Guidance on evidential requirements for salmon fishing titles

The Keeper does not prescribe the evidence required to secure the registration of salmon fishing titles since circumstances will differ in relation to each title. However, when submitting a salmon fishing title you should consider whether the following questions are answered and, if not, what evidence is required to support the title to be presented:

Transfer of ownership

Is there a valid prescriptive progress of title?

In other words, has salmon fishing been specifically included in each conveyance of the property within the prescriptive progress?

Extent and identification

Can the extent of the salmon fishings be identified on the Ordnance Survey map?

The following are examples of descriptions with comments on how these are generally viewed by the Keeper.

"the right to fish for salmon or fish of the salmon kind between the points marked A and B to the medium filum of the River Tweed".

This is acceptable provided the application includes a plan clearly identifying the location and extent that is supported by a valid progress of title habile to include the area.

"the right to fish for salmon or fish of the salmon kind in the River Tweed ex adverso the land…".

This is acceptable if the land is immediately bounded by the river and the extent of the land is clear from the description in the title deeds. There is a presumption that the title extends only to the medium filum. However, in cases where the extent of the salmon fishings is not immediately bounded by the land, a plan should be provided.

"the right to fish for salmon or fish of the salmon kind in all of the rivers, tributaries and lochs within and bounding the estate of X".

This form of description of salmon fishing is acceptable for registration purposes for the salmon fishing that lies within the estate, as it describes a right to salmon fishing within an extent (the estate interest) that will be identifiable. However, it is not necessarily sufficient in relation to the salmon fishings bounding the estate. It may be necessary to identify these by production of a plan of the area which is possessed. The Keeper will pay particular attention to the evidence of possession in such cases.

"the right to fish for salmon in Loch X ex adverso the subjects".

This is unacceptable since the term "ex adverso" is open to interpretation and will not necessarily define the extent in relation to the Ordnance map. It may be necessary to identify the fishings by production of a plan of the area which is possessed.

Has the Crown alienated title to the fishings?

If the salmon fishing interest derives from a specific Crown grant, no further evidence of alienation is required. A grant from the Crown cannot be lost by non-use. As a separate tenement, it must be conveyed with each transfer and if it is not then the right to ownership is lost. However, unless the Crown grant is recent, this will require to be supported by evidence of possession.

If the salmon fishing interest derives from a general Crown grant that is habile to found prescription for salmon fishings (such as a barony title), the Keeper will require evidence of possession to support the title and if this is not sufficient then she may require further evidence of alienation.

If there is no specific or general Crown grant, then a request should be made to the Crown Estate Commissioners (The Crown Estate, 6 Bells Brae, Edinburgh EH4 3BJ). The Commissioners, if they are satisfied that the Crown has no claim, will issue a letter confirming that the Crown will not seek to challenge the particular salmon fishing interest. The letter to the Crown Estate Commissioners, their response and any associated correspondence, and in particular the plans submitted with the request, should all be submitted with the application.

Is there evidence of prescriptive possession?

The nature of salmon fishings is incorporeal. Neighbouring proprietors may lay claim to title and possession of rights to salmon fishing in the same extent of water. For this reason, the Keeper requires to consider evidence of possession. The nature of the evidence will reflect the nature of possession and may take the form of catch records, leases, licences or affidavit evidence from individuals who can attest that the salmon fishing interest has been held peaceably and without challenge. The evidence of possession must relate specifically to the extent of the salmon fishing interest for which registration is sought. The evidence of possession must cover the prescriptive period of 20 years. However, if the alienation from the Crown requirement mentioned above is met, the period is reduced to 10 years. Section 1(5) of the Prescription and Limitation (Scotland) Act 1973 applies.

Other issues

Listed below are some other points that tend to arise when dealing with applications involving a salmon fishing interest. Agents should also consider whether these require further consideration, depending on the nature of the salmon fishing title.

• Natural water boundaries

An article published in The Journal in May 2002 provides more detail on the Keeper's policy in respect of natural water boundaries. In brief, if an interest is bounded by and, by reference to the prior titles, is tied to a natural water feature, an exclusion of indemnity note will be included in the property section of the land certificate. This is to protect the Keeper against possible future claims on her indemnity based on movement of the natural water feature. An exclusion of indemnity in respect of a natural water boundary will be considered separately from the consideration of evidence of alienation and evidence of possession mentioned above.

• Pro indiviso shares

The Keeper's policy, reached after consultation with the Joint Consultative Committee, is to reject applications which are founded on a conveyance of a salmon fishing interest where the right to fish is restricted to certain days of the week or designated weeks. Such qualifications on occupation and exercise of the right are inconsistent with the unrestricted nature of a real right of common ownership. In the last few years, however, a number of such schemes have been reorganised so that either individuals hold a pro indiviso right in salmon fishings or a trust or company hold ownership of the fishings and control the use by individual rod holders. The Keeper is happy to discuss individual reorganisation schemes with any interested parties.

• Other (non-salmon fishing) fishing rights

Trout and other fishing rights are deemed to be pertinents that run with the land and will not be reflected in the land certificate.

Contact point for assistance

Any enquiries regarding the Keeper's requirements in respect of registration of a salmon fishing interest should be made using the Registration Contact Points - Land Register in the Professional Section on ros.gov.uk.

www.ros.gov.uk/professional/registration/reg_contacts/landregister.html