L had a barony title to the lands on both sides of a river, dating from 1774, and also express grants of salmon-fishing of a much earlier date to certain parts of the river situated below the falls of K. He had from time immemorial exercised a full and exclusive right of fishing below these falls, inter alia, by means of close cruives, which caught almost all the salmon ascending the river. In consequence of the cruives and the falls, the fishing above the falls was, up to 1862, when close cruives were abolished, almost worthless. L had asserted his right above the falls for a prescriptive period (1) by protecting the river during the spawning season; (2) by exercising the right of fishing occasionally; (3) by taking his tenants bound to protect the water; (4) by preventing others from fishing. Since 1862 he had fished regularly above the falls. It was not alleged that any other party had possessed the right of fishing. Held ( affirming Court of Session), in an action at the instance of the Crown, who claimed the fishings above the falls, that apart from the question of express grant, L was entitled to attribute his possession of the whole river to the barony title, and that under it the possession which had been had from the highest portion of the stream down to the sea had been one and continuous, and sufficient to maintain L’s rights within the limits of the barony lands.
Judges:
Lord Chancellor (Cairns), Lord O’Hagan, and Lord Blackburn
Citations:
[1880] UKHL 421, 17 SLR 421
Links:
Jurisdiction:
England and Wales
Land, Agriculture
Updated: 14 June 2022; Ref: scu.635628