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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case for the Lord Advocate and the Commissioners of Northern Lighthouses [1874] ScotLR 11_538 (27 May 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0538.html
Cite as: [1874] SLR 11_538, [1874] ScotLR 11_538
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SCOTTISH_SLR_Court_of_Session
Page: 538↓
Court of Session Inner House Second Division.
Facts:
A disposition conveyed the lands and islands of May “cum potestate omnia genera piscium cum tramis retibusque seu alio quovismodo prendendi et capendi.” but was not followed by the exercise of the right of salmon fishing. Held that the clause was insufficient to carry the right of salmon fishing.
The facts of this case are as follows:—In 1743 David Scott, Esquire, of Scotstarvet, obtained from the Crown a charter of resignation of the lands and barony of Scotstarvet and others, in favour of himself in liferent and his eldest son and other heirs mentioned in fee. The said charter, which is dated 14th March, and sealed 28th July 1743, comprehends, inter alia, “Totas et Integras Terras et Baroniam de Westbarns comhrehenden totas et integras terras et terras dominicales lie Mains de Westbarns cum fortalicio manorii loco domibus ædificiis hortis pomariis molendinis terris molendinariis multuriis et sequelis earund. partibus pendiculis lie outsetts insetts tenen. tenan. el libere tenen. servitiis et singulis pinen. earund. cum feudfirmsæ divoriis omnium et singalarum acrarum prædict. terrarum et Baronise de Barns in feudifirmæ locat per quond. Alexrum Cuningham de Barns cum consensu Gulielmi Cuningham sui patris certis personis burgi de Crail inhabitantibus jacem infra parochiam de Crail et vic. de ffyfe una cum Insula de May terris insularibus cum mansione hortis et pertubus. ejusd. prout jacent in longitudine et latitudine cum luminaribus et Domo Luminare super ead. ædificat. cum privilegiis et emolumentis usitat. et consuet et iid spectan. cum proficuis privilegiis et pinen quibuscunq. jacen. in ostio maris ffluvii infra dominium de Pittenweem et vtc. de ffyfe cum potestate omnia genera piscium tarn infra quam extra Insulam et in locis circum vicinis Insulis cum tramis retibusq. seu alio quovismodo prendendi et capendi ac pisces ipsos sic prensos et captos in cadis doliis seu barellis aut alias qualitercunq. ad libitum eorum saliendi aut sali condiendi vulgo lie pack et peill vocat. Quæ omnes terræ Westbarns cum Insula et pitvivilegiis suprascript, olim et nuper Erect. Unit et Incorporat. fuerunt in unam liberam Baroniam Baroniam de Westbarns nuncupat.”
In the lands, fishings, and others above mentioned Mr Scott was infeft, conform to instrument of sasino following on the foresaid charter, dated 4th October, and recorded 2d November 1743.
On the death of the said David Scott he was succeeded by his niece, Miss Henrietta Scott, afterwards Duchess of Portland, who was duly served heir to her uncle, and thereafter infeft in the lands, barony, fishings, and others aforesaid, conform to instrument of sasine in her favour, dated 31st October, and recorded 18th November 1785.
By disposition, dated 18th April 1814, the said Henrietta Scott, then Duchess of Portland, with consent of her husband, and in consideration of the sum of £60,000 sterling, conveyed to the Commissioners of Northern Lighthouses, “All and Whole the island, lands, and island of May, with mansion-house, yards, and ports thereof, as the same lye in length and breadth, with the lights and lighthouse built upon the same, and with the privileges and emoluments used and wont and thereto belonging, and with the profits, privileges, and pertinents of the same Whatsoever, lying in the mouth of the sea and river or firth of Forth, within the lordship of Pittenweem and sheriffdom of Fife, with power of catching and
Page: 539↓
taking all manner of fish as well within as upon or about the said island, and in the places surrounding the same, with hooks or nets, or in any other manner of way, and of salting or packing with salt (commonly called packing and peeling) the fish so caught or taken in casks, hogsheads, or barrels, or otherwise at their pleasure, and according to the custom of any other persons, with the teinds, parsonage and viccarage, of the said island and pertinents, as formerly comprehended under the Barony of Westbarns, and lying as foresaid, in so far as we have right to the said teinds, together with all right, title, and interest which we or our predecessors and authors had, have, or can anyway claim or pretend thereto in all time coming.” Following upon the said disposition in their favour, the Commissioners of Northern Lighthouses obtained a Crown charter of resignation, dated 20th December 1814, and written to the seal, registered, and sealed 16th February 1815, containing, inter alia, the following clause:—“Et cum proficuis privilegiis et pertinentiis earundem quibuscnnque jacen in ostio maris et fluminis vel freti de Forth, intra dominium de Pittenweem et vicecomitatum de Fife cum libertate prehendi et captandi omnia genera piscium tam intra vel super quam circa dict. Insulam et in locis eandem circumambientibus cum hamis retibusve seu ullo alio modo ac saliendi vel condiendi (vulgo vocat. packing and peeling) pisces prehensos et captos in cadis doliis seu barellis vel aliter uti placeant ac secundum consuetudinem ullarum aliarum personarum cum decimis rectoriis et vicariis dietæ Insulae et pertinentium uti antea intra baroniam de Westbarns comprehensis et jacen ut prædicitur.”
In virtue of a precept contained in the foresaid charter, the Commissioners of Northern Lighthouses were infeft in the subjects above mentioned, conform to instrument of sasine in their favour, dated 12th, and recorded 19th, September 1815.
The Commissioners of Northern Lights contended that in virtue of the titles above mentioned they had exclusive right to the salmon fishings in the sea surrounding the Isle of May, in so far as the right admits of being exercised from the island.
On the other hand, the Commissioners of Her Majesty's Woods and Forests maintained that the Crown is vested with the rights to these fishings notwithstanding the terms of the titles above mentioned, inasmuch as the Commissioners of Northern Lighthouses have not exercised the right by net and coble, or otherwise, for the prescriptive period. The Commissioners of Northern Lighthouses admitted that they have not so exercised the right.
The questions put to the Court were:
1. Whether, in the circumstances above explained, the salmon fishings around the Island of May belong to the Commissioners of Northern Lights? or
2. Whether the said salmon fishings are vested in and belong to Her Majesty?
Authorities cited—Ersk. Inst., ii. 2, 615; Ersk. Prin., ii. 2. 11; Menzies, 19 F.C. 531; Forbes, M. 14,250, 7812; Campbell, M. 14,250; Gemmell, 13 D. 854; 8 Macph. 419.
At advising—
Lord Justice-Clerk—This is a question of novelty but of no great difficulty. The title of the Commissioners was acquired from a crown vassal in 1814. The Duchess held the barony of Westbarnes of which the island is a part, with the clause we have here, and the question is, although it is not alleged the Commissioners have ever captured a a single salmon, whether these words confer a right of salmon fishing on them? It is plain the right conveyed by the disposition of 1814 cannot be wider than the right held by the Duchess, and so the question is what her right was? Is it different from the right conferred by an ordinary clause cum piscationibus without possession following. The same question was raised in the two cases of Forbes and Campbell. In the case of Forbes there was strong proof of possession; both parties alleged possession, and the judgment did proceed on possession, and found possession by wand and spear insufficient. Probably also in 1701 the general rule was not so firmly fixed that a clause cum piscationibus was good to constitute prescriptive possession but not a grant of salmon fishings. The case of Campbell is so imperfectly reported that the grounds of judgment cannot be ascertained. I think the clause here really relates to those kinds of fishings which can be conveyed as a pertinent of lands, and not as a separate tenement, so that salmon fishings are not included.
The Court answered the first question in the negative, but declined to answer the second question.
Counsel for Lord Advocate— Solicitor-General (Millar) and Ivory. Agent— Donald Beith, W.S.
Counsel for the Commissioners— Rutherfurd and Dean of Faculty. Agent— A. Cunningham, W.S.