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William Chisholm v Archibald Fraser, and his Lessees of the Salmon-Fishing on the River Beauly. [1801] Mor 33_1 (17 June 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor33SALMONFISHING-001.html Cite as:
[1801] Mor 33_1
William Chisholm v. Archibald Fraser, and his Lessees of the Salmon-Fishing on the River Beauly
Date: 17 June 1801 Case No. No. 1.
An infeftment cum piscationibus, followed by forty years possession, of killing salmon with the rod and spear, found not to be a sufficient title to insist in an action for regulating the cruive-fishings of an inferior heritor.
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The conflux of the Glass and the Farrar in Inverness-shire, form the river Beauly.
Mr. Frazer of Lovat has a right of cruive-fishing on the Beauly.
Mr. Chisholm, who is an extensive proprietor on the rivers Glass and Farrar, alleging that Mr. Frazer and his lessees exercised their cruive-fishing illegally, brought an action for having the fishing regulated.
The defenders objected to Mr. Chisholm's title.
From the productions made by Mr. Chisholm, it appeared, that he and his authors had been infeft in the lands ex adverso of the two rivers in question for more than forty years, on charters from the Crown, bearing cum piscationibus; and he established, by parole proof, that he and his ancestors, servants, and tenants, for upwards of forty years, had been in the practice of killing salmon for their own use with the rod and spear; but there was no evidence of Mr. Chisholm or his ancestors having ever sold salmon, or let the right of fishing.
The Lord Ordinary “sustained Mr. Chisholm's title."
In a reclaiming petition, Mr. Frazer and his lessees
Pleaded: This not being a popular action, Mr. Chisholm must shew an interest, which he can do only by establishing that he is possessed of a proper right of salmon-fishing. But a rod and spear fishing is not of this description; 3d December 1701, No. 6. p. 14250; 1765, Frazer against the Heritors of the cruive-fishings in the Ness, (not reported;) 1773, Leith against the Heritors of cruive-fishings in the Don, (not reported;) 1779, Sir James Colquhoun against Smollet, (not reported.) It is not a jus regale; 30th July 1605, Garlies against Torhouse, No. 2. p. 14249. And if it be not a common law right belonging to every proprietor on a salmon river, who is infeft cum pertinentibus, it is at least a right which they generally enjoy by tolerance, and from motives of good neighbourhood.
Answered: No species of salmon-fishing can pass to an heritor, without either an express grant or an infeftment cum piscationibus; Stair, B. 2. T. 3. § 69. The pursuer's infeftment would have entitled him to have fished with net and coble; (4th August 1773, Duke of Queensberry, No. 7. p. 14251,) if the shallowness of the river had admitted of this mode of fishing. But his right is nevertheless a jus per se, and as affording a valuable source of subsistence to his family and tenants, is entitled to a legal protection.
The decisions founded on, on the other side, are not applicable. In all these cases, the rivers admitted of being fished with net and coble, which created a strong presumption that rod-fishing was not practised as a matter of right, but by tolerance.
The Lords, influenced by the authorities founded on by the defenders, altered the interlocutor, and found, that Mr. Chisholm had not a sufficient title to insist in the action.
Lord Ordinary, Armadale.Act. Burnet.Arch. Campbell, junior.Clerk, Sinclair.
Fac. Coll. No. 239. p. 540.
