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Document : 285

Title: Petition for Fishing Rights

Author(s): Maclaurin, Lord John

Unto the Right Honourable the LORDS of COUNCIL and SESSION,
THE
PETITION
OF
Sir MICHAEL STEWART of Blackball, Baronet;
Humbly Sheweth
THAT in the proceſs at the inſtance of the town of Renfrew,
againſt Lord Blantyre and the petitioner, your
Lordſhips, of this date, upon adviſing a prepared ſtate,
with minutes of debate, pronounced the following interlocutor:
"The Lords having adviſed the prepared Rate of the pro"ceſs,
writs produced, and teſtimonies of the witneſſes adduced,
"and heard parties procurators in their own preſence, and having
"alſo conſidered what is before repreſented, they find the pur"ſuers
have the only good and undoubted right and title to the
"fiſhings in the river of Clyde, from Merlinford, which is above
"the town of Renfrew, downwards on both ſides of the river to
"Blackſtane, which is a rock in the river, oppoſite to the lands of
"Erſkine; and upon the ſouth-ſide of the river downwards from
"Blackſtane to the Kelly-bridge, which is below the town of
"Greenock; and particularly, to the fiſhings on the ſouth-ſide of
"the ſaid river, alongſt the lands of Erſkine, belonging to the de"fender
Lord Blantyre, and the lands belonging to the other de"fender
Sir Michael Stewart, Baronet: Find the purſuers and their
"fiſhermen entitled to fiſh and draw their nets upon every part of
"the ſhore from the Merlinford down to the Blackſtane; and
"on the ſouth ſhore of the river, from the Blackſtane to the Kel"ly-bridge:
Find them alſo entitled to ſpread, ſtent and dry their
"nets upon the adjacent grounds, on both ſides of the river, from
"the Merlinford down to the Blackſtane; and on the ſouth-ſide
"of the river from the Blackſtane down to the Kelly-bridge, ex"cept
as to the grounds known by the name of the Green of Er"ſkine,
which Green of Erſkine is hereby underſtood to be bound"ed
by the preſent Ferry-quay of Erſkine on the eaſft, and by a
"point on the banks of the Clyde, two hundred yards to the weſt"ward
of the houſe of Erſkine upon the weſt; and which ſpace
"lying between the ſaid Ferry-quay and a point upon the banks
"of the river, two hundred yards to the weſtward of the houſe of
"Erſkine, is to be exempted from theſe ſervitudes of ſpreading,
"ſtenting and drying nets, in reſpect of the circumſtances of the
"caſe, and admiſſion of parties in the foregoing minute: Find the
"defender Alexander Lord Blantyre liable to the purſuers in the
"expence of the extract of the decreet to follow hereon, as the
"ſame ſhall be certified by the Collector of the clerks dues, but
"in no other expences ; and decern: But ſuperſede extract to the
"third ſederunt day of June next."
This interlocutor, which, as well as the whole procedure paſſed
in the petitioner's abſence, the petitioner ſubmits to review.
The town of Renfrew in 1776, brought a proceſs againſt Lord
Blantyre and the petitioner, which ſets forth, That by a charter
from Queen Anne, under the Great Seal, of date the 7th of Auguſt
1703, containing a novodamus, her Majeſty granted to the Magiſtrates
of the burgh, and their ſucceſſors in office, for behoof of the
community, "The whole fiſhings of the river Clyde, ſalmon and
"other fiſhings pertaining to the ſaid burgh by uſe and wont, conform
"to the ancient meiths and diviſions thereof, and whereof they
"and their predeceſſors have been in poſſeſſion paſt memory of man,
"viz. The hail ſtream of the water of Clyde, and cuſtoms of the
"ſame, with the fiſhings and anchorages thereof, from the ford
"called Merlinford, as far as Blackſtane, with the fiſhings and ſhots
"in the ſaid water of Clyde called the Sandyurd on both ſides of
"the ſaid river, and from the laid Blackſtane extending weſt the
"ſaid river conform to the marches ſet by Sir John Forreſter be"twixt
the burgeſſes of Renfrew and Dumbarton, with the privi"leges
of drawing their nets, and ſpreading, Renting and drying
"the ſame in all convenient places within the bounds foreſaid, uſed
"and wont, to he poſſeſſed and occupied by them and their ſucceſ"ſors,
and as freely as they and their predeceſſors have formerly
"poſſeſſed the ſame, or at any time bypaſt have been in the uſe
"and poſſeſſion of." That in virtue of this grant, they and their
predeceſſors in office had been in the conſtant and uninterrupted
uſe and poſſeſſion of fiſhing the ſaid river Clyde, and of drawing,
ſpreading and drying their nets within the bounds before mentioned
paſt memory of man; and in particular, "have been in the
"conſtant and uninterrupted uſe and poſſeſſion of fiſhing and
"uſing the ſaid other privileges in that ſhot known by the name
"of the Dovecot-ſhot, and lying nearly oppoſite to the houſe of
"Erſkine belonging to Alexander Lord Blantyre, and they have
"alſo been in uſe to fiſh in that part of the ſaid river which lies oppoſite to
"the eſtate pertaining to Sir Michael Stewart of Blacklhall, Bart, till of
"late that the ſaid Alexander Lord Blantyre and Sir Michael
"Stewart have unjuſtly troubled and moleſted them and their ſub"tenants
in the ſail poſſeſſion, by cutting and deſtroying of their
"nets, and other violent and tortious acts." Therefore, concluding,
that it ſhould be found and declared, "That the purſuers
"have the only good and undoubted right and title to the fiſhings
"in the ſaid river of Clyde within the bounds before mentioned
"That the ſame do comprehend the fiſhing of the ſaid ſhot called
"the Dovecot-ſhot, adjacent to the houſe of Erſkine belonging to
"the ſaid Alexander Lord Blantyre; and alſo the fſhings oppoſite
"to the lands and eſtate of the ſaid Sir Michael Stewart, and that
"the puſuers have in no ſhape exceeded the rights and privileges granted
"to them by the foreſaid charter, and whereof they and their predeceſſors
"have been in poſſeſſion paſt memory of man," and that the defenders
ſhould be prohibited from moleſting them, &c.
This proceſs having come in courſr of the rolls before Lord
Kames Ordinary, the purſuers procurator repreſented, that the
parties were preſently under communing, and therefore craved,
that the Lord Ordinary would make aviſandum to himſelf; and
the defenders failing to compear, the Lord Ordinary made aviſandum
to himſelf with the proceſs, parties being under communing.

Thereafter the purſuers gave in a condeſcendence, bearing, "The
"purſuers have produced a charter under the Great Seal, grant"ing
to them the ſalmon-fiſhings in the river of Clyde, from Mer"linford
downwards, including that part of the river oppoſite to
"Sir Michael Stewart's eſtate; and they offer to prove, that they
"without interruption poſſeſſed theſe fiſhings, particularly oppoſite
"to Sir Michael's grounds, and that he never pretended to have
"any right to fiſh ſalmon till within theſe very few years: The
"purſuers do not know that Sir Michael has any title whatever in
"writing upon which he can pretend to fiſh, and therefore, if he
"founds upon any he muſt produce it." And the cauſe being inrolled,
the purſuers procurator repeated the libel, and repreſented,
that as the ſacts therein ſet forth muſt go to proof, he now gave
in a ſpecial condeſcendence of the facts he offers to prove, and
agrees that the defender's procurator ſee the ſame ; and the defenders
failing to appear, the Lord Ordinary "allows the defenders
"procurator to ſee the condeſfcendence, and ordains him to give
"in anſwers thereto againſt this day ſe'ennight."
Afterwards parties then appearing, as it is laid, by their procurators,
the Lord Ordinary allowed the procurator for Sir Michael
Stewart to ſee the ſaid condeſcendence, and ordained him to give
in anſwers thereto againſt next calling ; but the marking compearance
at this calling for the petitioner muſt be owing to ſome
miſtake, none having in fact ever been made for him.
Afterwards the purſuers gave in a condeſcendence directly againſt
Lord Blantyre, and concluding with an offer to prove, "That
"they have been in the immemorial, conſtant, and uninterrupted
"poſſeſſion of the whole fiſhings upon the ſouth ſide of the river
"Clyde, from Merlinford above the town of Renfrew to Black"ſtane,
which is oppoſite to Lord Blantyre's grounds of Erſkine,
"and from thence downwards far beyond else undermoſtboun"dary
of his Lordſhip's ſaid lands of Erſkine, including the Dove"cot-ſhot."

Lord Blantyre made anſwers to this condeſcendence, denying
the immemorial poſſeſſion, and alleging frequent interruptions ;
and concluding with inſiſting, that the town ſhould produce a decreet
of cognition, laid to have been pronounced by Sir John Forreſter,
regulating the marches of the fiſhings of the town of Renfrew
and Dumbarton, as from thence the extent and nature of the
town's fiſhings might poſſibly appear.
The town accordingly produced this decreet of cognition, which
bears date in 1429, and ſets forth, that Sir John Forreſter of Corſtorphin,
knight, chamberlain of Scotland, had ſummoned burgeſſes
of health the ſaid burghs to appear before him at Glaſgow
and November 1429; as alſo a jury of Lords and Gentlemen ſummoned
by the Sheriff to be upon an aſſize touching the debate of
the ſaid burghs, and that else ſaid aſſize "deponit and determinit,
"that the burges and communite of the burgh of Renfrew ar in poſſ"ſeſſionne
of the fiſching of the [ ] quhilk is callit the ſand
"urde; alſwa the ſaid aſſize deponit, that the burges and commu"nite
of the ſaid burgh of Renfrew are in poſſeſſionne of the
"water of Clyde, and aucht to have the cuſtum and anke"rage
of thae that comes within their [ ] whilk water of
"Clyde, we fynd extendes to the ſtane, and frae thence
"down, the aſſiſe decernis of that that is debateable, the profit of
"that to be divided and departit between them of baith the bur"ries;
and this til al thaim to quham it affers or may affer in
"time to come, we mak it kend by thir preſent letters."
Afterwards, the Lord Ordinary made avizandum with the condeſcendence
and anſwers, and at a ſubſequent calling, the purſuers
procurator returned the condeſcendence given in for them, andcraved
to be allowed a proof of the facts therein ſtated, and all
facts and circumſtances relative thereto, and a commiſſion for taking
the proof in the country : Whereupon the procurator for Lord
Blantyre craved a proof of the facts ſtated in his anſwers, and all
facts and circumſtances relative thereto, and a conjunct probation
with the purſuers, as he has produced his ſeiſin; which being conſidered
by the Lord Ordinary, his Lordſhip, "before anſwer, al"lows
the purſuers to prove the facts ſtated in their condeſcen"dence,
and all facts and circumſtances relative thereto; allows
"the defender, Lord Blantyre, to prove the facts Rated in his an"ſwers
to the ſaid condeſcendence, and all facts and circum"ſtances
relative thereto; and allows both parties a conjunct
"probation upon the whole;" and granted commiſſion, &c.
In purſuance of this interlocutor, the purſuers extracted an act
and commiſſion, and led a proof not only in their queſtion with
Lord Blantyre, but attempted alſo to lead a proof againſt the petitioner,
which was quite irregular ; the interlocutor allowing a proof
being confined to the queſtion with Lord Blantyre alone, and indeed
could not be otherwiſe, as the petitioner had given in no anſwer
to the condeſcendence exhibited againſt him, or made any
compearance.
The purſuers, however, failed in the proof they attempted againſt
the petitioner. As to Lord Blantyre, they indeed proved
their libel pretty fully; the witneſſes deponing to the town's being
in uſe of fiſhing at the Dovecot-ſhot, and other places oppoſite to
Lord Blantyre's lands ; but no witneſs deponed that the town had
ever been in uſe of fiſhing in that part of the river oppoſite to the petitioner's
lands; all they ſaid was, that they had heard it reported that
the town had a power or right to fiſh from the Three-mile-burn,
which is two miles above the town of Renfrew, down to the Kelly--
bridge, which laſt place is within a few gunſhots down the river
from the petitioner's lands.
Thus, Alexander Aiken, aged 49, depones,"That he has heard it
"reported ever ſince he remembers any thing, that the town of
"Renfrew had a power to fiſh upon the river Clyde on the ſouth
"ſide thereof, all the way from the Three-mile-burn, which is
"two miles above the town of Renfrew, down to the Kelly-bridge,
"which is ſeveral miles below Lord Blantyre's lands of Erſkine."
James Houſton aged 49," That he has always heard it reported,
"that the town of Renfrew's fiſhings extended on the ſouth ſide
"of the river, from Merlinford on the eaſt, to Kelly-burn on the
"weſt, which is below Greenock."
James Donald aged 52, " That he had always heard the town of
"Renfrew had a right to the whole ſouth ſide of the river from
"the Three-mile-burn to Kelly-burn."
John Campbell aged 60, "That he has heard ever ſince he re"members
any thing, that the town of Renfrew had right to the
"fiſhing on the ſouth ſide of the river Clyde from the Merlinford
"on the eaſt, down to Kellybridge on the weſt."
Walter Buchanan aged 70, "That ſince the time he came to
"Renfrew, which was about 50 years ago, he has always heard
"the voice of the town, that the town of Renfrew's fiſhing ex"tended
from the Shell-burn, which is a little above the Merlin"ford,
down to the Kelly-bridge, with the fiſhermens backs to the
"ſun.; and down to Dalnotter on the north ſide of the river,
"which is a .little above Kirkpatrick Done."
Robert Knox aged 48, "That ever ſince he remembers any
"thing, he has heard his father, who was a fiſherman in Renfrew,
"and the oldeſt people in the town of Renfrew, ſay, that the
"town of Renfrew's fiſhing extended from the Merlinford, down
"to Kelly-bridge, on the ſouth ſide of the river; and on the north
"ſide of the river, from the ſaid Merlinford, down to Black"ſtane."

But none of theſe witneſſes ſay that they ever ſaw or knew, that
de facto the town had fiſhed at any time oppoſite to the petitioner's
lands. There is not one witneſs who mentions any thing as to the
uſage of fiſhing, except the firſt witneſs, David Donald fiſherman,
aged-74 ; and all he ſays is hearſay, his words are "That he has
heard it reported ſince his infancy, that the town of Renfrew were
"in uſe to fiſh in the Clyde from a little above Renfrew to Bod"denbow-ſhot,
above the Blackſtane, on both ſides of the river;
"and from Blackſtane, on the ſouth ſide of the river, downwards
"to Kelly-bridge below Greenock." As all the other witneſſes
concur in deponing, that what they heard reported, was, not that
the town were in uſe to fiſh downwards to Kelly-bridge, but that
they had a power or right to do ſo, it is clear enough that this witneſs
has expreſſed himſelf inaccurately, and that all he meant was,
that he heard it reported the town had a right to fiſh in that ſpace;
and this is farther evident from the witneſs, who is 75 years of
age, never having either himſelf fiſhed it, or ſeen any other perſon
do ſo.
What is above tranſcribed is the whole of the proof againſt the
petitioner contained in the ſtare; but no compearance having been
made for him at adviſing, your Lordſhips determined againſt him
as well as againſt Lord Blantyre, by the interlocutor recited in the
entrance, againſt which the petitioner now reclaims.
The very firſt ſtep in this proceſs, was to get aviſandum made
at the inſtance of the purſuers before the Lord Ordinary, on account
of parties being under communing ; and the petitioner underſtood
that the purſuers were not to go on againſt him, but
againſt Lord Blantyre only, for which reaſon no compearance was
made for him ; and upon this plan, though a condeſendence was
given in againſt the petitioner, and he was allowed to ſee that on
the 6th December 1777, there was no procedure afterwards againſt
him till the 9th November 1779, when the proof was led. The
intermediate procedure was all betwixt the purſuers and Lord
Blantyre; only one condeſcendence was admitted to proof, and
that was the condeſcendence againſt Lord Blantyre, and a conjunct
probation was allowed to his Lordſhip alone; ſo that when the
proof came to be led on the 9th November 1779, the procefs was
afleep as to the petitioner ; in which view, the whole procedure.
againſt him was inept and void, unleſs the procedure againſt Lord
Blantyre kept the proceſs awake againſt the petitioner, which it
ſhould ſeem it would not, their intereſts being quite diſtinct and
unconnected.
The petitioner, however, has no occaſion to inſiſt upon a point
of form, as he humbly apprehends he ought to be aſſoilzied upon
the merits. The purfuers were pleaſed to fay in their condeſcendence,
that they do not know that the petitioner has any title
whatever in writing, upon which he can pretend to fiſh; and
therefore, if he ſounds upon any, he muſt produce it.
To this the petitioner anſwers, that he is infeft in baronia, and
his charter contains a clauſe cum piſcationibus, which he conceives is
title ſufficient. But he apprehends that the purſuers have no right
to enquire into his titles, or inſiſt for production of them, or quarrel
his fiſhing, although he had no title whatever, unleſs they can
ſhow a ſufficient title in themſelves, which they have not done,
nor indeed any title at all.
From Renfrew to Port-Glaſgow, is about 15 Engliſh miles by
land, and it is more by water: From Port-Glaſgow to a place called
Gourock, is about ſix Engliſh miles; and upon this laſt ſpace
Mr Shaw Stewart of Greenock, has a right by his charter from
the Crown, of ſalmon-fiſhing, and all other fiſhings whatſoever
within the bounds of his lands, or near to the ſame or any part
thereof where the water of Clyde ebbs and flows. From Gourock
to Kellybridge, is about 14 or 15 Engliſh miles; and the river oppoſite
to the petitioner's lands, is nine miles broad; and at Kelly--
bridge, which is oppofite to the iſland of Bute, 20 miles.
That the burgh of Renfrew ſhould have a right to a ſalmon--
fiſhing for ſome ſpace above and below the town, is not at all ſfurpriſing.
But it would be ſingular, had they a right to ſuch a large
tract not only of freſh water, but of ſalt water, or ſea-fiſhing, interrupted
too for a conſiderable ſpace by the proprietor of Greenock.
Accordingly, when their charter is looked into, it is plain
that they have no ſuch right; their charter gives them right to
the whole fiſhings of the river Clyde, but under this qualification,
"pertaining to the ſaid burgh by uſe and wont, and wherein their
"predeceſſors have been in poſſeſſion paſt memory of man." And
it mentions particularly "from the ford called Merlinford, as far
"as Blackſtane on both ſides of the river; and from the ſaid
"Blackſtane extending weſt the ſaid river, conform to the marches
"ſet by Sir John Forreſter, with the privilege of drawing their
"nets, &c., within the bounds aforeſaid, uſed and wont, to be oc"cupied
and poſſeſſed by them and their predeceſſors." The decreet
by Sir John Forreſter above recited, aſcertains nothing to the
town but the fiſhing called the Sandeford And therefore, the utmoſt
the town could claim, was to have their right declared to that
ſpace of which they had been immemorially in poſſeſſion. Accordingly,
they undertook to prove in their condeſcendence, that
they uninterruptedly poſſeſſed theſe fiſhings, particularly oppoſite
to the petitioner's lands.
But they totally failed to prove ſuch poſſeſſion, as appears from
their evidence above ſtated ; indeed that evidence eſtabliſhes that
they had not poſſeſſed the fiſhing on that ſpace; for none of their
witneſſes, not the oldeſt, pretends to ſay that ever he ſaw or knew
of the town's ſiſhers having once fiſhed within that ſpace; ſo that
the petitioner could have no opportunity of cutting their nets as
was libelled. It is very true, the witneſſes concur in deponing to
a report, that the town had a right to fiſh down to the Kelly-bridge;
but an erroneous opinion or report as to the extent of their right,
cannot make it better or worſe. The town's right has been produced,
and from it it is clear, that the right to the fiſhing from
the Blackſtane weſtward, is quite indefinite; and the utmoſt the
town can demand is, that it ſhould be explained by their poſſeſſion,
and that they ſhould be found to have a right to the ſpace
they have immemorially poſſeſſed. Now, ſuppoſing all this yielded
to them, it could not in the leaſt avail them againſt the petitioner,
becauſe they have totally failed to prove any poſſeſſion of fiſhing
in the ſpace oppoſite to his lands, and conſequently had no right
to diſturb him in his fiſhing, or bring a proceſs of declarator againſt
him.
May it therefore pleaſe your Lordſhips, to review your former interlocutor,
and to find, that the purſuers have no title to fiſh in that
ſpace of the river Clyde oppoſite to the petitioner's lands; and to
aſſoilzie the petitioner from the action.
According to Juſtice, &c.
JO. MACLAURIN.