Scottish Court of Session Decisions

This was an action at the instance of the Earl of Moray against Peter Higgins, residing in Forres, and the Provost and Magistrates of the royal burgh of Forres, as representing the community, concluding to have it found and declared that the pursuer was heritable proprietor of and had the sole and exclusive right to the salmon-fishings in that part of the river Findhorn from Dunduff (where the boundary between Elgin and Nairn touches the Findhorn) to the Red Craig, a point on his estate of Darnaway, subject to a reservation of such rights as the proprietor of the estate of Relugas might possess, and that defenders had no right or title therein, and for interdict against defenders fishing therein for salmon in any manner of way. The Findhorn flows from south to north at that part.

The immediate title of the pursuer was a Crown writ of clare constat, dated on the 13th and recorded in the Register of Sasines on the 17th August 1872. The earliest title upon which he founded in his record was a Crown charter of resignation dated 30th November 1730, on which sasine was expede on 15th February 1731. By this title the pursuer's ancestor was infeft in the Earldom of Moray “cum salmonum piscationibus de Findhorn, Spey, Sluipool, et Lossie,” and the subsequent titles were identical in expression. In particular, the Crown writ of clare constat of 1872 first mentioned was so expressed. He averred that he and his predecessors had from time immemorial, or at all events for more than forty years, exclusive right of salmon-fishing by net and coble and rod in the part of the Findhorn which was the subject of this action, and that no right by the defenders existed or had till recently been asserted. The water in question was known generally as Darnaway water.

With regard to the ancient documents which he produced, though the summons was not founded upon them, and they did not constitute a continuous title, it appeared that on 1st June 1501 James IV. granted to Janet Kennedy, Lady Bothwell, a liferent conveyance of Darnaway Castle and the fishings of the Slewpule while she should remain there with James Stuart, her son by the king, and afterwards Lord Moray.

In a Crown charter of 12th June 1501, by which he granted to this son the Earldom of Moray, James IV. granted to him the castle of Darnaway with the fishings “de Speya, Fyndorn, Slewpule, et Lossy.”

The earliest title with which the pursuer connected himself was a charter by Henry and Mary, dated 1st June 1566, which gave the Earl of Moray the salmon-fishings “in aequis de Spay, Findorne, Slewpule, et Lossy.”

The same order is followed in an instrument of sasine in favour of James Earl of Moray and his wife, dated the 25th-28th June 1566, in an Act of Parliament in favour of James Earl of Moray dated 11th August 1607, and in a royal charter in favour of James Earl of Moray dated 19th April 1611. Later titles varied the order in which these words were used.

The defence was a denial that the pursuer's title was sufficient to give him an exclusive right claimed, and a denial of his alleged exclusive possession, and separatim, the defenders contended that the pursuer's title gave him no right to salmon-fishing in any portion of the water claimed except the Sluiepool. The burgh maintained right to salmon-fishings from Dunduff House to the “banks of the Findhorn” by a Crown title (except so far as conveyed away by the burgh), followed in any view by immemorial possession. This Crown title is fully discussed in the opinion of Lord Rutherfurd Clark. It

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was of this nature (1) a royal charter dated 23d June 1496, in favour of the burgh of Forres. After narrating that the charter, &c., of the burgh had been lost “by the hazards of wars, by burnings and such like,” it proceeds to confirm lands, waters, fishings, inter alia, “the water and fishings at Findern, from Dunduff as far as to the bank of Findern, as well in fresh water as in salt, with all fishes and fishings, mussels and mussel skawps, and with all other fishings, possessions, and freedoms which from of old pertained or are known to pertain to our said burgh, and liberty thereof; and with power to the said burgesses of setting in tack the said water, and of fishing and labouring upon the same in whatsoever part they may please within the said bounds with boats and nets.” The tenendas clause of the said charter is as follows: “To be held and had, our aforesaid burgh of Forres, to the aforesaid alderman, bailies, burgesses, and community thereof, and their successors, of us, our heirs and successors, in free burgh, burgage fee, and heritable for ever. .. with the water and fishery of Findern, fishes, fishings, mussels, mussel skawps, boats, nets, port and station of ships within the same water, with all the bounds and pertinents of the same as above is expressed, and with all other sundry lands, annual rents, possessions, waters, fishings, mills, multures, muirs, marshes, roads, paths, and other emoluments,” &c. The reddendo clause is in these terms—“Paying therefor yearly, the said alderman, bailies, burgesses, and community and their successors, to us, our heirs and successors, the burghal fermes and duties due and wont to us from the said burgh, and rendering other services and burdens for their part as other burghs within our kingdom do; paying also yearly to the Abbot and Convent of our monastery of Kinloss and their successors, the sum of twenty merks usual money of our kingdom, at the two usual terms of the year, to the said Abbot and Convent of the fermes of the waters and fishings aforesaid, given and granted by the old foundation thereof made by our sometime most noble progenitors only.”

(2) The next charter on which the defenders founded in their record was a charter of 1539 by which the Abbot of Kynloss set, disponed and let in feu to the magistrates and community of Forres “seven-sixteen parts of our fisheries on the fresh water of the Findhom.” (3) The next was a charter of 24th June 1592 by James VI. in favour of the town of Forres confirming their right to the seven-sixteenths of salmon-fishings acquired from the Abbot of Kinloss. (4) The next was a Crown charter of 1641 confirming that of 1496, and expressly confirming the grant of water and fishing of Findhorn from Dunduff unto the bank of Findhorn, both in fresh water and salt. The defenders alleged possession under these charters from time immemorial by net and coble where practicable, and by rod and line elsewhere, through themselves and their vassals and tenants, and particularly such possession for the whole piece of river to which the pursuer's summons related.

The immediate cause of the raising of the question was an appeal to the Circuit Court of Justiciary at Inverness by the defender Higgins, an inhabitant of Forres, against a conviction by the Sheriff of fishing for salmon without legal right within the boundaries in dispute. The conviction was set aside by Lord Mure in respect that a competition of civil right was the real nature of the dispute, See ante, Earl of Moray v. Higgins, vol. xxii. p. 8, Sept. 9, 1884.

Proof was led. The proof showed that Lord Moray had had exclusive possession.

The Lord Ordinary ( Kinnear) pronounced the following interlocutor:—“Kepels the defences; finds and declares, and interdicts, prohibits, and discharges in terms of the conclusions of the summons, and decerns.

“ Opinion.—The pursuer claims an exclusive right to the salmon-fishings in the river Findhorn between the boundaries libelled, i.e., from Dunduff, on the south to the Red Craig on the north, subject to the right of the proprietor of Relugas to fish with rod and line ex adverso of his property.

The defenders maintain—(first) That the pursuer's right does not extend over the whole reach of water described in the conclusions of the summons, but is limited by the express terms of his title to the fishing of a single pool called the Sluiepool; and (secondly) that assuming that his title, as explained by possession, could be construed as extending beyond the Sluiepool, he has had no exclusive possession, but, on the contrary, that the burgh of Forres has for time immemorial possessed salmon-fishings within the boundaries libelled by virtue of a Crown title.

The first question to be considered, therefore, is the construction of the pursuer's title.

The immediate title is a Crown writ of clare constat, dated on the 13th, and recorded in the Register of Sasines on the 17th of August 1872, and in this instrument the salmon-fishings are described, as in the conclusions of the summons, as the salmon-fishings of Findhorn, Spey, Sluiepool, and Lossie. It is not maintained that this would be insufficient to cover fishing in the Findhorn other than that of the Sluiepool. But it appears that in some of the earlier titles, and in particular in the earliest with which the pursuer connects his own, a Crown charter dated 1st June 1566, in favour of James Earl of Moray, the fishings are described in a different order as ‘salmon-fishings in the waters of Spey, Findhorn, Slewpule, and Lossie,’ and it is suggested that in this collocation the names Findhom and Sluiepool must be read together as defining the particular portion of the water of Findhorn to which the grant was intended to relate. It is said that if it had been intended to cover a continuous reach of water, extending for several miles above and below the Sluiepool, the specification of that particular pool alone would be unintelligible, and that the only reasonable construction of the description is to read it as meaning the ‘Sluiepool of the Findhorn,’ or, in other words, as a short way of saying ‘that part of the water of Findhorn known as the Sluiepool.’ And if this be the true construction of the original grant, it is said that the right which it confers cannot be extended by a mere transposition of names in subsequent charters by progress, whether such transposition is to be ascribed to design, or to the carelessness of conveyancers.

This is, in my opinion, too slight a reason for disregarding the evidence of possession. The fishings are described by names and not by specific boundaries, and if no other reason could be suggested for the mention of the Sluiepool except that put forward by the defenders, the extent

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of the grant intended by the use of that name must still have been ascertained by the possession which has followed upon it. But the explanation proposed by the Dean of Facuity appears to be at least plausible. It appears that by a conveyance in liferent, dated 1st June 1501, King James IV. granted to Janet Kennedy, Lady Bothwell, the Castle of Darnaway, with certain lands in the county of Moray, and the fishings of the Slewpule for the whole term of her life, so long as she should remain unmarried and reside with her son by the King, James Stuart, afterwards Earl of Moray, in the Castle of Darnaway, or any other residence approved of or provided for her by the King. By a charter, dated the 12th day of the same month and year, the King granted to his son the lands and Earldom of Moray in fee, with, inter alia, the fishings of Spey, Findhorn, Slewpule, and Lossie. A part of the lands and a part of the fishings belonging to the earldom were thus carved out and given in liferent to the mother, while the entire earldom and the whole fishings were given in fee to the son. In this way it is suggested that the fishings of Slewpule, which was really a portion of the fishings in Findhorn belonging to the earldom of Moray came to be mentioned as a separate tenement in the titles of 1501. Later conveyancers finding it so mentioned naturally repeated it as a separate tenement in preparing the subsequent titles, and, as appears from the extracts from retours of services, they repeated it without any regard to the particular order in which it should be placed among the various names descriptive of the different fishings included in the title to the earldom.

On the other hand, there is evidence in the precept, dated 3d February 1498–9, extracted from the Register of the Privy Seal, that at that date the fishings of “Sloypule” was known as a separate tenement, the precept being for infeftment of certain persons named in ‘the fishings of the water of Findhorn from the place called Dunduff to the sea. . except the Shireff feith and Sloypule of the water foresaid, and also except all fishings within the said bounds, and utouth pertaining to the king's hienes in property.’ The inference was that in 1498 there were fishings in Findhorn between Dunduff and the sea known as the Sloypule fishings—other fishings between the same points which had been given out by the Crown, and to which the precept relates, and others which had not been given out but still remained in the Crown. These last would be carried by the charters of 1501 and 1566, if this were intended, and whether they were in fact so carried, and if so, how far they extended, are questions of fact to be determined in accordance with the evidence of possession.

It is therefore immaterial whether the words Sluiepool and Findhorn were used as separate names by the framers of the charters of 1501 and 1566, or were used together as one name to describe a single fishing. In either case the extent of the grant must be construed by the possession had upon it, for it is not pretended that it will cover the whole of the river Findhorn irrespective of possession, and if the pursuer has in fact possessed the entire fishings within the boundaries libelled, such possession will be conclusive in his favour, not as a mode of acquisition, or as enabling him to enlarge the grant, but as the best evidence, and indeed the only available evidence, to explain the grant.

Without examining the evidence in detail, it is enough to say that I think it proved that the pursuer and his predecessors have possessed the entire salmon-fishings within the boundaries libelled for a period extending far beyond the period of prescription. Their estate of. Damaway lies on one side of the river only, but they have exercised the right of salmon-fishing from both sides, not only by drawing their nets, but, as appears from certain proceedings in a litigation in the Sheriff Court in 1783 between Lord Moray and Mr Cumming of Altyre, by building huts for the accommodation of their fishers. The defenders have endeavoured to shew that their possession has been practically limited to the fishing of the pool now known as the Sluiepool, but the evidence to the contrary is conclusive. The pools above the Sluiepool are impracticable for net and coble, but they have been fished by rod and line, and while these modes of fishing were legal by the hand-net and by the clip, the pools below the Sluiepool are not, in their present condition, so well adapted for net and coble as the Sluiepool is. But the evidence of Mr Hogarth [who was partly proprietor and partly tacksman of salmon-fishings on the Findhorn] and his fishermen establishes that they have, nevertheless, been regularly fished when the condition of the water allowed of their being fished to advantage, and the documentary evidence shows that the Earl had successfully asserted his right to the fishing of St John's Pool (which is one of those lying below the Sluiepool) on various occasions in the seventeenth and eighteenth centuries.

The question remains, whether the pursuer's right is exclusive, or whether the burgh of Forres may not also have a right of salmon-fishing in some portions of the same water. But in my opinion they have failed to show either title or possession sufficient to establish the right which they have alleged on record. The possession on which they rely is not by net and coble, but by rod and line, and it is proved that inhabitants in Forres have in fact fished with rod and line in the water in question. But such possession as they have had is neither in character nor in extent sufficient to establish a right. It is unnecessary to consider under what conditions rod fishing might be a sufficient exercise of the right in waters where fishing by net and coble is impracticable, because it is proved that fishing by net and coble is practicable, and has been practised in the water in question, for the evidence of Mr Hogarth and his fishermen leaves no room for doubt that if the right to fish between Sluiepool and the Red Craig had been in other hands than the pursuer's, the lower pools might, and in all probability would, have been fished by net and coble.

But if the evidence of possession had been more satisfactory than it appears to me to be, the defenders have no sufficient title to which it can be ascribed. The title on which they rely is a Crown charter, dated 23d June 1496, which they construe as granting to the burgh, inter alia, ‘the water and fishings of Findhorn, from Dunduff as far as to the bank of Findhorn, as well in fresh water as in salt.’ But this is not an

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original grant of rights vested at the time in the Crown. It proceeds on the narrative that the charters and evidents of the ancient foundation of Forres had been burnt or destroyed in war, and for remedying the inconvenience so occasioned to the burgh, the king regrants and confirms the rights already conferred upon the burgh, but makes no new or additional grant in their favour; and in so far as regards the fishing in the Findhorn, it appears, from the reddendo, to be practically a confirmation of rights, not held directly of the Crown, but from the Abbey of Kinloss. The effect of the charter, therefore, would depend upon the extent of the rights already held by the burgh from the Abbey; and the subsequent titles flowing from the Abbey, when construed with the aid of the evidence as to possession, leave no room for doubt that the entire salmon-fishings held by the burgh were situated considerably below the Red Craig. The most important of these is a feucharter by the Abbot and Convent in 1539, confirmed by King James VI. in 1592. It proceeds upon a renunciation by the provost, magistrates, and community of all right, title, property, and possession which the burgh had, or claimed to have, to the fisheries in the water of Findhorn, both in the fresh and salt water; and for the total ending of a lawsuit respecting the value of seven-sixteenths of the fresh water of Findhorn, and other fisheries, of which the burgh had kept violent possession without any just title; and further, for implementing all agreements between the Abbey on one part and the burgh on the other, the Abbot and Convent dispone in feu to the provost, magistrates, and community ‘seven-sixteenth parts of our fisheries in our fresh water of Findhorn, to be held for payment of ten pounds Scots to the granters of the charter and their successors, in name of feu-duty.”

“As this charter is accepted by the burgh, the narrative is conclusive evidence against them, that they had no right or title, as in a question with the Abbey, to any other fishing in the fresh water of Findhorn, except the seven-sixteenths parts now feued out to them. But the Crown charter of 1496 gives them nothing more than they already held from the Abbey, the extent of the right so held being presumably unknown to the Crown by reason of the destruction of titles. The title, therefore, to which any possession had by the burgh subsequent to 1539 must be ascribed is the feu-charter of that year; and it is not maintained by the defenders that this is a sufficient title to support possession in any part of the water above the Red Craig. It is admitted that the water to which the feu-charter relates lies below Red Craig; and the concession could hardly have been withheld, having regard to the evidence as to the situation of the water fished in sixteenth shares. But further, it is proved—and I did not understand it to be disputed—that no portion of the seven-sixteenths included in the feu-charter now remains in the bands of the burgh. The seven-sixteenths formerly belonging to the burgh, and seven of the remaining nine portions in addition, have been acquired by Mr Hogarth, who is tenant of the pursuer in the water in question, and who concedes that he has no title to compete with the pursuer in respect of any right which he has derived from the burgh.

The defenders' case required that they should establish, first, that the charter of 1496 gave them a right to fishings in the Findhorn, separate and distinct from the fishings which they held off the Abbey of Kinloss; and secondly, that in virtue of that title, they had possessed salmon-fishings in the portion of the water in question. I think they have failed in both points, and that the pursuer is therefore entitled to decree.”

The defenders reclaimed, and argued—The burgh of Forres and Lord Moray had a pro indiviso right above the Sluiepool, and the burgh had exclusive right to seven-sixteenths below. By the decree of the Lords of Council in 1505–6 all that had ever been the King's was the Sluiepool, and yet he had granted to the Earl of Moray by a charter dated 12th June 1501 the fishings “de Spaya, Findorn, Slewpule, et Lossy.” But Sluiepool means a “populous pool,” and Findhorn was a qualifying adjective distinguishing it from other populous pools. The “et” between Findhorn and Sluiepool which appeared in subsequent charters was a clerical error. The pursuer's right thus limited could not be extended by a larger possession. Hogarth undoubtedly had had possession, but the question was, to what title was that possession to be referred? He fished as vassal of the burgh with “net and coble.” The title of the burgh was to salmon-fishing. Fishing by net and coble had been the method in use; and the fishings were treated of as a feudal subject—treatment only applicable to galmon-fishings.

Argued for pursuers—There was no doubt that Lord Moray had a grant of salmon-fishings. Proof of possession was necessary to show the extent. These seven-sixteenths were not lengths, but shares in a pro indiviso fishing. Accordingly, if one-sixteenth was localised, all were localised. Urquhart and Wiseman, mentioned in the feu-charter by the Abbot of Kinloss, were partakers in this unit, and their possession was altogether below the Sluiepool. possession by Urquhart could not be possession for the burgh, for if a superior gave off a universum, jus, he had no estate left except his right to draw feu-duties.

Defenders' authorities— M'Donall v. Lord Advocate, April 16, 1875, 2 R. (H. of L.) 49; Dunbar, &c v. Brodie, February 15, 1765, 6 Pat. App. 769.

Pursuer's authorities— Earl of Galloway v. Murray and Others, July 8, 1870, 42 Scot. Jur. 562; Stuart on Salmon-Fishing, 80; Forbes v. Udney, December 3, 1701, M. 7812 and 14,250; Campbell v. Campbell, February 16, 1610, M. 14,250; Lord Advocate v. Commissioners of Northern Lighthouses, May 27, 1874, 1 R. 950; Stuart v. M'Barnet, July 21, 1868, 6 Macph. (H. of L.) 123; Duchess of Sutherland v. Watson, Jan. 10, 1868, 6 Macph. 199.