What Title requisite in the Positive Prescription.
Subject_3 SECT. VI.
Title requisite to carry a right to Salmon Fishing.
Fullerton v. Earl of Eglinton
Date: 7 February 1672 Case No. No 109.
Click here to view a pdf copy of this documet : PDF Copy
George Fullerton being infeft in the lands of Dreghorn, with a novodamus containing salmon fishing in the water of Irving, pursues a declarator of his right against the Earl of Eglinton, who alleged, no declarator, because he stood infeft in the barony of Roberton cum piscationibus in aqua de Irving, clad with immemorial possession. The pursuer answered, Non relevat, because salmon fishing being inter regalia cannot be be conveyed unless it be expressed. It was answered, That the general denomination of fishing in the water of Irving in the tenendas, though it could not have been a sufficient right alone, yet it is titulus præscriptionis, the lands being in baronia, which is nomen universitatis, and is perfected with 40 years uninterrupted possession.
Which the Lords found relevant, and assoilzied.
Fol. Dic. v. 2. 104. Stair, v. 2. 64.*** Gosford reports this case:
In a declarator pursued at the said George's instance, of his right in the salmon fishing in the water of Irving, as being infeft in the lands of Dreghorn cum piscatione salmonum, it was alleged for the Earl of Eglinton, That he was infeft in the barony of Roberton cum piscationibus, and by virtue thereof, had been in immemorial possession of salmon fishing in both the sides of the water which included the lands of Dreghorn. It was replied, Salmon fishing being inter regalia did require a special sasine, and was not comprehended under the name of barony.
The Lords did sustain the defence notwithstanding of the reply, and found an infeftment in baronia cum piscationibus to be a sufficient title to acquire a right of salmon fishing by 40 years possession.
