SALMON-FISHEEY OF SCOTLAND. 159 



fore, on both sides, on this point, that is, as part or pertinent, 

 depends upon the possession or prescription ; but it is clear, 

 that the same subject cannot be part and pertinent of loth the 

 lands and the salmon-fishings. 



There has been only one case, we believe, tried on the sub- 

 ject, in the Court of Session, previous to the present time, 

 namely, the case of Stirling v. Colquhoun, from the river Leven, 

 about half a century ago ; and it appears to have been so slightly 

 and so imperfectly gone into, that it cannot be justly deemed a 

 precedent, whereby all future cases should be regulated. If we 

 look to the sentiments expressed by the judges, we find them 

 all in contradiction with each other: no clear principle of law 

 is laid down on the subject; and we search in vain for the 

 precise ground upon which the decision was founded. The 

 case was, however, a very plain and simple one. Sir James 

 Colquhoun exhibited on his part a grant from the Crown of the 

 salmon and other fishes in the river : his opponent produced no 

 grant, but founded his claim upon the words " piscationibm 

 et pertinentihus" in the titles of his lands, with immemorial 

 possession. Sir James had, therefore, a clear right to the pro- 

 perty of the trouts from the original general proprietor, subject 

 to a servitude to his opponent, from prescription ; yet the Court, 

 while they acknowledged, in the fullest manner, the right of the 

 Crown to the trouts, with inconceivable inconsistency, utterly 

 disregarded the Crown's grant alioruTn piscium, and bestowed 

 the trouts upon his opponent as a pertinent of his lands, — ^but 

 whether as a natural pertinent, or in consequence of the words 

 piscationibus et pertiitentihus, or from the admitted possession, 

 does not appear. The Crown gave the trouts to Sir James, but 

 the Court, superior to the Crown, gave them, in the face of the 

 Crown's grant, to the other party. We shall cite the opinions 

 of the Judges, and let the case speak for itself 



Henderland — 



" The Crown has an uNrvBESAL eight in land and in water, 

 and in making grants it may reserve or convey the fishings. If Mr 

 StirHng or his authors have possessed trouts, his right will be good."* 



* This judge, it will be observed, places Mr Stirling's right upon the possession, 

 or prescription. He does not once say, the trouts are a natural pertinent of lands, 



