By the action of stream and tide in the estuary of a river, part of a salmon fishery district, a long narrow strip of land, had gradually been separated from the mainland by a channel which was dry at low tide except when the river was in flood. From the seaward end of this island there extended a long low bank dry at low water, which confined the river in its main channel at low tide as in a canal, and prevented it spreading into an adjacent bay. By operations on the opposite side of the estuary, performed thirty years before the date of action, a larger body of water was thrown on to this bank, which was thus broken through, so that a new channel was made for the river into the bay. The proprietor of the adjacent land, and of the fishings ex adverso thereof, embanked the outside of the island so as to preserve it, and restored the bank by an artificial erection, which he ultimately raised to 16 inches above the natural level of the bank, to enable it to resist the force of the stream. He held on a barony title, and this erection was on his foreshore. It had the effect of preserving the bank, but at the same time considerably improving his fishings. Held ( aff. judgment of the Court of Session- diss. Lord Gordon) that the proprietor was entitled to preserve the island in the way described, although the effect of so doing might be to improve the fishing.
Judges:
Lord Chancellor Cairns, Lord Hatherley, Lord Blackburn, and Lord Gordon
Citations:
[1878] UKHL 532, 15 SLR 532
Links:
Jurisdiction:
Scotland
Land
Updated: 11 October 2022; Ref: scu.646303