Lyall v Carnegy
| Jurisdiction | Scotland |
| Judgment Date | 23 January 1900 |
| Docket Number | No. 94. |
| Date | 23 January 1900 |
| Court | Court of Session |
Lord Low, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
FishingsSalmon-FishingMill-damBye-law by CommissionersAction by proprietor of fishings against proprietor of mill-damCompetencySalmon Fisheries (Scotland) Act, 1862 (25 and 26 Vict. c. 97), secs. 6 and 29.
Section 6 of the Salmon Fisheries (Scotland) Act, 1862, enacts that the Commissioners appointed under that Act shall have power (6) To make general regulations with respect to the construction and alteration of mill-damsso as to afford a reasonable means for the passage of salmon.
Section 29 enacts,In the event of any person refusing or neglecting to obey any bye-law made by the Commissioners,the clerk [to the District Board] may apply to the Sheriff, by summary petition in ordinary form praying to have such person ordained to obey the same.
Held (affirming judgment of Lord Low) that a bye-law made by the Commissioners with reference to mill-dams could only be enforced by proceedings taken under section 29, and that an action by a proprietor of salmon-fishings which was in substance a proceeding for the enforcement of such a bye-law was incompetent.
David Lyall, of Gallery and Pert, and others, all upper proprietors of salmon-fishings in the district of the River North Esk, which fishings were situated above Craigo dam-dyke, brought an action against Miss Elizabeth Carnegy of Craigo, also an upper proprietor of fishings in the same district, and proprietor of Craigo dam-dyke, concluding for declarator that the defender is bound to repair the said dam-dyke, and maintain it water-tight, or as nearly so as possible, so that no water that can reasonably be prevented shall pass through the said dam-dyke, and to construct and keep in proper condition a salmon pass or ladder on the down-stream face of said dam-dyke, capable of affording a free passage for the ascending fish when there is water enough in the said river to supply the said ladder; and for declarator that the said dam-dyke is in a state of disrepair, and is not water-tight, and that large quantities of water percolate through said dyke, and that the said dyke is not so constructed as to afford a reasonable means for the passage of salmon, and that the salmon pass or ladder which has been inserted by the defender or her authors in the down-stream face thereof is incapable of affording a free passage for the ascending fish when there is water enough in the said river to supply the said ladder; and for decree ordainingto repair said dyke, and maintain the same in a water-tight condition, or as nearly so as possible, and to construct and keep in proper condition a salmon pass or ladder on the down-stream face of the said dam-dyke capable of affording a free passage for the ascending fish at all times when there is water enough in the said river to supply the said ladder, and that at the sight and to the satisfaction of a man of skill to be appointed by our said Lords.
The pursuer averred that the pass or ladder on the down-face of the dam-dyke did not afford a reasonable means for the passage of salmon, and that the dam-dyke created an insuperable obstacle to the passage of salmon, except when the river was in high spate. (Cond. 4) The pursuers aver that the said pass is radically defective and insufficient either in original construction or through the effects of floods, ice, and other causes. After specifying various defects, the pursuers continued,The said pass is, moreover, disconform to the rules laid down for such passes in schedule (G) of the Salmon Fisheries (Scotland) Act, 1868. Particulars of the alleged disconformity were then specified.
The pursuers further averred;(Cond. 5)In addition to the defective condition of the said pass, the said dam-dyke is itself in a thoroughly bad state of repair, and a great quantity of water percolates through at various parts of said dyke, in contravention of the rules laid down in the foresaid schedule (G) of the Salmon Fisheries (Scotland) Act, 1868.
The pursuers pleaded, inter alia;(1) The said dam-dyke being an illegal obstruction to the passage of salmon, both at common law and under the Acts relating to salmon-fisheries in Scotland, and, inter alia, the Act 1696, c. 33, and the Salmon Fisheries (Scotland) Acts, 1862 and 1868, and relative bye-laws, the pursuers are entitled to decree in terms of the conclusions of the summons. (4) The said dam-dyke being in a state of disrepair and not water-tight, the pursuers are entitled to decree in terms of the remaining conclusions of the summons.*
The defenders averred that in 1867 the Clerk to the District Board of the river North Esk had applied to the Sheriff to have the then proprietor of Craigo dam-dyke ordained to satisfy the requirements of the bye-law made by the Commissioners under the 1862 Act, by
constructing a proper or sufficient pass; that after prolonged litigation the Second Division found that it was necessary that the pass should be altered in terms of a report by Mr Thomas Stevenson, C.E.,1 and that this had been done. They further averred that in 1897 the District Board had obtained a report on the condition of the dam-dyke, but had taken no action thereon.
The defenders pleaded, inter alia;(1) No jurisdiction, or, at all events, the action is incompetent in the Court of Session. (2) No title to sue.
On 16th August 1899 the Lord Ordinary (Low) found that the action was incompetent, and dismissed the same.*
The pursuers reclaimed, and argued;The action was competent. It was founded (1) upon the common law established by the interpretation of the old statute; (2) the Act of 1696; and (3) the modern legislation beginning in 1862. The obligation imposed by the Act of 1696 on proprietors of dams to provide a constant slop, fell to be interpreted in the light of modern engineering science, and accordingly, such proprietor was bound under the Act of 1696 to provide a ladder or pass of the kind now required. The modern Acts simply brought the provisions of the Act of 1696 up to date. The object of the Legislature in the Acts anent salmon-fishing was a public one, i.e., to promote the breed of fish,1 and proprietors of salmon-fishings had a good title to sue for their enforcement,2and to prevent obstructions to the passage of fish. If upper proprietors had, prior to 1862, a good title to sue, such title had not been taken away by later legislation. There was no express enactment depriving them of their title, and they could not be deprived of it by implication. There was nothing in the Act of 1862 to supersede or practically repeal the Act of 1696, and the former Act was not intended to deprive proprietors of any remedies open to them, but to amend the previous Acts by making further provision for the removal of obstructions and the prevention of illegal fishing.Section 6 imposed on the Commissioners the duty of making regulations on certain matters, and a method of enforcing these regulations was provided in section 29, but that could not be construed as intended to deprive proprietors of...
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