§ 8.

MUIRBURN
-BRITISH

MENTS.

months for the third and every other offence. The occupiers of the ground upon which such muirburn fhall be difcovered within the forbidden time, fhall be deemed guilty of the of- ENACTfence, and fhall be liable to the feveral penalties aforefaid, unless he fhall prove that fuch fire was communicated from fome neighbouring ground, or was raised by fome other perfon not in his family. But it is provided, that every proprietor of high and wet muirlands, the heath upon which frequently cannot be burnt fo early as the 11th of April, may, when fuch lands are in his own occupation, burn the heath upon the fame, at any time between the 11th and 25th of April, without incurring any of the penalties before mentioned; and when fuch lands are let, the proprietor, or his factor, may, by a writing, authorife his tenants in fuch lands, to burn the heath thereon, at any time between the 11th and 25th days of April, without incurring any of the faid penalties. The writing authorifing such burning must previous thereto be recorded in the fheriff or steward courtbooks of the county within which the lands are, upon payment of the ufual fees'. No penalty fhall be recovered, unless the profecution be commenced within fix months after the offence committed "."

As to the mode of proof, the penalty, the appeal, finality of the feffions, these things are regulated by the fections of the ftatute which are inferted above ".

CHAP. XIII.

IN GEN

ERAL.

Of the Laws concerning the Fisheries.

THE

I. HE amusement of fishing, like that of hunting, was by the civil law a common right': and, in the case of common fishes, that is, those which are not reckoned inter regalia, it still remains fo by the law of Scotland.

THE right of catching common fish, therefore, requires "no fpecial conceffion by the king, or other fuperior, feeing there are common freedoms of every nation to fish in the fea, or into brooks and rivers, for common fishes " Without any special clause in their charters, proprietors may fish in the waters that run through, or bound, their property *.

a Inft. de Rerum divifione et ad quis earum dominis, § 2. See Vinnius' Commentary thereon.

De Feudis, Lib. i, dig. 16, § 38. Per pifcationum reditus non quafcunque pifcium commoditates fed

tantummodo falmonum qui in fluminibus capiuntur, intelligendas puta

mus.

c Stair, Inft. B. ii, t. 3, § 69.
d Bank. B. ii, t. 3, § 3-
4

& I.

IN GEN

-COMMON

FISHES.

fenfe the

right of

Neither to proprietors is this right otherwife exclufive, except indirectly, that they can prevent every other perfon from com- ERAL ing at all upon their grounds, whether to fish, hunt, or for any other purpose of amufement. In this fenfe only it is that the right of fishing is inherent in the property of the In what adjacent banks, or to be confidered as a pertinent thereof; common fishes being truly res nullus, and liable to be law- fihing is fully catched by any perfon ftanding on a highroad or other public ground contiguous to the ftream. Nay, farther, as in ty. the cafe of hunting, if a man trefpafs on the property of an- Fishes not other, without his confent or against his will, the fish which property. he catches will be his own property, though he may be liable in damages to the proprietor for intruding on his ground.

inherent in

the proper

BUT public rights, or those totius populi, were transferred Crown may give exclufby the feudal law to the royal perfon, ut qui patris patria et ive right of taking compopuli tutoris perfonam fuftinet. Hence it has been decided, mon fishes. that a trout-fishing, for example, may become exclufive pro- Troutperty; nay, farther, that it may be referved from the grant fishing. to the lands, and transferred to a third party; fo alfo in

and their authors had, by virtue of
their titles to the lands, been in the
immemorial practice of catching
trouts with nets and rods in the river
ex adverfo of their respective proper-
ties;" and concluded, that they had
a right fo to fish, or " in fuch other
manner as to them might feem pro-
per; and that he ought to be pro-
hibited from the exercife of trout-
fishings ex adverfo of their lands."

The court feemed unanimous in
the opinion, that the right of trout-
fishing in a river, though naturally
inherent in the property of the adja-
cent banks, fo as to accompany lands

the sea, the crown may grant to individuals the exclufive right of fishing within certain limits, as, for example, the -COMMON exclufive right to a particular fishery of oysters.

IN GEN

ERAL

FISH.

§ 2.

SALMON

-inter regalia

II. SALMON fishings are understood in Scotland, to be inter regalia minora; in this sense, that they do not país as part and pertinent of land, but require an express grant to A general take them out of the crown. This rule is in practice so far claufe, cum relaxed, that a general clause, cum pifcationibus, followed pifcationibus. with poffeffion, is held to be a fufficient title for acquiring right to a salmon fishing by prescription ".

A RIGHT to fish falmon in the fmall rivers, in which a few fishes are only now and then got, and which may rather be called a right to take falmon, is commonly given along with the lands adjacent to fuch rivers; in which cases, the fishery, though no pertinent of the lands, is yet never granted but along therewith.

IN great rivers, however, fuch as the Tay, where there is

as part and pertinent, might yet be
referved from the grant, or trans-
ferred to a third party, either exprefs-
ly or by prefcription; and that trouts
were res nullius in this fenfe only,
that any perfon ftanding on a high
road, or other public ground conti-
guous to the stream, might lawfully
catch them.

Some of the judges thought the
claufe" other fishings" in the de-
fender's charters fufficiently exprefs-
ive of the exclufive right of fishing
trout on the banks in question: which
others did not admit; but all seemed
agreed, that if he or his authors had
that exclufive right, it had been loft
by difufe.

The court pronounced the following interlocutor:

"In refpect that fir James Col. quhoun's right to the falmon-fifhirg is not difputed in this caufe. find he has right to the falmon-fifhing in the river Leven, where it runs through the property of the purfuers: find the purfuers have a right to fish trouts oppofite to their respective properties, with trout-rods or handnets, but not with net and coble, or in any other way that may be prejudicial to the falmon-fifhing belonging to fir James Colquhoun, the defender."

h Erfk. B. ii, t. 6, § 15.

SALMON

WHEN IT

GOES

ALONG

fuch fishing as to be the subject of a separate grant, such grants were frequently made not only to the proprietor of the adjacent bank, but to any person, whether he had the adjacent lands or not, there being no connection between WITH THE the lands and fishings other than what may be called a defcriptive connection.

LANDS.

Drawing

ACCORDINGLY, charters or grants of lands are ever underftood to imply a refervation of the right of the crown to grant, along with the fishery, the privilege of drawing nets upon the banks; without which, the right of fishing, not bank. given along with the lands, could not be exercifed'.

nets on the

When is

the grant of

exclufive of

WHERE a grant is made of a falmon fishery in any part of a great river, it depends on the terms of the grant, whe- a falmon ther or not it be exclufive of all future grants in that part of the river. In general, a grant of the fisheries in the river, or other fuch parts of the river, without limiting the grantee to the grants? drawing his nets on one fide, conveys the whole fisheries, and implies a power to draw on either fide, though not mentioned in the grant, as what paffes as a confequence of the right of fishing. But where a right of fishing is granted Power of drawing on with power of drawing on one fide, (the ufual form of limit- one fide of ing the fisheries to one fide), the right remains with the the river? crown to confer, by a pofterior grant, the fifheries on the oppofite bank.

THE mode of exercising these rights of falmon fishing has not been left to the difcretion of individuals, but as an important object of public interest, has been anxiously regulated by many enactments.

It was early the aim of the legislature that the fifhing CLO hould be difcontinued at certain feafons of the year, thence