Scottish Court of Session Decisions

Subject_1 PART and PERTINENT.

Robert Carmichael, and Others,
v.
Sir James Colquhoun

Date: 20 November 1787
Case No. No 25.

The right of trout-fishing understood to be conveyed under the deseription of part and pertinent, but may be expressly reserved from the grant, or transferred to a third party.

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The title-deeds of Sir James Colquhoun's estate bear his right ‘to the fishing of salmon, and other fishings, in the water of Leven.’

Mr Carmichael, and other proprietors of the grounds lying along the banks of the river, and who are all infeft in their lands, either ‘cum piscationibus,’ or with ‘parts and pertinents,’ instituted an action of declarator against Sir James; in which they set forth, ‘That they and their authors had, by virtue of their titles to the lands, been in the immemorial practice of catching trouts with nets and rods in the river ex adverso of their respective properties; and concluded, that they had a right so to fish, or ‘in such other manner as to them might seem proper; and that he ought to be prohibited from the exercise of trout-fishings ex adverso of their lands.’

Pleaded for the defender; Trout fishings are not more res nullius, or less capable of appropriation, than salmon-fishings, which, from their superior value, have been ranked inter regalia; Craig, lib. 1. dieg. 16. § 11.; Stair, b. 2. tit. 3. § 69. The defender's title-deeds shew, that he is vested with the property of those in question.

Answered; The defender's exclusive right to salmon-fishing is admitted. But, long before the Crown conferred that right, the pursuers authors had acquired their lands, and the trout-fishing as pertinent of these; for in no instance was the fishing of trout ever reserved by the Crown. It could not, then, bestow that right on the defender. Nor is the vague expression of ‘other fishings,’ sufficient to indicate such an intention.

The Court seemed unanimous in the opinion, that the right of trout-fishing in a river, though naturally inherent in the property of the adjacent banks, so as to accompany lands as part and pertinent, might yet be reserved from the grant, or transferred to a third party, either expressly or by prescription; and that trouts were res nullius in this sense only, that any person standing on a high road or any public ground contiguous to the stream, might lawfully catch them.

Some of the Judges thought the clause ‘other fishings’ in the defender's charters sufficiently expressive of the exclusive right of fishing trout on the banks in question; which others did not admit; but all seemed agreed, that if he or his authors had that exclusive right, it had been lost by disuse.

The cause was reported upon informations; when the Lords pronounced this interlocutor:

‘In respect that Sir James Colquhoun's right to the salmon-fishing is not disputed in this cause, find he has right to the salmon fishing in the river Leven, where it runs through the property of the pursuers; find the pursuers have a right to fish trouts opposite to their respective properties, with trout-rods or hand-nets, but not with net and coble, or in any other way that may be prejudicial to the salmon-fishing belonging to Sir James Colquhoun, the defender.’

Reporter, Lord Braxfield. Act. Dean of Faculty et Morthland. Alt. Solicitor-General et Baillie. Clerk, Home. Fol. Dic. v. 4. p. 40. Fac. Col. No 5. p. 10.