Sir James Grant and Others v. Duke of Gordon [1782] UKHL 2_Paton_582

UKHL
Sir James Grant and Others v. Duke of Gordon
[1782] UKHL 2_Paton_582 · 1782-02-20
Held that the superior heritors on the river Spey, in which the Duke of Gordon had a right of cruive fishing, had a right of floating down the river rafts of timber, and that the cruive-dyke, built across the river to serve the Duke's fishing, could not be allowed to hurt or obstruct the free exercise of that right.The Duke of Gordon's right of cruive-fishing in the river Spey had been disputed by the other proprietors having rights of salmon-fishing on the river; but the Duke's right thereto was finally fixed by sentence of the Court of Session, on remit to the House of Lords.The appellants thereupon raised the present action, as proprietors of lands adjacent to the river Spey, concluding to have it found “That they had right, at all times, to send floats of timber down the river, and to the navigation thereof, in every way of which it was capable, and to have every obstruction to this right removed; and that the Duke of Gordon should be obliged to remove all dykes, braes, and other bulwarks impeding the navigation; and should be prohibited from erecting such for the future.”The plain object of this action was to get the cruive dykes destroyed, in which it appeared great alterations had recently been made, detrimental to the navigation of the river. Besides, the dykes at one time were composed of loose smooth stones, which gave way to the least force, so that the floats of timber, when coming down, met with little or no obstruction. Now, however, a solid and permanent massive wall was erected, reaching from bank to bank; and the appellants, therefore, complained of it as an obstruction, not only to the navigation of the river, but to their right of floating timber down the river.Jan. 18, 1781.Lord Gardenstone reported the case to the whole Lords, who, of this date, pronounced this interlocutor:—to pass with floats and rafts down the said river to the sea, from the 26th of August to the 15th May, and that from the 26th August to the end of March, they are entitled to the exercise of the said right of floating indiscriminately, without any restriction or limitation, but that in the exercise of that right from the last day of March to the 15th May, the persons employed in the floating must give notice to the tacksman of the Duke's cruive-fishing, or their manager personally, or at the wauk-mill of Fochabers, now called the fishing quarters, between sun rising and sun setting, and that at least four hours before the floats are to pass, that the Duke's fishers, or others concerned in the cruives, may make a passage for the floats or rafts passing the cruive-dykes, and failing their opening a passage to the floats or rafts within four hours of such notice, allow the person attending the floats to open a passage for themselves on the cruive-dyke, and to pass freely without interruption.”
“That the Duke of Gordon has a right of cruive-fishing on the river Spey; but that Sir James Grant and the other pursuers, superior heritors on the Spey, have right and title

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The Duke reclaimed, and the Court pronounced this interlocutor:—

“That the superior heritors are only to float from sun rising to sun setting; also that they are to pass the cruive-dyke seriatim , at the place pointed out to them by the Duke's fishers, who are always to make the said openings, so as to allow the floats to pass freely and conveniently.”
Against this interlocutor the present appeal was brought. After hearing counsel, it wasOrdered and adjudged that the interlocutors complained of be affirmed.Counsel: For Appellants, Henry Dundas (Lord Advocate), Ilay Campbell, Jas. Grant, Wm. Grant. For Respondent, Alex. Murray, Ar. Macdonald, Dav. Rae, J. Maclaurin, R. Dundas.