Scottish Court of Session Decisions

This is a questiou between the Earl of Seafield and a fisherman in the village of Whitehills, in the county of Banff. The Earl is proprietor of the salmon fishings ex adverso of his lands in Banff-shire, which extend about 18 miles along the seaboard, his right thereto having been declared in an action at the instance of the Lord Advocate, by whom the fishings were claimed on behalf of the Crown in 1866. In the year 1868 the Earl of Seafield discovered that the respondent was setting fixed nets on the shore of the sea, between a point 10 yards below water and a distance of 70 yards, the length to which the net was carried, into the sea. He thereupon brought a petition of interdict against the respondent, seeking to have him prevented from fixing or mooring such nets on the shore, alleging that thereby the respondent caught salmon, or at any rate obstructed the passage of salmon. The respondent, on the other hand, denied that the net was used either with the result or the intention of catching salmon, and maintained his right to use it in exercise of the public right of taking white fish from the sea. and further alleged that lie and the fishermen along the coast had been accustomed to fish for white fish in that manner from time immemorial.

The respondent made the following statement in regard to the circumstances libelled in the petition:—“Upon Monday the 18th day of May last 1868, in the daytime, the respondent, in the exercise of his lawful calling, and assisted by George Williamson, labourer, Whitehills, set in the sea, within a mile of low water-mark, opposite the farm of Dollachy, in the parish of Boyndie and county of Banff, the three nets referred to in the answer to the second article of the condescendence, which nets are of the description, and were set in the manner after-mentioned for the capture of white fish, and, in particular, for the capture of ‘codfish, scathes, and lithes.’ The three nets were attached to each other, and made to form one net. One end thereof was made fast by means of a stone sunk in the sea. The net was carried out sea-ward in a straight line to the length of about 70 yards; it was there made fast by means of another stone sunk in like manner. The remainder of the entire combined net was brought round so as to form an angle, and the end was made fast by means of an anchor; the length of the part of the whole net, after the turn, being about 22 yards. Two nets and a part of the third one of the combined net were extended in the straight line, and it was the remaining part of the third net which formed the angle. Except the stone at one end, the stone at the turn, and the anchor at the other end, there was nothing to keep the net down to the bottom of the sea; and except at the ends and turn, the net did not at high water reach the fundus of the sea. The net was set at a distance of 10 yards or thereby from the low water-mark. The end nearest the land was in two fathom depth of water, and the other end in four fathom depth at low water. The net was not fastened to the rocks at all. The meshes of the net were partly 5 1 2 and partly 4 1 2 inches, being adapted for the capture of the larger size of the white fish before-mentioned; and the net, which altogether was an instrument well adapted for the capture of white fish, and different from the salmon net in use on this coast, and neither designed nor adapted for taking salmon, was set in the manner best calculated to a successful catch of white fish, and with no intention to interfere with, limit, or infringe, and it did not interfere with, limit, or infringe the right of salmon fishing belonging to the petitioner. Not known and not admitted that the stone sunk in the sea nearest the shore was sunk at the back of a piece of rock or large earthfast stone, which formed a sort of buttress or catch; but admitted that the stones and anchor were of themselves sufficient to prevent, and averred that they did prevent, the net from drifting. Admitted that the said nets were instruments well adapted to catch white fish. Denied that they were equally well adapted, or adapted at all, to catch salmon. Explained that they might possibly have caught a salmon. Admitted that the said nets were set in the manner best calculated to a catch of white fish. Denied that they were set in the manner best calculated to a catch of salmon, or for any such purpose. Admitted that the net was supported on the surface, and held downwards to the bottom of the sea in the manner admitted in the answer to the second article of the revised condescendence. Denied that the net was calculated to prevent or obstruct salmon, or fish of the salmon kind, from passing along the coast. Admitted that salmon often seek to creep along the coast towards and in search of rivers. Denied that the setting of such nets in the way claimed and averred by respondent is entirely or at all of a novel kind, or illegal or destructive of the rights in the petitioner, and the exercise and use thereof.”

A number of prejudicial pleas were stated by the respondent, and, inter alia, on the merits the petitioner maintained the following pleas:—(4) “The pursuer, in virtue of his said titles and right, and of his said possession, is entitled to be protected against any access by the respondent to the shore or fundus of the sea within the limits above mentioned—that is, an interference with said possession, or operates a limitation of, or infringement on, the petitioner's rights. (5) The respondent, as a member of the public, in exercise of his right of white-fishing, is not entitled to fix nets or other engines on the shore or fundus of the sea for the purpose of catching white fish. (6) The right of the public to take white fish from the sea being derived from the Crown, must be exercised in harmony with, and so as to preserve the full exercise of the other rights of the Crown, whether they are held by the Crown itself or by its grantees.”

After some procedure, the Sheriff-Substitute ( Gordon) dismissed the petition as craving an un-certain verdict. The Sheriff ( Bell) recalled this interlocutor and allowed a proof. Thereupon the respondent appealed to the Court of Session with a view to jury trial.

Scott and Rhind for appellant (respondent in the Court below), moved that the petitioner should be appointed to lodge an issue, with the view of a jury trial, but that preliminarily the pleas for the petitioner on the merits, above stated, should be repelled.

John Marshall, and W. A. Brown, for the respondent (petitioner in the Court below), answered—The pleas sought to be repelled are available for the decision of the case against the appellant without proof. According to his own admission, ho fixes engines on the shore; and the

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nets used are of such a nature as necessarily to infer either that they will catch salmon, or obstruct the passage of the fish. It may be that the petitioner is not the grantee of the Crown in the solum of the sea, hut he is the grantee of the salmon-fishings, and in exercise of that right he is entitled to use the shore. On the other hand, the appellant, as a member of the public, has no right to fix engines on the fundus of the shore in exercise of his right to catch white fish. The solum of the sea is feudal estate in the Crown, and no amount of possession can be available to acquire a right in it by the public, because the public right to take white fish is not a feudal title.

After considerable discussion, the Court expressed an opinion that it would be desirable to ascertain the facts before answer. The Court was further of opinion that the adjustment of issues, with a view to jury trial, would be a matter of great difficulty, looking to the intricate and important questions involved in the case, in which the parties might not eventually succeed. There were no doubt popular issues in the case, specially adapted for jury trial, but that consideration must yield to the important and difficult character of the legal questions involved. The proof was therefore appointed to take place before one of their Lordships.