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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Earl of Wemyss v. Magistrates of Perth [1867] ScotLR 4_62 (31 May 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0062.html Cite as: [1867] ScotLR 4_62, [1867] SLR 4_62 |
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Page: 62↓
Held that a proprietor of salmon fishings, who had a right to fish from the side of the river, was not entitled to follow the river so as to fish from an artificial embankment which had had the effect of altering the channel of the river, it not being proved that he had exercised his right by possession from the embankment.
This is an action at the instance of the Earl of Wemyss against the Magistrates of Perth, and concludes for interdict against the Magistrates from fishing from an embankment constructed in the Tay, between the right bank close to Elcho Pier and the island of Balhepburn. It was made in 1834 by Commissioners, under statutory powers for the improvement of the navigation of the river, and a great part of the expense was borne by the Earl, who is proprietor of the right bank at that point, and also of the island. The Magistrates have a royal charter, the validity of which has been declared by a decree of the Court of Session, of the fishings round and about the island, and which may at any time pertain to it. The effect of the embankment has been to divert the channel of the river to the other side of the island, but it is still covered at high water. A peg has been fixed in the centre of the embankment indicating the middle of the old channel; and no acts of fishing on the part of the Magistrates are alleged from that point westward to the mainland, and no right is maintained by them as to that portion. The Earl claims to exclude the respondents as being proprietor of the embankment, and also because he is entitled to follow the river, the fishing from the embankment coming in lieu of those from the right bank, which the embankment has destroyed.
The Lord Ordinary ( Jerviswoode) in decided in favour of the Magistrates.
The Earl of Wemyss reclaimed.
A. R. Clark and Balfour for him.
Fraser and Watson in answer.
At advising—
The
Page: 63↓
The embankment connects two portions of land belonging to the Earl of Wemyss, for he is proprietor of the island, as well as of the point of the south shore of the south channel, at which the embankment commences. He maintains two propositions. He affirms that he is proprietor of the embankment from end to end. He says also that the effect of the construction of the embankment is to transfer a right of salmon-fishing, which formerly belonged to him, along the shore of the south channel to the embankment, which he says must be held to come in place of that shore, and so to reach the fish, which formerly he could have taken, or had right to have taken, if the ground had been suitable for the use of the necessary implements of capture. He refers to the rule that where a river deserts an old and follows a new channel, the owner of the salmon-fishing may follow the stream.
The prayer of the suspension and interdict extends to the whole embankment. The Magistrates are sought to be interdicted from fishing from any point along its entire course. In so far as relates to fishing from the southern portion of the embankment, I do not find that any right to fish upon it was maintained by the Magistrates of Perth, which necessitated or could justify the present application, and no fact of possession is stated in regard to it as having happened since 1847 A peg was put by the Magistrates in at the point of what was believed to be the mid-channel, and the Magistrates neither fished between that point and the south shore, nor set up a right or pretence of right to do so. This is made very clear by the correspondence, before the institution of proceedings, between Lord Wemyss' agents and the agents of the town. In this Court one part of one plea is so expressed as that it might cover such a pretension, but neither before the institution of judicial proceedings nor subsequently in the Court has that pretence of right been set up. No one is entitled to have a process of suspension and interdict against a neighbour who has neither, de facto, exercised any act of possession nor maintained any claim to possess the subject as to which interdict is craved. I propose, therefore, that we should refuse the interdict in so far as regards the portion of the embankment between T. and A., from mid-channel to Elcho Pier, as not justified by any act or claim of possession having been set up on the part of the Magistrates at or about the date of the application. I propose to refuse the application, but I propose in that respect varying the Lord Ordinary's interlocutor, that we should, in refusing the interdict, assign the ground on which that refusal is rested. We do not, and in this process we cannot, definitively fix any question of right in reference to the fishing at this part of the embankment. It is a sufficient ground for dismissing the application that it was unnecessary and uncalled for.
There remains the question as to the fishings from Z to B on the plan, or in other words, from the point of the mid-channel of the south branch of the river and the island. The first question to consider is, whether we can take it as established that the suspender is proprietor of the embankment itself. I am not satisfied that the Earl of Wemyss has any right of property in the embankment. The embankment was constructed upon the alveus of a public tidal navigable river. If the maxim quod solo aedificatum solo cedit applied here, the embankment would rather belong to the crown, as the proprietor of the alveus built up, than to the subject whose lands may adjoin each extremity. I do not think that such a work as an artificial embankment, performed at once and by force of a special statute, can come under the doctrine of accession by alluvio. Alluvio is a mode of acquiring property, but its special characteristic is the gradual and imperceptible addition to the land of the proprietor, who thereby has an addition made to his land. “ Per alluvionem id uidetur adjici quod ita paulatim adjicitur ut intelligere non possumus quantum quoquo momento temporis adjicitur. (D. 41, 7, 1.)
If it were otherwise, I confess that I do not see how Lord Wemyss could take benefit, for the one-half of the embankment would seem to form an addition to the island; the other half to the land on the south of the fishings from the northern portion of the embankment would then fall to be considered as fishings from the island itself a result not very favourable to the suspender.
If the claim of property in the embankment is even doubtful, and, above all, if it is prima facie against the suspender, we cannot give effect to it in this summary proceeding. But truly the right of property in the embankment cannot go far in a question as to salmon-fishings, which is a separate right, and involves in it the right to use land necessary for its beneficial exercise to the party having the right of fishing. As the right of fishing in one part is not incompatible with the property of the soil from which the fishing is exercised, the only effect of the property being held to be in the suspender, would be to make it necessary for the Magistrates to justify their use of the embankment by instructing their right of fishing as a pertinent to which they would be entitled to use it.
If the suspender's right of property is not to be assumed, his right to the fishings would require to be made out. This is done, or said to be done, by referring to a right of fishing along the south bank in the former south channel, before the embankment was constructed, and it is said that the effect of the embankment is to transfer the fishings from the south shore to that point. This is certainly by no means clear. What has happened
Page: 64↓
The effect of the shutting up of the branch of the river would seem to be to extinguish these particular fishings, and, it may be, to rear up questions of compensation for their loss. I do not see how the loss of a right to fish along the south shore of the south branch can have the effect of conferring a right to the north end of the new embankment. The case seems to be that the fish used to pass by this channel, and that they mill now pass by the main channel, and that a party who had the right in one channel may now fish in the other. If it mere so, then the right to fish along the south shore of The island, opposite to the shore in question, into that same channel, must e pari ratione be transferred to the south of the embankment, and consequently the Magistrates would have a right as well as the suspender to fish from it. He could not interdict them from fishing from an embankment to which their right rested upon precisely the same ground as his own. Further, Lord Weymss' right of salmen-fishings, as claimed, are fishings off the Mains of Grange of Elcho. The respondents do not, as I understand, dispute his right to fishings along the land margin of the south channel. Such a question in the state of the title before us might perhaps have been raised; but unless we hold that the shore opposite the old south channel is in part or wholly the twenty-four acres of cotland of Elcho, which is not shown and is almost incredible, the title is one by prescriptive possession only. It is said that the prescriptive possession of one portion of the shore will acquire right to the whole salmon-fishings of the shore, the entire estate which has a general right to fishings by possession. It may be so, but the measure of right being the measure of possession, no right disconnected with these special lands can be acquired. When the fishings so acquired cannot be exercised by reason of any physical cause they must cease.
It seems to me, therefore, that Lord Wemyss has not instructed, on his part, any right of property in the embankment, or any right to fish on its northern portion, and that might be enough to dispose of the case. This is not a case of alleged interruption of possession. Lord Wemyss has not fished on the north part of the embankment. It is by virtue of the force of his title alone that he can prevail in the question.
Now, there seems to me not only the want of a clear title in Lord Wemyss, but also something like an express title in the respondents to the fishings the portion of the river ex adverso of the embankment from Z. to B. They have a title of a most comprehensive kind. They have right by charter to the fishings, and a decree of this Court in 1787 affirms their right.
Surely this right conveyed to them the salmon-fishings in the water round the island, not the mere right of dragging nets on the island. Could they not fish with rod in these waters, and fish there exclusively? Suppose a small subsidiary island had sprung up on a portion of the ground which the embankment now occupies near the island, can there be a doubt that under their titles they could have fished from such an island? How could Lord Wemyss have interfered? By what right could he have left his own bank and come to fish at a spot near the island? The locality is described, and if ground coming there naturally would be fished from in terms of the grant, as I think would have been in accordance with its express words, ground formed, artifically formed, in that very place seems to fall under the same condition. If so the statute says that the rights of proprietors of fishings are to be reserved so far as not limited. The effect of the success of Lord Wemyss' contention would be that the Magistrates have lost their right, and he acquired it through the effect of an operation which is expressly declared to have no effect in altering whatever upon subsisting rights.
The other Judges concurred.
Agents for Suspender— Tods, Murray, & Jameson, W.S.
Agents for Respondents— Hill, Reid & Drummond, W.S.
