Campbell v. Muir [1908] ScotLR 301 (10 January 1908)

Campbell v. Muir [1908] ScotLR 301 (10 January 1908)

In the absence of immemorial practice or agreement, each riparian proprietor's right to fish is limited to the medium filum of the river. The defender's act of anchoring a boat near midstream and casting towards the opposite bank, thereby interfering with the tenant's fishing, was done in æmulationem vicini and was unlawful. However, the interdict as granted was incompetent due to its form and must be recalled.

Citation
[1908] ScotLR 301
Parties
Pursuer: Mrs Jane Campbell of Inverawe and Dunstaffnage; Defender: Esdaile Campbell Muir
Jurisdiction
Scotland
Judgment Date
10 January 1908
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
Interdict recalled; findings in fact affirmed; expenses awarded to pursuer.
Legal Topics
Riparian Rights, Salmon Fishing, Interdict, Landlord and Tenant, Boundary of Fishing Rights, In Æmulationem Vicini
Property Law Fisheries Law Riparian Rights Salmon Fishing Interdict Landlord and Tenant Boundary of Fishing Rights In Æmulationem Vicini

Case Brief

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Parties

Mrs Jane Campbell of Inverawe and Dunstaffnage

Pursuer

Esdaile Campbell Muir

Defender

Procedural Posture

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

Legal Issues

  1. 1 Whether a riparian proprietor may fish beyond the medium filum of a river by anchoring a boat and casting towards the opposite bank
  2. 2 Whether such conduct constitutes unlawful interference with the rights of the opposite proprietor or their tenant
  3. 3 Competency of interdict in the circumstances

Ratio Decidendi

In the absence of immemorial practice or agreement, each riparian proprietor's right to fish is limited to the medium filum of the river. The defender's act of anchoring a boat near midstream and casting towards the opposite bank, thereby interfering with the tenant's fishing, was done in æmulationem vicini and was unlawful. However, the interdict as granted was incompetent due to its form and must be recalled.

Court Disposition

Interdict recalled; findings in fact affirmed; expenses awarded to pursuer.

Orders

  • The interlocutor of the Sheriff-Substitute and the interdict are recalled.
  • The findings in fact of the Sheriff-Substitute are affirmed.