Earl of Wemyss v. Magistrates of Perth

Subject_1 Salmon Fishings Subject_2 suspension Subject_3 possession Subject_4 artificial Embankment. Facts: Held that a proprietor of salmon fishings, who had a right to fish from the side of the river, was not entitled to follow the river so as to fish from an artificial embankment which had had the effect of altering the channel of the river, it not being proved that he had exercised his right by possession from the embankment.

The Lord Justice-Clerk —This suspension and interdict is brought at the instance of the Earl of Wemyss, as the proprietor of the lands of Elcho and salmon-fishings in the Tay belonging to that estate, and seeks to interdict the Magistrates of Perth from fishing from any part of an embankment Page: 63 ↓

If it were otherwise, I confess that I do not see how Lord Wemyss could take benefit, for the one-half of the embankment would seem to form an addition to the island; the other half to the land on the south of the fishings from the northern portion of the embankment would then fall to be considered as fishings from the island itself a result not very favourable to the suspender.

If the suspender's right of property is not to be assumed, his right to the fishings would require to be made out. This is done, or said to be done, by referring to a right of fishing along the south bank in the former south channel, before the embankment was constructed, and it is said that the effect of the embankment is to transfer the fishings from the south shore to that point. This is certainly by no means clear. What has happened Page: 64 ↓

It seems to me, therefore, that Lord Wemyss has not instructed, on his part, any right of property in the embankment, or any right to fish on its northern portion, and that might be enough to dispose of the case. This is not a case of alleged interruption of possession. Lord Wemyss has not fished on the north part of the embankment. It is by virtue of the force of his title alone that he can prevail in the question.