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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duke of Richmond v. Earl of Seafield [1870] ScotLR 7_359 (16 February 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0359.html
Cite as: [1870] SLR 7_359, [1870] ScotLR 7_359
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SCOTTISH_SLR_Court_of_Session
Page: 359↓
Court of Session Second Division.
v.
Facts:
Held (1) that a barony title does not per se confer a right of salmon-fishing; (2) that fishing for salmon by means of the rod in places where fishing by net and coble may be practised is not available possession to acquire a right of salmon-fishing; (3) that fishing by means of cairns and stream is illegal, and therefore could not be founded on as possession available to establish a right.
Circumstances in which held that a proprietor of lands had under his titles, and the possession which had followed upon them, the exclusive right of salmon-fishing within certain boundaries in a river.
In this action the Duke of Richmond seeks to have it found and declared that he has the exclusive right to the salmon-fishings in the river Spey between two points described in the summons, including what are described as the Orton fishings, with a reservation to Captain Wharton Duff and his successors of the privilege of rod fishing, and the fishings ex adverso of the lands of Elie, Inchberry, and others, lying on the west side of the Spey. The pursuer founds upon Crown titles, containing an express grant of salmon-fishings. In explanation of these titles, he sets forth;—“(12) Under the titles specified in the first four articles above written, the pursuer and his predecessors and authors have for time immemorial, or at least for forty years and upwards prior to 1867, had the sole and exclusive possession of the salmon-fishings in the said river Spey between the points or
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boundaries mentioned in the first conclusion of the summons; and under the titles specified in articles 6 to 9 inclusive above written, the pursuer and his predecessors and authors have had for time immemorial, or at least for forty years and upwards prior to 1867, the sole and exclusive possession of the salmon-fishings in the said river Spey between the points or boundaries mentioned in the second conclusion of the summons. For time immemorial, or at least during the whole of the said period of forty years and upwards, the pursuer and his predecessors and authors have regularly fished for salmon and other fish of the salmon kind in the said river between the point or boundary first mentioned in the first conclusion of the summons, and the point at which the burn of Aultdearg flows into the river Spey, being the point second mentioned in the second conclusion of the summons, by net and coble, rod and line, and every other lawful mode, and they had done so to the exclusion of all others. (13) It is necessary to the full and effectual exercise of the pursuer's said rights of salmon-fishing, to enter upon and use the right or east bank or shore of the said river belonging to the defender; and accordingly the pursuer and his predecessors and authors, besides fishing from the west bank of the river, have regularly been in use, for time immemorial, or at least for forty years and upwards, to enter upon and use the said right bank or shore for the purposes of fishing. They have, during the whole of the said period, been in use to shoot nets from, and haul the same upon, not only the said west bank or shore, but also the said right or east bank or shore, in fishing for salmon by net and coble at suitable places along the whole stretch of the said river, between the point or boundary first mentioned in the first conclusion of the summons and the point or boundary second mentioned in the second conclusion of the summons; and they have also been in use during the whole of the said period to erect and use huts for the purposes of their said fishing between the said points on the said east bank or shore. (14) The river Spey is comparatively narrow throughout the portion of its course which lies between the said points or boundaries, and a net shot from one side sweeps the whole area of water from bank to bank. Further, at various places between the said points a line thrown by an ordinary salmon rod reaches from one side to the other side of the said river. (15) Although the defender has no right or title to any salmon-fishing in the river Spey between the point or boundary first mentioned in the first conclusion of the summons and the point or boundary second mentioned in the second conclusion of the summons, he has recently put forward pretensions of right to fish, and has fished, for salmon at certain places between the said points or boundaries. The defender has thus invaded and encroached upon the pursuer's said rights of salmon-fishing, and as he has intimated that he intends to repeat the said fishing, the present action has become necessary.” The defender, on the other hand, while not denying the pursuer's right, maintains that it is not an exclusive right. The defender is proprietor of the barony of Mulben, which includes the lands of Cairntie on the right bank of the Spey, and he founds upon a Crown charter with a clause of fishings, followed by prescriptive possession of salmon-fishing by fishing with net and coble at those portions of the river which admitted of being so fished, and also by cairns and streams and rod and line, ex adverso of the land of the barony. The defender also founds on a base right deduced from a feu-charter granted in 1633 by Sir John Grant of Freuchie, then proprietor of the barony, which contains an express grant of salmon-fishings, which right was re-acquired by the defender's predecessors. And the defender makes the following averments:—“(7) Since the dominium utile of the lands and salmon-fishings of Cairntie was re-acquired by the defender's predecessor, Sir Ludovic Grant, the defender's predecessors, and the defender himself, have constantly possessed the salmon-fishing in the Spey ex adverso of the lands of the said barony, including the said lands of Cairntie, from the burn of Aultdearg up to and above the Boat-o-brig, by themselves, their tenants, and others having their permission, and the fishing has been carried on in every way in which the nature of the river and of its right bank admitted, viz., by net and coble, rod and line, cairns and streams. From time immemorial until the year 1836, or thereby, each of the tenants of the farms of Cairntie which touched the Spey (of which there are several) was tenant of, and paid rent, for the salmon-fishings in the Spey opposite his farm, and fished for salmon accordingly, in whatever way he deemed most advisable, without any interruption on the part of the pursuer or his predecessors, or of any other person. Since the year 1843 the said salmon-fishings have been let by the defender and his predecessors along with the shootings of the barony, but as the tenants have used the water chiefly for the purposes of sport, the mode of fishing principally practised ex adverso of the right bank of the Spey during that period has been by rod and line. In whatever way the defender's tenants have during the said period exercised the right of salmon-fishing under their respective leases, they regularly fished for salmon and fish of the salmon kind in the Spey ex adverso of the whole lands of the barony of Mulben, including Cairntie, without interruption. (8) In 1843 negotiations were entered into between the late Duke of Kielimond, the pursuer's father and predecessor, through his factor, Mr E. Wagstaff, Gordon Castle, and the late Earl of Seafield, the defender's father and predecessor, through his factor, Mr John Wilson, Tochineal, with reference to the shootings of the Keith and Boharm range and the said salmon-fishings on the Spey then belonging to the defender's father ex adverso of his lands of Cairntie, but excluding the Boat-o-brig salmon-fishing. It was at the time contemplated to let these to Mr William Grant Macdowall of Arndilly, and the late Duke of Richmond, as proprietor of the lands and others, in virtue of the titles under which his son, the pursuer, now claims the fishings in question, desired to be substituted in said lease of said shootings and said salmon-fishings, in place of Mr Grant Macdowall. Some correspondence took place between these parties, in the course of which Mr Wagstaff, for the said Duke, in answer to inquiries by him, was informed by Mr Wilson, on behalf of the late Earl of Seafield, that the salmon-fishings proposed to be let were the fishings ex adverso of Cairntie. In consequence of some misunderstanding between the said Duke and Mr Grant Macdowall, these negotiations were for
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a time suspended, and the said shootings and said salmon-fishings were, by minute of agreement between the defender's father and Mr Grant Macdowall, dated 26th September 1843, let to the latter for seven years from 12th August 1844. The said lease thereof was afterwards, by minute indorsed thereon dated 12th February 1845, signed by the said Mr Wagstaff for the said late Duke of Richmond, by Mr John M'Innes for Mr Grant Macdowall, and by Mr John Fraser for the late Earl of Seafield, transferred for the remaining six and a half years to the said Duke, who thereafter, during the subsistence of said lease, possessed in virtue thereof the said shootings and salmon-fishings, and paid therefor to the defender's father the rent of £52, 10s. stipulated in said lease. (9) The pursuer has recently asserted a right, which he does not possess, to draw his nets and fish for salmon on the right bank of the Spey ex adverso of the defender's lands of Cairntie, and has thus illegally encroached upon the defender and his lands and salmon-fishings. The defender is about to take measures to stop the encroachment.” The pursuer maintains that his titles alone give him the exclusive right to the salmon-fishings; but at any rate that he has that exclusive right in virtue of his titles, followed by prescriptive possession. In reference to the defender's titles and averments, the pursuer pleads specially—“The alleged express grant of salmon-fishings ex adverso of the lands of Cairntie founded on by the defender is wholly unavailing to constitute a right of salmon-fishing, in respect that (1) the said grant did not proceed from the Crown, but only from a subject-superior, who had himself no right or title to salmon-fishings; and (2) the whole salmon-fishings at the parts of the river in question belonged to the pursuer's predecessors at and prior to the date of the said grant. Fishing for salmon by cairns and streams, or by rod and line, is not such possession as can found, a prescriptive title to salmon-fishings, or at least such fishing cannot found such a title where fishing by net and coble is practicable, and has been practised by parties having a competing and adverse title and interest. The defences should be repelled, in respect that the titles founded on by the defender are not sufficient to constitute or confer a right to salmon-fishings; and, separatim, in respect that the said titles have not been followed by lawful possession of salmon-fishings for the prescriptive period.”
The following pleas, on the other hand, were maintained by the defender:—“The defender should be assoilzied from the whole other conclusions of the action, with expenses, in respect (1) that the pursuer's titles do not give him an exclusive right to the fishings in the Spey within the bounds libelled; (2) that he has had no exclusive possession of said fishings; (3) that the defender has, in virtue of his titles, an express grant of the salmon-fishings ex adverso of the lands of Cairntie; (4) that he has possessed said salmon-fishings from time immemorial in virtue of his titles; and (5) that the pursuer's predecessors and authors have acknowledged the right of the defender, by taking said fishings in lease from the defender's predecessors. In any view, the defender's Crown title cum piscationibus having been followed by immemorial possession of salmon-fishings within the boundaries libelled, the defender has good and undoubted right to the salmon-fishings ex adverso of his said lands of Cairntie. Separatim, in virtue of his titles and possession, the defender is, in any event, entitled to fish for salmon and fish of the salmon kind by rod and line ex adverso of said lands. The defender having been from time immemorial, and being now, in the actual possession of salmon-fishings in the Spey in virtue of his barony title by means of net and coble ex adverso of his barony lands, he has thereby established, preserved, and maintained his right to fish for salmon and fish of the salmon kind, in virtue of his barony title, at any part of the Spey where the lands of the barony adjoin the river.”
A proof having been allowed and taken before the Lord Ordinary ( Ormidale), his Lordship pronounced the following interlocutor;—
The Lord Ordinary having heard counsel for the parties, and considered the argument, the proof, and whole proceedings, finds—(1) that the salmon-fishings in the river Spey pertaining to the lands mentioned and referred to in the first two conclusions of the Summons are and have been held in property by the pursuer, his authors and predecessors, under charters or grants from the Crown, for a period extending back greatly more than forty years prior to the institution of the present action: Finds (2) that the pursuer, his authors and predecessors, have also, by themselves and their tenants, regularly fished by net and coble for salmon from both sides of the Spey, shooting their nets from, and hauling them upon, both sides between the point or boundary first mentioned in the first conclusion of the Summons and the point or boundary second mentioned in the second conclusion thereof, from the year 1802 down to the institution of the present action: Finds (3) that the pursuer has failed to prove that he, his authors and predecessors, have, for forty years or time immemorial prior to the institution of the action, possessed or exercised the exclusive right of fishing for salmon in the Spey between the said boundaries: Finds (4) that the lands of Cairntie and others, situated on the east or right bank of the Spey, opposite to the lands of Orton, and others, situated on the west or left bank of the Spey, between the foresaid points or boundaries, have, with the fishings thereof, belonged to and been possessed in property by the defender, his authors and predecessors, for a period extending back for greatly more than forty years prior to the institution of this action, under and in virtue of a barony title from the Crown, which expressly includes fishings, and also under and in virtue of titles flowing from private parties, expressly including salmon-fishing in the Spey: And finds (5) that, in virtue of the titles referred to in the last finding, the defender, his predecessors and authors, have, by themselves, their tenants, and others, for a period greatly exceeding forty years prior to the institution of this action, possessed and exercised the right of fishing-salmon in the Spey ex adverso of the said lands of Cairntie and others: Finds, in these circumstances, that in law the pursuer is not entitled to prevail in this action, or to obtain decree therein, except to the extent after mentioned, and that, quoad ultra, the defender is entitled to absolvitor: Therefore decerns and declares in favour of the pursuer, in terms of the two alternative conclusions of the Summons, to the effect that he has right to the salmon-fishings, and to fish for salmon and fish of the salmon kind in the Spey ex adverso of the lands of Orton and others, lying
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on the west side of the river Spey; and also ex adverso of the lands of Orton and Insch, or Insch of Cairntie, Elie, Inchberry, and others, also lying on the west side of said river, between the points or boundaries referred to in the said two alternative conclusions; and, quoad ultra, assoilzies the defender from the whole other conclusions of the Summons, and decerns: Finds the defender entitled to expenses, under reservation of the question whether there ought to be any, and if any, what modification thereof, on which question the parties will be heard when the Auditor has made his report: Allows an account of the defender's expenses to be lodged, and remits it, when lodged, to the Auditor to tax and report. Note.—The titles of the parties, and the possession which has been had under them, form the foundation of the questions which the Lord Ordinary has had to consider and determine in this case.
That the pursuer has right to salmon-fishing in the river Spey under and in virtue of grants from the Crown there can be no doubt, and was not questioned. It seemed, however, to be maintained for the pursuer in the course of the argument, that, in virtue of his titles alone, he had an exclusive right to the whole salmon-fishing in the Spey within the limits or boundaries referred to in the Summons, and his first plea in law in the record is to that effect. But the Lord Ordinary could not sustain this view, which, indeed, did not seem to be much pressed. The pursuer's titles do not constitute an unqualified right to salmon-fishing in the Spey separate and independent of lands. The right is always referred to as in connexion with certain lands. Thus, in the Crown charter of 1766, being the leading title founded on by the pursuer applicable to the lands of Orton and others, these lands are conveyed ‘ cum salmonum piscatione super aquam de Spey usitate et consuet;’ and the disposition of 1829 by Mr Wharton Duff in favour of the Duke of Gordon conveys merely ‘ All and Whole the salmon-fishings and other fishings in the river Spey belonging or attached to the lands and estate of Orton.’ It is obvious, therefore, that the extent of the salmon-fishing— and whether within the limits of its extent it is exclusive of the defender and all others, as was contended for by the pursuer—must depend on what has been the state of the possession.
In regard, again, to the defender's titles, it was maintained for him that, as a barony includes salmon-fishing as well as other subjects inter regalia, and as such a right is not lost non utendo, proof of possession on his part was unnecessary.
The Lord Ordinary, however, cannot adopt this reasoning, which he does not think is sound. A barony title is no doubt sufficient to comprehend salmon-fishing, and will be held to do so, but to the effect and extent only to which it is proved to have been possessed for the prescriptive period. And as the other titles of the defender, although they expressly bear a right to salmon-fishing, flow from private individuals, and may be sufficient, as was admitted on the part of the pursuer, along with prescriptive possession, to constitute a good right to salmon-fishing, it is equally obvious, in regard to the defender's right, that everything depends, just as in regard to the pursuer's right, upon what has been the state of the possession.
That the pursuer's possession has been such as to entitle him to the decree now pronounced in his favour there can be no doubt, and this was conceded at the debate by the defender, whose admission, indeed, not only in the record, but also in the Note of Admissions, No. 96 of process, left no room for question on the subject.
But what the defender disputed was the claim maintained by the pursuer to the exclusive right of salmon-fishing within the limits and boundaries referred to in the conclusions of the summons, and in regard to this matter the Lord Ordinary has felt the case to be attended with some difficulty.
It is to be kept in view that, as there is here no action at the instance of the defender, it was unnecessary to determine the precise nature and extent of his right of salmon-fishing in the Spey. It was enough to entitle him to the decree of absolvitor that he has established a right of salmon-fishing to some extent within the limits or bounds referred to; for if he has, then the pursuer must be held to have failed in making out his claim to an exclusive right.
The defender, in support of his right, and of the possession necessary to support it, has founded on fishing by himself and his predecessors for time immemorial, by means of what are called cairns and stream and rod and line. He has also founded in the record on fishing by net and coble, but as there is no evidence to show that this last mode of flailing has been exercised by the defender or his predecessors, it may be thrown out of view, and indeed was given up by the defender in the course of the debate as a point which could not be relied on by him. The defender's possession, therefore, depends entirely on fishing by cairns and stream and by rod and line.
That the defender and his predecessors have, by their tenants, for time immemorial prior to 1836, fished for salmon by cairns and stream, neither was nor could have been disputed on the proof. But the pursuer argued that such modes of fishing, being of the nature of fishing by fixed engines, were illegal, and could not avail the defender, as has been determined in many cases, and particularly in the unreported case of Grant v. M'william, referred to at p. 666 of 10 D., and the case of Ramsay v. Duke of Roxburgh, 10 D. 661, and 7 Bell's Appeal Cases, 248. The decree in the former of these cases, which sets out the pleading of the parties and other procedure, has been produced, and is printed in the Joint Appendix, p. 50. Having regard to these authorities, the Lord Ordinary has not felt himself entitled to rely on the defender's proof of possession so far as founded on cairn and stream fishing. At the same time, it seems undoubted that till 1836 all parties concerned had been under the impression (and so acted) that cairn and stream fishing, as practised in the Spey was not liable to any legal objection. Accordingly, there does not appear to have been any attempt at any time on the part of the pursuer or his predecessors to put down the cairn and stream fishing, which, until 1836, were undoubtedly practised in the most open and public manner by the tenants of the defender or his predecessors. There was neither remonstrance nor challenge of any kind, or from any quarter. It cannot, indeed, be doubted that the defender's cairn and stream fishing was acquiesced in, and held by the authors and predecessors of the pursuer as legitimate modes of fishing, and that the defender and his predecessors had by such possession a good right to salmon-fishing in the Spey ex adverso of their lands of Cairntie.
Independently, however, of cairn and stream fishing,
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the Lord Ordinary is of opinion that, looking at all the circumstances of this case, the requisite possession has been established on the part of the defender. The fishing by rod and line since 1848 has been expressly admitted by the pursuer (see 2d head of Note of Admissions, No. 96 of process). And, independently of that admission, the Lord Ordinary is of opinion that possession for the defender by rod and line fishing for time immemorial, or at least for forty years prior to the institution of this action, has been fully established. In addition to the witnesses adduced for the defender—and there are many of them—who speak to this point, several of the pursuer's witnesses give evidence to the same effect. Nor does it appear to the Lord Ordinary to be of any importance that little or no fishing, even by rod and line, took place on the Cairntie (the defender's) side below Shianshillock, for there is evidence shewing that from the nature of the ground it was difficult to prosecute fishing of any kind from the banks of the Spey below Shianshillock. Besides, keeping in view that the defender's lands within the bounds in question were held under a barony title, fishing opposite to them in any part of the Spey may be sufficient, and, whether the defender had a barony title or not, it could not be reasonably maintained that in proof of possession he was bound to shew that he had fished in every part of the river opposite his lands. It was argued, however, on the part of the pursuer, that rod and line fishing is not in law sufficient to support a claim to salmon-fishing where proof of possession is requisite, net and coble being indispensable for that purpose. Now, although there are to be found in the reports of some cases obiter dicta to the effect that in questions touching the right to salmon-fishing, rod and line fishing being an inferior, or as it appears occasionally to have been called ‘a mean description of fishing,’ is not to be regarded, the Lord Ordinary has been unable to find and he was not referred to any positive decision to that effect. Accordingly, this appears to have been the view of the authorities taken by the House of Lords in the recent case of Stuart v. M'Barnet, 21st July 1868, Scotch Appeals, vol. i., p. 387; and in the case of Dalhousie v. 31 Inroy, 3 Macph., p. 1168, it was held by Lord Mure, and acquiesced in, that sufficient possession of salmon-fishing following on a grant cum piscationibus was constituted by fishing by rod and line. Nor is it obvious to the Lord Ordinary upon what principle it could be held that rod and line fishing should not be a sufficient exercise of the right of salmon-fishing, for it can be readily enough supposed that in many instances it might be the most beneficial and effectual mode of exercising the right. In modern times rod-fishing has become a favourite, and also, to the proprietor of the water at least, a very lucrative description of sport, as is shewn to some extent by the proof in the present case. Since 1836 there can be no doubt, it is thought, that rod-fishing has been prosecuted on the defender's side of the Spey as an object of profit as well as of sport on the part of the defender or his tenants and others having right from him; and Alexander M'William says (printed proof, p. 31), he ‘ recollects Lord Seafield letting the salmon-fishing at Cairtie, along with the shooting, to two gentlemen of the name of Boyd and Smith, about 1827 or 1828,’ the former of these years being more than forty years prior to the institution of this action. It is also very important, in the judgment of the Lord Ordinary, that the defender's right to fish for salmon by rod and line was exercised by many persons expressly deriving right from the defender, not only in the knowlege of the pursuer, and without challenge on the part of him or his predecessors, but with their distinct acquiescence as a thing which could not be objected to by them.
In addition to all this there is what also appears to the Lord Ordinary to be the very important circumstance that the pursuer's immediate predecessor, whom he represents, actually negotiated with Lord Seafield, and obtained from him in lease for a valuable pecuniary consideration, the Cairntie salmon-fishings for the years from 1845 to 1848. In the lease so obtained, as well as in the negotiations which preceded it, the right of Lord Seafield to the Cairntie salmon-fishing appears to have been not only not disputed, but expressly acknowledged.
if, then, the proof shews, as the Lord Ordinary thinks it does, that the right of Lord Seafield to fish for salmon in the river Spey, and the exercise of that right by rod and line, have been for time immemorial admitted and acquiesced in by the pursuer and his authors and predecessors, it is not easy to resist the conclusion that the defender has had for the requisite period possession of and exercised the right of, salmon-fishing in the Spey ex adverso of his lands of Cairntie, and if so, that the pursuer has failed to establish the exclusive right claimed by him.
“The defender having substantially succeeded in his defence, the Lord Ordinary has found him entitled generally to expenses, subject, however, to the question to be afterwards determined, whether there ought to be any and what modification.”
The pursuer reclaimed.
Solicitor-General and Balfour for him.
Dean of Faculty, Gifford, and John Marshall in answer.
At advising—
Lord Justice-Clerk—As your Lordships will probably think it right in a case which, in addition to the importance of the interests involved in it, raises many questions of wide application, to express your opinions at length, 1 shall, without going much into detail, indicate shortly the result at which I have arrived on the several matters which have been argued to us.
The Duke of Richmond, the pursuer, asks us for decree of declarator under two sets of alternative conclusions; and the substance of these conclusions is simply this. The dispute relates to the right of salmon-fishing in the Spey within certain bounds which are mentioned in the summons and delineated on the plan, extending substantially from Boat of Bridge on the south to the cruive at Ordiefish on the north. The question which is raised relates to the right of salmon-fishing in the Spey within these limits.
The summons concludes to have it found that the Duke of Richmond is entitled to the sole and exclusive right of salmon-fishing within these bounds; and otherwise, that he is entitled to the sole and exclusive right ex adverso of the lands on the left or west bank of the river. And then there is a third declaratory conclusion, that Lord Seafield has no right of salmon-fishing within these bounds; and there is a conclusion that he should be interdicted from exercising any right of salmon-fishing within these limits.
In considering how far the pursuer is entitled to decree to any extent in terms of these conclusions,
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The Duke of Richmond's title is substantially divided into two. He has a title to fishings, derived from the proprietor of the lands of Orton, which lie on the west or left bank on the southern portion of the part of the stream in dispute. Then there are the lands of Elie and Inchberry, lying immediately to the north of Orton, the fishings of which, as well as the lands also, belong to the pursuer.
The question is, in the first place, what right the Duke of Richmond acquired by the conveyances under which he claims in regard to these fishings?
As regards the fishings of the lands of Orton, they stand on a disposition by Mr Wharton Duff, the proprietor of the lands, to the trustees of the late Duke of Gordon, dated 23d June 1829, by which he conveyed, “All and Whole the salmon-fishing and other fishings in the River Spey belonging or attached to my estate of Orton, in the title-deeds thereof.” Then follows the description; and there is appended to the description, “as the same are all presently held in lease by Messrs Forbes, Hogarth, & Co.:” and there is also a reservation by Mr Wharton Duff in favour of himself and his successors in the lands, of the right of rod-fishing “for amusement only.” Now that title, as it stands, while on the one hand it refers to the state of possession as enjoyed by Messrs Hogarth & Co., on the other bears to be a title to salmon-fishings belonging to or attached to the estate of Orton. And therefore we are taken back to the former titles to see how these fishings stood in the person of the author of the Duke; and they stand substantially in this position. The earliest title which is referred to is a title in 1756, by which there is a disposition from Lord Braco to Arthur Duff conveying the lands and estate of Orton, “with the salmon-fishing in the water of Spey belonging to the said lands.” That disposition is recorded in 1766, and a Crown charter of resignation is expede upon it, the Crown charter of resignation bearing— “Totas et integras illas partes et portiones Baroniae de Rothes Orientales et Occidentales Ortowns nuncupat. cum domibus aedificijs mossis moris partibus pendiculis et universis pertinen. ad easdem spectan. omnes jacen. infra Baroniam de Rothes parochiam de Dundurcas et vicecomitatum de Elgin et Forres aut tanquam diet, terrae aliter nominat. et designat. in antiquis vel alijs juribus et infeofamentis earundem ac etiam totas et integras villam et terras de Daigens et Inch de Cardenie cum salmonum piscatione super aquam de Spey usitat. et consuet. cum domibus aedificijs liortis toftis croftis partibus pendiculis et pertinen. earundem omnes jacen. infra Baroniam de Burmuckety parochiam et vicecomitatum antedict. sicuti diet, terrae de Ortown aliaq. praedict. in Dispositione postea mentionat. concess. per diet. Gulielmum dominum Braco praefato magistro Arthuro Duff descripta sunt vizt. terras et statum de Ortown comprehenden torras dominicales et maneriei locum de Ortown Windyhills Darnathills Boghead Hillockliead Daigens Chapel et Inch de Cardenie cum salmonum piscatione in aqua de Spey diet, terris spectan. una etiam cum molendino de Ortown terris molendinarijs multuris et sequelis earund. domibus aedificijs hortis pomarijs silvis mossis moris et univer his pertinen. ad easdem spectan. jacen. in parochia de Dundurcas et vicecomitatum de Elgin et Forres;” and the same form is carried through the rest of the title. There is a Crown Charter in 1806, and the description there is “the salmon-fishings in the Spey ad dictas terras spectante,” which is just the same as saying ex adverse) of the lands. Now, if I were to construe these titles as they stand as regards the lands of Orton, it does not appear to me to be very doubtful that they convey the salmon-fishings ex adverso of the lands to which they refer. It is quite true that in the last disposition to the Duke of Gordon's trustees the disposition is of the salmon-fishings, and not of the lands; but that disposition very clearly bears that they are fishings attached to and belonging to the lands. The phrase in the Crown charter of resignation “used and wont” is unquestionably a phrase admitting of construction by possession ; and what the effect of that possession may be is a question to which I shall speak immediately. But I think it right to draw attention to the fact that this is not a title which, in any view of it, on the face of it, can be held to be equivalent to a grant of the whole salmon-fishings in the Spey, without reference to the land on either side. The effect of that is another matter, which I shall say a word on immediately.
In regard to the titles to Elie and Inchberry, the matter is still more clear, because there is no conveyance of any kind in the progress in regard to the salmon-fishings belonging to the proprietor of Inchberry and Elie, which is not attached to the lands. The title in regard to that part of the subject begins by a charter of confirmation as far back as 1601, and is deduced from that time. That is a charter in favour of William Gumming of Earn-side; and the words are these, “Cum omnibus salmonum piscariis omnium et siugularum predictarum terrarum”—all the salmon-fishings of all and whole the said lands—“super dicta aqua de Spey solitis et consuetis”—the fishings used and wont of the said lands. In the charter of adjudication the phrase is “Totas et integras villas et terras de Elie et Inchberry cum salmonum piscatione super aqua de Spey iisdem pertinenti.” The same phrase is carried down until, in the beginning of this century (I think in 1812), the lands, with the fishings of Elie and Inchberry, were conveyed to the Duke of Richmond. Now there can be no question at all that that is a good title to the salmon-fishings in the river ex adverso of these lands; and there can be as little doubt that it is a good title to prescribe a right to the whole salmon-fishings of the river. On the other hand, if anything turns upon it, in my opinion the title is not in itself equivalent to a grant from the Crown of the whole fishings in the river by falls to be interpreted by the possession had upon it. Now, in regard to that possession, I am of opinion that, looking at the evidence in the present ease, the Duke of Richmond has for the prescriptive period, and for a considerably longer period, exercised the right of salmon-fishing by net and coble on both sides of the stream throughout the whole course of the bounds in question, and that he cannot be disturbed in the exercise of that right—that he has exercised the right of net and coble fishing within these limits for the whole of that time. The fact that he has done so since 1802 is matter of admission on the record; but I am of opinion that he has successfully carried his right farther back, although, perhaps, it was not necessary that he should do so. And I am farther of opinion that,
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Now, Lord Seafield is admittedly the proprietor of the whole lands upon the right or east bank of the river during the whole course in question; and his title is founded, first, on a charter to the barony of Mulben, dated 31st July 1616, which erected the lands of Mulben and Cairntie, cum piscationibus, into a free barony; and, secondly, on the base right flowing from Sir John Grant of Frenclue, the proprietor of the property, dated in 1633, by which were conveyed the lands of Cairntie, with the salmon-fishings, to John Mann. I should have mentioned, in regard to the lands of Orton, that, though not a barony in themselves, they are part of the barony of Rothes. This base right was subsequently re-acquired by Sir Ludovick Grant, an ancestor of the defender, and is now vested in the defender; but it never was confirmed by the Crown. In these circumstances, it is contended for the defender, first, that his barony title is sufficient, without possession, to entitle him to salmon-fishings; and, secondly, that at all events he has a sufficient title to support a proof of prescriptive possession. I do not think it was contended in the argument that the base right, without possession, could have been held available for that purpose; and if it had been, I should not have thought the contention was well founded. Now, it is sufficiently plain that the barony title is a perfectly good title for prescription. It would have been so even if the lands had not been erected into a barony, as it bears cum piscationibus, which in an ordinary charter would be sufficient. The only question on this head is whether, without possession, the barony title is sufficient to infer a right to salmon-fishings as being comprehended under the term cum piscationibus? This raises the question of the effect of a barony title as implying a conveyance of the minor regalia, and among them the right of salmon-fishing. That has been considered as an open question in recent times, and I don't think has ever been decided in terms; and the opinions of institutional writers are divided upon the subject. It is assumed to be laid down by Lord Stair, and by Mackenzie in the passages which were quoted to us, that a barony, being nomen universitatis, is presumed to convey the minor regalia, and especially salmon-fishings, though these are not expressed. I say it is assumed to be so laid down; because I have some doubt whether Lord Stair intended to lay down the doctrine in the full and explicit manner which perhaps his words as literally construed could imply. On the other hand, Craig states this matter to have been a subject of dispute among jurists even in his day, and his opinion rather seems to lean to the opposite conclusion. The passage in Craig is 2. 8. 15, where he states both views, and seems rather to think that those who think that a barony title does not infer a conveyance to the regalia hold the better opinion of the two. Erskine, on the other hand, entirely repudiates Stair's doctrine in respect to the minor regalia, and Mr Bell in his Principles lays down the opposite doctrine in the clearest and most explicit manner. But the whole current of the decisions is in favour of the later doctrine—viz., that a barony title implies no more than a title to prescribe, even without the words cum piscationibus, and I am not aware of any case in which a barony title has received a higher effect. It is also worthy of remark, that although Lord Stair in three several passages in the same title states the general doctrine in very absolute terms, yet the only cases he cites are instances in which forty years' possession have followed upon the right. There is a passage in an opinion of Lord Curriehill in the case of the Lord Advocate v. Sinclair, which was referred to, and no doubt it seems to indicate an impression that a barony title without possession might at all events assist such a claim. But in that case it was not only not necessary to the case to decide the effect of a barony title without possession, but the question did not arise. There had been full and complete possession for more than a hundred years upon the titles in that case, and therefore the effect of a barony title not clad with possession did not arise there for judgment. There remains, therefore, only the question of possession, so far as Lord Seafield's title is concerned. It is not said by Lord Seafield that he has ever possessed by net and coble, but he says that he has exercised the right, in the first place, by cairnfishing, and, in the second place, by rod-fishing; and the Lord Ordinary has sustained the second of these contentions. I shall consider the effect of rod-fishing first. I think it sufficiently proved that for forty years prior to the institution of this action Lord Seafield, by himself or his tenants, has exercised the right of rod-fishing. I don't say that it is amply proved, for unquestionably it is not; but for a period of nearly thirty years it appears that the rod-fishing has been let to a game tenant, and that the Duke of Richmond himself was at one time, or intended to be, the tenant; and I think it is established, though there is some conflict of evidence about it, that the tenants on the east bank of the stream—I mean on Lord Seafield's ground—had been in the habit of fishing for salmon with the rod as part of their possession. This is made still more clear by the fact that before the fishings were let to the game tenant renunciations were taken of the rights of salmon-fishing from the agricultural tenants—a proceeding which appears to me entirely inconsistent with the idea that there had been no practice on their part of rod-fishing previously. The question therefore arises, whether possession of this nature is sufficient to construe the barony title as comprehending salmon-fishing, or to support the base-right. Now, I am clearly of opinion that the cases on which the Lord Ordinary has sustained this plea have no application to the circumstances of the present case. The doctrine which received effect in the cases of Stuart v. M'barnet, and Dalhousie v. M'lnroy, was one which had been frequently given effect to in the law of salmon-fishing ; indeed from the earliest period, viz., that where fishing by net and coble is prevented by the nature of the stream, possession by rod-fishing might be sufficient, as being the only mode in which the right could be exercised. But that principle has manifestly no application to a case in which the ordinary mode of fishing by net and coble is practicable and practised. On the other hand, there is a clear and unbroken chain of decisions to the effect that taking salmon by the rod is not a sufficient mode of prescribing a right to salmon-fishings in a stream in which net and coble fishing is the ordinary mode of taking salmon. The authorities were all fully considered in the case of Ross v. The Duke of Sutherland, which I hold
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This however belongs to a class of cases more likely to arise in the future than it has in the past. Rod-fishing having become a luxury, may in the end be the more profitable mode of using the right; and in such a case the question would occupy a different position from that which it has hitherto held. And if a proprietor with a title bearing cum piscationibus had for forty years not only let the rod-fishing in a stream for a considerable rent, but had debarred all others from the exercise of any right of salmon-fishing, the question would, in my opinion, present itself in a very different aspect from that which we have now to consider. But in the present case it is impossible to look on the rod-fishing as enjoyed by the defender as the assertion of a right to exercise the jus regale, seeing that during the whole period of that possession the pursuer was exercising that right in the most appropriate and profitable manner, by fishing without interruption with net and coble ex adverso of the defender's lands. In regard to the cairnfishing, the question was raised, in the first place, whether it was legal; and secondly, whether, if it was legal, it could be held to be possession so as to validate the incomplete title of Lord Seafield. I am of opinion that, even if it had been legal, fishing by cairnnet was a very imperfect and partial way of exercising a right of salmon-fishing, and cannot in my opinion receive effect as an assertion of the jus regale against contrary possession. If that view be sound, it is unnecessary to consider either the legality of the mode of fishing, or the effect of its illegality, should it be made out. But I am very clearly of opinion that it was a mode of fishing by fixed engines, and comprehended within the prohibitions of the statutes. Indeed the description of the mode of fishing I think proves that beyond question. In these circumstances, I am of opinion that the Duke of Richmond has made good his title to the exclusive right of salmon-fishings ex adverso of the lands on the west bank of the river within the bounds mentioned, and the right of salmon-fishing by net and coble ex adverso of the defender's lands, and that the defender has no such right. I am also of opinion that the pursuer has a good title to prevent the defender from fishing by rod and line ex adverso of the east bank, in so far as that may be done in prejudice of his right to fish with rod and coble. The only difficulty that I have found in the case—and I only throw it out because it has pressed a good deal daring my consideration of the case—is whether we should go farther in giving effect to the conclusions of the summons than what I have now said ; and I shall state my difficulty in a single sentence. I think this title of the Duke of Richmond is not a title to the whole fishings in the Spey,—on the face of it, and construed by itself. It is a good title to salmon-fishings, but I think it a title limited to the lands in respect of which it is conveyed; and I think it falls under the description of the Lord Justice-Clerk Hope, in the case of Breadalbane v. Campbell's Trustees, where it was laid down that, if fishings are conveyed in connection with lands, the presumption always is that it is fishings ex adverso of the lands that are granted, and no other. Now, it is quite true that the Duke of Richmond has for forty years and upwards fished ex adverso of the defender's lands by net and coble, which is the appropriate mode of exercising the legal right. The question in my mind is, Whether lie has thereby prescribed the whole title of salmon-fishings in the river, or whether he has prescribed anything beyond the right to draw his nets as regards the east side. I understand that your Lordships do not participate in these doubts; and I am not disposed to press them to the extent of a difference of opinion. The real question comes to be this, and it is in my mind one of considerable difficulty, —Although he has the right of drawing his nets and fishing with net and coble absolutely and exclusively on the east as well as on the west bank, has he prescribed a right to go there for any other purpose, or to interfere with any person exercising any right of any kind there, so long as his fishing by net and coble is not impeded? It would come, therefore, to the question, whether the salmon-fishing on that side was not still in the Crown although burdened with the right of the proprietor of the fishings on the other bank to draw their nets on the east bank. I have some difficulty on that subject, but I do not intend to do more than simply indicate the ground of my doubt.
Lord Cowan—The leading conclusions of the summons seek to have it declared that his Grace the Duke of Richmond's right of salmon-fishing in the River Spey is sole and exclusive within the boundaries therein set forth. There are alternative conclusions, to the effect that the pursuer has right to the salmon-fishings in the said river within the said boundaries ex adverso of the lands specified; and that by net and coble, rod and line, and every other lawful mode. The Lord Ordinary by his interlocutor negatives the exclusive right claimed by the pursuer, but decerns in his favour in terms of the other conclusions—as to which, indeed, no dispute existed between the parties. The real question at issue under the record is, Whether under the title-deeds on which he founds the pursuer is or is not entitled to have his undoubted right of salmon-fishing in the Spey within the specified bounds declared to be exclusive of any right to these fishings in the defender, the Earl of Sea-field.
The right of salmon-fishing is inter regalia, but being in its nature patrimonial may be the subject of grant by the Crown. The grant may be of the salmon-fishing in any particular river or locality, and to be held of the Crown as separatum tenementum; or it may be granted along with lands whether constituted into a barony or not, bounded by the river—the extent of the grant in that case being for explanation by the possession which follows upon it. An inquiry regarding an alleged right of salmon-fishing therefore requires, in the first place, an examination of the titles from the Crown in virtue of which it is asserted; and, in the second place—when the title as regards its extent is not clear in its terms—evidence of the possession and enjoyment which the Crown vassal has had under his titles.
The ownership of the fishings within the boundary set forth in the first conclusion of the summons was acquired by the pursuer and his authors from Mr Wharton Duff of Orton by disposition dated in 1829,—Mr Duff retaining the ownership of the lands and estate of Orton, to which the right of
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On the other hand, the defender is proprietor of the lands and estate extending along the whole of the east or right bank of the river, in so far as the boundaries of the disputed fishings extend from south to north, under Crown titles which do not confer any grant of salmon-fishing, but only a right of fishing—the sole Crown grant of salmon-fishing per expressum in the Spey within the specified boundaries being vested in the pursuer.
As regards the possession of salmon-fishing which has been enjoyed by the pursuer, and its extent and character in this competition with the defender, a lengthened proof has been led, both parole and documentary. Its bearing and effect on the exclusiveness of the pursuer's right will be hereafter noticed. Meanwhile it is important to keep in view the express admission by the defender, contained in the joint minute, No. 96 of process, viz., that the pursuer and his predecessors and authors have “regularly fished by net and coble for salmon from both sides of the Spey, shooting their nets from and hauling them upon both sides,” along the whole extent of the fishing boundaries embraced within the conclusions of the summons “from the year 1802 down to the present time.” The parole proof carries the possession so far back as 1793, and some of the tacks produced are dated in 1783 and 1808. But this admission in itself renders it unnecessary, in examining the proof, to do more than to inquire whether the right so enjoyed has been exclusive, or whether the defender or his predecessors have exercised a right of salmon-fishing in the Spey within these boundaries, on which he can found as a good answer to the pursuer's claim of exclusive right. Supposing that the possession admittedly enjoyed by the pursuer has not been so interfered with by the defender, then the Crown title of the pursuer must be held sufficient to have vested in him an absolutely exclusive right to these fishings.
The Orton fishings are described in the charter of 1766 thus—“ac etiam totas et integras villam et terras and cum salmonum piscatione super aquam de Spey vsitat et consuet, lying within the barony of Barmuckety, as the same are described in the disposition referred to which sets forth the lands and estate of Orton, comprehending the lands therein mentioned—“cum salmonum piscatione in acqua de Spey diet, terris spectan.” The same description is contained in the subsequent Crown charter of 1806 in favour of Mr Wharton Duff; and in the conveyance of the fishings in favour of the ancestor of the pursuer in 1835, they are described as—“All and whole the salmon-fishings, and the other fishings in the Kiver Spey, belonging or attached to my lands and estate of Orton,” together with the haill privileges and pertinents belonging to the said fishings— as the same are all presently held in lease by Messrs Hogarth & Co., conform to tack dated April 1817,” under reservation to Mr Duff and his successors in the estate of Orton of the privilege of fishing with rod for amusement only. The same description is contained in the pursuer's own charter of 1861, under which he is infeft. The leases of the tenants here mentioned are produced, and are, with other leases, under which from 1782 downwards these fishings and those of the lower water were possessed, referred to in the proof, and will be found in the joint appendix.
The fishings of Elie, and Inchberry, and Ordiefish, again, are described in the Crown charter of 1861 as having been conveyed to the pursuer's authors along with the lands in these terms, “cum omnibus salmonum piscariis omnium et singularum prædictarum terrarum super dicta aqua de Spey usitat. et consuet;” and this description, in nearly the same terms, is to be found in all the subsequent titles by which the lands and the right of salmon-fishing attached have come to be vested in the pursuer under his Crown charter of 1861, the said lands and fishings being set forth as contained in the several baronies specified in the titles.
It was contended by the defender that the rightof salmon-fishing thus conferred did not purport to be of the whole fishings in the river Spey within the specified bounds, but only of the salmon-fishings ex adverso of the lands of Orton and of Elie and Incliberry, which extended only along the left or west side of the river; and this proposition has to a certain extent been affirmed by the Lord Ordinary. But it is undoubted that a baronial title so expressed, when followed by immemorial possession of the whole fishings in the water, with the use of both banks for drawing the nets, is as effectual as the grant of the whole salmon-fishings in the river to a party having no landson either bank as separatum tenementum. Where the proprietors on either side of the river have grants of salmon-fishing from the Crown, their right of fishing is to be exercised so that each may draw his nets only on his own side. But where only one of the proprietors has the right of salmon-fishing in the river, he may under his Crown title acquire an exclusive right and the privilege of drawing his nets on both sides of the river by immemorial possession and enjoyment of that privilege. His title is thus explained, and the grant established to be as effective as if he had had a grant of salmon-fishing unconnected with land on either side of the river; in which case it is undoubted that the grantee may in the exercise of his right draw his nets on both sides. This was decided in the case of Forbes ( 10 D. 840) so long ago as 1623, referred to by Lord Stair, 2, 3. 69. “Prescription of forty years' possession of salmon-fishing sustained ad hoc that they might draw in other mens' lands than their own, albeit only infeft in a barony with salmon-fishing upon a side of the water.” This has ever been recognised as undoubted law where there is no competing right in the proprietor of the opposite bank of the river, and immemorial possession has followed on the grant contained in the baronial title. So recently as 12th March 1862, in disposing of the case of Richardson v. Hay, the opinions of the Court recognised this principle, although, because of there having been no possession, the decision was adverse to the pursuer's alleged right in that case.
It is not therefore to be disputed that the pursuer has acquired under his titles and admitted possession for time immemorial the right of salmon-fishing which he claims, unless there has been acquired by the defender on the grounds
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The title of the defender to the lands on the right or east side of the river Spey bears “All and Whole the lands and barony of Mulben, comprehending,” &c., “with the fishings thereof,” and other pertinents of the same, used and wont, as also “all and whole the lands of Cairnty,” &c., with “fishings” and whole pertinents thereof, used and wont, incorporated into the free barony of Mulben by royal charter dated in 1616. This is the only Crown title. It does not contain a grant of salmon-fishing, but only a grant of fishing; and under this title, although there has been fishing for salmon by cairns and by rod and line, there has been no possession at any time enjoyed by the defender or his predecessors of salmon-fishing by net and coble. The defender, as proprietor of other subjects along the banks of the Spey above the boundaries here in question, and in virtue of other titles, may have had salmon-fishings. But under the titles to his lands within the boundaries embraced by this action he has never had such fishing. The allegation to that effect in the record is not supported by the proof, and was not persisted in by the defender's counsel in the recent debate. But it is set forth that a sub-vassalage was created by one of the defender's predecessors in 1633 by the conveyance to John Mann of Greenhead of the lands of Cairntie, “una cum salmonum piscaria dictis terris de Cardenie et Delchurie supra australi latere dictse acqua de Spey pertinen;” and that the subjects of this feu were reconveyed to the defender's predecessor in 1755 with the salmonfishing pertaining to the said lands, and this subvassalage is alleged now to be in the person of the defender. But it is manifest that as the granter of the original feu had no right to salmon-fishing himself, and as no possession of salmon-fishing by net and coble has followed on the feu right, the existence of this title can have no effect in competition with the grantee of the Crown, and under whose title alone there has been past memory the sole use and enjoyment of salmon-fishing by net and coble.
The defender, however, has alleged use and possession of fishing for salmon by cairns and by rod and line; and such possession, it is contended, is sufficient, having regard to his title cum piscationibus, to confer on him a general right of salmon-fishing ex adverso of his lands. Taking the possession alleged to have been established by the proof, its relevancy or sufficiency in law to support this assertion of right has to be considered, keeping in view the express grant of salmon-fishing held by the pursuer, and immemorial enjoyment and possession of fishing in the whole river by net and coble had by the pursuer and his predecessors.
1. As regards fishing by rod and line, it is quite established to be insufficient for the purpose. In Duke of Sutherland v. Ross, 11th June 1836, it was expressly decided that “a right of salmon-fishing cannot be constituted by a grant1 cum piscationibus' and subsequent use of taking salmon by means of rod-fishing only.” The earlier cases of Forbes and of Colquhoun, and of Chisholm, are referred to by the Lord Ordinary, who decided the case of Sutherland v. Ross as having substantially affirmed the same doctrine; and Lord Medwyn, when the case was advised in the Inner House, thus stated the principle—“A clause cum piscationibus, even in a charter from a subject superior, is sufficient if the possession be complete by net and coble: but the mere exercise of rod-fishing for the supply of the table, or for amusement, is not evidence of such possession, especially in opposition to a clear and undoubted royal grant with full possession.” And after referring to the older decisions, his Lordship observed “that the symbols of net and coble used in the conveyance of salmon fishings show the nature of the fishing which the law had in view.” These views were concurred in by all the Judges, the Lord Justice-Clerk (Boyle) stating it was matter of every-day practice for adjoining proprietors on the Tay and the Tweed “to purchase the right of fishing salmon with the rod from the tacksman of the fishings.” The more recent case of Milne v. Smith, 23d November 1850, proceeded on the same footing, the Lord Justice-Clerk (Hope) observing “fishing by rod is not a ground in our law for acquiring a right of salmon-fishing, even with a Scotch title cum piscationibus.” Lord Medwyn said “that no right of salmon-fishing can be acquired by the exercise of it by the rod merely” under such a title; and Lord Moncrieff, referring to the case of the Duke of Sutherland v. Ross, which he held to be well decided, said “that a use of fishing by rod and line was altogether irrelevant and insufficient, however long continued, for establishing a right of salmon-fishing.” With these authorities it would be quite inconsistent to hold that, with the title and possession here alleged, the defender can compete with the express grant of salmon-fishing vested in the pursuer.
2. The defender, however, maintains that he has proved such possession of fishing for salmon by means of cairns prior to 1835 as to support his right to dispute the exclusive character of the pursuer's right by net and coble, and all other lawful means. To this there are several answers—(1) On the proof, it is at least doubtful whether the necessary possession of this cairnfishing in the river has been established. (2) Supposing it to have been so, the mode of fishing thus practised was in itself illegal, and as such was discontinued after the interdict obtained against it, or a similar mode of fishing, in 1835. And (3) even were it otherwise, it is not a kind of fishing, any more than rod-fishing, that can be held to support tire defender's pretension that he has thereby, under his title cum piscationibus, acquired a right of salmon-fishing on which he can found in this competition.
(1) The proof does not establish cairnfishing by the defender except at certain places within the bounds embraced in the first conclusion of the summons—viz., on the part of the river the fishings of which were acquired from Mr Duff of Orton, and, moreover, was only practised by tenants of houses and small tenements of land lying along the bank of the river. Nor was the fishing such as it was exercised under distinct leases granted by the defender, but was apparently practised by these tenants at their own hands because of their facility of access to the river. In this situation, and having been discontinued after 1835 because of its illegality, it does not appear on what ground it can now he availably pleaded, though otherwise not objectionable. But apart from this, (2) cairnfishing falls within the prohibition of the statutes, and is illegal. Accordingly, in 1836, complaint was made to this Court against the defender, his predecessors, and tenants, by the then proprietor of the salmon-fishings, because of the formation of dykes across
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Again (3) even were the illegality of cairnfishing less clear than it is, this kind of fishing could not, any more than fishing by rod and line, he held sufficient to explain the general term “fishings” in the defender's title to be inclusive of salmon-fishing. The absence of fishing by net and coble is destructive of such inference in competition with the pursuer's right. It is, however, enough to say that the illegality of this kind of fishing excludes it from being founded on as conferring any right through prescriptive possession to any effect; far less a complete title to salmon-fishing. To complete such a title the prescriptive possession founded on must have been exercised in a legal manner, and no possession, however long, which is exercised in a manner contrary to statute will suffice to confer salmon-fishing, under a title which requires prescriptive possession to explain or complete the right.
(4) As neither of the modes of fishing on which the defender founds is sufficient to support his alleged right, it is equally unavailing for this purpose that the title on which he founds is a baronial title. The mere erection of lands and pertinents into a barony will not by itself confer a right of salmon-fishing. This may now be held to be authoritatively ruled, notwithstanding of the passages in Lord Stair's work, on which some argument to the contrary was founded. Mr Erskine is clear on this point, as also Mr Bell. It is, however, a good foundation for acquiring a right of salmon-fishing by prescriptive possession, provided that possession has been by net and coble. The effect of a baronial title under the Crown goes no farther. The various decisions reported in the Dictionary under the section “Title requisite to carry right of salmon-fishing” afford authority for this proposition, as do also the modern decisions referred to in Mr Stewart's book on rights of fishing, where the law on this point is well explained.
On these grounds, I have arrived at the opinion that the pursuer is entitled to have decree under the leading conclusions of the summons to the effect there stated—viz., “that the pursuer has the sole and exclusive right to the salmon-fishing in the river Spey” within the several boundaries therein specified; and that he “is entitled to fish for salmon and fish of the salmon kind, by net and coble, rod and line, and every lawful mode, from the right or east bank or shore of the said river Spey belonging to the defender, between the said points or boundaries, as also to enter upon and use the said portion of the said right or east bank or shore for the purposes of fishing, at least in so far as necessary for the full and effectual exercise of the pursuer's said rights of salmon-fishing.”
Two questions are raised as to rod and line-fishing by the latter branch of these conclusions and by the relative interdict concluded for.
(1) One of those questions relate to the defender's alleged right to fish by rod and line along his own bank. On this point I consider that the defender has not placed himself in a situation effectively to plead this defence. Throughout the proceedings in this action the defender has stood entirely on the defensive. Although his title merely confers on him “fishings,” he has not attempted, except in answer to the exclusive right claimed by the pursuer, to make out that under his general title he can exercise salmon-fishing by rod and line in limitation and so far to the injury of the full right of the pursuer. In any view I apprehend that such limited right must be judicially declared to belong to the defender, as no express title to that effect is in his Crown grant, before it can he effectually pleaded. But I know of no case where such a limited Crown grant has been given or been recognised, where the full right and title of salmon-fishing in a river has been conferred on another grantee. A grant of salmon-fishing by net and coble includes rod and line-fishing— Major includit minorem; and a competing right to fish with rod and line rested in the mere use of that mode of fishing under a general title cannot be effectively pleaded to the detriment of the Crown grantee's perfect right.
(2) The second question regards the power of the pursuer to use the east bank of the river in the
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Lord Benholme—This is a very important case from the stake at issue; but it is more important in this way, that the interlocutor which your Lordship has proposed, and which my brother and I are to concur in, is an alteration of the Lord Ordinary's interlocutor in a very substantial matter. For that reason we need not offer any apology for stating our views. At the same time, after the very full explanation of those views which Lord Cowan has given, in all of which, except the few last sentences, I am inclined to concur, it shall be my endeavour to limit any observations I have to make to the matters on which your Lordship entertains doubts. Were it not for those doubts I think I might satisfy myself by merely concurring in Lord Cowan's opinion. But those doubts are of such importance, and they seem to spring so much from principle,—a principle which I cannot myself adopt, but which, as your Lordships deal with it, assumes very considerable interest and importance,—that I must briefly refer to those considerations which in my mind remove those doubts altogether. The first important thing is to attend to the titles of the pursuer; and I must say that I do not concur in the view that your Lordship entertains of these titles. I think these titles are ex facie titles to the whole river fishing opposite the lands to which they relate. I read the title “super aquam de Spey” as meaning over the whole, not half, the river. We all know that where coterminous rights of fishing have been conferred on heritors on the opposite sides of a river the existence of the two rights necessarily leads to a modification of each ; and it is that circumstance that leads to the inference that each has right to one-half of the river fishing, that is to say, to fish half across the river. But where there are no competing grants—where the Crown has granted nothing except on one side, and that super aquam,—I look on that as a title ex facie embracing the whole river; for “super aquam de Spey” appears to me to mean the whole river,—quite across the river, and not half across. Now, in the present case it may perhaps be said to be of little consequence to examine the precise effect of the titles taken by themselves, since there has been superadded to them an amount of possession so long continued as to leave no doubt as to their present efficacy. But I have thought it right to say that in my view the possession which has followed, coupled with the words usitat et consuet is a possession that explains the titles, rather than serves to enlarge or extend them in the way of acquisition by prescription. And this is a distinction which I think touches very closely the doubts that your Lordship has expressed upon another part of the case, viz., the matter of rod-fishing. If the Duke of Richmond's rights to salmon-fishing are founded as to their nature and extent mainly upon prescriptive possession rather than on the contents of his Grace's titles, then no doubt the maxim would apply Tantum prœscriplum quantum possessum, and whatever the Duke had not possessed for forty years continuously he is not to be entitled to enjoy. Now my view of the Duke's title is much more extensive. I think it is a grant of the regale over the whole of these bounds, and I think it is a grant which embraces the salmon-fishings on both sides, and with right to draw the nets on both sides. I think that the right of fishing with net and coble, which is the larger right, necessarily carries along with it the smaller right of fishing by the rod. Being a right of salmon-fishing quite across the river, and to be exercised on both sides of the river so far as net and coble (the proper regale) is concerned, I look on these minor rights, which in fact are inseparable from the larger right, as to be exercised in the same way, and understood to be enjoyed to the same amplitude as the other. Your Lordship will see that this view serves in a great measure to remove from my mind any doubt that I might otherwise have entertained as to the right of the Duke to fish with rod from the other side of the river, because, if I am at all correct in my view of the Duke's title of salmon-fishing, it is a right of salmon-fishing which, from its very constitution, by the terms in which it is expressed, contains the royal right quite across the river, and with the royal right every inferior right quite across the river, and with the right of exercising it on both sides. Now, as to the possession of the salmon-fishings; after what has been said by both your Lordships, it would be idle in me to say a word, I will only observe that this is certainly one of the most extensive enjoyments that I have ever known of salmon-fishing, for not only has the salmon-fishing been exercised on both sides (and it would appear from the evidence of the witnesses more beneficially on the east side than on the other), but the pursuer and his authors have actually been in the practice of erecting huts on the east bank for the accommodation of their salmon-fishers; and there are no less than three huts marked on the plan, the ruins of which, I believe, still remain to show how extensive the possession has been in former times of this right of salmon-fishing.
Now what does Lord Seafield maintain? Your Lordships have spoken to his titles independently of prescription. Independently of prescriptive possession his title is quite insufficient. And as to
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Lord Cowan—I may be allowed to say, after the observations made by Lord Benholme, that I have no desire to qualify the interlocutor to be pronounced. The reservation I proposed was only a suggestion, but I suppose it necessarily reserves itself, and the defender can bring an action if he sees fit. And therefore I withdraw my suggestion, as it is not in accordance with his Lordship's opinion.
Agents for Pursuer— Gibson-Craig, Dalziel & Brodies, W.S.
Agents for Defender— Mackenzie, Innes & Logan, W.S.