The act 1696, of the Scottish Parliament, regulates the fishings of salmon in Scotland, and, in particular, enacts laws relating to the killing of salmon, and black fish in forbidden time, and the killing the smolt or fry. It also provides, “in respect that the salmon fishing was much prejudged by the height of mill-dams that were carried through the rivers where salmon were taken, his Majesty, with consent of the estates of Parliament, ordained a constant slop in the mid stream of each mill-dam; and if the dyke were settled in several grains of the river, that there should be a slop in each grain (except in such rivers, where cruives were settled), and that the said slop should be as big as conveniently could be allowed; providing always the said slope prejudge not the going of the mills situated upon any such rivers;—And his Majesty, with consent foresaid, discharged all fishing at such mill-dam dykes, with nets, stented or otherwise, or any other engines whatsoever, under the pains inflicted by that and
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former acts against killers of black fish, and destroyers of the fry of salmon.”
On the river Tweed, about four miles below Kelso, the respondent, the Earl of Tankerville, owns the lands and castle of Wark, situated on the south side of that river; and the Earl of Home owns the lands and mill of Fairburn, on the opposite, or north side, both having a right to the fishings in the river opposite to their respective lands. At this part of the river Tweed there is, and has been for time immemorial, a cauld or dam dyke erected and standing in the said river, beginning very near the south side, and stretching quite across to the north side, consequently, is partly upon English and partly upon Scotch ground, and was originally intended for the purpose of conducting the necessary quantity of water to Fairburn mill.
This dam dyke is of peculiar construction, being six feet high, and quite perpendicular on the lower side, so that it is perfectly impossible for any salmon to get over it, unless in a very high flood. But, to remedy this, and at sametime to give more vent to the superfluous water, there have been, from the beginning, five holes, apertures, or openings, two in the English, and three in the Scotch side of the said dyke, which are placed in the middle altitude thereof, and are about a foot and a half wide each.
These holes, it was alleged, had been for many years past illegally perverted to the purpose of destroying salmon, by the respondents' tenants. This was effected by placing at each hole a pock net, fixed on the upper side, with the mouth downwards, taking in the whole of the opening, and the tail of it stretched up the river fastened by a stone;—on the lower side there was a square barricade or pinfold of stones, with an opening on each side, to allow the salmon to pass in; upon each of these openings in the pinfolds were fixed, stented, or framed nets, that fall down within two or three inches of the bottom of the river, and the mouth of them towards the inside of the pinfold. When salmon came up the river, they passed easily into the pinfolds under these nets, which rose up to give them way. If they attempted to go up and run through the openings of the dyke, they ran into the pock nets; and if any of them happened to turn back, they were infallibly caught in the framed net.
The Duke of Roxburgh is proprietor of the fishings in
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that river lying above Fairburn mill-dam, and had them let on lease to tenants, who are the other appellants.
Aug. 19, 1762.
Aug. 30; Sept. 22, 1764.
Feb. 3, 1767.
July 22, 1767.
July 25,—
Action was brought by these tenants, Lillie and Mitchell, against Turnet, the Earl of Home's tenant, before the sheriff, complaining of these fishings, as being illegal under the act 1696; in which the sheriff, after hearing a proof, held that the fishings were illegal, and decerned to have them removed forthwith. An advocation was brought of this judgment, at which stage the Duke of Roxburgh appeared as a party. The Lord Ordinary having repelled the reasons of advocation, remitted the case simpliciter to the sheriff. In the proof before the sheriff it was established, that the above engines, or pock nets, were set and kept in the water, on Sundays as well as on other days. That the said Earl of Home sometimes pulled out, or cut these nets. That stented nets had been used at the dam dyke for about five years only. That it was usual for the fishers, when they took out their nets, to stop up the holes or apertures in the dam dyke, when it was not necessary to the going of the mill, to prevent the fish from going up the river. The sheriff again pronounced a special interlocutor, adhering to his former interlocutor, prohibiting and discharging the defenders for the future to use nets, pinfolds, or other engines, and appointing such to be removed. In terms of these interlocutors, and after intimation thereof to them, a sheriff's officer went, in presence of witnesses, and removed all the net and other engines, and made an opening in the dam dyke of about 6
½ feet wide, but these were immediately replaced, and the respondents brought a suspension and also a declarator and reduction. The Lord Ordinary turned the decret charged on into a libel, and conjoined the two processes, and “found that the nets and other engines for taking of fish, placed in the dam dyke of Fairburn mill, and complained of by the original libel, are contrary to law, and that the Earl of Home, and Wm. Turnet his tenant, defender in the original process, are not entitled to use the same in the said dam dyke; and therefore ordained the said defenders to remove the said nets and engines betwixt and the first of March next; and prohibited and discharged them from placing or using them in the said dyke in time coming. And further found, That the said defenders are bound to make and keep open the three holes in the dam dyke described in the libel betwixt the middle of the river and
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the north bank thereof, and ordained them so to do betwixt and the said first day of March next. And in case the defenders should not remove the said nets and engines, and redd and make open the said three holes, betwixt and the foresaid day, authorized the Duke of Roxburgh and his tenants, the original pursuers, to remove the said nets and engines, and to red and make open the said three holes upon the defenders' expenses. But in respect it appears from the proof that the defenders had been in possession for many years past, without legal challenge of the method of fishing complained of, assoilzied them from the penalties and damages, and assoilzied the Duke of Roxburgh, and the original pursuers, from the reduction and declarator, and decerned Found no expenses due to either party.” On representations, the Lord Ordinary reported the case to the Court, who found that the act 1696 applied to and comprehended the fishings on the river Tweed. But afterwards, and on further argument, they pronounced this interlocutor:
“Found and ordained the defenders to remove the nets and engines, and appointed the three holes in the dam dyke, betwixt the middle of the river and the north bank thereof to be kept open.”
The respondents reclaimed, and at this stage the Earl of Tankerville was admitted a party in the cause, who contended that the Scotch act 1696, or Scotch laws could not extend to the English side of the river.
July 27, 1768.
The Court then “Found, in the special circumstances of this case, the act of Parliament 1696 does not extend to the fishing in question, and remitted to the Lord Ordinary to proceed accordingly.”
Nov. 25, —
On reclaiming petition the Court adhered, and the Lord Ordinary pronounced an interlocutor, in terms of the remit made to him, suspending the letters and reducing the decree of the sheriff.
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellants.—That the act 1696 is general, and extends to every dam dyke belonging to any mill in Scotland. It is against the unlawful use of this dam dyke that the appellant complains, and the Scotch act refers. It applies to the Fairburn mill, which is on the Scotch, or north side of the river Tweed, and is owned by a Scotch subject; and consequently the regulations of this
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act must govern that dam dyke, and exclude all manner of fishing there inconsistent therewith. When a river divides the estates of two proprietors, each has a right to the salmon fishing opposite to his lands, from his own bank to the middle of the stream. In like manner, when a river, like the Tweed, divides two kingdoms, the same rule must govern. If an island is formed in the river, on either side of that middle line, it belongs entirely to the landowner on that side of the river; and if it is formed on both sides of the line, each of the landowners has a share of it. In like manner, if a river changes its course, and leaves the channel dry, that channel falls to be divided in the middle between the two opposite landowners; which doctrine is established by § 22. 23. Just, de adquir. rer. dom. L. 7. § 3. 4. 5. et L. 56. § 1. Feod. tit. To the same effect Grotius de Jure Belli et Pacis, gives his opinion, Lib. secundo, cap. tertio, § 16. 17. et 18. And Voet, in his Commentary ad titulum primum, lib. 41. Pand. § 17. 18. &c., and many other authorities might be quoted, if necessary. The contrary doctrine, that the right of salmon fishing of a proprietor on the banks of a river extends to the opposite bank, would lead to many dilemmas. In the present case, such a view is out of the question, because it necessarily follows, if the
whole river were to be held the legal boundary between the two kingdoms, that it would be impossible to say, whether that river was within the dominions of the one kingdom or the other, or when the statutes of the one kingdom were to apply and when excluded, or the jurisdiction, whether Scotch or English, that was to be applied or had recourse to in the settlement of disputed rights on the river: Hence, therefore, the apparent expediency and absolute necessity of a line precisely dividing the rights and property of the subjects of the one kingdom from those of the other. The boundary on the river Tweed between England and Scotland is, and always has been, a line drawn along the middle of the river. Whatever happens on the south side of that line must be governed by the laws of England; and whatever is done on the north side of that line must be regulated by the laws of Scotland. The dam dyke in question is a dam dyke which is built from the north side of the river Tweed to the south, though not entirely across to the south bank. Like all dam dykes on the Tweed, it is built on the north side. This dam dyke, therefore, from the north side, to the middle of the
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river, is undoubtedly within the territory of Scotland, and, consequently, must be subject to the jurisdiction of the Court of Session; and as the judgments complained of affect that part of the dam dyke only, the Earl of Tankerville, who has no right to that side of the stream, can have no right to quarrel these judgments. No illegal practice of fishing can be founded on. If the respondent's tenants had been in the practice of fishing in this manner, it was introduced by gradual encroachment, and in violation of the act. And it appears from the Earl of Home's lease to Turnet, that fishing with pock nets was only
sometimes resorted to, but afterwards, by a combination between the tenants of the Earls of Home and Tankerville, in order to make their fishings more valuable, the right had been abused. But this illegal possession cannot be founded on by these Lords, in order to establish a practice of so fishing, which was objected to by the late Earl of Home, and no agreement between them, to hold the fishings in common, can alter the question in the eye of law, because each has granted to his own tenant, by distinct leases, unconsented to by the other, the fishings on his own side of the river. Therefore, and as the dam dyke must be viewed as erected for the use of Fairburn mill, which is on the Scotch side, all illegal use of that dam dyke, in its whole length, though extended beyond the middle of the river, is expressly prohibited by the statute, and the Earl of Home cannot screen himself from the consequences, by any agreement or combination with the Earl of Tankerville, who pleads that he is not subject to the laws of Scotland.
Pleaded for the Respondents.—The idea of a middle line as a boundary between two rights of property, placed in the middle of the stream of a river, is fanciful and illusory. It is especially so in a great river, which divides two kingdoms, the invariable rule in regard to which, being, that the river is common to both kingdoms, and is the property of the subjects in both states, on each side. The river that divides two kingdoms, as Grotius has it, is the right of neither exclusively, but is common to both. In the civil law, rivers were held to be
res publicœ, the use of which was common to all. The act 1696, which is silent as to the river Tweed, and imposes regulations only for Scotland, can never be construed to apply to property held in
common by the subjects of both kingdoms. And, supposing no common property existed, but that the idea of a middle line was correct,
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yet the constant uninterrupted possession here, by both parties, of the fishing over the whole dam dyke, without division, has established in both a common right of property,
pro indiviso, by which each may fish to the opposite bank. It follows from this, that the river being a common right to both kingdoms, no judgment of the Court of Session in Scotland, could affect the right or interest of the Earl of Tankerville, a subject of England, and no order or decree pronounced there, to new model, or alter this dam dyke at Fairburn Mill, so as materially to prejudice the Earl of Tankrerville's fishing in the river, could therefore affect him. The act 1696, consequently, cannot be held to apply to English rights of fishing, or to fishings on the river Tweed, held in common by English and Scotch landowners; but only to the fishings on rivers in Scotland otherwise situated. That the exceptions of the river Tweed, in several statutes regulating the fishing in Scotland, shows this, particularly in 1429, and the act 15th James VI, The exception is again repeated in 11th Act Parliament 16th James VI. After the accession of James to the Crown of England, an act passed in the Parliament of Scotland, which declares the reasons of the above exceptions to have been, “Because the said rivers, at that time, divided at many parts the bounds of Scotland and England adjacent to them, whereby the forbearance, upon the Scots part, of the slaughter of salmon, in forbidden time, and of kipper smolts, and black fish at all times, would not have made the salmon any more to abound in these waters, if the like order had not been observed upon the English side, which impediment being now removed, by the happy uniting of the two kingdoms in an empire, retreats, and perpetually annuls and abrogates the said exception, of the said waters of Tweed and Annan,” which shews that, previously thereto, the river Tweed had been excepted, and, therefore, that the act 1696 cannot be construed to apply to it; and the conduct of the appellant, in applying for the act 1771 to Parliament, in order to regulate these fishings, proves this to a demonstration.
After hearing counsel, it was
