips of men, some of whom are far advanced in years.

As to what I may call the literary and historical evidence, it has to be looked at as competent, contemporary, and so far skilled evidence; but on a subject which, even in the earlier years of this century, had given rise to controversy, due allowance must be given for the warmth of contending opinions, and care must be taken to eliminate evidence of contemporary fact of expressions of economic theory.

The question, on the whole evidence, oral and written, as I apprehend, may be stated thus—‘Has such a usage been proved as entitles the pursuer, as a heritor in Zetland, to the share of the proceeds of whales which he claims?’

That the usage of a particular locality may derogate from a general rule of law is clear. It is also, I think, obvious that Zetland forms a locality of sufficient definiteness and historical individuality to warrant a distinctive consideration of its custom. It is not simply a small estate, as in Allen v. Thomson, 7 Shaw, p. 784. At the same time it must be remarked that by the minute of admissions in process (No. 97), the custom in Orkney is admitted to be different from that alleged by the pursuer, and that there no claim by the landlord to a share in caaing whales is recognised… . I think this consideration is relevant and important.

The nature of the usage itself has to be considered apart from its locality. According to Erskine, i. 1, 43, ‘unwritten law is that which, without any express enactment of the supreme power, derives its force from its tacit consent, which consent is presumed from the inveterate or immemorial usage of the community.’ Local usage, in order to be available, must be proved to be uniform and notorious — Morrison v. Allardyce, 2 S. 434—uninterrupted and uniform— Scott v. Wilson, February 4, 1829.

Is the usage alleged here founded upon the consent of the community? Is it immemorial, inveterate, uniform, and uninterrupted? Unless it complies with these conditions it cannot alter the law.

First, as to consent. No one who has carefully considered the proof here led can say that this landlord's share was given with the consent of the captors, unless that consent is construed as the choice of two evils—the submission to a burden under the knowledge that a greater harm would come from resisting. It is quite possible to strain this consideration into something like an absurdity. Every payment or claim, such as rent or taxes, is no doubt felt by many to be a hard thing, and one that they would gladly be relieved from, but which they, for obvious reasons, are compelled to pay. The difficulty in this question arises from the fact, spoken to by a large number of witnesses, that the payment of this claim became associated in the minds of the people with their tenure of their homes. It in fact, and apart from special agreement, formed no part of the rent of land properly speaking, as the landlords on their side would demand and have demanded it from those who were not their tenants. But the fear that a refusal would be followed by removal runs through almost the whole of the proof. It cannot be said that this fear was altogether fanciful. In 1843 Mr Bruce stated that if his share was kept he would lay it on the rent—one witness states that he said he would lay 5s. on every merk of land… . Another difficulty in the way of enforcing their claims, which the salvors had to contend against, arose from the circumstance that the proceeds of the sale of the whales was generally lodged with the proprietor or his factor, and consequently, except by raising an action at law, there was no method of disputing the division of the money. There is no doubt that the landlords in these proceedings were acting in perfect good faith, and in a belief that the share was no exceptional impost, but a tribute which was legally theirs. Equal credit must be given to those other proprietors who were of an opposite opinion, and did not seek to enforce their right. This leads to the consideration of the uniformity and uninterruptedness of the alleged custom. The case at Vidlin in 1825 is sworn to by L. Henderson, but the production, No. 20 of process, bears that in that year a shoal came to Vidlin, of which the landlord got not a third but a half. In 1824, 1825, 1826, and 1827, this landlord appears to have got a half of the whales as his share. This claim of one-half appears elsewhere in the proof, and the case of Stove v. Colvin, May 26, 1831, 9 S. 633, shows that the present claim of one-third is not consistent with the older practice. … It is here to be remarked, as in former instances, that when the salvors did not happen to be tenants, there was less difficulty in asserting their claims. …

It may be said that the weight of the evidence is to the effect that, as matter of fact, the landlord's share of one-third has been deducted or paid in the great majority of cases spoken to. But that usage has not been free from interruption and variation. It has been accompanied by continual complaints, and has been successfully resisted principally by those between whom and the proprietor of the shore the relation of landlord and tenant did not exist. I am of opinion that the alleged right of the pursuer has not been proved by the evidence

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of custom which has been led, as that custom, so far as it has been proved, has not been uniform, has not been exercised without objection, and has not been uninterrupted. In connection with the defenders' plea-in-law, it is a significant fact that on the first occasion on which the distinction between those who are tenants and those who are not loses much of its force, that is the first occasion of a whale hunt after the passing of the ‘Crofters Holdings (Scotland) Act of 1886,’ the captors should have determined to have their rights ascertained and this harassing matter put to rest.

This is a very exceptional case. I am not insensible to the apparent hardship which the cessation of such payments in respect of whales may occasion to those who have looked upon them as legally due, and I do not forget that property may have changed hands under such an impression. This is to be regretted, but an exceptional custom must be proved by exceptionally strong evidence, and I do not think, although I arrive at the conclusion with difficulty, that the proof led is sufficient to establish the pursuer's case.”

The pursuer appealed to the Court of Session, and argued—The general principles of law laid down by the Sheriff-Substitute were not disputed. He had admitted—as he was bound to do—that there might be a local custom having the force of law—Ersk. i., 1, 43, 44; Stair, i., 1, 16; but he had found that the custom here sought to be enforced did not satisfy the necessary conditions. In this he was wrong. The right claimed was established by immemorial custom of immense antiquity—before the cession of the island by Norway in 1468—and of uninterrupted exercise. The Sheriff-Substitute had admitted that upon almost all the occasions to which he had referred the right had been de facto exercised, but he had held that there had not been the necessary consent because there had been grumbling, that the custom had not been uniform, and that it had been interrupted. Now, the grumbling was not more than was common about the payment of rent, and the variation was only as to the amount of the landowner's claim, whether a half or a third, and the interruption only amounted to a few occasions when the heritors had voluntarily abstained from making the claim. The custom had been more than once judicially recognised— e.g., Stove v. Colvin, May 26, 1831, 9 S. 633, and notably by Lord Cockburn in Scott and Others v. Reid and Others, July 11, 1838, supra. It had been recognised in 1739 in an agreement between the Earl of Morton and the heritors of Shetland, and by such well-known writers upon Shetland as Thomas Gifford (1733), Patrick Neill (1806), and Dr Arthur Edmonston (1809). That the custom had continued down to the present day was proved in this case by the oral evidence, and by the documentary evidence supplied by the leases, contracts, and excerpts from the valuation roll which had been produced. The custom was not grossly unreasonable. It was a fair pertinent of the lands. The claim was only for a share of stranded whales, not for a share of those taken at sea. Some use was always taken of the land, and damage might easily be done, as hundreds of people assembled there at such times.

Argued for the respondents—The Sheriff-Substitute was right. The custom had not been established. Even if it had been it was not such a custom as the law would recognise as having the force of law. It did not represent the consensus of the community, for there had always been grumbling, but a succession of acts of oppression on the part of the landowners. The fact of its existence, although proved, was not enough. Its character, the locality where it was said to exist, the relations of the parties interested, must all be looked at. It was unreasonable and of the nature of a tax, for nothing was given in return. The impost was insisted upon in islands where the landowners had had the fishermen in their power, and their claims had been yielded to as a choice of evils. It had for long been felt a grievance, and when for the first time rents could not be raised in consequence of resisting such a demand the landowner's claim had been contested—voet (on Pandects) i., 3, 27, 28; Blackstone's Introd, ii., sec. 3; Broom's Legal Maxims (6th ed.), pp. 872–878.

At advising—