THE TIREE COTTAR CASE

A case was tried in Oban Sheriff Court on 15 November 1889 pitting the Duke of Argyll against the cottar Charles MacLean, who had built a small house on the Heanish common grazing without permission. MacLean claimed that he was entitled to build the house because he was a fisherman. He lost. But the details of the case throw up some intruiging points of law, and provide a new perspective on emigration. The case also shines a light on what it was like to be poor in 1889, as you tried to fight against one of the largest landowners in Scotland.

‘This is an action to have the defender removed from a hut [small house] which he had erected without the [Duke’s] consent on part of the common of Heanish near the shore. The defence is that the right to erect this hut is conferred by [the White Herring Fisheries Act of 1771] which is still in force [it was repealed in 2009], and enacts for the encouragement of the White Herring Fishery that, “all and every person or persons employed in the said fisheries may fish in any part of the British seas, and shall have, and exercise, the free use of all ports, harbours, shores, and forelands, in Great Britain or islands belonging to the Crown of Great Britain, below the highest water mark, and for the space of one hundred yards [inland], of any waste or uncultivated lands … for landing their nets, casks, and other materials, utensils and stores, and for erecting tents, huts and stages, and for the landing, pickling, curing and reloading their fish, and in drying their nets without paying any foreland or other dues or any other sum or sums of money or other consideration whatsoever for such liberty.” [This law presumably allowed fishermen from Aberdeen to set up a fishing station at The Green in Kilmoluaig without the need for permission from the estate.]

‘ln order to succeed in this defence, it was necessary that the defender should prove that he is a person employed in the fisheries referred to in the Act, and also that the hut is erected, and used for purposes connected with the said fisheries; and further that the ground on which it is built is waste or uncultivated.

‘[Charles MacLean] is about seventy years of age. [He is likely to have been born in 1819 in Scarinish. His father was Hector and mother Christina.] He went to Australia forty years ago when he was thirty. He was there engaged first at farm work and then at the diggings. After that he was engaged with a surveying party, and afterwards he was one of the crew of a schooner. He was about twenty-four years in Australia, and on his return to Tiree he rented a house from the [Duke] at Heanish, in which he lived for three months, and then went back to Australia. He was there for about eighteen months, and again returned to Heanish and applied for the house he had formerly there. In about a year he got it, staying in the meantime with a widowed sister at Scarinish. He remained in that house until last Whitsunday, when he gave it up of his own accord, and because he could not afford to pay the rent, as is shewn by his letter which is produced. Another cottage was then offered to him at a rent of £1, which he refused, and in May last built the hut referred to, and went to live in it with his wife and family. It was their sole residence for the next three months, and at last his wife got into bad health, and he had to remove with his family to Scarinish, where he now lives in lodgings, but he occupies the hut as a store. From this history, it will be seen that the defender’s real object in building this hut was not that it might be used solely for the purpose of, and in connection with, the fishery as contemplated by the Act, but that he might live in it rent free as a squatter on the [Duke’s] lands. He has a boat, and does occasionally fish, and has cured and sold fish, as is the case with most of the inhabitants living near the shore in Tiree; but he does not live by his fishing or prosecute it in any systematic way … He had no herring nets till about six months ago. His boat was not registered until [the case was about to start], and the first time he went to fish for herring was about eight days before the [case started], when he went out with the witnesses John Sinclair and Donald MacKinnon to a place where he had never seen herring fished for or nets set before, and, as was to be expected, no fish was caught.

‘It would therefore be going much farther than is justified by the evidence to describe the defender as a person employed in the said fisheries, and it is impossible to avoid coming to the conclusion that all he has done in the way of herring fishing was with a view to the defence in this action, and to give some appearance of plausibility to the pretext that he has erected this hut under the powers contained in the statute.

‘Again, if the defender claims the right to the use of land belonging to the [Duke] on account of its being waste or uncultivated ground, it would be expected that he should produce evidence on this point; but there is nothing beyond his own statement that, “the hut is erected on level ground alongside the rock. It is not cultivated land, and never was cultivated.” The common of Heanish, on which the hut is built, is so far uncultivated that it is only used for grazing; but important information as to the nature of the ground is got from the [Duke’s] witnesses. Mr MacDiarmid [the factor] says that “the hut is built on ground under good grass on the common of Heanish, and has good grass surrounding it.” … John MacDonald, one of the Heanish tenants, says, “the hut is built on a good piece of grass on the common. It is on a dry part of the common, which is on that account good for wintering sheep.” … We must refuse to apply the term “waste or uncultivated” to it, and it must be held that the [Duke] is entitled to be protected in his property.’ (Oban Times and Argyllshire Advertiser, 16 November 1889, p. 5)

Dr John Holliday