In an action by the burgh of Inverness and others for declarator of exclusive right of salmon fishing in a part of the river Ness from both banks from a stone C to the sea, the pursuers founded on a Crown title granted in 1591 to the town of Inverness, which conveyed the water of Ness and all partes and each bank with the whole salmon and other fishings, including the fishings in dispute. The defender was proprietor of the lands of Holme on the south bank, which lay partly above and partly below the said stone. His title was a Crown charter in favour of the Earl of Moray, granted in 1566, which conveyed half of the lands of Holme, with the salmon and other fishings ‘pertaining’ to the same. The defender held the other half of the lands of Holme under a title from Fraser of Balnain, which made no mention of fishings. The disputed part of the fishings was below the said stone, and was opposite part of the lands held by the Earl of Moray; the upper part of the fishings was not in dispute, and lay partly opposite the Earl of Moray’s feu and partly opposite Fraser’s feu. Under his title from Lord Moray the defender claimed a joint right of salmon fishing along with the pursuers in the Ness ex adverso of Holme below the stone C. It was proved that from 1840 to 1843 the lower half of the Holme fishings and the town fishings were let to the same tenant; in 1843 the defender had been unsuccessful in an attempt to interdict the tenant of the town fishings from fishing on the Holme side of the river. It appeared from the evidence in the interdict that one of the witnesses deponed that the defender’s predecessor had pointed out the stone C as the boundary of the witness’s tenancy; since 1843 the defender had granted successive leases of the Holme fishings, and that the tenants had unchallenged fished salmon with net and coble down to 1853, and since then with rod and line, to the lower boundary of Holme.
Citations:
[1890] UKHL 393
Links:
Jurisdiction:
Scotland
Land, Agriculture
Updated: 28 June 2022; Ref: scu.636728