Arthur v Aird
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1907 |
| Date | 13 July 1907 |
| Docket Number | No. 175. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Stormonth-Darling, Lord Low, Lord Ardwall.
FishingsRiverTrout-fishingProcessSeveral pursuersCommunity of interestJoint InterdictCompetency.
In the case of small rivers, which by rod-fishing, with or without wading, can be commanded from bank to bank, there is no rule limiting the proprietor on one side of the river to his own side of the medium filum in fishing for yellow trout; and consequently the proprietors upon opposite sides of such a river have a common interest in that part of the river which flows between their estates, entitling them to take joint action against anyone fishing the water from either side.
The small River Ayr for a part of its course flows through the estate of Barskimming; for the immediately succeeding part of its course it has Barskimming on the south and Failford on the north; for the next part of its course it has Barskimming on the south and Montgomerie on the north.
The proprietors of Barskimming and Montgomerie having brought a joint action for interdict against members of the public fishing in the river in so far it flows through or ex adverso of their estates, held that the action was competent in so far as it related to the portion of the river which flows between Barskimming and Montgomerie, as the pursuers had, with respect to that portion, a common interest in the whole breadth of the river; but that quoad ultra the action was incompetent, the pursuers not having any such common interest in the other portions of the river.
The River Ayr, flowing from east to west, for a portion of its course flows through the estate of Barskimming, so that both its north and south banks are in that estate; for the immediately succeeding portion it has Failford on the north and Barskimming on the south, and for the next portion it has Montgomerie on the north and Barskimming on the south.
These portions of the river are neither tidal nor navigable, and they can be commanded from bank to bank by rod fishers.
In July 1905, James Arthur, the tenant of the mansion-house,
shootings, and fishings of Montgomerie, with the consent and concurrence of William Robert Paterson, the heir of entail in possession of that estate, and his curator, and John Meikle, the proprietor of Barskimming, brought an action in the Sheriff Court at Ayr against Thomas Aird, miner, Riccarton Road, Hurlford, John Jones, and Robert Wallace, miners, Academy Street, Hurlford, craving the Court to interdict the defenders from unlawfully entering and trespassing upon the lands and estate of Montgomerie, situated in the parish of Tarbolton and county of Ayr, or upon any part thereof, or from unlawfully entering and trespassing upon the lands and estate of Barskimming, situated in the parish of Stair and county of Ayr, and in particular from fishing for or trying to catch or kill in any way yellow trout or greyling in the portion of the River Ayr so far as it flows ex adverso of the said estates of Montgomerie and Barskimming.
The pursuers averred, and the defenders admitted, that on 13th May 1905 the defender Jones, and on 14th July 1905 all the defenders, had fished in the portion of the River Ayr between Montgomerie and Barskimming, and had refused to desist from so doing.
The defenders pleaded, inter alia;(2) The action is incompetent and irrelevant. (3) No title to sue. (4) The River Ayr, at the points referred to in the pursuers' condescendence, being a public river, the right to fish for trout therein is common property.
On 19th December 1905 the Sheriff-substitute (Shairp) interdicted the defenders from unlawfully entering and trespassing on the lands of Montgomerie and Barskimming, and in particular from fishing for or trying to catch or kill in any way yellow trout or greyling in the River Ayr between the lines (1st) E F and G H, and (2d) between the lines A B and C D on the plan No. 19 of process.*
On appeal, the Sheriff (Brand), on 19th June 1906, adhered.
The defenders appealed, and argued;The action was incompetent, as the pursuers had not that community of interest which was necessary to enable parties to join in suing an action.1 As regarded the prayer for interdict against trespass on the lands, the proprietor of the one estate had no interest in the other estate, and could not enforce the interdict quoad that other estate; and, as regarded the river, the pursuers had separate rights in it, and not a common interest. Further, the interdict craved was only as to the river where it flowed ex adverso of the two estates, and there was no averment that the defenders had fished in any part other than that between A B and C D, and, accordingly, the interlocutor of the Sheriff could not be supported seeing that it granted interdict as to the portion E F to G H (where the river flowed through the lands of Barskimming)...
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