Arthur and Others v. Aird and Others [1907] ScotLR 823 (02 July 1907)

Arthur and Others v. Aird and Others [1907] ScotLR 823 (02 July 1907)

A joint action for interdict against trespass and fishing is incompetent except where the pursuers have a common interest, namely, where the river forms the boundary between their estates. Each proprietor cannot seek interdict for trespass or fishing on the other's estate. Public rights to fish in non-tidal, non-navigable rivers cannot be acquired by prescription or usage against a proprietor.

Citation
[1907] ScotLR 823
Parties
Pursuer: James Arthur (tenant of Montgomerie) and William Robert Paterson (proprietor of Montgomerie, with curator) and John Meikle (proprietor of Barskimming); Defender: Thomas Aird, John Jones, and Robert Wallace (miners, Hurlford)
Jurisdiction
Scotland
Judgment Date
02 July 1907
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session, Inner House, Second Division
Outcome
partially allowed; interlocutors recalled in part
Legal Topics
Interdict, Trespass, Fishing Rights, Riparian Rights, Competency of Joint Actions
Property Law Civil Procedure Interdict Trespass Fishing Rights Riparian Rights Competency of Joint Actions

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Parties

James Arthur (tenant of Montgomerie) and William Robert Paterson (proprietor of Montgomerie, with curator) and John Meikle (proprietor of Barskimming)

Pursuer

Thomas Aird, John Jones, and Robert Wallace (miners, Hurlford)

Defender

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether joint action of interdict by proprietors of separate estates is competent for trespass and fishing
  2. 2 Whether public or defendants have right to fish for trout in non-tidal, non-navigable river by prescription or usage
  3. 3 Extent of riparian rights and entitlement to interdict for fishing across medium filum in small rivers

Ratio Decidendi

A joint action for interdict against trespass and fishing is incompetent except where the pursuers have a common interest, namely, where the river forms the boundary between their estates. Each proprietor cannot seek interdict for trespass or fishing on the other's estate. Public rights to fish in non-tidal, non-navigable rivers cannot be acquired by prescription or usage against a proprietor.

Court Disposition

partially allowed; interlocutors recalled in part

Orders

  • Interdict granted against defenders from fishing for trout or greyling in the river Ayr between points A B and C D (where the river forms the boundary between Montgomerie and Barskimming)
  • Interdict refused as regards other portions of the river and as regards trespassing on estates generally