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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gilmour v. Sutherland [1900] ScotLR 38_561 (20 July 1900) URL: http://www.bailii.org/scot/cases/ScotCS/1900/38SLR0561.html Cite as: [1900] ScotLR 38_561, [1900] SLR 38_561 |
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A, the proprietor of an estate situated on the north side of a sea loch and a river, held titles capable of covering the whole fishings on both sides of the loch and river ex adverso of his land, but neither he nor his authors had had such possession of the fishing on the south side as could construe his title as cover-ing the fishings from the south side. On the south side of the loch and river, opposite A's estate, was situated the glebe of the minister of the parish. There was no trace of a formal designation of the glebe, and the minister had no feudal title to salmon-fishings; but the minister and his predecessors had, as part of the benefice, possessed from time immemorial the salmon-fishing from the south side of the loch and river ex adverso of the glebe. The Crown made no claim to the salmon-fishing on either side.
Held, in an action of declarator and interdict by A against the minister, (1) that A had the sole right of salmonfishing in the loch and river from the north side of the said loch and river ex adverso of the glebe, and interdict granted against the minister fishing for salmon from said north side; and (2) that while the minister did not, apart from his position as a churchman, appear to he entitled to dispute A's right to fish from the south side, yet, as a churchman who had possessed the salmon-fishings in the loch and river from the south side ex adverso of the glebe for the requisite period as part of the benefice, he was entitled to the benefit of the rule decennalis et triennalis possessor non tenetur docere de titulo, and therefore must be presumed to have a valid title to fish for salmon in the loch and river from the south side ex adverso of the glebe, and interdict against his so doing refused.
William Ewing Gilmour, proprietor of the estate of Inverlael, in the county of Ross and Cromarty, brought an action against the Rev. William Sutherland, minister of the parish of Loch broom in said county, and against the Lord Advocate, as acting for the Crown and the Commissioners of H.M. Woods and Forests for any interest he might have. The action was brought to have it declared that the pursuer had the only title to the salmon-fishings in the river Broom and in Loch Broom ex adverso of the glebe of Lochbroom, and that he had the sole and exclusive right of fishing for salmon in the said river and loch ex adverso of said glebe, and that the defender had no right of salmon-fishing in said river and loch ex adverso of said glebe, and should be interdicted from fishing for salmon therein; or alternatively, that the pursuer had the only title to the salmon-fishings from the north or right bank of said river and loch ex adverso of said glebe, and that the defender had no right of salmon-fishing from said bank in said river or loch ex, adverso of said glebe, and should be interdicted from fishing for salmon from said bank in said river and loch ex adverso of said glebe.
The pursuer was proprietor of the estate of Inverlael, and was infeft therein conform to disposition in his favour by Sir Arthur George Ramsay Mackenzie of Coul, Baronet, dated and recorded in May 1899, in which disposition the estate conveyed was described as follows—“All and whole
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the lands of Inverlael and Glenbeg,… being the lands described in the title-deeds of the property as follows—All and whole the Davoch lands of Inverlauell in Loch-broom,… with the fishings of salmon and other fishes thereof.” The pursuer averred — “Said estate of Inverlael was held by the said Sir Arthur George Ramsay Mackenzie and his predecessors and authors, and is now held by the pursuer, immediately of the Crown. The titles to said estate flowing from the Crown contain an express grant of salmon-fishings, and the infeftments of the pursuer and his said predecessors and authors have, at least since the year 1628, included said salmon-fishings. Said salmofishings include those in the river Broom and in Loch Broom ex adverso of said estate of Inverlael, and have been possessed by the pursuer and his said predecessors and authors from time immemorial.”
The defender denied this, under reference to the pursuer's titles.
It was admitted that the estate of Inverlael was bounded on the south in part by the river Broom in its present course, and in part by Loch Broom, and that the glebe of Lochbroom lay opposite to Inverlael, and immediately to the south of, and upon the river and loch, extending along the said river and loch for a distance of nearly two and a-half miles.
The defender in a statement of facts averred—“The ministers serving the charge of Lochbroom have from time immemorial uninterruptedly, and exclusive of others, possessed as part of the benefice the fishings on both sides of the stream ex adverso of the glebe.” This the pursuer denied.
The defender also averred, that until the alteration of the course of the river after mentioned, a portion of the glebe lay on the north bank of the river. “In 1849 an application was made to the then incumbent, the Rev. Mr Cameron, and the Presbytery of Lochcarron, by Duncan Davidson of Tulloch, then proprietor of the lands of Inverbroom, and Sir Alexander Mackenzie, Bart. of Coul, predecessor of the pursuer in the lands of Inverlael, to permit the channel of the river Broom where it passed through the glebe below ‘The Bend’ to be altered for their benefit. The change was to consist in forming an artificial channel for the Broom below the said ‘Bend’ and down to the sea, past the manse and church, but nearer to Inverlael, and it was proposed that as the glebe had land on the Inverlael estate, and Inverlael had some land on the left bank, it would be desirable that the new channel should be recognised as the boundary line between the glebe and Inverlael. It appeared to the minister and Presbytery that this might be agreed to on certain conditions, one of which should be that the fishings on both sides of the altered course should continue to belong to the benefice, as they had done from time immemorial while both banks of the stream were in the glebe. The Presbytery, by minute of 27th November 1849, agreed to sanction the proposed alteration and that the new channel should form the boundary of the glebe, but only on condition—(1) that a piece of land equal in extent and value to that taken from the glebe to form the new channel should be given to the benefice for all time coming; (2) that the right to the whole salmon-fishings in the said river Broom, so far as running in the new channel along the margin of the glebe, should belong exclusively to the benefice as there to fore; and (3) that the heritors should bind themselves to secure the glebe from damage or encroachment by the river. The proposed alteration was then carried out by the said predecessor of the pursuer and by said Mr Davidson of Tulloch” in 1854. “Since the date of the said alteration of the channel, as before it, the minister of Lochbroom has possessed the fishings on both sides of the river Broom uninterruptedly and without challenge. He has also possessed the fishings in Loch Broom ex adverso of the glebe for a period exceeding forty years.”
The pursuer denied that any part of the glebe was ever situated to the north of the river, and that the minister of Lochbroom had possessed the fishings on both sides of the river Broom.
The pursuer pleaded, inter alia—“(1) The pursuer being infeft under titles flowing from the Crown in the salmon-fishings in the river Broom and in Loch Broom ex adverso of his lands, is entitled to decree of declarator and interdict as concluded for with expenses. (2) The pursuer, his predecessors, and authors, having possessed the salmon-fishings in the river Broom and in Loch Broom ex adverso of his lands for more than the prescriptive period under infeftments flowing from the Crown, the pursuer is entitled to decree of declarator and interdict as concluded for. (6) The defender not having averred any habile title to the salmon-fishings in question his defences should be repelled.”
The defender pleaded, inter alia—“(5) The successive ministers of Loch Broom having had immemorial possession, and in particular having had more than thirteen years' possession down to the date of this action, as part of the benefice, of the fishings ex adverso of the glebe, the defender is entitled to prevail in this action, et separatim, is entitled to maintain his possession against the pursuer.”
The Lord Ordinary ( Kyllachy) allowed a proof. The import of the evidence and the arguments of the parties sufficiently appear from the opinion of the Lord Ordinary.
The authorities referred to regarding the operation and effect of the brocard decennalis et triennalis possessor non tenetur docere de titulo were as follows:—Ersk. Inst. iii. 7, 33, and 34; Stair, ii. 1, 25; ii. 8, 29; Bankton, ii. 8, secs. 106–108; Gordon v. Ogilvie, August 1776, 5 Brown's Supp. 540; Craig v. Hillhead, December 21, 1644, Mor. 10,999; Greig v. Queensberry, November 21, 1809, F.C.; Scot v. Ramsay, February 15, 1827, 5 S. 367; Bishop of Galloway v. Prebendaries of the Chapel-Royal, 1660, M. 15, 627; Cochrane v. Smith, December 16, 1859, 22 D. 252.
There is no question that the pursuer has a good title to the salmon-fishings of the estate of Inverlael, and there is also no question that that estate as possessed for more than forty years has included the whole north bank of the river opposite to the glebe. It is also certain that the minister as no feudal title to salmon-fishings. He is not infeft in such under grant from the Crown or otherwise. Nor is there any trace of any formal designation of his glebe. Indeed, it is common ground that the glebe, like some other glebes in the Highlands, is of a size largely in excess of the legal limits. The tradition is (and it has some probability and some historical basis) that the glebe, including the salmon-fishings, was mortified to the benefice by one of the family of Seaforth, who were the original owners of Loch Broom under a barony title. But as I have said, there is no charter and no infeftment to which the minister can appeal.
In these circumstances, apart from the special position of the defender as a churchman entitled to the benefit of the decennalis et triennalis prescription, there would, I apprehend, be but slight room for controversy. The pursuer having a title, which is at least capable of covering the whole fishings ex adverso of his lands, and the defender having ex hypothesi no title of any kind, in these circumstances the only question would be, whether (the Crown not appearing) the defender could be heard to dispute the pursuer's right. And having regard to the narrowness of the river, and the impossibility of fishing on either side within the medium filum, I should rather think that at least as regards the river that question must have had negative answer. But as matters stand various questions both of fact and law appear to arise, and on these my views are shortly as follows:—
In the first place, as to the possession, I hold, as the result of the evidence, (1) that the pursuer and his authors have had no possession on the glebe side either of the river or loch such as could construe their titles as covering the fishings on both sides. In other words, failing the defender, the fishings ex adverso of the glebe on the glebe side would remain with the Crown.
I hold (2) that the defender and his predecessors have for time immemorial, including the last thirteen years, had all the possession of the fishings on the glebe side of which the subject was capable. They fished formerly by net-and-coble or its equivalent, and also by yair and rod, and latterly they have let the rod-fishing for a substantial rent—letting it as a commercial transaction to the best advantage. There is perhaps a scarcity of direct evidence as between 1871 and 1892, but there is sufficient general evidence that (as might be presumed) the possession continued, and there is no proof of adverse possession. In short, the minister's possession on the glebe side has been in my opinion reasonably continuous as far back as the evidence goes.
But, on the other hand, I hold (3) that there is no sufficient evidence of possession by the minister on the Inverlael side. Nor can I hold it proved that the glebe prior to 1854 included both sides of the river, or did so as far as what is now called the new channel extends. There is some evidence to that effect, but I think that when examined it goes no further than this—that between Inverlael and the glebe the river formerly ran in various channels with small islands here and there which were claimed by both sides. In any view there has been no possession by the minister on the Inverlael side since the new channel was made in 1854—certainly no possession which was undisputed or which has come down to the present time. I do not overlook the minute of the Presbytery dated in 1849. But of course that minute cannot constitute or supply the place of a title. It is at best no more than evidence of a personal contract between the Presbytery and the pursuer's author, and although an element in the proof of possession, it is, I am afraid, not of sufficient weight to displace what I take to be the general result of the proof.
Next, as to the application of the decennalis et triennalis prescription, I see no reason to doubt that within the limits of his possession the defender is entitled to the benefit of that prescription. The salmon-fishing has certainly been possessed as part of the benefice. The possession has not been traced to any subordinate or temporary title, or any title personal to individual ministers. And that being so, it does not appear material that salmon-fishing is not a subject which is capable of being designed as part of a glebe. If the designation had been extant and it appeared that it included the salmon-fishing, and that such had been the origin of the possession, the case would have been different. But nothing of that kind is suggested, and in the absence of proof contra the law presumes that there was a valid title although no deed is extant and no infeftment recorded. In this respect the decennalis et triennalis prescription differs from the ordinary prescription, from which it also differs as establishing not an absolute title but a presumption. I do not know that it is necessary to resume the authorities on this subject. They were all cited at the debate, and they were all, I think, considered, and will be found noted in the
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The result is that the pursuer fails in his first and succeeds in his second conclusion, while the defender on the other hand gets absolvitor from the first conclusion and has to submit to decree under the second.
Altogether, I propose to give the pursuer decree in terms of his alternative conclusion, and to assoilzie the defender from the first or leading conclusion of the summons. Success being thus divided I allow no expenses to either party.”
The Lord Ordinary declared and interdicted the defender in terms of the alternative or second declaratory conclusion of the summons, and conclusion for interdict following thereon; quoad ultra assoilzied the defender from the conclusions of the summons, found no expenses due to or by either party, and decerned.
Counsel for the Pursuer— Guthrie, K.C.— Chree. Agents— A. P. Purves & Aitken, W.S.
Counsel for the Defender— Sir John Cheyne, K.C.— C. N. Johnston. Agents— Menzies, Black, & Menzies, W.S.
