PUBLIC RIVERS AND LOCHS
Introduction
Freshwater fish are wild animals and, thus, owned by nobody until caught, and then they are owned by the captor. However, as a result of both statute and common law, the ability of a person to fish for freshwater fish is generally fettered by the need to have the right to fish or have permission from a person having such right. Thus, it is the right to fish that is owned. The rights to fish for freshwater fish in inland waters Scotland are a pertinent of the land adjacent to which water flows, through which water flows on or on which a pond or loch is located.
In the general situation, fishing without permission is a civil offence; the only recourse available to the riparian owner is to ask an unauthorised angler to stop fishing, and if the angler refuses, the riparian owner may elect to take a case of interdict against the angler through the civil courts.
There are a number of exceptions to this general rule.
Section 11 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (the 2003 Act) makes clear that any person who, without legal right, or without permission from a person having such right, fishes in a proper stank or loch shall be guilty of an offence, and liable on summary conviction to a fine not exceeding Level 1 on the standard scale (£200). A "proper stank or loch" means a stank or loch the fishing rights in which are owned by one person, and a "stank" means a reservoir or pond with neither inlet nor outlet sufficient to allow access or egress by fish.
Section 26 of the 2003 Act states that any person who, without legal right, or without permission from a person having such right, takes or fishes for any fish other than salmon in any of the rivers, streams or other watercourses running into the Solway shall be guilty of an offence, and liable on summary conviction to a fine not exceeding Level 1 on the standard scale. This section does not apply to the River Annan. The requirement for a person to have the legal right or written permission from a person having such right to fish for salmon in the rivers flowing into the Solway is not affected by the provisions in section 26.
Section 42 (2) (b) makes clear that a protection order made under the provisions of section 48(1) of the Act shall prohibit persons without legal right or without written permission from a person having such right from fishing for or taking freshwater fish in the inland waters in the prescribed area.
It is important to note the use of the words "inland waters". Section 69(1) of the 2003 Act defines inland waters as including "all rivers above estuary limits and their tributary streams, and all waters, watercourses and lochs whether natural or artificial which drain or drain to some extent into the sea.
This distinction must be made because of the fact that there are in fact some "public fisheries" in Scotland.
Public rivers
In his book, "The Law of Game, Salmon and Freshwater Fishing in Scotland", Stanley Scott Robinson stated that:
"In public rivers the members of the public have at common law a right to fish for trout but, in order to constitute the right, it must be shown that the river is both navigable in the ordinary sense and also tidal. The tide must ebb and flow at the point where the right to fish is claimed, and the right will extend as far up the river as ordinary spring tides."
Scott Robinson states as references, the cases Bowie v Marquis of Ailsa (1887) 14 SLR 456, Grant v Henry (1894) 21 R 358, 31 SLR 263, and Nicol v Blaikie (1859) 22 D 335
It should be noted, however, that Scott Robinson goes on to say:
"But a public right of fishing for trout can only be established where there is a public right of access to the banks or where fishing can be carried out from a boat in tidal waters."
quoting as reference Fergusson v Shirreff (1844) 6 D 1363.
The situation with regard to public rivers seems to be clear, or at least there have no significant questions raised in relation to it in recent times.
Public Lochs
The situation with regard to public lochs has raised more questions. Scott Robinson stated:
"While in general, the right of fishing for trout in lochs is a pertinent of the surrounding lands, certain inland lochs, by reason of their situation, size and capability of navigation by large vessels, as part of the commerce of a particular district, may be considered as pubklic, in the same manner as navigable rivers. In Macdonnell v Caledonian Canal Comrs it was stated that waters such as Loch Ness, Loch Lochy and Loch Lomond must be regarded as public waters, but Loch Oich, which was wholly surrounded by Glengarry's lands, and there was little or no evidence of public use, was a private loch."
A more recent examination of this issue, particularly in relation to Loch Lochy, indicates that a more reasonable interpretation is that whereas there may be a public right of navigation in an inland loch, that fact does not confer upon the public a right of fishing there.
Proper Stanks and Lochs
During the exercise to consolidate the Scottish salmon and freshwater fisheries legislation that led to the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, the provisions of the Theft Act 1607 relating to fishing were examined, and redrafted in modern English to aid clarity.
The outcome may be found in section 11 of the 2003 Act, which states:
"(1) Any person who without legal right, or without permission from a person having such right, fishes in a proper stank or loch shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(2) For the purposes of this section -
"proper stank or loch" means a stank or loch the fishing rights in which are owned by one person: and
"stank" means a reservoir or pond with neither inlet nor outlet sufficient to allow access or egress by fish."
The limit of fine at level 1 on the standard scale is currently £200.