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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Duke of Argyll v. Campbell and Another [1891] ScotLR 28_813 (9 July 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0813.html
Cite as: [1891] SLR 28_813, [1891] ScotLR 28_813
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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v.
Facts:
The Duke of Argyll was proprietor of the barony of Lochow, bounded on the north by the river Awe, under, inter alia, a Crown charter of 1667, which by a clause of novodamus of new granted the barony cum salmonum piscationibus. The previous grant had only been cum piscationibus. Neither the Duke nor any of his predecessors ever exercised the right of salmonfishing in the river. In 1673 the Duke's author confirmed the author of Campbell of Lochnell in the lands of Eachterachine within the barony of Lochow, reserving, however, his whole rights of fishing in the river of Awe. Lochnell also held the barony of Kilmaronaig lying within the lordship and barony of Lorne, but outside the barony of Lochow, by virtue of charter of erection dated 1603; he further held upon a separate title the lands of Ardconnell situated within the barony of Lorne, at some distance from the river Awe, with the right of salmon-fishing in four pools of that river. In a Crown charter of confirmation of the barony of Kilmaronaig in favour of Lochnell's author in 1727 these lands and fishings said to include “cruives on the said water of Awe” appeared as part of the barony, and upon that title he was duly infeft. The right of fishing by cruives had never been exercised within living memory, but from 1847 onwards Lochnell and his predecessors exercised the right of salmon-fishing by rod and line in the river of Awe ex adverso of the lands of Eachterachine, and let such fishing.
In 1889 the Duke of Argyll brought an action against Campbell of Lochnell to have it declared that he had right to the salmon-fishing in the river of Awe ex adverso of the lands of Eachterachine except in the four pools above mentioned, with right to go upon these lands in the exercise of his right, and to have Lochnell interdicted from fishing for salmon in the water in question.
Held ( rev. Lord Kyllachy— diss. Lord Young, who thought that the Duke had failed to establish his title to the fishings in dispute) that the pursuer was entitled to decree as he had a valid title to the fishings in question, and the defender had no sufficient title upon which to base his adverse possession.
Observations upon the effect of a grant of a barony cum salmonum piscationibus, and upon a grant of cruives as a title upon which to prescribe a general right of salmon-fishing.
In August 1889 the Duke of Argyll brought an action of declarator against Archibald Argyll Lochnell Campbell, Esquire of Lochnell, in the county of Argyll, and Richard Watson, Esquire, banker, Oban, trustee under a trust-disposition executed by him dated 4th and recorded 10th September 1888, to have it found and declared that the pursuer had good and undoubted right to the whole fishings of salmon and other fish in the river or water of Awe … from the march between the lands of Eachterachine and others belonging to the defenders, and the lands of Fanans … to the north of the said river or water of Awe, and particularly to the whole fishings of salmon and other fish in the river or water of Awe ex adverso of the said lands of Eachterachine and others belonging to the defenders, and situated upon the south or left bank of the said river or water of Awe … saving and reserving to the defenders the following salmon-fishings of the river or water of Awe, viz., the salmon-draughts of Poulin-dounan and Polinstuck, and salmon-draught of Cruback, and salmon-draught of Sanluip or Sandloup, situated in the river or water of Awe, and mouth of the same … and that the pursuer was entitled to fish for salmon and other fish in the said river or water of Awe ex adverso of the said lands of Eachterachine and others … saving and excepting as aforesaid and that by every lawful mode of fishing … and that the pursuer was entitled, by himself or others authorised by him, to enter upon the defenders' said lands of Eachterachine and others … for the purpose of exercising his said right of fishing for salmon and other fish, and to use the same so far as necessary for the exercise of his said right by all lawful modes of fishing, and … that the defenders had no right of fishing for salmon and other fish in said river or water of Awe ex adverso of their said lands of Eachterachine and others, … saving and excepting as before mentioned. …
The pursuer was proprietor of the lands and barony of Lochow under and by virtue of Crown grants in favour of his predecessors and authors. The earliest charter of the said lands and barony was granted by King Robert the Bruce in 1315 in favour of Sir Colin Campbell, Knight of Lochow. Several charters of confirmation of the said lands and barony were granted by the Crown in favour of the pursuer's predecessors and authors prior to and in the course of the sixteenth century, and in particular a charter of confirmation of said lands and barony was granted by King James V. on 14th March 1540. That charter was a grant of “totas et integras terras et baronias subscriptas videlicet terras et baroniam de Lochhow … cum cestris turribus … piscariis in aquis dulcibus et salsis.”
The pursuer was also proprietor of the
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lands and barony of Lorne, which were acquired by his predecessors and authors in the fifteenth century, and were confirmed to them, inter alia, by another charter of confirmation by King James V., also dated 14th March 1540. In 1667 the whole lands and estates belonging to the family of Argyll, including the baronies of Lochow and Lorne, were of new erected into the earldom, lordship, and barony of Argyll in favour of Archibald, then Earl of Argyll, and in 1702 the same and other lands were erected into the dukedom of Argyll in favour of Archibald, then Earl of Argyll. The barony of Lochow is bounded, inter alia, by the river or water of Awe on the north or north-east, and the barony of Lorne is bounded, inter alia, by the said river on the south or south-west. The whole of said river is within the baronies of Lochow or Lorne. The charter of 1667 was a grant by King Charles II., “nostro consanguineo et consilliario Archibaldo Comiti de Argyll,” and contained the following clause of novodamus—“De novo damus concedimus disponimus ac pro nobis et successoribus nris. Regibus Principibus et Senescallis Scotie pro perpetuo confirmamus prefato Ar do Comiti de Argyll ejusq. heredibus masculis quibuscunq… . omnes et singulas Terras Dominia Baronias officia alioq. rextive et particulariter supra et subscripta, viz., omnes et singulas dictas terras et Baroniam de Lochow una cum advocatione, donatione et jure patronatus eccliarum parochialium et parochiarum S ti Petri Deaconi de Lochow et Inschael rectoriarum et vicariarum earund. dict. tras de Ardskeodneis, Glenyra, Glenshera, et Letter dict. Burgum de Innerraray infra dict. Baroniam dict. terras et Baroniam de Glenurquhy, totas et integras dict. terras et dominium de Cowall cum dta. Forresta de Benmoir eidem pertinen. et spectan. cum oibus. et singulis manerierum locis molendinis silvis forrestis lie sheillings, grassinges piscationibus decimis advocationibus donationibus et juribus patronatuum eccliarum beneficiorum, capellaniarum et altaragiorum domibus edificiis hortis toftis croftis partibus pendiculus et integris pertinen. earund. quibuscunq. dtas. tras et Baroniam de Over Cowall dict. tras de Straquhir extenden ad quadraginta unam mercatam et dimidium mercat. trarum antiqui extentus dtas. tras de Stratheichie, Glenmassen, Glenlean, Loch-strivan Scheid, Ardinslat Towart, Fleyming, Innerneill et Glack, Camisse et Acha-tachevane Dtas. tras. de Ardmernoche Lynsage Darinagerochmoir Glenlair et Darinagerochbeg dict. terras et Baroniam de Otterinverane dtas. tras, de Glasserie et Ederlin supra et subscripta viz t dtas. terras de Menard Kilmichaelbeg … totas et integras tras. de Craignish et Melphoirt, cum castris turribus fortaliciis manerierum locis domibus edificiis hortis pomariis molendinis tris molendinariis multuris silvis forrestis lie Banks parcis pratis insulis lacubus piscationibus salmonum aliorumq. pisciumtenen. tenan. libere tenen. servitiis advocationibus donationibus et juribus patronatuum eccliarum parochialium et parochiarum de Kilmairtein et Kilmahew seu Inneraray Kilmorich Dysart Lochguoylshead Kilmel-phort et Kilmorew rectoriarum et vicariarum earund. et onim aliarum eccliarum beneficiorum et capellaniarum annexis connexis dependen omibus aliis partibus pendiculis et pertinen trarum Baroniarum aliorumq predict oia jacen infra diet vicet um de Argyll. … Ac etiam totas et integras dictas terras Dominium et Baroniam de Lorne. ” … The pursuer was duly infeft in said subjects.
In 1529 Archibald Campbell (the pursuer's author), feuar of the Earldom of Argyll and of the lordships of Campbell and Lorne, and Earl Colin his father, granted to Sir John Campbell of Calder and his heirs-male 11
marks of Eachterachine … all of old extent, in the barony of Lochow, and in 1673 Archibald Earl of Argyll granted a charter of confirmation in favour of Sir Hugh Campbell of Calder, confirming the grant of “omnes et singulas terras subscriptas viz., undecem mercatas et dimidietatem mercat terrarum de Eichterachin … cum partibus pendiculis et pertinentibus earundem quibuscunque jacen. in Baronia nostra de Lochow … Salva tamen et reservata nobis heredibus et successoribus nostris totali piscatura aquae de Aw cum pertinentibus.” 1 2 The said lands were possessed for a long period by the Campbells of Calder, but were ultimately acquired from them by the Campbells of Lochnell, through whom they passed to the defender Lochnell, who held them of the pursuer as his superior.
The latest charter of the said lands was a precept of clare constat dated 12th November 1855, which contained also various other lands both in Lochow and Lorne, and which was granted by the pursuer to the late Duncan Campbell, Esq. of Lochnell, the immediate predecessor of the said defender. In that precept the said lands of Eachterachine and others were described, and the above reservation of fishing was inserted. The title of the defender to the said subjects was completed by decree of special service as heir-male of tailzie and provision in special of the said Duncan Campbell dated 30th September and recorded 23rd October 1882.
The pursuer averred that the said lands of Eachterachine were situated in the parish of Inishail (now united with Glenorchy), and comprehended the whole of the defender's lands in that parish by whatever names these might now be known. That they were bounded on the west partly by the water Nant, which at that point divided the barony of Lochow from the barony of Lorne as well as the parish of Inishail from the parish of Muckairn and partly by Loch Etive, on the north and north-east by the river or water of Awe, along the south or left bank of which they extended from its mouth to the march with the lands of Fanans. Also that saving and excepting certain net fishings at and about the mouth of the river Awe (subsequently referred to), the whole fishings in the river and water of Awe ex adverso of the defender's said
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lands belonged to the pursuer, being the fishings reserved as above. The defenders admitted that they were proprietors of lands called Eachterachine, but denied the accuracy of the pursuer's description of these lands and the pursuer's claims to the fishing.
The pursuer or his author had never exercised the right of salmon-fishing now claimed.
Some time after the date of the original grant in 1529 of the lands of Eachterachine and others, to Sir John Campbell of Calder, he obtained from the Bishop of the Isles a grant of the lands of Muckairn on the south side of Loch Etive in the lordship and barony of Lorne, which formed nearly the whole parish of that name. Those lands of Muckairn, along with those of Ardchattan, were erected into the barony of Muckairn or Kilmaronaig by charter under the great seal in favour of the said Sir John Campbell of Calder, dated 1st April 1603. That charter did not contain any lands of Ardchonnell or Ardchonnell-Callen or any salmon draughts in the river Awe or mouth of the same.
Before that date, however, the Priory of Ardchattan on the north side of Loch Etive in the lordship and barony of Lorne along with certain lands called Ardchonnell or Ardchonnell-Callen, not situated on or near the banks of the river Awe, possessed right to certain net fishings in that river. These lands and fishings passed to the Campbells of Calder, and were introduced into the defenders' titles by an instrument of sasine of 1640 in the following terms, which proceeded upon a charter granted by John Campbell younger of Calder, in favour of his eldest son Colin—“All and whole the lands and barony of Kilmacronage, comprehending … ‘et totas et integras illas septem mercatas terrarum de decem libratas terrarum antiqui extentus de Ardchonneillis communiter nuncupat Ardchonneill Calen cum pertinen per Archibaldum Campbell de Dounstafneis nunc de me in feudifirma immediate tentas Unacum piscatione salmonum aque de Aw, viz., tractatione salmonum de Pollindounane et tractatione salmonum de Crubak et cum tractatione salmonum de Sanlwipe jacen in aqua et in ore dicte aque de Aw, cum singulis earundem pertinentiis omnes jacentes in dominio de Lorne et infra vicecomitatum de Argyle.’” The lands of Ardchonnell were held upon a separate reddendo from those of Muckairn and Ardchattan.
On 26th July 1727 the defenders' author Sir Duncan Campbell of Lochnell received a charter from the Great Seal reciting the charter of 1603 and confirming the grants then made. It disponed, inter alia, the following—“Totas et Integras Terras Baronium, Balivatum et Regalitatem de Kilmachronag alias vocat Muckairn, comprehendem particulares terras, molendina, silvas, piscationes aliaq. subscript. vizt. Totas et Integras Villam et terras de Lyild, extenden ad quinque denariatas terrarum Villam et terras de Kilmachronag extenden ad quindecim denariatas terrarum—[ Here follows enumeration of various other penny lands]. Omnes jacen infra dominium de Lorn et vice-comitatum de Argyll… . aquae de Awe vizt. tractus (lie) draughts salmonum de Polindownan et Polinstuck, et tractus (lie) draughts salmonum de Cruback, et tractus (lie) draughts salmonum de Sanluip jacen in aqua et ore ejusdem cum omnibus earundem privilegiis et pertinen, atq e lie cruives super dictam aquam de Awe, omnes extenden ut praefertur et jacen in Baronia de Ardchattan Dominio de Lorn et Vice-comitatu antedict. Una etiam cum officiis et privilegiis liberae regalitatis justiciariae et balivatus omnium praedict. terrarum et terrarum de Muckairn aliorumque terrarum particulariter supramentionat cum molendinis piscationibus, insulis et omnibus earundem pertinen jacen infra omnes bondas hujusmodi.” That was the first mention of cruives in the titles. In these subjects the defenders were duly infeft, and they averred that the salmon-fishings specified in their titles embraced the whole fishings on the river of Awe ex adverso of the lands described in the summons.
Between 1768 and 1810 there were three joint leases granted by the different proprietors of the fishings, to each of which the defenders' author was a party, and in each of which that author's fishing was described as “all and hail the said Duncan Campbell's fishing upon the water of Awe, consisting of the following pools, viz., Criebag, Pollanstuickk, and Pollandunan, with the stell-nett fishings upon Locheity, near the mouth of the said water commonly called Sheanluib.”
From 1847 onwards the defenders and their predecessors fished for salmon in the river Awe ex adverso of the lands of Eachterachine—that is, in the water in question—by rod and line, and let the fishing right of fishing to others.
The pursuer pleaded—“(1) Under and by virtue of his Crown titles condescended on, the pursuer has right to the whole fishings of salmon and other fish in the river or water of Awe, subject to the grants thereof made by himself and his predecessors to their vassals and others. (2) The defenders having no express grant and no title to which they can ascribe possession of the fishings mentioned in the summons, excepting as mentioned in the summons, the pursuer is entitled to decree as concluded for. (3) The defenders holding the said lands of Eachterachine and others, in the barony of Lochow, of the pursuer as his superior, under the express reservation of the whole fishings in the water of Awe, have no right to the fishings so reserved, with the exceptions mentioned in the summons, and are bound to cede possession of the same to the pursuer, as concluded for. (4) The pursuer having the right to the said fishings, is entitled to access to the same through the defenders' said lands, and to use the defenders' said lands so far as necessary for the due exercise of his said right.”
The defenders' pleaded—“(1) The pursuer
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is not entitled to decree, in respect that (1st) he has not under his titles any right to the salmon-fishings claimed, or any part thereof; and (2nd) neither he nor his predecessors or authors have ever had any possession of the said salmon-fishings. (2) The defenders ought to be assoilzied in respect that (1st) by virtue of their titles they have the sole and exclusive right to the said salmon-fishings; and separation (2nd) they have such right by virtue of their titles and the prescriptive possession which they and their predecessors and authors have had thereupon.” A proof was allowed which brought out the facts given above. The history of the cruives was somewhat obscure, but in any case they had not been used within living memory. Eachterachine appeared to be situated as stated by the pursuer, but wherever it was, it was held of the defenders and their authors.
Upon 19th November 1890 the Lord Ordinary ( Kyllachy) found that the pursuer had failed to instruct that he had any title to the salmon-fishings in dispute, and therefore assoilzied the defenders from the conclusions of the summons.
“ Opinion.—The question in this case is, whether certain salmon-fishings in the river Awe, opposite a part of the defender's estate of Lochnell, belong to that estate, or on the other hand, belong to the pursuer the Duke of Argyll as part of his barony of Lochow. It is not disputed that the fishings in question have been possessed by Lochnell for more than forty years—that is to say, it is admitted that since about 1846 the Lochnell tenants have had continuous possession by rod fishing, and that in the circumstances such possession is sufficient. But the pursuer maintains that the lands opposite which the fishings are situated are certain lands held of him as superior, and parts of his barony of Lochow; that those lands were given off at an early period to the defenders' authors under express reservation of fishings; that the fishings thus reserved include the fishings in question, and that these fishings are accordingly still part of the barony, the defenders having no title thereto, either sufficient by itself, or sufficient as a basis for prescription.
I may say at once that I think the pursuer has sufficiently proved (1) that the lands opposite which the fishings in dispute are situated are the lands of Eachterachine, feued off by the pursuer's authors to the defenders' authors in the year 1529; (2) that these lands formed and form part of the pursuer's ancient barony of Lochow; (3) that they were given off to the defenders' authors under express reservation of fishings; and (4) that the pursuer, while he has no express grant of salmon-fishing attached to his barony of Lochow (or at least no grant contained in any original charter or charter of novodamus), has yet, in virtue of his barony title, possessed by himself and his vassals various salmon—fishings in various parts of the barony for at least the prescriptive period.
The questions which remain and on which the case turns are—(1) How far the pursuer's possession under his barony title applies to or can be made to cover the fishings in dispute? (2) How far, in the absence of such possession, the pursuer has a title to challenge the defenders' title? And (3) How far, apart from their Eachterachine title, the defenders have a title to fishings comprising, or capable of comprising, the fishings in dispute?
(1) It is clear that the pursuer's title requires proof of possession. The original charters of the barony of Lochow do not contain any grant of salmon-fishings, and although the charter of 1667 and subsequent charters do include such grant in general terms, these are all charters by progress, and apart from possession, have no force. Possession, therefore, is as I have said, necessary, and that being so, the first observation is that there has certainly been no possession—I mean by the pursuer and his authors—of the particular fishings in dispute. On the contrary, it is common ground that these fishings have for the prescriptive period (and presumably, therefore, all along) been possessed by the defenders, whose possession (as they hold no grant from the pursuer) is necessarily adverse possession. The possession, therefore, on which the pursuer relies must be not actual but constructive possession, and constructive possession sufficient in some way to override the actual possession of the defender. Now, what is the possession of this sort on which the pursuer relies? It seems to be threefold:—(1) Salmon-fishing exercised at and near Inverary by the pursuer and his authors; (2) Salmon-fishing partly by net and coble, and partly by rod, at various points in Lochawe, by vassals of the pursuer holding parts of the barony of Lochow; (3) Salmon-fishing in the river Orchy and at the head of Lochawe, and of the river Awe, also by vassals of the barony of Lochow.
Now, it does not appear to me to be possible to hold that possession of those salmon-fishings—all of them discontiguous to, and some of them remote from, the fishings in dispute—can on any principle of construction be held as possession of the fishings in dispute. The argument of the pursuer was that the salmon-fishings of the barony of Lochow are a unum quid, and therefore that possession of a part must be held as possession of the whole. But as pointed out in the case of Cathcart and elsewhere, the question always is—What are the salmon-fishings of the barony? Do they, or do they not, include the particular salmon-fishings in controversy? And that, depending on the proof of possession, it is a petitio principii to establish the possession by assuming that the particular fishings are part of the salmon-fishings of the barony. It is true that a grant of lands with fishings prima facie conveys the whole fishings within the boundaries of the lands. But whether and how far fishings include salmon-fishings depends, and must depend, on the extent to which salmon-fishings have been possessed.
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Indeed, the case of Cathcart appears to foreclose this question, and it did not appear to me that the pursuer's counsel was able to draw any substantial distinction between that case and the present. The only distinction which I can see is one unfavourable to the pursuer—viz., that in Cathcart's case there was no element of adverse possession, while here, as already mentioned, there certainly is.
(2) I am accordingly of opinion that the pursuer has failed to show that he has any title to the salmon-fishings in dispute, and that being so, I am further of opinion that he has no title to challenge the defender's possession or to examine the defender's title. The only ground on which the contrary was maintained was this—that he (the pursuer) being the defender's superior in the lands within which the salmon-fishings in dispute are situated, and having given off those lands reserving the fishings, the defenders are disabled from asserting against him any right of fishing, or of challenging his title to the fishings reserved. I do not think this argument sound. It may be doubted whether the reservation in question applied to salmon-fishing at all. But assuming that it did, I cannot read it as amounting to a contract that the defender should acknowledge the pursuer's right to the fishings reserved. At the utmost it only, I think, implied this—that the defender should not found as against the pursuer on any title derived from him; and that the defender does not do. He takes his stand, so far as the argument has yet gone, on this—that if the right is not in him (the defender) it is in the Crown, and that, the Crown not molesting him, the pursuer has no title and no interest to do so.
(3) But this brings me to the third and remaining question, viz.—Have the defenders a title of their own? They maintain that they have. They say that, altogether apart from their title to the lands of Eachterachine, they have a separate and express title to these salmon-fishings, and this they say they have in the shape of a grant from the Crown of certain lands known as Ardchonnell or Ardchonnell-Callen, situated on Loch Etive—‘Cum salmonum piscatione aquae de Awe, viz., Tractus lie draughts salmonum de Polindownan et Polenstuick et tractus lie draughts salmonum de Cruback et tractus lie draughts salmonum Sanluip jacen. in aqua et ore ejusd. cum omnibus earund. privilegiis et pertinen. atque lie cruives super dict. aquam de Awe omnes extenden. ut prædicitur et jacen. in Baronia de Archattan dominio de Lorn et vicecomitatu antedict.’
The charters on which the defenders thus found are, it is right to say, charters by progress, the separate title referred to having been derived by the proprietors of Lochnell through the Priors of Ardchattan; but as the defenders have had prescriptive possession of the fishings in dispute, and the only question is whether they have a title on which to prescribe, the absence of the original grant does not appear to be material. The same remark applies to the absence in the titles prior to that of 1727 of any mention of ‘cruives’—a circumstance on which the pursuer's counsel a good deal commented.
The question, however, is, whether this title to the salmon-fishings covers the portion of the river now in dispute, or is, on the other hand, confined to the pools or draughts mentioned, which are quite well identified, and are situated at or near the mouth of the river where it issues into Loch Etive. The defenders say that the grant at its date covered the whole water of Awe, and, according to the modes of fishing then practised, was exhaustive—the lower water being assumed to be fished by net and coble, and the upper water—that in question, where net fishing was impracticable—being fished by cruives. They say further, that while there is not evidence of cruive fishing on their side of the river—at least in recent times—there is evidence of the existence in the last century of a cruive at their upper march, which they claim as a cruive used by their authors in virtue of the grant of cruives referred to. The pursuer, on the other hand, denies that there is any evidence of cruive-fishing by the defenders or their authors, and he maintains that the grant of salmon-fishing is limited to the pools mentioned, and that in the absence of proof of possession by cruives the grant of cruive-fishing cannot extend the right, or at all events support a general right, of salmon-fishing over the area claimed.
In the view I have expressed as to the pursuer's title, it is not necessary that I should decide the question thus raised; but as it was anxiously argued on both sides, I think it right to say that the inclination of my opinion is with the defenders. I incline to think that a grant in general terms of salmon-fishing over a river (or at all events over a river like the Awe), followed by an enumeration of specified salmon draughts and unspecified cruives, is at least a sufficient title on which to prescribe if necessary the whole salmon-fishings of the river. In other words, I have not, so far as I have been able to consider the matter, seen any sufficient reason why a proprietor having a grant of cruives on which he is seeking to prescribe, may not, without prejudicing his title, supersede the cruives in favour of a more profitable mode of possession, viz., rod fishing. As I have said, however, it is not necessary to decide this point. My judgment is for the defenders, on the ground that the pursuer has failed to show that he (the pursuer) has any title to the salmon-fishings in dispute.”
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The pursuer reclaimed, and argued—He claimed a mile and half's salmon-fishing from the left bank of the river Awe ex adverso of the defenders' lands of Eachterachine with the exception of four pools. He admitted that he had no possession, but he had a good grant of salmon-fishings from the Crown by the charter of 1667. Before 1667 he had a grant of barony cum piscationibus, but after 1667 it was expressly specified that these fishings were salmonum. That included the right to fish for salmon in all the waters in or ex adverso of the barony of Lochow. The river Awe bounded the barony, and was ex adverso of it. He had not lost that right by non-user. His right could only be defeated by a better title fortified by prescription. The defender had possessed, but in no valid title whatever. Cathcart's case ( infra) only laid down that what are the fishings of the barony must be determined by possession where the grant is not specifically of salmon-fishings, but a grant of barony with salmon-fishings prima facie included the right to salmon-fishing upon all waters within the barony and in waters ex adverso of the barony as a unum quid if there was no better competing title— Campbell v. Campbell (1610), M. 14,250; Forbes v. Udny (1701), M. 7812 and 14,250; Stuart v. M'Barnet, July 21, 1868, 5 Macph. (H. of L.) 123; Lord Advocate v. Lord Lovat ( Beauly case), February 27, 1880, 7 R. (H. of L.) 122; Warrand's Trustees v. Mackintosh ( Ness case), February 17, 1890, 17 R. 13. The defenders had no title upon which to prescribe. The barony of Kilmaronaig, erected in 1603 in favour of the defender's author, was entirely within the barony of Lorne, and included no part of the barony of Lochow. It did not include the lands of Eachterachine, and upon that barony title it was impossible to prescribe fishings ex adverso of Eachterachine. To prescribe on a barony title it was necessary to show that what was possessed along with the barony was truly a part of the barony— Lord Advocate v. Hunt (Palace of Dunfermline), February 11, 1867, 5 Macph. (H. of L.) 1. The defenders right to the lands of Ardchonnell, and to fishing in certain pools and by cruives in the Awe appeared as part of his barony of Kilmaronaig in the title of 1727 relied upon by the defenders, but that was a charter by progress which required construction, and into which, looking to the charter of 1663, these lands and fishings could not have been inserted. The fishings were definite pools, and the cruives did not confer a title to prescribe a right to the rest of the river. There had, besides, been no proof of the exercise of the cruive right—See on cruives Rankine on Landowners (2nd ed.), page 270, and the cases of The Don Heritors (1665), M. 10,840; Grant v. Duke of Gordon, M. 14,297: Forbes v. Earl of Kintore, January 31, 1826, 4 S. 656. Further, the defenders could not prescribe against the pursuer, for their right to the lands of Eachterachine flowed from him, and was qualified by a distinct reservation of the salmon-fishings in dispute.
Argued for respondents—(1) The pursuer had no right to salmon-fishings unless by the charter of 1667. That was a charter of novadamus, and such a charter was not to be presumed to enlarge the previous rights, but only to continue them unless the change was clearly contemplated— Magistrates of Inverkeithing v. Ross, October 30, 1874, 2 R. 48; Earl of Perth v. Lord Willoughby de Eresby's Trustees, March 9, 1875, 2 R. 538, December 13, 1877, 5 R. (H. of L.) 26. The grant of salmon-fishings occurred at the end of the charter, and did not refer to the barony of Lochow but only to subsequent lands. The want of possession was conclusive against the pursuer's claim, for he had not proved, as he was bound to do by possession, that the fishings claimed were fishings belonging to the barony— Duke of Richmond v. Earl of Seafield, February 16, 1870, 8 Macph. 530 (special case); Lord Advocate v. Cathcart, May 19, 1871, 9 Macph. 744; Earl of Zetland v. Tennent's Trustees, February 26, 1873, 11 Macph. 469. (2) The defenders had a good title upon which to prescribe. They were proprietors of a barony which included under the charter of 1727 the right of fishing in the pools and the right to the cruives. Even if these rights were not properly included in the barony of Kilmaronaig, they were rights possessed under a separate title which itself formed a good basis for prescriptive possession. An undefined grant of cruives — the highest mode of salmon-fishing recognised by the law—was a good title upon which to found prescription— Forbes v. Earl of Kintore, supra. (3) The defenders were not debarred from prescribing against the pursuer, because these fishings had been specially reserved, for it was exceedingly doubtful whether the fishings reserved were those now in question. (4) The pursuer had failed to establish any title. The defenders had a good title upon which to prescribe, and it was admitted that they had possessed the fishings for the prescriptive period by methods which fully asserted their rights. The Lord Ordinary's interlocutor should be affirmed.
At advising—
The charter of 1667 is of course a charter by progress, and is in form a renewal of existing rights. But it may be explanatory of them, and in this case I so read it. It defines the fishings which had been previously given out as being salmon-fishings. Nor was this unmeaning, for under the older law it was doubtful whether an express grant was necessary to give a good title to salmon-fishings, and if the Crown
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But apart from these considerations the charter gives a good title to whatever it expressly conveys. The Crown might challenge it on the ground that the estate of the vassal had been unduly enlarged, But I do not think that the challenge is open to any other. It is true that a charter of novodamus wherever doubt exists will be construed as commensurate with the previous title. But when the words are clear they must receive effect according to their terms so long as the charter stands unreduced.
It was urged that according to the true construction of the charter of 1667 the grant of salmon-fishings was limited to the baronies of Over Cowal and Otterinverane. I cannot so read the charter. Several lands and baronies are conveyed, but at the end of the description there is added a general clause which in my opinion refers to the whole. It runs thus—“Cum castris … piscationibus salmonum … omnibus aliis partibus pendiculis et pertinentibus terrarum baroniarum aliorumque praedict.” This is a usual clause in such a charter. It is intended to gather up and enumerate the subordinate rights which are conveyed with the lands. And as it is made applicable to the “lands and baronies foresaid,” I do not see on what principle of construction it can be limited. And unless it be read as applicable to the whole there would not be a grant of fishings with the barony of Lochow, though such a grant was contained in the Crown charter of 14th March 1540. I am therefore of opinion that a right of salmon-fishing is given along with the lands and barony of Lochow.
The next question is, what is the legal meaning and effect of such a grant? I do not think that the answer is doubtful. A grant of lands with salmon-fishings implies a grant of the salmon-fishings in the rivers within or bounding the lands. If the river runs through the lands the owner of the lands has the sole right of fishing. If the river is the boundary he has the right to fish from his own bank. I take this to be clear and well-settled law, even though the river in which the salmon right exists is not mentioned in the charter. And similarly I hold that a grant of a barony with salmon-fishings confers an exclusive right to the fishings of such rivers as are within the barony, and a right to fish from one bank when the river is the boundary. Of course I am speaking of the effect of the grant itself, and apart from any question which may arise on possession or in regard to a competing title.
And in so holding I am not in any way violating the rule of the case of Cathcart. In that case there was a grant of a barony, but without any grant of salmon-fishings. Apart from possession, therefore, the owner of the barony could have no right to salmon-fishings. He had a good title on which to prescribe such a right, or to put it otherwise, he might show by his possession that the barony contained a grant of salmon-fishings. But in either view his right was necessarily measured by his possession. Such fishings as he possessed would be held to form part of the barony and no others, or if the barony is looked on as a title for prescription, he could only acquire by prescription such fishings as he actually possessed. But no such principle can be applied where there is an express grant of salmon-fishings. The right of the grantee depends on the legal construction of the grant, and is effectual without any possession.
I have now to consider whether the barony of Lochow extends to the river Awe, and on this point I do not think that there is any room for doubt. The lands belonging to the defender on the left bank are held of the pursuer, and are described in the titles as forming part of the barony of Lochow. The defender pleads that the lands held by him from the pursuer are called in the title Eachterachine; that the lands which now go by that name do not come down to the river; and that he possesses other lands called by a different name which lie between the river and Eachterachine. To my mind the plea has no force. The point is, I think, conclusively determined by the fact that the defender has no other title than that flowing from the Earls and Dukes of Argyll. Everything he possesses is possessed under that title and no other. I cannot therefore attach any importance to mere names which may be more or less accurate and more or less modern. As he has no title to any lands except such as are described as forming a part of the barony of Lochow, and as the lands which he possesses under that title are de facto bounded by the Awe, I hold that at this point and along the entire frontage of the defender's lands the barony is bounded by the Awe.
From what I have said the inference is plain. The pursuer has a good title to the salmon-fishings in the Awe ex adverso of the defender's lands, and that title must prevail unless the defender can show that he has a better title to these fishings. This he endeavours to do. But inasmuch as he does not allege a title prior in date to that of the pursuer, he can only prevail by showing that he has possessed the fishings on a sufficient title and for the prescriptive period.
The defender connects himself with a Crown charter granted to Sir D. Campbell of Lochnell on 26th July 1727, by which there was disponed and confirmed to him “Totas et Integras Terras Baronium, Balivatum et Regalitatem de Kilmachronag alias vocatMuckairn,” comprehending, inter alia, the lands of Ardchonnell “cum salmonum piscatione aquae de Awe vizt. tractus (lie) draughts salmonum de Polindownan et Polinstuck, et tractus (lie) draughts salmonum de Cruback, et tractus (lie) draughts salmonum de Sanluip jacen in aqua et ore ejusdem cum omnibus earundem privilegiis et pertinen, atq e lie cruives super dictam aquam de Awe, omnes
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There is a fact in connection with the state of possession which it is right to notice. We have before us three leases during the period from 1768 to 1810. They do not cover the entire period. They extend to thirty-five years in all. To these the predecessors of the defender were parties along with other proprietors on the Awe. It had been found that it was more advantageous for the several proprietors to let their fishings jointly than to let them separately. Hence the joint leases. In all these leases the fishings let by the defender's predecessors are described with slight variations as “All and haill the said Duncan Campbell's fishing upon the water of Aw, consisting of the following pools viz. Criebag, Pollanstuickk and Pollandinan, with the stall-nett fishings upon Locheity near the mouth of the said water commonly called Sheanluib.” It is plain that these fishings do not comprise those which are now in question. Nor did they or predecessors of the defender at that time assert a right to any other fishings than those which they actually let. For by the leases of 1794 and 1805 the lessors let to their tenants “all and whole the several salmon-fishings upon the water of Awe belonging to them respectively” with the exception of the chest or cruive fishings belonging to Campbell of Monzie. Nor can it be said that river fishings were of no value and could not be let. For Campbell of Monzie let nothing but river fishings, and he drew a third of the entire rent.
From this it will be seen that at a time not long posterior to the charter of 1727 the predecessors of the defender made no claim to the fishings in question as being comprehended within the barony of Kilmaronaig. Further, we have seen that that barony was erected in 1603 by Crown charter granted to Sir John Calder. His successor obtained in 1673 from the Earl of Argyll a charter of confirmation applicable to the lands of Eachterachine, but under the reservations in favour of the granter and his successors of their whole fishings in the Awe. It is not conceivable that a charter with such a reservation would have been accepted if the fishings so reserved were claimed as part of the barony.
The title to which the defender ascribes his possession is, as I have said, the charter of 1727. He contends in the first place that he and his predecessors have possessed on a title of barony and that barony includes per expressum the lands of Ardchonnel, the draught fishings and cruive fishings in the water of Awe. If we are to look at the charter of 1727 alone, it is clear that these lands and fishings are comprehended within the barony. But it is a charter by progress, and is not the charter of erection. It recites the charter of erection as being a charter granted by James VI. in 1603. On turning to that charter we find that it does not comprise the lands of Ardchonnell or the fishings above mentioned. It was urged that the charter of 1727 merely contained a fuller description of the same lands. But this cannot be, because the lands of Ardchonnell are held for a separate feu-duty, which is not specified in the charter of 1603. Therefore I cannot hold that the lands of Ardchonnell and the salmon draughts and cruive fishings are part of the barony of Kilmaronaig.
But not the less is the defender the owner of a barony though it does not comprehend these lands and their pertinents. It is situate at a distance from the Awe, and does not per expressum contain any fishings in that river. The question then comes to be, whether the defender can ascribe his possession to his barony title?
It is not sufficient for the defender that he has had possession, and that he has a barony title. The two things must be capable of being legally connected. The case of Hunt v. The Crown shews that the mere possession of a subject does not establish that it is part of the barony of which the possessor is the owner. For it was held by the House of Lords that though Mr Hunt had possessed the Palace of Dunfermline for the prescriptive period, his possession did not prove that it was part of his barony of Pittencreiff. Their Lordships construed the barony title. They held that it did not contain the palace, and the possession was in consequence of no avail.
We in like manner must construe the defender's title, and I am unable to hold that it comprehends, or that it can be read as capable of comprehending, salmon-fishings in the Awe. Such fishings as are
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But the defender has yet another title to which he ascribes his possession. He is infeft in the lands of Ardchonnell “cum salmonum piscatione super aquam de Awe”—viz., the three draughts which have been mentioned “atque lie cruivis super dictam aquam.”
It is in favour of the defender that these salmon-fishings are not given out in connection with adjoining lands. For the lands of Ardchonnell are not situate on the river Awe, but as I understand about ten miles from it. There is not therefore the usual limitation in the grant, and we may the more easily read the defender's title as comprising the whole fishings in the river Awe.
But we can only so read it if the words “cruives on the said water of Awe” can bear such a meaning. The defender indeed contends that he has a general grant of all the fishings in the Awe. But I cannot adopt that view. It is neither consistent with the words of the charter nor the possession which has followed on it. I construe the charter as being a grant of particular fishings—viz., the three salmon draughts and the cruives iu the water of Awe.
But it is said that the fishing by cruives is the highest mode of salmon-fishing known to the law, and therefore that a grant of cruive fishing means or may mean a grant of salmon-fishings, so as to furnish a sufficient title for prescriptive possession.
The Lord Ordinary, without expressing a decided opinion, thinks that the title of the defender is sufficient. He says, “that a grant in general terms of salmon-fishing over a river (or at all events over a river like the Awe), followed by an enumeration of specified salmon draughts and unspecified cruives, is at least a sufficient title on which to prescribe if necessary the whole salmon-fishings of the river.” He seems to think that there is a general grant of salmon-fishings. As I have already said, I do not concur in that opinion. The grant is not general but specific. It consists of certain specified pools and of cruives. The pools are known and have been possessed by the defender. I do not see how a grant to the fishing of these pools is a title for prescribing other fishings. Nor do I think that the grant of cruives can be read as a general grant of the salmon-fishings in the Awe. The most authoritative exposition of such a grant is to be found in the opinion of Lord Blackburn in the case of Lord Lovat v. The Crown. Without expressing a final opinion on a question which was not necessary for the decision, his Lordship says that a grant of cruives is merely a right to fish by cruives at the places where such engines have been or may be erected. I think that I am bound to proceed on this view of the law, and it seems to be conclusive against the defender's title in so far as it is founded on a grant of cruives.
But the case does not turn on that consideration alone. For inasmuch as the charter contains a grant of particular fishings followed by a grant of cruives in the same river, we would violate the ordinary rules of construction if we were to hold that the latter grant comprised or was intended to comprise the whole fishings. There is no meaning in the former grant if the latter is held to include it. I think, therefore, that I am bound to construe the grant as a grant of particular fishings, and consequently it is not a sufficient title on which to prescribe a right to fishings generally.
But there is another limitation on the defender's title which it is proper to notice. I need not say that the defender cannot prescribe any subject which lies beyond the limit of his title. The whole subjects granted by the charter of 1727 are described
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On the whole, I am of opinion the pursuer is entitled to our judgment. The grant of cruives not having been followed by possession, is unavailing to the defender; for the title of the pursuer is prior in date, and comprises the whole fishings ex adverso of the defender's lands. A grant of cruive fishings within the fishings previously given to the pursuer would in my opinion be invalid, because it would be in derogation of a prior title.
The
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The Court recalled the interlocutor and granted decree of declarator and interdict as concluded for.
Counsel for Pursuer and Reclaimer— Asher, Q.C.— H. Johnston— M'Phail. Agents— Lindsay, Howe, & Co., W.S.
Counsel for Defenders and Respondents— D.-F. Balfour, Q.C.— Dickson— Forsyth. Agents— Mackenzie, Innes, & Logan, W.S.