No. 118. June 13, 1873. Lord Advocate v. M'Douall. The pursuer reclaimed, and argued that the possession founded on by the defender was not of such a character as had ever, in a question none was raised, as to the defender's titles, quoad the whole lands in regard to which he has been found successful, being good and habile, if fortified by possession for the prescriptive period, to give him a right to salmon-fishings-Nicol and Others (Milne's Trustees) v. Lord Advocate, July 1, 1868, 6 Macph., p. 972. "Accordingly, the only disputed question between the parties in this case related to the import and effect of the proof;-the defender, who had undertaken the onus probandi, contending that it was ample and sufficient to sup port the right of salmon-fishing claimed by him; while on the part of the pursuer it was argued that it was not so, but, on the contrary, that it merely shewed that, although a few fish of the salmon kind were occasionally caught by or for the defender and his predecessors, that occurred accidentally in the course of prosecution of white or other fishing, in such a way as to be incapable of establishing a right of salmon-fishing. The Lord Ordinary has been unable to give effect to this argument for the Crown. He has, indeed, had very little if any difficulty in giving effect to the contention of the defender. "The proof will require to be read and considered as a whole in order to form a just and sound appreciation of it. The Lord Ordinary has, after a careful corsideration of it, to observe that it appears to him, to contain all the elements necessary to support the defender's case. (1) Whether the salmon-fishing exercised by the defender and his predecessors was of a character and description sufficient in itself is a matter which will be immediately noticed; but that, such as it was, it extended over the requisite period is so entirely beyond all question on the proof that it is quite unnecessary to dwell upon the point. (2) Nor does the Lord Ordinary think that the catching of salmon was merely a casual and accidental thing, occurring in the course of the prosecution of white or other fishing. On the contrary, it appears to him to be sufficiently proved that catching fish of the salmon kind has always been considered, if not the chief, at least an important object of the fishermen as well as of all the other parties concerned. There is abundant evidence to this effect. (3) The mode of fishing which seems to have been adopted was also suitable and appropriate for the catching of fish of the salmon kind. Net and coble were substantially the means employed. And at any rate, having regard to the means employed as described by the witnesses, and among others by M‘Craken (proof, p. 21, F G), M'Creadie (p. 30, E F G, and p. 31, F G), and James Goudie (p. 33, BC), there can be no doubt the mode or means resorted to were efficient for the parpose. (4) Not only was leave to fish almost always asked and considered to be necessary from the defender and his predecessors, but all persons not having such leave were prevented from fishing. The proof is clearly to this effect as applicable to the whole prescriptive period. And (5) it has also been well established that for leave to fish a consideration was always exacted by the defender and his predecessors, consisting, for the greater part of the prescriptive period, of the best salmon or other fish caught, and latterly of a money rent. "If the Lord Ordinary be right in holding these to be clearly established points by the proof it is difficult to understand how the defender's contention could well be resisted. But it seemed to be maintained on the part of the pur suer that in no correct view could the defender's claim be sustained, except as regards some limited places ex adverso of his lands; but these places were not, so far as the Lord Ordinary noticed, exactly condescended on by the pursuer He at any rate thinks that the proof is applicable alike to at least all the places ex adverso of which the defender's claim to the salmon-fishing has now been sus tained. The more important of the witnesses state very distinctly that the fishe ing was exercised all along both sides of the Mull of Galloway opposite the defender's lands, the Luce Bay side, and also the Irish Channel side, just as was found suitable and convenient; and, in particular, reference on this point may be made to the testimony of the witnesses Murray (p. 11, E to G), M-Craken with the Crown, been held sufficient to establish a right of salmon- No. 118. fishing. The greater part of the defender's proof only went to shew that a few fish of the salmon kind had occasionally been caught by or Lord Advocate June 13, 1873. for the proprietors of Logan in the prosecution of the white fishing by v. M'Douall. draught nets, and that they had endeavoured to arrogate to themselves an altogether illegal and unfounded right to the possession or control not merely of the salmon-fishing, but of all the sea-fishing along the coast of their estate.1 The defender argued that the possession, clearly proved by fishing with the draught net for salmon for the table at Logan House, and supplying his fish-pond, was ample and sufficient to support the right claimed under the titles; and that the proprietors of Logan had also possessed through their tenants and others, who had invariably obtained their leave to fish along the coast.2 At advising, LORD ARDMILLAN.-I do not think that this case is attended with any peculiar difficulty, either in point of law or point of fact. We are in a question between the Lord Advocate, as représenting Her Majesty, and Mr M'Douall of Logan, who claims a right of salmon-fishing ex adverso of his lands of Logan and others in Wigtonshire. The lands of Logan are held under a barony title; and certain other lands mentioned in the record are held under a crown grant cum piscationibus, but without mention of salmon. Salmon-fishings are inter regalia, and no one can have a valid right to salmonfishing who cannot instruct a grant from the Crown. A barony title, where there is no grant of salmon-fishing, does not, without prescriptive possession, support a claim to a right of salmon-fishing. But a barony title, or a title to lands cum piscationibus (though not piscationibus salmonum), is a sufficient foundation on which a claim to salmon-fishing may be built, and a right may be acquired by prescriptive possession. In such a case possession is not a mode of indicating a title, but is a mode of acquiring it. In the present case it is not alleged that Mr M'Douall has an express title from the Crown to salmon-fishing. He has a title to the barony of Logan, and he has, in regard to two separate portions of land, a title cum piscationibus, but without mention of salmon. These titles, containing no royal grant of salmon-fishing, do not of themselves instruct a right to salmon-fishing, or support the claim to salmon-fishing in a question with the Crown. But a satisfactory proof of prescriptive possession of salmon-fishing by the proprietor of Logan,-a possession clear, continued, unequivocal, and exclusive, may have the effect of extending the scope and meaning of the charter, and thus of sustaining the claim. In a question with the Crown the burden of proof lies entirely upon the defender; and if the proof fails in regard to any of those necessary qualities of possession to which I have adverted the effect of such failure must be the loss of his case. It is necessary to bear in mind the distinction between that possession which is urged merely in order to instruct the exercise of a right constituted by charter, and the possession which is urged for the purpose of extending the construction of the title, and including within it a right which has not been specially con (p. 16, D to G, and p. 19, E to G), John Robb (p. 23, F G, and p. 24, F G), and James Robb (p. 28, F). "These are the grounds upon which the Lord Ordinary has proceeded in giving judgment in this case.' 1 Stuart v. M'Barnet, July 21, 1868, ante, vol. vi., H. L. 123; Lord-Adv. v. Sinclair, June 14, 1865, ante, vol. iii. 981, aff. June 7, 1867, ante, vol. v. H. L. 97. 2 Lord-Adv. v. Cathcart, May 19, 1871, ante, vol. ix. p. 744; D. of Sutherland v. Ross, June 11, 1836, 14 S. 960, and Smollett v. Colquhoun, 1779, ibi. cit.; Lord-Adv. v. Hall, Nov. 9, 1869, 7 S. L. R. 62; Lord-Adv. v. Milne's Trs., July 1, 1868, ante, vol. vi. p. 972. v. M'Douall. No. 118. ferred. In regard to this last kind of possession the law demands that it be of the strongest and most unequivocal character; and such a possession Mr M'Douall June 13, 1873. must instruct in the present case. This is quite settled by authority. I need Lord Advocate only mention the case of the Duke of Sutherland v. Ross, 11th June 1836, and the case of the Lord Advocate v. Sinclair, decided in this Court on 14th June 1865, and affirmed in the House of Lords on 7th June 1867. That case of Sinclair was decided on the proof in favour of the proprietor; but the law was laid down, both here and in the House of Lords, in accordance with what I have now stated. The same statement of the law in regard to possession on a barony title was given in the case of the Duke of Richmond v. Lord Seafield, 16th Feb. 1870, 8 Macph. 530, where complete proof of possession of the character which I have described was required, though the proprietor had a barony title with a grant cum piscationibus. The recent case of the Lord Advocate v. Hall on 9th Novem ber 1869, where the nature of the required possession was carefully considered, is a further authority; and, for my own part, I adhere to the views of the law which I expressed in that case. The proof of possession in the present case is, in my opinion, altogether inadequate to support the claim of Mr M'Douall to a right of salmon-fishing. The ordinary and well understood mode of fishing salmon in the sea ex adverso of the Logan estate was certainly introduced for the first time in 1856, about seventeen years ago. We know that such fishing was first introduced on the coast of Ayrshire a good many years before that date, I think about 1838, but not so long ago as to amount to prescriptive possession. This was ascertained in the case of Carlton. Therefore, unless Mr M'Douall has been able to instruct some kind of possession different from the usual and appropriate and recognised mode of fishing by net and coble, he cannot carry back his possession to a period earlier than 1856. We have here no case of salmon-fishing till within twenty years, and no salmon-fishing distinct from other fishing. We have, indeed, had a great deal of evidence about fishing in the sea with common draught nets, and for a long period. But that was not primarily or properly salmon-fishing. I am quite satisfied that, apart from the question of leave, to which I shall afterwards advert, this fishing with a common draught net in the sea, the fisher occasionally catching a salmon, was not a sufficient act of possession in exercise and assertion of a right of salmon-fishing. Fishing in the sea with a draught net, in the manner described by these witnesses, is not primarily and principally salmonfishing, and does not become salmon-fishing because a salmon is occasionally caught. I need not enlarge on this point. I think it free from doubt; and I concur in the remarks which have been made in the case of the Duke of Sutherland v. Ross and other cases as to requiring proof of possession by the recognised and appropriate mode of fishing. But it is said (first) that the proprietor of Logan has instructed sufficient possession by proving that he and his servants fished for salmon with a draught net for his table and for his pond; and (secondly), that he possessed through his tenants, to whom he gave leave to fish salmon and other fish along the coast. The proof of personal possession by the proprietor and his servants, taken by itself, is so inadequate and so limited, both as regards the locality of the fishing, the time of the fishing, and the manner and purpose of the fishing, that really little weight can be given to it, apart from the proof of fishing by tenants on leave granted by the proprietor. The question raised in regard to fishing with this leave is important; and the defender's claim has been strongly maintained on that ground. I have given my best attention to the argument on this point, and I have again and again perused the proof, and I have arrived at the conclusion that there is no satisfactory evidence of leave being granted to fish salmon as distinguished from leave to fish generally. It seems that the proprietor of Logan fancied that he had a right to prohibit all fishing in the sea opposite his estate. That this notion existed on the part of the proprietor is admitted by several of the witnesses for Mr M'Douall, and at least one of them expressly says that "nobody was entitled to fish without leave from the laird, either for white fish or anything else." This was the pro prietor's view. On this view he possessed. He prohibited generally, and he No. 118. gave leave occasionally and exceptionally. Now, either that prohibition of all draught net fishing in the sea opposite his lands was legal or illegal;-it was either a lawful exercise of right, or it was a usurpation of right. The counsel for Mr M'Douall seemed to maintain that the general prohibition of draught fishing in the sea was lawful; and that the laird had the right to prohibit the whole fishing on his coast. I am clearly of opinion that it was not lawful. The fishing of white fish in the sea with a draught net could not, in my opinion, be lawfully prohibited by the proprietor, even on the plea that a salmon might occasionally be caught in the net. The great authority of Lord Stair is conclusive on this point, and the authority of more recent writers might be quoted if necessary-(Stair, i. 1, 5; Bankton, ii. 1, 1; Bell's Prin., par. 646; Ramsay v. Kellies, 22d November 1776, 5 Brown's Sup., 445.) If the prohibition was unlawful, and a usurpation of right, as I hold it to be, then the leave given to a few, being an exception from that prohibition, can have no effect as an act of possession in this case. The leave was general-applicable to all fish-just as the prohibition was general. The party to whom the leave was granted had no better right than the whole fishermen would have had but for the prohibition,-no better right than the whole fishermen were entitled to have. The making the man who had the leave an exception from a prohibition enforced against others was a wrong to the remainder; and the doing of a wrong cannot be recognised as the lawful assertion of a right. In any view the fishing with draught net under such a leave cannot be considered as exclusive. It was not exclusive in point of fact, for it is proved that many fished who had no leave; and it could not be exclusive in point of law, because being simply an exception from an illegal prohibition its exclusiveness depended on the lawfulness of the prohibition, and cannot be recognised. But further, it is proved that the fishing with draught net, such as has been described, being white-fishing with the chance of taking an occasional salmon, has been continued since the lease of the salmon-fishing to M'Creadie, and afterwards to Glendinning. Now, both of these men were in succession tenants of the whole salmon-fishing. M'Creadie states that he had the exclusive right to fish salmon; and the lease to Glendinning, who succeeded him, is to the same effect. But Mr M'Douall's witnesses-M‘Cracken and Robb-state that they continued, after and in knowledge of the lease to M'Creadie, their fishing with the draught net under what they called their leave from the proprietor. There was in this lease no reservation of any such privilege. If their fishing was inconsistent with the fishing by M'Creadie, the tenant to whom the right of salmonfishing had been let, then it was just a trespass and a wrong; and if it was consistent with M'Creadie's fishing, then it was not proper salmon-fishing, for all proper salmon-fishing in that locality, and ex adverso of the Logan estate, had been let to M'Creadie. But on their own admission the character or quality of their mode of fishing, and consequently of any possession instructed by such mode of fishing, was the same after 1856 as it had previously been, and therefore it never was an exercise of a proper right of salmon-fishing. On considering the whole proof of possession on the part of the proprietor of Logan, with reference to the time, the manner, the instrument, and the character of the only fishing which has been proved down to 1856, I am of opinion that such possession of the right of salmon-fishing as law requires has not been instructed prior to 1856, and that is conclusive. I therefore suggest to your Lordships that we recall the interlocutor of the Lord Ordinary, and decern in terms of the conclusions of this action. LORD DEAS.-I am of the opinion expressed by Lord Ardmillan, and I do not think it necessary to go into detail. I think that up to the time that these fishings were let in 1856 the consideration was much more for the use of the net, and for what was supposed to be a concession for the use of the shore, than for the salmon-fishings. LORD JERVISWDOODE concurred. June 13, 1873. Lord Advocate v. M'Douall. No. 118. LORD PRESIDENT.-I am of the same opinion, upon this simple ground, that the possession which has been proved for the last forty years in this case is not of June 13, 1873. such a kind as is in law sufficient, in combination with a barony title, or a grant Lord Advocate cum piscationibus, to instruct a right of salmon-fishings. v. M'Douall. THE following interlocutor was pronounced:-"Recall the interlocutor: Find that the defender's two merk and one-half merk land of old extent of Balziellan otherwise Logan; two merk and onehalf merk lands of old extent of Balziellan-M'Kellie; two merk and one-half merk lands of Cairn, and five merk lands of Carachtree, all lying within the parish of Kirkmaiden and sheriffdom of Wigtown; as also the following lands belonging to the defender in the united parishes of Clashant and Stoneykirk and sheriffdom aforesaid, viz., the five merk lands of Culgroat and Alteteog, and the five merk lands of old extent of Culgrotte, with the croft of land called St John's Croft alias Altichoge or Alteteog adjacent thereto, the town and lands of Elrig or Eldrick, commonly called the ten shilling land of Elrig, with the mill and mill lands of Kirkmagill and pertinents thereof, and All and Whole the three merk land and merk land of Meikle and Little Glentriploch or Glentribloch, with the pertinents thereof, are inland lands, and have no sea boundary; and therefore, quoad the right of fishing for salmon, grilse, or salmon-trout, concluded for as ex adverso of the said lands, dismiss the action, and decern: Quoad ultra repel the defences: Find, declare, and decern in terms of the conclusions of the summons: Find the defender liable in expenses, and remit,” &c. DONALD BEITH, W.S.-HUNTER, BLAIR, & COWAN, W.S.-Agents. No. 119. ROBERT HENDERSON ARKLEY AND OTHERS (Hay's Trustees), Petitioners.— Sol.-Gen. Clark-Mackay. June 13, 1873. v. Hay Miln. 1ST DIVISION. M. ALEXANDER HAY MILN, Respondent.-Watson. 66 Trust-Sale of Trust-estate-Trusts (Scotland) Act, 1867 (30 and 31 Vict. cap. 97, sec. 3).—The Trusts Act, 1867, sec. 3, empowers the Court of Session to grant authority to trustees to sell the trust-estate, or part thereof, on being satisfied that the same is expedient for the execution of the trust, and not inconsistent with the intention thereof." A truster directed his trustees to hold certain estates for payment of his debts, and in any event for twenty-one years, and for payment of an annuity, also secured by a separate bond, to his nephew, upon whom, and a series of heirs, they were directed to entail the estates when the debt should all be paid off. The trustees were expressly forbidden to sell any part of the landed estates in question. At the truster's death the annual burdens and interest of debts exceeded the rental by £106. Held (rev. judgment of Lond Gifford) that the Act did not authorise the Court to grant authority to sell any part of the estate. JOHN HAY, Esq. of Letham, died on 23d May 1869, possessed of conLord Gifford. siderable fee-simple estates in the counties of Forfar and Perth, but burdened with a large amount of debt. He left a trust-disposition and settlement, dated 12th April 1867, by which he conveyed his whole property, real and personal, to trustees. The trustees were directed (1) to realise his estate, other than the landed estates before mentioned, and to apply the proceeds thus obtained, and the rents of the landed estates, in payment of the truster's debts, including an annuity after mentioned. (2) They were expressly forbidden to sell any part of his landed estates in the counties of Forfar and Perth, therein enumerated, but were directed |