What Title requisite in the Positive Prescription.
Subject_3 SECT. VI.
Title requisite to carry a right to Salmon Fishing.
Earl of Southesk v. Lady Earlshall
Date: 22 February 1667 Case No. No 108.
A clause in the dispositive part of a charter from the Crown cum privilegio piseendi in aqua, does not constitute right to a salmon fishing, unless the person to whom it was granted had fished for salmon 40 years without interruption.
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The Earl of Southesk being infeft in certain lands upon the water of Eden and the salmon fishing, pursues declarator that Earlshall hath no right thereto. The pursuer produces an infeftment in anno 1558, in which, after the land is disponed, there follows a clause, “Una cum salmonum in piscationibus in aqua de Eden,” with a novodamus. It was alleged for the defender, That he hath the like declarator against the pursuer, which he repeats by way of defence, and produces an infeftment of the same year of God, bearing, in the dispositive clause, “Una cum privilegio piscandi in aqua de Eden solito et consuet,” and alleges, That by virtue thereof, he had good right to fish in the water, and that he had been in immemorial possession by virtue thereof. It was answered, first, That this clause cannot carry salmon fishing, which is inter regalia, and must be specially disponed, 2dly, The defender's right, though in the same year of God, is yet some months posterior to the pursuer's; and as to the defender's immemorial possession, it cannot consist nor give prescription without a sufficient title by infeftment, and it hath been frequently interrupted by the pursuer. It was answered by the defender, That he and the pursuer, and the Laird of Reiris having two-thirds of one barony all lying run-ridge, the King's granting the pursuer his third cum salmonum piscationibus, added to the lands as a pendicle thereof, it cannot be understood exclusive of the other two-third parts of the same barony, likeas Reiris hath the same clause in his infeftment; and albeit Earlshall's clause be not so express, yet it not being the common clause in the tenendas cum piscationibus, but in the dispositive clause of this special tenor, it must needs comprehend salmon fishing, or otherwise it would have no effect, verba autem interpretanda sunt cum effectu, and albeit the clause were dubious, yet it hath been in long possession, immemorial, which sufficiently instructs the accustomed fishing to have been before the same. 2dly, As to the anteriority of the pursuer's infeftment, the defender offers to prove that his predecessor was infeft before him, with this clause that is in his own infeftment produced. 3dly, Albeit the defender's right were posterior, yet it is sufficient to give him a joint right to the salmon fishing with the pursuer, because he offers him to prove that he hath 40 years peaceably possessed the salmon fishing as the pursuer hath, whenever they were in the river.
The Lords found that the clause in the defender's infeftment, albeit it had been prior to the pursuer's, could not give right to the salmon fishing in prejudice of the pursuer's express infeftment of salmon fishing, unless the defender's infeftment had been clad with immemorial and 40 years peaceable possession, which being so alleged by the defender, the pursuer offered to prove interruption, and therefore a term was granted to either party to prove.
