Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.

What Title requisite to the Prescription of annual Duties and Prestations?

The Earl of Murray
v.
The Feuars of the Water of Ness, Marquis of Huntly, and Town of Inverness

Date: 13 December 1677
Case No. No 151.

Salmon-fishing for some days yearly, found constituted by infeftment of a Sheriff, and forty years possession, though the office bore only emoluments in general.

Click here to view a pdf copy of this documet : PDF Copy

The Earl of Murray pursues a declarator against the feuars having fishing on the Water of Ness, “That he and his predecessors, Sheriffs of Inverness, have right to three days fishing on the Water of Ness, under the bridge, every summers noon, as being a casuality of the Sheriff's office, wherein they have been in possession past memory, at the least 40 years.” The defenders having raised a double poinding against the pursuer, and the Marquis of Huntly, do allege absolvitor, because they are infeft in their lands, “with salmon-fishing on the Water of Ness,” without any such burden; neither hath the Sheriff any infeftment bearing this per expressum, but only “the office of Sheriffship, with the emoluments and casualties thereto belonging,” and no right can extend to salmon-fishing which is inter regalia, unless it be expressed, at least be comprehended in the baronia.

The Lords repelled the defence, and sustained the pursuer's title, and the declarator upon 40 years possession by him and preceding Sheriffs, and found that this was but a servitude upon the fishing, and might be constituted by long, possession, as Sheriff-gloves, and other casualties of offices are.

The defenders did then allege, That they could be liable but in single payment, in case the possession were proved, and did allege interruption of the pursuer, and preceding Sheriffs, their possession. It was alleged for the Town of Inverness, That they are Sheriffs within their liberties, within which this fishing is, and therefore it must belong to them, as being only Sheriffs there. It was alleged for the Marquis of Huntly, that his predecessors were heritable Sheriffs of Inverness, as also heritable Constables of the Castle of Inverness, and that they enjoyed this fishing, not as Sheriffs, but as Constables, and therefore, when the King had bought the Sheriffship, yet his predecessors continued this fishing, and have been still in possession thereof, at least have interrupted the pursuer's possession.

The Lords admitted the pursuer's possession to his probation as Sheriff, and interruptions to the defenders and the Marquis of Huntly's probation, and under what title the possession of either was reputed to be; and found this casualty might be constituted by long possession, although it were within the liberties of the town.

Fol. Dic. v. 2. 110. Stair, v. 2. p. 579.