Scottish Court of Session Decisions

Lord President.—The view of the situation here taken by the Sheriff-substitute seems to me to have been perfectly correct, and I have nothing to add to what he says in his note and what he expresses in his findings, where he pronounces findings as to the actual facts which happened. In that view it is perhaps unnecessary to say anything more. But as the case has been so carefully argued, and the question of the right of fishing beyond the medium filum has been raised, I should perhaps say something on the law of the subject. I do not think I can add anything to what was said by Lord Cowan in the case of the Earl of Zetland, taken along with the comments thereon made by Lord Neaves at a subsequent period of the judgments. Lord Cowan says:—“A good deal has been said about the medium filum of the stream. If there had been no possession at all, and we came to consider how the different competing rights of heritors on the banks of the river, having each a right of salmon-fishing ex adverso of their lands, were to be regulated, then indeed I think the Court have recognised clear principles upon which the fishings must be carried on. If the stream is broad enough to allow of a clear sweep of the nets without crossing the medium filum, each riparian proprietor must so exercise his right as to keep within the medium filum of the stream. But then, again, a different state of matters arises where the stream is not sufficiently broad to admit of this. The Court in such cases has found that some arrangement must be made for an alternate sweep of the nets from the different sides. In the case, however, where immemorial possession has been enjoyed, I cannot think that the ascertainment of the medium filum is of any avail in determining such rights of fishing.”

He is dealing there with fishing by means of net and coble, but the same principles I apprehend apply equally to rod-fishing. Now, I agree with that exposition of the law. After all a right of salmon-fishing has nothing whatever to do with the medium filum, but it must be defined as to the place for its local exercise. When that is defined by immemorial practice the matter is settled thereby, but rights of fishing are not necessarily so defined, and it is by no means impossible, even at this day, to figure a case where there will be no such definition. Take for example the case of the Tummel. If the Falls of Tummel were blown up and salmon were thereby enabled to get to the upper reaches of the river, the Crown might, saving any fishing rights existing in the barony of Athole, grant rights of salmon-fishing in the upper waters of the Tummel to the ex adverso riparian proprietors. If this were so, and the question of the limits of their rights were raised, I apprehend that they would fall to be determined on the principles laid down by Lord Cowan. In the particular portion of the Tummel to which I have referred the stream is so narrow that the method of regulation would have to be by the adoption of fishing on alternate days or something of that sort.

But coming back to the facts of this case, the findings of the Sheriff shew no immemorial practice of exercising a right of fishing by means of anchoring a boat in the river and fishing from it in the way the defender here has done. I think it is also shewn that a perfectly reasonable way to exercise the rights of fishing here would be that each proprietor should remain on his own bank of the river. It may be that a good caster, such as Mr Muir seems to consider himself, might be able to cast across the river so that his fly would get beyond the medium filum. That is certainly a different thing from starting out in a boat and anchoring in the middle of the stream, and then proceeding to fish over to the opposite bank. I come to the result embodied in the findings that the defender was on the particular occasion acting in œmulationem vicini against his neighbour's right, and that that was a just ground for complaint.

Now, when the parties came into Court I think the whole case might have taken a perfectly different turn if the defender had chosen to act up to the situation and had frankly said—“I agree I did what I see I ought not to have done, but this is not a case for interdict.” I think the case would not have gone on if he had said so. There might have been a matter of expenses for bringing the process up to that early stage. He does not take that position, but the case goes to proof and the defender says he is absolutely entitled to do what he did, and so sibi imputet if he finds himself cast in the expenses. The interdict, I agree, cannot stand, because it was an interim interdict made perpetual in terms of an alternative conclusion, and that is sufficient to condemn it at once. At the same time I do not think there would be any difficulty in framing an interdict appropriate to the action out of the prayer. We have been relieved from that by the concession which has been made by Mr Fleming that he does not press for the continuation of the interdict. I am for recalling the interdict, and quoad ultra affirming the findings of the Sheriff, and finding the pursuer entitled to expenses.

Lord Kinnear.—I agree both upon the general law and upon the particular question which is raised in this case.

Lord Ardwall.—I concur.

LORD M'LAREN and LORD PEARSON were absent.