Scottish Court of Session Decisions

This was an action of interdict brought in the Sheriff Court at Inverness by Captain Alexander Redmond Bewley Warrand of Bught, residing at Ryefield House, Conon-briage, against Donald Watson, fishing-tackle maker, Inglis Street, Inverness, and others, indwellers in the burgh of Inverness.

The pursuer craved the Court “to interdict the defenders and each of them from unlawfully entering or trespassing upon the pursuer's fishings in the water of Ness, known as the“Four Cobles Fishings” and the “Duke of Gordon's Fishings,” being the fishings in the said river Ness, between the stone known as the Clachnahagaig and the sea, or upon any part thereof, or in any way interfering with the pursuer's possession, use, and enjoyment thereof, and from taking, fishing for, or attempting to take, or aiding or assisting in taking, fishing for, attempting to take salmon, grilse, sea-trout, or other fish of the salmon kind by means of rod and line, or by any other method, from the said fishings, but always under the exception in favour of the Magistrates and Town Council of Inverness, as representing the community of said burgh, (1) of the right of fishing for salmon or any other kind of fish in the said Four Cobles Fishings every eighth week-day, and (2) of the right of fishing for salmon or any other kind of fish in the fishing known as the Friar's Fishing.”

The pursuer, inter alia, claimed to be, and produced a title as, pro indiviso proprietor to the extent of three and a-half cobles of the Four Cobles Fishing in the river Ness, and the town of Inverness was the other pro indiviso proprietor. He averred—“(Cond. 7) The only practical way of exercising fishing rights by rod and line in a case similar to the present is to limit the number of rods in proportion to the rights of the respective proprietors, or to allocate certain days to each proprietor in proportion to the extent of his right. By an arrangement entered into between the predecessors of the pursuer and the town of Inverness it was agreed that the Magistrates and Town Council of Inverness, as representing the community of said burgh, should exercise their right of fishing in respect of the one-half coble now vested in them by fishing over the whole of the Four Coble waters once in every eighth weekday, the pursuer's authors on the other hand being permitted to exercise their rights of fishingduringall the otherdays of the season without interference by the Magistrates and Town Council or members of the community of said burgh. This arrangement has been in force for forty years, and the dates on which the towns rights can be exercised are published in the Inverness Courier in February of each year. Each fishing-tackle maker in town published a list of said dates, and in particular the said Donald Watson, or the firm of D. Watson & Company, has done so for the last ten or twelve years. The pursuer is absolute proprietor

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on seven days out of every eight week-days, and the town is sole proprietor on the eighth day. The present action has been informally intimated to the town by their vassal, but that body is satisfied with the right to fish on every eighth week-day, and on that account have not as yet appeared in the action. The defenders are not in right of the town of Inverness. They merely fish by toleration one day out of every eight week-days without any authority whatever from the town, and they are without any right or title to represent the town in this action. The counter statement is denied, and it is averred that the arrangement in question was in force during the past year and when the present action was instituted.’

In answer the defenders stated—“(Ans. 2) Admitted that the town of Inverness did feu out certain fishings in the water of Ness described as part of the Four Cobles Salmon Fishings, which are still in part held feu of the town. Quoad ultra denied, and explained that the town retained and still retains the right to the whole fishings … except in so far as limited by certain of the said grants of feu to vassals to hold of them of certain pro indiviso shares in said fishings; that part of said fishings remain in superiority and property wholly and solely vested in the town of Inverness for behoof of the community thereof without qualification or restriction; that the town of Inverness was in use to let the same to tenants, and did let the same to tenants down to season 1859, when the town ceased to let the said fishings and resumed the natural possession thereof, and has since occupied and possessed the same by and through the inhabitants and indwellers of the said town of Inverness, who have exercised the town's rights therein of fishing for salmon or other fish; and that the defenders are one and all indwellers within the said burgh who with the consent and approval of the said Magistrates have exercised the town's right of fishing in the water of Ness other than the town's right in the portion of the said fishing known as the Friar's Shott, to which the town has the exclusive right and which the town still lets to tenants. Explained further that the rights granted by the town of Inverness to their said vassals in the said grants were mere pro indiviso rights with the town and the other vassals, and no exclusive right to fish in any part of the said four cobles water was ever granted by the town or acquired by any of the town's vassals.… (Ans. 7) Any arrangement as to the mode of exercising the said right of fishing has been solely from season to season for the convenience of the pro indiviso proprietors of the said fishings and their said tenants, that no such arrangement is now in existence, and that the defenders, as in right of the town of Inverness, are entitled to fish at any and every time on any and every part of the said fishings, so long as they do not thereby unduly interfere with the rights of the pursuer, which they have not done.”

The pursuer further averred—“(Cond. 9) The defenders have no right or title to fish for salmon or other fish of the salmon kind in the portion of the said river between the stone of Clachnahagaig and the sea on any other day than the day selected under the arrangement above referred to, by which the said Magistrates and Town Council have chosen to exercise the rights they are entitled to in respect of the half-coble presently vested in them. The arrangement referred to is not disputed by the burgh of Inverness or the Town Council thereof, which alone has the right to make or unmake it. The defenders are called upon to sist the said burgh as a party to the action.” The defenders' answer was—“(Ans. 9) Denied. The defenders are entitled to exercise the town's rights of fishing in the said river. The pursuer is not entitled to question the actions of the defenders so long as they are within the rights of the town of Inverness in the said fishings.”

The pursuer specified various dates on which he alleged that the various defenders had fished in contravention of his rights. In addition to the instances mentioned, he averred that all the defenders had fished said waters on many occasions both before and subsequent to the dates mentioned, and were in the habit of doing so, and asserted a right thereto.

The different defenders denied that they had so fished.

The pursuer pleaded, inter alia—“(3) The pursuer being proprietor of three and one-half cobles of the water known as the Four Cobles Fishing in the river Ness, is entitled, under the arrangement with the proprietors of the remaining half-coble, to the sole and exclusive right to fish for salmon and fish of the salmon kind on seven week-days out of every eight.”

The defenders (Watson and Others) pleaded, inter alia—“(1) All parties not called, and pursuer has no title to sue. (3) The defenders having exercised only the rights of the public of the town of Inverness in the fishings of the said river Ness, and having exercised such rights only to such limited extent and in such manner as not to interfere with any right of the pursuer in or to said fishings, the prayer of the petition ought not to be granted. (4) The pursuer having no exclusive right of fishing in the said fishings, is not entitled to interdict as craved. (5) Any right the pursuer has in the said fishings being only in the nature of a pro indiviso share therein, and not having been invaded or interfered with by the defenders, pursuer is not entitled to decree as craved.”

The defenders (Fraser and Shaw) pleaded, inter alia—“(5) The defenders not having trespassed as alleged the action should be dismissed.”

On 24th October 1904 the Sheriff-Substitute ( Grant) appointed the pursuer to intimate the dependence of the action to the Provost, Magistrates, and Town Council of Inverness in order that they might, if so advised, crave to be sisted as parties to the action.

Thereafter on 23rd December 1904 he granted interdict against the defenders

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(other than the defender Fraser, who had been cited by mistake).

The defenders appealed to the Sheriff ( Ferguson), who also granted interdict de plano against the defenders (other than the said defender Fraser) in terms of the prayer of the petition, “reserving to the pursuer and to the Magistrates and town of Inverness, as representing the community of the said burgh, the right to give such permission to fish in the town cobles fishings grant as they respectively think fit, in so far as the granting of such permission is not regulated by agreement between the pursuer and the said Magistrates, or by the order of a competent Court.”

Note.—“This case raises several questions of some delicacy. The defenders state under one head the separate pleas of no title to sue and all parties not called. These are both founded on the common interest of the pursuer and the Town Council of Inverness in the fishings which are the subject of litigation. It is unnecessary in this process to determine the alleged uncertainty as to the precise extent of the rights which belong to each of the pro indiviso owners. The pursuer's rights have not been questioned by the other owners, and his titles produced are amply sufficient, apart from any specialty in the law of common property, to entitle him to sue. The plea is truly founded on the fact that he is a part owner and the alleged necessity for the concurrence of the other joint owner. Now, while both joint owners must concur in the general administration of the joint property and the removal of tenants, &c., this is not necessary where the property is merely being defended against encroachment, and the owner is entitled to vindicate it against intruders— (.Johnson v. Crawfurd, 17 D. 1023; Lade v. Largo Baking Company, 2 Macph. 17; Aberdeen Joint Passenger Station Committee and G.N.S.R. v. N.B.R. (1890), 17 R. 975, at pp. 981 and 984). If the pursuer is right in this case, he is undoubtedly merely repelling illegal encroachment on his rights. Whatever might be the case if a declarator were being sued, there is no obligation upon him to call any other than the intruders in a petition for interdict. His conclusions are drawn so as to leave undisturbed the arrangements with and right of the other proprietor as understood by him, and it is difficult to see what ground there could be for making the Magistrates of Inverness, whom he avers to be friendly to his action, respondents in a petition for interdict. The proper course to enable them to safeguard their own interest, or any public interests of which they may be guardians, has been taken by the formal intimation of the action to them. I have no hesitation in repelling the preliminary pleas for the defenders.

A question of more difficulty is, however, raised when we come to consider whether the pursuer is entitled to interdict de plano, or whether .there are averments that must be made the subject of proof. If the defenders had clearly and specifically averred the express authority of the Town Council of Inverness to fish the water on any lawful day as claimed by them, granted to them either by individual licences or by resolution of the Town Council, specifically condescended on, a very different case would have been presented from what can be discovered on record. What they do aver is that at a certain period the town, which had hitherto let the unalienated half coble or thereby of the four cobles fishing, ceased to let it, and that the natural possession was resumed and exercised by the indwellers of Inverness, with the consent and approval of the Town Council. Now, this means no more than that the Council ceased to let and did nothing, whereas in dealing with a body such as a corporation, express authority, either by written permission or in recorded resolution, was to be expected, and if founded on could have been at once verified. It is impossible to overlook the facts that the precise position of the fishings in question has been more than once the subject of judicial consideration, and that in the Four Cobles Fishings we are not dealing with fishing rights of doubtful character or description as to their being private property, or the subject of the exercise of general public rights, but with a heritable estate of salmon fishing, granted by charter and feued out as property from time to time. The proper vindicators of the rights of Inverness in the fishings are the Town Council of Inverness, and as they have deliberately refrained after judicial intimation from making any appearance, it must be assumed that the petitioner's prayer does not conflict with any rights which it is their duty to protect, or affect any licence, express or tacit, which they may have given to others to fish.

This being so, it does not appear to me that the defenders have any title to challenge the averments of the petitioner as to the arrangement between him and the Town Council for the adjustment of their respective rights and the satisfactory exercise of them in terms fair and reasonable to both. Fishing on the eighth day is not challenged by the petitioner. The existence of an eighth day, on which the town may let the water lie open, is significant as to the true meaning of the defenders' averment, and they have made no sufficiently specific and relevant averment as to authority from the town to fish on the seven days, on which alone the pursuer seeks interdict.

The neutral and negative attitude of the Town Council is natural in the circumstances, and affords a good illustration of the propriety of the rule that one part owner is entitled to vindicate the common property against encroachment. The Town Council are a body dependent on popular election, and the defenders may or may not be municipal electors. The petitioner is in right of the fishings to the extent of at least three-fourths, and his interest far exceeds that of the Town Council. On the other hand the Town Council are bound in good faith to do nothing to injure the value of the rights derived from them by the petitioner and his authors. The effect of

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the defenders' contention is that an unlimited number of persons being or pretending to he indwellers in Inverness, could at all times whip the water in respect of one-fourth or one-eighth of the fishing rights, with the result of destroying the letting value or the fishing amenity of the petitioner's three-fourths or seven-eighths. A more graphic example of the lean kine eating up the fat could hardly be afforded, and the substantial interest and reasonable apprehension which justify the remedy of interdict obviously exists.

The defenders Watson and others give a general denial of the petitioner's averments as to specific acts of fishing. Had there been conclusions for damages, a proof as to these would therefore have been necessary. But apart from this, they have appeared to defend, stated that they ‘ one and all ’ have exercised the town's right of fishing, and maintained on record that they, as in right of the town of Inverness, are entitled to fish at any and every time on any and every part of the said fishings. There is therefore that threatened injury to the petitioner, and statement of a defence negative of his rights, which is itself sufficient to entitle him to protection by interdict. (Moncrieff v. Arnot, 1828, 6 S. 530; Dunn v. Hamilton, 1837, 15 S. 853 (6th exception at p. 871); Macleod v. Davidson, 1886, 14 R. 92).

The defenders Simon Fraser, clerk, Holme, and Edward Shaw, state defences in somewhat different terms from the other defenders, but they aver a right on the part of the inhabitants of Inverness undistinguishable from that claimed by Watson and others. They also therefore truly challenge the pursuer's rights, and if they do not impinge these the interdict will not affect them. While I am not clear that I would in the first instance have granted interdict against these defenders I am not prepared to differ from the conclusion to which the Sheriff-Substitute has come in regard to them.

While my judgment is an affirmation on the merits of the cause, the interlocutor appealed against has been recalled, and the one now pronounced substituted, on the ground that in possible eventualities it might possibly prove that the interlocutor of 23rd December 1904had given the pursuer more than he asked. He asks for no interdict affecting the eighth day, as to which he avers an existing arrangement which excludes him, and the exceptions in his own prayer must be given effect to in terms.”

The defenders appealed, and argued—The interdict granted was too wide, as it would prevent the defenders fishing for trout. The defenders did not admit that they trespassed, and therefore granting interdict de plano was incompetent. The mere assertion of a right was not equivalent to actual trespass. The pursuer had only a pro indiviso right of fishing, and therefore had no title to sue. Some of the defenders had not even asserted the right, and therefore the interdict against them was clearly incompetent. There had been no encroachment on the pursuer's rights, and any threatened injury must be very obvious before interdict would be granted de plano. The defenders were exercising the town's right of fishing. Esto that they had no permission, permission was unnecessary. Each member of the community had an interest and a title to assert the town's right. Moreover, in cases of long user (as here) no title was necessary. Esto that a pro indiviso owner could interdict a trespasser, there had been no trespass here, and the pursuer must prove trespass before getting interdict. The defenders did not admit the pursuer's right to fish on days other than the eighth. That being so, the pursuer must bring a declarator of his rights against the town, and the town was not called. In any event a proof of the alleged fishing was necessary. Reference was made to Magistrates of Inverness v. Duff, January 27, 1775, M. 14,257, and Warrand's Trustees v. Mackintosh, February 17, 1890, 17 R. (H.L.) 13, 27 S.L.R. 393.

Argued for respondent—The pursuer did not claim right to interfere with the town's fishing rights. The defenders were claiming much more than the town's rights. Moreover, the rights they claimed were inconsistent with those claimed by the town, and were such as the town could not grant. The defenders had no permission from the town, and they had not set forth facts and circumstances which would lead one to infer that they were exercising the town's rights of fishing. In these circumstances interdict had been properly granted against them de plano— Macleod v. Davidson, November 17, 1886, 14 R. 92, 24 S.L.R. 69.