Lord Advocate v Lord Lovat

• Jurisdiction: Ireland
• Court: House of Lords (Ireland)
• Judgment Date: 12 July 1880
• Date: 12 July 1880
• Docket Number: No. 12.

[HOUSE OF LORDS.] THE LORD ADVOCATE APPELLANT; LORD LOVAT RESPONDENT. 1880 Feb. 28. EARL CAIRNS, L.C., LORD O'HAGAN, and LORD BLACKBURN.

Salmon Fishing - Barony Title - Immemorial Possession.

In 1774 the Crown granted to L. a barony charter to lands almost continuous on both sides of a river in Inverness-shire, included were older baronies containing express grants of salmon fishing to parts of the river some above and some below certain falls, also an ancient barony grant giving the fishing on the Water of Forne, which was alleged to be the old name of the whole river from its source to the sea. From time immemorial L. had exercised his possession, up to 1862, taking all the fish in the whole river by means of close cruives, just below the falls, which stretched right across the river, and which were narrower than then allowed by law. Above the falls he asserted his right (a) by occasionally fishing there; (b) by during the spawning season having watchers; (c) by taking his tenants in their leases bound to protect the fishing, and prevent all others from fishing. All which he had done for a period much longer than forty years. Since 1862, when close cruives were abolished, he had regularly fished above the falls with net and coble.

Neither the Crown nor anyone else had ever objected to L.'s entire possession of the whole salmon fishing in the river. The Crown now, while admitting L.'s right to the salmon fishing below the falls to be incontestible, claimed, de jure coronæ, all the fishing above the falls:—

Held, affirming the decision of the Court below, that the river here was a unum quid — one continuous and connected subject — and that L.'s entire control and enjoyment of the whole profit of the fish in the whole river, for a time far beyond the period of prescription, coupled with his titles, gave him the right to the salmon fishing within the limits and ex adverso his barony lands wherever situated:

Held, also, that this decision was without prejudice to any right of the Crown or its grantees to the salmon fishing ex adverso the ancient barony lands of C., which were lands on the banks of the above-mentioned river intermixed with L.'s barony lands.

See Lord Blackburn's opinion (p. 311) as to the extent of a grant to take fish by yairs or cruives.

APPEAL from the Second Division of the Court of Session in Scotland.

This action was one at the instance of the Lord Advocate, the Appellant, on behalf of the Crown, for declarator that the whole salmon fishings in the Rivers Affaric, Cannich, Glass (sometimes called the Beauly), Farrar, &c., from their source down to the Falls of Kilmorack, with their tributary rivers, streams, and lochs, in the parishes of Kilmorack and Kiltarlity, Inverness-shire, belong to the Crown jure coronæ.

The proceedings were instituted not only against the Respondent, Lord Lovat, but also against the Chisholm and other owners of land on the banks of the above rivers; but all save Lord Lovat declined to dispute the right of the Crown in the salmon fishings in question. Lord Lovat contended that he was the sole proprietor of the fishings either (1) by express grant, or (2) by virtue of his barony title, explained and interpreted by immemorial possession. It was conceded by the Appellant that Lord Lovat's title to the salmon fishings below the Falls of Kilmorack was incontestible; but that he had no right whatever to the fishings above the falls.

The course of the river was as follows: It rises in the western part of Inverness-shire; and by the time it reaches a place called “Guisachan” it is a considerable stream, known by the name of the “Diag.” Then, a little above “Fasnakyle,” the “Diag” is joined by the “Affaric” river; and the united streams are then known as the “Glass.” A few miles farther down the river receives the “Cannich,” and then, after a course of several miles, it receives the “Farrar,” which, after flowing past Struy, joins the main river at Erchless Castle, six miles above the falls and eight above Beauly Firth. The river, under the name of the Glass or Beauly, then passes and forms the island of “Eilan Aigas,” below which it receives “Breackachy Burn,” and thence proceeds over a rocky bed of about a mile to the Falls of Kilmorack, and on to the estuary known as Beauly Firth. Lord Lovat substantially claims the fishing from Guisachan or Fasnakyle, points up the river near where the Diag is joined by the Affaric.

A large number of ancient titles were examined, some extending back to the year 1206; all will be found, as far as material, dealt with in Lord O'Hagan's and Lord Blackburn's opinions. The material evidence of possession adduced by Lord Lovat will also be found in these opinions. It will, therefore, only be necessary to give here a short summary of the facts. Prior to 1571 the owners of the land on both sides of the river, from its source to the sea, were three in number. Hugh Lord Fraser, of Lovat, was, under various titles, proprietor of the whole lands on the south bank of the river, and also of the lands on the north bank from a place called the Glass Burn down to the lands of Breachachy, and of the lands of Kirkton of Kilmorack, opposite the falls. These lands were held under the barony charter dated 1539, by King James V., and not only included certain lands nominatim, but the previously erected baronies of Ard, Abirtarf, and Erchless, and an old barony of Lovat. The barony of Erchless included lands above and below the falls, with fishing cum molendinis piscationibus lie zaris. It was purchased in 1528 by the Lovat of that day, and the Crown charter confirming the conveyance was in identical terms to that erecting the barony.

The Chisholm was the proprietor of the lands of Knockfyn, Comarmore, the two Inverchanais, and the two Breachachys, all included in the barony of Comarmore granted by King James V. in 1538. Breachachy extended along the north bank above Breachachy Burn; and the other lands on the same side were above the Glass Burn.

The third proprietor was the priory of Bewlie or Beauly, and owned all the land on the north bank from the Breackachy Burn to Beauly Firth, except Kirkton of Kilmorack with fishing in the Water of Forne. The monks claimed in virtue of a composition from one John Bisset, who, it was alleged, had at a very early date received a Crown grant of the whole lands on the river from Lovat near the sea to Guisachan near the source, with fishings.

In 1571 Lord Lovat acquired by conveyance from the monks the barony of Beauly, with the salmon fishing super aqua de Forne, extending “a lie Carnecott usque ad mare vel als ubilibet in dicta aqua inter salmonu piscarias dicti nobilis dñi hugonis dñi Fraser de Lovatt de Kilmorak, usque ad mare cum lie cruffis et singulis suis proficuis jaceñ infra prioratu de Bewlie,” &c.; and this charter was confirmed by a charter by King James VI. Lord Lovat thus possessed a continuous stretch of lands on the south side, bounded by the streams of the Diag, the Glass, and the Beauly, from Guisachan to the sea; and on the north side he possessed an equally continuous stretch of river boundary, with the exception of the barony lands of Comarmore owned by the Chisholm.

In the course of the seventeenth century Lord Lovat's predecessor sold to the Chisholm the lands of Easter and Wester

Erchless, Comerkil, Wester Comar, Buntails, and Mauld, lying on the north bank; and the superiority of these lands afterwards fell to the Crown.

In the next century Lord Lovat's estates were for a time confiscated; but were restored to the Respondent's ancestor General Simon Fraser, in whose favour a charter of novodamus was granted in 1774, which included not only all the lands then owned by Lord Lovat's predecessors, but those above-mentioned which had been long parted with to the Chisholm.

Since then the lands of Guisachan had been sold to Sir D. C. Marjoribanks, and the lands of Aigas to Mr. Oswald; so that at the present day Lord Lovat is owner of both banks up to Breachachy Burn; of the south bank from that burn to Easter Mains, and again ex adverso of the Easter and Wester Croichails; and of Struy on the north bank from Glass Burn down to opposite Mauld.

Under the Crown charter of 1774, which contained as one of its component parts the barony of Bewlie, two questions arose in the Court below, though the first was not argued here — (1) as to the precise position of Carnecot, the Crown contending it lay below, and Lord Lovat that it was above the falls; and (2) as to the extent of the “Water of Forne.” It was admitted by both parties that it applied to part of the river, but the Appellant maintained it only applied to the river below the falls; on the other hand, the Respondent said it applied to the whole river from its source to the sea, including all the tributary streams, &c.

Lord Lovat founded his express title on, inter alia, the words in the charter from the monks (stat. of facts): “All and whole the salmon fishing upon the water of Forne, from Carnecot to the sea, with the cruives and all other profits thereto belonging lying within the said barony of Bewlie, united and incorporated into a free barony called the barony of Bewlie;” and contended that the whole streams now known as the Farrar, Glass, Beauly, Affaric, Deabhaibh, and Cannich, were anciently known as the Water of Forne; at least they bore that name from the place anciently called Carnecot downwards to the sea; that the situation of the said place is now not precisely known, but such a grant comprehended substantially the whole salmon fishing upon the whole of the said rivers.

And otherwise maintained that all his land having been erected into a barony, the river and tributaries which were within the lands were a unum quid, and, therefore, he having admitted exclusive possession of the fishings of the lower part of the river, was entitled to the fishing of the whole. And, besides, he had in point of fact possessed the fishing of the upper...