72 SALMON-FISHERY OF SCOTLAND. 



Sutherland, by others the Frith of Dornoch, and which is, in 

 fact, a collection of fresh water, or of conjoined rivers, subject 

 to the influx of the tide, or a great tide river and tenant or 

 tacksman of nearly the whole of the rivers and upper fishings, 

 paying high rents, and supporting expensive fishing establish- 

 ments, was lately forced, after all remonstrance had failed, to 

 raise an action against Houston, possessor of some land, called 

 Creich, on the estuary, for intercepting the salmon proceeding 

 to the rivers, at a part where the channel of the estuary, at low 

 water, was one-third less in breadth than the Thames at West- 

 minster bridge, without having either a Crown grant, or a pre- 

 scriptive right, or, in short, a right of any kind, which could 

 authorise him to do so. Houston admitted the absence of all 

 right on his part, but contended that, if he had not a right, the 

 right, that is, the right of interception, was in the Crown, or in 

 some one else, and denied the title of the pursuer, as an upper 

 heritor, to raise the action ; but this defence was unanimously 

 rejected by the Second Division of the Court, the title of the 

 pursuer, as an upper heritor, sustained, and Houston found 

 liable in expenses, which put an end to the case. 



In the meanwhile, Houston's immediate neighbour, Gilchrist, 

 who had lately acquired right to a small spot called Spinning- 

 dale, on the banks of the estuary, lately belonging to a cotton- 

 spinning manufactory, commenced similar proceedings, with- 

 out any right. Another action was accordingly raised against 

 him, when the same defence was resorted to, namely, the want 

 of title in the pursuer, as an upper heritor to pursue. This 

 case having come before the Ordinary of the other, or First 

 Division of the Court, his Lordship pronounced an interlocu- 

 tor directly the REVERSE of the one in the former case, finding, 

 that the pursuer, as an upper heritor, had NOT a title to raise 

 the action, unless he could produce a right to the very spot 

 where the interception took place, or show that the fish were 

 intercepted by an illegal engine, the matter, that is, the inter- 

 ception of the fish and consequent loss of property, being, his 

 Lordship said, wholly jus tertii to the upper heritors ; and the 

 man who was fraudulently transferring to himself what, by his 

 own avowal, he had no right to, was found entitled to his ex- 



