Trespass — Claims of piscary — River Tweed — Boundary between England and Scotland — Proper law of immovables — Position of medium filum — Whether profit appurtenant or in gross sans stint — Whether profit in gross acquired by prescription — Whether profit in gross transferred to successors — Injunction to restrain trespass granted
The plaintiff is the owner of Wark Farm, Carham, Northumberland, including half the river bed of the River Tweed and all salmon and fishing rights on the south bank of the river. The fishing rights from the north bank of the Tweed, in Scotland, were owned by the Douglas & Angus Estates Co Ltd until 1961, when they were disposed to Alan Stott from whom they were acquired by the defendants in 1983. The defendants claimed rights of fishing south of the medium filum; the plaintiff claimed that the exercise of those fishing rights was a trespass and sought an injunction. The defendants contended that they enjoyed fishing rights by prescription or lost modern grant and, as it was a profit without stint, the right claimed was a profit in gross. Alternatively, the plaintiff was estopped by the conduct or acquiescence of her father, who had allowed the defendants’ predecessors to fish south of the medium filum. In any event, the parties did not agree the position of the medium filum.
Held The plaintiff was entitled to an injunction and declaration.
The court had jurisdiction to determine questions of law concerning immovables that were in England. The boundary between the lands on the north and south of the River Tweed was determined in Duke of Roxburgh v Earl Home (1774) 2 Pattern 358; it was the centre line of the river and as a consequence the disputed area belonged to the plaintiff.
The defendants’ claim to fish in the plaintiff’s part of the river, which was founded on a profit in gross, could not be established. Unlike a profit appurtenant, which passed with a conveyance of the dominant land, a profit in gross was property which belonged to an individual and could pass only by deed or a devise of that individual. If the profit in gross had been acquired by prescription by an earlier proprietor of the north bank, the defendants could not establish that the profit had been transferred to them. There was also no equity to found estoppel which bound the plaintiff. It was therefore a trespass to fish south of the medium filum by boat or from the north bank.
Derek Wood QC and Seddon Cripps (instructed by Travers Smith Braithwaite) appeared for the plaintiff; and Benjamin Levy (instructed by Payne Hicks Beach) appeared for the defendants.