Oswald and Another v. M'Call and Another [1919] ScotLR 491 (28 June 1919)

Oswald and Another v. M'Call and Another [1919] ScotLR 491 (28 June 1919)

The defenders' method of fishing by 'fleeting' is illegal because it prolongs the obstruction of the river by the net beyond the time necessary to row round the net, effectively preventing the free passage of fish and constituting a contrivance akin to a fixed engine, which is contrary to the legal definition of fair net and coble fishing.

Citation
[1919] ScotLR 491
Parties
Pursuer: Richard Alexander Oswald of Auchincruive, Ayr, and another; Defender: James M'Call and another
Jurisdiction
Scotland
Judgment Date
28 June 1919
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session Inner House
Outcome
Appeal sustained; interlocutors of the Sheriff-Substitute and Sheriff recalled; decree of declarator and interdict granted against defenders' method of fishing.
Legal Topics
Salmon Fishing, Illegal Fishing Methods, Net and Coble Fishing, Obstruction of Fish Passage, Fixed Engines, Interdict, Declarator
Fisheries Law Property Law Environmental Law Salmon Fishing Illegal Fishing Methods Net and Coble Fishing Obstruction of Fish Passage Fixed Engines +2 more

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Parties

Richard Alexander Oswald of Auchincruive, Ayr, and another

Pursuer

James M'Call and another

Defender

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session Inner House

Legal Issues

  1. 1 Whether the defenders' method of salmon fishing by 'fleeting' with net and coble constitutes an illegal obstruction under Scottish fisheries law
  2. 2 Whether the method used is a lawful form of net and coble fishing or an unlawful perversion amounting to a fixed engine

Ratio Decidendi

The defenders' method of fishing by 'fleeting' is illegal because it prolongs the obstruction of the river by the net beyond the time necessary to row round the net, effectively preventing the free passage of fish and constituting a contrivance akin to a fixed engine, which is contrary to the legal definition of fair net and coble fishing.

Court Disposition

Appeal sustained; interlocutors of the Sheriff-Substitute and Sheriff recalled; decree of declarator and interdict granted against defenders' method of fishing.

Orders

  • Declarator that defenders are not entitled to fish by net and coble on the river Nith by the method known as 'fleeting' as described in the amended prayer of the initial writ.
  • Interdict granted against defenders from fishing in such manner.