What Title requisite in the Positive Prescription.
Subject_3 SECT. VI.
Title requisite to carry a right to Salmon Fishing.
The Heritors of the Fishing of Don v. The Town of Aberdeen and Their Feuers
Date: 26 January 1665 Case No. No 107.
A charter with a general dispositive clause cum piscationibus with 40 years possession was sustained, to give right to a salmon fishing.
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The Heritors having salmon fishing in the water of Don above Aberdeen, pursue a declarator of their right of salmon fishing, and that they ought to be free of the prejudice sustained by the cruives built at Aberdeen, and insist upon these particulars: That the Town of Aberdeen hath no right to cruives, but is only infeft cum piscationibus et piscariis, and within such a bounds which cannot carry salmon fishing, being inter regalia, much less cruives. It was answered, That such a clause granted to an incorporation or community, or being in baronia with immemorial possession a sufficient; and that there is a later right to the Town with power of crulves within the said bounds uti possidebantur. It was answered, Thus the pureaets had their cruives established before that time.
The Lords found the Town of Aberdeen's title to cruives, albeit conceived, but conform to the first clause, with long possession, was sufficient.
2dly, The pursuers insisted against the transporting of the cruives from one place to another, which they could not do, cruives being a servitude strictissimi juris; as a way being once chosen and fixed cannot be changed, especially in respect of the clause uti possidebantur. It was answered, That there being a bounds expressed, and mentioning cruives to have been there before, the meaning can be no other than that these cruives should be removed, if inundations alter the present stance, and uti possidebantur is only understood of the way of building as before.
The Lords found, by the said clause, That the cruives might be transplanted within the bounds having but one cruive-dyke, and the former dyke demolished, so that the fishings above be in no worse condition than formerly.
3dly, They insisted for the widness of the hecks, whereanent it was alleged, That by an act of Parliament King James IV., hecks were appointed to be five inches wide, which is confirmed by an act 1661. It was answered, That the act King James IV. did relate to a former act of King David's, which was not to be found; but there were two acts by King James III. relating to the old act by King Alexander, which was found to bear three inches; so that the act King James IV. though posterior, being but relative, and the act related not known:
The Lords found it was a mistake in the writing of the act; and that, in the stead of King David, it should have expressed King Alexander; and so borne only three inches, seeing otherwise five inches would let the greatest part of salmon pass.
4thly, They insisted for the Saturday's slap, and craved, that on Saturday the whole cruives might stand open, so that fish might be taken thereby, according to the old statute of King Alexander, from the even sun on Saturday till the sun rising on Monday.
The Lords found that the Saturday's slap ought to be of the whole cruives, and that from Saturday at six o'clock till Monday at sun rising.
5thly, They insisted for the height of the cruives, and alleged, That the same ought to be no higher than the water in its ordinary course, neither the time of the flood nor of the drought; otherwise they might build the same as high as they pleased, and that it ought not to be built perpendicular, which will hinder the salmons up-coming, but sloping from the ground to the top.
The Lords, considering that there was no particular law as to the height of cruives, and these parties had suffered the other to enjoy the cruives above 40 years, that therefore the same should be uti possidebantur no higher than the old cruives were.
6thly, They insisted for the liberty of the middle stream beside and attour Saturday's slap, which is specially contained in the acts of Parliament of King, Alexander and King James III. and IV., and is renewed in the late act of Parliament of King Charles II, the least quantity of which bears, “That five foot of the middle stream mast be constantly free.
It was answered, 1mo, That the old acts anent the middle stream were wholly in desuetude, and were in effect derogate by the act of King James VI. anent cruives, which ordains the Saturday's slap to be kept, but mentions not the middle stream; and, as for the late act of Parliament, it was impetrate by these same parties, and never passed in these articles or noticed by the Parliament but as an ordinary confirmation. It was answered, That there was no prescription of public rights against standing laws, and albeit the desuetude of such laws could be effectual, yet the late law revives and confirms them all per expressum, which is not a particular confirmation, bearing mention of any particular party or particular right, but as a general confirmation of general laws anent all the cruives in Scotland.
The Lords, considering that the middle stream has been long in desuetude, and that this late ratification was passed without notice; therefore, before answer, they ordained the parties to adduce witnesses, whether the middle stream was accustomed in any cruives in Scotland, and whether the same would be beneficial or hurtful to the salmon fishing of the kingdom in general, and whether it were destructive to the cruives in common; and likewise, they gave commission to examine the witnesses hino inde, whether their new cruives were built upon challes, or they otherwise built the former cruives to the prejudice of the fishing above in the water. See Salmon Fishing.
