Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALMON FISHING.
Subject_3 Regulation of the Salmon-fishing upon the Annan. Demolition of a mill-dam dyke erected by an inferior heritor, refused. The stenting of nets, either entirely across the river, or placed alternately from side to side, but overlapping one another so as to obstruct the fish from getting up, found to be illegal, and prohibited. The placing of other engines or contrivances, which frightened and deterred the fish from coming up the river, likewise prohibited.

Duke of Queensberry and Others
v.
Marquis of Annandale

Date: 14 November 1771

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[Fac. Col. V. 364; Dictionary, 14,279.]

Gardenston. The defender had right to erect the dam-dyke. As to the slop, the Act of Parliament defines its nature with much accuracy. With respect to the size of the slop, I would assoilyie; because the pursuers have not proved that a greater slop could have been made without prejudice to the going of the mill. As to the mode of fishing, in so far as nets of a new construction are used for taking fish, such fishing is lawful, although many more fish are thereby intercepted, to the prejudice of the superior heritors; but I distinguish between nets for catching, and nets for interrupting the course of the fish; the latter are unlawful engines even in cruives, when permitted. There must be a slop a fortiori in this case, where no grant of cruives.

Pitfour. Every proprietor may build a mill, providing he does not prejudge the right of others. The Act 1696 applies to mills to be hereafter built as well as to those already built; but a right to make a dam-dyke does not give a right to prevent the fish from passing up. The legislature has required a slop as far as can be made, without prejudice to the mill: it is not proved that the slop could have been deeper without prejudice to the mill. As to the mode of fishing, every lawful mode of catching fish, without emulatio vicini, is permitted. It was so determined in the case of Findhorn; but nets are only to be used in the time of fishing: at other times they are nuisances and unlawful engines.

Coalston. I agree with the general principles laid down; but still the difficulty remains as to the application. A trout-net is equal to a cross-dyke, and plainly unlawful, because it intercepts, but does not catch the fish: here there are also overlapping-nets: If they remain at all times of the tide, they are unlawful. Perhaps they are lawful, if the fishers are in the course of catching fish as long as they remain in the river.

Monboddo. The Legislature considered the benefit of salmon-fishing, in general. Stent nets are worse than a cruive-dike, for they absolutely stop the course of the fish,—prevent their going up to spawn,—and, I believe, estrange the young fry from the river: for it is said that salmon only frequent that river in which they were spawned.

Auchinleck. The inferior heritors might as well put up an iron rail across the river, as use the nets they now use.

Kaimes. Lord Coalston's difficulty is owing to a mistake: Salmon are not caught in such nets as those in question, though such nets might serve to hang herrings.

President. I should even doubt as to hanging nets constantly cross the river, although salmon were thereby occasionally caught; but here the fact is, that the salmon were stopped, not hanged in the meshes: This is not fishing, but obstructing the course of fish. I doubt also as to hanging a net at the arch of a bridge; for that is, in effect, damming and laving, which is prohibited by law.

On the 14th November 1771, “The Lords assoilyied the defenders, as to the caul: Found, that, although the inferior heritor has right to use all legal engines and methods for catching fish, conform to law and possession, yet he has no right, either in time of actual fishing, or at any other time, to erect any engine, or use any method not for the purpose of catching fish, but for preventing or obstructing them from passing up the river; and therefore found that the methods used of stenting nets across the river, either reaching from side to side, or overlapping, or stenting across the arch of Annan bridge, or of putting in leisters, or stretching a rope with bones, are illegal methods, prejudicial to the superior heritors, and destructive to the fishing, and ought to be discontinued.”

Act. A. Crosbie, &c. Alt. W. Baillie, &c.