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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Lord Advocate v. The Earl of Seafield [1866] ScotLR 2_16_2 (20 March 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0016_2.html
Cite as: [1866] ScotLR 2_16_2, [1866] SLR 2_16_2
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SCOTTISH_SLR_Court_of_Session
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Court of Session Outer House.
(Before
v.
Facts:
Held (per Lord Ormidale and acquiesced in) that a proprietor with a general clause of fishings in his title, under which he had fished for salmon for more than forty years, had a prescriptive right of salmon fishing.
This is an action at the instance of the Lord Advocate, as representing the Commissioners of Woods and Forests, against the Earl of Seafield; and the conclusions of the action are to have it found and declared that the salmon fishing round the coast of Scotland, and in its bays and estuaries, belong jure coronae to the Crown, and form part of its hereditary revenues; and in particular that the salmon fishing ex adverso of the Earl of Seafield's lands in the county of Banff, extending along the sea-coast for twenty miles, is part of the patrimonial property of the Crown. It is admitted that Lord Seafield has no express grant of salmon fishings, but he has a general clause of fishings, and he maintains that upon that title he can prescribe a right, and that he has done so by possession for forty years. His Lordship holds his lands under the two baronies of Ogilvie and Bogue, and the fishings during the alleged period have been carried on at three different stations. A proof of possession was allowed, and a long debate
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followed upon it. A considerable part of the discussion also turned upon the sufficiency of the defender's statements, the pursuer maintaining that it was nowhere said that the baronies of Ogilvie and Boyne had ever been united. The pursuer admitted the import of the proof to be, to show that fishing had been carried on at the station of Straline for upwards of forty years, but contended that there was no evidence from which it appeared that that point was embraced within any of the defender's baronies. A map was produced by the defender, and admitted by the pursuer, in which the station in question was included as lying within the defender's lands. The following statements were made by the defender:—1. The defender's lands extended along the sea coast of Banffshire from the Burnmouth of Rathven, near Buckie, to the Burnmouth of Boyndie, near Banff, a distance of about twenty miles. The defender's said lands form part of the lands and barony of Ogilvie, which were erected into a barony by Crown charter in 1698, and of the lands and barony of Boyne. Of both of these baronies the defender is proprietor, and he holds the same under a regular series of titles flowing from the Crown. 2. The said baronies of Ogilvie and Boyne, belonging to the defender, comprehend a variety of lands united into a barony by Crown charter. These lands, so far as they adjoin the sea, are held by the defender under the Crown, with grants of the fishings connected therewith. In particular, the Crown Charter of Resignation, written to the Seal, sealed and registered 1st May 1750, in favour of James Lord Deskford, afterwards Earl of Find-later and Seafield, the defender's ancestor, contains a grant by the Crown in favour of the said James Earl of Findlater and Seafield, and his heirs and successors therein mentioned, of, inter alia, All and Whole the following lands and fishings. (Then follows a description of the lands, containing general clauses of fishings applicable to various portions of the barony lands.) The said charter of 1750 was produced by the defender, and contains a clause of union of the two baronies of Ogilvie and Boyne. The defender also produced all his various titles and infeftment since that date, showing that the description of lands in the charter is the same as that given in the succeeding titles.
The Lord Advocate, the Solicitor-General, and T. Ivory, for the Crown, argued—It is undeniable that the proof establishes that the right of salmon fishing has been exercised by the defender during the prescriptive period at the station of Straline. If therefore the defender can show that that station is situated within any of his baronies, that will establish his right over the whole barony in which it is situated, because it is a proposition in law which cannot be controverted, that possession in any part of the barony will cover the whole. But it does not appear that the station is within any of the baronies, and the defender has led no evidence to that effect. Further, he has not averred that his two baronies were at any time joined; on the contrary, the case which he has disclosed on record is, that the two baronies are distinct from one another. And even assuming that they were once joined, there is no evidence that they continued so during the prescriptive period. There is no evidence of continuous possession at the station of Cullen, in the barony of Ogilvie, or at Boyne, in the barony of Boyne, and therefore the defender's right is not established there, unless he can show, as to the former, that Straline is in the barony of Ogilvie; and fails absolutely as to the latter, because the right in one barony will not constitute the right in another. The defender's case depends entirely upon possession, because a barony title, even with a clause of fishings, does not per se carry a right of salmon fishing which belongs to the Crown. Neither does a barony title, with a clause of “parts and pertinents,” carry the right without possession. Erskine, 2, 6, 18 and 1 and 3; Bell's Prin., 5th edit., sec. 754; Duff's Feudal Conveyancing, p. 63; Menzies' Convey., 3d edit., pp. 545, 546, and 548.
Gordon, Gifford, and W. A. Brown, for defender, answered—A fair construction of the defender's averments does not exclude the reading upon which he maintains his case, that he holds his lands under one united barony, and not two; he is, therefore, entitled, in order to explain his averments, to refer to the Crown charter of 1750, which is produced in process, and that shows that the barony of Boyne, after being disunited from every other, was joined to the barony of Ogilvie. The defender has produced all his titles since the date of the charter, and the description of lands is in all identically the same. It is not open to the pursuer to maintain that the fishing station of Straline is not within the defender's lands, because he has admitted the accuracy of a map produced in process which geographically explains the lands of the defender, referred to in his first statement of facts as lying within certain points within which that station is embraced. Straline, accordingly, is either in the barony of Boyne or the barony of Ogilvie; and it is immaterial for the defender's case in which it is, because the Crown charter of 1750 establishes that the baronies were then united, and the pursuer has conceded that possession in one part of a barony will establish the right over the whole, and at the same time conceded, as matter of fact, that fishing has been exercised at Straline during the prescriptive period. In regard to the other two stations, the proof establishes that there has been continuous possession for at least thirty-four years back from the date of the summons. There is also evidence of possession by the defender at a much more remote period; and there being no evidence of interruption in the interval, the rule applies, extremis probatis media presumuntur. Even the possession for thirty-four years will give the right; because if there is no evidence of interruption before that period, and that is as far back as the witnesses can go, the law presumes that the right was exercised during the previous portion of the necessary prescriptive period. Further, a barony title without possession will carry salmon fishings. Stair, 2, 3, 45 and 61; Kelly v. Ramsay, Hailes' Rep., vol. ii., p. 722; Rogers v. Harvie, July 8, 1828, 3 W. & S. 251; Magistrates of Elgin v. Robertson and Grigor, January 17, 1862, 24 D. 301.
The
“ Edinburgh, 20 th March 1866.—The Lord Ordinary having heard counsel for the parties, and considered the argument, the record, proof, and productions, Finds, as matters of fact, that the lands in question, belonging to the defender in the county of Banff, are now, and have for a period prior to 1750 and since, been held by him and his authors, under a regular series of titles flowing from the Crown, with parts and pertinents, and also with fishings; that said lands and others form
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(Signed) R. Macfarlane.”
“ Note.—The state of the titles by which the defender's lands are and have been held by him and his authors is set out in the 1st and 2d articles of his statement of facts, both of which are admitted by the pursuer. Keeping in view the statement thus admitted, as illustrated and explained by the title-deeds themselves in process, there seems no substantial ground to question the findings in the interlocutor bearing on that subject.
It was suggested, however, at the debate, on the part of the pursuer, that the defender did not distinctly aver that the two baronies of Ogilvie and Boyne had ever been united, or if united, that they have for the requisite period been so held with the salmon fishings ex adverso of them by the defender and his authors. The defender's statement of facts is certainly neither so full nor so explicit as it might have been, but the Lord Ordinary cannot think that, looking to the whole statement in connection with the titles produced, there is any such defect as to exclude the defence, and entitle the pursuer, who is in petitorio and bound to make out his case to prevail.
The controversy, as the Lord Ordinary views it, does not raise any questions of pleading, or of law, about which serious difficulty can be entertained, but a question of fact merely, depending for its solution on the proof which has been adduced by the parties.
The real question—and it is entirely one of fact—is, whether the defender and his authors have possessed and enjoyed for the prescriptive period the salmon fishings ex adverso of the lands in question, or any part of them.
It was conceded at the debate, and is at any rate clearly proved, that in point of fact the defender and his authors have for the prescriptive period possessed and enjoyed what is called and known as the ‘Straline fishing,’ or, in other words, the salmon fishings ex adverso of that part of the defender's lands denoted on the plan as the ‘Well of Stralind or Straline.’ It will be observed that on page 40 of the printed proof it is recorded that the counsel for the pursuer stated ‘he admitted that salmon fishing had been carried on continuously at Straline station since the year 1829,’ and the proof, especially the uncontradicted testimony of the defender's witnesses, George Patterson, John Smith, George Rose, Peter Fraser, and Miss Mary Munro Innes, shows conclusively that this portion of the disputed fishings has been possessed and enjoyed by the defender and his authors for greatly more than the prescriptive period. The evidence of Miss Innes is, indeed, complete in itself to this effect.
It was observed, however, for the pursuer at the debate, that there was nothing to show that Straline formed part of the defender's lands, or whether it belonged to the barony of Ogilvie or the barony of Boyne, and therefore that proof of possession of the fishings there was not conclusive of anything. The Lord Ordinary cannot adopt this view. In the first article of his statement of facts, admitted by the pursuer, the defender avers that his lands, forming the baronies of Ogilvie and Boyne, extend ‘from the Burnmouth of Rathven, near Buckie, to the Burnmouth of Boyndie, near Banff;’ and the plan, the accuracy of which is also admitted by the pursuer, shows that the ‘Well of Strolend or Strathline’ is comprehended within these limits, being a little to the east of the Burnmouth of Rathven. The evidence of Miss Innes, as well as that of some of the other witnesses, likewise shows that the Straline fishings are within the bounds and limits of the defender's lands. And if the two baronies of Ogilvie and Boyne were united in 1750, it is truly of no consequence in regard to the present dispute to which of the original baronies the Straline fishings belong; for it cannot be questioned, and was not at the debate questioned, that possession of the fishings ex adverso of any part of the united barony was equivalent in its legal consequences to possession of the fishings ex adverso of the whole. But, supposing that possession of the Straline fishings can secure to the defender the fishings ex adverso of the lands only of the original barony to which it specially pertains, then, in that view, the Lord Ordinary thinks there is sufficient in the pursuer's admissions, taken in connection with the plan and the title-deeds, especially in the absence of all evidence to the contrary, to entitle the Court to infer that Straline is part of the barony of Ogilvie, and therefore that possession of the Straline fishings for the prescriptive period is, at any rate, sufficient to establish the defender's right to the salmon fishings ex adverso of all his barony of Ogilvie.
On the same assumption—viz., that the Straline fishings can only establish the defender's right to the salmon fishings ex adverso of his barony of Ogilvie—there remains the question, Has he established his right to the salmon fishings ex adverso of his lands forming the barony of Boyne?
In regard to this question, it is important to observe that the inquiry has been very much limited by the admission of the pursuer, given in the course of the proof (printed proof p. 6) that ‘the salmon fishing on the coast between the mouth of the Boyndie and the mouth of the Boyne had been carried on continuously by the defender and his predecessors, or on their behalf, since the year 1829.’ Now, the present action having been raised in February 1864, there is thus an admitted continuous possession of the fishings by the defender ex adverso of his lands, composing the barony of Boyne for about thirty-four years, leaving only about six years of the prescriptive period of possession to be otherwise established. In regard to these six years it does not appear to the Lord Ordinary that there is much, if any, room for doubt. Four years of the six are, indeed, at once accounted for by the pursuer's own witness James Sutherland, who was examined on 3d May 1864, and who, after stating that he is eighty-one years of age, and has resided in Portsoy since 1800, and that he knows the coast from the mouth of the Boyndie to Cullen, depones—‘The first continuous fishing began about eight-and-thirty years ago’—that is, in or about 1826. Taking this testimony of one of the pursuer's own witnesses in connection with the defender's proof, and especially the testimony of the
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If the Lord Ordinary is right in his view of the facts—if he is correct in holding that the defender and his authors have for forty years, or time immemorial, possessed and enjoyed the salmon fishings ex adverso of his barony lands, under grants or charters from the Crown of these lands, with parts and pertinents and fishings—it follows in law that the present action is not maintainable against the defender, and that he has been rightly assoilzied therefrom.
(Intd.) R. M'F.”
Solicitors: Agent for the Crown— Donald Horne, W.S.
Agents for the Earl of Seafield— Mackenzie, Innes, & Logan, W.S.