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Scottish Court of Session Decisions >>
Falconer of Newton v Scot of Comiston. [1701] Mor 14288 (15 November 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Mor3314288-023.html Cite as:
[1701] Mor 14288
The cruive-dike ought to be only three ells broad, and a foot and a half high above the water, as the stream runs at ordinarytimes from the 15th of April to the beginning of May.
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There being mutual declarators between Falconer of Newton and Scot of Comiston, as to their salmon fishings on the water of Northesk, and the probation being advised, the Lords found, That Comiston, in his fishings acquired from Graham of Morphy, had not observed the distance of hecks enjoined to be in cruives by the acts of Parliament, viz. three inches wide, (though one of the old acts, by mistake, calls it five inches), for it was proved that Comiston's were not two inches wide; therefore the Lords decerned him to demolish the same, and to put them up of the wideness enjoined by law; and likewise found he had observed the Saturday's slop, as appeared by the probation, and therefore assoilzied him from that part of Newton's declarator; and farther declared, that his cruive-dike ought to be only three ells broad, and a foot and a half high above the water, as the stream runs at ordinary times, from the 15th of April to May, neither when it is in speat, nor too shallow and low; and ordained the cruive-dike to be so altered and regulated, both in its height and breadth; and, in the last place, the Lords modified Newton's damage by these contraventions, conform to what was proved to have been the profit made by the salmon fishing in former years, according to the number of the barrels they made, which were proved to be worth 50 merks per barrel at that time. See the like controversy decided the 26th of January, 1665, the Fishers on Don and the Town of Aberdeen, No. 107. p. 10840. voce Prescription; and in Stair's Instit. B. 2. T. 3. And in the foresaid cause of Newton's and Comiston's, the Lords found the cruive-dike behoved to be built sloping from the top till it was two feet beneath the water, and then from that perpendicular to the bottom.
Fol. Dic. v. 2. p. 361. Fountainhall, v. 2. p. 123.
