Alexander Murray, Esq. - Murra - Walker v. Earl of Selkirk, and Magistrates of Kirkcudbright - Shadwel - Miller [1824] UKHL 2_Shaw_299

UKHL
Alexander Murray, Esq. - Murra - Walker v. Earl of Selkirk, and Magistrates of Kirkcudbright - Shadwel - Miller
[1824] UKHL 2_Shaw_299
Lords Balmuto and Gillies .

Subject_ Salmon-Fishing — Stake-Nets — Statute 1563, c. 68. — Res Judicata. —

An action having been brought against certain parties who had rights of salmon-fishing in the river Dee, and had placed yairs within tide-mark, to have it found that they had no right to do so; and the Court of Session having found that they fell within the exception of the statute 1563, c. 68. as being situated within the water of Solway: and thereafter the same parties having erected stake-nets at the same place; and a bill of suspension and interdict against their doing so having been refused; and a declarator having then been brought to have it found that they were not entitled to fish with stake-nets; and the Court of Session having sustained a defence of res judicata, in respect of the decree in the former action and in the suspension;—the House of Lords reversed the judgment sustaining that defence, and remitted to the Court of Session to make farther inquiries as to whether the yairs were within the water of Solway or not.In 1804 the trustees of the late James Murray of Broughton, father of the appellant, brought an action against the trustees of the late Thomas Earl of Selkirk, and the Magistrates of the burgh of Kirkcudbright, setting forth, that as trustees of Mr Murray they were proprietors of certain salmon-fishings in the upper part of the river Dee, in the county of Kirkcudbright; and that although it was enacted by the statute 1563, ch. 68. “that all cruives and fish-dammes that ar within salt water that ebbis and flows bee all utterly destroyed and put down, alswell they that perteneis to our Soverain Lord as utheris throw all the realme,” “yet the Earl of Selkirk and the Magistrates of Kirkcudbright thought proper to erect and use cruives and yairs, for the purpose of catching salmon in the lower part of the river Dee, where the sea ebbs and flows, whereby the pursuers are not only injured in their mode of salmon-fishing, by the salmon being prevented from getting up the river, but also the free navigation in several places completely interrupted, to the great hurt of the pursuers, who are proprietors of two harbours at Tongland and Tarff, farther up the river than the erections; and that although this was both contrary to the statute and to the common law, yet these parties persevered in fishing in this manner;” and therefore they concluded, “that they should be decerned and ordained forthwith to remove and demolish the said fishings by cruives and yairs or any other manner erected by them, or under their direction, in that part of the river Dee where the sea ebbs and flows, and prohibited and discharged

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In defence it was alleged, that as there was a special exception in the statute, by which it was declared, that “this Act in noways be extended to the cruives and yairs being upon the water of Solway;” and as the river Dee disembogues itself into the firth or water of Solway, and the tides of the Solway ebb and flow where the yairs are placed, the respondents had a right, under the statute itself, to fish with yairs at the point where they were situated: that accordingly possession had been enjoyed of this species of fishing for more than three centuries and a half under their respective titles, which, although it might not afford a prescriptive right in opposition to the statute, yet demonstrated that this part of the Dee was considered as forming part of the water of Solway, and so within the exception: that, besides, the yairs, from a peculiarity in their construction, were not injurious to the fishings of the superior heritors, nor to the navigation of the river.To this it was answered, that the water of Solway meant not the firth but the river Solway; and that, even supposing it should be considered as meaning the firth, yet in point of fact the Dee did not flow into that firth, but into the Irish Sea; and in support of this assertion reference was made to numerous ancient geographers, historians, and poets, from the time of Ptolemy downwards.Lord Balmuto, on advising memorials, assoilzied the respondents; and the Court, without taking any proof as to the fact of the yairs being within the water of Solway, adhered, on the 23d May 1807, to the effect of finding that the yairs were within the exception of the statute; but remitted to the Lord Ordinary “to hear parties with regard to any obstruction that may arise to the navigation of the river from the cruives and yairs, or other erections of the defenders, and to do thereanent as his Lordship shall see cause.” A proof was then taken in relation to this matter; but the action was allowed to fall asleep.Between that period and 1817 the respondents erected stake-nets on the Dee, also within the tide-mark, against which the appellant, and the trustees of his father, presented a bill of suspension and interdict, on the ground that the respondents had no right to fish in this manner.

On the other hand, the respondents maintained, that the question

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The trustees of the late Mr Murray having then divested themselves in favour of the appellant, he raised an action of declarator against the respondents, in which he stated, that “by the common law of this realm, as well as by various Acts of Parliament, the proprietors of salmon-fisheries are not at liberty to exercise the same, or to take salmon in rivers or firths where the tide ebbs and flows, otherwise than by net and coble, or in such other ways as may have been sanctioned by immemorial usage: That nevertheless the Right Honourable Thomas Earl of Selkirk, and the provost, magistrates, and councillors of Kirkcudbright, as representing the community of said burgh, have, by themselves, their tenants, or servants employed or authorized by them, within these last few years erected a number of stake-nets, and other fixed machinery, for the purpose of catching salmon, not formerly used in the river, upon the sands adjoining to the river Dee, and in the river itself, opposite to their respective lands within the stewartry of Kirkcudbright, and thereby taken great quantities of salmon, contrary to law, and to the great hurt and prejudice of the pursuer, the said Alexander Murray, and the other proprietors of salmon-fisheries in the higher parts of the said river Dee, and also very much to the prejudice and injury of the navigation of said river;” and therefore concluding, “that it ought and should be found and declared, that the said defenders have no right, by themselves, or others employed or authorized by them, to erect stake-nets or other machinery for catching salmon not formerly used within the river Dee, either in that river or on the sands adjoining thereto, between high and low water marks;” and therefore concluding for decree of removal and interdict, and for damages.In defence against this action the respondents maintained, that as the former summons concluded to have it found that they had no right to fish by means of cruives and yairs, “or in any other manner whereby the fishings of the pursuers may be in any way injured, or the free navigation of the river interrupted;” and as the Court had, by the judgment of 23d May 1807, assoilzied them from the conclusion so far as it regarded the mode of fishing, and had allowed a proof as to the interruption of the navigation, and had subsequently refused a bill of suspension in regard to the point of right, the new action was barred by the defence of res judicata and lis pendens: that, farther,

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Against the judgments, both in the first action, and against the judgment the second sustaining the defence of res judicata, the appellant entered separate appeals, and maintained that they were erroneous, —1. Because yairs and stake-nets erected in the channel of a river, or on the sands of a river covered by the tide at high water, are illegal, and the yairs and stake-nets of the respondents were placed in such a situation. In support of this proposition, it was contended, 1 st , That by various statutes the employment of cruives and yairs on the sands and rivers within the tide-way of the sea, had, previous to 1563, been prohibited without any exception: That by the statute of that year it was not only not intended to admit of any exception to this general prohibition, but, on the contrary, it was enacted, that if the officers to whom the execution of the Acts was committed should be negligent in performing it, they should be liable for the penalties of the statutes: That, however, as the river Solway formed the boundary between Scotland and England, and these countries were then frequently engaged in hostilities, and as the officers might not be able to perform their duty on that river, it was considered unreasonable that they should be responsible for the erection of yairs on the Solway; and therefore it was provided, “that this Act in no ways be extended to the cruives and yairs being upon the water of Solway;” thereby meaning, that it was only the provisions of this special Act, and not those previously passed prohibiting cruives and yairs generally, which were to be excepted

Footnote

* See 1. Shaw and Ballantine, No. 132.

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2. Because stake-nets were different in species and effect from cruives and yairs, and consequently could not be protected by the exception in the statute. In reference to this point it was stated, that although a yair in its external appearance somewhat resembles a stake-net, in so far as each of them is formed with wings made of stakes and wicker-work, or with nets extended on the stakes, yet the mode in which the fish were caught was essentially different; because it was necessary, where a yair was employed, that a fisherman should be stationed with a moveable instrument connected with a bag, in which he could not take more than one salmon at a time, whereas a stake-net was a fixed machine, not requiring the intervention of human agency to its operation, and which was quite sufficient of itself to catch the salmon in numbers which could only be limited by the extent of the chambers or traps.3. Because the plea of res judicata was untenable, seeing that the first action had reference merely to the right of the respondents to fish with yairs, (there being at that time no stake-nets erected); and consequently the decision in that action could not afford any plea of res judicata against the action relative to the stake-nets; and the refusal of the bill of suspension and interdict was merely a judgment on the question of possession,

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4. Because the proof which had been taken established that the yairs and stake-nets were injurious to the navigation of the river.

On the other hand the respondents maintained, —

1. That there was no foundation for the construction attempted to be put upon the statute by the appellant; and that, as the words were in themselves free of all ambiguity, it followed, that if the yairs were de facto situated within the water of Solway, they were not liable to be removed, seeing that it was expressly declared that the prohibition should not apply to them.2. That it was proved by various ancient and modern writers, that in the Scottish language the word water was often made use of synonymously with firth; that the Solway Firth extended to the Dee, and that the yairs were placed within the influence of its tides.3. That the general question as to the right of fishing had been raised under the original action; and therefore, if the judgment in that case was affirmed, the second action would of necessity be excluded. And,4. That the proof established that the erections were not injurious to the navigation of the river.The House of Lords, in the appeal relative to the question of res judicata, “found, That the defence of res judicata is not sustainable; and therefore it is ordered, that the said interlocutors complained of in the said appeal be, and the same are hereby reversed; and it is further ordered, that the cause be remitted back to the Court of Session in Scotland, to do farther therein as is consistent with this finding, and as is just:” And in the original action their Lordships “ordered, that the cause be remitted back to the Court of Session, to inquire, in such manner as to them shall seem meet, whether the cruives and yairs complained of are situated upon the water of Solway, and protected by the proviso in the statute 1563, c. 68.? And it is further ordered, that, with this direction, the said Court do review the several interlocutors complained of, and proceed upon such review as to the Court shall seem just and meet.”Lord Gifford. —My Lords, There are two cases in which Alexander Murray is the appellant, and the Earl of Selkirk and others respondents. In the first case, an action was brought in name of the trustees of the deceased James Murray against the respondents; and the summons stated, that the trustees, the pursuers in the action, were proprietors

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My Lords,—Various defences were put in to this action, but the main defence was, that by the exception in the statute of 1563, the respondents were fully justified in erecting these cruives and yairs upon this part of the Dee; and they relied upon the long enjoyment of cruives and yairs in the position in which they said these cruives and yairs were placed for use.The case came before the Lord Ordinary in the month of December 1805, and Lord Balmuto, who was the Lord Ordinary, pronounced the following interlocutor:—
“Having considered the mutual memorials for the parties, plans produced, and whole process, assoilzies the defenders simpliciter, and decerns.”
My Lords,a representation against this interlocutor was afterwards refused; there was a petition to the Court, and the interlocutor of the Lord Ordinary was adhered to by an interlocutor of the 22d May 1807. My Lords, afterwards, however, on the 18th May 1808, there was a remit to the Lord Ordinary, to take proof, with respect to the injury which it was supposed these cruives and yairs caused to the navigation; and the proof was accordingly taken, under the authority of the Lord Ordinary, in the year 1810.My Lords,—The cause then slept for a great many years, but I believe in consequence of the decision of the Tay cause, which was before your Lordships' House, the proceedings were revived; and in the year 1819 the Lord Ordinary pronounced this interlocutor, upon the proof which came before him with respect to the injury of the navigation:—

“In respect the proof is in some degree contradictory, appoints parties”

procurators to give in mutual memorials upon the question at “issue, with the import of the proof as applicable thereto, to be seen and interchanged;” and then, on the 23d January 1820, the Lord Ordinary issued the following order:—
“The Lord Ordinary, at the joint desire of the Counsel for the parties, makes avizandum with the cause to the Lords of the First Division of the Court; appoints the parties severally to prepare, print, box, and lodge informations, and put copies thereof into the Lords' boxes, in order to be reported, and that within ten days.”
On advising these informations, upon the report of Lord Balmuto, the Lords pronounced this interlocutor:—and assoilzie from the conclusions of the libel, and decern: Find the pursuer liable in the whole of the defenders' expenses incurred in this process; allow an account thereof to be lodged; and remit the same, when lodged, to the auditor, to tax and report.”
“They sustain the defences,

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Against this interlocutor, my Lords, the appeal is brought in the first case. It will be necessary for me just to state to your Lordships in the present stage, that in the year 1817 a second action was brought by Mr Murray against the same respondents, complaining of a great number of stake-nets and machinery, which, he complained, had been put down in this river, in prejudice of his fishery. The respondents in answer contended, that the decision of the former action was a judgment against the appellant in the same identical matter, and that that being res judicata, was decisive. I shall call your Lordships' attention to that when I have made the observations which occur to me upon the first appeal.My Lords,—The great question in this cause is, Whether, under the statute 1563, which is admitted on all hands to be still in force, the cruives and yairs which have been set up by the defenders in this part of the river Dee were protected by the exception in that statute? It is well known to your Lordships how very careful the Legislature has been of the protection of the salmon-fishery, and a variety of Acts have been passed upon that subject. I do not feel it necessary to call your Lordships' attention to these statutes further than the statute of 1563. By that statute “it is statuted and ordained, that all cruives and fishdams that are within salt waters that ebbis and flowis, bee all utterly destroyed and put downe, als well they that pertenis to our Soveraine Lord as uthers, throw all the realme; and anentis cruives in fresh waters, that they be made in sik largenesse, and sik dayes keeped as is contained in the Acts and Statutes made thereupon of before, with this addition.” Then it concludes with this proviso:—
“Providing always, that this Act in naways be extended to the cruives and yairs being upon the water of Solway.”
My Lords,the reason of that exception is, I think, pretty evident, that being the boundary between England and Scotland; the English catching as many salmon as they could on their side, it was thought proper to allow the Scotchmen to do the same. My Lords, the defenders say, that with respect to these cruives and yairs complained of in the year 1804 in this action, they had been in the enjoyment, and had been in the legal right of having them there, for upwards of a century. I will read to your Lordships the manner in which they state their right. It is very important to the consideration of this case. They admit that no usage win prevail against the positive terms of an Act of Parliament. “They explicitly admit that no usage, however long and uninterrupted, is available against a public law. Their plea is, that the saving clause in the statute authorizes them to erect yairs on the river Dee; and they refer to possession and usage only as collateral evidence that they do not misinterpret the statute. If this plea be well founded, your Lordships must hold that the respondents are entitled to erect as

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My Lords,—Then the question was as to the extent of the water of Solway; and undoubtedly a great deal of writing has been employed in the most ingenious quotations from poets and historians, and authors of all descriptions, —one to prove the extent of the Solway to include the water of Dee, and others to exclude it; but no legal evidence whatever—no proof has been adduced, either from the old writers in Scotland, or in any issue, to ascertain the extent of the water of Solway; and on what foundation the Lords of Session have found that the defendants' cruives and yairs were protected, I am unable to state to your Lordships. My Lords, undoubtedly the pursuer in this case offered to prove that the cruives and yairs were not situate on the water of the Solway: the question being raised, whether they fell under this exception or not, they offered to prove that the place where they were, was known as the river Dee—that the Dee, in fact, did not discharge itself into the water of Solway—and that cruives situate within the river Dee would not fall within the exceptions granted to cruives being upon the water of Solway. In answer to this, the respondents say, that the cruives and yairs are protected by the exception of the statute of 1563, as being upon the water of Solway, which they say extends where salt water ebbs and flows; and they say, that if they are situate on what has always been considered the river Dee, the river Dee flowing into the Solway—if they are in that part where the tide ebbs and flows, they are on the water of Solway, and so within the proviso of this Act of Parliament. But, my Lords, I must confess I have felt some difficulty on the case, as it is now presented, to say whether this place is or is not on the water of Solway. As I have stated to your Lordships, we have quotations, but we have no evidence on which we can have reliance as to that which is to be deemed and considered as the extent of the water of Solway. The defenders' case rests upon that; they admit that their usage will not do against the Act of Parliament; they say that that usage is (and it undoubtedly is) very important evidence, when you come to consider whether those cruives and yairs are on the water of Solway or not; for they being admitted to be there certainly at the time of the action brought, there is, they say, strong evidence that, in the understanding of all persons, that was to be considered as the water of Solway. It is to be recollected there are cases referred to of other rivers flowing into this water of Solway, as it is called, higher up in the junction between

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My Lords,—The second appeal arises out of a second action, which had been instituted in the year 1817, complaining not of the cruives and yairs, for it seems that in the mean time other machines, the nature of which is perhaps known to your Lordships, called stake-nets, which are extremely destructive to the salmon, by enabling the parties having them to catch more salmon than they could according to the old mode of fishing, had been put down. The first summons, as I stated to your Lordships, complained expressly of cruives and yairs that the defenders had thought proper to erect, and cruives and yairs for the purpose of catching salmon in the lower part of the river Dee, where the sea ebbs and flows. The second summons complained, that they had, ‘within the last five years,’ before 1817, “erected a number of stake-nets, and other fixed machinery, for the purpose of catching salmon, not formerly used in the river, upon the sands adjoining to the river Dee, and in the river itself, opposite to their respective lands, within the stewartry of Kirkcudbright, and thereby taken great quantities of salmon contrary to law, and to the great hurt and prejudice of the pursuer the said Alexander Murray, and the other proprietors of salmon-fisheries in the high parts of the said river Dee, and also very much to the prejudice and injury of the navigation of said river.” My Lords, to this they pleaded, that this point was already determined by the decision in the first action I have stated to your Lordships. The defences to the present action are, 1 st , That the “defenders right of fishing, not only by cruives and yairs, but also by stake-nets, was fully under consideration of the Court in the former process of declarator at the instance of the pursuer in 1804, the result of which was a final judgment that the defenders

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I cannot but take this opportunity of stating, that if these parties are to proceed in litigation, it appears to me they will do it most conveniently to themselves, and with a view to all the questions in the cause, in the second action; for they will in that not only try the question of the cruives, but the right of putting down stake-nets, and they will have the opportunity of inquiring whether those are on the water of Solway or are not. However, that is a matter for their consideration; whether, when these cases go back, they shall be joined, or what course they shall take on that subject, it is not for me to anticipate. But in this second action I can have no hesitation in stating, that the interlocutor sustaining the defence must be reversed. The preliminary defence being set aside, the case will then be open to further consideration.Appellant's Authorities .—1424, c. 2.; 1427, c. 116.; 1457, c. 86.; 1478, c. 73.; 1488, c. 13.; 1563, c. 68.; 1429, c. 20. or 131.; Magistrates of Dumbarton, January 16. 1813, (F.C.); Dirom, February 25. 1797, (14,282.)Solicitors: J. Chalmer—Solicitors.

(Ap. Ca. No. 53 .)