of law, Roman law and feudal law, for the same institution. Feudal law became the basis for land-holding, but the quality of the attributes - the extent of these rights - was taken from Roman law.133 Of course, the class of regalia was wider than that of Romanres publicae, and some regalia such as salmon fishing, were alienable. But we are concerned with the descendants of the Roman res publicae. Yet it is noteworthy that, in contrast to Scotland, fishing was public at Roman law in a public river. Second, the cases show that in systems that develop by scholarly opinion and judicial precedent, whole areas of law may remain unclear for centuries: from the second century right through to the twentieth. Presumably problems arose but did not interest the scholars or reach a court at a high enough level. The Scottish case Wills’ Trustees v. Cairngorm Canoeing and Sailing School Limited,134 involved riparian owners on the River Spey seeking a declarator that they had exclusive rights of navigation in the stretch that ran through their lands, and asking for an interdict to prevent the sailing school company from paddling its canoes on that stretch. For our purposes the House of Lords held that the Spey was a public navigable river, and that the Crown could not have alienated the right of navigation that it held in trust for the public. Thus, the public right of the sailing school to navigate took precedence over the riparian owners’ private right to salmon fishing. Though there was much citation of old authority such as theRegiam Majestatem, Stair, Erskine, Bankton, and Baron Hume, that authority was extremely vague as to what made a river ‘navigable.’135 Part of the 133 Cf. Alan Watson, Roman Law and Comparative Law7 (Athens, GA, 1991), p. 247. The importance of salmon fishing as a private right in a public river was recognized before there was much reception of Roman law in Scotland. 134 1976 S.L.T. Reports (H.L.) 162. 135 For an instructive discussion of the distinctions ‘private’ and ‘public;’ and ‘navigable and tidal’ and ‘navigable and non-tidal,’see James Ferguson, The Law of Water and Water Rights in Scot-land(Edinburgh, 1907) pp. 99ff., 126ff.
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