Scottish Court of Session Decisions

This is a suspension and interdict at the instance of Colonel Robert Munro Ferguson of Raith, Novar, and Culrain, against his Grace the Duke of Sutherland; George Young, salmon fisher, residing at Invershin, in the county of Sutherland; Joseph Peacock, factor for the said Duke of Sutherland, residing at Rhives, by Golspie; Donald Gray, bank agent in Golspie; and Colin Mackenzie, W.S., Edinburgh. The complainers prayed the Court to interdict, prohibit, and discharge the respondents from fishing for salmon in the Kyle of Oykell, on either side of the same ex adverso of any part of the lands and estate of Culrain, belonging to the complainer, extending from about a mile to the westward of the point where the Casalay River joins the Kyle of Oykell to the point where the Culrain Burn joins the said Kyle, and from landing or in any way trespassing on the complainer's said lands and estate, or any part thereof, and from molesting the complainer or his servants in fishing for salmon in the said Kyle of Oykell, on either side of the same ex adverso of the complainer's said lands and estate, or any part thereof, and from taking possession of, or interfering with, the complainer's boats, nets, or other implements used by him or his servants in fishing as aforesaid.

On 17th February 1866 Lord Mure granted interim interdict against the respondents landing for the purpose of fishing, or otherwise in any way trespassing on any part of the lands and estate of Culrain belonging to the complainer, extending from a mile to the westward of the point where the Casalay River joins the Kyle of Oykell to the point where the Culrain Burn joins the said Kyle, or molesting the complainer or his servants in fishing for salmon in the said Kyle of Oykell, from the south side of the same ex adverso of the complainer's said lands and estate or any part thereof, or taking possession or interfering with the complainer's boats, nets, or other implements used by him or his servants in fishing as aforesaid.

Thereafter, answers having been lodged for the respondents, Lord Mure pronounced the following interlocutor:—

Edinburgh, 31 ^st March 1866.—The Lord Ordinary having considered the Note of Suspension, Answers, and Productions, and heard parties' Procurators,—On caution passes the note, and in the meantime interdicts the respondents from fishing for salmon in the Kyle of Oykell, on either side of the same, from the point where the Casalay River joins the Kyle of Oykell, to the island commonly known as the Isle of Oykell, situated about three miles to the eastward of the point where the said Casalay River joins the said Kyle; or from molesting the complainer or his servants in fishing for salmon in the said Kyle, on either side of the same, between the said two points: And quoad ultra continues the interim interdict, and ordains both parties to keep an authentic note or account of the number and weight of the fish caught by them respectively—the complainer between the Isle of Oykell and the Culrain Burn, and the respondent between the said Isle and the mouth of the Shin.

(Signed) David Mure.

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Note.—At the discussion before the Lord Ordinary the passing of the Note on caution was not objected to. But it was contended that the interim interdict which was granted before the Answers were lodged should be recalled, excepting as regards that portion of the River Oykell which lies to the westward of an island called the Isle of Oykell, situated about three miles from the junction of the Casalay River with the Oykell; while it was, on the other hand, contended by the complainer that the interdict should be extended to both sides of the River Oykell, as craved in the Note. The Lord Ordinary has been unable to see grounds for adopting either of these views.

1. As regards the claim to have the interdict extended, it is to be observed that while the respondent does not assert any right to the fishings on either side of the River Oykell, to the west of the Isle of Oykell, the complainer does not, as the Lord Ordinary understands, dispute that in this question of interim possession the respondent has shown an ex facie sufficient title to the fishings on the Shin, where that river discharges itself into the Oykell, and also to the fishings in the Oykell ex adverso of the north side of that river to the eastward of the mouth of the Shin, and between that point and what is called Pool Maikill on the plans in process; but the questions on which parties are chiefly at issue are—(1) As to which of them has right to the fishings for about four miles on both sides of the River Oykell, between the Isle of Oykell and the mouth of the Shin; and (2) Whether the fishings on the south side of the Oykell, to the eastward of the mouth of the Shin, and between that point and the Culrain Burn, belong to the complainer or to the respondent?

So standing the main questions in dispute, it appears to the Lord Ordinary to be plain that were interim interdict to be granted in terms of the prayer of the Note, so as to prevent the respondents from fishing on any part of the River Oykell, on either side of the same, between the Casalay River and the Culrain Burn, the respondent would be excluded from his fishings at the mouth of the Shin, and also from the fishings between the mouth of that river and the Pool Maikill, on the north side of the river Oykell, to both which he appears to have produced a title ex facie sufficient to maintain possession in a question of interim interdict.

As regards the portion of the river between the mouth of the Shin and the Isle of Oykell, the Lord Ordinary wonld have been disposed, had the general clause of salmon fishings in the charter of 1720 been continued in the titles down to the present time, to have extended the interdict to both sides of this portion of the river. Because in the view he inclines to take of that charter it seems to amount to an express grant of salmon fishings ex adverso not only of the lands of Culrain, on the south side of the river, but also of the lands of Linsetmore and Inveran on the north side, which were disposed of in 1727 by the proprietor of Culrain, but without any right of salmon fishing being attached to them, and are now so held by the respondent. But the fact that the word “salmon” has been omitted from the general grant in the complainer's titles since 1788, places him in this respect in a less favourable position, and seems to throw upon him the necessity either of clearing up the effect of this omission or of showing actual possessisn on both sides of the river, on his title, cum piscariis, before he can, in special circumstances of this case, ask for interdict against the respondent fishing ex adverso of his own lands on the north side of the river.

2. With reference to the respondent's claim to have the interim interdict recalled, the Lord Ordinary is not, as at present advised, satisfied that the respondent's title to fishings in the Shin, and in the Oykell to the east of the Shin, taken by itself, is sufficient to give him a right to salmon fishings on both sides of the River Oykell, at any part of it; because the only title produced is one to the Shin fishings, and to the fishings described as once possessed by Lord Duffus, and Monro of Achness; and these are limited to fishings in the county of Sutherland, where the River Oykell is the boundary of the county, so that the fishings on the opposite side are in the county of Ross. The whole of the respondent's fishings are expressely so described in the titles of 1690, 1727, 1813, and 1832, founded on by him. And it is, moreover, not clear that these titles have reference to any fishings to the west of the mouth of the Shin.

In this state of the titles the respondent's claim to have the interim interdict recalled was rested mainly on the possession which he and his predecessors have had of the fishings in dispute for a number of years, and which he alleges is to be attributed to his title to the Shin and Maikill fishings. But the circumstances under which this possession was had by the respondent's predecessors do not necessarily bear out the respondent's claim, because neither he nor his predecessors seem ever to have possessed the fishings in the Oykell, in respect solely of their title to the Shin and Maikill fishings, but have always fished them in connection with a lease from the complainer of the salmon fishings of Kilmachalmack, which is a title to fishings on both sides of the River Oykell, and under which general description the complainer alleges that the respondent fished, as on lease from him, the four miles between the Isle of Oykell and the Shin; and also the fishings on the south side of the river between the mouth of the Shin and the boundary at the Culrain Burn.

And this, in reality, appears to be the main question at issue between the parties; because, assuming that the complainer may not be able satisfactorily to explain the omission of the word “salmon” from his title since the year 1788, the question to be tried will be to which of the sets of titles the possession of these four miles of river is to be ascribed. And as the title on which the respondent founds is throughout restricted to fishings in the county of Sutherland, while that founded on by the complainer, though qualified by the use of the word Kilmachalmack, is a title to fishings on both sides of the River Oykell, there are, it is thought, in the presumptions arising from the present state of the titles and averments as to possession, as good grounds for supposing that the river to the west of the Shin may have been fished, is respect of the lease which the predecessors of the respondent held from those of the complainer, as on their own titles to fishings on the Shin or Oykell — the more especially as the title of Mackenzie of Ardross to fish in the Oykell, whether as assignee to the leases held by Forbes from Ross of Ankerville, or as proprietor in his own right prior to 1827, and separate from any lease he may have held from the complainer, appears to have been limited to fishings at the mouth of the Shin; for those which had belonged to Lord Duffus, as described in the supplementary disposition of 1827, are not expressly mentioned either in those leases or earlier titles. And this being so, the Lord Ordinary has come to be of opinion that,

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as regards the disputed territory, the proper course at present will be to leave each party in possession of his own side of the river, under an injunction upon each to keep an account of the fish taken.

Such is the result which the Lord Ordinary has arrived at on a consideration of the respective titles and averments as to possession. But apart from this, and having regard to the admissions in the Answers, as to the manner in which the complainer's side of the river was occupied, and his property dealt with by the respondents, or those acting under them, before the interdict was applied for, it appears to him to be expedient, if not necessary in the question of trespass, that each party should in the meantime be prevented from fishing ex adverso of, or from landing on, the property of the other. (Initld.) D. M.

The respondents reclaimed.