Earl of Zetland v. Glover Incorporation of Perth

“ Note .—The present case, like others of the same class, involves considerations of some nicety as respects the application of the known principles which regulate the rights of proprietors of salmon-fishings, in a tidal river such as the Tay, to the. particular characteristics affecting the bed of the river, at the point in relation to which this dispute between the pursuer and defenders has arisen.

The state of the facts which have led to the present litigation is remarkable and peculiar in so far as it has relation to the right of fishing from a bank in the river Tay, which, although in some respects identified and spoken of in evidence as a known subject, is more truly of the character of a moveable portion of the bed of the stream, and which has in fact gradually changed its position, and form, and now exists farther down the stream, and is more near to the pursuer's side of the stream, than at any former period.

Each party now maintains an exclusive right to the salmon-fishing from this bank,—the pursuer founding his claim on the allegation that the bank is now situated entirely to the south of the true medium filum of the river, and the defenders, on the other hand, relying mainly on the possession hitherto had by them of the subject.

The Lord Ordinary has been unable to follow either of these extreme views. It has appeared to him, on consideration of the whole evidence, that the river must, at the locality in dispute, be taken as having but one bed, and that the bank in dispute is merely a portion of the solum of that bed which is left uncovered, as it at present exists, by the tide at low water, and which is liable to be moved, and which has in fact been moved, and increased or lessened, by the action of the stream and tides from time to time.

How this is to be done it is scarcely for the Lord Ordinary at present to anticipate. In forming his present opinion the Lord Ordinary has been guided by the principles which, as it appears to him, were given effect to by the House of Lords in the leading case, relating to nearly the same locality, of Lord Gray v. Magistrates of Perth , 30th March 1757, House of Lords, 1 Craigie & Stewart, p. 645 ; and very recently by the Lord Ordinary and by the First Division of the Court in the case of Wedderburn v. Paterson , 22d March 1864, 2 Macph., p. 902 .”