Scottish Court of Session Decisions

This was an action at the instance of the Right Honourable Margaret Baroness Gray of Gray and Kinfauns, against Sir John Stewart Richardson of Pitfour, Baronet, and Mrs Fleming of Inchyra, and her husband, the Rev. Archibald Fleming, as her administrator-in-law and for his interest.

The question raised was as to the right of the salmon-fishings in the Tay ex adverso of that piece of ground now part of the estate of Pitfour, and the property of the defender Sir John Richardson, but formerly part of Inchyra, and called the Meadowpows or Powlands of Inchyra, which was situated immediately to the east of the march ditch, running northwards from the Tay, and separating the land of Inchyra from the estate of Pitfour. The pursuer, who was proprietor of one half of Inchyra and of one half of the salmon fishings thereof, claimed the sole and exclusive right to the salmon fishings in the Tay ex adverso of that piece of ground, or at all events ex adverso of the westmost portion thereof, to the extent of 120 yards eastward of the said march ditch, that is, as far down the river as three stones, averred to have been put down towards the beginning of the century to mark the boundary between the fishings of Pitfour and of Inchyra. The defenders, Mrs Fleming and her husband, also claimed the exclusive right to these salmon fishings as far down as the said three stones, and Sir John Richardson claimed the whole of the fishings in respect of his title to the lands of Cairnie and others, part of Pitfour, and of prescriptive possession following thereon, and in respect also of two dispositions obtained by him from the Commissioners of Her Majesty's woods, forests, and lands revenue in 1873.

The summons accordingly concluded for declarator that the pursuer had the sole and exclusive right to the salmon fishings in the river Tay ex adverso of the said Meadowpows or Powlands of Inchyra or otherwise ex adverso of the said 120 yards thereof, and that the defenders had no right to the said salmon fishings. There were also conclusions for interdict.

The pursuer's averments were to the following effect:—She was heiress of entail in possession of the estate of Gray and Kinfauns, which consisted, inter alia, of the Barony of Kinfauns. This Barony consisted, inter alia, of one-half of the lands of Inchyra (the other half belonging to the defender Mrs Fleming), lying on the north bank of the river Tay, and described in the pursuer's titles as “All and whole the just and equal sunny half of all and whole the town and lands of Inchriff, now commonly called Inchyra, with the houses, biggings, yards, orchards, tenants, tenandries, and services of free tenants, tofts, crofts, parts, pendicles, and pertinents thereof, as the same were occupied and possessed by Andrew Lyall and Allan Peat, with the just and equal half of the miln of the said lands of Inchyra, mill lands, multures, and sequels thereof, used and wont, together with the just and equal half of the salmon-fishings of the said lands of Inchyra; all and haill the passage or place of passage upon the said water of Tay, called the Ferry, &c., lying within the sheriffdom foresaid (Perth), and all which lands, baronies, teinds, fishings, heritable offices, milns, miln-lands, and others above mentioned, belonging to the said estate of Kinfauns, were united, erected, and created into one whole and free barony, called the barony of Kinfauns, conform to a charter under the Great Seal in favour of the deceased Mrs Ann Blair, grandmother of Margaret Lady Gray, the mother of the said William Lord Gray, of date the last day of February 1673 years.”

Prior to the year 1795 the whole lands of Inchyra were held by the respective proprietors thereof in alternate lots or kavels, with the exception of one lot held in common; and the salmon-fishings in the river Tay ex adverso of each lot or kavel also were exclusively possessed by the proprietor of that lot. The eastmost lot or kavel of lands of Inchyra called the Meadow Pows or Powlands of Inchyra belonged in 1744 to Margaret Lady Gray, the pursuer's predecessor, and was bounded on the east by the lands of Cairnie, then belonging to James Hay of Pitfour (author of the defender Sir John Stewart Richardson), and on the west by the adjoining kavel belonging to Alexander Blair of Inchyra (author of the defenders Mr and Mrs Fleming). By deed of submission, dated 1st and 3d May 1744, entered into by the “Right Honourable Margaret Lady Gray, heritable proprietrix of the lands and barony of Kinfauns, whereof the Priorlands and Powlands of Inchyra after-mentioned are a part, with the special advice and consent of the Bight Honourable John Lord Gray, her husband,” and the said John Lord Gray for his right and interest, on the one part, and “James Hay of Pitfower, heritable proprietor of the lands of Cairny after-mentioned” on the other part—these parties agreed as follows:—“That is to say, the said parties, considering that the said Priorlands and Powlands of Inchyra belonging to the said Lady Gray, and the said lands of Cairney, belonging to the said James Hay, do ly contiguous and march together south from the mill of Cairny to the water of Tay, and that there are severall pieces of the said lands of Cairny which do ly in among the said Priorlands and Powlands, at a pretty considerable distance from the common march, as, on the other hand, there are several pieces of said Priorlands and Powlands of Inchyra which do ly in amongst the said lands of Cairny, likewise at a pretty considerable distance from the common march, which both parties find to be inconvenient for them, and a hindrance to their enclosing and improving their ground, and the occasion of debates and quarrels among their tenants: and both parties being willing, and finding it to be for their mutual advantage to have these extraneous pieces of ground so lying interspersed among the ground of the opposite heritors excambed and exchanged the one for the other, and their march made clear and distinct so as that there may be no ground of dispute betwixt the said parties or their tenants, do hereby mutually and unanimously nominat, make choice of, and authorise William Gray of Balledgarno, Esquire, and Charles Alison, late bailie of Perth, to be judges, arbitrators, and amicable compositors betwixt them to the effect before and after mentioned, giving and hereby granting to the said judges, arbitrators, full power, warrant, and commission to settle, adjust, and determine the march betwixt

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the said parties their lands, from the miln of Cairnie unto the water of Tay, and to settle and determine how and in what proportion the foresaid extraneous pieces of ground lying interspersed among the ground of the neighbouring heritors shall be excambed and exchanged the one for the other, according as they shall think them in value, and to adjudge, decern, and declare these pieces of ground so excambed to pertain and belong to the heritor to whom they shall allot them as part and pertinent of their land in all time coming.”

The arbiters appointed under the deed of submission pronounced the following decreet-arbitral on 11th April 1745:—“We decern and declare the lead or pow running from the miln of Cairnie to be the march betwixt the said parties their lands south from the miln of Cairnie unto the place where the said lead turns to the southwest; and there, on the south bank of the said lead or pow, we have caused dig or cast a ditch from the said Pow southward, in the field commonly called the West Inches of Cairnie, in a straight line, until we come to the old march ditch betwixt the lands of Inchyra and Cairnie, which ditch so presently digged we decern and declare to be the march betwixt the said Lady Gray's lands on the west of the said ditch and the said James Hay's lands on the east thereof in time coming, and then from the south end of the said new digged ditch, at the place where it joyns with the said other old march ditch, the said old march ditch runs towards the south-east, and is the march betwixt the lands of Inchyra and Cairnie, until it ends at the north end of a balk betwixt the lands belonging to Alexander Blair of Inchyra on the west and that piece of ground commonly called the Meadow Pows or Powlands. which formerly belonged to the said Lady Gray, but which we have now given off to the said James Hay, on the east of the said march balk, and which march balk leads down to the water of Tay; and we appoint march stones to be set up in the midst of the said march balk in different places thereof, at the mutual charge of the said parties, and to be marked with the capital letters I on the side of the said stones towards the west, and P on the side towards the east; and thus we fix and determine the march betwixt the said parties submitters their lands, from the miln of Cairnie down to the water of Tay; and we decern and declare the samen to be their fixed and established march in all time coming; and we hereby adjudge, decern, and declare all the pieces of ground which formerly belonged to the said Lady Gray lying on the east or north sides of the said march now to pertain and belong to the said James Hay and his heirs and successors, as part and pertinent of their lands of Cairnie in all time coming; and, on the other hand, we adjudge, decern, and declare all the pieces of ground which formerly belonged to the said James Hay, lying on the west or south sides of the foresaid maroh, now to pertain and belong to the said Margaret Lady Gray, as proprietrix of the said barony of Kinfauns, and her heirs and successors, and to the said Lord Gray, her husband, for his interest, as part and pertinent of their lands of Kinfauns, and their part of Inchyra, in all time to come.” By this decreet-arbitral the piece of ground referred to in the summons became the property of the said James Hay, and was now part of the lands of Cairnie, belonging to the defender Sir John Stewart Richardson, but the salmon-fishings of, or ex adverso of, said piece of ground were not transferred.

From 1745 down to the year 1795 the lands of Inchyra were held, as already mentioned, in separate kavels, and the kavel immediately to the west of the Meadow Pows or Powlands of Inchyra belonged to the Blairs of Inchyra, and their successors, the authors of the defenders, Mr and Mrs Fleming, who also possessed the salmon-fishing ex adverso of it called the “Hen” Fishing. In 1794 a submission was entered into between William Lord Gray and John Anderson, the then proprietor of the other half of said lands, for a division of “the said whole lands of Inchyra betwixt the parties according to their different rights and interests therein,” so that they might cease to be possessed “ runrig and rundale” as theretofore, “with power to the said arbiters or oversman to divide the said lands between the said parties, according to their different rights and interests therein, quantity and quality considered, by a line running from the water of Tay northward to the north boundary of said lands, so as best to accommodate both parties, and to adjudge and declare the west part thereof to belong to the said William Lord Gray, and the east part thereof to belong to the said John Anderson.” The submission contained the following reservation regarding the salmon-fishings:—“reserving always to both parties the right of the salmon-fishings in the river Tay respectively belonging to them, according to their present boundaries, and which boundaries are not to be affected by any division that may be made in consequence thereof, but that the said arbiters, after such division, shall have power to put in march stones in the ground belonging to either party, to ascertain the boundaries of the salmon-fishings belonging to the parties respectively, which are not to be affected by the said division.”

By decreet-arbitral in this submission the lands were divided according as now possessed by the pursuer and the defenders Mr and Mrs Fleming; and the decreet-arbitral contained the following provision regarding the salmon-fishings of the respective parties:—“ Septimo, We reserve to the parties submitters the salmon-fishings on the river Tay respectively belonging to them according to their present boundaries, wherein we have infixed march stones in the ground; and we also reserve to both parties access to their different fishings, and to draw and to dry their nets according to use and wont. We find that the lowest or eastmost fishing belongs to Lord Gray, and is altogether opposite to the lands of Pitfour, being bounded to the west by the old march stone between the lands of Pitfour and Inchyra, which we ordered to be marked number one. That the several fishings between the stones number one and number two, numbers three and four, numbers seven and eight, numbers nine and ten, numbers eleven and twelve, numbers thirteen and fourteen, and numbers fifteen and sixteen, being seven in number, do all belong to the said John Anderson. The stone number sixteen stands in the march between the lands of Inchyra and Ribney. That the several fishings

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between the stones numbers two and three, numbers four and five, numbers six and seven, numbers eight and nine, numbers ten and eleven, numbers twelve and thirteen, numbers fourteen and fifteen, being also seven in number (besides the fishing opposite to the estate of Pitfour), do all belong to Lord Gray, and that the fishing between the stones number five and six, called Hurle Carle, is the joint property of Lord Gray and Mr Anderson; and, in terms of the said submission, we do hereby declare that the said fishings respectively belonging to each of the said parties shall not be hurt or affected by the division now made of the lands, but that the said fishings shall be enjoyed and possessed according to the rights, custom, and usages heretofore observed by the said parties, their authors, and predecessors.”

At the date of this said decreet-arbitral the fishings in the Tay were not so valuable as they afterwards became, and the said eastmost fishing had not been fished. There was then in the Tay ex adverso of the Meadow Pows an island called Cairnie Island, which belonged to the proprietors of Pitfour, and they fished for salmon from the south bank of this island; but they did not fish from the Meadow Pows. Between this island and the eastern portion of the Meadow Pows a branch channel only of the river flowed, but not sufficient to induce the proprietor of the “east-most fishing” to fish in it; and between the westmost end of the island and the march with the Hen fishing there was a space of clear water of about 120 yards or thereby ex adverso of the western portion of the said Meadow Pows. In 1807 or 1808 the branch channel was partially closed, and in 1826 it was totally closed and converted into arable land by the construction of an embankment, and became part of the mainland or north shore of the river Tay. It was the fishing between what had been the westmost end of the island and the lands of Inchyra which was the subject of the alternative conclusions of the summons.

Sir John Richardson was heir of entail in possession of Pitfour, which comprehended, inter alia, “All and haill the lands of Cairney or Cairnie, with towers, fortalices, mill and mill lands thereof, and the free and astricted multures of the said mills, as also the salmon and other fishings in the water of Tay belonging to the said lands, and with all other tofts, crofts, parts, pendicles, outsets, tenants, tenandries, and services of free tenants thereof,” &o. Cairnie Island formed part of these subjects.

Sir John Richardson averred that in virtue of their titles his authors had from time immemorial a sole and exclusive possession of the salmon fishings ex adverso of their lands, and in particular ex adverso of Cairnie Island and a gravel bank known as Cairnie Bank, which lay opposite to the said Meadow Pows or Powlands. Further, he had obtained in 1873, from the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, a grant of the said fishings.

Mrs Fleming was proprietor in fee, and her husband was liferenter of the lands and barony of Inchyra, described in the title as “All and haill that quarter or fourt part of the towne and landis of Inchyra, with houses, biggings,” “and pertinents thereof last occupyet be James Blair, and now by myself,” and “sicklike,” “All and haill the other quarter or fourt pairt of all and haill the said towne and landis of Inchyra, with houses, biggings, pendicles, and pertinents thereof presentlie possesst be Gilbert Lyell, my tennent, with the just and equal half of the mylne of Inchyra, mylne lands, multers, and sequels of the salmen, used and wont, with the just and equal half of the salmond fishings and other fishings of the saidis landis of Inchyra, and all and haill that malt-barn, kill and condbill presentlie possessit by the said Gilbert Lyel, and all and haill these houses and yards of Inchyra, presentlie possessit by Francis Jack.”

The lands and barony of Inchyra were bounded on the west by the lands of Kinfauns, and on the east by the lands of Pitfour. The Pow meadows immediately on the east side of the barony of Inchyra, was formerly part of the Pow lands of Inchyra, and was situated on the riverside. In virtue of the grant of the just and equal half of the fishings contained in their titles, Mrs Fleming averred that her predecessors had from time immemorial exercised the rights of salmon-fishing in the river Tay not only ex adverso of their lands (called the Hen fishings), but as far down the river as three march stones which had been placed between the years 1807 and 1826 to mark the boundary between the fishings of Pitfour and those of Inchyra.

In 1756 the pursuer's predecessor had raised an action in the Court of Session against the defender's predecessor for declarator that the pursuers had right to one half of the fishings of the lands of Inchyra, and that the defenders had no exclusive right to any particular fishings thereon. This process was submitted to the Lord President and Lord Prestongrange as arbiters. In this arbitration Mr and Mrs Fleming averred that a decreet-arbitral was pronounced in 1757 in the following terms:—“Find that the parties submitters, as heritors of the two-half lands of Inchyra, and salmon-fishings thereto belonging, have each of them a distinct and divided right and possession of the said salmon fishings belonging to the parties, and lying opposite to the greens adjoining to the different kavels or gleibs of the said lands, and that they and their heirs and successors may continue to possess the said fishings, or any other fishings to be made out by them belonging to the said lands, and to sett, use, and dispose thereon in a separate divided manner in all time coming, as they have done in times past, unless the partys submitters or their heirs and successors shall find it their mutual interest, and shall agree to alter that manner of possession; in which event the arbiters find that they may possess the same, and sett, use, and dispose thereof in a joint and undivided manner, if they should think it convenient, and the arbiters decern and declare accordingly.” A scroll only of this decreet was produced.

The pursuer pleaded—“(1) The pursuer, by virtue of her title to the barony of Kinfauns, including the half of the lands of Inchyra, and

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salmon-fishings thereof, has the sole right and title to fish for salmon and other fish of the salmon kind in that part of the river Tay ex adverso of the piece of ground libelled known as the Meadow Pows or Powlands of Inchyra, and is entitled to decree of declarator in terms of the conclusions of the summons. (2) The defenders having no right or title to the fishings in question, the pursuer is entitled to interdict against them as concluded for.”

The defender Sir John Richardson pleaded— “(1) The action is unfounded, in respect that the defender, by virtue of his titles to the lands of Cairnie, salmon-fishings, and others aforesaid, and, separatim, in respect of the possession had under the said titles, has the sole and exclusive right to the salmon-fishings clairned in this action. (2) Separatim, the defender has right to the said salmon-fishings by virtue of the Crown grants of 1873 above mentioned. (3) The action cannot be maintained, in respect that the pursuer has no right or title to any part of the fishings claimed. (4) Even assuming that the pursuer's predecessors had at one time right to the said salmon-fishings, or part thereof, such right has been cut off and lost by the operation of the positive and also of the negative prescription. (5) The pursuer's whole material statements being unfounded in fact, and the action being groundless, the defender ought to be assoilzied, with expenses.”

The defenders Mr and Mrs Fleming pleaded— “(1) The allegations of the pursuer are not relevant and sufficient to support the conclusion of the action as regards the fishing possessed by the present defenders as a part of their ‘Hen’ fishing. 2) The claim stated in the summons, so far as applicable to the fishing possessed by the defenders within the three march stones referred to in condescendence, art. 11, is excluded both by the negative and the positive prescription. (3) It is res judicata that the defenders have a distinct and divided right to the salmon-fishings belonging to them, and lying opposite to the old ‘greens’ adjoining to the different kavels of Inchyra, as the same was formerly possessed, excepting in so far as they or their predecessors may have agreed to alter that manner of possession; and no such agreement being alleged, and the defenders and their predecessors having possessed the fishings in dispute, within the limits indicated by the foresaid stones, from time immemorial, as a part of their ‘Hen’ fishing, and as pertaining to their lands and barony of Inchyra, they are protected by the Statute 1017, cap. 12, against being disturbed in the possession and enjoyment of the same, and are entitled to absolvitor from the action, so far as directed against them, and applicable to the salmon-fishings above the said stones. (4) The allegations of the pursuer as against the present defenders being ill-founded in fact, the defenders are entitled to absolvitor.”

The Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 5 th January 1875.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, proof, and process— Finds that the pursuer is infeft in All and Whole the just and equal sunny half of all and whole the town and lands of Inchriff, now commonly called Inchyra, and pertinents, with the just and equal half of the salmon-fishings of the said lands of Inchyra, all which lands, fishings, and others were created into one whole and free barony, called the Barony of Kinfauns, conform to charter of resignation under the Great Seal in favour of Mrs Ann Blair, dated 28th February 1673: Finds that the defender Mrs Isabella Rattray or Fleming is infeft in All and Whole one equal half of all and sundry the said town and lands of Inchyra and pertinents, with the just and equal half of the salmon-fishings and other fishings of the said lands of Inchyra, which lands, fishings, and others were united into one whole and free barony,. called the Barony of Inchyra, conform to charter under the Great Seal in favour of Alexander Blair, dated 3d May 1662: Finds that the said salmon-fishings of the lands of Inchyra, in which the pursuer and the defender Mrs Isabella Eattray or Fleming are infeft, include the salmon-fishings in the Tay situated ex adverso of that portion of the estate of Pitfour and others now belonging to the defender Sir John Stewart Richardson, and formerly called the Meadowpows or Powlands of Inchyra, as far to the east of the march-ditch running northward from the river Tay, between that part of the lands of Inchyra now belonging to the defender Mrs Isabella Rattray or Fleming and the estate of Pitfour as a line drawn to the centre of the river Tay through the three stones situated on the said portion of the estate of Pit-four and others, formerly called Meadowpows or Powlands of Inchyra, and marked the said three stones A B C on the copy of the Ordnance Survey plan, No. 79 of process: Assoilzies the defender Mrs Isabella Rattray or Fleming and the Eeverend Archibald Fleming, her husband, from the conclusions of the summons as laid, and decerns, reserving right to the pursuer to institute, with reference to the said salmon-fishings of Inchyra, such other action or actions as she may be advised, and to the defender Mrs Fleming and her husband their defences thereto as accords: Finds that the defender Sir John Stewart Richardson has not proved that he, his predecessors and authors, proprietors of the lands of Cairnie, and of the salmon and other fishings in the water of Tay belonging to the said lands, possessed the salmon-fishings ex adverso of that portion of ground now part of the estate of Pitfour, and formerly called the Meadowpows or Powlands of Inchyra, situated between the said march-ditch and the stones ABC above mentioned, for forty years prior to the institution of the present action, or for any consecutive period of forty years, whereby their title to the salmon-fishings attached to their lands and estate of Cairnie can be made applicable to the said salmon-fishings: Finds that the dispositions obtained by the defender Sir John Stewart Richardson from the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, dated 28th July and 8th August 1873, do not confer on him any right to the salmon-fishings in the Tay ex adverso of the portion of ground above mentioned, in respect that the pursuer and the defender Mrs Isabella Rattray or Fleming have a valid and effectual title thereto, completed anterior to the granting of the said dispositions: Finds and declares that the defender Sir John Stewart Richardson has no right

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of salmon-fishing in the river Tay ex adverso of the said portion of ground, and that he is not entitled to fish for salmon, or fish of the salmon kind, in any part of the said river ex adverso of the said portion of ground, and interdicts, prohibits, and discharges the defender Sir John Stewart Richardson from fishing for salmon, or fish of the salmon kind, in any manner of way ex adverso of the said portion of ground: finds that the defender Sir John Stewart Richardson has right to the salmon-fishings in the Tay situated ex adverso of his property as far west or up the Tay as the line drawn to the centre of the river through the three stones ABC above mentioned, and decerns and appoints the cause to be put to the motion roll, with a view to the disposal of the question of expenses.

Note.—The question raised in the present action is as to the right to the salmon-fishings in the Tay ex adverso of that piece of ground now part of the estate of Pitfour, but formerly part of Inchyra, and called the Meadowpows or Powlands of Inchyra, which is situated immediately to the east of the march-ditch running northwards from the Tay, and separating the lands of Inchyra from the estate of Pitfour. The pursuer, who is proprietor of one-half of Inchyra and of one-half of the salmon-fishings thereof, claims the sole and exclusive right to the salmon-fishings in the Tay ex adverso of that piece of ground, or at all events ex adverso of the west-most portion of said piece of ground, extending 120 yards or thereby eastward of the said march-ditch, that is, as far down the river as the three stones marked A B C on the copy plan No. 79 of process. On that footing she has raised the present action of declarator and interdict against Mrs Fleming, proprietrix of the other half of Inchyra, and her husband, and also against Sir John Stewart Richardson, proprietor of the adjoining estate of Pitfour. The defenders Mrs Fleming and her husband also claim the sole and exclusive right to these salmon-fishings as far down as the said three stones ABC, and Sir John Richardson claims the whole of these fishings in respect of his title to the lands of Cairnie and others, part of Pitfour, and of prescriptive possession following thereon, and in respect also of two dispositions obtained by him from the Commissioners of Her Majesty's Woods, Forests, and Land Revenues in 1873.

The Lord Ordinary is of opinion that the pursuer has failed to instruct any right to the salmon-fishings to the east of the three stones ABC.

In regard to the salmon-fishings ex adverso of that part of the Meadowpows or Powlands between the march-ditch and the said three stones, it is necessary to notice the state of the title and the acts of the predecessors of the parties.

Previous to the year 1744, the predecessors and authors of the pursuer Lady Gray and of Mrs Fleming were each infeft under titles flowing from the Crown in one-half pro indiviso of the lands of Inchyra, and in one-half pro indiviso of the salmon-fishings of these lands. These lands were then possessed by them and their predecessors in runkavels or by separate glebes. The eastmost kavel of Inchyra, being the Meadowpows or Powlands, was then possessed by Lady Gray, and the adjoining kavel on the west was possessed by Alexander Blair, proprietor of the other half of Inchyra. The lands of Cairnie, part of the estate of Pitfour, were situated immediately to the east of the Meadowpows or Powlands of Inchyra. Lady Gray was also proprietrix of certain lands called the Priorlands, which formed no part of the pro indiviso lands of Inchyra, but were a separate estate. In the year 1744, Lady Gray and her husband, and Mr Hay of Pitfour, entered into a submission, which, on the narrative that there are several pieces of the lands of Cairnie lying among the Priorlands and Powlands of Inchyra, and several pieces of the latter lands lying amongst the former, provided for the adjustment of the march between these lands by the excambion of portions of the interspersed pieces of ground. In 1745 the arbiters adjusted the march, by their decreet-arbitral, from the mill of Cairnie down to the Tay, and they gave off to Mr Hay of Pit-four the Meadowpows or Powlands then possessed by Lady Gray, and appointed march stones, with the capital letters I on the west side of each stone and P on the east side, to be set up in the march-baulk between the lands, that is, the kavel on the west belonging to Mr Alexander Blair of Inchyra and the Meadowpows or Powlands. The arbiters also, by their decreet-arbitral, adjudged the pieces of ground which previously belonged to Lady Gray, lying on the east and north sides of the march so fixed by them, to belong to Mr Hay, his heirs and successors, as part and pertinent of their lands of Cairnie in all time coming. No title was ever expede to the Meadowpows, and that piece of ground was thereafter held under the decreet-arbitral as a pertinent of the lands of Cairnie.

The said submission did not include the Inchyra salmon-fishings situated ex adverso of the Meadowpows. Accordingly the decreet-arbitral did not deal with these fishings in any way, and they remained the property of the pro indiviso proprietors of the lands of Inchyra and of the fishings thereof. The Meadowpows or Powlands had a frontage to the Tay, as is proved by the old estate plan of Pitfour, No. 81 of process, of about 260 yards.

The salmon-fishings of Inchyra were possessed by each of the two pro indiviso proprietors opposite to the kavels respectively held by them until the year 1756, when Lady Gray and her husband Lord Gray raised a summons of declarator in the Court of Session, concluding that they and the Misses Blair, the other proprietors pro indiviso of Inchyra, had no exclusive right to any particular fishings, and that these other proprietors should be ordained to desist from appropriating to themselves any particular fishings of the lands of Inchyra.

This process was submitted to the Lord President and to Lord Prestongrange as arbiters, with whom various written pleadings were lodged by the parties. In the first of these pleadings, being a memorial for the Misses Blair, in 1756, the various fishings are mentioned, from the lands of Ribney on the west to the lands of Pit-four on the east. In this memorial the Misses Blair state that to the east of a kavel of Lady Gray and her fishing opposite thereto, called the Lady's Glove, there ‘lyes a kavel belonging to the respondents (Misses Blair), and opposite thereto there's a fishing called the Laying Hen,

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and next thereto lyes a kavel, the eastmost part of the lands of Inchyra, adjoining to the lands and estate of Mr Hay of Pitfour, which sometime belonged to Lady Gray, and was the largest kavel on the river of any belonging to the lands of Inchyra, and was some years ago sold off and disponed by her to the deceased Mr Hay of Pit-four, in excambion for the piece of land adjoining to the lands called the Priorlands, belonging to the Lady Gray.’

After thus stating the situation of the lands, the Misses Blair maintained, in defence to Lady Gray's process, ‘that as the claimants have some years ago disponed the largest and broadest kavel of the whole lands to Hay of Pitfour, with the water adjoining thereto, the respondents therefore humbly think that by such alienation the claimants can't now demand any share of the respondent's fishings, because they have sold off a considerable part of their own, and so are not capable, on their part, of making ane equall division; and the respondents observe this the rather because a most commodious and convenient fishing, it's thought, might have been, and is now, actually made opposite to that kavel of land which was disponed by the claimants to Hay of Pitfour. With reference to this defence, Lady Gray stated, in a memorial lodged for her in 1757, that she does acknowledge that she did excamb some part of her eastmost kavel of the lands of Inchyra with Mr Hay of Pitfour, and that this excambion was settled by a submission and decreet-arbitral, an extract whereof is herewith produced to the honourable arbiters, from which it will appear that the claimant gave to Pitfour no right of fishing opposite to that part of the lands given to him, and if there can be any fishing opposite to these lands, the same does still belong to the heritors of Inchyra; and it is a certain fact that Mr Hay of Pitfour has not extended his fishing opposite to the lands of Inchyra farther than he was in right or in use to do before that excambion.’

The arbiters issued a scroll decreet-arbitral in 1757, but there is no evidence that any decreet-arbitral was ever executed. Various pleadings were thereafter lodged by the parties in 1758, in one of which the Misses Blair claimed that the fishing called Hurlcarle should be possessed in common, and in another of which Lady Gray maintained that if the Misses Blair should still insist upon this fishing being common, she and Lord Gray must ‘adhere to their first claim, viz., that the whole fishings be in common, and that each party draw their equall shares of the profites thereof, in terms of their rights and infeftments.’ In a subsequent pleading the Misses Blair maintained that the Hurlcarle fishing should continue to be possessed as joint property or in commonty by the parties, ‘in the same way and manner as they have been possest since the said fishings were made out.’ This the parties seem to have done down to the year 1794, when a submission was entered into between Lady Gray and Mr Anderson of Inchyra for the division of the lands of Inchyra, but not of the fishings.

That submission of 1794 did not embrace the salmon-fishings of the lands, but expressly reserved the same to the parties respectively, according to the then existing boundaries; but power was given to the arbiters to define the fishing by putting in march stones. This the arbiters accordingly did. By their decreet-arbitral, dated in 1795, they found ‘that the lowest or eastmost fishing belongs to Lord Gray, and is altogether opposite to the lands of Pitfour, being bounded on the west by the old march stone between the lands of Pitfour and Inchyra, which we ordered to be marked Number One;’ that the several fishings between the stones No. 1 and No. 2, and the other stones therein specified and numbered, being seven in all, did all belong to Mr Anderson; that the several fishings between the stones No. 2 and No. 3, and the other stones therein specified, ‘being also seven in number (besides the fishing opposite to the estate of Pitfour), do all belong to Lord Gray; and that the fishing between the stones Number Five and Six, called Hurlcarle, is the joint property of Lord Gray and Mr Anderson.’

In making the division of the lands of Inchyra contained in this decreet-arbitral of 1795, the Lord Ordinary thinks that the arbiters must have been fully aware that the Meadowpows was the eastmost kavel of the lands of Inchyra, and that they had been given in excambion by Lady Gray to Mr Hay of Pitfour, but that the salmon-fishing had not been excambed, and that they also must have taken that kavel into computation in effecting the division of the lands, because they dealt with the fishing ex adverso thereof as then forming part of the pro indiviso salmon-fishings of Inchyra. They found that the lowest or eastmost fishing belonging to Lady Gray was bounded on the west by the old march stone between the lands of Pitfour and Inchyra, which they ordered to be marked No. 1. The boundary between the kavel belonging to Alexander Blair of Inchyra on the west, and the Meadowpows or Powlands of Inchyra given by the decreet-arbitral of 1745 to Mr Hay of Pitfour, is therein stated to be a baulk leading from the old march ditch between the lands of Inchyra and Cairnie down to the Tay, and march stones were thereby appointed to be set up in different places in that baulk. The old march stone so ordered by them to be marked No 1 must have been one of these march stones appointed to be placed in the baulk by the decreet-arbitral of 1745. In or shortly before 1826 a ditch was cut in the line of this march baulk, and it is proved that the march stones which were then in the march baulk were, after the ditch was cut, put into it, where they still remain, being five in number. On the third stone from the river there is an I on the west side and a P on the east side of the stone; and on the stone nearest the river there is cut, according to the witnesses for the pursuer and for Sir John Richardson, the figure 1, but according to the witnesses for Mrs Fleming, the letter I. There is no other mark on this stone. The pursuer's witnesses state that this stone is in its original state, while Mrs Fleming's witnesses say that a piece has split off the stone from the side opposite that on which the letter I is cut. There are no marks on the other three stones in the march ditch. The fact remains that this stone has only one figure or letter upon it. Whether the stone has split, and whether it is the figure 1 or the letter I which is cut upon it is mere matter of conjecture, and it is of no great importance, because the decreet-arbitral of 1795 proves beyond all doubt that the stone which

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the arbiters ordered to be marked No. 1 is the old march stone between Inchyra and Pitfour, and that old march stone must have been one of those placed in the above-mentioned baulk in the line of which the present march ditch was cut in or about 1826. Mrs Fleming maintains that the stone A on the Ordnance Survey plan, No. 79 of process, is the stone ordered to be marked No. 1 by the decreet-arbitral of 1795. But that is, it is thought, impossible, because the stone A is 86 yards to the east of the march ditch.

In and previous to 1826 there was situated in the Tay opposite the lands of Cairnie and the eastern part of the Meadowpows an island called Cairnie Island, which formed part of the lands of Cairnie, and from which, or part of which, the proprietor of Pitfour was in use to fish for salmon. It is, the Lord Ordinary thinks, proved that the westmost or upper point of that island was situated opposite the old stone A, in the river bank, on the sides of which are cut the letters I and P. This stone could not be a land march, as it is situated on the Meadowpows river bank 86 or thereby yards to the east of the march ditch between Inchyra and Pitfour, while the Meadowpows extended from that march ditch 260 or thereby yards down the river. In 1826 Sir John Richardson connected Cairnie Island with the Meadowpows, and filled up the channel of the river between that island and the Meadowpows. And in or about 1831 two other stones were put in the new river bank in a line between the above-mentioned old stone A and the centre of the river. These two stones, marked B and C on the copy of the Ordnance Survey plan, No. 79 of process, were placed, according to the evidence of Sir John Richardson, by Mr John Anderson, W. S., brother of the then proprietor of Inchyra, and his (Sir John's) commissioner, Sir John himself and his ground-officer being present, and also the Inchyra ground-officer, an old fisher of the name of Ireland, and some others. Sir John Richardson states that he heard that the stones were prepared by Lord Gray's mason.

The above-mentioned Hen fishing was in and prior to 1838 fished at its lower or eastern extremity from a cairn. That fishing cairn was removed in 1838 by the Tay Commissioners, and a new cairn was erected nearer the land. That new cairn, called the Commissioners' cairn, was used as the fishing cairn at the lower or eastern end of the Hen fishing until 1843, when it was removed, and a hauling place formed near the line of the three stones A B C on the river bank, which has been used from that date to the present time by the tacksmen of the Hen fishing.

The Lord Ordinary thinks that he has now adverted to the chief matters which require to be attended to in disposing of the question between the parties as to the salmon-fishings between the march ditch and the three stones ABC above-mentioned.

1. In so far as the action is directed against Mrs Fleming and her husband, the Lord Ordinary is of opinion that the pursuer cannot obtain decree in terms of the conclusions of the summons. By these conclusions the pursuer asks for decree of declarator that she has the sole and exclusive right to the salmon-fishings in question, and that Mr and Mrs Fleming have no right thereto, and should be interdicted from fishing them. Mrs Fleming is infeft in the one-half pro indiviso of the Inchyra salmon-fishings, and the pursuer is infeft in the other half thereof. The pursuer, therefore, cannot obtain against Mrs Fleming and her husband the absolute and exclusive decree which she claims.

The Lord Ordinary is satisfied that the Hen fishing terminated at the march ditch separating the lands of Inchyra from Pitfour, that is from the Meadowpows or Powlands, and that this fishing was situated ex adverso of the kavel on the west, which belonged in 1745 to Alexander Blair of Inchyra. That is clear from the decreet-arbitral of 1745, and from the memorial of 1756 for the Misses Blair of Inchyra, the predecessors of Mrs Fleming, and also from the decreet-arbitral of 1795. Even assuming that there had been no change since 1795 in the possession of the fishings by the pro indiviso proprietors, either by consent of these parties or rebus et factis, that old allocation or possession of the fishings would not, the Lord Ordinary thinks, warrant the absolute declarator of property in the fishings opposite the Meadowpows concluded for by the pursuer; although it might have warranted a decree of a limited and possessory nature, such a decree cannot, it is thought, be pronounced under the conclusions of the present summons. But even although that were competent, the pursuer could not obtain it, because it is proved that in 1844 a new allocation of the Inchyra fishing was made by the two pro indiviso proprietors. At that date Mrs Fleming's predecessor was in possession of the fishing to the east of the old Hen fishing and of the march ditch, and was fishing that fishing as far down as the stones ABC as part of the Hen. That extended piece of fishing only became available in 1843 by the removal of stones from the bed of the river, which interfered with the hauling of the net; and from the time that it became available down to the date of the present action it has been fished as part of the Hen under that new division or allocation of the fishing made in 1844.

‘The defenders Mr and Mrs Fleming maintained that they have proved prescriptive possession of the fishing between the Glove fishing and the stones ABC. A great amount of evidence has been led on this point. After carefully considering that evidence, the Lord Ordinary is of opinion that the account given with reference to this fishing by the pursuer's witnesses George Gelletly, John Lennox, Andrew Swan, tacksman of the Hen from 1835 to 1843, and by Sir John Richardson's witnesses, Archibald Powrie, tacksman of the Hen fishing in 1843, and from that date to 1847, and James Davidson, also a tacksman of the Hen fishing, is entitled to much greater weight than the account given by the witnesses for Mr and Mrs Fleming. From the evidence of these witnesses the Lord Ordinary is satisfied that until 1838 the Hen fishing terminated at a fishing cairn situated nearly opposite the march ditch, which is the old eastern boundary of that fishing according to the memorial for the Misses Blair in 1756 above mentioned; that this cairn was removed by the Tay Commissioners in 1838, and a new fishing cairn erected nearer high water-mark, and a short distance further down the river than the march ditch, and that this new cairn, called the Commissioners’ Cairn, was removed

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in 1843, at the expense of the Tay Commissioners, by Archibald Powrie, who ploughed and levelled the beach with levelling boxes, in which operation he took away thousands of tons of gravel; that he thus formed a new hauling place for the salmon nets on the river bank, a little above the line of the stones ABC; and that this new hauling-place was used as the place for hauling the nets of the fishers fishing the Hen from 1843 down to the date of the present action. Mr and Mrs Fleming maintained that they have been in possession of the Hen fishing for forty years and upwards prior to the date of the action, and had acquired a prescriptive right thereto, and were entitled to have it found that they had the sole and exclusive right to that fishing. The Lord Ordinary is of opinion that they have not proved possession for forty years and upwards; and that it is proved that the Hen was not fished by them and their predecessors below the march ditch until 1838, and that the fishing was only extended down to the present hauling-place in 1843. There is great discrepancy in the evidence on this point. But the Lord Ordinary considers that the evidence for the pursuer and for Sir John Richardson is entitled to much greater reliance than the evidence for Mr and Mrs Fleming. Farther, Mr and Mrs Fleming can never acquire, as in a question with the pursuer, an exclusive right to any part of the Inchyra fishings in the face of their own title, which gives them only a right to one-half of these fishings, while the pursuer is infeft in the other half thereof.

Upon this question of prescription Mr and Mrs Fleming maintained that there was a stripe of uncultivated ground or ‘green’ extending from the march ditch down to the old stone A, and situated between the old river bank and the river, which belonged to and was pastured by their predecessors. But that ground or ‘green’ was part of the Meadowpows which was adjudged to Pitfour by the decreet-arbitral of 1745. his western boundary being therein defined as the baulk which ‘leads down to the water Tay.’ It appears from the evidence that the Inchyra cows pastured this piece of ground for a few years prior to 1826, when it was of little value, but in doing so they trespassed upon Sir John Richardson's property, and all such trespass ceased in 1826, when the new embankment was formed and the march ditch deepened.

2. As regards the defender Sir John Richardson, the Lord Ordinary is of opinion that he has completely failed to prove prescriptive possession of the salmon-fishings on his title to the lands of Cairnie, above the western extremity of Cairnie Island, which, as proved, extended up the river only as far as the line of the stones ABC. His title to the lands of Cairnie gave him only a right to the salmon-fishings of these lands, and the western boundary of these fishings was the western end of Cairnie Island. The decreet-arbitral of 1745 gave him no right to the salmon-fishings of the Meadowpows. These fishings then belonged, and still belong, to the proprietors of the estate of Inchyra. The old march stone A, which has I and P cut upon it, was not a land march stone. It has been in its present place beyond the memory of man. It is proved by the witness James Davidson to have been there 61 years ago. The faggot dyke, which was erected in 1807 with a view to the filling up of the channel between Cairnie Island and the north river bank of the Meadowpows, ran between this stone and the western extremity of Cairnie Island. The Lord Ordinary is of opinion that this old stone must have been a fishing march stone put in to indicate the eastern end of the Inchyra fishing, probably in or about 1795, when the other march stones were placed in the march baulk. The view that this old stone was a fishing march stone is supported by the fact that more than two-thirds of the Meadowpows are situated to the east of it, and by the placing in 1831 of the stones B and C in the new embankment connecting and incorporating Cairnie Island with the north river bank. There is also a great deal of evidence in the proof to the effect that when these two stones B and C were put in the new river bank they were inserted in connection with the old stone A, for the purpose of defining the march between the Inchyra and Cairnie fishings, a very necessary act, seeing that Cairnie Island had been recently incorporated with the river bank, and its western end obliterated. It is also proved that the old stone A went by the name of the old Hen march stone, and was so called by aged witnesses long since dead. Sir John Richardson, his ground-officer, the gardener of Mr Anderson of Inchyra, who was the predecessor of Mrs Fleming, an old fisher called Ireland, and some others, were present when the two new stones B and C were fixed. Robert Young, who fished the Glove fishing in 1834 and 1835, depones that the two stones were called the march stones of the Hen betwixt Sir John and Inchyra, and that Ireland (who sometimes fished with him) told him that he ‘howkit’ the holes and put the two new stones into them, and that they were put in ‘for the march betwixt Sir John and Inchyra.’

Sir John Richardson maintained, on the authority of the opinions expressed in the case of Lord Wemyss v. The Town of Perth, 31st May 1867, 39, Scottish Jurist, p. 429, with reference to Balhepburn Island, that his Cairnie fishings were not limited by the western extremity of Cairnie Island, and that as proprietor of that island he was entitled to fish as far up the river from its western extremity as his nets could reach. But that case is not, the Lord Ordinary thinks, in point. Sir John has a title to the lands of Cairnie and to the salmon-fishing belonging to these lands. In the Balhepburn case the title gave the town of Perth the sole and exclusive right to the salmon-fishings in the ‘Tay pertaining to Balhepburn Island, lying either round about the said island, and upon every part of the same, or wherever the same lyes, or may and shall lye, any manner of way,’ and the town was in possession of that right. Sir John Richardson has not proved that he ever possessed any right to fish as he now claims from the western end of Cairnie Island. From 1843 Mr and Mrs Fleming and their predecessors have been in possession of the salmon-fishings opposite the Meadowpows as far down as the stones A B C, that is, as far down the river as the western extremity of Cairnie Island, where Sir John's Dad-head fishing begins, and when his Dadhead fishers attempted to come upon the water above these i three stones, on two or three occasions since 1843, the tow-rope of their nets was cut and they were

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turned off. That possession, and these acts of Mrs Fleming and her predecessors, are, the Lord Ordinary thinks, available to the pursuer, seeing that they are pro indiviso proprietors, and that such possession was obtained and held under an arrangement between them for the allocation of the fishings.

It was also maintained by Sir John Richardson that the pursuer had failed to instruct that the Meadowpows were a part of the lands of Inchyra, to which a grant of salmon-fishings is attached, and that the Meadowpows are not a part of the Priorlands belonging exclusively to the pursuer, the titles to which do not confer a right of salmon-fishing. The Lord Ordinary is of opinion that the Meadowpows were a part of the lands of Inchyra, and not a part of the Priorlands. The Meadowpows are situated at the eastern end of Inchyra, and are a continuation of these lands along the Tay, whereas the Priorlands are at a distance from the Tay, and are separated from the Meadowpows by other parts of Inchyra and by the lands of Cairnie. This is proved by the old Inchyra estate plan of 1769, No. 80 of process, and by the table of contents therein, and also by the old estate plan of Pitfour, No. 81 of process. Sir John Richardson, when examined as a witness, also proves this, and so do other witnesses. There is also another old estate plan of the lands of Inchyra, No. 141 of process, which shows that the Priorlands are situated at a considerable distance from the Meadowpows. It is no doubt the case that the submission of 1744 was between Lady Gray and Mr Hay of Pitfour, and that Mr Blair, the other pro indiviso proprietor of Inchyra, was not a party to it; but that arose, the Lord Ordinary thinks, from the mistaken notion that each pro indiviso proprietor was entitled to deal with any kavel possessed by him as if it were his absolute property. Accordingly, the decreet-arbitral of 1745, in defining the western march of the Meadowpows, described it as a ‘march-baulk betwixt the lands belonging to Alexander Blair of Inchyra on the west, and that piece of ground commonly called the Meadowpows or Powlands’ which belonged to Lady Gray, and was given off by that decreet to Pitfour. Now, the land belonging to Alexander Blair on the west was simply the kavel of the pro indiviso lands of Inchyra situated immediately to the west of the Meadowpows, which was the eastern kavel thereof, possessed by Lady Gray.

“The pleadings of the proprietors of Inchyra in the submission of 1756 also clearly proves this. The memorial of 1756 for the Misses Blair states that the kavel adjoining the Meadowpows on the west belongs to them, ‘and next thereto lyes a kavel, the eastmost part of the lands of Inchyra adjoining to the lands and estate of Hay of Pitfour, which sometime belonged to Lady Gray,’ and was some years ago given by her in excambion to Hay of Pitfour. The memorial for Lady Gray in 1757, in answer to that for the Misses Blair, acknowledges ‘that she did excamb some part of her eastmost kavel of the lands of Inchyra with Mr Hay of Pitfour,’ as settled by the decreet-arbitral, but that she gave to Pitfour no right of fishing opposite to that part of the lands given to him, and that the fishing belongs to the heritors of Inchyra. In the decreet-arbitral of 1795 the lowest or eastmost fishing of Inchyra, situated to the east of the Inchyra and Pitfour march, is dealt with as belonging to Lord Gray.

Sir John Richardson maintains that these memorials and the decreet-arbitral of 1795 are not competent evidence against him on the question whether the Meadowpows are a part of Inchyra or of the Priorlands. The Lord Ordinary is of a different opinion. These memorials contain statements of fact of very old date, made by parties with reference to fishings belonging to them. Sir John Richardson's predecessors acquired in 1745 a piece of land then also their property, but he did not acquire any right to the salmon-fishing ex adverso thereof, and never had any right thereto. The submission of 1794 and decreet-arbitral of 1795 had reference, besides the division of the remainder of the lands of Inchyra, to the possession of these salmon-fishings and the insertion of march stones for the purpose of defining the boundaries of the salmon-fishings belonging to the proprietors respectively. The stone A, which has the letter I cut on the east side and the letter P cut on the west side thereof, is not without significance in connection with the decreet-arbitral of 1795, placed as it is in the land then acquired by Sir John opposite the upper end of Cairnie Island, and at a distance of 86 yards from the march ditch, and of 174 yards from the eastern end of the Meadowpows. But even if it were held that these pleadings and the decreet-arbitral of 1795 cannot be founded on as evidence against Sir John Richardson on this question as to the identity of the lands, it is sufficiently established by the parole proof that the Meadowpows are not a part of the Prior-lands, but are a part of the lands of Inchyra.”

The pursuer reclaimed.

The pursuer argued—(1) Taking the case upon the footing of the lands and fishings being held upon a pro indiviso title, the fishings ex adverso of each kavel had since before 1745 been separately possessed along with their respective kavels, and when the lands were divided by the decreet-arbitral of 1795 it was agreed that the fishings should continue to be separately possessed according to the marches therein defined, therefore the fishings in dispute being ex adverso of a kavel originally belonging to or at least separately possessed by the pursuer's ancestors, now belonged to her. But (2) if the title was not a pro indiviso title, each party (the pursuer and defender Mrs Fleming) was the separate and exclusive proprietor of her respective kavels and the fishings ex adverso thereof.

The defender Mrs Fleming argued—(1) Both the lands and fishings were upon a pro indiviso title, and although the lands were divided in 1795, the possession which had been had of the fishings since that date had been a mere arrangement between the parties, each being still pro indiviso proprietors of the whole; the Lord Ordinary was therefore right in holding that the pursuer could not get decree as concluded for; (2) the Lord Ordinary was wrong upon the evidence of possession of the fishings in dispute, these having been possessed by this defender for more than forty years.

Sir John Richardson argued—(1) He had possessed the said fishings under his title to the lands and fishings of Cairnie for more than forty years; (2) these fishings were never part of the Inchyra estate, but the Meadow Pow was part of Priorlands, which had no grant of salmon-fishings,

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and therefore now belonged to him under the Crown grant of 1873.

At advising—