of the Fishery Board for Scotland, 



407 



SECOND DIVISION. 



(Before the Lord Justice-Clerk and Lords Young, Craigliill, and Rutherfurd- 



Clark.) 



THE DOON FISHING CASE. 



R.N. THE MARQUIS OF AILSA V. JAMES BOWIE. 



APPEAL — JAMES BOWIE V. THE MARQUIS OF AILSA* 



Judgment was to-day (18th March 1887) given in this reclaiming note and 

 appeal in the actions brought by James Bowie, upholsterer, Ayr, against the 

 Marquis of Ailsa,to have it declared that the pursuer, as a member of the public, 

 had a right to fish with single rod and line for trout, flounders, eels, and other 

 floating fish, which are not salmon, sea-trout or whitling, or fish of the salmon 

 kind, in that part of the River Doon within tidal influence of the sea; and that 

 the defender had no right to interfere with that right. He stated that the 

 Doon was a tidal river at least as far as the lower dam dyke, which was distant 

 several hundred yards from the mouth of the river; and that up to that point 

 it was public and navigable. He founded his claim on the common law right, 

 and also by virtue of the Acts of Queen Anne, and 29 George II., cap. 23. 

 The defender maintained that, by virtue of his title and immemorial possession 

 following, he had the exclusive right to the fishings in the lower portion of 

 the river ; and that the Acts quoted did not apply to the defender's fishings. 

 Lord Trayner gave decree as concluded for, with expenses, holding that the 

 statute in question conferred upon the pursuer and the public the right to 

 catch in the tidal portion of the river fish which were inhabitants of the sea ; 

 and that the pursuer's right to fish extended up to the dam dyke, which was 

 the point reached by ordinary spring tides. 



Against this judgment the defender reclaimed, and to-day their Lordships 

 recalled that judgment, sustained the defences, and granted absolvitor to the 

 defender with expenses ; and in the Sheriff Court action, which was before 

 the Court on appeal, their Lordships dismissed the appeal, and affirmed the 

 judgment of Sheriff Brand. 



The Lord Justice-Clerk said that in this case there had been a good deal 

 of procedure, and more than one judgment, by the Judges before whom the 

 case had come. It commenced with a petition in the Sheriff Court of Ayr, 

 that it should be found and declared that the pursuer had a right of white 

 fishing anywhere on the coast, and particularly in the River Doon. ' The 

 ' pursuer, as a member of the public, has the undoubted, right of fishing with 

 ' single rod and line for trout, flounders, eels, and other floating fish, which 

 ' are not salmon, sea-trout, or whitling, or fish of the salmon kind, in that part 

 ' of the River Doon within tidal influence of the sea.' That was at proof in the 

 Sheriff Court, and the Sheriff- Substitute decided in favour of the pursuer. That 

 judgment was recalled by Sheriii-Principal Brand, and it came to the Inner House 

 on appeal. Having some difficulty as to the competency of deciding such an 

 application in the Sheriff Court, their Lordships thought it desirable that 

 declarator should be brought in the Court of Session. Accordingly, that was 

 done, and the conclusion of the summons in this case was substantially the 

 same as in the Sheriff Court action. It was contended on the part of the pur- 

 suer, that as long as he fished for white fish, he had a right to fish in the River 

 Doon wherever white fish could be found ; and he founded his case on the 

 Acts referred to; on the common law right of the public; and that the part of 

 the river referred to was a public river. It was said that the tide ebbed and 

 flowed within these limits, and that the solum belonged not to the Marquis of 



* Since the above was printed intimation of an appeal to the House of Lords has 

 been made to Lord Ailsa's agents. 

 3 F 



