162 SALMON-FISHERY OF SCOTLAND. 



Colquhoun might have acquired a right to trout-fishing by prescrip- 

 tion, but he has not ; he has been wont to catch trouts, but not to 

 exercise a trout-fishing.* He is not entitled to catch trouts with a 

 net appropriated to that purpose, "f 



Eskgrove 



"Lands and fishings are understood to be the right of the Crown 

 originally. Grants from the Crown cum piscationibus carry NOTHING, 

 unless explained by POSSESSION. Such a grant might imply that the 

 Crown was not to resume it. Heritors may fish trouts ex adverse 

 of their lands ; but I doubt whether they can interrupt those who 

 may choose to fish from a boat."J 



Such, then, is the only precedent on the subject. Each 

 learned judge not only contradicts most learnedly his neigh- 

 bour, but contradicts himself. All seem as if playing a game 

 at cross purposes, more like a parcel of schoolboys than a set 

 of grave judges uttering the dictates of wisdom, and founding 

 their judgment upon a clear principle of law. Only one of 



* Sir James acquired his right by his grant from the Crown. The distinc- 

 tion between catching trout, arid exercising a trout-fishing, is nothing but quib- 

 bling. Did Mr Stirling do more than catch them ? If it is meant that Sir 

 James did not keep a regular trout-fishing establishment, it is what has never 

 been kept anywhere, even yet, and certainly was not by Sir James's opponents. 

 The trouts in those days would not pay a tenth part of the expense of euch. 

 They have been always, and are still, killed by the saZmcm-fishers. This judge 

 appears to have looked upon Sir James's side of the question with a very jaun- 

 diced eye. The whole of his remarks show it. 



t Here was another gross instance of partiality, for this was allowed by the 

 Court to the other parties to persons who, in fact, had no right, and denied to 

 the Crown's grantee ! 



He admits that the words cum piscationibus carry nothing without prescrip- 

 tion, and imply only that the Crown was not to resume it. Where did he ever 

 hear of the Crown resuming a grant once made 1 When he says an heritor may 

 fish ex adverso of his lands, we presume he means after he has acquired a right 

 by prescription, as he before remarked. He does not say that the man who fishes 

 ex adverso of the boat, requires prescription, like the man with piscationibus in 

 his titles on land, nor that he needed a right from the Crown, though he admits 

 the Crown to be the original proprietor of the fishings. The right is an heritable 

 one to the man on land, derived from the word piscationibus and his possession ; 

 but to the man in the boat it is quite a different thing or what our trout law- 

 yers call a common-law right, a mixture of res nullius and cedere occupante 

 flowing from the Crown to the one, and from the unknown ceding owner, sup- 

 posed, also to be the Crown incognito, to the other. All this exposition of the 

 law is altogether amusing. 



