Salmon, oyster and mussel fishings in Scotland.

The manner of holding lands.

A portion of tithes.

Tithes appurtenant to a manor.

The salmon fishings in the open sea around the coast of Scotland, and not merely a right of fishing for salmon (u), and also the fishings of oysters and mussel banks or scalps along that coast or sea shore (v), are patrimonial rights of and belong exclusively to the Crown; and without the permission or consent of the Crown, expressly or tacitly given, the public cannot interfere with such fishings, but they may be appropriated by the Crown to individual proprietors (x). As regards mussel fishings they are property of a peculiar kind. The Crown, making no patrimonial use of them, not letting them, or using them in any way directly, has always permitted the public to take mussels where they have not been so appropriated, who consequently are not, but, in the event of taking them after the Crown, determining to take them for its own benefit, has forbidden the taking by the public, might be, wrongdoers (y).

The manner of holding lands, as in alternis vicibus (z), or in common with other persons (a), but not in joint tenancy (b), because of the jus accrescendi, may be claimed by prescription.

A portion of tithes in the land of another, and non decimando, may be prescribed for by a spiritual person (c). So, although in general things spiritual cannot be prescribed for as appurtenant to a temporal inheritance (d), yet, under special circumstances, they may be

Court Sess. Ca., 2nd ser. 1363.
See also Montgomery v. Watson,
23 Ib. 635; Lloyd v. Jones, 6
C. B. 81; Maxwell v. Copland, 7
Court Sess. Ca., 3rd ser. 142.

(u) Gammell v. Commissioners
of Woods and Forests, 3 Macq.

419.

(v) Duchess of Sutherland v. Watson, 6 Court Sess. Ca., 3rd ser. 199.

(x) S. C.; Duke of Portland

v. Gray, 11 Court Sess. Ca., 1st ser. 14; Lindsay v. Robertson, 7 Court Sess. Ca., 3rd ser. 239.

(y) See Lindsay v. Robertson, supra.

(z) See Welden v. Bridgewater, Cro. El. 421; Co. Litt. 4 a. On this case, see post. (a) Litt. s. 310. (b) Co. Litt. 195 b. (c) 2 Co. 44. (d) Co. Litt. 121 b.

so claimed, as tithes within a manor as appurtenant to it (e).

juncts only.

Things not claimable by prescription (f) imme- Things claimdiately may be so claimed as accessories to a thing able as adwhich may be so claimed (g), as lands to an office (h), which is of perpetual subsistence (i), or a franchise to another franchise (j).

claimable by

exceptions;

Certain things, however, cannot, in general, be the Things not subject of a claim by prescription. No title by pre- prescription. scription can be made against the laws and statutes of None against the realm (k), except those made in affirmance of the statute lawcommon law (1), and not creating any new right, or saved by another statute (m). Whatever can be claimed of common right (n), as a fishery in the sea (o), or in a navigable tidal river (p), cannot be claimed, but may be enlarged (q), by prescription.

nor for things claimmon right.

able of com

watercourse.

A natural watercourse is neither an interest in, nor a A natural profit out of, land, and, as it commences ex jure naturæ, cannot itself be claimed by prescription (r), although rights to take or to use the water may be so claimed. A peerage cannot be claimed by prescription (s). No A peerage. prescription can be made for corporeal hereditaments (t), Corporeal or for a part of the soil of land, as coals or other minerals (u), clay (x), quarries and limestone (y), wood (z), unless as mere timber the produce of the

(7) 2 Inst. 143.

(r) See Shury v. Piggott, 3 Bulstr. 339.

(8) 5 Cl. & F. 90.

(t) 2 Com. 264; Bro. Ab. Præscription, pl. 19.

(u) Plowd. 330; Wilkinson v. Proud, 11 M. & W. 33.

(a) 1 H. & N. 799.

(y) M'Donnell v. M'Kinty, 10 Ir. L. R. 514; 8 Ell. & B. 145. See also Constable v. Nicholson, 14 C. B., N. S. 230.

(z) Co. Litt. 4 b; 8 Rep. 136; 11 Ib. 46; Stanley v. White, 14 East, 332. See also Bailey v. Stephens, 12 C. B., N. S. 90.

hereditaments.

Welden v. Bridgewater no exception.

soil (a), as distinguished from a right to enter on the land and to take the timber, or perhaps turf, as distinguished from the mere right of common of turbary (b), which must be appendant or appurtenant to a house to be spent there (c), or a right to dig and to carry away turves (d), or bog (e), as distinguished from a right to enter and to take them; for the claimant has a better title thereto by possession and visible enjoyment (f). A claim to take all the profits of the land would be to the land itself (g), and therefore could not be by prescription. In general land acquired per recessum vel relictionem maris, cannot be claimed by a subject by prescription (h). In Attorney-General v. The Corporation of London (i), the corporation, although their title to the land in question appears to have been acquired by grant from the Crown (k), alleged, but on the principle here stated could not sustain, a title by prescription or immemorial usage.

The case of Welden v. Bridgewater (1) may seem at first sight contrary, or an exception to this principle. The case was an action of trespass, and the facts, as found by special verdict, were that within the manor of the plaintiff, and parcel thereof, was a certain meadow containing eighty acres, which from time immemorial had been divided by lot amongst divers persons, pro captione fani de herba inde proveniente, that from time immemorial the plaintiff, and all those whose estate he

(a) Legh v. Heald, 1 B. & Ad. 622; Boyle v. Olpherts, 8 Ir. E. R. 241; Longf. & T. 320, 331, S. C.

(b) Co. Litt. 122 a; Massy v. Gubbins, Longf. & T. 88.

(c) Co. Litt. 121 b; Gubbins, supra.

(d) Co. Litt. 4 b.

Massy v.

(e) Boyle v. Olpherts, supra ; Beere v. Fleming, 13 Ir. C. L. R. 137; 11 L. T. R., N. S. 49, S. C. (f) Plowd. 545 a.

(g) Co. Litt. 4 b; 3 Wils. 30; Beere v. Fleming, supra.

(h) Hale, De Jure Maris, pt. i. c. vi.; Gifford v. Lord Yarborough, 3 B. & C. 91; 5 Bing. 163.

(i) 12 Beav. 8; 2 Macn. & G. 247.

(k) See The Banne Fishery case, Dav. 55; Bulstrode v. Hall, 1 Sid. 148.

(1) Cro. El.421.

had, used to have allotted to them yearly out of the said meadow thirteen acres, that the locus in quo was allotted to the plaintiff, and that the defendant entered and cut down the grass, and the question was whether the action could be maintained, and the court held that it could; and according to the report of the case in Croke, the court is said to have treated the plaintiff as having not a mere profit à prendre in the thirteen acres allotted to him, but a freehold interest in the land itself. According to the report of the same case by Moore (m), who does not state the facts, the plaintiff was considered as having only the crop and vesture of the land, and being in possession of the land itself, the right to such crop and vesture was sufficient to enable him to sustain the action (n). But both Rolle (0) and Lord Coke (p) treat the case as an authority for the proposition that the plaintiff had a moveable fee simple in the lands yearly allotted to him, and, as the claim was by prescription, for the proposition that land may be so claimed. The only question in the case, however, was whether trespass was maintainable, and the plaintiff having possession of the locus in quo, and such a right as is stated in the special verdict, he was clearly entitled to maintain the action (q). Beyond this question, therefore, the case would seem to be an authority for only the proposition that the crop and vesturam, or herbagium terræ, may be claimed by divers persons in alternis vicibus by prescription (r).

An exception to the rule that land cannot be claimed Exception. by prescription is the soil of the sea shore and of all acquisitions, per projectionem or alluvionem, of all arms of the sea, creeks and navigable rivers, and, in one particular instance, land acquired by recessum or relic

(m) Mo. 302.

(n) See also Co. Litt. 4 b. (0) 1 Abr. 829.

(p) Co. Litt. 4 a.

(g) Co. Litt. 4 b.
(r) See also Ib. 122 a.

The exclusive

a mere ease

ment.

tionem or per obstructionem maris (s), and may be claimed as parcel of the manor of a subject (t), and by prescription (u).

But although land itself, as such, cannot be claimed use of land as by prescription and cannot be appurtenant to land (v), yet the exclusive use of land, as a mere easement, and as distinguished from the land itself, may be so claimed. For although a grant of the exclusive use of land may be equivalent to a grant of the land itself, yet, in support of the intention, a grant of such use as appurtenant to other land may be construed as a grant of a mere easement and as so appurtenant (x), and therefore the exclusive use of land as such an easement would seem to be claimable by prescription.

Things not grantable.

Franchises and liberties not seiseable as forfeited.

Rights which cannot be

made appur

Prescription presupposes a grant, and therefore things which cannot be granted, as things which are uncertain (y), or which cannot have a lawful beginning (z), cannot be claimed by prescription, for in neither case can a grant of them be presupposed.

Such franchises and liberties as cannot be seised as forfeited, before the cause of forfeiture appear of record, cannot be claimed by prescription, because prescription, being but an usage in pais, cannot extend to such things as cannot be seised, nor had, without matter of record, as to the goods of traitors, felons, &c. (a); but may be so claimed when incidents to a thing which may be so claimed, as a county palatine (b).

A right which cannot be made appurtenant can be claimed by conveyance only, and cannot be claimed by

(8) Hale, De Jure Maris, pt. i. c. vi. 31, 32, 33.

(t) Hale, De Jure Maris, pt. i. c. vi.; Bulstrode v. Hall, 1 Sid. 148; Constable's case, 5 Rep. 106, 107; Ex parte Lord Gwydir, 2 Mad. 281; The King v. Lord Yarborough, 3 B. & C. 91; 5 Bing. 163, S. C.

(u) Hale, De Jure Maris, pt. i. c. iv., vi.; 1 Sid. 148; Doug. 441;