The proprietors of salmon-fishing in the upper reaches of a river are not entitled, as against a lower riparian mill owner, to insist upon having the condition and flow of the river left in their natural state, save in so far as affected by rights acquired by prescription; their right is limited to seeing that there is no obstruction or abstraction of such a character as materially to impede the free passage of salmon.
Question whether, in cases where water is abstracted, it is necessary that at least an equal amount of water to that abstracted be sent down the stream of the river on the ground that salmon always follow the main stream.
‘The effect of forty years’ use of water of a river is to give the person so using right to continue that use, modo et forma, at the place where the use has taken place. It is not to give him a general right to encroach on the common subject, viz., the river, to the gross amount of his prescriptive abstraction.’
Where the proprietors of salmon-fishings in the upper reaches of a river allege obstruction to the passage of salmon up the river on the part of a lower riparian mill owner, interdict at their instance is the appropriate remedy.
Where an interdict had been granted by the Court of Session defining the respective rights of the salmon-fishing proprietors of the upper reaches of a river and a lower riparian mill owner in a question as to obstruction by the latter, the House of Lords in affirming the order added a declaration ‘that in the event of any future substantial change in the river affecting the interests of parties, neither party shall be precluded by anything in the judgments affirmed from applying to the Court of Session in any competent process for remedy.’
In an action of declarator and interdict at the instance of the salmon-fishing proprietors of the upper reaches of a river against a lower riparian mill-owner, with the object of terminating or reducing his abstraction of water, a proof was taken, by which it was established that there was illegal obstruction to the passage of salmon on the part of the mill owner. Thereafter a remit to men of skill was made ‘to report (1) what depth or volume of water, measured by inches or otherwise, flowing over the S. dyke and thence downwards over the W. dyke to the foot of the said W. tail-race, would be in their opinion sufficient to secure the free passage of salmon in said part of the river; and (2) whether any, and if so what, arrangements are possible which would automatically or otherwise insure the observance by the defenders of the limitations attaching, as above expressed’ ( i.e., in previous portion of interlocutor), ‘to their right to abstract water from the river at S. dyke.’ Objection was taken to the remit on the ground that it was submitting to the arbitrament of the men of skill after a proof the whole substance of the case.
Held that the remit was rightly made.
Judges:
Lord Chancellor (Loreburn), Lord Davey, Lord Robertson, and Lord Atkinson
Citations:
[1906] UKHL 838, 43 SLR 838
Links:
Jurisdiction:
Scotland
Land
Updated: 26 May 2022; Ref: scu.625466