Scottish Court of Session Decisions

This is an action of declarator at the instance of the Duchess of Sutherland against the defenders, who are fishermen residing in Cromarty and its vicinity, to have it found that in virtue of her Grace's titles to the lands and barony of Tarbat, she has the sole and exclusive property in, and right to the mussel-beds, scalps, or fisheries on the shores and sands of Nigg and lands of Milntown in the bay of Cromarty, ex adverso of the lands of the barony of Tarbat. Founding upon her title as being one of barony, and containing a grant of “salmon-fishing and power of killing and catching other fish, as well great as small,” in any part of the said lands, the pursuer further pleads that in respect of immemorial possession of the subjects libelled on the part of herself and her ancestors, she is entitled to exclude the defenders from taking bait from the mussel-beds in question. Contrary usage and the insufficiency of the titles produced to carry the right are averred on the part of the defenders.

The Lord Ordinary has to-day pronounced an interlocutor, finding that the title founded on by the pursuer is not sufficient to give her the exclusive right to the mussel-fisheries in question, or to establish such a right in her by prescriptive possession.

His Lordship observes in his note:—

“The Lord Ordinary does not think that any principle clearly involving the decision of this question has been hitherto authoritatively settled, and he feels it in the existing state of the authorities to be a question of considerable difficulty. There are, however, points having an important bearing upon it, which, though they have been the subject of controversy, may now be taken as fixed.

The exclusive right to mussel-scalps and to take mussels may be conferred by the Crown upon a subject-proprietor of lands. This was decided in the cases of Grant v. Rose, in 1764 (M. 12,801), and Erskine v. Magistrates of Montrose, 7th December 1819 (Hume, 538); and the doctrine has since been recognised. Thus Lord Corehouse, in the case of the Duke of Portland v. Gray, 15th November 1831 ( 11 S. 14), said—‘It is settled law that a right to fish oysters and mussels in the sea from the scalp or bed to which they are attached may be appropriated.’ Mr Bell (Prin., s. 646) says that the ‘right is effectual when expressly granted.’ To this extent the doctrine must be held to be now established in our law, and it is recognised by the Act 10 and 11 Viet., c. 62. But whether it is essential that the grant shall be express, conferring the right to fish mussels eo nomine, and whether even an express grant is sufficient without prescriptive possession, are points which have been controverted, and can hardly be said to have been authoritatively settled.

The Lord Ordinary is also disposed to hold that it must now be received as settled law that ‘the charter of a barony is a good title by prescription to carry salmon fishing.’ The law is so laid down by Mr Bell (Prin., s. 754), in accordance with what appears to be the prevalent opinion. On the other hand, though the opinion of Stair (ii. 3, s. 60–69) upon the point is at least ambiguous, and is followed in an adverse sense by Mackenzie (Inst. ii. 6, 3), the Lord Ordinary thinks it must be held that a charter of barony which does not mention salmon fishing will not carry that right without the aid of prescriptive possession. It remains to be inquired whether the same principles can be applied to the different right to mussel-beds which is now in question.

In the case of Grant v. Rose there was an express grant of mussel-scalps. It may be taken as the leading authority for the proposition that mussel-scalps may be appropriated by express grant; but it can go no further.

In the case of the Duke of Argyle v. Robertson, the grant was in fishing as well in salt as in fresh waters, with no mention of mussels. The Lord Ordinary in that case stated that ‘he was not aware of any authority for holding that such a title would be sufficient to confer an exclusive right to fish for mussels on the shores of the sea, even if it had been followed by exclusive possession for the prescriptive period,’ As possession was not proved, it was unnecessary to determine that point; but the present Lord Ordinary, after going over all the authorities, concurs in the view so expressed by Lord Mackenzie.

As the pursuer's title contains an express grant of fishings, it does not appear to the Lord Ordinary that her case is materially strengthened by the circumstance that it is also a barony title. If fishings had not been mentioned it might have been maintained that a grant of fishings was to be implied in a barony title. In a question as to salmon fishings, a barony title is held to imply a grant of fishings, which, by aid of prescriptive possession, may be construed to include salmon fishings If a barony title can by prescriptive possession support a claim to mussel-scalps which are not mentioned in the grant, the Lord Ordinary does not see any reason which is to him satisfactory why a mere grant of fishings, without erection into a barony, should not have the same effect.

The Lord Ordinary has come to the conclusion that neither a mere grant of fishings, nor a barony title, nor, as in the present case, both combined, constitute a sufficient title to prescribe an exclusive right to mussel-scalps. He thinks that, in regard

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to this question there is a broad distinction in principle between salmon and mussel fishings. Salmon fishing, while not granted out, is the patrimonial property of the Crown, in which the public has no right, either of property or use. The grant by the Crown to a subject merely transfers the property from one exclusive proprietor to another. The right to mussel-scalps on the shore of the sea or a navigable river is in the Crown, not as patrimonial property, but for public uses, like the shore itself. It may, indeed, be alienated to a subject, though the principle on which such alienation is sustained is not plain, and its validity must probably be referred to immemorial usage. But the effect of a grant of mussel-scalps is clearly quite different from that of salmon fishings. It deprives the public of a right which they previously possessed. And such being the nature and consequences of the grant, the Lord Ordinary thinks that not only is it not to be presumed, but that consistently with sound principle it cannot be inferred by construction or established in any way except by a conveyance in express terms. The Crown may have the power to alienate the right from the public, but the exercise of that power, when founded on by the grantee against the public, must, it is thought, have been carried out so as to be complete in itself, without the aid of possession by the grantee to construe it.”