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Appendices to Twenty-sixth Annual Report 



. . ; (6) Separation, in any event the defender is entitled to absolvitor 

 in respect that his lands are expressly declared in the infeftments there- 

 of to be udal lands. 



After the case was first argued the Lord Ordinary appointed the case 

 to be further heard on the question whether salmon fishings in Orkney 

 are inter regalia, and ordained the defender to lodge in process his titles 

 to the land abutting on the Kirbister Burn. 



Lord J ohxston. — This action has been avowedly raised to test the 

 question of the Crown's general right to the sea trout fishings of Orkney 

 as inter regalia. 



It is brought against Colonel Balfour of Balfour and Trenabie, and 

 the particular fishings attacked are those of the loch and burn of Kir- 

 bister. The plea was taken that as there were other proprietors in- 

 terested in the lands ex adverso of the loch of Kirbister, all parties were 

 not called. I understand that it was admitted that this was the case, 

 and as the Crown did not think it necessary for the trial of the question 

 at issue to call the other proprietors, the Summons has been dismissed 

 so far as regards the loch, so as to confine it to the burn fishings. 



Now in order that the Crown should succeed, these three questions 

 must be answered, the first two in the affirmative and the third in the 

 negative. 



First. Are the salmon fishings in Orkney inter regalia as they are on 

 the mainland of Scotland ? 



Second. Are salmon trout, sea trout, and the other smaller migratory 

 salmonidse, salmon in the eye of the common law of Scotland to the 

 effect that they, as salmon, are inter regalia ? 



Third. Has Colonel Balfour an express title to salmon fishings or a 

 title on which to prescribe clothed with possession, which would defeat 

 the Crown's claim, assuming it otherwise good ? 



The first two of these questions really arise on the defender's plea of 

 no title to sue. That plea the defender is entitled to have disposed of 

 before going into the question of his own right, whether express or by 

 prescription. 



The question is a perfectly legitimate one for the Crown to raise, and 

 I have no concern with the particular value of the individual fishings. 

 But as it is a test question, and Colonel Balfour has been selected as 

 the champion of Orcadian fishing rights, I am bound, in fairness to him, 

 to consider the matter of expense and of convenience in the conduct of 

 the case. 



Having directed my attention to these matters, I have come to the 

 conclusion that the question whether " sea trout" are "salmon"' in the 

 eye of the common law is not one which could be satisfactorily deter- 

 mined without proof. Admittedly the question is novel. As a matter 

 of impression I am inclined to think that "sea trout" are "salmon" in 

 the eye of the common law. But before I could judicially so determine, 

 I must have a judicial knowledge of points of natural history, and of 

 custom, which I could only obtain by proof. That the whole migratory 

 salinonidae are protected by statute (if, as I think, this is the case) is 

 not conclusive, but would be only an element in the proof. I have a 

 strong impression that the general practice has been, both by inclusive 

 and exclusive possession, to interpret the Crown's direct and the subject's 

 derivative right of salmon fishing as a right also of sea trout fishing. 

 But I may be wrong. And anyway I could not reach this result judi- 

 cially except on proof. This proof would be a difficult and expensive 

 one, and I would not feel justified in saddling Colonel Balfour with the 

 trouble and expense, and neither would the Crown wish to do so, unless 

 I thought the proof essential to the determination of the question at 



