Scottish Court of Session Decisions

This was an action at the instance of Sir Robert Menzies, Bart., Menzies, proprietor of the barony of Rannoch, Perthshire, to have the right of trout-fishing in Loch

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Rannoch regulated by the Court. He called as defenders all the proprietors having lands fronting on the loch.

The right of fishing on Loch Rannoch had already been the subject of two actions. In the first of these the then proprietor of Menzies and the then proprietor of the barony of Struan, brought cross actions for declarator that each was the proprietor of the whole loch, and had the exclusive right of fishing therein. The actions were conjoined, and by interlocutor pronounced in 1798, and adhered to on 2nd July 1799, the Court found that “both parties in this cause have a joint-right or common property in the loch of Loch Rannoch, and a joint-right of sailing, fishing, floating timber, and exercising all acts of property thereon, and of drawing nets upon the shores thereof adjoining to their respective lands, but not upon the shores of the lands belonging to each other.” Stewart of Innerhadden, who was at that date the only other proprietor having a frontage on Loch Rannoch, was not a party to the action.

In 1854, the proprietor of Struan having disponed a portion of his lands with lakes and pertinents, the Court dismissed an action at the instance of the late Sir John Menzies of Menzies, for declarator that the disponee had no right on Loch Rannoch. This judgment was affirmed by the House of Lords on appeal. The case is reported, 16 D. 827, 19 D. (H.L.) 1, and 2 Macq. 463.

The conclusions of the present action were in the following terms:—“Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session—( First) That the trout-fishing in Loch Rannoch is being injured and destroyed; ( Second) That this injury and destruction are being caused by and in consequence of excessive fishing by the defenders, or some of them, or by those authorised by the defenders, or some of them, from boats on the said loch; ( Third) That the pursuer is entitled to have the fishing in the said loch regulated according to such rules and regulations as the Court may think proper to frame for the preservation of the fishing and the rights of the various riparian proprietors on the said loch; ( Fourth) That the exercise of the said right of trout-fishing in the said loch by the pursuer and the defenders, and by those duly authorised by the pursuer and the defenders, or by any of them, ought and should be regulated among the various parties concerned rateably as follows, viz.—that no more than sixteen boats should be allowed to fish on the said loch, and that the said sixteen boats should be allocated among the parties having right to fish in said loch in proportion to the extent of frontage along or to the said loch which the land of each person having such right possesses, and which would result as follows:—To the pursuer eight boats; to the defender the said Bruce Canning Vernon Wentworth three boats; to the defender the said James Clark Bunten one boat; to the defender the said Alexander Stewart one boat; to the defender the said John Stewart Odiarne Robertson-Luxford two boats; and to the defender the said Alasdair Stewart Robertson one boat; or otherwise in such way and manner and according to such other system of regulation as shall seem right and proper to our said Lords, and shall by them be determined in the process to follow hereon; And it having been so found and declared, or whether it shall be so found and declared or not, our said Lords ought and should pronounce a decree regulating the said fishing in the specific manner above set forth, or should pronounce a decree for regulating the said fishing in the said loch in such other way and manner, and according to such other regulations as to our said Lords shall seem proper: And further, the defenders, and all others having or pretending right from them, or any of them, ought and should be interdicted and prohibited from exercising the right of trout-fishing in any part of the said loch except in the manner determined by and in conformity with the regulation of the Court.”

Defences were lodged for Bruce Canning Vernon Wentworth of Dall, and proprietor of the lands of Meall Dubh, James Clark Bunten of Dunalastair, proprietor of the lands of Kinloch, Alexander Stewart of Bunrannoch, proprietor of the lands of Innerhadden, J. S. O. Robertson-Luxford of Croiscraig, and Alasdair Stewart Robertson of Struan, who were all the proprietors having lands fronting on Loch Rannoch. The extent of frontage possessed by each was as follows:—“Menzies (Rannoch), 10 1 7 miles, Wentworth (Dall) 5 1 2 miles, and (Meall Dubh) 1 4 of a mile; Robertson-Luxford (Croiscraig), 3 1 3 miles; Stewart (Innerhadden), 1 2 5 miles; Bunten (Kinloch), 1 4 of a mile; and Robertson (Struan) a few yards.”

The pursuer averred that the number of boats on the loch had increased from nineteen in 1853 to 51 in 1898, and that the fishing had thereby been seriously injured, so that the tenants of the shootings, who had a right to fish on the loch, had often complained. He further averred that the proper method of regulation was that concluded for in the summons, and that no scheme of regulation would be accepted by all the proprietors voluntarily. The defenders denied that the loch was being materially injured by over-fishing.

The pursuer pleaded—“(1) The pursuer is one of the riparian proprietors of Loch Rannoch, and as the trout-fishing therein is being destroyed by excessive fishing, he is entitled to have the right of trout-fishing in said loch regulated by the Court. (2) The pursuer has right to at least one-half of the fishing in the said loch, and he and the other proprietors entitled to fish in said loch are only entitled to exercise the right of troutfishing by themselves, and by others authorised by them, proportionally to the amount of shore owned by each of them respectively. (3) The pursuer under the circumstances condescended on is entitled to prevent the other proprietors whose lands border on Loch Rannoch from fishing in the said loch except to an extent proportional

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to the amount of shore each is owner of. (4) The pursuer being one of the riparian proprietors of Loch Rannoch is entitled to apply to the Court to have the fishing therein regulated so as to prevent its further injury and destruction by excessive fishing on the part of the other riparian proprietors, and to secure a proper allocation of the said fishing between himself and the other proprietors. (5) The regulations proposed being fair and reasonable, the pursuer is entitled to decree regulating the fishing in said loch according to the mode prescribed in the summons, or otherwise he is entitled to decree regulating said fishing in such way and manner as to our Lords shall seem proper.”

All the defenders pleaded that the action was (1) incompetent, and (2) irrelevant. All the defenders except the defender Robertson-Luxford of Croiscraig pleaded that the pursuer's averments were unfounded in fact. The defenders Wentworth of Dall. Stewart of Innerhadden, and Robertson of Struan pleaded that by virtue of their titles and possession they were entitled to free exercise of the right of fishing in the said loch. The defender Bunten of Dunalastair pleaded—“(3) There being no necessity for any judicial regulation of the right of fishing in the loch in question, the present action is uncalled for and unnecessary, and ought to be dismissed. (4) The defender is entitled to absolvitor, in respect ( a) that under his titles, and in respect of the immemorial possession following thereon, he is entitled to exercise the right of fishing on Loch Rannoch by means of at least six boats—(5) Loch Rannoch being a navigable inland waterway open to the public, and the scheme proposed by the pursuer being inconsistent with the existence of the rights of the public in the said loch, and impracticable having regard to these rights, the present action is untenable, and the defender is entitled to absolvitor.” The defender Robertson-Luxford of Croiscraig pleaded that he was entitled to the allocation of a larger number of boats than that proposed in the summons ( a) in virtue of his prescriptive possession, and ( b) of the proportionate extent of his frontage to the loch. The defender Robertson of Struan further pleaded as follows—“(2) The action is unnecessary. (6) In the event of regulation of the said fishing being found to be necessary, the defender's interest should be determined on the basis of the valued rent of the said barony of Struan and the several portions into which it has been divided.”

Proof was allowed and led, the result of which sufficiently appears from the opinions of the Lord Ordinary and of the Lord President, infra.

On 26th July 1900 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Finds that the pursuer has failed to prove that the exercise of the joint right of trout-fishing in Loch Rannoch by the defenders, or any of them, has been such as to constitute an abuse of the said right or to call for judicial regulation: Therefore dismisses the action, and decerns: Finds the defenders entitled to expenses,” &c.

Opinion.—“The purpose of this action is to have the trout-fishing in Loch Rannoch regulated by the Court, and the method of regulation proposed by the pursuer is that the Court should first fix the total number of boats which are to be allowed to fish on the loch, and then should allocate these among the six riparian proprietors in proportion to the extent of frontage possessed by each.

The water rights in the loch have been the subject of two final judgments, one by this Court in 1799, and the other by the House of Lords in 1856. In 1799 the pursuer's father, as proprietor of the barony of Rannoch, owned, practically speaking, the whole northern shore of the loch, while the southern shore (except a small portion towards the eastern end belonging to Stewart of Innerhadden) was the property of Struan Robertson as proprietor of the barony of Struan. Menzies and Struan were found to have ‘a joint right of common property’ in the loch. The rights of Innerhadden were not affected by this finding, because he does not seem to have been a party to the process. In 1828 Struan sold the lands of Kinloch forming part of his barony to General Macdonald. These lands had only a small frontage at the east end of the loch, but General Macdonald exercised the right of boating and fishing over the whole loch, and he built an inn upon his lands, the visitors at which were also allowed to fish. In 1853 the present pursuer raised an action against Macdonald to have it declared that he had no right of any kind in the loch, or otherwise that his right was limited to that part of the loch which was situated ex adverso of his lands. This case was sent to the Whole Court, and in accordance with the opinions of the majority of the Judges it was held that the pursuer had not set forth any relevant ground in support of the leading conclusion of his summons, and the defender was assoilzied from the alternative conclusion. On appeal to the House of Lords this judgment was affirmed.

In the opinions delivered both here and in the House of Lords a good deal was said about judicial regulation as a possible remedy for abuse in the exercise of the joint right. It undoubtedly formed part of the reasoning by which the result was reached, that while either of the co-owners might alienate any portion of his interest, and thereby transmit a right similar in quality to his own, the effect of the alienation could not give him and his disponee together a greater interest in the loch than he alone enjoyed before. Thus Lord Chancellor Cranworth said (I quote from 1 Paterson App. 626)—‘If indeed the effect of alienation by one of two co-owners should be to deprive the other owner of the full right as to his moiety, then that would give a right of action for regulation of the enjoyment.’ Then coming more directly to the matter now in hand his Lordship said—‘Suppose it were not possible for more than any given number of boats, say 1000,

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to be simultaneously engaged in fishing upon the lake, Menzies would be entitled to have 500 so employed, and Struan would be entitled to the other 500. Struan could not by alienating to others give a right to more than his due share. But if he keeps within that limit Menzies has no right to complain. It is the same thing to him whether the right is exercised by Struan himself or by others deriving title under him. In either case Struan or his disponees might be restrained from any excessive exercise of the right enjoyed in common with another, but Struan could not be prevented from exercising, subject to the liability to be thus regulated, the right incident to property in general of alienating it as be may think fit.’

Beyond expressions like these, to the effect that judicial regulation of some kind would be competent and might be necessary, and that it must aim at preserving equality of rights between the two baronies notwithstanding the division of one of them into several parts, there is unfortunately no indication of the principle upon which such regulation should proceed. In the Court of Session indeed it was conceded both by the majority and the minority that it might be difficult to find one. Lord Rutherfurd, who was the chief exponent of the views of the majority, said (at p. 847 of 16 D.)—‘In like manner here, the right and interest of Sir John Menzies, if it extended to one-half, will not necessarily be reduced to a third, or a fourth, or a sixth, by the subdivision of the right and interest of his original co-proprietor. It may indeed be difficult for the pursuer in such a case as the present to establish encroachment or abuse or to show injury.’ Similarly Lord Deas, who was in the minority, said (at p. 855)—‘No means have been suggested, and none such appear to be practicable, whereby effect can be given to the right of property which will accrue to each additional common proprietor and yet leave Menzies in the same favourable position he was in before. For example, after the joint proprietors have been multiplied—it may be by studding the whole bank or the whole of Struan's estate with villas—can Menzies have the same means of fishing and fowling which he previously had? If so, the fish and fowls must be infinite.’ Again (p. 856), ‘It is said the possession may be regulated. But what kind of regulation would be practicable and consistent at once with the right of property vested in each new proprietor, and with the rights of Menzies, has not been pointed out.’ Then, after showing how much simpler is the case of a grazing commonty, his Lordship adds—‘But nobody has even suggested any analogous principle which would be applicable here, so as to fix the number of boats which each joint proprietor may put upon the lake, the number of persons and sojourners from each inn and villa who may embark in each boat, the hours or days of the week they are respectively to sail, shoot, and fish, and the corresponding restrictions which are to be placed on one or both of Struan and Menzies.’ It may be that Lord Deas magnified a little the difficulties of regulation in order to enforce the view that Struan could not subdivide his rights at all. But being now face to face with the difficulties which he anticipated, I confess that I strongly sympathise with these observations.

As matters now stand, there are four proprietors standing in the original right of Struan; there is Innerhadden, whose right is independent of both the baronies; and there is the pursuer, whose barony remains undivided. The right of each one of these six proprietors is to boat and fish over the whole loch, and to do so by himself and others as much as he pleases, so long as he does not abuse his right by encroaching unduly on the rights of his neighbours. A court of law must always be very chary of interfering with the free choice which is inherent in every right of property; and in a question of this kind it is extremely difficult to find the criterion by which it is to be held that legitimate use has passed into abuse. Plainly the use which one of the community chooses to make of his right cannot be made the measure for all the others. It is not enough for the complaining owner to say, as the pursuer in effect says here, ‘I have only eight boats on the loch, therefore you, the others, must not have more than eight amongst you.’ There must first be a determination as to the total number of boats which the loch is capable of carrying before the question of allocation can even be considered. And how is this determination to be reached?

The answer would be greatly simplified if the case for the pursuer were that the loch is being depleted of trout, by which of course I mean that, one year with another, a fair breeding stock is not being left. But that is not his case. There is no attempt to show that the total yield of trout is not as large as it ever was, and the skilled evidence for the defenders establishes that the food supply is abundant, and the spawning ground sufficient. The real case for the pursuer is that, although as many trout may be taken now as formerly (and probably there are more), the average take per rod is not nearly so good, either in number or weight, and that this arises from the trout, and particularly the larger trout, being made shy by over-fishing. Now, I concede that the right of trout-fishing being a sporting right, its value depends on the probabilities of success for an angler of average skill going out on a fairly good day. But then the test of what he may reasonably expect is not to be found in the great baskets of sixty years ago, to which the pursuer himself and Mr Fletcher Menzies speak, when the trout very seldom saw an artificial fly, and when there were probably not more than half-a-dozen boats on the loch all told. That, I suppose, is the reason why preserved lochs are as a rule better than lochs which are practically open to the public. Indeed, the danger to preserved lochs arises from their being under-fished, and probably in the pursuer's early days the fishing would not have been

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so good as it was if the balance had not been redressed by practices such as netting, spearing, and the use of set-lines and the otter, which are proved to have been common in Loch Rannoch and its feeders at that time, but are now either illegal, or, at all events, not in use. Mr Gregor Macgregor, who is much the most important witness for the pursuer, admits that even in his young days, i.e., throughout the sixties, the loch was under-fished. Therefore the baskets which he was in the habit of getting, often weighing 20 lbs., and averaging 15 lbs., cannot be taken as a test of what the average angler might reasonably expect, now that the loch is no longer under-fished. I do not think that Mr Macgregor has much to say against the fishing down to 1878, when he had ‘two very good days.’ In this way the pursuer's case comes to be that the fishing has fallen off during the last twenty-two years. Probably that is true; and I think the same might be said (Mr Malloch allows it) of every loch in Scotland which is practically open to the public. It is of course notorious that the taste for every form of sport and the means of gratifying that taste have enormously increased during the last quarter of a century. But it is open to everyone of the six joint proprietors of this loch, just as it would have been open to Struan if he had retained the whole of his estate, to invite as many persons as he pleases to fish all over the loch; and the difficulty lies in saying at what point (there being no depletion of the breeding stock) the number of anglers plying the rod makes the sport of each so bad that it amounts to an abuse of the right.

One can figure cases of joint right where the task of regulation would be comparatively simple. Take the case of a stretch of moor held in common—and there are such cases. If one of two joint owners were, by himself or his tenant, to monopolise the first fortnight after the 12th of August, with the result, not of shooting all the birds, but of making them so wild that the other man could not get near them, it would be easy enough to say that the shooting of each must take place on alternate days, or on specified days in each week. But here what is asked is not of that nature. It is that the Court should define the number of boats which the loch may fairly carry throughout the season.

Now, that being the nature of the pursuer's demand, I must say that he has supported it by evidence of the vaguest kind. He admits that ever since 1856 he has had in view the possibility of having to come to the Court for regulation. Yet he has taken no means to keep any record either of the baskets got by his tenants and keepers, or of the number of boats on the loch at any given period. Indeed, he closed his case without proving how many boats there are now; and I have had to glean, chiefly from the evidence led for the defenders, what I think may be taken as approximately accurate, that the number is from forty-five to fifty, consisting of eight belonging to the pursuer, sixteen belonging to the three hotels, three belonging to the defender Struan Robertson, ten belonging to the defender Luxford, eight or ten belonging to sundry houses near the east end of the loch, including Innerhadden, and one or two at Dall. Probably this number is rather larger than it ever was, but I should have thought it vital to the pursuer's case to compare it with the number, say twenty years ago, when it was admitted that the fishing was still fairly good. There again everything is vague; but it is tolerably certain that the addition of a third hotel last year, which the pursuer assigns as his reason for thinking it time to complain, has not materially added to the number. There are now six at the Dunalastair Hotel, five at the Bunrannoch Hotel, and five at the new hotel. Oddly enough the pursuer's own keeper gives fifteen or sixteen as the number at the two hotels when he first came to the district nineteen years ago. I think this must be an over-statement, for the other evidence seems to show that between 1880 and 1899 the number kept at the two hotels was thirteen. Taking it so, the addition of three boats is not a very large one out of forty-five or fifty, and there is positively nothing to suggest that in the last twenty years there has been any increase in the number except at the hotels.

When I turn to the baskets got, once more I find a want of reliable data. The reputation of anglers for severe accuracy about their takes is not perhaps of the highest, but that is an observation which applies all round. Discounting the pursuer's own evidence and that of his brother (as applying to a state of things which can never return), what remains? He says that his tenants do not now think the loch worth fishing, and that for the last five or six years he has had to give all of them leave to fish the private lochs on the estate, whether these are included in their shooting grounds or not. One may conjecture that a shooting tenant, on the off-days when he wants to fish, might well prefer a preserved loch at some distance from his lodge to an open loch at his door. But not a single shooting tenant has come to give evidence; and there is no suggestion that the rents which they pay have gone down. Mr Malloch, a well-known sporting agent in Perth, says that, though he never fished Loch Rannoch, he has known it in connection with his business for twenty-five years; that when he began business it was a very good fishing loch, but that now he does not recommend it to first-rate anglers, because, judging from what he hears, the fishing has fallen off. Then there is Mr Gregor Macgregor. I have already indicated that I attach great importance to his evidence, both on account of his long and intimate acquaintance with the loch and his perfect independence as a witness. He has no doubt that since 1878 the fishing has fallen off very much—so much that when he visits Rannoch now he very seldom cares to fish. But then I think that the recollection of the good baskets of his youth makes him a little fastidious, and that he is hardly a fair

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representative of the average angler. The only recent basket which he mentions is one of twenty-one trout, weighing 7 lbs., got on 22nd June this season. It happens that on that very day another angler, of I am sure not greater skill, but with better luck, caught, along with his wife, sixty trout weighing nearly 15 lbs. Other baskets of recent years are spoken to which are about as good. Thus the witness Crawshay on his best day last year got fifty-eight fish weighing 15 lbs.; and the witness Chamberlain, on six consecutive days in 1894, got 146 fish weighing 57 lbs., which is equal to an average of nearly 10 lbs. a day of trout, rather better than three to the pound. Perhaps the testimony of boatmen is not to be relied on too implicitly as regards accuracy, and I discount a good deal from their general evidence about the sport being as good as ever. But Macpherson speaks to a basket of forty-one trout, about four to the pound, being got within two hours in July 1898; Lamont was at the getting of twenty-four trout weighing 19 lbs. in 1894, and 25 lbs. (number not stated) in July 1896; M'Dougall speaks to fifty-two fish weighing 15 lbs. to one rod in July 1898, and Macfarlane to 32 lbs. for two rods some six or seven years ago. Now, of course, these are picked baskets, and do not represent what may ordinarily be expected; but when such things are still possible, I find it very difficult to say that there is abuse of the joint right of that manifest and palpable kind which alone would entitle the Court to interfere. It may be (and I rather think it is the case) that the amount of fishing has reached a point beyond which it cannot be carried with safety to the sport. But such things tend to right themselves because it is not in the interest of any of the joint proprietors to spoil the sport; and I do not think that this Court should ever be resorted to for compulsory regulation until at least an effort has been made to secure agreement within the community of owners. But the pursuer admits that he launched this action against his neighbours without making any attempt of that kind, because he thought it would be useless.

There are several topics discussed in the proof which have not influenced my mind in the least. The experience of Loch Leven was referred to by both sides, but I do not think that any assistance is to be derived from the case of a loch so entirely different from Loch Rannoch, both in its natural features and its mode of treatment. Suggestions were made that the fishing might be artificially improved, but, although that may be a fair enough subject for consideration by the proprietors themselves, it can have no bearing upon the present question, which relates solely to the loch in its natural state. For the same reason I have nothing to do with suggestions about the destruction of trout by cormorants and gulls. Even the scientific evidence, although interesting in itself, is relevant only as establishing that there is ample feeding for trout in the loch, because all the speculations about trout being found in the deep waters of the loch will never get over the fact that in practice the fishable area during the best months of the year is confined to about 500 acres at the west end and a strip of about 100 yards all round the margin. Probably Mr Mitchell is fairly accurate when he calculates this marginal area at about 500 acres more. These two areas represent all the water that is worth fishing with the fly during the summer, and any trout that are caught in the deep waters are caught only by trolling with small trout or the phantom minnow. I cannot help thinking that the pursuer's grievance arises largely from the fact that the hotel boats congregate over the shallow water at the Rannoch Lodge end of the loch; but that is the necessary result of the judgment of the House of Lords in 1856, which gave all the joint proprietors the right to fish over the whole loch. Their right to do so is one which the Court cannot disturb unless, as I have said, there is manifest and palpable abuse. The pursuer by the structure of his summons recognises that. His first declaratory conclusion is that the trout-fishing in Loch Rannoch is being ‘injured and destroyed’; and his second is, that this injury and destruction are being caused by excessive fishing from boats on the loch. That is equivalent to an assertion of abuse leading to the substantial destruction of the joint right. The onus of proving such a case is a heavy one, and I am of opinion that the pursuer has failed to discharge it.”

The pursuer reclaimed, and argued—It was not seriously disputed that the authorities— Menzies v. Macdonald, March 10, 1854, 16 D. 827, aff. June 10, 1856, 19 D. (H.L.) 1, 2 Macq. 463; Scott v. Napier, June 11, 1869, 7 Macph. (H.L.) 35; Mackenzie v. Bankes, November 30, 1877, 5 R. 278, aff. June 27, 1878, 5 R. (H.L.) 192—established the right of the Court to regulate a common right of trout-fishing in the event of that right being abused. The question what amounted to abuse must depend on the nature of the right under consideration. The right to fish for trout was a sporting right, and the limits of its exercise must be determined by considerations applicable to such a right, and not by the rule established in rights of property or servitude— Earl of Aboyne v. Innes, June 22, 1813, F.C., aff. July 10, 1819, 1 Paton 444, explained in Patrick v. Napier, March 28, 1867, 5 Macph. 683, at p. 693; Governors of George Watson's Hospital v. Cormack, December 14, 1883, 11 R. 320, per Lord M'Laren, Ordinary, at p. 323. A right of fishing was abused whenever it was so exercised as to be seriously deteriorated. It might be so deteriorated by injury to the stock of fish, or by so overcrowding the loch that angling was impossible, but these were not the only ways in which abuse might take place. The argument to the contrary was really the argument of the minority of the Court in Menzies v. Macdonald ( cit. supra), and had been rejected there. Such overfishing as made the angling materially worse as a sport was abuse, justified regulation, and had been established here. A right of trout-fishing was a right to the enjoyment of angling, not a right to catch

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so many fish. Therefore even although the loch swarmed with trout, if they were rendered so shy that it was impossible to catch them, the right of fishing was abused. Separatim, the regulation according to frontage was a reasonable method. Any opinions in Menzies v. Macdonald disapproving of it were obiter. Prescription could not apply, because there was not, until regulation, any adverse right to prescribe against— Fergusson v. Sheriff, July 18, 1844, 6 D. 1363, opinion of Lord Cockburn at p. 1374.

Argued for the defenders—On the evidence the pursuer had failed to establish that the fishing in Loch Rannoch had deteriorated. But even if it were proved that the trout were more difficult to catch, that was not a sufficient ground for the interference of the Court. It was not disputed that a right to have the fishing regulated was recognised by the law. But the remedy was very exceptional; the proprietor who proposed to call in the intervention of the Court was bound to show that his rights had been seriously interfered with— Earl of Aboyne v. Innes, cit. supra; Somerville v. Smith, December 22, 1859, 22 D. 279. Now, in the case of trout-fishing, that right might be interfered with so as to call for regulation in two ways, and in two only. First, the stock of fish might be injured, and secondly, the loch might be so crowded with boats as to make it impossible to fish the water properly. On the facts there was no proof that either of these cases had arisen in Loch Rannoch—the evidence was all the other way. On that assumption no case for regulation had been made out, even if it were proved (which it was submitted had not been done) that the fishing was not so good as a sporting right as it formerly was, because the fish were more difficult to catch. In cases of common property the use of one common proprietor could only be interfered with by regulation when there was an abuse which was injuring the subject— Menzies v. Macdonald, March 10, 1854, 16 D. 827, aff. 19 D. (H.L.) 1, 2 Macq. 263. If regulation were admitted, on the ground that the sport derivable from the fishing was inferior to what it was formerly, the defenders might on similar grounds be compelled to fish so many days in the week, because there was no doubt that enjoyment of angling in a loch might be as much interfered with by under as by over fishing. Secondly, whether the pursuer had or had not made out a case for regulation, his action as laid was incompetent. Decree would result in allocation of boats according to frontage. Such an allocation would be contrary to the principle laid down in Menzies v. Macdonald, cit. supra.

At advising—