Fothringham v Kerr or Passmore and Another (First Appeal) (Scotland); Kerr or Passmore and Another v Fothringham (Second Appeal) (Scotland)
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Brightman,Lord Templeman |
| Judgment Date | 12 July 1984 |
| Judgment citation (vLex) | [1984] UKHL J0712-2 |
| Date | 12 July 1984 |
| Court | House of Lords |
[1984] UKHL J0712-2
House of Lords
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Brightman
Lord Templeman
My Lords,
This appeal is concerned with the rights of proprietors of estates on opposite banks of the river Tay to fish for salmon in the river ex adverso of their estates. It raises the question, on which authority is surprisingly meagre, whether, as a general rule, each proprietor has the right to fish by rod and line from his own bank only as far as the medium filum of the river, or whether he is entitled to fish beyond the medium filum. It is common ground that, if the general rule is that the right is restricted to the medium filum, a proprietor with a habile title may acquire a right to fish beyond that line by possession for the prescriptive period, if the possession is referable to his title. A right to fish beyond the medium filum may also exist in cases where the river is narrow. But, for reasons that will appear, it is necessary in this case to ascertain the general rule.
The appellant is the proprietor of the estate of Murthly (subject to certain exceptions which are not material) on the south bank of the Tay, "with the salmon fishing upon the water of Tay � pertaining and belonging" thereto. His rights are derived from a Crown grant dated not later than 1839. The respondents are the proprietors of the estate of Stenton on the north bank of the Tay, with "the fishings as well salmon as other fishings in the river Tay belonging to � Stenton." Their rights are derived from a Crown grant dated not later than 1835. Before 1847 Stenton and Murthly were in separate ownerships. In 1847 Stenton was acquired by the owner of Murthly and he or his successors continued to own both estates until 1870, when they sold Stenton. Since 1870 the estates have had separate owners. The titles of the estates do not in either case define the geographical extent of the salmon fishings involved, save that they are stated to be in the Tay and to belong to the respective estates. During the hearing in the First Division parties lodged a joint minute in which they agreed in stating inter alia that it was not known whether, and if so in what manner, the salmon fishings of these estates were enjoyed by their respective owners before 1870. The Lord Ordinary (Lord Cowie), 1981 S.L.T. 243 found that since at least 1910, and probably since 1870, until the emergence of the present dispute, the right of salmon fishing of each estate was exercised in accordance with an arrangement or custom whereby each proprietor fished the whole breadth of the river ex adverso of his estate by rod and line on alternate lawful fishing days. Each proprietor thus had available to him the whole breadth of the river on three days each week. One year, one proprietor had Mondays, Wednesday and Fridays; the next year that proprietor had Tuesdays, Thursday and Saturdays. An arrangement of this sort is very common on the Tay, and was so as long ago as 1879: see Robertson v. Foote & Co. (1879) 6 R. 1290. It is also found on other rivers. The Lord Ordinary found that there was no evidence of a formal agreement between the parties or their predecessors in title relating to this arrangement, and he expressed the opinion that it is unlikely that there ever was one and that the probabilities were that the arrangement was one simply for the mutual convenience of the respective proprietors.
On 2 August 1978 the respondents gave notice in writing to the appellant of their intention to terminate the said arrangement or custom as from 15 January 1979, the opening day of the spring fishing season in the Tay, and thereafter to exercise their right of fishing in the Stenton fishings on every permissible salmon fishing day. The appellant resisted the termination of the arrangement and continued to fish in accordance with the previously established custom. On 8 May 1979 the respondents presented a petition to the Court of Session for suspension and interdict of the appellant from fishing or attempting to fish for salmon or other fish in the Tay in so far as such fish were ex adverso of the respondents' lands of Stenton and to the north of the medium filum of the river. Interim interdict was granted but was shortly afterwards recalled on an undertaking by the appellant that he would for the time being confine himself to fishing on alternate days in accordance with the previous practice. On 22 June 1979 the appellant raised an action for declarator and for decree of regulation against the respondents. The declaratory conclusions, of which there were originally two, have been considerably altered and the only one now insisted upon is the first which (as proposed to be amended during the course of the hearing in this House), and reading it short, is for declarator that the appellant as proprietor of the estate of Murthly with the salmon fishings belonging to it
"is entitled to fish, on every lawful fishing day, the whole breadth of the river Tay between said estates of Murthly and � Stenton � as are the [respondents] as proprietors of � Stenton"
and of the salmon fishings belonging to Stenton. The appellant also concludes for decree regulating the mode of exercise of the fishing rights by ordering, in effect, that the practice of fishing on alternate days should continue. There is thus a sharp issue between the parties. The appellant asserts that both parties are entitled to fish over the whole width of the river. The respondents maintain that each party is limited to his own half.
The Lord Ordinary refused to grant the prayer of the petition for interdict holding that, in the circumstances of this case, the medium filum should not be regarded as the limit of the respective salmon fishing rights of each party. His main reason was that by reason of the narrowness of the river and its configuration in the stretch between the two estates the appellant could not exercise his right to fish for salmon fully and effectively if he were to be confined to the medium filum. The Lord Ordinary also refused to grant decree in terms of the declaratory conclusions of the summons of the action but he granted decree regulating the fishing rights by ordering that the alternate day arrangement should continue. On a reclaiming motion for the respondents, the First Division (the Lord President (Lord Emslie), Lord Cameron and Lord Stott), 1983 S.L.T. 444 recalled the Lord Ordinary's interlocutors and granted interdict against the appellant from fishing ex adverso the bank of Stenton to the north of the medium filum of the river. They held that the general rule is that a dispute such as this, as to the extent of rights of opposite proprietors to salmon fishing in a river, will be resolved by giving effect to a legal presumption that the limit of the right of each proprietor is the medium filum, and that there was no reason why that rule should not apply to the facts of this case.
It will be convenient to notice a few general points.
1. The right of salmon fishing on the mainland of Scotland is a heritable right which was originally vested in the Crown as part of the regalia minora and which can only be vested in a subject by virtue of a grant from the Crown. The Crown grant may refer expressly to "salmon fishings" either by themselves or, more commonly, in connection with lands adjoining the fisheries. Or a Crown grant may refer only to "fishings" and in that case, or in the case of a Crown grant of a barony title, if the grant is followed by possession of salmon fishings for the prescriptive period, and if the possession is ascribable to the title, it will give a good title to salmon fishings.
2. In the present case the titles of both parties refer expressly to salmon fishings in terms which I have already quoted. The quotations are from modern dispositions in favour of the respective parties, but parties have agreed by joint minute that each has a title derived from the Crown and it has apparently been assumed by all concerned that the references in the Crown grants to salmon fishings were in the terms quoted. I am content to proceed on that assumption, subject to the qualification that I think the original grants were probably expressed in Latin.
3. As both parties have express grants of salmon fishings they do not need to rely on possession for the prescriptive period to establish their rights to fish for salmon. But such possession, if it is established, would also be conclusive to explain the titles and to define the extent of their respective rights: see Earl of Zetland v. Tennent's Trustees (1873) 11 Macph. 469, 473, where Lord Cowan said that possession affords "the only interpretation of the title," provided of course that it is ascribable to the title. See also Auld v. Hay (1880) 7 R. 663. 668�9 (Lord Justice-Clerk Moncreiff) and 681 (Lord President Inglis).
4. In the present case I agree with the Lord Ordinary and with the learned judges of the First Division that, while both parties have had possession of their respective fishings for well over the prescriptive period, the nature and extent of their possession, which since at least 1910 has consisted of fishing on alternate days over the whole width of the river, has not been shown to be ascribable to their titles. The law is well settled that the onus of proving that possession is to be ascribed to the title rests upon the party asserting the right: Lord Advocate v. Hunt (1867) 5 Macph. (H.L.) 1; Duke of Argyll v. Campbell, 1912 S.C. 458, 501. If there is some other possibility, such as that possession might be ascribed to a lease,...
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