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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Colquhoun v. Buchanan and Others [1866] ScotLR 1_246_1 (29 March 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0246_1.html Cite as: [1866] SLR 1_246_1, [1866] ScotLR 1_246_1 |
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Page: 246↓
In a reduction of a roll of proprietors of salmon fishings made up by the clerk, on the ground that it contained the names of persons who were not proprietors, action sustained, and issues ordered.
This is an action of reduction at the instance of Sir James Colquhoun of Luss, Baronet, and it is directed against Mr John Buchanan, of Carbeth, Miss Barbara Govane of Park, Mr Cooper of Ballin-dalloch, and Mr Blackburn of Killearn; and also against his Grace the Duke of Montrose, Sir George Hector Leith, of Ross, Baronet, and Mr Galbraith, the Sheriff-Clerk of Stirlingshire, for their interest. The object of the action is to reduce and set aside the roll of proprietors, or alleged proprietors, of salmon fishings within the district of the rivers Clyde and Leven, as fixed and defined by the Salmon Fisheries Act, 25 and 26 Vict. c. 97, which was prepared by the Sheriff-Clerk of Stirlingshire in pretended conformity with said Act. The ground of reduction is that the defenders do not possess the qualification required by the statute for admission to the roll, because they had no right to salmon fishings in the said district. There were also conclusions for reduction of various minutes of the proprietors so enrolled, and of the District Board elected by them.
The defenders Mr Buchanan and Mr Blackburn lodged defences, and stated the following pleas:—
“1. The action is incompetent, and cannot and ought not to be entertained in this Court, in so far as it seeks to set aside the right of the defenders to remain on the roll of proprietors of salmon fisheries in the said district of the rivers Clyde and Leven,
Page: 247↓
in respect that they have been put on said roll by the authority of the Sheriff, who is exclusively empowered to make up the roll, and to decide without review all questions arising in regard to the qualification of proprietors of salmon fisheries under the said Act. 2. Separatim, the action is incompetent—(1.) In respect that the Sheriff has decided that the defenders are qualified in terms of the Act, and his judgment is not subject to review. (2.) Or otherwise, in respect that the pursuer was directed and bound by the Act to obtain a judgment from the Sheriff in the first instance upon the question of the defenders' qualification. (3.) Or otherwise, in respect that the Sheriff in making up the roll proceeded ministerially in the discharge of a duty entrusted by the Legislature exclusively to him, with his performance of which, in the circumstances set forth by the pursuer, this Court has no jurisdiction to interfere either under the Act or at common law.
6. The pursuer is barred personali exceptione by his recognition of the rights of the defenders, and his concurrence in the election of the defender, Mr Buchanan, as a member of the district board from insisting in the action.”
Section 18 of the statute is as follows:—“The Sheriff shall direct the sheriff-clerk to make up a roll of the upper proprietors, and also a roll of the lower proprietors in each district, and the qualification of an upper proprietor shall be the property of a fishery entered in the valuation roll as of the yearly rent or yearly value of £20 or upwards; or if such fishery be not valued on the valuation roll, of half-a-mile of frontage to the river, with a right of salmon-fishing; and the qualification of a lower proprietor shall be the property of a fishery entered in the valuation roll as of the yearly rent or yearly value of £20 or upwards; and the Sheriff shall have power to decide summarily any question arising on any claim to such qualification.”
The Lord Ordinary (Jerviswoode) being of opinion that these pleas could not be disposed of without some inquiry into facts, ordered issues. The defenders reclaimed, but the Court to-day adhered.
The Lord President said the case stated here was that one at least of the defenders was not a proprietor of salmon fishings at all. On the other hand he said he was; that he had a title to “fishings;” and that that title, fortified by the use of fishing for salmon, constituted a prescriptive right to salmon fishing. But he also maintained that the question could not now be raised, that the statute gave the Sheriff a power which he had exercised, and that his decision was not reviewable. His Lordship thought the plea as to the Sheriff's judgment being final under the 28th section was altogether untenable. There was a finality only as to matters such as were referred to in that section. But, farther, it did not appear that the Sheriff had pronounced any judgment at all. He had never been called on to exercise any power given him by the Act. No doubt, under section 18, it was provided that if any dispute should arise while the Sheriff-Clerk was making up the roll the Sheriff should have power to dispose of it; but it did not appear that any such dispute arose here. Still there was a plea that there was no way of getting over the judgment of the Sheriff-Clerk but by going to the Sheriff. The Act does not give any appeal from the judgment of the Sheriff-Clerk to the Sheriff. The Sheriff-Clerk is not bound to consult anybody in the course of making up the roll. If he refuses to put anyone claiming on the roll the party may take the judgment of the Sheriff, or a party objecting to a claim may bring it before the Sheriff. That the other heritors had an interest to insist in such an action as this was beyond question; for one object of the Salmon Fishery Act was to assess proprietors for the expenses of management, and a party had surely an interest in regard to the appointment of the body that was to assess him. It was impossible to sustain an objection which amounted to holding that there was no redress against a mistake such as that alleged here, and that the Sheriff-Clerk's procedure could not be corrected. If a party having no title were put on the roll, was not the statute violated? His Lordship could not see why in such circumstances there should be no redress by reduction. As to the plea of homologation by subsequent proceedings, it was said that a mandatory of the present pursuer was present at certain meetings where the defenders appeared and took part in the business, and made no objection to their acting. His Lordship thought that would not constitute a personal bar, the mandate not extending to challenging the right of parties to be members of the Board or to be entered on the roll. On the whole, his Lordship thought it was necessary to inquire whether these parties had the right required by the statute to entitle them to be entered on the roll. What had the Sheriff-Clerk done here? A party produced a title, according to which, ex facie, he had no right. The Sheriff-Clerk said he was informed that, though that title was only a title to fishings, the defenders had really been exercising for the prescriptive period a right of salmon fishing. If the Sheriff-Clerk were to take such a matter on the mere statement of a party, anyone might be enrolled. There was nothing before the Sheriff-Clerk, so far as could be seen, to show that the title constituted a right of salmon fishing. Hence the matter should be inquired into. The Lord Ordinary had ordered issues; but the pursuer wished proof by commission, and it seemed better that the proof should be taken in that way.
Counsel for Pursuer— Mr Patton and Mr Watson. Agents— Messrs Tawse & Bonar, W.S.
Counsel for Defenders— The Solicitor — General and Mr Hall. Agent— Mr James Macknight, W.S.