Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Inglis of Cramond, v. Archibald Primrose of Dalmeny
1693 and
1695.
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1693. February I7.—Archibald Primrose of Dalmeny, and Sir John Inglis of Cramond, having mutual declarators of their rights of fishing in the water of Cramond; the Lords allowed each of them a joint probation, how they had possessed, and if they had debarred or interrupted one another; and laid small weight on Cramond's letter, as being only epistola officiosa, writ in a compliment by a young man, who knew not then his own right; and that letters were not habilis modus, either to give or take away real rights.
Vol. I. Page 562.
1695. February 1.—The Lords advised the mutual declarators of the right and privilege of fishing on the water of Cramond, pursued by Alexander Primrose of Dalmeny, and Sir John Inglis of Cramond. The Lords thought Dalmeny's rights were both more ancient and special than Cramond's, and that his possession was more pregnantly proven. But, in regard the river was the march between the shires of Linlithgow and Midlothian, and that both their infeftments bore only the fishings lying in their respective shires; therefore, the Lords found each of them had a right of fishing on their own side of the water, to the middle stream; and that they were compatible, and taxed or the restrictive boundings of the two shires; and that Dalmeny had not the sole right of fishing, exclusive of Cramond, as he contended, nor had he prescribed it by forty years' possession; but that there had been a promiscuous fishing, though Dalmeny's author's acts of possession were stronger, some of his witnesses deponing they knew Barnbougle debar all others, and had the fishing set for fifty or sixty merks yearly; and that, thougli others fished there, it was precarious, and by tolerance. But the Lords thought it more equal to divide it, in manner foresaid.
Cramond had produced an older right, when the cause was first reported, and the act granted; but it was lost and fallen by,—viz. a charter of erection from James II. to Alexander Lauder, then Bishop of Dunkeld, in 1454, erecting the lands of Cramond, Aberlady, &c. into a barony, and gifting them to the see of Dunkeld; and which was proven by Spotiswood's History, page 100. But histories are not authentic and probative against men's rights; though, in re antiqua, et in ambiguis, they may be adduced as adminicles, even as we use marchstones and sepulchral inscriptions. On the 28th current, Dalmeny presented an appeal against this interlocutor, because the Lords had found his right of fishing was not exclusive of Sir John's.
