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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Warrand v. Watson and Others [1906] ScotLR 43_799 (19 July 1906) URL: http://www.bailii.org/scot/cases/ScotCS/1906/43SLR0799.html Cite as: [1906] ScotLR 43_799, [1906] SLR 43_799 |
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Page: 799↓
[Sheriff Court at Inverness.
(See ante December 14, 1905, 42 S.L.R. 252, 7 F. 253).
A pro indiviso proprietor of salmon-fishing having the exclusive right on seven out of every eight week days, raised an action of interdict against certain persons, the townsmen of a town which was the other pro indiviso proprietor of the salmon-fishing having the exclusive right on the eighth day and which exercised its right by leaving it open to the townsmen, to have them prohibited from unlawfully trespassing on his fishing. The defenders averred that they were fishing for brown trout, which class of fishing was in fact open to them.
Interdict granted where it was established, though no salmon had actually been taken, that the defenders (1) had made no difference in their method of fishing on the days when they were not entitled to fish for salmon, and (2) had used minnow-tackle or large sized flies (though not technically salmon flies), and (3) had fished in the months of August and September, months when, broadly speaking, only salmon and sea trout are taken with the rod.
This case is reported ante ut supra.
Captain Redmond Bewley Warrand of Bught, residing at Ryefield House, Conon-bridge, pro indiviso proprietor of the salmon-fishings on the river Ness from the Stone of Clachnahagaig to the sea, with exclusive right on seven out of every eight week days, having brought an action to interdict Donald Watson, fishing tackle maker, Inglis Street, Inverness, and others, indwellers of Inverness, the other pro indiviso proprietor having exclusive right on the eighth day, which right it left open to its indwellers, from unlawfully trespassing on his fishing, the defenders averred, inter alia, that they were not unlawfully trespassing on the fishing but were fishing for brown trout, which fishing it was not questioned was open to them.
On 14th December 1905, the case having been appealed from the Sheriff, the First Division allowed a proof, which was led before Lord M'Laren on 21st March 1906. The nature of the evidence adduced appears from his Lordship's opinion infra.
At a hearing on the evidence, argued for the pursuer—Trout-fishing was not an independent right—Rankine on Landownership, p. 508—and must be exercised subordinately to the higher right of salmon-fishing. Any reasonable apprehension of an invasion of the pursuer's rights justified an application
Page: 800↓
for interdict. The proof established that the right was likely to be, if indeed it had not actually been infringed, for the trout-fishing was merely an excuse. That was shown by the same method of fishing being always used, the tackle employed, and the season of the year. Argued for the defenders—In only one of the cases referred to on record had a salmon been actually caught. Therefore the onus lay on the pursuer to prove that each respondent had been endeavouring though unsuccessfully to take fish of the salmon kind. This he had failed to do, for the bulk of the evidence established the fact that brown trout of large size and in numbers sufficient to attract anglers were taken in the river throughout the season. The evidence as to tackle was extremely vague, owing to the fact admitted by the pursuer's chief witness that he had regarded all fishing whether for trout or salmon on any other day than that “eighth lawful day” on which the townsmen had right to fish for salmon, as unlawful. The respective rights of salmon and trout-fishing were defined in Somerville v. Smith, December 22,1859, 22 Dunlop 279, per Lord Colonsay 287. The pursuer had failed to establish a case for granting interdict as sought.
At advising—
The Town Council of Inverness has not made use of its right of salmon-fishing for purposes of profit, but has left the fishing open to the townsmen for their amusement. In so doing I cannot doubt that the Town Council was entirely within its rights, although the effect of what they have done may be to lessen the value of the other seven-eighths of the fishing estate to the other pro indiviso proprietor. Captain Warrand does not dispute the right of the inhabitants of Inverness to fish for salmon on each eighth day which has been appropriated lo the use of the town. The ground of action is that the respondents have fished for salmon on the days in which the exclusive right is vested in the complainer.
The respondents give a general denial to the allegations against them, but the substance of their defence is that on the occasions when they are proved to have fished on the Ness in apparent contravention of the complainer's rights they were only fishing for trout.
I may here observe that the law does not take cognisance of anything in the nature of a right of trout-fishing apart from the ownership of lands, but if the respondents were in a position to prove that they had in good faith fished only for trout, and with trouting tackle, from the bank lying within the burgh of Inverness, their defence would be established, because it does not appear that the Corporation of Inverness has taken any action to restrain the exercise of the right of trout-fishing from their banks. Whether they should in the future attempt to put a restriction on their right during the salmon-fishing season is a matter for their own consideration, and it is evident that such a restriction would not be very easily enforced.
The immediate question is, what is the value of the respondent's defence as to trout-fishing? On this subject two observations are suggested by the evidence. First, if the parties complained of are proved to have fished in the manner and by the means usually employed by salmon-fishers in the locality, they do not displace the allegation of infringement of the complainer's rights by saying that they were only fishing for trout. Secondly, it is in evidence that during the salmon-fishing season, and particularly in the months of August and September, when the complainer's tenants come to the Ness for sport, there has been a practice of indiscriminate fishing on all week days without distinction, to the injury of the complainer's rights. This has been carried to such an extent that the complainer's tenants have demanded and received from him a substantial abatement of rent on the ground that their sporting rights were rendered comparatively valueless through the action of a section of the inhabitants of Inverness who persist in the practice of indiscriminate fishing.
On the evidence before us I cannot doubt that the complainer was fully justified in resorting to legal measures for the protection of his rights against the persons who can be proved to have fished in his waters for salmon without a title.
The application for interdict is directed against fifteen individuals. After a preliminary hearing of the case a proof was allowed by the Court and taken by myself, and was thereafter reported to the Court. At the hearing on the evidence the complainer withdrew the complaint against two of the parties and moved for interdict against the others.
I may here observe that in order to support an application for interdict, the complainer has to establish such action on the part of the respondents as will justify a reasonable apprehension that they are going to interfere with his rights. The best evidence of this is proof that the respondents have exercised the art of salmon-fishing in the near past, and in a case of this kind I should be unwilling to
Page: 801↓
As regards each of the respondents, I have examined all the passages in the evidence to which we were referred by counsel, and have also considered the bearing of the evidence as a whole on each case, and the excuses which were offered by the respondents who gave evidence on their own behalf. The general body of the evidence is to this effect—(first), as regards these respondents who are proved to have been in the practice of fishing the Ness, that they made no difference in their mode of fishing on the days when they were not entitled to fish for salmon: (second), that minnow tackle or flies of large size (though not technically salmon flies) were used; (third), that while the early summer months are the months in which trout are taken, these respondents fished in the months of August and September, when, broadly speaking, only salmon and sea-trout are taken with the rod.
I do not think there would be any advantage in examining the evidence as to each separate act of fishing which has been proved against individual respondents, but I may say that in my examination of the evidence I have given the benefit of a doubt to those respondents against whom I think the three points just mentioned have not been all established. All the persons to whom I propose that the interdict should be made to apply have fished in the months of August and September on days that are not open to the public. They have fished in a manner adapted for the taking of salmon, and so far as I am able to judge have fished with the same tackle and lines which they were in the habit of using on days when salmon-fishing was open.
The respondents against whom I propose that interdict should be granted are nine in number, viz., …
The Court granted interdict against the respondents named by Lord M'Laren.
Counsel for the Pursuer— Johnston, K.C.—D. Anderson. Agents— Skene, Edwards, & Garson, W.S.
Counsel for the Defenders— Hunter, K.C.—Constable. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
