A glebe bounded on the north by a river for a distance of 350 yards, marched at the river side with the estate of A to the west, and the estate of B to the east, these estates having a common march inland. No right of fishing belonged to the glebe. The proprietor of A raised an action against the proprietor of B concluding for declarator that he had the exclusive right of salmon fishing ex adverso of the glebe for a distance of 135 yards eastward from his march. The titles of each of the parties included the salmon fishings ‘belonging to’ their respective lands, but there was no express grant of the salmon fishings ex adverso of the glebe, nor did it appear out of what lands the glebe had been designated. The Crown was not called as a party to the action.
The First Division of the Court of Session ( rev. the judgment of the Lord Ordinary) granted decree of absolvitor upon the ground that the proprietor of A had not established such possession as would have been sufficient in a question with the Crown either to sustain a prescriptive right or to show that the fishings were within his title.
The House of Lords on appeal reversed this judgment, and pronounced declarator in terms of the conclusions of the summons, on the ground (1) that the question between the parties was one of boundary merely, and was not affected by the rights, if any, possessed by the Crown; and (2) that the evidence as to the reputed boundaries and as to possession was sufficient to support the appellant’s claim, and was not inconsistent with the titles under which the lands were held, or with the statutory regulations as to the designation of glebes.
Judges:
Lord Chancellor (Halsbury), Lord Watson, Lord Macnaghten, and Lord Davey
Citations:
[1896] UKHL 516, 33 SLR 516
Links:
Jurisdiction:
England and Wales
Land
Updated: 27 April 2022; Ref: scu.634013