Scottish Court of Session Decisions

This case was tried in December 1868 before the Lord President and a jury, on the following issue:—“It being admitted that the pursuers are proprietors of the lands and barony of Muchalls, excepting the parts and portions of the said lands and barony under-mentioned, viz.—(1) the farm of Elrich and others, parts and portions of the said lands and barony disponed by the commissioner of the late George Silver of Netherly to the trustees of the late George Symmers, by disposition dated 8th and 9th August 1842, and that the same do not adjoin the sea or seashore; (2) the following parts and portions of the said lands and barony disponed to Dr Keith: The mill and mill lands of Muchalls, and those fields forming part of the home farm of Muchalls, which are situated on the east side of the turnpike road leading from Aberdeen to Stonehaven, and south of the road leading therefrom eastward toward the seashore, which lands above described are bounded from the other parts of the said lands and barony of Muchalls as follows, viz.—by the said turnpike road leading from Aberdeen to Stonehaven, and by the said road leading from the said turnpike road eastward towards the broad shore of Muchalls till the said road reaches the top of the cliffs, where two march stones have been placed, and thence by the gully directly opposite into the sea, being the first gully south of the broad shore, the line of march passing in the direction of the centre of said two stones and along the south side of a small sharp pointed rock, and along the north side of a rock partly covered by the sea, according to the state of the tide:

“Whether, for forty years prior to 16th April 1862, or for time immemorial, the pursuers and their predecessors and authors have, as proprietors of the said lands and barony of Muchalls, possessed the salmon-fishing in the sea and sea coast opposite to the said lands and barony of Muchalls belonging to the pursuers?”

After evidence was led for the parties, it was arranged between them, on the suggestion of the Court, that, as the true question was, whether the possession had by the pursuers and their predecessors

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was in law sufficient possession for forty years within the meaning of the issue, a verdict should be taken for the pursuers, subject to the opinion of the Court on the said question, and with power to the Court to enter up the verdict for the defenders if they should be of opinion, on a consideration of the notes of the evidence and of the documents put in evidence, that the possession proved to have been enjoyed by the pursuers and their predecessors during forty years preceding 16th April 1862 was not in law sufficient possession within the meaning of the Issue.

A verdict was returned accordingly.

Both parties now claimed the verdict.

T. Ivory (Lord-Advocate Moncreiff with him) for defender.

Hall ( Clark with him) for pursuer.

The Court held that, for some portion of the prescriptive period, the possession by the pursuers could not be ascribed to their barony title. In 1821 Silver, the then proprietor, had applied for a Crown grant, which he would hardly have done if he had supposed that he had in his barony title a sufficient right to the fishings. Again in 1824, and lastly in 1859, the possession was not ascribed to the barony title, and therefore the possession had by the pursuers not being in law sufficient possession, the verdict had not been entered up for the defenders.