My interest lies in the fact that the issue of ownership of Portlethen Shore took over a major slice of my families life for a few years however, moreover, I am intrigued by a few of the arguments that were brought to the fore during the legal battle and how it links to some of the other matters about Portlethen that I’ve uncovered during my research into other areas.
The boat owners had two points of argument that appeared to be in their favour when contesting the Kenn’s wishes to charge for berthing fees. Firstly it appeared that owners of some of the original fishing cottages had “the right to the use of existing natural harbour” at Portlethen, as this appears to have been stipulated in their house Title Deeds. When this obstacle cropped up, and after seeking legal advice, Ron and Anne immediately stopped pursuing the boat owners in the village for a fee to berth their boats there (there were three boat owners who lived in original fishing cottages in the village) although they continued with their attempts to get fees from the others who lived outside Old Portlethen. We’ll cover the Title Deeds aspect in the latter half of this section.
The second argument proffered by the boat owners was the “White Herring Act, 1770-1771”. This proved to be a bit of a mystery and stymied much of the legal people who were investigating the case, and even those that were involved in the fishing industry were confused by the term “White Herring”.
However someone had done a little bit of homework and discovered (or already knew) that there was a mandate passed in 1771 that related to the herring industry and it was entitled “An Act for the Encouragement of the White Herring Fishery”.
The White Herring Act 1770-1771.
How valid this act would have been in 1988 is not known because it never got put to the test in this particular case. However let us look at some of the details of this act and see how it might have applied to a handful of boat owners in Portlethen in 1988.
“Persons employed in the said fisheries (White Herring) to have the free use of all ports, harbours, &c. in Great Britain and the islands thereto belonging”.
That seems to be quite a watertight statement and one that might have been difficult to argue against, however how many of the 1988 boat owners were actually “employed” in the herring industry? Out of all the boat owners that had boats in Portlethen shore, only two of them used them for fishing on a semi-permanent basis (and no one used it as their primary place of employment). The people who did go fishing from Portlethen shore to earn money used it for creel fishing or for white fishing (cod or haddock) and none of them targeted herring; in fact the only people to land herring at Portlethen since 1980 have been John and Ron Kenn who, on occasion, used a small net to harvest some seasonal fish during the months of July and August.
“And if any person or persons shall presume to demand or receive any dues, sums of money, or other consideration for the use of any ports, harbours, shores, or forelands, within the limits aforesaid, or shall obstruct the fishermen, or other persons employed in the taking and curing of fish, or drying their nets, in the use of the same, every person so offending shall, for every offence, forfeit the sum of one hundred pounds, to be recovered and levied in manner herein-after directed."
Wow, all of these “herring fishers” owning boats on the shore being hampered in their business of making an honest living were entitled to compensation. Maybe they should have made counter claims on the basis of harassment and they would be entitled to more money than the Kenn’s were seeking for berthing dues in the first place? Not only should they be entitled to free use of the shore but they should be paid for any inconvenience caused to them whilst working on their herring endeavours at the same time?
I have absolutely no doubt that the boat owners knew they were clutching at straws when they produced this ancient law to back up their entitlement to use the shore free gratis – none of them caught herring, fewer of them would know how to catch a herring and one or two of them wouldn’t even recognise a herring. Any case that the boat owners might have had, based on this particular law, was flimsy to say the least. Therefore I tentatively suggest the “White Herring Act, 1770-1771” should be superseded by the more aptly named “Red Herring Act, 1988”.
The Red Herring Act 1988 - My own frivolous take on an alternative law that consolidates and compares the old with the new, and the genuine with the potentially bogus.
Let us now look at the other argument that appeared to be in the boat owners’ favour, or at least, in the favour of those owners who actually lived in one of the original fishing cottages within the village. This was “the right to the use of existing natural harbour” that was, apparently, written into their Title Deeds.
I have no argument against such a phrase existing within the Deeds of many house owners in Portlethen Village, possibly even those who have never owned, berthed or wanted a boat in Portlethen shore. I can say that this phrase does not exist within my own parents Deeds (and they also own an original fishing cottage) and these same rights to others are not specified on Ron Kenn’s Deeds for the bothy.
The phrase “the right to the use of existing natural harbour” is quite vague as it doesn’t specify what those rights might entail. Free use? Berthing within the shore? Berthing on the braes? Use of the shore but no berthing right? The right to land fish? Access to the shore? Any costs associated with upkeep? Any reference to existing shore owner(s)? There are so many interpretations of what this phrase could mean that you could argue a case for or against a boat owner. It was for that reason that Ron and Anne did not pursue payments from those boat owners who lived in an old fishing cottage within the village – it was just too vague to argue against.
It may well be that some villagers that live in the old fishing cottages DO have the rights to the use of the shore, they might be entitled to free use, they may have these rights for perpetuity, it all depends what’s written on their Deeds and how any law court would interpret them. One thing I can say is that these rights did NOT exist in their current form in years gone by.
One of the local press reports in 1988 had stated “The local ‘laird’ has ended centuries of tradition by imposing a fee for the privilege of using the natural harbour at the former fishing hamlet of Old Portlethen, near Aberdeen”.
Despite the romanticism that this comment might have evoked in respect to a lost heritage the fact remains that this particular passage was incorrect – there was no such a thing as centuries of tradition that allowed local fishermen to come and go as they pleased and to use Portlethen shore freely, in fact the very opposite was true. Local fishermen used the shore but for that privilege they were liable to pay a fee to the local landowner.
We’ll travel back to the beginning of the 19th century, using the period when the estate owner was Sir William Johnston. Johnston was entitled to charge people who made a livelihood whilst living on his land and this was a way of life for the people living in Old Portlethen at this time.
The villagers were charged individually for what they were due to the landowner and under the heading “Possessions and Rental of Fishtown of Portlethen, Separately, each man by himself”, we can see a breakdown of the landowners accounts which itemises each individual cost due to him from the villagers. We can see in addition to their house and their land they had to stump up for the use of the shore and the rights to harvest peat moss locally too. I’ve even see documents where charges were made for the collection of kelp at low tide.
From this account, which is from around 1810, we can see that local fishing villagers in Portlethen such as Buckie Andrew, the Provost, Mighty Joseph and Little Geordie all paid a total of twelve shillings and sixpence annually for the privilege of using the shore, and it appears that they paid this fee regardless if they owned a boat or not. If they used the shore they paid a fee. They also paid the same money again for the rights to harvest the peat moss, which I’ll cover briefly at the end of this section.
The cost of House, Moss, Shore and Land at Portlethen Village circa 1810.
The names of the villagers that paid these charges circa 1810.
So how much would twelve shillings and sixpence from 1810 be worth in comparative value to 1988? According to the Measuringworth website, 12/6 from 1810 would be the equivalent of £164.39 in 1988 based on an average earnings index. That would have been quite a sum of money for the local inhabitants however fishing was their livelihood and they would have had no option but to pay this charge otherwise they would have been unable to go to sea.
Ron and Anne Kenn were hardly setting a precedent when it came to exploring berthing fees at Portlethen Shore; in fact, in terms of relative values the charges that they were looking to introduce were nearly half of those which the fishers of 1810 were being charged.
The practise of charging local fishing villagers “Possessions and Rentals” would have continued well into the 19th century, certainly after Johnston sold the land and Ernest Gammell becoming landowner. Although it appears that this practise had ceased by the arrival of the 20th century it is difficult to pinpoint what terms of ownership superseded the charges for “Possessions and Rentals”.
It is possible, that with the downturn of the white fishing industry towards the end of the 19th century it was no longer viable to make a living out of the sea and have to pay for the privilege of doing so at the same time, and as a result the landowner may have dropped the shore charges in return for some other benefit, it’s also possible that the landowner dropped the charges for no benefit whatsoever. It’s even possible that as the grip of landowners loosened at the turn into the twentieth century some villagers, who were then becoming home owners, may have had their existing “rights to the shore” written into their new deeds but at no cost to themselves “for all time coming”.
Unfortunately I can only guess at how the wheels of change worked to the villagers advantage but change it did and instead of paying for the privilege of using the shore the newer breed of 20th century fishermen appeared to have managed to manoeuvre or negotiate themselves into a position whereby paying to use the shore became a thing of the past.
Finally, the rights to harvest peat moss in Portlethen. This has nothing to do with my family whatsoever however the “right to the use of existing natural harbour” appears to be inextricably linked to the “right of access to harvest peat from the moss at Portlethen”. Over the years I have heard both of these terms linked to the Title Deeds of the original fishing cottages in Old Portlethen although, as you can see, it is very difficult to confirm if they actual exist or if they take the form of a local myth.
What is interesting is that there would appear to have been less of a furore when the major local building consortiums began to buy up the land at Portlethen Moss to create housing estates. I don’t recall the same outcry (although I could be mistaken) about local villagers losing something that was rightfully theirs. Maybe local villagers didn’t see the same value in the commodity of peat compared to the use of the shore or maybe it was going to be too much of a battle to take on these large building companies? Whatever the reason, in respect to the rights to harvest peat moss in Portlethen, I can’t recall seeing the same battle cry - “We’ll see you in court!” - appearing in the local press against local building consortiums.