Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Hon. Sir J. Stuart, Vice Chancellor v. Lieut. Col. A. C. M'Barnet [1868] UKHL 2_Paterson_1629 (21 July 1868)
URL: http://www.bailii.org/uk/cases/UKHL/1868/2_Paterson_1629.html
Cite as: [1868] UKHL 2_Paterson_1629
[New search] [Printable PDF version] [Help]
SCOTTISH_HoL
Page: 1629↓
(1868) 2 Paterson 1629
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 82
v.
Subject_Salmon Fishing — Title — Possession of both sides of River — Opposite Owners — Title to Sue —
Where the opposite banks of a salmon river belong to different owners, and one has a Crown grant of fishing annexed to his lands, this means not the exclusive right of fishing, but only that half of the fishing ad medium filum aquae available from his own side.
Semble, A base title coupled with acts of ownership and exercise of salmon fishing is not sufficient to presume a Crown grant of the salmon fishing.—Per
Lord Chancellor Cairns .Question, Whether the owner of half the salmon fishings in a river, the opposite bank of which belongs to another proprietor, has a right to challenge such proprietor's claim to fish from such opposite bank.—Per
Lord Chancellor Cairns , aff.;Lord Chelmsford neg.Semble, If fishing by rod and line has been constantly practised, and it is impracticable to fish on that side of the river with net and coble, that will be sufficient to establish a right to salmon fishing under a general grant of fishing—Per Lords Chelmsford, Westbury, and Colonsay. 1
_________________ Footnote _________________
1 See previous report 5 Macph. 753: 39 Sc. Jur. 32. S. C. L. R. 1 Sc. Ap. 387: 6 Macph. H. L. 123: 40 Sc. Jur. 633.
Page: 1630↓
This was an appeal from various interlocutors of the First Division. The Vice-Chancellor Stuart, in 1862, purchased from the trustees of Lord Conyers the estate of Balgy, and the salmon fishing in the river Balgy, theretofore belonging to the estate of Applecross, in the county of Ross. In July 1862, there was presented a petition to the Sheriff of Ross for interdict against Sir John, proceeding on the allegation, that the petitioner, Colonel M'Barnet, was proprietor of the estate of Torridon, and of halt of the salmon fishings of the water of Balgy, and had possessed the right of salmon fishing in the said water of Balgy from time immemorial; that the river was the boundary between the two estates; and that Sir John had been fishing from the petitioner's side of the river. The Sheriff granted interdict, and on appeal Lord Jerviswoode to a certain extent confirmed the interdict, prohibiting Sir John from trespassing on the lands of Torridon, or from fishing on that side of the river. Meanwhile Sir John raised an action of declarator, seeking to have it declared, that he was entitled to the whole of the salmon fishings on both sides of the river—at all events, that he was entitled to the salmon fishings on his own side of the river; and that Colonel M'Barnet had no right to any salmon fishing in the river at all. The Lord Ordinary, and afterwards the First Division, held, that Sir John had established the right to salmon fishing on his own side of the river, but there was not sufficient evidence that Colonel M'Barnet had not also the salmon fishing on the opposite side. Sir John thereupon appealed.
The appellant in his printed case stated the following reasons for reversing the interlocutors:— 1. Because it is the principle of the law of Scotland, that the right of salmon fishing is a jus regale, and that no one is entitled to practise it, unless be derive his title directly or indirectly from the Crown. And the grantee of the Crown is entitled to protection of his salmon fishings from injury by illegal modes of fishing and rod fishing as fully as the Crown itself was before the grant. 2. Because the pretended title of the respondent is founded on words which make the illegal mode of fishing in the linn or waterfall of the river an integral part of the grant, which is incapable of sasine by the proper symbols. 3. Because the finding that the respondent and his predecessors have been infeft, under his pretended title, since 1672, is wholly erroneous. (1) Being infeft in a right of salmon fishing by rod and line, or by any of the illegal modes practicable ex adverso of the respondent's lands, where there is no fishing by net and coble, it is impossible from the want of proper symbols. (2) Any such infeftment since 1672 is wholly inconsistent with the forfeiture to the Crown in 1715. (3) The re-grant by the Crown in 1725 to the appellant's predecessors of the lands of Balgy, with the fishings, has been properly found by the Court to carry the whole right of net and coble fishing across the whole channel of the river, and there remained in the Crown no half of any net and coble fishing or of any other salmon fishing in the river. 4. Because the acts of possession by which the respondent has endeavoured to establish a title by prescription are wholly insufficient. (1) The title unjustifiably averred by the respondent is possession by net and coble, an averment without which he could not have obtained his ex parte interdict. An overwhellning weight of evidence disproves this averment. (2) No amount of fishing by rod and line is sufficient to prove possession of a right to salmon fishing, to found a title by prescription, or to fortify an imperfect title, nor is there any proper evidence of possession by rod and line for forty years, even if such evidence were sufficient to found a title; the evidence of any rod fishing being of the slightest kind. (3) Still less can fishing by illegal modes be a proper possession. (4) The attempt to prove payment of rent as evidence of possession has wholly failed. Payment of rent exacted for leave to fish by illegal modes is the only payment proved. The entries in the Torridon rentals, put in evidence by the respondent, are worthless, for the reasons stated in this case. (5) The entry in the proceedings for judicial sale, “that the half of the salmon fishings of Balgy was unoccupied in 1824 and previously,” is conclusive. 5. Because the finding, that from time immemorial the respondent and his predecessors fished “occasionally, but not continuously, by net and coble,” is contrary to the evidence. It cannot be justified by the evidence of the only two attempts of which there is any trace. Both of these attempts were wholly unauthorized. The one was by two lads, one of whom was a sickly cripple, unable to draw a salmon net. The other was a frolic by the brother of one of the Balgy fishermen. The weight of evidence is overwhelming which shews, that fishing by net and coble is impracticable, and never has been practised ex adverso of the respondent's lands. Apparently conscious of this, the Court has omitted the words “net and coble,” where it protects the respondent's claim, and has inserted them in its declaration of the appellant's right. 6. Because the grant by the Crown of the lands of Balgy with the fishings, conveys the whole right of salmon fishing by net and coble across the whole channel of the river; and, therefore, includes the whole right of fishing from bank to bank by every other legal mode; there being no reservation of any right in the Crown. Unquestionably, by the forfeiture in 1715, the whole right of salmon fishing in this river reverted to the Crown. The re-grant to the appellant's predecessor in 1725, exhausted all that the Crown had to grant as to salmon fishing in the river of Balgy. (1) The words ex adverso, introduced by the Court into its decree, do not occur in the appellant's Crown Charter, or in the respondent's deeds. (2) There may be cases in a broad river where the grant of lands with salmon fishings may mean a mere ex adverso right; but what the Court calls the appellant's ex adverso rights from the lands of Balgy is the whole net and coble fishing of the river across the
Page: 1631↓
The respondent, in his printed case, stated the following reasons for affirming the interlocutors: 1. Because the appellant has no title to the whole salmon fishings in the river, or water of Balgy, and no title upon which any right to salmon fishings in the said river, other than a right to fish for salmon therein from his own lands of Balgy, could be acquired, even by exclusive possession for the prescriptive period; and, separatim, because neither the appellant nor his predecessors have, in point of fact, had exclusive possession of the salmon fishings in the said river. 2. Because the appellant has no right or title to inquire into the respondent's title to fish for salmon in the said river from the lands of Torridon by lawful modes, and no right or title to prevent the respondent from fishing in the said river from the lands of Torridon by lawful modes. 3. Because, under his titles, the respondent has right to half the salmon fishings in the liver Balgy, and because in virtue thereof he is entitled to fish for salmon in the said river from his own lands of Torridon. 4. Separatim, Because, in virtue of his titles, and the prescriptive possession which he and his predecessors have had thereupon, the respondent has right to half the salmon fishings in the river Balgy, as also to fish for salmon therein from his own lands of Torridon. 5. Because the interlocutors appealed from are, in so far as appealed from, well founded both in fact and in law.
Sir R. Palmer Q.C., and Cotton Q.C., for the appellant.—The appellant's title to fish on his own bank of the river Balgy is clear, for he has a charter from the Crown to his predecessors mentioning the word “fishings;” and possession of salmon fishings for forty years and upwards coupled with this general grant, amounts to a good title by the law of Scotland. There is no limitation of the locus of the fishing, and therefore primâ facie it embraces both sides of the river. This, at least, may be taken to be so as regards small rivers where a net cannot be used effectually without sweeping both sides. The user during living memory supports this construction, for, while the appellant has fished both sides, it is not satisfactorily proved that the respondent ever fished on his own side with net and coble. The state of the banks on the respondent's side, moreover, shews that they are not adapted for net and coble fishing. If, then, the Crown has granted all the salmon fishings in the river to the appellant, and the respondent is a trespasser, the appellant is entitled to interdict. The respondent has no affirmative title, for he can produce no grant from the Crown, and he cannot prove possession by the only way in which possession can be proved, namely, by use of net and coble. He has occasionally fished in illegal modes, but these cannot establish a legal right— Duke of Sutherland v. Ross, 14 S. 960; 11 June 1836, F.C.; Smollett v. Colquhoun, 14 S. 963; 11 June 1836, F.C. The only time when net and coble was used was quite recently as an experiment in order to give some colour to the respondent's claim. As to mere angling, that can never amount to evidence of the right— Abercrombie v. Marquis of Breadalbane, 5 D. 1389; Forbes v. Udney, M. 7812. But even if the appellant is entitled only to the half of the salmon fishings on his own side of the river, as it is not proved that the respondent has the other half, that must still remain in the Crown, and even in that view the respondent is a trespasser.
[ Lord Chancellor.—Can you say the respondent would be a trespasser, if he kept on his own half of the river?]
The act done would be a trespass for which an action would lie, though he would not be a trespasser In the sense of trespassing on another's land. A fishery may be trespassed upon, though the soil beneath belongs to the trespasser. The respondent produces no direct right from the Crown to any salmon fishing connected with his lands. The old titles connected with his lands refer to half the fishings on the Balgy, but these words from their context cannot refer to the locus in quo. The evidence of use or possession is still more vague. Therefore the interlocutor of the Court below was wrong, and ought to be reversed.
Lord Advocate (Gordon), and Balfour, for the respondent.—It is not disputed, that the appellant
Page: 1632↓
Sir R. Palmer replied.
Cur. adv. vult.
That interlocutor consists of four introductory parts or propositions, and a conclusion or finding derived from those propositions. The first proposition is one upon which no serious argument has taken place. “That the question between the parties relates to the right of fishing for salmon in the water or river of Balgy or Balgay, which is a narrow stream adapted for being fishedfrom either bank all the way across.” I apprehend that in that respect the interlocutor is entirely correct, and that no variation ought to be made.
The second proposition is this: “That from the year 1725 the predecessors and authors of the pursuer have, in virtue of titles flowing from the Crown, been infeft in the lands of Balgy or Balgay, and others now belonging to the pursuer, with fishings pertaining thereto, and that from time immemorial prior to 1845 they, in virtue of said titles, possessed and exercised the right of fishing for salmon by means of net, coble, and other legal modes of fishing in the river or water of Balgay from the left bank thereof in so far as the said river or water runs ex adverso of the pursuer's said lands of Balgay and others, and that in 1862 they conveyed to the pursuer the said lands, being part of the estate of Applecross, with all right of salmon fishing in the river of Balgy or Balgay, heretofore belonging to the estate of Applecross, on which conveyance the pursuer was infeft in April 1862.”
The appellant complains of the proposition thus stated, because it does not in his opinion go sufficiently far as maintaining his right; and in opposition to this proposition he claims to have affirmed the conclusion of the summons, which contends for an exclusive right of fishing in the river Balgy at this place. The conclusion of the summons is in these words: “Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session, that the pursuer has the only good and undoubted title to the lands of Balgy in the county of Ross, with the salmon fishings in the river or water of Balgy, and that he has the sole and exclusive right and privilege of fishing for salmon and fish of the salmon kind, in the said river I or water.”
Now the titles of the appellant contain no mention of salmon fishings. The titles mention the
Page: 1633↓
The Court of Session have found, and I think your Lordships will concur in that finding, that the evidence clearly instructs a user of salmon fishing by the appellant and his authors which enables us to put upon the word “fishings” a construction which would include salmon fishing. But the result of that is simply this, that we are thus enabled, in reading the titles of the appellant, to read the word fishings, whenever it occurs, as if it were expressed “salmon fishing,” and the consequence would be, that his titles would shew, that he and his authors were infeft in the lands of Balgy or Balgay, with the salmon fishings pertaining thereto. But I apprehend, that nothing can be clearer than that a title to lands with the salmon fishings pertaining thereto, means, in the case of salmon fishing in a river, not an exclusive right of fishing salmon in the whole of that river, and from both sides of that river, but a right of fishing salmon ex adverso of the lands specified bordering upon the river—a right to be exercised in the usual way, treating the land at the side of the river as a point of departure for the purpose of practising the salmon fishing.
I therefore think, that the Court of Session have rightly applied the practice and usage which is proved by the evidence to the titles, and so applying it have rightly held, that the appellant, being infeft in the lands of Balgy, with the fishings pertaining thereto, has the right of salmon fishing in the Balgy by all lawful modes, in as far as the river or water runs ex adverso of the pursuer's lands of Balgy, a right of fishing to be exercised from those lands, and not an exclusive right of salmon fishings from both sides, or throughout the whole of the river.
I pass next to the fourth proposition in the interlocutors, omitting for the present the third. The fourth proposition is one upon which no serious dispute has arisen in the argument. “That the pursuer holds no right or title to fish for salmon in the said river or water from the right bank thereof, in so far as the said river or water runs ex adverso of the said lands of Torridon, the property of the defender, or to enter on the said lands for the purpose of fishing in the said river or water therefrom, or to interrupt or prevent the defender by himself, his tenants, and others, from fishing with rod and line, or by other legal means, for salmon or other fish from the right bank of the said river or water, in so far as the same runs ex adverso of the defender's said lands of Torridon.”
Upon that no question was raised in the present argument. It appears, that at one stage of the litigation before the Sheriff, some claim had been made to enter upon the lands of Torridon for the purpose of practising fishing from those lands, but that claim was not insisted upon in the action of declarator; and this is merely a proposition negativing that claim inasmuch as it had at one time been raised.
Still keeping in reserve the third proposition, I pass to the ultimate finding. The Court of Session found “that the pursuer has right to salmon fishing in the said river or water ex adverso of the said lands of Balgy or Balgay, and that he had good right and title to fish for salmon and other fish of the salmon kind in the said river or water from the left bank thereof, in so far as the said river or water runs ex adverso of his own lands, and that by net and coble, rod and line, and every other legal mode; and to that extent and effect decern and declare in terms of the second or alternative conclusion of the summons.”
The appellant makes no complaint of that finding, except that it does not go far enough. He complains that it does not affirm his exclusive right of fishing in the river, which I have already expressed an opinion upon. The finding, however, continues, “quoad ultra assoilzie the defender from the whole conclusions of the summons.” That is to say, assoilzie the defender, inter alia, from those conclusions of the summons which sought to restrain him from the practice of fishing from his own side.
This latter part of the conclusion may now conveniently be taken into connexion with the third proposition, which for the time I passed over, for the two together raise the claim in question which has been the main question argued before your Lordships, viz. the respondent's right to fish in this river.
Now, how does the title of the respondents stand upon his own deeds and charters in the case? I think your Lordships will find, that we may conveniently take in the first place the Instrument of wadset which passed in the year 1668 from the then Lord Seaforth to Kenneth Mackenzie of Coull. The wadset bears to be made to secure a considerable sum of money advanced by this Kenneth Mackenzie to the then Lord Seaforth; and in order to secure that sum of money, the wadset bears, that the said noble Lord, with consent aforesaid, “has sold, annaillied, wadset, and disponed, and by the tenour hereof sells,” etc., to and in favour of the said Kenneth Mackenzie, his heirs male and assigns whomsoever, heritably, under reversion always in manner underwritten, “all and haill the davoch lands of Torridon, comprehending” certain premises specially mentioned, “together with the teynd sheaves, parsonage and vicarage teynds of the same included, and never to be separated therefrom” during the non-redemption thereof, by virtue of the reversion after mentioned. “And sicklyke the salmon fishing of the water of
Page: 1634↓
Now it is abundantly clear, indeed it could not have been contradicted, that this wadset, taking it by itself, and putting aside for the moment the question of the title of Lord Seaforth to make it, upon the face of it bears to carry one half of the salmon fishing of this river and the linn of the river, in words as large as could be used for that purpose. It was not disputed, that the wadset created a base fee, supposing that infeftment followed in the usual way. And if the present respondent could connect bis title with his wadset, and if in turn the title of the wadsetter from the Crown to carry this salmon fishing should be made clear, it was not disputed, and could not be disputed, that the title of the respondent, upon his own charter, would be sufficient to carry this salmon fishing.
Now, the first objection that was made to this wadset was with reference to the infeftment following it. As to that your Lordships will observe, that the wadset itself, in the part to which I have referred, continues in these words: “Lord Seaforth binds and obliges himself and his heirs, with all convenient diligence, duly and sufficiently to infeft and seise by charter and sasine.”
Then we have the precept of sasine, by which precept the Lord Seaforth appoints in the usual way his bailies to go on the ground and to give heritable estate, sasine, and possession (using the proper and apposite words) of all the davoch lands of Torridon, comprehending certain towns and lands specified, “with all and sundry houses, buildings, yards, mills, multures, woods, fishing, loanings, grassings,” and so forth, using every term commensurate with what occurs in the wadset itself. The only objection taken to that was, that, having used those general terms, a certain specification was afterwards made as to the mode and manner of delivering sasine “by deliverance of earth and stone of the said land, clap of the said mill, and one handful of corn with one penny money for the said teynds upon the ground thereof, as use is;” and this is “in no ways to be left undone.” It was said that there was no appropriate emblem or symbol of delivery of sasine with reference to fishing, and that there ought to have been a symbol of delivery of sasine by net and coble.
I think it would be convenient to take together with what I have read upon this point a recital as to sasine in the charter of renunciation and discharge in the year 1754. That charter, after reciting the wadset and renunciation, continues thus: “conform whereunto, and charter following thereupon, the said Kenneth Mackenzie was” on such a day “duly and lawfully infeft and seised in the lands, fishings, teinds, and others above mentioned, as the instrument of sasine given to him thereof, under the sign and subscription of” so and so, “notary public duly registered, at length purports.”
Now I own it appears to me, that if, after a mortgage, you find an undertaking in the most general terms to deliver sasine in the appropriate way; if you find a precept of sasine giving the most ample power to the bailies to deliver sasine of all the premises mentioned in the wadset, specifying them, and you find afterwards a recital coming from the author of the wadset, or those who follow him in title, stating, that proper delivery of sasine had been made; if after all that your Lordships were, in consequence merely of an insufficient specification in the precept of sasine of the various modes in which the sasine was to be delivered of the different subject matters of the deed, to hold, at this distance of time, that there was an infirmity or imperfection in the title on that score, the consequence would, as it appears to me, be most serious, and certainly your Lordships would require clear and distinct authority before you would arrive at a conclusion, that would involve such a consequence.
Certainly no authority to that effect was cited; and I think, in the absence of authority, it would be a most dangerous principle to listen to any argument of that kind.
Then the wadset having, as I have said, created a base fee, there is no controversy that this base fee created by the wadset was transmitted to the respondents in an unbroken series of charters. I need not detain your Lordships by going through those charters, because upon that part of the case no controversy arose.
The equity of redemption, as we term it, was, as I have already said, renounced by Lord Fortrose in the year 1754, the renunciation being set out in that part of the appendix to which I have already referred.
Before this year 1754 it is true that Lord Seaforth, the ancestor of Lord Fortrose, had been attainted, and the forfeiture of his estates had intervened in the year 1715; but I apprehend that it is perfectly clear, that that attainder and forfeiture would in no way affect the title of a person claiming under the wadset. The law upon this point appears to be very clear and free from ambiguity. It is stated in Stair in this way: “By the Act of Parliament (the Scotch Act of Parliament, 1644) forfeiture was declared to be without prejudice to all persons not accessory to the crime of the superior of their rights of property in any lands, wadset, or others holding by them of the forefault persons, or of the payments of their just debt or relief of their cautionaries out of the forefaulted estate, which was rescinded (that is, which Act of Parliament of 1644 was
Page: 1635↓
Now that being the case, having the base fee created in 1668, and traced down without any break in the chain to the present respondent, it only remains to consider what was the title of Lord Seaforth in 1668 to make the wadset which I have referred to, including the salmon fishing. As to that it appears by a special retour made in the year 1584, that the jurors convened to consider the title of Donald M'Angus M'Alister found that Margaret of the Isles, the grandmother of this Donald M'Angus M'Alister, had died seized as of fee (using the ordinary term) of all and several the lands after mentioned, including dimidietate terrarum de Torridon et piscariis ejusdem, meaning, I apprehend, clearly one half of the lands of Torridon (whatsoever that might be); that the said Donald M'Angus M'Alister was the lawful heir of Margaret of the Isles; that he had attained his age of twenty-one years; that the said one half of the land of Torridon and other places, cum piscariis earundem, were of a certain value which is here mentioned; and that all this half of the lands and fisheries, with the appurtenances, were held in capite of the king and his successors by ward and relief; and that all those premises had been seized into the hands of the king, and had remained in the hands of the king and in the hands of his mother, the Queen of Scotland, by the space of forty years and two months, which had elapsed by reason of ward and non-entry after the decease of Margaret of the Isles, the grandmother; that is to say, that they had been in the hands of the Crown from the year 1544 until the year 1584, when this inquisition was made.
Now the terms here used are the lands of Torridon cum piscariis ejusdem. I should not think myself that any serious argument could be based upon the term piscariis as distinguished from the term used in other charters piscationibus. Some argument certainly turned upon that point, but I think it would be very unsafe, in the state of the authorities that were referred to, to hold that piscariis is in any sense a larger word than “ piscationibus,” so as to dispense with the ordinary proof of user, which is necessary in order to give to “piscationibus” power and force of carrying a fishing for salmon.
Then following this retour in 1584 we have next another retour in the case of a person called Duncan Bayne, of Fairley, dated the 23d July 1624. Considerable argument took place as to whether this next retour, to which I am about to refer, concerned the same half of the land of Torridon and the fishery which was the subject of the retour of Margaret of the Isles in 1584, or whether it related to the other moiety. I apprehend that, whether it was the same or whether it was a different moiety, can make very little difference as regards the conclusion ultimately to be arrived at in this case. I will state presently why it appears to me to be the other moiety which is mentioned in the second retour. But even if it should be the same moiety, your Lordships will observe, that the consequence would be, that, if we find in that second retour salmon fishing mentioned in a way which would lead to a presumption of a grant from the Crown, and the second retour relates to the same half as the first, you would get, with regard to that one half, the right of salmon fishing to the tenant in common with the Crown; and for the purpose of affirming the title of the respondent in this litigation, the right on his part to be tenant in common of the Crown of one quarter, that is to say, half of half the salmon fishing, would be perfectly sufficient.
But to come to the second retour: it bears to have taken place on the 23d day of July 1624, and to have resulted from an inquisition made in the usual way. The jurors say, that the late Alexander Bayne, the grandfather of Duncan, who had been married to Lady Agnes Fraser, had died seised as in fee of the whole half of the lands of Torridon or Toworthan, as it is called, “ et piscaria salmonum ejusdem tam in aquis salsis quam dulcibus et quarta parte earundem annexis,” etc. There is therefore here mention, as it were, of two different fisheries, the lands of Torridon and the salmon fisheries of the same, and also the fourth part of the fisheries of the salmon of Balgy; and then further on, after stating that Duncan Bayne was the heir male of Alexander Bayne and Agnes Fraser, his wife, the jurors proceed to say, that the said land of Torridon, with the fisheries of the same, and the other pertinents, as well those mentioned generally as those mentioned especially above, were held in capite of the king and his successors in fee, and inherited in perpetuity and with the usual services for the same, and that they had been seised into the hands of the Crown for the space of twenty-four years from the death of Alexander Bayne, the grandfather of Duncan, who died in the year 1600, and that the lands had been so seised into the hands of the Crown by reason of the non-entry through the default of Duncan Bayne, up to the day of the inquisition.
I observe upon that, in the first place, that there is in the earlier part of this retour a clear mention of the fourth part of the salmon fishery of Balgy, that is to say, the half of one half; that there is in the first part a mention, as I have said, of the salmon fishery of Torridon, and that in the latter part of the retour it seems to be assumed, that the whole of the fishings mentioned
Page: 1636↓
That retour having been made by the jury, which retour of course would not in any way compromise the Crown if it stood alone, we have next, what is much more important, an instrument of sasine in favour of Duncan Bayne following upon it in the year 1626. That instrument of sasine followed a writ issued out of the Court of Chancery in Scotland. The instrument recites, that a certain person who is named, acting as the attorney of Duncan Bayne, had come forward holding in his hand this writ out of Chancery, and describing that Duncan Bayne was the grandson of Alexander Bayne and Agnes Fraser, and that he was in his right entitled to a whole half of the lands of Torridon and the salmon fishings of the same, as well in salt water as in fresh, and to a fourth part of the salmon fishing of Balgy. Then the writ is set forth thus: “Charles, by the grace of God,” and so on, “inasmuch as by an inquisition in consequence of a mandate from the sovereign,” it had been made known, and then the finding of the jury which I have already referred to is recited, stating, among other things, that the salmon fisheries were held of the king in capite, and then an order is made by the Crown in these terms: “We order and command you, that to the aforesaid Duncan or to his certain attorney, the bearer of these presents, you give sasine of all the half of the said lands of Torridon, and of all the salmon fisheries of the same, as well in salt water as in fresh, and of the said fourth part of the salmon fishing of Balgy, with the pertinents of the same.” And following that writ from the Crown delivery is made according to the tenor of the writ.
Now I apprehend that a better Crown charter than this could not possibly be found. It so happened that the reason why the Crown intervened was, because there had been resumption of possession into the hands of the Crown during the want of entry of this Duncan Bayne, but that leads to the Crown recognizing the rights of Duncan Bayne, and ordering sasine to be given back to him of the fourth part of this salmon fishing.
Then following that there is the sasine in favour of the Lord Seaforth at the time, who immediately after Duncan Bayne had been restored to his property appears to have purchased it from him. In point of fact, the sasine of Duncan Bayne appears to have been made, in order to enable him to make a title to Lord Seaforth. Sasine of Lord Seaforth is recorded on the 24th of May 1626, and in his case the general description which I have already referred to is giving the whole of the lands of Torridon “ cum salmonum piscariis in aquis salsis quam in aquis dulcibus, stating, however, that this has been purchased from Duncan Bayne subsequently to the retour which I have referred to, shewing, that the same subject matter was carried to Lord Seaforth, which was returned into the hands of Duncan Bayne.
I pass over the two feu charters to the parson of Sleat, because they resulted in resignation by the parson of Sleat to the Earl of Seaforth. The Earl of Seaforth thus got back again whatever those charters had given to the parson of Sleat.
We have next an instrument of sasine of George, the next Earl of Seaforth, in the year 1633, and then finally we have the wadset by Kenneth Mackenzie, who succeeded George Lord Seaforth.
I apprehend that your Lordships will be of opinion, that there is thus derived a clear title from the Crown, certainly to one quarter of the salmon fishery of Balgy, but I myself am prepared to go even further than that, because I own it seems to me to be perfectly clear, that the two retours which I have mentioned deal with the two separate quarters of the salmon fishery, and represent really the title of the two heirs portioners claiming under the Lord of Lochalsh, the two heirs portioners, who between them shared the lands of Torridon, and one half of the salmon fishery, according to the admission of the appellant in the condescendence. In the condescendence the respondent stated the retours which I have read to your Lordships, and then called upon the appellant to answer his statement with regard to that allegation of title. Thereupon, in answer to the articles, these retours were printed. The appellant stated that the alleged deeds are referred to for their terms; quoad ultra denied, with this explanation, that in or about the year 1518, on the death of Donald Lord of Lochalsh, all the lands of Applecross and Lochcarron, including the lands of Torridon, which then were a mere pertinent to the Castle of Strome, in Lochcarron, descended to his two sisters, heirs portioners, each of whom was then entitled to one undivided half of the said lands. That Margaret, one of the daughters, was grandmother of Donald M'Angus M'Alister of Glengarrie, who, in her right, is said in 1584 to have been possessed of one half of the land of Torridon; that the other half thereof, as well as of all the other lands of Applecross and Lochcarron, were acquired through the other co-heiresses by Colin, Earl of Seaforth, about the year 1600, or before.
I think, upon this admission, taken in connexion with the charters to which I have referred, it is abundantly clear, that the two heiresses of the Lord of Lochalsh were Margaret of the Isles and Agnes Fraser, and then, inasmuch as we have the clear construction put upon the title of Agnes Fraser as being one half by the writ from the Crown to which I have referred, the same construction must obviously be put upon the title of the other portioner, because the two portioners held exactly under the same title.
Page: 1637↓
I have thus traced the title at the risk of wearying your Lordships, because it seemed to me right to explain the grounds upon which I should base the motion I am about to make. Having thus traced the title, it is quite unnecessary to consider, though it was the subject of much argument at the bar, the true view and effect of such acts of salmon fishings as have taken place in the course of the last fifty years from the lands of Torridon, in the river Balgy. I own that if the respondent had not been able to trace back the title from the wadset to the Crown, but he had stood simply upon the base property title commencing with the wadset, together with the acts of ownership, which he has been able to shew, and the exercise of the right of fishing in the river Balgy on his part and on the part of his predecessors, I myself should have been of opinion that the title had not been made out in such a way as would enable your Lordships to say that, under the Scotch Prescription Act, the fishings in the river had been bruiked by the respondent in such a way and for such a length of time as would give the respondent the advantage upon his base title with reference to it which the Act of Prescription intended to give.
It appears to me to be also entirely unnecessary to consider whether, in strictness, the appellant has the right to challenge the title of the respondent, and whether, if the respondent had shewn nothing more than what was termed in the argument a primâ facie title, the appellant could have required the title to be further examined. I have assumed, and I think it much safer to assume, that the appellant has that right, and I own that if I were to express an opinion upon it, it seems to me, that reason and common sense require, that a person in the position of the appellant with reference to a salmon fishing of this kind should have the right of challenging a claim to fish from the opposite side of the river. I have, however, assumed that in favour of the appellant, and, assuming that, I have certainly come to the conclusion, that upon the titles themselves the right of the respondent to the salmon fishing is made out; it becomes, therefore, unnecessary to consider what has been the usage and practice, because if the right exists upon charter, it certainly could not be lost non utendo.
I therefore should propose to your Lordships to affirm the whole of the interlocutors appealed against, except that third proposition contained in them, which I think, according to the view I have submitted to your Lordships, if you adopted it, will require some alteration. In point of fact, that third proposition in the interlocutor proceeds not so much upon the titles of the respondent as upon the exercise by the respondent of the right or usage of salmon fishing. I propose, that, in place of that, it should be rested entirely upon the titles of the respondent. The third proposition in the interlocutor, altered as I propose, would run thus: “That, from the year 1668, the defender and his predecessors and authors have, in virtue of titles also following from the Crown, stood infeft in the land of Torridon and others, with, inter alia, the half of the salmon fishing of the water of Balgy and linn thereof, conform to the wadset of 1668, and the other writs produced, and which are referred to in the statement of facts in his behalf.” And making this alteration, which is a substantial one, in the interlocutor, I should humbly advise your Lordships that no costs of the appeal should be given on either side.
No further deeds are forthcoming until the 30th of June 1741, when, under a precept of clare constat by the then Lord Fortrose, sasine was delivered of the same lands and salmon fishing by the same description precisely to John Mackenzie of Torridon. John Mackenzie disponed to Kenneth Mackenzie on the 20th of June 1767, and he was duly infeft in the following month of November. Kenneth Mackenzie disponed to John Mackenzie on the 27th of May 1797, and he was duly infeft on the 16th of September then next. James Alexander Stewart Mackenzie became a purchaser of the whole at a judicial sale on the 17th July 1826, upon which he obtained sasine on the 15th of September then next. The respondent derives title under this James Alexander Stewart Mackenzie.
It is, perhaps, unnecessary to go into this detail, for really it can hardly be said to be a matter of dispute; but I felt it would be more satisfactory to myself to watch every step in the title, and I have therefore gone through them in the manner I have now briefly described.
In all these various instruments and dispositions, the salmon fishing of the Torridon, and one half of the salmon fishing of the Balgy, are expressly named. The title is thus traced for exactly
Page: 1638↓
In the first place, it appears that, from a special retour dated the 23d July 1624, Duncan Bayne was on that day served heir in special of, amongst other things, one half of the lands of Torridon and the salmon fishing thereof, and one fourth of the salmon fishing of Balgy, as being the heir male of the grandfather and grandmother, Alexander and Agnes Bayne, and it was found, that all the lands and fisheries included in the retour were held of the King in capite, and that the whole had been in the hands of the Crown since the death of Alexander Bayne in 1600 by reason of non-entry.
It is impossible to doubt from this, that Agnes Duncan was one of two coparceners who had succeeded to the lands and salmon fishery of Torridon, and to one half of the salmon fishery of the Balgy, and with the knowledge we have of the nature of the water of the Balgy, and that it was bounded on one side only by the lands of Torridon, I cannot doubt that by “one half of the salmon fishery of the Balgy” must have been meant the right to fish from one side only from the Torridon bank. Duncan Bayne, on the 2d of May 1626, was duly infeft in the property included in the retour, comprehending by name the half of the salmon fishery of Torridon and the fourth part of the salmon fishery of Balgy; this made him a tenant in capite of the Crown of, inter alia, the salmon fishings of the Torridon, and most of the salmon fishings of the Balgy.
Contemporaneously, or almost contemporaneously, with this infeftment, Duncan Bayne sold or disponed this property to Colin, Earl of Seaforth, who was duly infeft therein on the 26th of May 1626. The fishery of Balgy is not mentioned in this infeftment; but I think it impossible to doubt that it was not mentioned by name only, because it was supposed, and reasonably supposed, that it was included in and formed part of the Torridon fisheries. It differed from the other Torridon fisheries only in this, that it could be fished only from one side of the river, as the lands did not extend to the other side; but it is impossible to believe, that there could be any intention on the part of Duncan Bayne or of the Crown, after parting with the lands of Torridon and all the valuable fisheries thereof, to retain that which, in all probability, was considered at that time a matter of such very small value as not to be worth a separate mention. Added to which, it is not unworthy of observation, as was pointed out in the argument, that whereas, in the retour of Duncan Bayne and his infeftment therein, the fishery of Torridon and the fishery of Balgy are both referred to in the singular number, when the Earl of Seaforth made up his title by infeftment from the Crown, though there is no express mention of Balgy, yet the fisheries of Torridon are referred to in the plural, which might have been intended, if, indeed, that was necessary to include the fishery ex adverso of the Balgy.
Colin, Earl of Seaforth, granted to Kenneth Mackenzie, parson of Sleat, a subinfeudation of what he had purchased from Duncan Bayne, who was only infeft in the half of the lands of Torridon, in the salmon fisheries cum piscationibus salmonum.
So much as to one half of the superiority of the lands of Torridon, with the fisheries, including, as I think, necessarily one half of the right of fishing ex adverso of the Balgy river. The title to the other half is less clear, but I think it is sufficiently made out.
Duncan Bayne, it will be remembered, became entitled to his half of the lands and fisheries of Torridon as heir to his grandfather Alexander, and his grandmother Agnes, and died in the year 1600. In the year 1584, being 16 years before the death of Alexander, one Donald M'Angus M'Alister was served heir in special to a lady described as Margaret of the Isles, his grandmother, who had died 40 years previously. The retour comprised the moiety of, among other things, the lands of Torridon and its fisheries. The inference seems to be almost irresistible, that this Margaret of the Isles was the co-heir with Agnes Bayne of the property to which Duncan Bayne succeeded in 1600, and if that be so, though there is no special mention of Balgy in the retour of 1584, and though the fisheries are not expressly described as salmon fishings, yet it is impossible to doubt, that, as one coparcener certainly succeeded to salmon fishings, including those ex adverso of the Balgy, therefore the word “ piscariis” in the retour of 1584 must have been intended to include the same.
In explaining deeds of so very remote a date, it would be very unreasonable not to make inferences which deeds nearly contemporaneous fairly suggest. Assuming then, that it is fairly shewn, that M'Alister was served in 1584 heir in special to the moiety of the lands and fishings, the other moiety of which became vested in Colin, Earl of Seaforth, in 1626, it was next to be remarked, that on the 12th of March 1633, this same Colin, Earl of Seaforth, granted, by way of subinfeudation, to Kenneth Mackenzie, parson of Sleat, to whom in 1626 he had granted one moiety of the lands and fisheries of Torridon, the other moiety thereof in which he was duly infeft. How Colin, Earl of Seaforth, had acquired his other moiety does not appear. But that he had acquired it by some lawful means in the 49 years which elapsed between 1584 and 1633, may
Page: 1639↓
This being so, it is unnecessary to consider whether anything short of a complete title might have afforded a sufficient ground of defence to the pursuer's action. That question does not arise in a case where the defender has shewn a perfect title from the Crown. But it is proper to add, that even if it can be suggested, that the title of the moiety of the fisheries derived from Margaret of the Isles, has not been fully made out, that is unimportant; for if it be clear, as it is clear, that the defender has a perfect title to the half of the salmon fishings derived from Duncan Bayne, including the right of fishings from the Torridon side of the Balgy, that is a perfect title against the pursuer, for if there be a good right of salmon fishing in the Balgy belonging to the respondent and to the Crown, or to the respondent and some grantee of the Crown, as tenants in common, the pursuer cannot complain that the respondent has exercised a right which he enjoys in common with some other person. I advert to this, though I entertain no doubt, that the respondent has shewn a title to the whole. That being so, it is unnecessary for me to say more than that I entirely concur in the judgment proposed by my noble and learned friend on the woolsack.
The appellant contends, that the interlocutor is erroneous, as the Court ought to have found, in the terms of his su nmons of declarator, that he has the sole and exclusive right and privilege of fishing for salmon, and ought to have interdicted the respondent from troubling or interrupting the appellant in the peaceable possession and exercise of his right of salmon fishing.
The onus of proof rests entirely upon the appellant. He must prove, that he is entitled to the exclusive right of fishing in the Balgy. If he fail in this, it is extremely doubtful whether it is open to him to question the title of the respondent.
The lands on both sides of the Balgy formerly belonged to the Earls of Seaforth, and were held by them together with certain fishings which appear to have been connected with the lands. The possessions of William, Earl of Seaforth, were forfeited to the Crown by his attainder on his taking part in the rebellion of 1715. The appellant's title begins with a Crown charter in 1725, when the forfeited possessions of the Earl of Seaforth were in the hands of the Crown.
This charter, which is the origin of the appellant's title or proof, contains, amongst other general words, the word piscationibus. Looking to the mode in which this word is introduced into the charter, it cannot, in my opinion, be construed to grant a more extensive right of fishing than ex adverso of the lands granted. But the use and exercise following upon this general grant of fishing, enables the appellant to read it as a grant of salmon fishing.
From the peculiar character of the river of the Balgy, it can only be effectually fished for salmon from both sides by fishing all the way across. Whatever, therefore, may be the nature of the appellant's right, whether an exclusive one over the whole river, or to be confined to salmon fishing ex adverso of and from his own lands, the actual enjoyment of the right, at the moment of its exercise, will be necessarily the same.
But the appellant endeavours to give a double effect to his proof of the exercise of the right of fishing— first, as establishing that the charter of 1725 was a grant of salmon fishing; and second, that the grant was a grant of salmon fishing on and from both sides of the river.
Now the right actually enjoyed enables the appellant to read the general term “fishings” in the Crown grant as meaning salmon fishings, but it cannot enlarge the limits of the grant if it
Page: 1640↓
But the appellant contends, that even if his right of salmon fishing is to be confined to a right ex adverso of his own lands, yet as the right cannot be effectually exercised and enjoyed without fishing all the way across to the opposite bank, the respondent cannot interfere with the exercise of the appellant's fishing unless he can shew a title from the Crown to salmon fishing from his own (the Torridon) side of the river which the appellant insists that the respondent is unable to do. The evidence shews, that the river cannot be conveniently fished with net and coble from the respondent's side, and that there are not more than two occasions upon which this description of fishing has taken place from that side, but that the river has been continually fished from the respondent's side with rod and line.
The argument for the appellant assumes, that the respondent's title commenced in the year 1734, when the forfeited possessions of the Earl of Seaforth were sold by the Barons of the Exchequer. In the Crown charter of resignation and novodamus following upon this sale, which includes the lands of Torridon, the words piscationibus tam in aquis dulcibus quam salsis are contained, which the appellant contends will not of themselves carry salmon fishings, and cases were cited to shew, that a grant cum piscationibus cannot be established as a salmon fishing without the use of net and coble. The conclusion drawn from this proposition was, that the respondent's fishing having been entirely with rod and line, the instances of the employment of net and coble being rather experiment than use, he had acquired no right of salmon fishing which could circumscribe or interfere with the appellant's enjoyment of his right over the whole river.
The argument, that the only mode of interpreting a grant of fishings to mean salmon fishing, is by the exercise of the right with net and coble, was contested by the Lord Advocate, who mentioned the case of linn fishings as an instance to the contrary, and he observed, that if the argument is correct where there is a grant of lands with fishings, and no other practicable mode of salmon fishing than by rod and line, although there had been an exclusive enjoyment of this mode of fishing for a century, the general term “fishing” could never be converted into the particular one “salmon fishings.” This is true, but it does not therefore follow, that the right to salmon fishing without an express grant cannot be acquired by any other mode of fishing than the peculiar one by net and coble. I do not find, however, that it has ever been expressly decided, that the only mode of explaining a general clause cum piscationibus into a right of salmon fishing is by the exercise of that description of fishing by net and coble. I am not prepared to say, that if fishing for salmon by rod and line has been systematically and uninterruptedly practised in a river where it is the only practicable mode in which such fishing can be carried on, it may not be sufficient to establish a right to salmon fishing under a general grant of “fishings.”
But assuming, that the respondent's right to salmon fishing is questionable, is it competent to the appellant to question it, and to call upon the respondent to prove his title? It must be borne in mind, that the appellant has no right to fish from the Torridon side of the river. Any person, therefore, fishing from that side is not trespassing upon the appellant's property, although he may be disturbing him in the full enjoyment of his power, if effectually fishing the river. Whether, if a stranger without any authority from the respondent were to fish from the Torridon bank, he might, upon being shewn to be a mere trespasser, be called to account by the appellant, I will not undertake to decide, but I am inclined to think, that it would not be competent to the appellant to demand of any person so fishing by what authority he was acting, much less, when the respondent himself is fishing from his own bank of the river, to call upon him to shew his title. If the respondent cannot found himself upon a grant of salmon fishing from the Crown, then the Crown has never parted with the right of fishing from the Torridon side of the river, and the acts of the respondent may be an invasion of the Crown's rights which may be prevented by the Crown, but cannot be challenged by the appellant.
The question of the right of the appellant to put the respondent to proof of a title from the Crown was so strongly insisted upon, and argued so fully on both sides, that I have not felt justified in passing it by without some observation. Any decision upon it, however, is, in my view of this case, wholly unnecessary, because assuming, that the obligation of proving a right to salmon fishing on the Torridon side of the Balgy was imposed upon the respondent, I am of opinion that he has fully satisfied it.
From the earliest information upon the subject, it appears, that in the sixteenth century the lands of Torridon and fishings of the same were held immediately of the Crown by two heirs portioners in moieties. In the title of one of the heirs portioners, the lands of Torridon and fishings of the
Page: 1641↓
Upon the sale of the forfeited estates by the Barons of Exchequer, a Crown charter of resignation and novodamus, dated 12th Feb. 1734, was issued in favour of John Nairn, which was followed by a Crown charter in favour of Lord Fortrose, dated 12th Feb. 1741. Both these instruments, after the description of the lands of Torridon and other lands, contain the word “ cum suis pertinentibus piscationibus tam in aquis dulcibus quam salsis.” A question was made, whether these words applied to half of the salmon fishery of the waters of the Balgy and linn; but it seems to me, that no reasonable doubt can be entertained upon the subject. The description is exactly the same as that contained in the feu charters from the Earl of Seaforth to the parson of Sleat, which I have shewn by the wadset of 1668 must have included these fishings. That the superiority of the fishings was considered to be excluded in the Crown charter in favour of Nairn and of Lord Fortrose, also appears to be clear from the fact, that, immediately after the charter in favour of Lord Fortrose, by a precept of clare constat in favour of John Mackenzie of Torridon, granted by Lord Fortrose, as superior of the lands of Torridon, and the other forfeited lands of William Earl of Seaforth, it was required that John Mackenzie should be infeft, amongst other things, of the salmon fishery of the half of the water of Balgy and linn thereof, to be held of Lord Fortrose in feu farm for payment of the ancient feu duty.
In the subsequent progress of titles down to the respondent there is always a disposition of the salmon fishing of the Balgy by the same description, thus shewing a regular deduction of the title from the Crown downwards to the respondent.
It was argued for the respondent, that if he failed to deduce a title to the fishings from the Crown he might stand upon the deed of 7th February 1754, by which Lord Fortrose renounced and discharged the right of reversion in the wadset of 1668. This renunciation and discharge having been followed by forty years' possession, it was contended, that it constituted a good title to the salmon fishery in question. In support of this view the case of the Lord Advocate v. Sinclair was cited, which decided that a charter, though granted a non domino, was a good foundation for a title of prescription.
It seems to me unnecessary to consider the case in this point of view. The deed of renunciation hereby rendered the interest under the wadset absolute instead of being redeemable. The wadset itself, even if the title under it were not traceable from the Crown, would be a much better foundation upon which to rest a title a non domino, than the renunciation of the right of redemption by the subsequent deed, and I am not prepared to say, that, as the wadset contained an express grant of salmon fishing, the mode of fishing by rod and line would not have given a title of prescription, but it clearly appears, that the title of the respondent to the salmon fishery in half the water of the Balgy may be traced upwards to the Crown, and that he need not therefore have recourse to any base title.
It is unnecessary to add, that the respondent having in his title an express mention of salmon fishings, the consideration of the mode in which he has exercised his right of fishing, or whether he has exercised it at all, becomes perfectly immaterial. He does not require any evidence of the nature of the right where the grant is express, and the title once created by an express grant is not lost by nonuser.
I think, therefore, that with the alteration proposed by my noble and learned friend on the woolsack, the interlocutors appealed from ought to be affirmed.
Page: 1642↓
I entirely concur, therefore, in the proposition of my noble and learned friend on the woolsack, that the title under the Crown grant is not a title by enjoyment and immemorial possession, but the title under the Crown grant should be made the foundation of the respondent's rights, and I entirely concur with him, that, having substituted that for the declaration made by the Court below, in so far altering the interlocutor, these appeals must be dismissed, but I think they ought to be dismissed without costs.
There is another point on which some of my noble and learned friends have expressed an opinion in which I entirely concur, namely, that it is not necessary in all cases, with a view either to convert a right of fishing into a right of salmon fishing, or to establish a right of salmon fishing as against the Crown, that there should be an exercise of the right of fishing by net and coble.
That proposition, I think, is not established in our law, and I would wish not to be understood as saying anything which might imply it. but rather the contrary. My Lords, with these observations, I entirely concur in the judgment which has been expressed.
Lord Advocate.—My Lords, there is a second appeal which has to be disposed of.
Lord Advocate.—Yes, with costs I presume. We got costs in the Court below.
Lord Chancellor.—The motion I submitted to your Lordships was founded upon this, among other things, that the conclusion of the interlocutor which related to the claim raised in the interdict was proper conclusion. I shall move your Lordships, that the interlocutor of interdict be affirmed, and the appeal dismissed without costs.
Lord Chancellor.—My Lords, I think upon every occasion in dealing with the question of costs, which in many appeals, and perhaps in this appeal, is the most substantial part of the case, very great care should be taken that we should act upon a uniform principle. The principle which I proposed to your Lordships, in the first instance not to give costs in this appeal to
Page: 1643↓
Interlocutors affirmed, with an alteration, and appeals dismissed.
Solicitors: Appellant's Solicitor, A. Dobie, London.— Respondent's Solicitors, W. H. and W. J. Sands, W.S.; John Graham, Westminster.