Duke of Buccleuch and Another v. Smith and Others [1911] ScotLR 300 (18 January 1911)

Duke of Buccleuch and Another v. Smith and Others [1911] ScotLR 300 (18 January 1911)

The nets used by the defenders are illegal fixed engines, constructed and placed so as to capture salmon and materially injure the rights of the salmon fishing proprietors. Interdict is appropriate against the use of such nets, regardless of whether actual killing of salmon by each defender is proved, as the injury arises from the nature and use of the nets themselves.

Citation
[1911] ScotLR 300
Parties
Pursuer: Duke of Buccleuch and Another; Defender: Smith and Others
Jurisdiction
Scotland
Judgment Date
18 January 1911
Procedural Posture
Civil / Appeal
Outcome
appeal dismissed; interdict affirmed
Legal Topics
Salmon Fishing Rights, Public Right of White Fishing, Interdict, Fixed Engines, Injury to Salmon Fishings
Property Law Fisheries Law Public Rights Salmon Fishing Rights Public Right of White Fishing Interdict Fixed Engines Injury to Salmon Fishings

Case Brief

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Parties

Duke of Buccleuch and Another

Pursuer

Smith and Others

Defender

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether the use of paidle nets and other fixed engines by white fishers in the Solway Firth within the Nith district is illegal as injurious to the rights of salmon fishing proprietors.
  2. 2 Whether interdict can be granted against defenders for use of such nets without proof of actual killing of salmon by each defender.

Ratio Decidendi

The nets used by the defenders are illegal fixed engines, constructed and placed so as to capture salmon and materially injure the rights of the salmon fishing proprietors. Interdict is appropriate against the use of such nets, regardless of whether actual killing of salmon by each defender is proved, as the injury arises from the nature and use of the nets themselves.

Court Disposition

appeal dismissed; interdict affirmed

Orders

  • Interdict granted against defenders (except James Swan) from erecting and using stake nets, paidle nets, and other fixed engines fitted to capture salmon or fish of the salmon kind within the Nith district.
  • Sheriff-Substitute's interlocutor affirmed.