of the Fishery Board for Scotland. 



G7 



issue — which, so far as we are presently concerned, is limited to the title 

 to sue. Now, while I am aware that there is a generally well-founded 

 objection to taking up questions piecemeal, I think that the circumstances 

 here override that objection. If the common law of Scotland in the 

 matter of salmon fishings does not apply to Orkney, it is evidently im- 

 material to Colonel Balfour whether in the eye of the common law of 

 Scotland salmon is equivalent to salmonidae or not. Accordingly I 

 think I am justified in dividing the case in the matter of the title to 

 sue into two, and requiring the Crown to show, first, that salmon fish- 

 ings in Orkney are inter regalia, as they are in the mainland of Scotland, 

 leaving out the question whether the term salmon in the common law 

 of Scotland is restrictive or general and equivalent to salmonidae. 



On the former of these questions I have had substantially no argu- 

 ment. In the debate before me, attention was directed entirely, or al- 

 most entirely, to the second question whether " salmon " included " sal- 

 monidae," which it was maintained (contrary to my opinion) that I 

 could determine on authority without proof. I propose, therefore, to 

 direct the case to be pub out for further argument on the question which 

 I have indicated. 



But the Crown concluded by a demand that Colonel Balfour should 

 produce his titles. In Answer 2 he makes such reference to them that 

 I should have expected them to be produced. Apparently that has not 

 been so. Now until the pursuer has established his title to sue, the 

 defender cannot, as a rule, be called on to produce his titles. Were the 

 object of the call to ascertain what his right by title to fishings or to 

 prescribe fishings was, I would sustain this position on the part of Colonel 

 Balfour. But in the special circumstances of the case I do not think 

 that the question on which I desiderate argument could be satisfactorily 

 or exhaustively dealt with without an examination of Colonel Balfour's 

 titles as evidencing, in his particular case, as an instance, the nature of 

 the original title, and the history of its progress, whether as udal or 

 feudal. 



Modern lawyers are not familiar with Orkney titles, and I feel that 

 it would probably aid me to appreciate the general argument on the sal- 

 mon fishing rights of Orkney if I saw the form in which Colonel Bal- 

 four's title stood and could trace its passage from udal to fedual so far 

 as it has undergone that change. It is quite possible that something 

 may turn upon the terms of the feudalisation. And it must be remem- 

 bered that so far as feudalised the Crown is the superior, and that it is 

 therefore the superior who is calling for the titles. — 17^ October, 1905. 



A further hearing and argument having taken place, the Lord Ordinary 

 sustained the defender's second and fourth pleas, and assoilzied him from 

 the conclusions of the Summons. 



Lord Johnston. — Referring to my judgment of 17th October, 1905, 1 

 have had a further and learned and interesting argument on the question 

 whether salmon fishings in Orkney are inter regalia. If they are not, 

 then a fortiori sea trout fishing is not inter regalia, and the defender's 

 second and fourth pleas fall to be sustained. 



In the present aspect of it the case is practically a supplement to 

 Commissioners of Woods and Forests v. Gammell, 1851, 13 D. 854 and 

 1859, 3 Macq. App. 419. Prior to GammeWs case it was settled law 

 that the right of salmon fishing in the rivers of Scotland was a separate 

 heritable tenement, which was vested in the Crown as a patrimonial and 

 beneficial right, and remained with the Crown unless expressly or con- 

 structively granted out to the subject. The Court in GammeWs case, 

 accepting this as the law applicable to the rivers of Scotland, found that 

 it extended also to the shores of the open sea round the coasts of Scot- 



