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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milne's Trustees v. Commissioners of H. M. Woods and Forests [1868] ScotLR 5_629 (1 July 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0629.html Cite as: [1868] SLR 5_629, [1868] ScotLR 5_629 |
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Page: 629↓
Held (1) that a grant of barony was a good title by prescription to carry salmon-fishings (2) notwithstanding an express grant, in the charter, of white-fishings.
The Magistrates of Aberdeen, trustees ex officio under the trust-deed of the late Dr John Milne, of Bombay, proprietor of the lands and barony of Muchalls, in the county of Kincardine, brought this action against the Commissioners of Her Majesty's Woods and Forests, for declarator “that the pursuers have the sole and exclusive right to the salmon-fishings in the sea and sea-coast ex adverso of the lands and barony of Muchalls, in the county of Kincardine, excepting the parts and portions of the said lands and barony under-mentioned, viz. … and that the said pursuers have good right and title to fish for salmon, grilse, salmon trout, and other fish of the salmon kind in the sea and sea-coast ex adverso of the said lands and barony, excepting as aforesaid, and that by stake-nets, bag-nets, net and coble, and every other legal mode: Further, it ought and should be found and declared, by decree foresaid, that the defenders have no right to the said salmon-fishings, and that they are not entitled to fish for salmon, grilse, salmon trout, or other fish of the salmon kind in the sea and sea-coast ex adverso of the said lands and barony, excepting as aforesaid: And the defenders ought and should be prohibited, interdicted, and discharged, by decree foresaid, from fishing for salmon, grilse, salmon trout, or other fish of the salmon kind in the sea and sea-coast ex adverso of the said lands and barony, excepting as aforesaid, and from erecting or using stake-nets, bagnets, net and coble, or any other engine or apparatus for catching salmon, grilse, salmon trout, or other fish of the salmon kind within the said lands; and ought and should be decerned and ordained, by decree foresaid, to desist and cease from disturbing and molesting the pursuers in the peaceable possession and enjoyment of the said salmon-fishings.”
The pursuers founded upon a crown-charter of resignation, dated in 1806, wherein the lands conveyed are described as “Totas et integras terras et baroniam de Muchalls cum messuagio et maneriei loco ejusdem toftas croftas et pertinentiis earundem comprehenden. villas et terras de Pityot Contlahills Mothgatehead Blackbutts Stranathro Strathethin Denabucks Corthings et Greenhead una cum decimis rectoriis et vicariis earundem et piscationibus alborum piscium et cymbis piscariis lie fisher-boats cum molendino de Muchalls,” &c. The pursuers alleged prescriptive possession on their barony title, and pleaded that, “in respect of the grant of barony to their authors, with the possession and exercise by their said authors and them of the right of salmon-fishings for upwards of forty years prior to 16th April 1862, they had at the said date, and have the sole and exclusive right to the salmon-fishings in the sea and sea-coast ex adverso of the lands and barony of Muchalls, excepting as above-mentioned.”
The defenders pleaded—“There being no grant either of salmon-fishings or of fishings generally in the titles of the pursuers prior to 28th December 1844, the title on which the pursuers found is not a good basis for acquiring a right to salmon-fishing by possession. Even if a simple barony title, with possession for forty years, could in any case be held to confer a good title to salmon-fishings, that title founded on by the pursuers, containing as it does an express grant of ‘fishings of white-fish,’ without any grant either of ‘salmon-fishings’ or of ‘fishings’ generally, is not a good basis for acquiring a right to salmon-fishings by possession, on the principle expressio unius exclusio alterius.”
The Lord Ordinary (
“Finds that the barony title founded on by the pursuers is a sufficient title to the salmon-fishings in question if followed by prescriptive possession of such fishings: Repels the second and third pleas in law stated for the defenders: Finds that the pursuers are entitled to prove said prescriptive possession; and appoints the cause to be enrolled for further procedure, reserving all questions of expenses.
Note—The pursuers found upon their barony title. as giving them right to the salmon-fishings. They produce a crown charter of resignation in 1806, in which the lands are described as the barony of Muchalls, and they aver prescriptive possession of salmon-fishings by them and their authors following upon that title. The Lord Ordinary thinks that it must be taken as settled law that, in the general case, the charter of a barony is a good title by prescription to carry salmon-fishing. To this extent all the institutional writers concur, whatever difference of opinion may have existed as to the stronger doctrine laid down by Lord Stair and Sir George Mackenzie. (St. 2, 3, 60, 61 and 69; M'K. 2, 6, 3; Ersk. 2, 6, 18; Bell Pr. § 754.) The Lord Ordinary is therefore of opinion that the pursuers have a good title on which they may establish right to salmon-fishings by prescriptive possession, unless the ordinary effect of a barony title can be held to be excluded in the present case by the specialty to be immediately noticed.
The description of the subjects is in these terms: ‘Totas et integas terras et baroniam de Muchalls cum messuagioet maneriei loco ejusdem toftas croftas et pertinentiisearundem comprehenden. villas et terras de Pityot &c., una cum decimis rectoriis et vicariis earundem et piscationibus alborum piscium et cymbis piscariis lie fisherboats cum molendino de Muchalls,’ &c. The defenders contend that the special mention of white-fishing excludes the construction by which, on proof of prescriptive possession, the grant of barony might otherwise be held to have included a grant of salmon-fishings. The Lord Ordinary feels this to be a question of considerable difficulty. The defenders found upon a maxim— Expressio unius est exclusio alterius; and there is
Page: 630↓
Holding the question to be open, the Lord Ordinary is of opinion that the mention of white-fishings, as it here occurs, does not exclude the ordinary effect attributed by law to a barony title as importing a grant of salmon-fishings, where they have been possessed for the period of prescription. The charter dispones the lands and barony of Muchalls, comprehending certain lands named. If the description had stopped there, there would have been a good title on which by possession to prescribe a right to salmon-fishings as included in the conveyance, just as in the case of an ordinary grant of lands with fishings. But the charter proceeds: ‘Una cum decimis rectoriis et vicariis earundem’ et piscationibus alborum piscium et cymbis picariis lie fisherboats cum molendino de Muchalls,’ &c. If, upon a legal construction of the former part of the description, it must be held that, taken by itself, it gives right to salmon-fishings, does the mention of white-fishings, among the additional subjects conveyed, teinds and others, change its import and effect in that respect? The Lord Ordinary thinks it should not be held to do so. Although they are both rights of fishing, salmon-fishing and the exclusive right of white-fishing are rights materially different in their legal character. The former may be effectually conferred by a grant of a barony in general terms, provided the title is so interpreted by prescriptive possession. The latter cannot be acquired in that way. Salmon-fishing is all along an existing patrimonial right—in the Sovereign before it is granted out, and in the grantee thereafter. But white-fishing only becomes a patrimonial right by being granted by the Crown to a subject. The grant is made, not out of the patrimony of the Sovereign, but as a limitation of the right of the public. Such an exercise of the power of the Crown is exceptional, and there is the strongest presumption against its having taken place where it does not appear expressly on the face of the grant. The Lord Ordinary knows no authority for holding that the right can be acquired by a mere grant of barony, or of lands cum piscationibus followed by possession; and he is of opinion it cannot be so acquired. It follows, that if it was intended to confer that right, it was absolutely necessary to give it expressly—as additional to anything that might pass under the general grant of barony. Salmon-fishings, on the other hand, may so pass by a mere grant of barony, provided prescriptive possession follows. In the cases where that occurs, the law holds that, by granting the subjects as a barony the Crown intended to include salmon-fishings in the grant. The Lord Ordinary does not think that the ordinary legal construction of the grant in such circumstances is excluded by the fact that the charter expressly gives the right of white-fishing, which could not be conferred in any other form, and must have been separately expressed, whether the right of salmon-fishing was intended to be given or not. Even if the charter had expressly borne to be cum piscationibus, on which a right to salmon-fishings might have been prescribed, or cum piscationibus salmonum, the grant of white-fishings must have been expressed if it was meant to be conferred. The Lord Ordinary, therefore, thinks that its expression in the present case cannot be taken as limiting, or in any way construing, the effect of the preceding portion of the clause”
The defenders reclaimed.
Solicitor-General and T. Ivory for reclaimers.
Clark and Hall for respondents.
At advising—
The Lord President was of opinion, on the first point, that though it might be true that there was no recorded judgment fixing the matter, there was — what was much more weighty than one or two judgments—there was the concurrent testimony of all the institutional writers of the law of Scotland. Stair and Mackenzie were quite clear. Erskine was said to be doubtful; but, on examination, it was plain that in the passage in his “Institutes” (ii, 6, 18) relied on by the defenders, he agreed with Lord Stair on the special point in question; and in his “Principles,” which was repeatedly revised by him, he stated the doctrine clearly. Bell stated the law to the same effect. As to the second point, there were many considerations which made it easy to understand that a Crown grant which was silent as to salmon-fishings might be intended to convey them, while at the same time it was natural to use express terms in conveying white-fishings. Salmon-fishings were the patrimonial property of the Crown; white-fishings were held by the Crown for the benefit of the public, and, assuming a grant of white-fishings to be within the power of the Crown, it was a grant of so anomalous a nature, and so uncertain in its effect, that if it was meant to give it, it was natural and proper to give it in express terms.
The other judges concurred.
Page: 631↓
Solicitors: Agents for Pursuers— Tods, Murray, & Jamieson, W.S.
Agent for Defenders — Andrew Murray jun., W.S.
