Salmon Fishings
45.10 Habile titles
45.10.1 Barony titles
A barony title, even with no mention of fishings of any sort, is habile to include the salmon fishings within the barony. Any instance in which it is claimed that a barony title is habile to include fishings in a river which bounds the barony, (or fishings beyond the medium filum of the river where the barony is bounded by the medium filum) should be referred to Legal Services.
45.10.2 Crown grant of lands with fishings
A grant by the Crown of land with fishings but not including the word salmon is also habile to include salmon fishings.
45.10.3 Express grant of salmon fishings not from Crown
It has been held that an express grant of salmon fishings by a party other than the Crown can be a habile title. However, there is debate as to whether such a grant, followed by prescriptive possession, can ever be free from challenge by the Crown in circumstances where the Crown has yet to alienate the fishings by express or implied grant.
45.10.4 Grant of fishings not from Crown
Although there is no specific authority on the point, it appears that a grant of fishings, not mentioning salmon, by a party other than the Crown may be a habile title to salmon fishings. An original grant of fishings alone does not convey an interest in land and is thus incapable of registration. However, an original grant of other lands ‘with fishings’ may be registered. As above, it may be that a right to salmon fishings acquired by prescriptive possession on such a title may be susceptible to challenge by the Crown.
45.11 Possession and warrandice
As a range of types of title are habile to include salmon fishing rights and acts of possession to an incorporeal subject which cannot be occupied may not be obvious, salmon fishing interests carry a high risk of problems arising from competing titles. For that reason, any aspect of an application for registration (whether for first registration or of a subsequent dealing) which suggests that another party may be in adverse possession should be queried.
Similarly, any non-standard exception from warrandice in a deed inducing registration (or, in the case of first registration, within the prescriptive progress) should be queried. The norm will be that indemnity should be excluded in respect of the matter over which warrandice was qualified. In this respect, it should be noted that in a feudal grant by the Crown it is normal that warrandice be against fact and deed only and this need not be queried.
45.11.1 Prescriptive possession
Where application is made for first registration of an interest in salmon fishings, the deed inducing registration may be an original Crown grant, or the progress of titles submitted may include a Crown grant made within the twenty years prior to the application for registration and every subsequent transfer. In such cases, prescription and possession need not be considered. In all other cases, such consideration is necessary.
Sections 1 and 2 of the Prescription and Limitation (Scotland) Act 1973 apply to salmon fishings as they apply to other rights in land. However, it must be noted that section 1(4) of that Act applies a twenty year positive prescriptive period to acquisition of salmon fishings otherwise owned by the Crown. Unless it is known that the Crown has in the past made an express grant of the particular salmon fishings to any party Keeper’s policy – competing right of Crown), it will therefore be necessary to examine a progress of titles, and to consider possession, for 20 years following on the recording of a habile foundation writ. Where it is known that the Crown right has been alienated such examination can be limited to a ten year period.
45.11.3 Keeper’s policy – evidence of possession
In respect of interests in salmon fishings, the Keeper will require to examine evidence of prescriptive possession before giving an indemnified title. If evidence has not been submitted with the application for registration it should be requisitioned from the applicant’s agent. The terms of such requisition will vary according to the circumstances of the case. However, the following style is offered as a guide:
Please forward evidence to demonstrate that the granter of the deed in favour of your client [and, if appropriate, his/her predecessors in title] has actively possessed the whole interest since [date of recording of foundation writ]. Please also confirm that this possession has been open, peaceable and without judicial interruption and has been to the exclusion of any other party with a competing title.’
Factors to be taken into account in considering evidence submitted are discussed in the two immediately succeeding paragraphs. If the evidence produced does not adequately rule out the possibility of some other party having right to the interest (or some part of it) on a competing title, indemnity should be excluded in the proprietorship section in the following terms:
45.11.4 Keeper’s policy – competing right of Crown
If it is not apparent, from the documents submitted with the application, that the interest has been alienated by the Crown at some stage in the past, it is necessary to consider the possibility that the title may be open to challenge by the Crown. The applicant’s agent should be asked to supply either evidence of a prior alienation by the Crown or a letter from the Crown Estate Commissioners which confirms that the Crown will not seek to challenge the right which the applicant has acquired. If such evidence is not forthcoming, indemnity should be excluded in the proprietorship section in the following terms:
The possession must meet the requirements of the Prescription and Limitation (Scotland) Act 1973 in having been continuous, open, peaceable and without judicial interruption. Further, it must be possession of the right to fish for salmon. Evidence of coarse fishing or other uses of the alveus, riverbank, foreshore or seabed is not relevant.
It has been held that the possession required for prescriptive acquisition must be an active assertion of the right to fish for salmon. That may be by the proprietor’s own use of the fishings, or by leasing or licensing the right to others in exchange for some consideration. It is not clear whether permitting others to fish gratuitously is a sufficient assertion of possession.
The means by which fishing has been carried out over the prescriptive period also requires to be considered. It has been held that net and coble fishing is a form of possession which may be counted for prescription. It has further been held that, where the narrowness or nature of the river makes it impracticable to fish with net and coble, rod and line fishing may suffice. However, it appears that rod and line fishing is not sufficient possession for purposes of prescription on waters which might be fished by net and coble.
In Gay –v- Malloch 1959 SC 115 the Court of Session accepted without question that a navigable, tidal stretch of the River Earn some 60 yards wide at low water was too narrow to sweep from one bank by net and coble without going beyond the medium filum. It may therefore be taken that where a river is under 30 metres or so wide it is sufficiently narrow that rod and line fishing will suffice for prescriptive possession. Note however that given the later decision in Fothringham -v- Passmore. it is not safe to conclude that an interest which lies between one bank and the medium filum, and which is under 30 metres wide, may not be fished by net and coble.
This is a problematic area where the case law is clearly out of date but nonetheless still binding. In some cases the problem may be avoided by looking to events before the date of the foundation writ from which it may be found that the applicant’s right in fact derives from an express Crown grant. Alternatively it may be established that the interest had in earlier times been fished for a prescriptive period by net and coble by the applicant’s predecessors in title.
The possession must also be by a means which is lawful for the given waters. Thus, for example, fishing within the limits of an estuary with a stake net cannot be counted for purposes of prescription.
Where an interest would otherwise be bounded by the medium filum of a river, it may be argued that possession on a habile title has perfected a right to fishings beyond the medium filum. In light of the House of Lords decision in Fothringham -v- Passmore, it is questionable whether such an argument can succeed. Any instance where the applicant seeks right beyond the medium filum in these circumstances should be referred to Legal Services.
45.11 6 Extent of right obtained by prescriptive possession
Right is obtained only to that which has been possessed. Thus, if a title is habile to include salmon fishings on a river and also ex adverso the shore, but only fishings on the river have been possessed, that possession does not perfect title to the fishings in the sea. Similarly, if a title is habile to include the fishings in two or more rivers and only one river has been fished, prescription does not operate to perfect title to the fishings in the other river(s).
A question arises where a title is habile to include the fishings in a stretch of river but the possession has been of only a part of that stretch. It has been held in some cases that the whole stretch can be considered an unum quid, allowing possession of a part to perfect title to the whole. However, such cases are fact-specific and possession of one part by the applicant’s author does not rule out adverse possession of the other parts on a competing title. Accordingly, the Keeper’s policy is to take a cautious approach and, unless a court decree indicates otherwise, to take the view that title is perfected only to the part which has been possessed.
45.12 Reciprocal Agreements and possession beyond the medium filum
In many cases, different parties own the right to fish for salmon on either side of the medium filum of rivers. Where the river is narrow, it may be impossible to fish on one side without trespassing onto the other. In respect of net and coble fishings in narrow rivers, a practice developed where the proprietors on each bank would take alternate shots at sweeping the whole width of the river with their nets.
Similarly, the proprietors on either side of the medium filum often agree to share the use of the whole width of the river for rod and line fishing. The most common approach is to agree that one side may fish the whole width on Monday, Wednesday and Friday, and the other on Tuesday, Thursday and Saturday. (It is unlawful to fish for salmon on a Sunday.)
It is now common practice to document such agreements to share the use of a river between opposite proprietors in formal 'Reciprocal Agreements.' The terminology used in such agreements tends to regard the two parties as being proprietors of the opposing banks of the river. It should be borne in mind that the agreement concerns not the use of the banks but the use of the right of salmon fishing in the water between each bank and the medium filum.
It A reciprocal agreement is a bilateral contract between the parties. Questions of termination and of suspension of performance during the other party's breach should be governed by the law of contract. Where a party to such a contract sells his interest, his disponee is at liberty to adopt the agreement, but not compelled to do so.
However, reciprocal agreements are frequently drawn as if they were burden writs intended to bind singular successors and have been recorded in the Register of Sasines, apparently on the assumption that the agreed terms will become real conditions affecting the interests. It is by no means clear that real conditions are created. The matter may be clarified in the course of ongoing law reform.
For the present, the Keeper's policy is that the terms of any reciprocal agreement which has been referred to for burdens should be entered into the burdens section of the title sheet but that, by virtue of section 12(3)(g) of the 1979 Act, there is no entitlement to indemnity in respect of enforceability.
45.12.3 Fothringham -v- Passmore
The House of Lords decision in Fothringham -v- Passmore 1984 SLT 401 impacts on the question of fishing beyond the medium filum. The effect of the decision appears to be that in any river (whether narrow or not) where two different proprietors’ interests have a common boundary at the medium filum, each proprietor is entitled to physically position himself (in a boat unless the water is particularly shallow) anywhere on his own side of the medium filum and to cast as far into his neighbour's property as he can reach. The decision is analysed by K.G.C. Reid in Salmon Fishings in Troubled Waters 1985 SLT (News) 217. Professor Reid's view is that this right to fish in one's neighbour's water is not a right of property but a type of common interest.