Scottish Court of Session Decisions

Subject_1 POSSESSION.

Carnegie
v.
Magistrates of Montrose

Date: 7 February 1777
Case No. No 29.

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Fullarton of Kinnaber, in 1663, let in lease to the town of Montrose ‘the salmon-fishings on the sands and sea-shore from the mouth of the water of South Esk, northward till it came opposite a march-stone on the links, for 19 years, for payment of two shillings Scots, if required.’ And the town possessed the said fishings from that period, letting them in lease by public roup, &c. without paying themselves any tack-duty. Carnegie having acquired the land of Kinnaber, pursued a removing against the town from these fishings; and it was urged in defence, That by charter from David II. the town held right to ‘piscaria infra aquas de Nortbesk et Southesk.’ And as the fishings in question were clearly comprehended under that description, so the immemorial possession which the town had enjoyed, must be ascribed to that ancient grant, and not to a lease which had proceeded on some mistaken idea of a right in the lessor; but which they had never acknowledged by the payment of any rent, Answered for Carnegie, That his authors stood infeft in this fishing per expressum under charters from the Crown as far back as 1592; and that the acceptance of the lease by the town of those specific fishings contained in his charter, was conclusive evidence against the present plea. They had possessed on that lease ever since it was granted, and cannot now ascribe their possession to any other title. The Lords decerned in the removing. See Appendix.

Fol. Dic. v. 4. p. 87.