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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Copland v. Hon. Marmaduke Constable Maxwell [1871] UKHL 2_Paterson_1869 (28 February 1871) URL: http://www.bailii.org/uk/cases/UKHL/1871/2_Paterson_1869.html Cite as: [1871] UKHL 2_Paterson_1869 |
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Page: 1869↓
(1871) 2 Paterson 1869
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 111
Subject_Landlord and Tenant — Trout Fishing — Artificial Pond — Implied Exception
— M., the owner of a farm in which he had made an artificial pond, which he stocked with trout, let the farm to for nineteen years for agricultural purposes, there being no express stipulation in the lease as to the pond. The previous tenant H. had not fished the pond, and the subjects were let “ as presently possessed by H.”
Page: 1870↓
Held (affirming judgment), That the fishing in the pond having been treated as a separate subject, was not conveyed by the lease to C., and that C. had no right to fish for trout with rod and line in such pond without the landlord's consent.
Semble, at common law, the right to take trout in the streams and lakes of an agricultural farm, is impliedly excepted out of the lease, and reserved to the landlord—Per
Lords Westbury andColonsay 1
This was an appeal from a decision of the Second Division. The respondent, Mr. Maxwell, was proprietor of the estate of Terregles in Kirkcudbrightshire, and in 1863 he let a farm on that estate, called Mainshead or Prospect Hall, to the appellant for nineteen years. On the edge of the farm there was an artificial pond lying between the farm and other lands of the respondent. The pond had been made in 1849, to supply a tile work, which had since been discontinued; and the respondent had stocked it with fish, chiefly trout, but there were also some parr and salmon. The pond was a mile from Mr. Maxwell's residence. In the record the respondent set forth, that he and his family had been in the habit of fishing in this pond, and that when he let the farm to the appellant for agricultural purposes only, he did not intend to include the use of the fishing of the pond to the tenant. But recently the tenant had begun to fish in the pond, and asserted his right to do so, and attempted to exclude the respondent and his friends from the fishing. On the other hand, the tenant, in his part of the record, stated, that he had retired from business, and when he offered to take the said farm a plan of the lands then shewn to him shewed, that the pond was part of the farm, that the lease contained certain exceptions and reservations, but did not reserve the pond or the fishings therein to the landlord; that he had, since he became tenant, constantly washed his sheep in the pond, and fished for the brown trout that frequented the pond, and the previous tenants had done so also. When he took the farm, he had in view an agreeable residence, as well as an agricultural use of the lands; that the landlord cannot get to the pond without trespassing on the tenant's land; and therefore, that the right of fishing belonged to the tenant.
The proceedings commenced in the Sheriff Court with a petition of the respondent to interdict the tenant from fishing in the pond. The Sheriff substitute granted interim interdict. The Sheriff, however, on appeal, altered this order, and granted a proof of the averments. Another petition having been presented, there was an advocation. Lord Barcaple, after proof, pronounced judgment in favour of the tenant, holding that, as the lease did not specially except the fishing, the tenant had at common law the right to fish for trout with the rod in the pond. On appeal, the Second Division, consisting of Lord Justice, Clerk Patton, Lords Cowan and Neaves, reversed the interlocutor, holding, that where such a lease is silent, the right of catching trout in the streams belongs to the landlord and not to the tenant. The tenant now appealed against the judgment.
Lord Advocate (Young), Manisty Q.C., and Brand, for the appellant.—The decision of the Court below is wrong. At common law a tenant of an agricultural farm has the right to catch all the fish he finds in the streams within the farm, unless the lease expressly excludes him. There is no express authority either for or against this proposition, and it is most in harmony with the other admitted principles of the contract between landlord and tenant— Mackenzie v. Rose, 6 W. S. 31. It is true there is a dictum of Mr. Hunter to the contrary in his treatise on Landlord and Tenant, but no authority is cited. If no right of property was to be deemed to pass to the tenant under his contract, except what is useful for agriculture, it would preclude the tenant from catching the birds or small animals frequenting his lands. The only exception to this rule is that regarding game, but that is an anomaly traceable to the old doctrine, that the ownership of a ploughgate of land was a necessary qualification to catch game—1621, c. 31. Thus the tenant is entitled to kill foxes— Colquhoun v. Buchanan, M. 4997; and rabbits— Moncreiff v. Arnot, 6 S. 531. The case of Duke of Richmond v. Dempster, 4 Irvine, 10, whether rightly or wrongly decided, applied only to catching trout with nets, and the question as to rod fishing was left open in that case.
Here there is nothing in the lease or in the evidence to shew, that the landlord reserved or excepted the use of the pond from the lease, and a pond is merely an enlargement of the running stream, and subject to the same laws. And it cannot be said, that the fish in the pond, any more than in the running water, were the property of the landlord, for they are res nullius until captured.
Sir R. Palmer Q.C., and J. T. Anderson, for the respondent, were not called upon.
_________________ Footnote _________________
1 See previous reports
7 Macph. 142:
41 Sc. Jur. 79.
S. C. L. R. 2 Sc. Ap. 103:
9 Macph. H. L. 1:
43 Sc. Jur. 246.
Page: 1871↓
In 1849, while it was thus occupied by Herbertson, the proprietor, the present respondent, was minded to make use of this pool for the purpose of supplying certain tile works which he had on another farm, which marched on one side of the pond, as the farm now occupied by the appellant marched on the other side of the pond. He accordingly applied it to this use, and made certain arrangements for that purpose, pulling down a certain hatch, or something of that sort, through which the pond was to be fed, and a certain dam was constructed. It afterwards occurred to him, before the year 1853, in the year 1852, that he would like to make use of this pool (which had been thus formed by means of the damming and the other operation which he had carried on in order to use it for the title work) as a receptacle for trout, and he accordingly put a grating at the issue of the pool, which pool would naturally otherwise issue into the unrestricted stream finding its way thereby into the river Nith. He put a grating across that part of it which would prevent the fish passing down the stream, and he then took a number of fish, which he had collected for the purpose, and placed them in this pool. The fish, therefore, were so placed, that in summer time they would have no exit whatever, inasmuch as there would be the grating to prevent their descending to the Nith, and the streams above which fed the pool would be dry. At other times, when the streams were not so dry, they might have the means of finding their way upwards, but down the stream they could not pass. He further, somewhere about the end of the year 1852, in order to secure this as a place for fishing, placed stakes at the bottom of the pool in order to prevent any fishing by means of a net.
In this state of things a new tack was had of the farm as an agricultural farm by Herbertson, the original tenant, and with him was associated his nephew Mr. Richardson, who also gives evidence, and Herbertson's statement of the whole matter is this: He says—“When this operation took place for the tile work, I made no objection, and whether the pool was to be taken as included in my tack or not, I certainly did not in the slightest degree intimate any dissent from the pool being dealt with in the way described, namely, being converted into that which would be pleasurable to the landlord as a place in which the landlord might fish;” and he says distinctly, that from that time, that is to say, from the time when the pool was so appropriated, he did not consider that as property which was subject to his tack, and further, that he never had any desire from that time forth, nor, as he thought, had he any right, to interfere with the use to which he had allowed the pool to be appropriated. His impression was, “I thought it was better occupied.” Whether he meant in the strict technical sense of being occupied as a tenant occupies land I know not; but he said, “I thought that it was better occupied than when it was simply a morass which was of no use to me, and therefore from that time I conceived that I had done with the pool.”
The nephew does not give evidence of exactly the same character. He is called by the appellant, and the nephew, in his examination in chief, says—“I fished in the pond several times.” That “several times” turns out, in cross examination, to have been three times in ten years, and on one single occasion only did anybody else fish with him, a man of the name of Alexander, a joiner, who fished with him for about half an hour. That is the extent to which either the uncle or the nephew appears to have exercised any right or control over the pool in any shape or way, except that both the uncle and the nephew seem to have made use of the pool for washing their carts, and I think for watering their cattle.
That being so, in 1862 the tile work was given up altogether, and about the same time the place was restocked, so that the landlord clearly intimated his intention to exercise, and did exercise, those rights which he appears to have resumed over this property. When this was done, the property was let to the present appellant, Mr. Copland, in 1863. He was to take it, (I think the expression is,) “as presently possessed by the existing tenant.” That is the phraseology which is used in letting the property to him, and now, upon that state of facts, the question is, how far the appellant is justified in contending, that he has a right to fish in this pool.
The learned Judge, the Lord Ordinary, conceived that he had that right. The three learned Judges who disposed of this case in the Court of Session, each and all of them, came to the other conclusion, namely, that he had no such right. That decision was not rested by all the learned Judges upon precisely the same ground. Two of them took a twofold ground. First, that by the general law of Scotland it is not an accessory to an agricultural lease, that the tenant should have the right of angling or fishing in a stream passing through the land of which he had the tack; and secondly, that in this particular case, regard being had to all that had been done,
Page: 1872↓
During the argument the case was put of a person who keeps birds in an aviary. It is exactly the same thing. He allows them to fly out, and they return to their haunt to which they have become accustomed. And just in the same way fish during certain seasons of the year naturally go where they have been at other times, and return to the place to which they have become accustomed, and from which they cannot pass at all downwards to the general stream.
It therefore seems to me, that the decision of this case may well be rested, independently of the principle of law, upon the circumstances and facts of the case as regards Herbertson's departure from any right or interest in the fish, if any such he had; and that Copland, taking exactly the same position from him, is in the same condition as regards the appropriation of this property and the exercise of its rights by the owner. Therefore I am of opinion, that in this case the interlocutors complained of should be affirmed, and that the petition of appeal should be dismissed with costs.
The pond in question was formed in the year 1849, by consent of Mr. Herbertson, the tenant, for the purpose of providing water power for a tile work belonging to the landlord. And undoubtedly, when that pond was originally formed, the landlord had a paramount right to the use of the water of the pond, with which the tenant could not interfere. The tenant had agreed to allow him that right, and to make whatever rights he might have as tenant subordinate to those of the landlord. The landlord afterwards, in the year 1853, stocked this pond with trout; he put up a grating for the purpose of preventing the trout escaping lower down, and he also, about that time, put down stakes to prevent persons fishing in the pond with nets. All this was done either with the consent of the tenant, or at all events with his allowance and submission, and undoubtedly it indicated the right and power of the landlord over that pond.
That was the state of things in the year 1853 when Herbertson, the former tenant, took a new lease. Now the question is what that lease included—whether with that lease the right of fishing for trout in this pond passed to the tenant. It is very important to consider what had been done by the landlord, with the consent of the tenant, under the new lease of 1853, previously to that time, and undoubtedly, as far as the appearance of exclusive right in the landlord goes, that seems to have been ceded to him by the tenant. Then did this lease of 1853 give to Herbertson the right of fishing? We have not the lease of 1853 before us, but we have the evidence of Herbertson upon the subject, and he would know perfectly well what passed to him under that lease. Now he was asked in the first place, with regard to the original construction of the pond, “Did you give up all right to the grounds whereon the pond was made?” And his answer I
Page: 1873↓
Then the lease which is made to the appellant in 1863 is a lease of “the farm and lands of Mainshead and Prospecthall as presently possessed by James Herbertson and Robert Richardson.” Now what was presently possessed by James Herbertson and Robert Richardson? James Herbertson tells you that he, at all events, was not possessed of the right of fishing, and therefore, as only that passed to the appellant which was “presently possessed by James Herbertson,” it is quite clear, that the right of fishing did not pass to him under the lease of 1863.
Upon these short grounds I agree with my noble and learned friend, that the interlocutors should be affirmed, and the appeal dismissed with costs.
Now, I entirely concur also with the leading passages which state that principle contained in the judgments of the Lord Justice Clerk and of Lord Cowan. The Lord Justice Clerk says—“If the right (that is, the right of fishing) be incident to the property of the lands, as it is universally said to be, the tenant can only claim to exercise it on the assumption that it has been communicated to him by the proprietor.” This thing, therefore, which is wholly independent of the agricultural enjoyment of the land, must be shewn to have formed part of the tack or grant before an agricultural tenant can claim the right to this particular franchise.
So also it is said subsequently, and I think quite correctly, by Lord Neaves, who concurs generally with the Lord Justice Clerk—“There is no property in trout in the burn, any more than in the running water there.” That is for the purpose of distinguishing this case from the case of an ordinary fish pond enclosed all round, where the fish may be said to be no longer feeding in a state of nature, and where the landlord or owner has unquestionably a property in them. “But the right to fish,” Lord Neaves says, “is a privilege to the proprietor of the soil, and no stranger is entitled to take away the trout any more than he is entitled to ladle out the water.” Such a right is not in my opinion let by an ordinary agricultural lease.
Independently, therefore, of the special circumstances of this case, though I quite concur with my noble and learned friends in thinking, that they amount to sufficient proof that by the contract between the parties the tenant was not intended to have any enjoyment of the right of fishing, yet I am clearly of opinion, independently of those special circumstances, that in an ordinary agricultural lease of lands in Scotland, where those lands include a loch, or a pond in which there is the enjoyment of fishing, (I mean by the enjoyment of fishing, where there are fish which would yield enjoyment to a sportsman,) or where the lands included in the agricultural lease border upon a river in which there is a right of fishing,—I am clearly of opinion that in such an ordinary agricultural lease, independently of words of special grant, or special enjoyment, the agricultural lease itself would not confer upon the tenant the right to the franchise of fishing either in the loch or in the pool, or in the running stream. If that be the correct law of
Page: 1874↓
Now I see in these facts enough to satisfy me, that the transaction which took place then, and what followed on that transaction, was a transference of this piece of land, from the character which it had formerly possessed of being part of the tenancy of the tenant, into a sheet of water, which was in the entire occupation of the landlord. The fish were confined there, they were prevented from getting down, and it was to all intents and purposes a fish pond. I therefore think that, in the circumstances of this case, the exclusive right of fishing there belonged to the landlord.
Upon the more general question which has been presented, there is no authority in the way of a decision in favour of the respondent. It is a very large question, and it is perhaps unnecessary to dispose of it in this case. At the same time, as it has been presented to us, it may not be proper to allow any idea to prevail, that such of your Lordships as entertain a decided opinion upon it abstained from expressing it on account of any doubt with respect to the judgment which has been pronounced upon that question. I am of opinion, that the judgment which has been pronounced upon the general question was also a right judgment. It is true, I believe, that there is no direct decision upon it. I am not aware that the point has been raised before, but certainly there is no decision against that opinion of the Judges, and the tendency of the writers, as far as we have them, is in favour of it. As to the general understanding which is referred to by the Lord Ordinary, that is an impression upon his Lordship's mind of which we have no evidence at all. And it rather militates against the existence of that impression when we find a writer of eminence, whose work has long been in the hands of the public, and who has carefully considered these matters, I mean Mr. Hunter, laying it down the other way, and, so far as I know, no writer has stated the doctrine differently from Mr. Hunter. I think that it is rather an extravagant proposition to hold, that in the case of an agricultural lease, which is silent as to the exercise of his right of fishing, it is to be contended, that by the letting of the land to a tenant the exclusive right of fishing in all the lakes and streams within the boundaries of an extensive farm belongs to the tenant. The Lord Advocate admitted, that his argument must go to that length in order to sustain the general proposition,—not to sustain this case, (for that was not contended,) but that the argument itself, pushed to its legitimate result, must come to that, namely, that in all rivers, within the bounds of the most extensive farms, the landlord has parted with his right of fishing to the tenant without any expression in the lease to that effect.
There is, I believe, a difference between the principles upon which a lease is construed in Scotland and in England, for some things are held to be conveyed by a lease in England which are not held to be conveyed in Scotland. In England I believe the right of shooting is conveyed to the tenant by the lease unless it is excluded, but certainly that is not the case in Scotland. No express reservation of the right of the landlord is required in Scotland, but that right is held to belong to him. There are also other matters which belong to him. The general principle acted upon is this—What was this farm let for? Was it let for one purpose or for another? Did the landlord part with rights which are accessory to his right of property but which have no connection whatever with the enjoyment of the land for the purpose for which the land was let? I do not think, therefore, that a tenant has the right of fishing in a stream, the property of the landlord, running through the farm, or in lakes which are in the farm. He has the enjoyment of the water for the primary uses to which water is applicable, and for which it may be necessary for the purposes of the farm, but the right to catch fish is not necessary for the purposes of the farm. Therefore I apprehend that the general doctrine which has been laid down in the Court below is the sound doctrine, and upon both points I think that this case must be decided against the appellant.
Interlocutors affirmed, and appeal dismissed with costs.
Solicitors: Appellant's Agents, D. F. Bridgeford, S.S.C., Norris, Allens, and Carter, Bedford Row, London. — Respondent's Agents, Mackenzie and Kermack. W.S., Loch and Maclaurin, Westminster.