James Forbes, and Others v. Francis Smyth [1825] UKHL 1_WS_583
A party holding a right of salmon fishing, found, in a question with an adjacent heritor, (affirming the judgment of the Court of Session), to have no right to erect sights and towing-paths on the alveus of the stream: But the House of Lords remitted to the Court of Session to inquire, whether a bulwark or embankment, built by the adjacent heritor against the stream, was so constructed as to be injurious to the right of fishing in the water, and in a manner not necessary to its utility as a bulwark or embankment.The river Findhorn runs into the Moray Frith. Before reaching the estuary, it divides into two branches, passes the lands of Waterford, leaving, for a space, Waterford on the east of the eastmost branch. Twenty years ago, the river forced, for a short distance, a third branch through a portion of the Waterford lands, and then rejoined the centre stream: thus creating an island partly out of that property. This new course was shut up, but again broke out; and the proprietor of Waterford embanked his lands against farther encroachment. He had no right of salmon fishing. That belonged to Forbes of Echt, whose right, however, was solely of the fishing, having no property on either side of the river. Smyth bought Waterford, and found there the embankment raised against the east stream.From the nature of the channel, the river, it was said, could not be advantageously fished without certain erections to facilitate the operations of the fishermen. These consisted, 1st, Of sights, i. e. subaqueous ridges thrown across, which, rendering the water shallow at that spot, disclose the salmon passing over,—or which, in the language of the old conveyancers, “market the fishes kyth above the said fords;” and, 2d, Towing-paths to give the fishermen solid footing in drawing the nets. Accordingly, Forbes and his lessees made a towing-path across the mouth of the centrePage: 584 ↓
Page: 585 ↓
A remit was made to a surveyor, “to frame and report a sketch of the river and adjacent banks, and encroachments complained of.” He reported, “I have made an accurate survey of the. lands of Waterford, with the embankment, the run of the river at its lowest or summer state, also of the sight and the gang or towing-path,—all which is laid down and explained in the plan to which this report refers; and I am of opinion, that the embankment, which is now completed along the whole lands of Waterford in a most substantial manner, is liable to frequent injury by the sight damming back the water on said lands, and also by the gang or towing-path throwing the river over to the Waterford side; and both these dykes, which I am informed are but of recent erection, or only of a few years' standing, I think must have a very great tendency in winter, and in time of ice, to detain and fill up the channel, so as to bear severely, on the embankment. Indeed this seems to have been the case in winter last; a breach of seventy feet was made, and which is now repairing.” The Lord Ordinary, in as far as the report touched matters not specially remitted to the surveyor, found “it was ultra vires, and was to be held ultroneous and non scripto.” The parties then condescended. Forbes and lessees alleged, that to fish the Findhorn with advantage, sights at proper places in the channel, and paths along the banks, where without paths the banks do not afford sufficient passage, are necessary: that the right of making these has immemorially, and for more than forty years, been understood to be in the proprietors of the fishings as part and pertinent of the right; and they have been made for that period at every part of the river where necessary and proper: that the river being liable to change its course, the proprietors of fishings followed it, and exercised their rights in it: these sights were often higher, and often as high, as the sights complained of: that the present sightPage: 586 ↓
The pursuer appealed, and repeated his statements,—1st, contending for the legality of sights and towing-paths; that they were necessary for the appellants, and not injurious to theFootnote
* 2. Shaw and Dunlop, No. 666.Page: 587 ↓
The respondent repeated his former statements, and denied, 1st, that the appellants had any legal right to make the erections complained of, or that a prescriptive right elsewhere could have effect on a short and challenged possession opposite Waterford; and alleged that he had suffered injury: and, 2d, that he was entitled to protect his lands from being flooded; and that the allegation as to encroachment on the bed of the river had not entered into the appellants' condescendence or answers in the Court below, and was now, without any authority in fact, hazarded to give a better complexion to their case.The House of Lords ordered and adjudged, “that the interlocutors complained of be affirmed, except in so far as, in the action of declarator, they sustain the defence and assoilzie the defender from the conclusions of the libel respecting the bulwark or embankment erected against the river Findhorn; as to which part of the said interlocutors it is ordered, that the cause be remitted back to the Court of Session to review the same, and to inquire, in such manner as the said Court may think right, whether the said bulwark or embankment is so constructed as to be injurious to the right which the appellants have of fishing in the said river, and in a manner not necessary to its utility as a bulwark or embankment.”Lord Gifford .—My Lords, In the case of Forbes v. Smyth , the appellants are James Forbes, Esq. of Echt, and Messrs Forbes, Hogarth and Company, merchants of Aberdeen, who are entitled to a salmon fishery upon the river Findhorn; and Francis Smyth, Esq. of Waterford, is the respondent. It appears, my Lords, that this river, at the place in question, divides itself into two principal branches, and one of those branches passes by the lands of the respondent, Mr Smyth; and, in order to protect these lands from the inroads of the river, his predecessor erected what is called a bulwark or embankment against the river, by which bulwark and embankment the appellants say their right in the salmon fishing has been injured. It seems, in order to facilitate the catching of the salmon, that the appellants had made what is called a sight. They had raised a ridge of stones or gravel inPage: 588 ↓
The action was brought before Lord Gillies, who appointed the parties to be ready to debate; but, preparatory to the hearing, defences were lodged, and after hearing parties upon the defences, the Lord Ordinary directed, that Messrs Forbes should make a special condescendence, in terms of the Act of Sederunt, of the facts they offered to prove in support of the conclusions of the summons, and,Page: 589 ↓
My Lords,—A condescendence was afterwards put in, and in that condescendence they confined themselves to the circumstance of the sights and the towing-paths. In the first condescendence they said nothing at all respecting the embankment which had been made on the respondent's lands. However, my Lords, in their answers to the defender's condescendence, they expressly allege, “that the defender is not entitled to be assoilzied from the pursuers' demand that the embankment shall be altered, for this reason, that it is so constructed as to be injurious to the fishing, particularly from preventing the fishers from passing along the banks and towing their cables—a thing, moreover, not necessary to its utility as an embankment, and this the pursuers offer to prove.” That part of the condescendence was denied by the other side, but no proof has ever been gone into as to the nature of these embankments. That is the first point. As to the second point, namely, the sights and the towing-paths, it was contended by the appellants, that although the right to make these sights and the towing-paths was not necessarily incident to the right of fishing, yet that having, in other parts of the stream, been permitted to make-them, and having enjoyed them in other parts for a length of time, that gave them a right of prescription—a right to do so in every part of the stream. The Court of Session were of opinion that was not sound argument, and that the action was not maintainable; and the Court were unanimously of opinion, that the proceeding of the Sheriff was a proper proceeding.But then, as to the embankment, the Court of Session, without any inquiry, have said, that it is not injurious to the right of fishing, and that the respondent had a right to make it, although they have gone into no proof upon the subject; which I think they should have done, with a due regard to that right which the appellant avers he has of drawing his nets upon the banks of the river, and which he is utterly precluded from doing in any manner, now this embankment is made. It was alleged also by the appellant, that the respondent had carried the embankment a considerable way into the stream, and obstructedPage: 590 ↓
Appellants' Authorities .—Lord Monymusk, July 15. and Dec. 18. 1623, (10,840. and 14,264.); Mathew, Jan. 18. 1612, (14,263.); 1. Dallas's Styles, 208. Respondent's Authorities. —2. Ersk. 6. 15. and l. 5.; Farqubarson, June 25. 1741,(12,779.); Fairlie, Jan. 26. 1744, (12,780.); Magistrates of Aberdeen, Nov. 22. 1748, (12,787.); Trotter, July 9. 1757, (12,798.); Earl of Kinnoul, Jau. 18. 1814, (F. C.)Solicitors: Duthie— Fraser,—Solicitors.