Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PART AND PERTINENT.
Subject_3 The right of trout fishing understood as conveyed under the description of part and pertinent, but may be expressly reserved from the grant, or transferred to a third party.

Robert Carmichael and Messrs Stirlings
v.
Sir James Colquhoun

Date: 16 November 1787

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[Fac. Coll. X. 10; Dict. 9645.]

Justice-Clerk. Salmon fishings require grants: trout fishings go along with a grant of the lands as part and pertinent. It has been said that trouts were res nullius. In one sense they may be said cedere occupanti; for, if I have a right to lands, it does not follow that I have a right to trouts swimming in the river; but I have a right to take and kill them. This right may be renounced, or it may be acquired by others. The Crown has no right to trout fishings any more than it has to hunting or fowling. The clause, aliorum piscium, is unmeaning. It could give no right which would not have attended property although not expressed. The salmon fishing, however, must be preserved, and, together with salmon, he may catch trout. In close time Sir James Colquhoun could not catch trout; but the difficulty lies here, how to accommodate the right of the parties so as not to interfere with the salmon-fishing.

Monboddo. I know nothing in this country which is res nullius excepting the air. Every man may use that, but few do. I cannot understand a grant aliorum piscium to mean nothing. The question is, whether Sir James Colquhoun has acquired a right to the fishing of trouts or lost it? or whether another has acquired it? In burns there may be a right, as part and pertinent: not so in rivers; there must there be a grant.

Henderland. The Crown has an universal right in land and in water; and, in making grants, it may reserve the fishings or convey them. If Mr Stirling or his authors have possessed trout fishings, the right will be good. if Sir James Colquhoun has only fished for trout at particular times, he can go no farther: if he has exercised it at all times, he has preserved his right.

Swinton. Fishing is res nullius. The right of fishing is properly by grant.

Eskgrove. Lands and fishings are understood to be the right of the Crown originally. Grants from the Crown cum piscationibus carry nothing, unless explained by possession. Such a grant might imply that the Crown was not to resume it. The Crown might interrupt the fishing of salmon without grant; but a subject, having a right, cannot interrupt beyond the limits of his own grant. Heritors may fish trouts ex adverso of their own lands, but I doubt whether they can interrupt those who may choose to fish from a boat. Whenever a man can exclude another from a bank, he may so far exclude him from fishing. If Sir James Colquhoun has been in possession of the fishing of trouts, he may maintain his right.

President. In salmon-fishings the Crown may grant the privilege of drawing nets on a neighbour's banks; but I never heard of such a privilege in trout-fishings. Sir James Colquhoun has a clear right as to salmon-fishings, and to such fish as may be caught along with the salmon. The other heritors may fish ex adverso of their grounds, but so as not to hurt the salmon-fishings.

Braxfield. The exclusive right as to salmon-fishing is in Sir James Col-quholin. As to trout-fishing, from the nature of property, the heritor ex adverso has that right; and no person can do any thing to interrupt it. Fishings may be separated from lands: then the Crown will have a right to all fishings. But if the Crown feus out, either cum piscationibus or with parts and pertinents, this will carry inferior fishings. A grant aliorum piscium may be effectual by prescription, which is good in a grant a non domino as well as a vero domino. Mr Carmichael has his right from the authors of Sir James Colquhoun: his right is to trout-fishings exclusively. As to Messrs Stirlings, the disposition to them with parts and pertinents will carry trout-fishing. Sir James Colquhoun might have acquired a right to trout-fishing by prescription; but he has not. He has been wont to catch trouts, but not to exercise a trout-fishing: he is not entitled to catch trouts with a net appropriated to that purpose.

On the 16th November 1787, “The Lords, in respect that Sir James Colquhoun's right to the salmon-fishings is not disputed in this cause, found that he has right to the salmon-fishing in the river Leven, where it runs through the property of the pursuers: found that the pursuers have a right to fish trouts opposite to their respective properties, with trout-rods or hand-nets, but not with net or coble, or in any other way that may be prejudicial to the salmon-fishing belonging to Sir James Colquhoun.” And, 5th December 1787, they “adhered, excepting as to hand-nets,” as to which they appointed the petition to be seen: so that the general point is fixed.

Act. J. Morthland, H. Erskine, Ilay Campbell. Alt. Wm. Baillie, G. Ferguson, R. Dundas. Reporter, Braxfield.