Sporting Rights - Salmon Fishing and Rights to Take Game

Table of Contents

Useful links

Dummy Cheque / Waived Fee Process

Dividing an Existing Mixed Title

Leases and Automatic Plot Registration

Mapping Salmon Fishings

Mapping Seabed

Proprietorship Section Entries

Seabed Registration Guidance

Securities Section Information

Udal Tenure

Updating Existing Title Sheets

Warrandice Clause in Disposition

Warranty

General

Rights to catch fish and game are recognised in law, but only in some instances do such rights require to be disclosed in the land register.

Rights to catch fish and shoot game are incorporeal rights. This is because they have no material existence in that they cannot be seen or touched. The paragraphs below explain the differences between these rights; when they should be referred to in a title sheet and when they can be considered pertinents which do not need to be specifically referred to.

The rights to catch fish generally fall into one of two categories:

(a) those which run with the land as a pertinent and are automatically carried by a conveyance of the land; or

(b) those which can form a separate legal tenement (that is, be owned independently from the river, loch, or sea over which the rights are exercisable).

Fishing and Sporting Rights that can be Separate Tenements

There are potentially three types of right to catch or take fish or game that are capable of forming separate legal tenements, outlined below. In these cases, either a separate cadastral unit must be created for the right or the right must be disclosed on the title sheet which is to include them.

The right to fish for salmon is one of the regalia minora - the rights of ownership falling within certain types held by the Crown, which the Crown can alienate.

There are two exceptions:

salmon fishing in Orkney and Shetland; and
the rights of salmon fishing held by the former kindly tenants of Lochmaben, which are considered pertinents of the converted ownership titles, see guidance below on Pertinents.

The right to fish for salmon can be acquired in one of two ways; by an express grant by the Crown or by prescriptive possession on a habile title.

Further information on applications relating to ownership of salmon fishing is at Salmon Fishing - Title Examination below.

Within the territorial waters, the right to oysters and mussels is one of the regalia minora of the Crown; they are not within the public right of fishing. In private waters they belong not to the Crown but to proprietors of the banks or alveus.

The right to collect oysters and mussels is thought to be a legal separate tenement similar in nature to the right of salmon fishing. A transfer of such a right may therefore require the constitution of a cadastral unit and title sheet. xx

Such rights could either be to fish for trout or to shoot game birds.

S.65A of the Abolition of Feudal Tenure etc (Scotland) Act 2000 provided that where a Superior had reserved sporting rights in a feudal grant, he/she could register a savings notice in terms of s.65A. On 28 November 2004, where such a notice had been registered the reserved right converted into a separate tenement.

In a small number of cases (less than 100), reserved sporting rights became a tenement which could be transferred separately from the land. Some legal commentators expressed doubts as to whether notices would operate where the reservation purported to be exclusive. However, a registration officer will act in reliance on the information contained in an application for registration and upon the certifications made in the application form as to the validity of the deed for which registration is sought.

Where an application purports to deal with salmon fishing rights in the County of Orkney and Zetland as a separate tenement, see Udal Tenure.

Section 3(5) of the 2012 Act provides that a separate tenement constitutes a plot of land for the purposes of maintaining the title sheet record; consequently a deed that conveys both land and another right, capable of being held as a separate tenement, will require split into two title sheets.

Pertinents- Trout Fishing and Game Shooting

Salmon fishing contrasts with other sporting rights, i.e. trout fishing and shooting game birds. These are rights that are considered pertinents of ownership of the land over which the rights are exercised, and are automatically carried in a conveyance of that land even where the conveyance is silent on such matters. As such rights are deemed to be a pertinent they will not and should not be reflected in the title sheet of the plot of land to which they pertain.

Such rights cannot be held in separate ownership from the land, but in contrast, can be the subject of a lease.

Registrable Leases of trout fishing and game shooting rights

Although these rights cannot be held in separate ownership from the land over which they are exercisable, they are capable of being leased.

Where a lease of sporting rights meets the requirements of a long lease, the lease is registrable in the land register. Such a lease will induce registration in the land register whether or not the owner's title to the plot affected (river/loch/land) is registered. (Registration staff should note that the legal position was different under the Land Registration (Scotland) Act 1979 from that applying now and such leases were considered registrable at that time only if the owner's title was registered.) Where the land is not registered, a long lease of sporting rights or an assignation of a long lease of sporting rights relating to that land will be an Automatic Plot Registration and so the plot will be registered by the keeper's staff on receipt of the application for registration of the lease/assignation.

The authority for registration of these leases is set out below.

Section 66 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 provides:

(1) Notwithstanding any rule of law to the contrary, any contract entered into in writing for a consideration and for a period of not less than a year whereby an owner of land to which a right of fishing for freshwater fish in any inland waters pertains or the occupier of such a right authorises another person to so fish shall be deemed to be a lease to which the Leases Act 1449 (c.6) applies, and the right of fishing so authorised shall, for the purposes of succession to that right, be deemed to be heritable property.

(2) For the purposes of this section “inland waters” does not include the tidal parts of rivers.

In respect of shooting of game, it was determined by the case of Palmer's Trustees -v- Brown from 1989 that a long lease of shootings qualifies as a probative lease of lands and heritages in Scotland. Thus, authority for registration of such leases and assignations of leases derives from section 1 of the Registration of Leases (Scotland) Act 1857.

Prior to that case, the law was in doubt.

Rights of former Kindly Tenants of Lochmaben

The former 'Kindly Tenants' have the right to fish for salmon on a 4 mile stretch of the River Annan in the County of Dumfries between Shillahill Bridge and Smallholmburn (confirmed to involve the villages of Hightae, Smallholm, Heck and Greenhill). These rights cannot be transferred separately from the other land in those properties. The rights are therefore pertinents and the title sheet for a converted tenancy can remain silent as to the right to fish for salmon.

However, parts of this stretch are also subject to grants of the right to fish for salmon made to other parties. Such rights are considered to be subject to the former Kindly Tenants’ rights. The question of disclosing the rights of the former Kindly Tenants as against an application for registration of an interest in salmon fishings deriving from another source on this stretch of the River Annan should be considered, where identified, by a senior caseworker.

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Salmon Fishing Intake Process - Splitting Titles

Section 3(5) of the 2012 Act provides that a separate tenement constitutes a plot of land for the purposes of the Act, and, in terms of section 3(1), the Keeper must make up and maintain a title sheet for each registered plot of land. Salmon fishing, being a separate tenement, is treated as a plot of land, and an ownership title relating to salmon fishings will have its own title sheet.

An application to register both salmon fishing and land will result in two title sheets. In such instances, a single application form is sufficient, as the Keeper will create a second title sheet and notify the applicant of the title number allocated to it.

A lease of salmon fishings will also have its own title sheet, in accordance with the Keeper's policy in relation to leases. Registration of a tenant's right to salmon fishings will also induce the registration of the underlying plot title, if not already registered, in accordance with the requirements of section 24 of the Act. In this instance, the plot that will be registered is the tenement of salmon fishing - see Automatic Plot Registration on the Leases page.

This guidance relates to the creation of a second title sheet when the requirement in section 3 has been identified: it is thought unlikely that this will be spotted as part of the initial intake process. Once completed, the two title sheets and associated mapping information will be available via the email notifications sent to the relevant parties. (There is no registration fee for the creation of the second title sheet). To create the second application, the intake officer should follow the guidance below - this example is based on the first title sheet (referred to as the principle application) being the area of ground.

Creation of salmon fishing title sheet

The L32 Intake Create Instructions form can be used to request the additional application.

The application type should be the same as the principle application and will be created including the normal information, subject to the following:

the registration date should be the same as the principle application
the additional information field should make clear what the right is - e.g. "salmon fishings"
no additional fee is payable (the splitting of the title is an administrative process) - see dummy cheque process - UID number does not exist;
the movement note should include reference to travelling with [application number for the principle application].

An archive information sheet should be included with the new application that the original documents are available with the principle application.

Categorisation

The applications should be categorised as Category 4. Once the applications are confirmed in LRS they should be released as normal to the next LRS location.

Salmon Fishing - Title Examination

The law of property governing the transmission and validity of such titles is complex, and transactions with salmon fishing rights can often be high value. However, generally, the examination at first registration of a title consisting of, or involving the ownership of, a right to fish for salmon is limited to that carried out for other types of plot.

This section summarises the law relating to the transmission and validity of such titles for information only, and highlights the key aspects of examination and constitution of a title sheet resulting from an application for registration of a plot consisting of or including such a right to fish for salmon. There is also some guidance on standard securities affecting salmon fishing rights, and burdens section entries for restrictions on use, where these are brought to the registration officer's attention as encumbrances in the application.

The following guidance provides information on what a registration officer must check in applications for registration of a salmon fishing title and what they do not, as a matter of course, require to check.

The registration officer will need to consider all of the following matters:

An application for first registration of salmon fishings may be for salmon fishings alone or may include the right along with another plot of land, which could be for a strip of ground alongside a river, the alveus (i.e. the bed or channel) of a river or loch or an extensive area of land which includes several lochs or rivers.

The registrable deed must include reference to salmon fishing or fish of the salmon kind. The right to salmon fishing cannot be carried silently. The phrase "Together with the salmon fishings as described in Deed X" is sufficient provided there is an appropriate description in Deed X, which includes the salmon fishings.

The need for express conveyance is on the basis that the law requires each separate tenement to be either separately and properly described or properly referred to in a conveyance, otherwise it does not pass to the disponee.

Barony titles no longer have the benefit of an exception, and any transfers of the former barony that are submitted for registration after the appointed day must now expressly convey the salmon fishings if the salmon fishing rights are to be entered in the land register. It is possible that this previous exception may be relevant in an application for voluntary registration, where it is apparent that the last recorded disposition pre-dates the appointed day for feudal abolition and the applicant indicates that the title is a former barony title and includes salmon fishing rights.

If the deed inducing registration or the title on which the voluntary registration is based are worded as "with fishings" then the title sheet for the land or alveus (river bed etc) should remain silent as it is considered that this does not convey salmon fishings - the right to general fishings is a pertinent only.

Some particular forms of wording of rights in relation to salmon fishings may indicate a timeshare right or a derivative right, neither of which should be entered in a title sheet in the land register or form the basis of a cadastral unit. It may be possible for registration of the registrable deed to proceed if the registrable deed conveys other subjects.

Any pertinent to salmon fishing must be clearly expressed in the conveyance and, where necessary, identified to enable mapping on the cadastral map e.g. servitudes to access the fishing. Rights to use fishing huts, and any similar ancillary structures, will be omitted from the title sheet as will any reference to these structures when there is ambiguity in the grant. If ownership of the fishing hut is transferred, i.e. the solum, then this must be clear from the deed and the description must be sufficient for it to be mapped on the cadastral map for the plot of land.

and

These are rights of partial use of salmon fishings which are less than outright ownership or tenancy of the entire salmon fishing right. Some examples are:

(a) A dispones to B a right to fish for salmon from 1 boat (derivative); or

(b) X dispones to Y the right of salmon fishings on the River W, but reserves to himself and his successors, the right of rod and line fishing (derivative); or

(c) P dispones to Q the right to fish with one rod only during week 14 on the cyclical calendar (timeshare)

In general terms, such rights do not support the constitution of a cadastral unit as they are not the right of ownership. See Salmon Fishing - Derivative Rights and Timeshare below for further information.

For the avoidance of doubt, pro indiviso rights of ownership are not derivative.

and

Any limitation of warrandice granted in the deed, or qualifying information provided in the application form, may result in a limitation of warranty or the rejection of the deed.

For example a warrandice clause which indicates adverse possession may necessitate a limitation or exclusion of the Keeper's warranty if a competing sasine title is also apparent. The officer may then wish to consult the General information section below for additional guidance.

A grant qualified by ‘so far as I have right thereto’ will not result in a limitation of warranty, provided there are no other indicators, either in the grant of warrandice in the deed or in the application form, that the granter does not have valid title. In these circumstances, the Keeper will proceed on the basis of the certification of the application form as evidencing the validity of the deed and that it meets the general registration conditions.

A registration officer does not require to consider the following aspects of an application for first registration or voluntary registration of a title which purports to include salmon fishing. These are matters which the parties to a transaction and the applicant for registration are expected to consider prior to submission of the application for registration. If there is an expression of concern in an application as regards the validity of a title, a limitation or exclusion of warranty may be appropriate.

Except in Orkney and Shetland, the right to fish for salmon is one of the regalia minora (proprietary rights of the Crown which can be alienated) and also a legal separate tenement, which the Crown may grant or lease to a party other than the owner of the (water-covered) land over which the right is held. The right in a given stretch of water may have fallen into other ownership, either by an express grant by the Crown or by prescriptive possession on a habile title.

Once the Crown have alienated the salmon fishings in a particular area, the parties to a transaction involving the title will usually only concern themselves with a 10 year prescriptive progress of titles and not a 20 year prescriptive progress. See (4) Prescriptive Progress of Title below.

or

Even where there is no evidence of Crown alienation of an express title to salmon fishings, it is understood that a valid title can nonetheless be created, for example, following:

a grant of land from the Crown which is "together with the fishings"- this is habile to found a valid title to salmon fishing rights where possession of the salmon fishings is exercised for a 20 year prescriptive period;

a barony title granted by the Crown is habile to found a title to salmon fishing (where at least until 2004, a conveyance of the barony might silently carry the salmon fishings). This was an exception to the rule that salmon fishings cannot be conveyed without express reference. Former barony titles are now treated as normal titles; therefore, for the salmon fishings to be carried in a conveyance received for registration on or after the appointed day of the former barony, the right should be express if it is intended to carry such right;

an express grant of salmon fishings by a person other than the Crown. There is more doubt around a title from a person other than the Crown of "fishings" potentially forming a habile title.

In each case prescription may have operated to validate the acquiring person's right. In such cases, the parties to a transaction will wish to consider appropriate evidence of acts of possession.

or

For several reasons, applicants for registration may wish to consider seeking such evidence or written consent to the transaction from the Crown Estate Commissioners, but see Crown Estate Commissioners, Crown Estate Scotland (Interim Management) and Crown Estate Scotland. For instance, any Crown alienation may be difficult to trace in the Register of Sasines, or any such alienation may not be a specific title to salmon fishings.

Such evidence or correspondence, if obtained, does not require to be submitted with an application.

or

Generally, for a disposition of salmon fishings to be a valid conveyance, each writ in the prior prescriptive progress has to expressly convey the salmon fishings right. The prescriptive period considered is 20 years where the Crown has not alienated its title, or 10 years otherwise, per section 1(5) of the Prescription and Limitation (Scotland) Act 1973. See below at (5) Evidence of Prescriptive Possession.

If a deed in the progress was silent as to the salmon fishings, the next grant by the acquirer of that title which states it includes or is of the salmon fishings is a non domino, and prescription would be required to cure the problem. Where the disposition was silent, title to the salmon fishings would remain with the granter of the disposition, unless the exception for a conveyance of barony applied, and the disposition pre-dated the appointed day under feudal abolition.

The registration officer does not require to examine the prescriptive progress of title or the Register of Sasines in this regard.

or

Sections 1 and 2 of the Prescription and Limitation (Scotland) Act 1973 apply to salmon fishings as they apply to other rights in land. However, it must be noted that section 1(5) of that Act applies a 20 year positive prescriptive period to acquisition of salmon fishings, where the Crown has not alienated its title and prescription is consequently being pled against the Crown.

The right to salmon fishing is a res merae facultatis (a right which the holders may choose to exercise or not at their pleasure) and as such is imprescriptible. However, the right can be displaced by a habile competing title which has been fortified by positive prescription.

The nature of salmon fishings is incorporeal and neighbouring proprietors may lay claim to title and possession in the same stretch of water. The parties to a transaction should satisfy themselves as to the nature of the possession being exercised by the granter. That possession should relate specifically to the extent of the salmon fishing right for which registration is sought and cover the appropriate prescriptive period.

Evidence might take the form of catch records, leases, licences or affidavit evidence from those who have exercised the rights.

Such evidence does not require to be submitted with the application.

The complexities of property law relating to the transmission of a valid title to salmon fishings are such that there is potentially a greater risk of a competing title. However, fundamentally it is a matter for the applicant or the parties to a transaction to satisfy themselves as to the title to the salmon fishings. In general terms, registration officers will rely upon the certification of the application form, subject to any express limitation referred to therein or in the content of the warrandice clause (e.g. a non-standard warrandice clause) in the registrable deed, if any. If there is an expression of concern in an application as regards the validity of a title, a limitation or exclusion of warranty may be appropriate. The phrase "in so far as I have right thereto" is not by itself a bar to proceeding with registration provided there are no other contra-indicators as previously mentioned.

For guidance in respect of derivative rights and timeshare schemes, see Salmon Fishing - Derivative Rights and Timeshare below.