Scottish Court of Session Decisions

The Earl of Zetland, proprietor of the lands of Balmbreich, in the county of Fife, and lying on the south side of the estuary of the Tay, brought this action against the Glover Incorporation of Perth, proprietors of the estate of Seaside, in the county of Perth, and lying on the north side of the estuary, opposite to Balmbreich, concluding to have it found “that the pursuer has good and undoubted right to fish for salmon and other fish in the river Tay ex adverso of those portions of the lands and barony of Ballinbreich or Balmbreich belonging to him, and known as the estate of Balmbreich, and that as far as the centre of the stream of the said river, and including the right to fish as aforesaid from and upon the bank called the Balmbreich Bank, or ‘Eppies Taes’ Bank, lying opposite to the pursuer's said estate: And it ought and should be found and declared that the defenders and their successors in the lands and estate of Seaside have no right or title to fish for salmon or other fish to the south of the centre of the stream of the said river, and in particular from or upon any part of the said bank: And farther the defenders ought and should be prohibited and interdicted from molesting or interfering with the pursuer in the exercise of his said rights, and particularly from fishing by themselves, their tenants or others, from or upon any part of the said bank.”

The estuary, between the properties of Balmbreich and Seaside, is about a mile and a half or a mile and three quarters broad at high water. The pursuer alleged that the stream of the river, on reaching the said bank, divided into two channels, one flowing on the north, and the other on the south side of the bank; the bank was about a mile and a half from the defender's lands, and within a quarter of a mile from the pursuer's; nearly the whole body of the water ran in the channel north of the bank; the bank was situated entirely to the south of the centre of the river, and the pursuer had the exclusive right to fish for salmon thereupon.

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The defenders, on the other hand, alleged that the bank had gradually, within the last 60 years, by the action of the river, been moved downwards, until it had come to be in part ex adverso of the lands of Balmbreich; that the pursuer and his predecessors had never fished for salmon from the said bank; that the bank had always been fished by the proprietors of fishings on the north side of the river, and that, for 40 years and upwards, it had been fished partly by the proprietors of Errol, the property adjoining Seaside on the west, and ex adverso of which the bank had been situated to a great extent for these years, and partly by the defenders and their predecessors.

A proof was taken, and thereafter the Lord Ordinary ( Jerviswoode) pronounced an interlocutor, in in which he found, “ primo, as matter of fact, 1st, That the pursuer and his predecessors and authors have, under and in virtue of the titles founded on in the record, for forty years and upwards, exercised a right of fishing for salmon in the river of Tay ex adverso of the lands and estate of Balmbreich and others belonging to them in property on the south side of the said river, and within a portion of the same where the sea tide ebbs and flows, by net and coble and otherwise, to the medium filum thereof as the same exists at low water; 2d, That the defenders and their authors have in like manner for forty years and upwards, under and in virtue of the titles founded on by them, exercised a right of fishing for salmon ex adverso of the lands of Seaside and others belonging to them in property, and which are situated on the north side of the said river of Tay, and within the influence of the tides, and lying opposite to the foresaid lands and estate, the property of the pursuer, and that by net and coble and otherwise, to the medium filum thereof as at low water; 3d, In particular, that within the channel of the said river there has existed for a lengthened period of time, and exceeding forty years, a bank generally known or distinguished by the name of ‘Eppie's Taes’ Bank, formed chiefly of sand and mud, which is covered by the flow of the tide at high water, and which at low water shows itself as situated within the bed of the fresh water stream; 4th, That the said bank is not and has not been altogether stationary, but has, under the influence and action upon it of the fresh water floods and of the tides in the river, changed its form and position to some extent from time to time, and more particularly of late, and since the year 1838, has been carried further down the stream and more near to the southern bank and to the pursuer's lands on that side of the river; 5th, That the said bank at present lies to some extent to the southern or pursuer's side of the medium filum of the river as at low water, and partly on the northern or defenders' side thereof; and 6th, That for forty years, and for time immemorial prior to the date of the present process, the defenders or those in their right have been in use to fish for salmon by net and coble from the said bank, when not covered by the tide, both to the northward and southward thereof, and now maintain their right in this process so to do.—Finds secundo as matter of law, in respect that the said bank known as ‘Eppie's Taes’ Bank is not altogether stationary, or truly in the sense of the law of the character of an island situated within the bed of the river, but is truly a portion of the bed of the river, liable to be affected and moved from time to time by the action of fresh water floods or of the sea tide, that the same cannot be regarded or dealt with as an island capable of permanent appropriation. by the proprietor or proprietors of the shore on either side of the river, but must be dealt with as being truly within the bed of the river, the fishing of or from which is to be divided so as to afford to the respective proprietors on either side thereof the possession of the fishing to the medium filum of the river as the same exists at low water; and, with reference to the foregoing findings, Finds and declares that the pursuer has good and undoubted right to fish for salmon and other fish in the river Tay ex adverso of those portions of the lands and barony of Ballinbreich or Balmbreich belonging to him and known as the estate of Balmbreich, and that as far as the centre of the stream of the said river; and including the right to fish as aforesaid from, and upon the bank called the Balmbreich Bank or ‘Eppie's Taes’ Bank lying opposite the pursuer's said, estate, in so far as the same is situated to the southward of the centre of the said river: Finds and declares that the defenders and their successors in the lands and estate of Seaside have no right or title to fish to the south of the centre of the stream of the said river, and, in particular, from or upon any part of the said bank, in so far as the same is situated to the southward of the centre of the said river; and interdicts and prohibits the defenders from molesting or interfering with the pursuer in the exercise of his said rights, and particularly from fishing by themselves, their tenants, or others, from or upon any part of the said bank, in so far as the same is situated to the southward of the centre of said river, and decerns: Finds the defenders liable to the pursuer in the expenses of precess, but subject to modification,” &c.

“ Note.—The present case, like others of the same class, involves considerations of some nicety as respects the application of the known principles which regulate the rights of proprietors of salmon-fishings, in a tidal river such as the Tay, to the. particular characteristics affecting the bed of the river, at the point in relation to which this dispute between the pursuer and defenders has arisen.

The state of the facts which have led to the present litigation is remarkable and peculiar in so far as it has relation to the right of fishing from a bank in the river Tay, which, although in some respects identified and spoken of in evidence as a known subject, is more truly of the character of a moveable portion of the bed of the stream, and which has in fact gradually changed its position, and form, and now exists farther down the stream, and is more near to the pursuer's side of the stream, than at any former period.

Each party now maintains an exclusive right to the salmon-fishing from this bank,—the pursuer founding his claim on the allegation that the bank is now situated entirely to the south of the true medium filum of the river, and the defenders, on the other hand, relying mainly on the possession hitherto had by them of the subject.

The Lord Ordinary has been unable to follow either of these extreme views. It has appeared to him, on consideration of the whole evidence, that the river must, at the locality in dispute, be taken as having but one bed, and that the bank in dispute is merely a portion of the solum of that bed which is left uncovered, as it at present exists, by the tide at low water, and which is liable to be moved, and which has in fact been moved, and increased or lessened, by the action of the stream and tides from time to time.

In this state of the facts the Lord Ordinary

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does not think that the bank can be dealt with as if it were an island in the bed of the stream, capable of permanent occupation by either party, or as now truly a part of the southern bank or shore, as maintained for the pursuer, but that it must be regarded truly as a temporary obstruction in that bed, and that in consequence the rights of the pursuer and defenders must be regulated in respect to the mode of fishing from it, so as most nearly to preserve to them their common law right to fish respectively to the medium filum of the stream.

How this is to be done it is scarcely for the Lord Ordinary at present to anticipate. In forming his present opinion the Lord Ordinary has been guided by the principles which, as it appears to him, were given effect to by the House of Lords in the leading case, relating to nearly the same locality, of Lord Gray v. Magistrates of Perth, 30th March 1757, House of Lords, 1 Craigie & Stewart, p. 645; and very recently by the Lord Ordinary and by the First Division of the Court in the case of Wedderburn v. Paterson, 22d March 1864, 2 Macph., p. 902.”

The defenders reclaimed.

The pursuer also reclaimed, and asked the Court to recal the Lord Ordinary's interlocutor, “(1) in so far as it finds that the defenders and their authors have for forty years and upwards, under and in virtue of the titles founded on by them, exercised a right of fishing for salmon ex adverso of the lands of Seaside and others belonging to them and situated on the north side of the river Tay; (2) in so far as it finds that the bank called ‘Eppie's Taes’ Bank lies partly on the northern or defenders' side of the medium filum of the said river as at low water; (3) in so far as it finds that for forty years and for time immemorial prior to the date of the present process, the defenders, or those in their right, have been in use to fish for salmon by net and coble from the said bank; and (4) in so far as it only finds the defenders liable in expenses subject to modification.”