Sporting Rights - Salmon Fishing and Rights to Take Game

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.

1. Right to fish for salmon

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.

2. Right to gather oysters and shellfish

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

3. Converted non-salmon fishing rights or shooting rights - feudal abolition notice

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.

Authority for Registration of Trout Fishing Leases

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.

Authority for Registration of Game Shooting Lease

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.

xx

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.

What does the registration officer check at first registration?

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

(1) The content of registrable deed (or of last recorded conveyance, if voluntary registration sought)

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

(2) The nature of the right - should not be 'derivative' or timeshare

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

(3) Content of application form and accompanying correspondence for any stated concerns with title or qualifications to certifications on application form

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.

What a registration offer does not have to check

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.

(1) Evidence of Crown alienation

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

(2) If no evidence of Crown alienation, evidence of an otherwise habile title

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

(3) Evidence of Crown consent/acknowledgement of title

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

(4) Prescriptive Progress of Title

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

(5) Evidence of prescriptive possession

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.

Right in common to salmon fishings

Any grant of a right in common of salmon fishing must clearly be consistent with ownership otherwise it will be omitted from the title sheet.

To meet the requirements of the 2012 Act, the quantum of the respective share must be specified and the extent of the right must be capable of being mapped on the cadastral map. For example:

G dispones to H subjects together with a right in common with the proprietor of the land on the opposite bank to the salmon fishings in the River Song ex adverso the subjects hereby disponed
J dispones to K subjects together with a one quarter share of the salmon fishings on Loch Neptune coloured blue on the plan annexed hereto

In the first example, the legal presumption that each riparian proprietor gets an equal share in the salmon fishing applies, and this should be reflected in the entry in the proprietorship section.

Standard securities over salmon fishings

The nature of salmon fishings is such that often no securities subsist or are granted, either over any of the pro indiviso shares or the whole fishings.

Where all pro indiviso shares in the same stretch of river or the same loch are disclosed on the same title sheet, which pertains to the whole fishings, a standard security granted by any one or more those proprietors over their own share or shares will be entered in the securities section, so it will be clear to all unaffected proprietors. The entry should be made carefully in the securities section to ensure that it is clear which share (or shares) is affected. A senior caseworker should be consulted if the standard security is submitted as a separate dealing application. There may be unusual cases involving securities which are not yet discharged but which affect the right of one of the pro indiviso proprietors who has succeeded to the relevant share, in which case it may be necessary to enter a note to link the security to the now registered subjects by reference to current registered proprietor.

Where the salmon fishings are held as pro indiviso shares on separate title sheets, any standard security over a share will only be disclosed on the title sheet pertaining to the share over which it is granted.

Title Conditions affecting the exercise of salmon fishings

The specified means of salmon fishing

An unrestricted grant of salmon fishings gives the right to fish by all legal means.

On occasion, the agreed means of fishing may be specified in the relevant grant. Where the means of fishing is specified in the title, this should be included in the title sheet by an entry for the relevant foundation writ for the fishing right in the burdens section, provided the registration officer has been made aware of it in the application for registration. Where the grant is qualified (in the dispositive clause), consideration must be given as to whether this sufficiently restricts the right to the extent that it must be considered a derivative right. The form of entry will be as directed by the senior caseworker. In addition, the means specified in the title deeds by which the salmon fishing is to be exercised should be distinguished from derivative or time share rights to the salmon fishing. For deeds being registered which contain a new restriction on use, the deed would require to meet the requirements of the Title Conditions Act.

There are statutory restrictions on the means by which salmon may be legitimately caught. The following general information about the legal (non-criminal) means by which salmon fishing rights can be exercised, is not intended to imply that the Keeper would query, reject, or exclude warranty in an application for registration of a deed which appeared to provide for the right to salmon fishing to be exercised by (currently) illegal means. Nor does any information concerning such restrictions require to be entered in a title sheet, as they do not constitute encumbrances within the meaning of the 2012 Act. It should also be noted that the current statutory arrangements allow for certain rights, which were created prior to 10 May 1951 and exercised by previously legal means that are now illegal, to continue to be exercised by those means without an offence being committed.

Lawful means in rivers and estuaries

The most common means of fishing is sporting angling by rod and line. It is also lawful to fish rivers and estuaries by net and coble. This involves one fisherman standing on the bank holding one end of a net while a second pays the net out from a boat (the coble) in a semi-circular course, landing back on the same bank. This was the principal means of fishing in the past when salmon fisheries were commercially exploited for food production rather than for sport. Fishing by this means is now less common.

In the past, it was also lawful to fish rivers and estuaries using a type of dam or trap called a cruive or zair, but (subject to limited exceptions) this means of fishing is no longer permitted. The Crown no longer make grants of salmon fishing to be exercised by cruives.

Lawful means in the sea

In addition to the methods of rod and line, and net and coble, it is lawful to fish the sea with ‘fixed engines’. These are generally in the form of other types of nets such as stake nets, bag nets or halve (variously spelt as half, haave, haaf etc.) nets. It should be noted that ‘halve’ here describes a type of net, not a fraction (i.e. a right to fish with a halve net is neither ½ of the right to fish with a net nor the right to fish with a ½ size net).

Reciprocal agreements and possession beyond the medium filum

In many cases, different parties own the right to fish for salmon on either side of the medium filum of rivers. Where the river is narrow, it may be impossible to fish on one side without trespassing onto the other. In respect of net and coble fishings in narrow rivers, a practice developed whereby the proprietors on each bank would take alternate shots at sweeping the whole width of the river with their nets.

Similarly, sometimes the proprietors on either side of the medium filum agree to share the use of the whole width of the river for rod and line fishing. It is now common practice to document such agreements to share the use of a river between opposite proprietors in formal 'Reciprocal Agreements'. Reciprocal agreements are frequently drawn as if they were burden writs intended to bind singular successors of the parties in the ownership of the salmon fishings rights. In some cases, it is unclear whether the types of conditions set out can be real burdens or title conditions. Each application should be considered on its own merits and, where appropriate, the provisions of the Title Conditions (Scotland) Act 2003 should be applied as to the content of the deed and the entries in the title sheet(s) affected.

Salmon Fishing - Description in Title Sheet

In dispositions and leases of salmon fishing rights, it is common for the dispositive clause to contain a list of types of fish, for example:

…do hereby dispone the fishing of salmon, fish of the salmon kind and trout in the River X between points A and B…..

The Keeper’s policy is that lists of fish should not be reproduced in title sheets. The above description should be entered into the property section as:

Subjects, being the right of salmon fishing on the River X between the points lettered A and B in blue on the cadastral map.

The reason for omitting reference to other types of fish is as follows: If the salmon fishing right includes the right to catch sea trout, then there is no need to narrate sea trout. Conversely, if the salmon fishing right does not include the right to catch sea trout, the right to catch sea trout is not a right in land and is therefore not capable of registration. The salmon proprietor's non-exclusive right to catch lesser fish is carried sub silentio with the salmon right and, therefore, does not need to be expressly narrated. If the right to lesser fish were narrated in the property section it would give the misleading impression that the salmon proprietor had exclusive right to catch these fish.

What types of fish the right relates to - Definition of salmon

Although it is not information that appears on a title sheet it is helpful for understanding of the subject to confirm the definition of salmon. It is not settled whether, for conveyancing purposes, the right to salmon fishing is only the right to fish for Atlantic salmon of the species salmo salar, or whether it also includes the right to fish for other fish ‘of the salmon kind.’ It is probable that the right to salmon fishings also confers exclusive right to fish for sea trout (migratory salmo trutta) but the question has yet to be decided by the courts. Like salmon, sea trout spend part of their life cycle in the sea and part in rivers. Any application which appears to involve a conveyance of sea trout rights should be referred to a senior caseworker.

The proprietor of the right to fish for salmon is also entitled to fish for non-migratory trout and coarse fish, but this is not an exclusive right and the owner of the river bank (the riparian proprietor), who sometimes also owns the alveus of the river, remains equally entitled to fish for these types of fish.

Physical extent of fishing rights

Sea fishing - Seaward and lateral extents and OSGB36 coordinates

Seaward and lateral extents

Salmon fishings in the sea are often described in conveyancing deeds as being ex adverso the coast between given points, without any mention of: (1) a seaward boundary, or (2) the position of the lateral boundaries. This type of verbal description is not acceptable for registration of those rights under the 2012 Act.

As a separate tenement, salmon fishing rights (as well as the right to gather naturally occurring oysters and mussels) constitute a "plot of land" in terms of the 2012 Act, and as such will be registered with a separate title sheet and cadastral unit. This means that any application for first registration of salmon fishing rights must contain a description sufficient to enable to the keeper to delineate the plot on the cadastral map. The onus is therefore on the applicant to determine the position of the seaward and lateral boundaries, and define this in their application.

Although it is for the parties to the transaction, and not the keeper, to determine the extent of the sea fishings, it is helpful to note that at common law, the Crown right to salmon fishings extended to the width of the territorial sea, which was to the three-mile limit. The Territorial Sea Act 1987 extended the territorial sea limit from three to twelve-mile nautical miles, and parties wishing to register salmon fishings in the sea may need to consider the effect of this on the seaward boundary, prior to submitting their application.

The position of the lateral boundaries must also be determined by the parties prior to submitting their application. The courts have applied certain rules in cases of dispute, which are to first look to see whether prescriptive possession has settled the boundary. If not, a remit has been made to a ‘man of skill’ to determine the mean curve of the coast and draw off the boundary perpendicular to that mean curve from the defined point on the shore. There is a subjective element to this process and two different men of skill will not necessarily agree precisely on the boundary. However, as noted above, this is not a matter for the keeper to consider.

For registration purposes, the applicant must satisfy themselves as to the position of the seaward and lateral boundaries, and must define these extents sufficiently in their application. In general terms the keeper will proceed to register to the extent certified in the application, provided it does not compete with any existing registered title.

OSGB36 coordinates

In order to enable seabed plots to be clearly identifiable and defined on the cadastral map, there are additional descriptive requirements that must be complied with when submitting a seabed registration application.

Regulation 8 of the Land Register Rules etc. (Scotland) Regulations 2014, sets out that where the plot or right to be registered falls wholly within the sea or tidal waters (including sea lochs, estuaries, tidal rivers and bays), the deed must include a description of the plot using the projected coordinate system: OSGB 1936 - British National Grid (ESPG:27700). Further guidance on seabed registration, and the use of coordinates, can be found on the Seabed registration guidance and Mapping seabed pages.

The coordinates will be used to identify the location of the seabed plot, and enable delineation on the cadastral map. The coordinate data provided will be included in the property section of the title sheet in a schedule of coordinates, as shown on the Seabed - title sheet page.

River fishing - up and downstream boundaries, and medium filum

Up and downstream boundaries

Traditionally, the boundaries between river fishings were often marked by march stones on one bank. This would leave open to question the angle of the boundary across the river. It has been held (Stuart Gray –v- Fleming, (1885) 12R 530) that the angle of upstream and downstream boundaries of river fishings is to be fixed by dropping a perpendicular line at right angles to the medium filum.

In situations where the deed inducing registration relies on a written description of this type, the application should be referred to a senior caseworker to consider whether sufficient information has been supplied to accurately identify the boundary, whether additional information is required from the presenting agent, or whether the application is to be rejected.

Fishings bounded by the medium filum

The normal assumption should be that riparian fishings described as being ex adverso, or from, one bank are bounded by the medium filum.

River fishings may be described as being ex adverso one or other bank of the river. It has been held in an early case that this does not necessarily limit the bounds of the fishing right to the medium filum of the river and that proof of exclusive possession beyond the mid-line may show the right to be over the whole width of the river. However, any acts of possession beyond the medium filum must now be considered in the light of the House of Lords decision in Fothringham -v- Passmore below.

For registration purposes it is for the parties to a transaction, and not the keeper, to determine the extent of the river fishings boundaries. The application for registration must contain a description sufficient to enable the keeper to delineate the river fishing boundaries on the cadastral map. The salmon fishings are a separate tenement, and as such will be registered with a separate title sheet and cadastral unit from the alveus of the river.

Fothringham -v- Passmore case

The House of Lords decision in Fothringham -v- Passmore 1984 SLT 401 impacts on the question of fishing beyond the medium filum. The effect of the decision appears to be that in any river (whether narrow or not) where two different proprietors’ rights have a common boundary at the medium filum, each proprietor is entitled to physically position himself (in a boat unless the water is particularly shallow) anywhere on his own side of the medium filum and to cast as far into his neighbour's property as he can reach. The decision is analysed by K.G.C. Reid in Salmon Fishings in Troubled Waters 1985 SLT (News) 217. Professor Reid's view is that this right to fish in one's neighbour's water is not a right of property but a type of common interest.

Fishing within an Estate

In dispositions and leases of salmon fishings within an estate, it is common for the right to be described as being within the whole property being conveyed, for example:

"...and the whole salmon and other fishings in the lochs, rivers and streams within the subjects hereby disponed..."

This type of description may be acceptable for registration purposes provided the extent of the estate, within which the salmon fishing rights are granted, is sufficiently defined. An estate could contain a large number of lochs, rivers and streams over which salmon fishing rights exist, and these areas could vary significantly in terms of size. This makes it potentially very difficult to identify and define every body of water for mapping purposes, particularly at the base map scales. For these reasons, when considering an application to register salmon fishings within a whole estate, the keeper may rely a verbal reference to the estate extent, and not insist that all bodies of water within the estate being defined.

Where the deed inducing registration contains a description of this nature, the application should in the first instance be referred to a senior caseworker, who will seek further guidance if necessary.

If the description is acceptable for registration purposes, the entry in the property section will be as follows:

Subjects cadastral unit CD, being the rights of salmon fishings in all the lochs, rivers and streams within the ESTATE OF X tinted pink on the cadastral map...

Salmon fishing - Title Sheet Entries

Where the title sheet for salmon fishings is created administratively by splitting the title to meet the requirements of section 3 of the Act then it will, generally, replicate the information contained in the plot title sheet, if there is no distinction made in the deed.

Property section description

The description should reflect the description in the deed, taking account of the guidance provided in Salmon Fishings - Description in Title Sheet and Sample Property Section Styles - Salmon Fishings.

If the deed dispones:

(I) a plot of land and (II) the salmon fishings in the rivers in the plot of land together with rights specified in ...

In this instance, the rights relate to the whole subjects disponed and should be shown in both title sheets (unless clearly only relating to one of the rights). If the deed is drawn in a style that clarifies whether it is the 1st or 2nd subjects that benefit, then the the title sheet should be tailored to reflect this.

In terms of section 6(1)(f) of the Act, the Keeper must enter in the property section of the title sheet, where there is for the area of land another title sheet (e.g. a separate tenement), the title number for that other title sheet. Examples of how this information would be entered in both the salmon fishing and plot of land title sheets is as follows:

Salmon fishing title sheet

SCHEDULE OF SEPARATE TENEMENTS

Entry No.	Type of separate tenement	Title No.
1	plot of land	LAN987

Plot of land title sheet

SCHEDULE OF SEPARATE TENEMENTS

Entry No.	Type of separate tenement	Title No.
1	salmon fishing	LAN5432

Proprietorship and securities sections

If a disposition and/or a standard security are submitted for registration, and each relates to both the plot of land and the salmon fishings, the respective title sheets should reflect this. The proprietorship and securities sections should reflect that the respective entries relate to the subjects in the title and other subjects.

Burdens sections

If the deed dispones:

(I) a plot of land and (II) the salmon fishings in the rivers in the plot of land ... and under the burdens contained in [list of burden deeds] ...

The burdens relate to the whole subjects disponed. If the deed is drawn in a style that clarifies whether it is the 1st or 2nd subjects that are burdened, then the the title sheet should be tailored to reflect this.

Salmon Fishings - Derivative Rights and Timeshare

There are a number of instances of deeds recorded in the Register of Sasines which convey – or perhaps only purport to convey – rights of 'partial use' in salmon fishings which are less than outright ownership of the entire salmon fishing right.

Examples are:

A dispones to B the right of salmon fishings on the River Y, but reserves to himself and his successors the right of rod and line fishing
C leases to D the right to fish for salmon on Loch W with one boat only
a right to one tide's fishing (e.g. as excepted in a disposition by E to F of the salmon fishings ex adverso the coast from U to V, but excepting therefrom the right to one tide’s fishing)
The Crown grants to T the right of cruive fishing in the estuary of the River Y
R dispones to S the right to one halve-net's fishing in the River Y (and makes a number of identical grants to other parties)
P dispones to Q the right to fish with one rod only during week 14 on the cyclical calendar.

The last example is discussed under the heading of Timeshare, below.

The registration officer will need to consider whether the apparent restriction on use is in the dispositive clause or constitutes an agreed method of exercise of the salmon fishings which might otherwise be an encumbrance.

Derivative rights - what is their legal nature?

The legal nature of such lesser rights is uncertain and each application requires to be considered on its merits. It is believed that such rights do not constitute the right of salmon fishing, that such rights are only personal licences. As a form of personal licence, they do not constitute a separate legal tenement and so do not require the creation of a cadastral unit and title sheet. There is some conflicting authority that such rights could be servitudes in favour of the grantee, or burdens against the property of the granter. However, in many cases no benefited property can be defined from the deed, and this would appear to prevent such rights from being validly constituted servitudes or burdens, and accordingly they should not be disclosed on a title sheet.

Where such a subordinate right is transferred as an adjunct to a plot of land which is sufficiently heritable (e.g. land adjoining the loch or river) it is unclear whether this right is a pertinent, a servitude, a burden, or a mere personal right affecting the burdened subjects. Accordingly the right should not be included in the title sheet.

This should be a rare occurrence and any examples arising should be considered by a senior caseworker.

There is authority that such rights can be leased by a proprietor who owns the salmon fishing.

Timeshare

The Keeper considers that the rights of 'timeshare' users in timeshare schemes are personal, moveable rights and thus incapable of registration in the Land Register. A difficulty exists in that a scheme was devised in the 1980s which sought - but in the Keeper's analysis failed - to create a heritable right of timeshare ownership, and a considerable number of timeshare deeds in respect of salmon fishing rights were recorded in the Register of Sasines before the Keeper became aware of the problem.

The scheme involves an attempt to grant to the intended timeshare user a pro indiviso share in the right of salmon fishing, but subject to reservations and conditions which seek to restrict the grantee's use of the fishings to a particular week or weeks of the year. This is self contradictory, as at common law each co-owner of property held pro indiviso is entitled to non-exclusive use of the whole common subjects at any time. The Keeper's view is that the right conferred on the grantee is incapable of registration as it does not constitute the right of an owner.

Applications for registration of timeshare deeds of this type may require to be rejected as the deed may be invalid. This decision should be considered by a senior caseworker in conjunction with Legal Services.

Identification of timeshare salmon fishing applications

Timeshare deeds can often be identified because they contain the following:

The granter of the first break-off writ of the pro indiviso share is often (but not always) Salar Fishings Limited or Salar Properties (UK) Limited.
The size of pro indiviso share is usually very small - often around 1/300th.
Either the disposition or a deed of conditions referred to for real burdens and other conditions may contain a 'cyclical calendar' of fishing weeks.
The backings of the deeds or the application form for registration may describe the right in terms of rods and weeks - e.g. 'One rod, week 14 X Fishings.'

Where such deeds have not been followed by legal restructuring to resolve the difficulties caused by the timeshare restrictions, the "rights" are not registrable. Some examples of Restructured timeshare salmon fishing applications are set out below. Applications should be referred to a senior caseworker, who can investigate whether they have subsequently been converted to valid grants or whether Legal Services hold a relevant file.

Restructured salmon fishings

Some of the known restructured fishings are listed below. The method of restructuring differed depending on how the parties wished to proceed. The basic first step was for all parties with an interest (i.e. the party originally setting up the time share scheme and all those given a timeshare right) to convey their right to a single legal persona e.g. a company or a trust. This was usually recorded in the Register of Sasines and was drafted to found a prescriptive title. How the parties concerned proceeded after that initial step was a matter of preference.

Some parties were content that the body holding the title administered the fishings, and gave certificates to replace the timeshare grants. The rod holders or fishermen therefore did not get a heritable title. Others then conveyed pro indiviso shares unburdened by timeshare provisions. The provisions were exercised by personal agreement which could be registered in the Books of Council and Session but did not enter the land register. Other parties secured the timeshare agreement in a standard security which secured obligations ad factum praestandum (an obligation to perform an act) as opposed to a monetary debt. Legal Services hold files on the restructured timeshare salmon fishings listed below.

List of restructured salmon fishings

File 1: Ardoe & Murtle, River Dee; Avochie Fishings; and River Beauly Fishings

File 2: River Bladnoch Fishings; Closeburn Fishings, River Nith; River Clyde; and River Connon Fishings

File 3: Dryburgh Fishings, River Tweed; River Eachig Fishings; and Loch Eilt Fishings

File 4: Forss House Fishings; Gordon Castle Fochabers; Lochlane & Laggan Fishings, River Earn; River Lochy Fishings; Netherdon Fishings; and Newbie Fishings, River Annan

File 5: Oykel Fishings; Fishings between Sawmill Bridge and Aswanley Bridge, Huntly; and the Shee Fishings

Registration considerations

2012 Act applications for first registration of a share in salmon fishings

As a separate legal tenement, salmon fishings comprise a "plot of land" under the 2012 Act, and in terms of section 3(1), the Keeper must make up and maintain a title sheet for each registered plot of land. However, some 1979 Act title sheets contain only a pro indiviso share in salmon fishings and, often, associated land. With these titles, the Keeper has effectively issued multiple title sheets in respect of the same plot of land. This approach of multiple title sheets relating to the same plot of land is not compatible with the 2012 Act. When an application for first registration of a pro indiviso share in salmon fishings is received under the 2012 Act, and is otherwise acceptable for registration, the Keeper will set up a single cadastral unit and a single title sheet for that plot of land; future applications for first registration of further shares in that plot of land will be registered as first add-to applications with the share being added to the 2012 Act title sheet.

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. If the application for registration includes an area or areas of ground in addition to the salmon fishings, the application will result in two cadastral units and 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. See section on Splitting Titles above for further guidance on the process.

When a 2012 Act title sheet and cadastral unit are being set up in such a scenario, no consideration should be given to amalgamating, sub-dividing or otherwise updating the existing 1979 Act title sheets for previously registered shares in the particular salmon fishings.

2012 Act applications affecting existing titles with pro indiviso shares in salmon fishing

In respect of a standard dealing (for example, a disposition of whole or a discharge of a security), over an existing 1979 Act title sheet with a pro indiviso share in salmon fishing, no consideration should be given to the sub-division or amalgamation of the previously registered share(s) into 2012 Act cadastral units and associated title sheets. See Updating Existing Title Sheets for guidance on the basic updating steps to take.

If an application affects the share or shares in the existing 1979 Act title sheet, and requires the amendment of the description contained in that title sheet (for example, a deed that changes the extent of the registered plot of land, or the constitution of a subordinate right such as a servitude or right to enforce a real burden), then a new cadastral unit should be set up along with associated title sheet as described above. If a 2012 Act title sheet has already been set up for a share or shares in the particular salmon fishings, then the share affected by the current application should be added to that 2012 Act title sheet. If the existing title sheet includes both land and salmon fishings, see Dividing an Existing Mixed Title for guidance on how to split a mixed title.

When a 2012 Act title sheet and cadastral unit are being set up in such a scenario, no consideration should be given to amalgamating, sub-dividing or otherwise updating any other existing 1979 Act title sheets for previously registered shares in the particular salmon fishings.