United Kingdom House of Lords Decisions

The respondent's estate of Banchory is made up of two parcels, which have been held by the same proprietor since the year 1618, but anciently belonged to two different ecclesiastical bodies. The lands and barony of Banchory, with their salmon fishings in the river of Dee, were in the thirteenth century feued out by the Abbot and Convent of Arbroath to the Justiciar of Scotland, and have since been held by laymen. The Kirkton of Banchory belonged to the See of Old Machar until 1571, when it was feued by the Bishop with the consent of the Dean and Chapter. It was acquired by Alexander Gardyne of Banchory in the year 1618. Down to that date the Kirkton titles contained no grant of salmon fishing. In November 1743 a successor of Alexander Gardyne, by the same deed, disponed the lands and barony of Banchory and also the Kirkton to Alexander Thomson, “with the whole salmoned fishing in the water of Dee belonging to the said whole lands”; and in May 1744 the disponee, under the procuratory contained in that disposition, expede a Crown charter of resignation in which these lands are granted “cum in-tegra salmonum piscatione super aquam de Dee ad dictas terras spectante.”

The proof led by the parties, which I do not think it necessary to examine in detail, is chiefly directed to two matters, the first of these being the extent of possession of the disputed fishings which has been exercised by the parties respectively within and beyond the years of prescription; and the second, the point which has been reputed to be, and has been and recognised as, the boundary of their fishings.

The evidence of possession, as might well have been anticipated in a case of this kind, cannot with propriety be described as full and satisfactory. But having regard to the barren nature of the subject which forms the stake in this action, the possession of the appellant and his predecessors, and others in their right, exercised by rod and line, which was the only suitable method, appears to me to have been as extensive as might have been expected of a single proprietor who had a clear title from the Crown. There is no doubt a certain degree of complication arising from the fact that there is evidence of persons from the Banchory estate having angled in the disputed water. When, however, the evidence as to the boundary observed during the time when these incursions were made is taken into account, as in my opinion it ought to be, I cannot regard them as acts intentionally adverse to, and therefore as neutralising the effects of the possession proved by the appellant.

The evidence, in so far as it bears upon the second point, the question of fishing boundary, appears to me, as it did to the Lord Ordinary, to be in favour of the appellant. In arriving at that conclusion I do not rely upon the respondent's admission, in a letter of the 16th July 1869, to the effect that the fishing boundary now claimed by the appellant “had never been disputed by anyone.” The respondent has retracted that admission, and has explained in his testimony that the letter was written under a misapprehension, upon information received by him from one Mackie, now in America, who was at that time and had for many years previously been ground officer on the estate of Banchory. It is, however, impossible to discard the fact that the information was given to him by his own servant, who presumably had the best means of knowing the truth; and Mackie's information is, in my opinion, corroborated by the proof. In November 1850 the whole of the Banchory salmon fishings, including those ex adverso of the glebe, were offered on lease, and were taken by Robert Clark for three seasons, commencing on the 1st February 1851. The conditions of let prepared by the proprietor and accepted by the tenant state that “the western boundary is at the manse offices.” Clark from time to time renewed his tenancy, upon the same terms, until he obtained a lease, for nineteen years from Martinmas 1858, of a farm upon the estate of Banchory, “along with the salmon fishing on the Dee presently occupied by him.” Clark was examined as a witness, and stated that during his occupation under these leases, covering a period of thirty-seven years, “he never tried to fish farther west than the manse offices of Banchory-Devenick.” In the face of that evidence, which is practically uncontradicted, I am unable to regard an occasional cast in the disputed water, by persons coming from the estate of Banchory, as an assertion of their right to the fishing by the proprietors of that estate.

Assuming the appellant to have made out his case, in so far as concerns possession by rod fishing and the recognised boundary between his fishings and those of the respondent, these facts will not avail him, unless he is able to show that his possession or right of fishing can be reasonably ascribed to his title as proprietor of Ardoe. The respondent alleges on record that the glebe was designed “out of the church lands of the Kirkton of Banchory,” and consequently that after its designation “the right to the salmon fishings ex adverso of the glebe remained in the proprietors of Banchory;” and if these statements were substantiated the appellant would not be in a position to ask decree in terms of his summons. There is no direct evidence however in support of the allegation that the glebe was designed out of the lands of the Kirkton; it rests upon mere inference; and in my opinion there are various considerations which strongly point to a different conclusion.

It appears from the minute book of the

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