Scottish Court of Session Decisions

Holding the question to be open, the Lord Ordinary is of opinion that the mention of white-fishings, as it here occurs, does not exclude the ordinary effect attributed by law to a barony title as importing a grant of salmon-fishings, where they have been possessed for the period of prescription. The charter dispones the lands and barony of Muchalls, comprehending certain lands named. If the description had stopped there, there would have been a good title on which by possession to prescribe a right to salmon-fishings as included in the conveyance, just as in the case of an ordinary grant of lands with fishings. But the charter proceeds: ‘Una cum decimis rectoriis et vicariis earundem’ et piscationibus alborum piscium et cymbis picariis lie fisherboats cum molendino de Muchalls,’ &c. If, upon a legal construction of the former part of the description, it must be held that, taken by itself, it gives right to salmon-fishings, does the mention of white-fishings, among the additional subjects conveyed, teinds and others, change its import and effect in that respect? The Lord Ordinary thinks it should not be held to do so. Although they are both rights of fishing, salmon-fishing and the exclusive right of white-fishing are rights materially different in their legal character. The former may be effectually conferred by a grant of a barony in general terms, provided the title is so interpreted by prescriptive possession. The latter cannot be acquired in that way. Salmon-fishing is all along an existing patrimonial right—in the Sovereign before it is granted out, and in the grantee thereafter. But white-fishing only becomes a patrimonial right by being granted by the Crown to a subject. The grant is made, not out of the patrimony of the Sovereign, but as a limitation of the right of the public. Such an exercise of the power of the Crown is exceptional, and there is the strongest presumption against its having taken place where it does not appear expressly on the face of the grant. The Lord Ordinary knows no authority for holding that the right can be acquired by a mere grant of barony, or of lands cum piscationibus followed by possession; and he is of opinion it cannot be so acquired. It follows, that if it was intended to confer that right, it was absolutely necessary to give it expressly—as additional to anything that might pass under the general grant of barony. Salmon-fishings, on the other hand, may so pass by a mere grant of barony, provided prescriptive possession follows. In the cases where that occurs, the law holds that, by granting the subjects as a barony the Crown intended to include salmon-fishings in the grant. The Lord Ordinary does not think that the ordinary legal construction of the grant in such circumstances is excluded by the fact that the charter expressly gives the right of white-fishing, which could not be conferred in any other form, and must have been separately expressed, whether the right of salmon-fishing was intended to be given or not. Even if the charter had expressly borne to be cum piscationibus, on which a right to salmon-fishings might have been prescribed, or cum piscationibus salmonum, the grant of white-fishings must have been expressed if it was meant to be conferred. The Lord Ordinary, therefore, thinks that its expression in the present case cannot be taken as limiting, or in any way construing, the effect of the preceding portion of the clause”

The defenders reclaimed.

Solicitor-General and T. Ivory for reclaimers.

Clark and Hall for respondents.

At advising—

The Lord President was of opinion, on the first point, that though it might be true that there was no recorded judgment fixing the matter, there was — what was much more weighty than one or two judgments—there was the concurrent testimony of all the institutional writers of the law of Scotland. Stair and Mackenzie were quite clear. Erskine was said to be doubtful; but, on examination, it was plain that in the passage in his “Institutes” (ii, 6, 18) relied on by the defenders, he agreed with Lord Stair on the special point in question; and in his “Principles,” which was repeatedly revised by him, he stated the doctrine clearly. Bell stated the law to the same effect. As to the second point, there were many considerations which made it easy to understand that a Crown grant which was silent as to salmon-fishings might be intended to convey them, while at the same time it was natural to use express terms in conveying white-fishings. Salmon-fishings were the patrimonial property of the Crown; white-fishings were held by the Crown for the benefit of the public, and, assuming a grant of white-fishings to be within the power of the Crown, it was a grant of so anomalous a nature, and so uncertain in its effect, that if it was meant to give it, it was natural and proper to give it in express terms.