The Magistrates of Dingwall, and Mrs. Munro or Rose, now Ross - Lord Advocate (Jeffrey - Rutherfurd v. The Honourable Mrs. Hay M'Kenzie of Cromarty, and Captain Munro - Attorney General (Campbell - Robertson Et é contra. [1834] UKHL 7_WS_306

UKHL
The Magistrates of Dingwall, and Mrs. Munro or Rose, now Ross - Lord Advocate (Jeffrey - Rutherfurd v. The Honourable Mrs. Hay M'Kenzie of Cromarty, and Captain Munro - Attorney General (Campbell - Robertson Et é contra.
[1834] UKHL 7_WS_306 · 1834-04-12
The Magistrates of Dingwall , and Mrs. Munro or Rose , now Ross , Appellants.—Lord Advocate (Jeffrey)—Rutherfurd v. The Honourable Mrs. Hay M'Kenzie of Cromarty, and Captain Munro , Respondents.—Attorney General (Campbell)—RobertsonEt é contra.

[ 12th April 1834 .]

Lds. Corehouse and Newton .

Subject_ Res Judicata — Fishing. —

Circumstances under which it was held (affirming the judgment of the Court of Session), that a decree in 1725, and another in 1778, constituted res judicata as to a right of fishing in the river Conon: And, in interpreting these decrees, certain boundaries laid down as marking the extent within which the parties had a right of fishing.Two questions were brought under review by this appeal, the one being, whether a decree in 1725 and another in 1778 formed res judicata; and the other being, where a line of march mentioned in the latter decree was truly situated. The question as to the situation of the march gave rise to very voluminous proceedings: And being of a special nature, it is not necessary to report them in detail. The circumstances out of which these questions arose were the following:—The river Conon in the county of Ross takes its rise in Strathconon, and, after passing through various districts

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On the other hand, the Magistrates of Dingwall, in 1587, obtained from James the Sixth a charter of confirmation and novodamus of certain subjects, “nec non cum salmonum piscatione in aqua de Stavack et suis pertinen.,” &c. In 1618 the Magistrates granted to Ronald Bain “totam et integram piscationem dimidii unius cimbi aquæ de Stavack communitate dicti burgi.” This and two other similar rights, after certain

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In 1725 Colonel Munro raised an action of declarator and molestation against the Earl of Cromarty and his tenants, stating that they had taken violent possession of that part of the fishing belonging to him, and therefore concluding to have his right declared, the possession restored, and these parties interdicted from troubling him in future, and found liable in damages. In defence, they pleaded that they had a preferable right to the fishings claimed by Colonel Munro; and a day having been assigned to them for producing their title, they failed to do so, whereupon the term was circumduced against them, and decree of declarator pronounced in terms of the libel, which was extracted.Again, in 1762, an action of declarator, molestation, and damages was brought by the commissioners on the forfeited estates of the Earl of Cromarty, and the Lord Advocate on behalf of the Crown, setting forth that although, under the titles vested in the Earl of Cromarty, they had right to the whole fishings in the Conon, yet the Magistrates of Dingwall had presumed to “fish salmon in the said water of Conon, and in the sea opposite to the mouth of the said water, whereby the shoals of fish were broken, and prevented from coming up to the water as usual.” “And albeit it be of verity that the said defenders, the Magistrates and town council of the burgh of Dingwall, have no right of fishing upon the said water of Conon, and that the pursuers have suffered great damage by their so doing, and are put to considerable

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To this action defences were lodged by the magistrates, who contended that they had right to that part of the fishings in the Conon called the Stavack; and, after some procedure, they brought a counter action

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In defence, the commissioners denied that the magistrates had any right to fish in the Conon, or that the Stavack formed a part of that river. The process of reduction was remitted to the action of declarator at the instance of the commissioners; but although it was repeatedly mentioned in the pleadings that they had been conjoined, no interlocutor to that effect could be found. The cases then came to depend before Lord Auchinleck, who, on the 24th of February 1763, found “that the limits of the fishings to which the contending

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On advising these informations, their Lordships, on the 24th of January 1778, pronounced this interlocutor:
“The lords find that the commissioners of the annexed estates have not produced a sufficient title to the whole fishings of the river Conon; but find that the magistrates and town council of Dingwall have produced a sufficient title to the fishings in the said river opposite to their property, from the march at Breakenord down to the sea; therefore not only assoilzie the said magistrates and council from the action brought against them by the said commissioners, but decern to the effect foresaid in the action at their instance against the said commissioners, and declare accordingly.”
This interlocutor became final, but was not extracted.

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On the 19th of April 1825 Mrs. Hay M'Kenzie and Captain Hugh Munro, her tenant in the fishings in the river Conon, raised an action of molestation, declarator, and damages against the appellants, and their joint tenant John Stevenson, setting forth that the appellants had taken upon themselves, not only to fish in the river Conon, “and encroach upon the rights of the pursuers, as proprietrix and tacksman foresaid, by fishing with net and cobble in the said river Conon, and particularly in that part called the new pool, opposite the lands of Breakenord, but have violently obstructed and prevented the pursuer, the said Hugh Munro, and the fishermen employed by him, from exercising their just right of fishing in the said river and pool; that the said John Stevenson has moreover lately been in the practice of making use of stationary nets stretched across the bed of the said river, and of having recourse to other novel and illegal modes of fishing for the purpose of obstructing salmon and other fish in their passage up the river, wherein the said Honourable Mrs. Maria Hay M'Kenzie, and the said Hugh Munro, as her tacksman, have, as above mentioned, the sole and exclusive right of fishing.” They therefore concluded to have it found that they “have the only just and legal right of fishing with net and coble, and in every other way and manner competent by law, in the river Conon;” and that the appellants have no right or title to fish for salmon in the said river Conon with net or coble, or in any other way;” and also that they “have no right of fishing in the said river Conon;” and “have no right to fish or make use of stationary nets stretched across the bed of the said river, or any other illegal mode of fishing calculated

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In defence, the appellants pleaded that the right of fishing, and salmon fishing in the Conon particularly, below the march between Balblair and Breakenord, belonged to the town of Dingwall, in virtue of the charter granted by James the Sixth in 1587, confirming two prior charters in 1497 and 1226; that the town, its tenants and feuars, had always exercised the right of fishing, and salmon fishing in the Conon; that the appellant Mrs. Ross had right thereto as a feuar from the town; that her right had been confirmed by the decree in 1725; and that of the town, as well as hers, by the decree pronounced in 1778; and therefore the subject matter of this action was res judicata.To this it was answered, 1. That the judgment in 1725 went by default, and, being a decree in absence, could not be founded upon as decisive of the merits; and, 2. That the judgment in 1778 was incompetent, because the commissioners had no proper title to pursue, in respect that the Crown could only be represented by the officers of state; that it had been pronounced in a process which was asleep, and had not been conjoined with the other process; and at all events it limited the right of the magistrates to fish in those parts only of the river which were “opposite their property,” whereas they insisted for a much more extensive right.

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After the record was closed * the respondents made a motion to the Lord Ordinary for an interdict to prohibit the appellants from fishing above the march between the lands of Balblair and Breakenord; whereupon the Lord Ordinary pronounced this interlocutor:—
“11th March 1828.—The Lord Ordinary having heard counsel for the parties upon the whole cause, and in particular upon the demand now made for an interdict against the defenders to fish above the march between the lands of Balblair and Breakenord, in respect it is averred that the defenders have been fishing above the said march, which, by their admissions on the record, they are not entitled to do,—in the meantime prohibits, interdicts, and discharges the said defenders, or any of them, their tenants, servants, fishers, or dependents, from fishing or killing salmon in any part of the river Conon above the line delineated on the plan in process as the march between Balblair and Breakenord; but, in respect the defenders do not admit the said line is accurately laid down in the plan, without prejudice to the parties, to ascertain the exact march between Balblair and Breakenord before the interdict is declared perpetual.”
Both parties reclaimed against this interlocutor; but neither having the record attached to their notes, the Court, (31st May 1828,) refused both notes, as being incompetent. †

The case then returned to the Lord Ordinary; and

Footnote

* See a question arising in preparing the record, 5 S. & D., 399. (new ed. 314.)

† 6 S. & D., 899; and see p. 1105, and 7 S. & D., 899, and 5 W. & S., 351, as to the question of breach of interdict.

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to the sea, and to that effect assoilzies the defenders from the conclusions of this action, and decerns; but in respect parties are not agreed as to the march between the lands of Balblair and Breakenord, appoints the pursuers to put in a condescendence, specifying what they aver to be the situation of the march, and allows the defenders to answer the same, and in the meantime continues the interdict: Farther, in respect the pursuers allege that the defender Stevenson has been fishing, and is continuing to fish, in an illegal manner, appoints them to put in a condescendence of what they aver on this point, and allows the defender to answer the same;—the condescendence now ordered to be lodged within three weeks, and the answers by the box-day in the Christmas recess.”
“The Lord Ordinary having considered the revised cases for the parties, productions, and whole process, finds that the extracted decree in 1725, and the final judgment of the Court in 1778, mentioned in the pleadings in this case, form a res judicata between the parties in the actions to which they relate, their representatives, and those in their right; finds that the decree in 1725, though pronounced upon a circumduction for not satisfying the production ordered by the Court, cannot competently be opened up in this action; finds that the final judgment in 1778 applies both to the declarator at the instance of the commissioners for managing the forfeited estates, and the Lord Advocate, against the Magistrates of Dingwall, and the counter declarator at the instance of the Magistrates of Dingwall against those commissioners, the officers of state, and others; finds that the pursuers in the present action are not now entitled to plead that the declarator at the instance of the magistrates was asleep at the time the judgment in 1778 was pronounced, or that the two declarators had not been conjoined, in respect that the evidence of wakening and conjunction depends upon warrants which, after the lapse of twenty years from the date of the judgment, it is not necessary to produce; finds that the words ‘opposite to their property,’ in the judgment 1778, are demonstrative, and not taxative; and therefore finds that the magistrates of Dingwall, and those in their right, have a sufficient title to the fishings in the river Conon from the march at Breakenord down

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Both parties again reclaimed; the respondents praying the Court to alter the interlocutor, and decern in terms of the libel; and the appellants, to limit the interdict, and find them entitled to expenses. The Court, on the 20th of January 1829, refused both notes without saying any thing as to the matter of expenses. * When the case returned to the Lord Ordinary the appellants moved his Lordship to award to them the expenses which had been incurred prior to the date of his interlocutor of the 12th November 1828. But his Lordship having doubts as to whether he had power to do so, the appellants presented a note to the Court, praying for a remit to the Lord Ordinary to hear parties as to these expenses; but their Lordships, on the 10th of February 1829, refused the note as incompetent. *

Footnote

* 7 S. & D., p. 383.

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The case then came before Lord Newton (in the absence of Lord Corehouse); and after a good deal of intermediate procedure, his Lordship, on the 10th of July 1830, pronounced this interlocutor:—
“Remits the cause to the Jury Court, in order to ascertain the point where the march betwixt the lands of Balblair and Breakenord touches the river Conon.”
The respondents reclaimed against this interlocutor; and the Court having required the parties to specify in a minute and answers their respective averments as to the situation of the march, their Lordships, on the 5th of March 1831, “in respect of what is contained in this minute and answer, recal the Lord Ordinary's interlocutor of 10th July 1830, and remit to his Lordship to proceed accordingly.”

Lord Newton , on the 11th of March 1831, pronounced this interlocutor:—

but, in respect the march so ascertained does not correspond with the line delineated in the old plan of 1763 as the march betwixt Balblair and Breakenord, recals the interdict imposed by the interlocutor of 11th March 1828, and decerns: That justice, however, may be done to the pursuers, in case this interlocutor should be altered, ordains the defenders to keep an account of the number of salmon taken by them in the pools named Pool Oure and Pool Breakenord, from this time till the final determination of this point in the cause: Finds the defenders entitled to the expenses incurred by them subsequent to the interlocutor of the Court of 20th January 1829; allows an account thereof to be given in, and remits to the auditor to tax the same, and to report; reserving consideration of the previous expenses until the final issue of the cause.”“ The Lord Ordinary having, in terms of the remit by the Court of 5th March current, considered the closed record and whole process, and heard counsel for the parties thereon, finds, that by the words “the march at Breakenord,” as used in Lord Corehouse's interlocutor of 12th November 1828, is meant, as shown by the subsequent part of that interlocutor, the march betwixt the lands of Balblair and Breakenord, and that it is not now competent to inquire in what sense these words were employed in the interlocutor in the former process of 24th January 1778: Finds that as the parties are now agreed as to the precise situation of the march betwixt these lands, it is unnecessary to inquire further into this matter; and that the line so agreed upon forms, where it touches the river, the western limit of the fishings belonging to the defenders;

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“ Note. — The Lord Ordinary, conceiving that any ambiguity which there may be in the final interlocutor of 12th November 1828 is removed by the subsequent part of that interlocutor, and that the meaning of Lord Corehouse, or of the Court, in adhering, can admit of no doubt, holds himself precluded from considering what was the march intended by the Court in their interlocutor of 24th January 1778; but were it competent to him to entertain this question, he is of opinion, on an attentive consideration of the proof taken in the former process, that the sense in which Lord Corehouse has understood the interlocutor is the just and correct one. As to expenses, the Lord Ordinary thinks the defenders clearly entitled to those incurred in the inquiry into the true situation of the march betwixt Balblair

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The respondents having reclaimed, the Court, on the 17th of June 1831, pronounced this interlocutor:—“Recall the interlocutor reclaimed against (except in so far as it recalls the interdict), and find that it is competent to inquire in what sense the words “the march at Breakenord” were used in the decree 1778; for that purpose allow the parties to give in Cases on the import of the evidence in process, so far as concerns this point, and in particular on the import of the proof led, the pleadings and other proceedings in the cause on which the decree 1778 proceeded.” *Cases having been prepared accordingly their Lordships, on the 16th of February 1832, pronounced this interlocutor:—
“The Lords, considering it material to ascertain the exact situation of the Fishers Lodge, before answer, remit to James Jardine, whom failing, Robert Stevenson, engineers, to prepare a plan of the water of Conon and adjoining banks, from the upper end of the island Baen to the sea, and to delineate thereon the situation of the Fishers Lodge, in reference to its real situation, and to the situation as marked upon Sangster's plan, and also to delineate such other objects as shall appear to him to be of importance to the question at issue.”

Mr. Jardine having made a plan and report, the Court, on the

Footnote

* 9 S. & D., p. 761.

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side: And the said James Jardine having, by the direction of the Court, drawn a red line from the point denoting ‘Ruins of Fisher's Lodge,’ on the plan in process made by him across the water of Conon to the letter P aforesaid, they find and declare the said red line to be the march, in respect to the right of fishing salmon in said water, betwixt the pursuers and defenders, and that the defenders have no right of salmon fishing higher up than the said line, and the pursuers no right below it; and the Lord President and Adam Rolland, principal Clerk of Session, have, with reference to this judgment, certified the said line on Jardine's plan in process, by putting their names along it, and decern: Find the defenders liable in the pursuers expenses since the date of the remit to the said James Jardine, and in his charge for survey, plan, and report, and remit the account thereof to the auditor of Court, to tax and report: And farther, the Lords remit to Lord Fullerton, in place of Lord Newton, deceased, to hear parties on the account of the number of salmon taken by the defenders beyond the line of march, as hereby adjusted, referred to in the Lord Ordinary's interlocutor of 11th March 1831, and all objections thereto, and to do therewith, and with any other points in the cause not disposed of, as shall be just.”
“The Lords having resumed consideration of this reclaiming note, with the revised cases, and interlocutor of this Court 17th June 1831, and plan and report by James Jardine, civil engineer, dated the 9th day of March last, and proof on which the decree 1778 proceeded, and heard the counsel for the parties,—they of new recall the interlocutor of Lord Newton, of 11th March 1831, and find that the ‘march at Breakenord.’ used in the decree 1778, is the Fisher's Lodge on the south side of the river Conon, or on Island More, and the letter P at the bend eastward of the burn Ousie on the north

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The Magistrates of Dingwall and Mrs. Rose appealed against the interlocutor of the 11th of March 1828, in as far as it granted interdict; of that of the 31st of May 1828, refusing their reclaiming note as incompetent; the interlocutor of 12th November 1828, containing the interdict, and that of the 20th adhering thereto;

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Mrs. Mackenzie and Mr. Munro, Appellants.—Res Judicata Mrs. Mackenzie and Mr. Munro, Appellants.—Res Judicata .—There are two decrees founded on as separately constituting a res judicata. The first is that of 1725, but it was not of the proper nature of a decree. It was not pronounced causâ cognitâ, and though the defenders appeared, yet they afterwards passed from their appearance before any proper litis-contestation. The interlocutor was pronounced in absence, and was a mere certification for not implementing an order of Court, or at the utmost was only a sentence of circumduction for not producing documents. It was an echo of the conclusions of the summons, which, in the absence of the defenders, the Court was bound implicitly to adopt. But such a decree does not constitute res judicata. † Neither can the other decree of 1778 support a plea of res judicata. There were two actions,

Footnote

* It is unnecessary to go into a detail as to all these points, and therefore this report is confined to the questions of res judicata and the boundary.† Malcolm v. Henderson , 27th Nov, 1807, A. B., 19th May 1815. Fac. Coll.

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Answered .—The proceedings which terminated in the decrees of 1725 and 1778 are final, and have not been attempted to be opened up by reduction or otherwise. They must therefore receive full effect in the present question; for whether in absence or in foro they must necessarily stand until overturned, and it is only after this has been done that it is competent to resume the merits of the question. *It is not true that the decree of 1725 was in absence.

Footnote

* Maule v. Maule , 31st Jan. 1827, 5 S. & D., 256 (new ed. 238.); Erskine, b. iv. tit. 3. sec. 3.; Erskine, b. iv. tit. 1. sec. 22.

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Magistrates of Dingwall and Mrs. Boss, Appellants.—Boundary Magistrates of Dingwall and Mrs. Boss, Appellants.—Boundary .—On this matter the statements of the parties were of a very special nature, and incapable of being made intelligible without reference to a plan. It was however maintained by the appellants, that the line of march had been finally fixed by the interlocutors of the 12th of November 1828, and 20th of January 1829; that the procedure in regard to the report of Mr. Jardine

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Answered .—The interlocutor of the 11th July 1832 is correct; the Judges were as much entitled to direct Mr. Jardine to draw the proper line of the march on the plan as they were to direct the clerk of Court to write out their judgment.Lord Denman .—My Lords, this is an action of molestation, declarator, and damages, relating to the right of fishing in the river Conon. The respondents, who were the pursuers below, complained against the magistrates of Dingwall, for infringement upon their right to the fisheries in that river; and the magistrates have defended themselves on the ground that they possess a sole right in the water called the Stavock, which they state is part of the same river, and that they have established their right to fish in those parts where the pursuers say they have no right. The point in dispute was about four hundred yards in length, in the river Conon, including a very valuable salmon fishery. It appeared very clearly, from ancient documents, that each of those parties had established his right to some fishery in each of those waters; and I think it appeared also pretty clear that the right in the water of Stavock must be taken to be a right of fishery in the same river Conon; so that the only question was where the boundary was to be fixed, and whether the pursuers or the defenders

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The House of Lords ordered and adjudged, That the said original and cross appeals be and are hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed.Solicitors: Richardson and Connell— Spottiswoode and Robertson, Solicitors.