Alex. Duke of Gordon v. Sir James Grant, Bart., Colonel James Grant, Colonel Alexander Grant, the Earl of Fife, and Others [1776] UKHL 3_Paton_679

UKHL
Alex. Duke of Gordon v. Sir James Grant, Bart., Colonel James Grant, Colonel Alexander Grant, the Earl of Fife, and Others
[1776] UKHL 3_Paton_679
Circumstances in which a party was held to have a cruive fishing, and entitled to erect dykes for that purpose, but so as not to obstruct the floating down the river to the sea, the wood and timber belonging to the superior heritors.

This was a dispute between the appellant and the respondents being

Page: 680 ↓

It was stated that the former Duke of Gordon had raised action to have his right of tugnet fishing in the sea at the mouth of the river Spey, and likewise to have his right to a currach, cobble and spear fishing in the said river declared; but no conclusion was made as to a cruive or dyke fishing.July 14, 1727.

July 27, —

The Court of Session then pronounced this interlocutor:
“Find the Earl of Moray, and other pursuers, have the only right of salmon fishing in the river Spey, from the Pot upwards to the Bum of Inchneil; and that they may use the same with cobbles or currachs as they may think fit; and that the Duke of Gordon has no right of fishing within the bounds aforesaid. And also find that the Earl of Moray and the other pursuers have a right of fishing with currachs only from the Burn of Inchneil to Balhagartygaven; and that the Duke of Gordon hath right to fish with cobble, currach, or otherways , within the said bounds, and decerns and declares accordingly.”
The Court afterwards altered the words or otherways , to “or in any other lawful way,” by interlocutor of 27th July; and under this, the defenders contended that it could never mean to extend to a cruive or dike fishing.This interlocutor was affirmed on appeal.July 15, 1737.In 1733, however, a new action was raised by the respondents against the Duke, to have it found that he had no right to a cruive fishing, which he insisted on. In this action the Court finally pronounced this interlocutor:
“Find that charter 1684, containing a novodamus, gives the Duke a sufficient title to cruives sub saxo de Ardewhish, reserving to the heritors to be heard before the Ordinary how far the said charter gives a right to cruives at any other part except only at the saxum de Ardewhish; and also how far the said charter could give a right to cruives, in prejudice of other heritors who bad anterior rights of fishing upon the river sub saxo de Ardewhish; also adhere to the same interlocutor, finding that by law the Duke cannot build cruives upon sands or shoals in fresh water.”

July 20, —

The Lord Ordinary, in terms of the remit thus made to him, found that the Duke must “demolish and pull down all braes and dykes used by him upon the Water Spey above the saxum de Ardewhish.” But no judgment was given upon the other points.1756.Sir Ludovick Grant brought an action in 1756 against Sir Robert Gordon declaring his right to salmon fishing on the river Spey opposite to his lands, and that the defender had no right to erect cruives or yairs, braes and dykes, or other unlawful engines, for fishing in the water of Spey, to the prejudice of his right. To this action the Duke of Gordon, and the Earls of Findlater and Fife were afterwards sisted as parties; and Sir Ludovick brought also an action against them

Page: 681 ↓

A new action was then brought by the respondents to have it found that the Duke of Gordon had no right or title to erect cruives, braes, or other engines, and that the channel of the river ought to be laid open and all obstructions removed.Aug.10, 1775.The Court of Session finally pronounced this interlocutor:
“Find the defender, the Duke of Gordon, is not entitled to have cruives, braes, or dykes, upon those parts of the river Spey within which the crown had granted rights of fishing to other heritors before the date of the Duke of Gordon's charter 1684. And therefore ordain the cruives, braes or dykes already erected within that space to be demolished. And decern and declare accordingly. And find it unnecessary to determine at present that point relative to the floating of the timber.”

Nov. 2, 1775. Dec. 21, —

The Lord Ordinary ordered the cruives and dykes to be demolished. All have accordingly been removed, except the appellant's cruive dyke.Against these interlocutors the present appeal was brought to the House of Lords.

After hearing counsel, it was

Ordered and adjudged that the interlocutors complained of be reversed, and the cause be remitted * to the Court of Session to proceed upon the foundation of the respective rights of the parties, ascertained and established by the interlocutor of the 14th July 1727, and declarations there made.Counsel: For the Appellant, Al. Wedderburn, Alex. Murray, Robt. M'Queen, Arch. M'Donald.For the Respondent, E. Thurlow, Henry Dundas, Ilay Campbell.

Footnote

* Under this remit, the Court of Session found the Duke entitled to a cruive fishing, and to erect cruive dykes, but so as to leave the river open to allow the respondents to float their timber down at certain seasons of the year. And, on appeal to the House of Lords, this judgment was affirmed. Vide vol. II. p. 562, ante.