45.2 Salmon Fishings

Salmon fishings have considerable value and the law governing these is more complex and differs from that governing other types of heritable property so the salmon fishing component in an application should be examined as a separate entity from any other land conveyed in the deed inducing registration using the guidelines in this Chapter.  As stated above the right to fish for salmon is an incorporeal heritable right but also a separate tenement which has been specifically excluded from the definition of "incorporeal heritable right" for the purposes of land registration in terms of section 28 of the 1979 Act.  The provisions of section 2 of the 1979 Act apply and any transfer for a valuable consideration or lease of the right will induce registration.

This does not apply in Orkney and Shetland (see Udal Tenure - Fishing Rights).  

The first section below deals with some of the specialised issues which require consideration when determining whether there has been a registrable transfer of a valid salmon fishings title i.e.:

• whether the deed inducing registration includes salmon fishings;
• whether possession can be demonstrated;
• whether there is evidence of the Crown alienating its title;
• whether a title is habile to form the basis for a title to salmon fishings assuming prescription has operated. 

The second section deals with these issues in the registration process.

45.2.1 First Registration Application - Initial examination- Valid conveyance

An application for First Registration of salmon fishings may be for salmon fishings alone or may include the right along with another heritable property right.  This can 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.

As stated above, if the right to salmon fishings is part of an application which includes other heritable property the examination of title for salmon fishings should be considered separately and the examination of the heritable property set aside until the position has been established vis-à-vis the salmon fishings.  The guidance below highlights the different criteria needed in examination of title.

One basic difference is that (assuming that the relevant break away from which title derives is either a crown grant of the salmon fishings or is habile to include the salmon fishings) each deed preceding the deed inducing registration in the prescriptive progress must expressly convey the salmon fishings. The prescriptive period may, depending on the circumstances, extend to 20 years (see 45.2.5 below - Prescription and Salmon).

The phrasing of deeds can vary but it is a requirement that there must be a reference to salmon fishing or fish of the salmon kind in each deed of the prescriptive progress.  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 a valid description in Deed X and the right has been conveyed in each deed in the prescriptive progress of title.

However the phrase "Together with the salmon fishings as described in Deed X"  where there has been no express conveyance of salmon fishings in the intervening deeds is not sufficient and is in effect an a non domino grant.

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 (McKendrick v Wilson 1970 SLT (Sh Ct) 39).

If the title deeds or the deed inducing registration 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 and the right to general fishings is a pertinent only. However if evidence of exercising a right of salmon fishing is submitted with the application then, the application should be referred to a senior caseworker for further guidance.

Examples of the requirement to expressly convey salmon fishings (otherwise than in Orkney and Shetland): -

Example 1- A dispones to B the lands of X together with salmon fishings on the River Y.

Provided A's title is valid, B becomes owner of both the lands and the salmon fishings and the right to salmon fishings is expressly entered in the Property Section.

Example 2- The deed by A had conveyed only the lands of X together with the parts and pertinents thereof whereas A had owned the salmon fishings in the River Y too.

As the deed in B's favour is of the lands of X only and does not convey the salmon fishings, the title sheet should be silent as to fishings; the fishings would remain with A.

This requirement to expressly convey salmon fishings, does not apply to a dealing with the whole of a registered interest which includes salmon fishings. Once an interest which includes salmon fishings has been registered, section 15(1) of the Land Registration (Scotland) Act 1979 applies to the effect that a reference to the title number is sufficient to convey both the land and the salmon rights.

45.2.2 First Registration Application- Initial examination- (Nature of Title)

During the initial examination of whether salmon fishings have actually been conveyed it is also important to be aware of the distinction between pro indiviso rights, derivative rights and timeshare interests. The latter two are dealt with in greater detail later in this chapter at sections 45.9 and 45.10. 

Salmon fishings must be conveyed as a whole.  If for example A owns the salmon fishings and conveys a right to fish from 1 boat, or "a right in common to the salmon fishings", then the right granted is a derivative right and is not a conveyance of salmon fishing.  It may be a burden or a right on the land or water.  Derivative rights are not a conveyance of the salmon fishings. See below at 45.9 Minor or derivative rights in salmon fishings.

However, different proprietors can hold a pro indiviso share in the whole subjects in the same way that more than one proprietor can hold pro indiviso shares in any other property.  

The right to fishings is most often exercised by a number of like minded people and it is not uncommon for them to seek ownership of the right either as a body or in pro indiviso shares.  This spreads the cost of ownership while securing the right to fish.  Where the purchase is of pro indiviso shares the number of proprietors can reach 200.

No matter how many proprietors there are Scots law is unititular (i.e. the co-owners are considered as being a single party/entity) and there must therefore be only one title sheet.  Where an application to register a pro indiviso share in salmon fishings is received it should be added to any existing title sheet for those subjects. If there are already multiple title sheets including different pro indiviso shares then that style will continue to be followed and a new title sheet created for additional pro indiviso shares (unless the proprietor already has a registered title to a share.

In the past a number of deeds were registered granting a pro indiviso share which restricted the owner's right to use the fishings to a specific week or a specific part of the fishings.  The Keeper now takes the position that such a right is not registrable.  However, the Keeper has co-operated in the restructuring of these titles so that they became registrable.  See below at 45.10 Timeshare for further guidance.

To summarise a pro indiviso share on the whole salmon fishing subjects is a valid transfer.  If the share is burdened or restricted by a "timeshare" clause or is a derivative right then it is not a right which the Keeper will accept for registration as an interest in land.

45.2.3 Adverse possession and exceptions from warrandice

There are a range of titles which may found the basis for an application for registration of salmon fishing e.g.

• titles which ultimately derive from an express Crown grant of salmon fishings or
• a grant from the Crown which is not expressly of salmon fishing but is nevertheless habile to found a valid title to salmon fishing rights once (see below 45.2.5) prescriptive possession has operated and
• an apparent grant otherwise than from the Crown which is expressly of the salmon fishing

Taken with these possibilities, as acts of possession to an incorporeal subject which cannot be physically occupied may not be obvious, salmon fishing interests carry a high risk of problems arising from competing titles. For that reason, any aspect of an application for registration (whether for first registration or of a subsequent dealing) which suggests that another party may be in adverse possession should be queried. The risk of potential competing titles arising also means that the Keeper will usually require evidence of possession for the relevant prescriptive period or confirmation from the Crown that they do not challenge the title being registered. Further information on such evidence can be found at 45.2.5 below.

Similarly, any non-standard exception from warrandice in a deed inducing registration (or, in the case of first registration, within the prescriptive progress) should be queried. The norm will be that the Keeper's indemnity should be excluded in respect of the matter over which warrandice was qualified. In this respect, it should be noted that in a grant by the Crown which induces first registration it is normal that warrandice be against fact and deed only and this need not be queried. For the Crown then a grant of simple warrandice requires to be queried. For other parties, unless they are trustees, fact and deed warrandice or simple warrandice should be queried.

45.2.4 Salmon Fishings and Alienation from the Crown

Except in Orkney and Shetland (where udal law may apply), the right to fish for salmon is one of the regalia minora (proprietary rights of the Crown which can be alienated) and 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.  Rights remaining with the Crown are administered by the Crown Estate Commissioners.  As noted above 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.

A Crown grant may be of salmon fishings alone or of other lands along with salmon fishings.  As the right to fish for salmon is a separate tenement, the right is only alienated by the Crown if it is expressly narrated in the grant.  In English the words of the grant are usually ‘with salmon fishings.’ The Latin equivalents found in older deeds are ‘cum piscationibus salmonum’ and ‘cum piscatione salmonum’. The word salmon must appear; a grant ‘with fishings’ is not an express conveyance of the right to fish for salmon; however in that instance if evidence is provided that a right of salmon fishing has been exercised the application should referred to a senior caseworker who will consider the matter further.

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 cannot be lost through non-use over any period; but it can be displaced by a habile title which has been fortified by positive prescription.

45.2.5 Prescription and Salmon Fishings

The question of the correct prescriptive period for salmon fishings is dealt with last because validity, alienation from the Crown and possession must all be taken into account when deciding the prescriptive period. 

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 twenty year positive prescriptive period to acquisition of salmon fishings where the grant is not from 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. Thus, the right is not lost through non-use over any period but can be displaced by a habile competing title having been fortified by positive prescription

Therefore, the exercise of the right on a habile title during the prescriptive period can establish a valid right against the Crown.

This combined with the difficulty in establishing possession means that there is a greater risk of a competing title and all aspects must be considered and weighed.

The following guidelines should assist with ascertaining the appropriate prescriptive period to apply and the general approach of the Keeper to the varying types of applications:

1. Express grant from Crown inducing registration

Where the DIR is an express grant from the Crown of salmon fishings or inter alia the salmon fishing, then there is typically no requirement to establish either prescription or possession.  The grant from the Crown can be accepted, provided that the relevant question on the application form relating to adverse possession has been answered in the negative

2. Express grant from Crown within 20 years of application date

Where the grant from the Crown is within 20 years and each deed transferring title after the Crown grant has contained an express grant, prescription is not being pled against the Crown and any evidence of possession is only required for the normal 10 year prescriptive period to protect the Keeper against the risk that a competing title in a third party might have been constituted by prescription.

3. Express grant from Crown but more than 20 years prior to application date

Where the Crown Grant is more than 20 years previously then there can be two different ways of proceeding-

(A). The first is where all deeds have been submitted, the registration officer should examine each writ after the Crown grant to confirm there is an express grant.  If this proves to be the case then the registration officer should consider seeking evidence of possession for the preceding 10 year period.

(B) The second is where the deed containing the Crown Grant is submitted but the intervening deeds have not been submitted or are incomplete. The Crown Grant can often be more than 100 years previously or indeed much older.  In such a case, the registration officer should consider seeking evidence of 20 years possession.  The reasoning for this is that even if there has been no express grant in every deed in the chain of title then the applicant can establish a title to the salmon fishings against both the Crown and any other party by possessing on a valid or habile title if they have possessed for a period of 20 years or more.

4. Other cases

There will be applications which do not fall within these general guidelines but where the prior title discloses a deed which is 'habile' to found prescription and allow on passage of time and use of the subjects for an unchallengeable title to the salmon fishings (see below at 45.2.6 Salmon Fishings - Habile Titles and 45.4.1 Competing right of Crown) e.g.

(a) a barony title granted by the Crown is habile to found prescriptive title to salmon fishing (where at least until 2004, a conveyance of the barony might silently carry the salmon fishings), evidence of possession for 20 years should be required) - this is an exception to the rule that salmon fishings cannot be conveyed without express reference;

(b) a grant of land from the Crown 'with fishings' is considered habile to found prescription but each grant within the 20 year prescriptive period should expressly convey the salmon fishing (evidence of possession for 20 years should be submitted or sought from the applicant);

(c) an application where there is no apparent Crown grant of any sort, express or general (where evidence of 20 years possession should generally be sought along with written confirmation from the Crown that they will not challenge the registration) but there is an express grant of salmon fishings not deriving from the Crown.

See below at 45.4.1 Competing right of Crown for further information

45.2.6 Salmon Fishings - Habile Titles

45.2.6 (i) Barony titles

A barony title, even with no mention of fishings of any sort, is habile to include the salmon fishings within the barony.  Any instance in which it is claimed that a barony title is habile to include fishings in a river which bounds the barony, (or fishings beyond the medium filum of the river where the barony is bounded by the medium filum) should be referred to a Senior Caseworker. 

This conveyancing privilege accorded to barony titles was an exception to the rule that salmon fishings cannot be conveyed without express grant. Since the appointed day under feudal abolition, former barony titles should be 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.

45.2.6(ii) Crown grant of lands with fishings

A grant by the Crown of land with fishings but not including the word salmon is also habile to include salmon fishings.  However there should be an express grant of the salmon fishings for the prescriptive period (20 years as Crown has not expressly conveyed the salmon fishings. If the title for which registration is sought is to include or consist of the salmon fishings, the registration officer will require to seek and examine evidence of possession for the 20 year period)

45.2.6(iii) Express grant of salmon fishings not from Crown

It has been held that an express grant of salmon fishings by a party other than the Crown can be a habile title.  However, there is debate as to whether such a grant, followed by prescriptive possession, can ever be free from challenge by the Crown in circumstances where the Crown has yet to alienate the fishings by express or implied grant.  Therefore where there is no alienation by the Crown, the Keeper's published policy requires that the applicant submit written consent from Crown Estate Commissioners that they will not seek to challenge the title being registered.

45.2.6(iv) Grant of fishings not from Crown

Although there is no specific authority on the point, it appears that a grant of fishings, not mentioning salmon, by a party other than the Crown may be a habile title to salmon fishings.  An original grant of fishings alone does not convey an interest in land and is thus incapable of registration if it is submitted as the deed inducing registration.  However, an original grant of other lands ‘with fishings’ may be registered in respect of the land.  As above, it may be that a right to salmon fishings acquired by prescriptive possession on such a title may be susceptible to challenge by the Crown, however if evidence of possession of salmon fishings for 20 years is submitted with the title this will be considered by the senior caseworker.  Written confirmation by the Crown that they have no interest in the fishings is also required.

45.3 Salmon Fishings - First Registration

Once it has been established that a right to salmon fishing has been transferred then consideration must be given to how the interest is to be shown on the title sheet.

45.3.1 The property section of the title sheet - description of interest

The registration officer should also see 45.3.3 Physical extent of fishings.

In dispositions and leases of salmon fishing interests, 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 Title Plan.

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 an interest 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.

45.3.1 (i) What types of fish the right relates to  

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.

45.3.2 Burdens Section entry - 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, however where the grant is qualified consideration must be given as to whether this sufficiently restricts the interest to the extent it be considered as 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 rights to the salmon fishing - for which see 45.9 Minor or derivative rights in salmon fishings below.

The foregoing is notwithstanding that, in the interests of preserving salmon stocks, there are statutory restrictions on the means by which salmon may be legitimately caught. The current statutory arrangements of Scottish salmon fishery law in inland waters and estuaries (but not sea fisheries) largely are set out in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. Different rules apply to fishing in rivers and within the limits of estuaries, on the one hand, and fishing in the open sea on the other. The 2003 Act applies slightly different rules to the Solway and there is separate legislation applying to the Tweed and Upper Esk.

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 indemnity in relation to an application of a title which appeared to provide for the right to salmon fishing to be exercised by (currently) illegal means. It should also be noted that the current statutory arrangements do allow certain rights which may be exercised by now illegal means but which were created prior to 10 May 1951 to continue to be exercised by such means without an offence being committed.

45.3.2 (i) Lawful means in rivers and estuaries

At present, 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.  When the Scottish Law Commission recommended the consolidation of legislation in relation to salmon and freshwater fisheries, which led to the 2003 Act, their Report noted that fishing by cruives are no longer operated in practice and that the Crown no longer make grants of salmon fishing to be exercised by cruives.

45.3.2(ii) 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).

45.3.3 Physical extent of fishings

45.3.3.1 Seaward extent of sea fishings

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 effect of the Territorial Sea Act 1987 (which extended the territorial sea to the twelve-mile limit) on salmon rights is unclear.  In the normal case, salmon fishings in the sea are described in dispositions as being ex adverso the coast between given points without any mention of a seaward boundary.  In such circumstances, the title sheet can remain silent as regards the seaward extent.

45.3.3.2 Lateral extent of sea fishings

As mentioned above, grants of salmon fishings in the sea are normally described as being ex adverso the coast between given points.  This leaves it unclear how the lateral boundary between adjoining grants of coastal fishings is to be determined.

The rules applied by the courts in disputes have been first to 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 from the defined point on the shore.  It should be noted that there is a subjective element to this process and two different men of skill will not necessarily agree precisely on the boundary.

While the terms of the deed inducing registration and the mapping approach must be taken into account, it will normally be appropriate that the property section be silent as to the position of the lateral boundaries.  Flowing from the description in the grant discussed above, the title plan should also only show the points on the shoreline and not extend laterally.

45.3.3.3 Up and downstream boundaries of river fishings

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 perpendicular at right angles to the medium filum.  Again, there is a subjective element to this process. In situations where the deed inducing registration relies on a written description of this type, it may be necessary to seek confirmation from the presenting agent as to what has been possessed.

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

45.3.3.5 Natural Water Boundaries

In addition to exclusions of indemnity relating to the title exhibited to the Keeper, consideration must be given to utilising the usual exclusions of indemnity in relation to the natural water boundaries which in most cases will form an aspect of a salmon fishing title.

Where appropriate, the exclusions to be used can be found in Specialist Topics at Natural Water Boundaries.

In some cases, the natural water boundaries exclusions do not require to be utilised - this is where the applicant will be registered proprietor on the same title sheet of both salmon fishings in a particular river or loch and the surrounding land (even if just a strip of land), such that a movement of the river or loch shore would not be to their prejudice. However, if the salmon fishings are then conveyed alone as a transfer of part, or will remain on the parent title sheet alone as a result of a transfer of part of the surrounding land, the natural water boundaries exclusions will require to be entered on the title sheet for the transfer of part and for the parent title sheet.  

45.3.4 Implied accessory rights

A grant of salmon fishing rights is understood to carry sub silentio certain accessory rights.  River fishings may carry rights of access over one or both riverbanks.  Coastal fishings may carry right of access to the sea. In certain circumstances, the courts have also been able to find an implied right to moor boats.  Coastal fishings may carry a right to dry nets on waste ground above the high water mark.  Unless a court declarator is produced which confirms the existence and extent of such implied rights in relation to a given interest in salmon fishings, the Keeper’s policy is to reflect but not improve on the terms of the deeds.  Accordingly, such implied rights should not be entered into the title sheet but, insofar as they existed prior to registration, will be carried sub silentio with the registered title.

45.4 Evidence of possession - Keeper's policy

In respect of interests in salmon fishings, the Keeper will require to examine evidence of prescriptive possession before giving an indemnified title (except in the case of a crown grant of salmon fishings inducing first registration where there is no evidence of adverse possession).  If evidence has not been submitted with the application for registration it should be requisitioned from the applicant’s agent.  It is not possible to be definitive on the evidence required by the Keeper. The types of evidence required will include affidavits, copies of fishings leases or licences, or catch records or possibly court declarators, but it is useful to keep in mind the difficulties of evidence of possession when considering prescription.  In terms of section 64 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 Marine Scotland request catch records from any party who they are aware hold a right to salmon fishings, however as it is only parties they are aware of the record does not provide a complete picture.

Possession cannot easily be established where the right exercised is intermittent and there is no physical occupation of a site. The quality of possession which the applicant requires to demonstrate is set out below at 45.4.2 Quality of possession.

The terms of such requisition will vary according to the circumstances of the case.  However, the following style is offered as a guide:

‘I refer to your above application for registration of an interest in salmon fishings [or which includes an interest in salmon fishings]. Before registering such interests, the Keeper requires to consider evidence of possession over the prescriptive period (of 10 years/20years as appropriate), such evidence may include copies of catch records submitted to Marine Scotland. A general explanation of the Keeper’s requirements is given at paragraph 6.104 of the Registration of Title Practice Book, and I also enclose a copy of guidance available on the Register's website.

Please forward evidence to demonstrate that the granter of the deed in favour of your client [and, if appropriate, his/her predecessors in title] has actively possessed the whole interest since [date of recording of foundation writ]. Please also confirm that this possession has been open, peaceable and without judicial interruption and has been to the exclusion of any other party with a competing title.’

Factors to be taken into account in considering evidence submitted are discussed in the two immediately succeeding paragraphs.  If the evidence produced does not adequately rule out the possibility of some other party having right to the interest (or some part of it) on a competing title, indemnity should be excluded in the proprietorship section in the following terms:

Note: [As to the part ….on the Title Plan/As to the salmon fishings included in this Title] indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that it has not been shown that the right of the granter of [deed inducing registration – include parties and registration date], being the deed which induced first registration of this interest, had been fortified to the exclusion of any competing title by prescriptive possession founded upon [details of foundation writ].

45.4.1 Competing right of Crown

If it is not apparent, from the documents submitted with the application, that the interest has been alienated by the Crown at some stage in the past (whether expressly or by a more general disposition habile to found prescriptive title to salmon fishings- see above at 45.2.6 Salmon Fishings - Habile Titles), it is necessary to consider the possibility that the title may be open to challenge by the Crown.  The applicant’s agent should be asked to supply either evidence of a prior alienation by the Crown or a letter from the Crown Estate Commissioners which confirms that the Crown will not seek to challenge the right which the applicant has acquired.  If such evidence is not forthcoming, but there is a prescriptive progress of titles with each deed specifically conveying salmon fishings indemnity should be excluded in the proprietorship section in the following terms:

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not been produced to the Keeper to demonstrate that the subjects in this Title [the salmon fishings in this Title] have been alienated by the Crown, or that notwithstanding that the subjects have not been so alienated, the Crown will not seek to claim right to the subjects.

45.4.2 Quality of possession

The possession evidenced with the application must meet the requirements of the Prescription and Limitation (Scotland) Act 1973 in having been continuous, open, peaceable and without judicial interruption.  Further, it must be possession of the right to fish for salmon.  Evidence of coarse fishing or other uses of the alveus, riverbank, foreshore or seabed is not relevant.  Possession may be continuous but also intermittent if, for example, fishing is suspended for a period to preserve stock levels.

It has been held that the possession required for prescriptive acquisition must be an active assertion of the right to fish for salmon.  That may be by the proprietor’s own use of the fishings, or by leasing or licensing the right to others in exchange for some consideration.  It is not clear whether permitting others to fish gratuitously is a sufficient assertion of possession.  The means by which fishing has been carried out over the prescriptive period also requires to be considered.  It has been held that net and coble fishing is a form of possession which may be counted for prescription.  It has further been held that, where the narrowness or nature of the river makes it impracticable to fish with net and coble, rod and line fishing may suffice.  However, it appears that rod and line fishing is not sufficient possession for purposes of prescription on waters which might be fished by net and coble.

In Gay -v- Malloch 1959 SC 115 the Court of Session accepted without question that a navigable, tidal stretch of the River Earn some 60 yards wide at low water was too narrow to sweep from one bank by net and coble without going beyond the medium filum.  It may therefore be taken that where a river is under 30 metres or so wide it is sufficiently narrow that rod and line fishing will suffice for prescriptive possession.  Note however that given the later decision in Fothringham -v- Passmore (see 45.6.3) it is not safe to conclude that an interest which lies between one bank and the medium filum, and which is under 30 metres wide, may not be fished by net and coble.

This is a problematic area where the case law is clearly out of date but nonetheless still binding.  In some cases the problem may be avoided by looking to events before the date of the foundation writ from which it may be found that the applicant’s right in fact derives from an express Crown grant.  Alternatively it may be established that the interest had in earlier times been fished for a prescriptive period by net and coble by the applicant’s predecessors in title.

The possession must also be by a means which is lawful for the given waters. Thus, for example, fishing within the limits of an estuary with a stake net cannot be counted for purposes of prescription.

Where an interest would otherwise be bounded by the medium filum of a river, it may be argued that possession on a habile title has perfected a right to fishings beyond the medium filum.  In light of the House of Lords decision in Fothringham -v- Passmore, it is questionable whether such an argument can succeed.  Any instance where the applicant seeks right beyond the medium filum in these circumstances the extent of the title will be considered by the senior caseworker.

However it should also be borne in mind that a Crown Grant of salmon fishings cannot be lost by non exercise of the right (see above at 45.2.5 Prescription and Salmon Fishings).

45.5 Extent of right obtained by prescriptive possession

Right is obtained only to that which has been possessed.  Thus, if a title is habile to include salmon fishings on a river and also ex adverso the shore, but only fishings on the river have been possessed and exercised that possession does not perfect title to the fishings in the sea.  Similarly, if a title is habile to include the fishings in two or more rivers and only one river has been fished, prescription does not operate to perfect title to the fishings in the other river(s).

Again however it must be remembered that a Crown Grant is not lost if the fishings are not exercised - however another party can establish a right to fishings and therefore where fishings have not been exercised it is prudent to exclude indemnity.

A question arises where a title is habile to include the fishings in a stretch of river but the possession has been of only a part of that stretch.  It has been held in some cases that the whole stretch can be considered an unum quid (as one thing), allowing possession of a part to perfect title to the whole.  However, such cases are fact-specific and possession of one part by the applicant’s author does not rule out adverse possession of the other parts on a competing title.  Accordingly, the Keeper’s policy is to take a cautious approach and, unless a court decree indicates otherwise, to take the view that title is perfected only to the part which has been possessed.

45.6 Reciprocal Agreements and possession beyond the medium filum

45.6.1 Sharing narrow rivers

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 where the proprietors on each bank would take alternate shots at sweeping the whole width of the river with their nets.

Similarly, the proprietors on either side of the medium filum often agree to share the use of the whole width of the river for rod and line fishing.  The most common approach is to agree that one side may fish the whole width on Monday, Wednesday and Friday, and the other on Tuesday, Thursday and Saturday. (It is unlawful to fish for salmon on a Sunday.)

45.6.2 Reciprocal agreements

It is now common practice to document such agreements to share the use of a river between opposite proprietors in formal 'Reciprocal Agreements.'  The terminology used in such agreements tends to regard the two parties as being proprietors of the opposing banks of the river.  It should be borne in mind that the agreement concerns not the use of the banks but the use of the right of salmon fishing in the water between each bank and the medium filum.

A reciprocal agreement is a bilateral contract between the parties.  Questions of termination and of suspension of performance during the other party's breach should be governed by the law of contract.  Where a party to such a contract sells his interest, his disponee is at liberty to adopt the agreement, but not compelled to do so.

However, reciprocal agreements are frequently drawn as if they were burden writs intended to bind singular successors and have been recorded in the Register of Sasines, apparently on the assumption that the agreed terms will become real conditions affecting the interests.  It is by no means clear that real conditions are created.  These should be considered on their own merits in terms of the current law and policy, and in the light of the changes to the rules for the creation of real burdens, the provisions of the Title Conditions (Scotland) Act 2003 should be applied where the deed meets the relevant requirements.

For the present, the Keeper's policy is that the terms of any reciprocal agreement which has been referred to for burdens should be entered into the burdens section of the title sheet but that, by virtue of section 12(3)(g) of the 1979 Act, there is no entitlement to indemnity in respect of enforceability.

45.6.3 Fothringham -v- Passmore

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’ interests 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.

45.7 Kindly Tenancies

See Kindly Tenancies

The former Kindly Tenants of Lochmaben have the right to fish for salmon on a stretch of the River Annan in the County of Dumfries extending to approximately four miles between Shillahill Bridge and Smallholmburn.  These former Kindly Tenants’ rights remain inalienable from their ownership of the land in the former tenancies.  They cannot therefore be transferred separately from those properties and the rights are thus pertinents, the Title Sheet for a converted tenancy will remain silent as to the right to fish for salmon.

However, parts of this stretch are apparently also subject to feudal grants of the right to fish for salmon made to other parties.  Such rights are subject to the former Kindly Tenants’ rights.

The question of disclosing the rights of the former Kindly Tenants against an application for registration of an interest in salmon fishings on this stretch of the River Annan should be considered by the senior caseworker.

45.8 Udal tenure

In Orkney and Shetland the underlying tenure is udal.  In udal tenure the right to salmon fishings is not a separate tenement and there is no presumption that the right to fish for salmon belongs to the Crown inter regalia (see Specialist Topics under Udal Tenure - Fishing Rights).

45.9 Minor or derivative rights in salmon fishings

45.9.1 Introduction

There are a number of instances of deeds recorded in the Registers of Sasines which convey – or perhaps only purport to convey – rights of partial use in salmon fishings which are less than outright ownership or tenancy 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
• E dispones to F the salmon fishings ex adverso the coast from U to V, but excepting therefrom the right to one tide’s fishing
• G dispones to H subjects together with a right in common to salmon fishings on Loch N
• 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-nets’ 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.

45.9.2 The legal nature of derivative rights

The legal nature of such lesser rights is uncertain and may depend upon the precise details of the individual case.  It may be argued that such derivative rights are in fact only personal licences and as such not interests in land which may be registered.  There is conflicting authority as to whether such rights may be servitudes in favour of the grantee, or burdens against the property of the granter.  In many cases there is no dominant tenement or benefited property, which would appear to prevent the rights being validly constituted servitudes or burdens, and accordingly they should not be disclosed on a title sheet.  

45.9.3 Registered Titles - Possession and warrandice.

Registration officers dealing with transfer of part cases should be aware of the possession and warrandice issues addressed above at 45.2.2 Adverse possession and exceptions from warrandice and also be able to identify if either the part transferred or part retained amounts to a derivative right as described above in 45.9 Minor or derivative rights in salmon fishings.

45.9.4 Practical considerations

Such derivative rights of use are incorporeal.  In view of the Keeper's interpretation of the interaction of section 2(2) of the 1979 Act with the definition of 'incorporeal heritable right' in section 28(1) (see above at 45.2 Salmon Fishing), transfer of a derivative right subordinate to the outright ownership of the right to fish for salmon does not induce first registration.  Therefore, the question of giving effect to such rights in the Land Register only arises where the underlying right of ownership of the salmon fishing interest is already registered.  This should be a rare occurrence and any examples which do arise should be considered by the Senior Caseworker.

Where such a subordinate right is transferred as an adjunct to a registrable interest (e.g. land adjoining the loch) it is unclear whether this right is a pertinent, servitude, burden or a mere personal right affecting the burdened subjects.  Accordingly the right should not be included in the title sheet but would be considered as carrying with the subjects by dint of section 3 of the 1979 act.

45.10 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 that a scheme was devised in the 1980s which sought - but in the Keeper's analysis fails - to create a heritable right of timeshare ownership and a considerable number of timeshare deeds in respect of salmon fishing interests had been 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 subject at any time.  The Keeper's view is that the right conferred on the grantee in such deeds is not an interest in land and is, therefore, incapable of registration.

Applications for registration of timeshare deeds of this type should be identified, cancelled and returned to the applicant's agent at the earliest opportunity.

However a number of these timeshare grants have been restructured in co-operation with the Keeper and are now valid pro indiviso grants.  The method of restructuring differed depending on how the parties wish 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 give a timeshare interest) to convey their interest to a single legal persona e.g. a company or a trust.  This was usually recorded in the Sasine Register 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 hold 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 and these can be consulted as necessary.

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 Connonb 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

45.10.1 Identifying Timeshare Grants

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 burdens may contain a 'cyclical calendar' of fishing weeks.
• The backings of the deeds or Form 1 may describe the interest in terms of rods and weeks - e.g. 'One rod, week 14 Forss House Fishings.'

These deeds where they have not been followed by restructuring are not registrable.  However they should be referred to a senior caseworker who can investigate whether they have subsequently been converted to valid grants or whether Legal Service hold a relevant file.

45.11 Standard Securities on 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 fishing are disclosed on the same title sheet which pertains to the whole fishing, a standard security granted by any one or more those proprietors over their own share or shares will be entered in the Charges Section so it will be clear to all unaffected proprietors. The entry should be made carefully in the Charges Section to ensure that it is clear which share (or shares) is affected. A senior caseworker should he 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 interest 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 will only be disclosed on the title sheet pertaining to the share over which it is granted.

45.12 The right to collect oysters and mussels

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.  However, this right has not been excepted from the definition of ‘incorporeal heritable right’ at section 28(1) of the 1979 Act.  Accordingly, section 2(2) applies to make it impossible for any transaction with the right to oysters and mussels to induce first registration.  Any deeds relating to this right therefore fall to be recorded in the Register of Sasines, but it is possible for a transfer of part from a registered title to occur - such cases require to be referred to a senior caseworker initially.

45.13 Sporting leases of Non Salmon Fishings and Shooting Rights

45.13.1 Lease of Non Salmon Fishings Rights

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

(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.

Textbook authors have reached the assumption that, where the term of such a lease exceeds 20 years, this provision authorises recording in the Register of Sasines under section 1 of the Registration of Leases (Scotland) Act 1857 and that, by extension, such fishing leases are, registrable in the Land Register.  These assumptions may yet be challenged, but, the Keeper's policy is that, so long as in all other respects meeting the criteria for a registrable lease, such leases might be registered.

However, it should be borne in mind that the tenant's right under such a lease is incorporeal.  Section 2(2) of the 1979 Act, therefore, applies to prevent such a lease inducing first registration and consequently the tenant's right may only be registered in the Land Register if the landlord's interest in land from which the lease is granted is already registered.  It is important to consider that a lease of exclusive use of non-salmon fishings will bind the landlord's singular successors, however in common law the ownership of the right of salmon fishing confers non-exclusive right to fish for non-salmon fish.  Therefore, every such lease will require an exclusion of indemnity in the property section of the title sheet in the following terms: -

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that the right of the tenant in the foregoing lease is subject to the right of the proprietors, and tenants (if any), of the right to fish for salmon over the same waters of fishing for non-salmon fish.

Or

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that the right of the tenant in the foregoing lease is subject to the right of fishing for non-salmon fish by the proprietors (and tenants if any) of the right to fish for salmon over the same waters.

45.13.2 Sporting Rights

These can be for shooting and fishing.  Often an application is received for first registration of estate land with a lease as a transfer of part being granted by the new proprietor of the fishing and sporting rights (sometimes known as a 'sale and leaseback' arrangement).  As noted above the property interest in non salmon fishings and sporting rights cannot be severed from the property.  However they can be leased and in one particular circumstance can be deemed a separate tenement.

45.13.2.1 Sporting Rights as a separate tenement

S65A of the Abolition of Feudal Tenure etc (Scotland) Act 2000 provides that where a Superior has reserved sporting rights in a feudal grant he could, prior to 28 Nov. 2004, register a savings notice in terms of S65A which would then convert the right into a separate tenement.  The definition of "incorporeal heritable right" in the 1979 Act was amended to exclude sporting rights as defined in S65A(9).

S 65A(9) states that in this section "sporting rights" means a right of fishing or game.

This means that in a small number of cases sporting rights can become a separate tenement to be sold or leased (and such lease would induce first registration even if the landlord's interest was not registered) - but less than 100 such s65A notices were recorded.  This exception must be given special consideration and referred to a senior caseworker before a decision is made to register. Some commentators understand that the section 65A arrangement could convert only non-exclusive sporting rights and it may be that the notices would not work if a reservation was stated to be exclusive but the position is unclear.

Professor Reid in his text 'Abolition of Feudal Tenure in Scotland' at paragraph 8.7 and Professor Rennie's 'Land Tenure in Scotland' at paragraph 3.17 discuss the conversion to a tenement and the anomalies this creates.  For example, it was possible to convert sporting rights reserved in a Feu Disposition into a separate tenement by registration of a notice but the reservation of sporting rights in a Disposition remains considered at most a personal right that should not be disclosed on the title sheet.

Other than in the case of such converted rights, the grant of a lease of sporting rights by a proprietor, although not a separate tenement, is an incorporeal heritable right and registrable but the Keeper's policy is that it can only enter the Land Register if the landlord's title is registered.

It follows that a reservation by a proprietor cannot be exercised by him other than as a personal right.  It cannot be leased by him since he is not a proprietor and not assigned because he does not have a lease.  Any attempt to register an interest in sporting rights where title relies on a reservation should be referred to a senior caseworker.

No decision should be taken to register a lease falling into this category without a referral and decision by a senior caseworker

45.14 Settling Dealings and Transfers of Part

The deed transferring title does not need to expressly convey salmon fishings if it conveys the subjects registered under Title Number X.  If the salmon fishings are to be conveyed separately then this should be a transfer of part and specifically convey only the property rights.

It follows therefore that a dealing application which includes salmon fishings need not be examined in relation to prescription or any other aspect but if the answers given on the application form suggest either that they have not been in possession of the subjects, or that there is adverse possession or other concern with title, the registration officer should request further evidence in relation to possession.  A referral to a senior caseworker is appropriate.

Where there is a transfer of part consideration should be given to whether the whole right to fish for salmon is being conveyed or whether it is a derivative right only which would not support a separate title sheet but may require entry on the existing title sheet as some form of real right or condition burdening the interest.