under which they were supplied, or to pay the price of them. If the insects that came from these palliasses caused loss to the defender he may recover in an action of damages.

To my mind these considerations furnish a satisfactory ground for deciding the case against the defender, but I would further wish to say that in my opinion even if the defender had the right to reject the furniture, he did not exercise his right tempestive.

LORD JUSTICE-CLERK-I have come to be of the same opinion, although apparently with more difficulty than your Lordships have had. The main ground on which I put my judgment is, that the length of time which elapsed between the reception of the furniture and the date of rejection is quite unexampled in a case of this kind. The goods were sent to the hotel in June, the damage was discovered shortly afterwards, but they were not sent back till the beginning of the following year. No doubt the ground of the rejection was to some degree occult-that is to say, it did not at once appear where these mites had come from, whether from the palliasses or whether they were generated in the furniture.

But it is clear that when these animalculæ did appear upon the furniture, the course the defender took, although a most sensible one in the circumstances, goes far to show that this case should be decided against him. For he entered into an agreement with the pursuer that he should clear the furniture of these creatures, and that substantially meant this, that the goods should not be returned if the pursuer did what he could to prevent the infection from spreading. I think that the long delay I have referred to indicates that the return of the goods was not in accordance with the agreement of parties. As to whether an action of damages would lie at the instance of the defender against the pursuer in such circumstance as these, I do not think it necessary to say anything.

clause D of this will are paid or handed over. The testator predeceased his mother, and the bequests in clause D therefore lapsed. Held that the bequest in the codicil was unconditional, and that the reference to clause D had reference merely to the time of payment.

Henry Cowe died on 30th March 1881 leaving a holograph will with two codicils. The will was divided by the testator into clauses distinguished by letters and numbers.

By clause A he left the liferent of his whole property to his mother, except certain articles mentioned in clause B, which he bequeathed to special legatees.

By clause C he made certain provisions in the event of his predeceasing his mother, and by clause D he directed what was to be done in the event of his surviving his mother.

By the codicils annexed to his will the testator made various alterations upon its provisions. The second codicil revoked the special legacies in clause B. It contained the following bequest -"In addition to any legacy mentioned in this will by which he may be left any property, of whatsoever kind, to Peter Cowe, or his next-ofkind (as designated in a previous clause of this codicil), I leave the sum of Five hundred pounds sterling (£500), which is to be handed over along with or at such time as legacies mentioned in clause D of this will are paid or handed over."

The testator predeceased his mother, and the liferent of his estate was paid to her till her death.

By the testator's predecease of his mother the provisions contained in clause D lapsed.

A question having arisen whether, as the legacies in D had lapsed, this legacy to Peter Cowe did not lapse also, the present special case was presented to have the question determined. The parties of the first part were the executorsnominate acting under Henry Cowe's will; the party of the second part was Peter Cowe.

The question for the determination of the Court was-Whether the parties of the first part were bound to make payment of the said legacy of £500 as a valid and subsisting legacy?

Argued for the first parties-The legacies and provisions in clause D were expressly made conditional upon Henry Cowe surviving the mother, and as that event did not happen, all these legacies and provisions lapsed. This legacy was expressly declared to be payable at the same time as the legacies in clause D, and as they could not be paid neither could it, and must be held to have lapsed.

Replied for second party-The reference in the codicil to the legacies mentioned in clause D was merely to fix the term of payment of the legacy now in question; the gift was unconditional, and should receive effect.

At advising

LORD PRESIDENT-This curious settlement of the late Henry Cowe is divided into four parts, distinguished by the letters A, B, C, and D. A, which is a conveyance to his mother of the liferent of his whole property, stands unrecalled, but division B has been entirely recalled; therefore the will consists of A, C, and D, which two latter are alternative wills. O is to take effect

in the event of his predeceasing his mother, while D is only to come into operation if he dies after her.

The testator predeceased his mother, so D does not receive effect. Division C therefore regulates the succession, except in so far as it is controlled by the terms of the codicils which the testator annexed to his settlement. What we have to do in the present case is to construe a bequest contained in the last codicil, to Peter Cowe, a relative of the testator. It is in these terms-"In addition to any legacy mentioned in this will by which he may be left any property of whatsoever kind to Peter Cowe, or his nextof-kind (as designated in a previous clause of this codicil), I leave the sum of Five hundred pounds sterling (£500), which is to be handed over along with or at such time as legacies mentioned in clause D of this will are paid or handed over.

Now, taking the words of the legacy by themselves they raise no difficulty. It is an unconditional bequest to Peter Cowe of £500, but then it is followed by these words-To be handed over along with or at such time as legacies mentioned in clause D." Now, the legacies in clause D can never be handed over to anybody, for the reason I have already mentioned.

What does the testator mean then by a reference to the "legacies mentioned in clause D "? I cannot tell, but nevertheless I cannot spell out of this direction anything like a condition adjected to the legacy of £500. There is here a simple direction to the trustees to hand over this bequest along with the "legacies mentioned in clause D." These words have little meaning, and one can only gather from them the testator's desire that the bequest should be paid over at the same time as the legacies in D. A direction as to the time of payment is not subversive of the bequest, provided the words of bequest are clear. Therefore I do not see how the circumstance that the legacies in D are not to be paid can operate to destroy this bequest.

I am for authorising the trustees to pay.
LORD MURE concurred.

LORD ADAM-I am of the same opinion. This gift of £500 is clear and unconditional. The words in the codicil are simply a direction to the trustees, and do not in any way destroy the gift.

LORD SHAND was absent from illness.

The Court answered the question in the affirmative.

Counsel for the First Parties-Goudy. Agents -Adam & Sang, W.S.

Counsel for the Second Party-G. W. Burnet. Agent-R. Bruce Cowan, W.S.

VOL. XXV.

Wednesday, November 23.

FIRST DIVISION.

[Lord Trayner, Ordinary.

MAGISTRATES OF TAIN V. MURRAY. Fishings-Salmon-Fishings—Division of, where ex adverso of Neighbouring but Discontiguous Properties-Property- Marches.

In an action between the proprietors of lands, which were separated by the inlet of an open bay, to determine the mutual boundary between their salmon-fishings ex adverso of these lands, the pursuers maintained that the boundary was the medium filum of a small burn whose channel traversed the bay, and was visible at low water. There were no boundaries in the title, and no evidence of possession. A remit was made to a civil engineer, who reported that the course of this burn was subject to alteration, owing to the action of wind and tide; that the general outline of the coast was represented by a line which was a segment of a circle, from the centre of which he drew a line to the western boundary of the eastmost property, which he proposed as the boundary of the fishings.

Held that as the channel of the burn did not supply a natural boundary of a permanent kind, the march should be determined according to the method adopted in the case of M-Taggart v. M'Douall, March 6, 1867, 5 Macph. 534, and that although the reporter had deviated from this method to some extent, the pursuers had no interest to object to the boundary proposed.

This was an action of declarator at the instance of the Provost, Magistrates, and Town Council of the Royal Burgh of Tain, proprietors of the lands of Morrichmore, which extend along the south shore of the Dornoch Firth, against W. H. E. Murray, Esq. of Geanies, proprietor of the lands of Arboll, which are also situated on the same shore, although they are discontiguous from the lands of Morrichmore, being separated from them by the Inver channel or bay, the conclusions of which were to have it found and declared "that the legal boundary or march between the salmon-fishings belonging to the pursuers in the estuary or sea adjacent to all and whole the lands of Morrichmore, in the county of Ross, also belonging to the pursuers, on the one part, and the salmonfishings belonging to or claimed by the defender in the estuary or sea adjacent to all and whole the lands of Arboll, or part thereof, also belonging to or claimed by the defender, on the other part, is the medium filum of the Fendom Burn and Inver channel at low water, as delineated with a red line laid down on the copy Ordnance map produced herewith, or such other line as shall be found to be the legal boundary or march between the said respective salmon-fishings in the course of the proceedings to follow hereon."

The titles of the pursuers and of the defender respectively contained grants of salmon-fishing ex adverso of their lands, but prescribed no boundaries within which the respective rights were to be exercised, and there was no evidence of possession of the fishings.

The pursuers averred

"The lands of MorrichNO. VI.

more consist of a large low-lying piece of ground, bounded on the north-west by the Dornoch Firth, on the north-east by the open sea, and on the south-east at low water by the Fendom Burn and Inver channel, which at high water form an estuary called Inver Bay. The foreshore of the Morrichmore is called the Whiteness Sands, and extends several miles in length, with an average breadth of about one mile from high to low watermark on the north-west side, and about 250 yards on the north-east side. . . . The defender's lands lie to the south-east of the pursuers' lands of Morrichmore, and are separated therefrom at low water by the Fendom Burn and Inver channel, which at high water form an estuary called Inver Bay. The Fendom Burn is a large stream formed by the confluence of a considerable number of burns. In ordinary spring tides the sea runs up it for 3

miles above the western march of the defender's lands (the march nearest to the Morrichmore). At low water the channel of the Fendom Burn at the said march is 246 feet in width, and too deep to be forded. In order to cross from the defender's lands to the Morrichmore at low water it is necessary to take a boat out by sea, or, passing entirely off defender's lands on to those of others, to proceed up the stream to a ford situated at fully half a-mile's distance from the nearest march of defender's lands, and to travel back from that ford upwards of a mile on the lands of Morrichmore or the foreshore in order to reach the fishing-ground and the nets. This ford is available only at low water, the depth at high water being from 8 to 10 feet, according to the state of the tides. At no state of the tide is it possible to pass by land or ford from the defender's lands to the Morrichmore or the Whiteness Sands, except by passing through the lands of other proprietors, and when the ford above mentioned is not available on account of the state of the tide this involves a detour of several miles."

The defender's statement in answer was as follows:- Denied that the Fendom Burn is properly speaking a fresh water stream at all, but explained that it is a water-course by which the superfluous water from the Morrichmore and the adjoining lands drain in ordinary weather into the head of the Inver channel or bay, and that in drought it is totally dry. Under no conditions is it practicable for the ascent of fish of the salmon kind, nor have they ever been found there. The said Inver channel is therefore merely an indentation of the coast (a large part of it being on the foreshore ex adverso of the defender's lands), in which the water is entirely salt at all states of the tide. The retention of water in the said channel being assisted by a sand-bar at the mouth thereof, and the bed of the bay being composed of soft sand, the course of the channel at low water is constantly changing. After very high tides the channel has been noticed to alter its course by several hundred yards, and its configuration now is entirely different from what it was when the plan produced by the pursuers was made by the Ordnance Survey in 1872." The defender stated that as the course of the Fendom Burn was to the east, the result as fixing as the boundary the line contended for by the pursuers, would be to deprive him of the greater part of the salmonfishings ex adverso of his lands,

The Lord Ordinary (TRAYNER) on 20th July 1886, before answer, remitted to Mr George M. Cunningham, C. E., who reported as follows:". . . . That the defender's lands of Arboll lie to the south-east of the pursuers' lands of Morrichmore, and are separated therefrom at high water by Inver Bay, and at low water by the channel of that bay.

"The Fendom Burn is a very small stream running into the head of Inver Bay, the head of the bay being about a mile and a-half from the western march of the defender's lands. A short distance further up at South Pitnellies the burn is little else than a mere ditch; it does not appear to the reporter to be in any sense of the word a salmon river.

"The Fendom Burn from its source to where it enters the bay is about four miles in length following the sinuosities of the stream, and of this length it is tidal for about a mile and a-half.

"At low water the width of Inver channel, opposite the western march of the defender's lands, is about 246 feet, but whether it can be forded depends on the state of the tide. On the 18th of August last the depth of water in the channel opposite the defender's march was at low water feet 6 inches.

"I have prepared a plan extending from the village of Inver to where Inver Bay joins the Dornoch Firth, showing the position of the channel on the 18th of August last, and the depth of water at various points along it, marked in feet and inches as it was at low water on that day.

"It will be seen that at the bar, or where it joins the Dornoch Firth, the water was just six inches deep, and for a distance of 400 yards up the channel it did not exceed at any place 1 foot in depth. Further up it got deeper, varying from 1 to 8 and 9 feet. I may mention that the tide on 18th August was said to be an exceptionally low one, and the depth of water at low water of spring-tides may therefore sometimes be a foot or so more than marked.

"The range of the tide on the above date was 11 feet 5 inches. By the Admiralty chart the range of ordinary spring-tides is 11 feet.

"The depth of water at the bar is at low water almost the same as at the village of Inver, and the practicability of fording the channel at either place depends entirely on the state of the tide. When Inver Bay cannot be forded at any point, no doubt a long detour would be necessary to get from the lands of the defender to those of the pursuers, unless by using a boat to cross Inver Bay.

"At the request of the pursuers I have marked on the Ordnance map in blue and lettered A B the ford referred to by them as 'a ford situated at fully half a mile's distance from the nearest march of defender's lands.'

"No doubt this ford would be generally used by anyone coming down the road leading directly to it from the main road on the south? it is, of course, only available at or about low water. But the channel can be forded equally well at other points between that and the Dornoch Firth, and the reporter himself forded it in a cart on 7th August last at two places below the village of Inver.

"I have at the request of parties laid down in blue on the Ordnance 6 inch map the course of the Inver channel as on the 18th of August last. It

of Tain, Murray

23, 1887

will be seen that it has changed very considerably since the date of the Ordnance Survey in 1872; but there is nothing remarkable in that, as the whole bay being of sand the action of wind and tide must bring about frequent changes.

"I was asked by the pursuers to define 'the medium filum of the channel of the Fendom Burn and Inver Bay at low water.' I have accordingly drawn a dotted blue line down the centre of the Inver channel as it was on 18th August last. I do not consider that channel to be the Fendom Burn, because in my opinion the Fendom Burn terminates where it enters Inver Bay, about a mile and a quarter above the village of Inver. . .

"I have also laid down on the Ordnance map a dotted red line, indicating what I think very fairly represents the general outline of the coast along a considerable portion of the Dornoch Firth at the place in question. I find that the line so laid down is a segment of a circle having a radius of 2 miles, and I have drawn from the centre of that circle a strong red line to the west boundary of the lands of Arboll, and therefore a line at right angles to the direction of the circumference of the circle at that point? and if I am right in the conclusion which I have formed regarding the matters dealt with in this report, I would respectfully submit that the line so drawn should form the western boundary of the fishings of Arboll."

On 10th June 1887 the Lord Ordinary found and declared that the legal boundary or march between the salmon-fishings belonging to the pursuers in the sea adjacent to the lands of Morrichmore and the salmon-fishings belonging to the defender in the sea adjacent to the lands of Arboll, was the line laid down by the reporter.

"Opinion.-The pursuers conclude for decree finding and declaring that the legal boundary between the salmon-fishings and those of the defender Mr Murray is the medium filum of the Fendom Burn and Inver channel at low water,' or such other line as the Court may fix.

"The pursuers' contention that the medium filum of the Fendom Burn and Inver channel should be adopted as the boundary line, proceeded upon the averment that the Fendom Burn and Inver channel (at all times practically the same in line and direction) afforded a natural boundary between the properties of the parties respectively, and should therefore be accepted where it reaches the sea, as the point from which the boundary line of their respective fishings should be drawn seaward. The ascertained facts, however, do not coincide with the pursuers' statements.

"From the report of Mr Cunningham it appears that the Fendom Burn is not at all of the character alleged by the pursuers; that it terminates where it flows into the Inver channel at a considerable distance from the sea, and does not there form any boundary between the properties of the parties; while the Inver channel cannot be regarded as a boundary at all, its character and line being subject to great and frequent changes through the effects of sea and wind.

"There being therefore no natural boundary which can be appealed to in aid of the solution of the present question, and no possession on the part of the pursuers proved or offered to be

proved which could throw light upon the rights of parties, it appeared to me that the only mode which could be adopted to fix the boundary line which the pursuers desire to have fixed was that which was followed in M'Taggart v. M'Douall, 5 Macph. 534. I called the reporter's attention to that case, and desired him to lay down a boundary line between the fishings of the parties on the principle there adopted and since approved-Keith v. Smyth, 12 R. 66. Mr Cunningham did not find it possible to follow exactly the mode adopted in M'Taggart's case on account of the difficulty (arising from the natural contour of the coast-line) in obtaining any straight line which would represent the average line of coast. But he suggests a line of boundary which appears to be as favourable for the pursuers as any they could get, unless it were a perpendicular line dropped seaward from the mouth of the Inver channel. This line (from the mouth of Inver channel) is, in my view, for several reasons, a line to which the pursuers are not entitled. I adopt therefore the line suggested by Mr Cunningham, and find that to be the boundary between the fishings of the parties."

The pursuers reclaimed, and argued - The question here was whether an artificial line laid down by the reporter, or whether the natural boundary should be taken as the legal boundary. The fishings were at all times separated by a permanent watercourse; this was the material averment of the pursuers and the report established it. The method followed by the reporter in ascertaining the average line of the coast was entirely new-M'Taggart v. M'Douall, March 6, 1867, 5 Macph. 534, per Lord Justice-Clerk 545; Keith v. Smyth, November 7, 1884, 12 R. 66; Laird v. Reid, March 14, 1871, 9 Macph. 699; Stewart Gray v. Fleming and Richardson, January 9, 1885, 12 R. 530. There was between the properties a boundary, consisting of a combination of river and sea. "Inver" meant the mouth of a river. The bar at the mouth showed its character. It was a clear physical boundary. The pursuers were therefore entitled to the fishings up to the medium filum of the channel.

The defender argued-The pursuers' case was that there was here a natural boundary, and that there was no need of an artificial line. But the report showed that there was no proper natural boundary, and the reporter was therefore bound to follow the rule of M'Taggart's case, and, as far as was possible in the circumstances, he had given effect to it.

At advising

LORD PRESIDENT-The pursuers, and the defender Mr Murray of Geanies, possess lands on the south shore of the Dornoch Firth, and also grants of salmon fishings in connection with their lands and ex adverso of them. There are no boundaries of the fishings specified in the titles, and there has been no possession which can fix and determine the boundaries of the fishings. The question here therefore is, whether the line claimed by the pursuers in the summons as the boundary of the two fishings is consistent with the grants of the parties to the action ?

The claim of the pursuers is that the boundary between the fishings is the medium filum of the

Fendom Burn and the Inver channel at low water. Now, we have the various facts and circumstances necessary for the determination of the case stated sufficiently in Mr Cunningham's report, and these are comparatively few in number.

The Fendom Burn enters Inver Bay, which is an indentation on the southern shore of the Dornoch Firth, and is almost dry at low water. The nature of the Fendom Burn is thus described by the reporter-"The Fendom Burn is a very small stream running into the head of Inver Bay, the head of the bay being about a mile and a half from the western march of the defender's lands. A short distance further up at South Pitnellies the burn is little else than a mere ditch; it does not appear to the reporter to be in any sense of the word a salmon river. The Fendom Burn from its source to where it enters the bay is about four miles in length following the sinuosities of the stream, and of this length it is tidal for about a mile and a half." It also appears that before it enters Inver Bay, the Fendom Burn does not form the boundary between the lands of the pursuers and the defender. The lands of the defender do not go up that length; between his lands and those of the pursuers there intervene certain lands belonging to Mr M'Leod of Cadboll, and therefore until we come down to Inver Bay the Fendom Burn is no boundary between the lands of the parties.

But it is said that the Fendom Burn after it enters Inver Bay, either it or the channel of the bay itself, however we may call it, is the boundary between the lands and the salmon-fishings of the two parties. In considering this contention we must see what would be the effect of sustaining the declaratory conclusions of the summons, and that effect would be to cut off from the fishings of the defender a large portion of the foreshore which, according to the ordinary meaning of language, lies ex adverso of his lands.

But

The general line of the Fendom Burn and the channel of Inver Bay in its upper part is from south to north, but in the course of its passage through the channel of Inver Bay, through which the Fendom Burn flows and where the water is very largely salt, the chanuel takes a sudden turn, and instead of going from south to north it goes to the east, and so interposes itself between the lands of the defender and the water of the Dornoch Firth. It is said that the medium filum of that course must be the boundary. But to give effect to this would be to cut off a portion of the shore and fishings belonging to the defender, and that is a startling result to begin with. when we come to consider what sort of boundary would thus be fixed down as far as the Firth, it is apparent that it would not be one of a permanent character. It is a matter of very recent experience that the course of the Inver channel has changed very considerably, and to take it as sufficient for the present purpose would be to adopt what would likely turn out to be a shifting boundary. We cannot say whether in the course of time the course of the channel will not have changed in such a way that the stream may find its way by a straight line to the Dornoch Firth. Now, it seems to me that this channel instead of supplying a natural boundary, as the pursuers contend for, would only give a shifting boundary, and one inadequate to fix the rights of parties.

I therefore agree with the conclusion at which

the Lord Ordinary has arrived on the report in this case, and I cannot accept the line proposed by the pursuers as a boundary of a satisfying or permanent kind. In this case we must follow the ordinary course, and proceed to fix the boundary on the same principle as in the case of M Taggart v. M'Douall, 5 Macph. 534. It is true that the reporter has not precisely followed the rule laid down in M'Taggart's case, because he has not laid down a straight line as the average line of the shore? On the contrary, he has laid down a segment of a circle, and has drawn from the centre of that circle a line to the west boundary of the lands of Arboll, which he submits should form the western boundary of the fishings of Arboll. If there had been any interest on the part of the pursuers to challenge that method, I should have been inclined to remit back to the reporter to rectify the line to correspond with the rules already fixed by decision. But the pursuers have really no such interest in the matter. Their interest is to have the line fixed a great deal further to the east, but if they cannot have that, the line as it is will be more favourable to them, and less so to the defender, than one drawn in terms of the more precise rule. The defender does not press this point, and it does not appear to be very material to him to do so. There is nothing in the socalled artificial boundary which the reporter has adopted to interfere with the general rule of law.

The important point here is, that there is nothing in the so-called natural boundary to disturb the application of the general rule which must be followed where there are no boundaries in the titles, and no possession to mark the boundaries.

LORD MURE concured.

LORD ADAM Both parties here have grants of land with the fishings ex adverso, and as I understand it, their lands are on the shore of the Dornoch Firth, but are nowhere contiguous to each other. The inlet of Inver Bay is between the lands of both. It is a primaf acie case for supposing that as the right of fishing is one ex adverso, the boundary line to be drawn is a perpendicular to a straight line that may be fixed as the average line of the shore, and it is not disputed that in this case to some extent that method has been given effect to. It is not disputed by the pursuers that if there is no natural boundary the foreshore is, partly at least, ex adverso of the defender's lands, and if that be so, it cannot be ex adverso of the pursuers' lands at the same time. It cannot be

ex adverso of both. But the pursuers maintained that the march should be taken to be the course of the channel which was a natural boundary. I do not say that the ordinary rule may not bend to the physical features of particular cases. That may quite well be. All I say is that here we have no physical features to prevent the application of the ordinary rule which has been fixed in the case of M Taggart. The burn on which the argument for the pursuers entirely depends is no more than a ditch about 4 feet across, and its course through the sand is nothing but a shifting channel incapable of supplying the desirable element of permanency.