Scottish Court of Session Decisions

This was an appeal from a decision of the special Commissioners appointed under the Solway Salmon Fisheries Commissioners (Scotland) Act 1877 (40 and 41 Vict. cap. 240).

By that Act it was enacted that (sec. 3) “subject to such appeal as is hereinafter mentioned, the Commissioners appointed under this Act shall inquire into the legality of all fixed engines erected or used for the taking of salmon in the waters and on the shores of the Solway Firth in Scotland, as the same have been fixed under the authority of ‘The Salmon Fisheries (Scotland) Act 1862,’ and in the rivers flowing into the same, and shall abate and remove all such fixed engines as are not proved to their satisfaction to be privileged as hereinafter provided. “Further, by sec. 4, that ‘In this Act and in The Salmon Fisheries (Scotland) Act 1862,’ and in any Act incorporated therewith, ‘fixed engine’ shall include any net or other implement for taking fish fixed to the soil or made stationary in any other way, not being a cruive or mill-dam; and ‘privileged fixed engine’ shall only include such fixed engines as were in use for taking salmon during the open season of one or more of the years 1861, 1862, 1863, and 1864, provided always that no person shall, by proving the use of different fixed engines during the said years, or any of them, be allowed to maintain a number of privileged fixed engines exceeding the greatest number of such engines in use by him during any one of the years foresaid. “Further, by sec. 5,” Where a claim is made by any person on behalf of a fixed engine that it is privileged, the Commissioners shall, on proof being given to their satisfaction that such engine is in whole or to any extent privileged, certify to that effect, and shall state in their certificate the situation and also the size and description of the engine so far as the same is privileged.”

There was an appeal under section 8 of the Act, which was allowed, against the decisions of the Commissioners to either Division of the Court of Session. The decisions of the Court of Session, as well as those of the Commissioners which were not appealed against, were by sec. 16 declared to be final, and not subject to review.

The appellant had claimed “two certificates” for two stake-nets in the waters of the Solway Firth ex adverso of his lands of Kirkbride and others, in the parish of Kirkmabreck and stewartry of Kirkcudbright, as privileged engines under the Act.

The Commissioners having received evidence and heard parties, pronounced a decision in which they “find that it has not been proved to their satisfaction that the said fixed engines are privileged: Find that the same are illegal, and do hereby, acting under and in pursuance of the ‘Solway Salmon Fisheries Commissioners (Scotland) Act 1877,’ order the said fixed engines to be abated and removed on or before the 30th day of May 1879.”

The claimant appealed. The following was the statement of facts in the case settled by the Commissioners:—

“The Commissioners held the following facts to be proved:—The stake-nets in question are placed on the east side of Wigton Bay, ex adverso of the claimant's lands of Kirkbride and others. At low water the nets are on dry sand, in the position laid down in sheet 42 of the Ordnance Survey map for the county of Kirkcudbright. They are both at a considerable distance from the channel by which the river Cree discharges itself into Wigtown Bay, and are the nearest nets to the north of the junction of the rivers Cree and Bladenoch. At high tide they are entirely covered with salt water to a considerable depth. The said lands of Kirkbride are held on a title cum piscationibus, and the claimant and his predecessors have from time immemorial, and particularly during the open seasons of the years 1861, 1862, 1863, and 1864, been in use to fish for and take salmon with fixed engines at or about the places in question. As to the Cree and its estuary, it was proved that as high up as the Cassencarie nets, which are further up the estuary than those of the claimant, flounders and other sea fish were frequently caught, but not fresh water fish even of the salmon kind, salmon and sea trout excepted. There was evidence even of a shark becoming entangled in one of the nets. Marine plants are also found in situ, and not merely as drift-ware, and the large proportion of salt water which must be found is seen at a glance by inspecting the Ordnance or Admiralty maps, and was observed on the spot by the Commissioners.

Witnesses adduced by the claimant stated that they considered these nets to be in the Solway. But the Commissioners hold that they are not, being of opinion that the proper estuary of the Cree extends seaward to the junction of the rivers Bladenoch and Cree, and that while fixed engines immediately to the seaward of that point would be lawful as being in the open sea, those on the north or landward side, including the claimant's, are not lawful, as being in an estuary. Had the Commissioners been satisfied that the said stake-nets were situated in ‘the water of Solway,’ in the sense of the Act 1563, c. 68, they would have considered the claimant entitled to certificates for the said two stake-nets, as privileged fixed engines within the meaning of ‘The

Page: 765↓

Solway Salmon Fisheries Commissioners (Scotland) Act 1877.’

The Commissioners were of opinion that the object of the Salmon Fishery legislation of and since 1861 as regards the fishings on or ex adverso of the southern counties, stated shortly, was—to determine, within certain geographical limits, the extent to which proprietors of salmon-fishings were to be allowed for the future to exercise that right by means of fixed engines, the measure of that extent being the number of such engines legally used at a certain time.

Prior to that legislation fixed engines could not be legally used on the southern coast of Scotland unless in the open sea, or on the open shores and deep sea of the Solway Firth, or in such narrow waters as could be considered the ‘Waters of Solway’ in the sense of the Act 1563, c. 68.

If the geographical limits referred to in the recent Acts embrace any waters which could not previously have been regarded as Water of Solway, the giving privilege to all fixed engines within those enlarged limits would have the effect of legalising engines which might have been declared illegal and removed at any time prior to 1861.

An interpretation of the statutes leading to a result thus contradicting what they consider to have been the policy and scope of the legislation which the Commissioners have been appointed to carry out is one which they could only accept if declared in the most explicit language, and a careful comparison of the language of the different statutes seems to require them to reject it.

The Commissioners thus felt it their duty, in regard to all fixed engines situated in places where the tide ebbed and flowed, to consider whether they would have been legal irrespective of recent legislation, and in many cases, between the Sark and the Mull of Galloway, they had the advantage of evidence being led and discussed by opposing parties or their agents or counsel. In other cases—the claimant's for example — there were no contradictors.

No case was disposed of till after a general inquiry had been made in each of the counties of Dumfries, Kirkcudbright, and Galloway, and after they had considered the evidence as a whole, the Commissioners resolved to allow further evidence and argument, and of this permission several — among others the claimant — availed themselves.

The Commissioners examined and called the attention of parties to maps published in the seventeenth and eighteenth centuries, as well as the leading modern maps, and some additional ones were produced by the claimant. They also called attention to the leading gazetteers, and to the descriptions of lands and fishings in the titles and leases produced by the parties, and read proofs referred to or produced by various parties in litigations in which their right to fish for salmon under titles cum piscationibus had been called in question.

Although each case had to be decided separately, it was felt that it would be important if an opinion could be arrived at as to what was formerly understood to be the limit of the Solway Firth, because although there might be places within it that were not to be considered ‘Waters of Solway,’ there could certainly be none outside it which could be called by that name. In coming to a conclusion as to what was to be regarded as the outer limit of the Solway Firth before 1862 the Commissioners would have been very much influenced by the fact that a line from the Mull of Galloway to the English coast had been named as the limit by bye-law of the Commissioners of 1862, but for a statement by Mr James Leslie, C.E., one of their number (which statement has been published in a blue-book issued by Government—Parl. Papers, 1871, vol. xxv. M. S. p. 617) that neither he nor the other Commissioner whose names were appended, and whose names were the only names appended, did in fact sign the bye-law, and that they had ‘fixed on what to them seemed, whether considered geographically or nautically, to be really and truly the Solway Firth, viz., everything which is within the fauces terrœ, as defined by a line drawn from Rosshead lighthouse on the north to St Bees lighthouse on the south.’

The present Commissioners have practically come to this last conclusion.

The oral testimony as to where the Solway Firth commences is conflicting.

They consider that the great preponderance of authority of maps, ancient and modern, and of gazetteers, is against holding that any river west of the Dee flows into the Firth of Solway.

This view is confirmed by the fact that in two of the litigations referred to as to the exercise of the right of salmon-fishing in this Fleet or Fleet bay from the fresh water to the mouth of the bay, there were proofs taken, and not a single witness once mentioned the word Solway—a remark which equally applies to the still longer proof in the action between the Earl of Galloway and the burgh of Wigtown as to fishings on the opposite side of the Cree from the claimant's fishings. The claimant's titles never refer to the Solway as the locus of his fishings or the boundary of his lands.

Fishings of the Earl of Galloway are referred to in his titles as ‘fishings in the water of Cree’—none are referred to as in the Solway—and his lands are described as bounded, not by the Solway, but by the ‘Firth of Cree and the Bay of Cruggleton,’ while the boundary of the burgh of Wigtown is described in its charter of 1457 as the ‘Mydstreme aquae de Cree usque ad mare de Ireland,’ without any allusion to the Solway—in marked contrast to the titles of Annan and the fishings beyond to the east, when the name Solway enters into the boundaries, and fishings in the Solway are expressly granted.

Add to this that the reason assigned for exempting the ‘Waters of Solway’ from the ordinary rules for the preservation of salmon—viz.,. that as the English could not be made to observe them, the benefit of the rules would accrue to the English, has no application to the distant waters of the Fleet or the Cree.

The Commissioners in these circumstances found that the fixed engines claimed by the appellant were not in the Water of Solway, but in the estuary of the Cree, and therefore illegal.

The appellant maintains that by the terms of ‘The Solway Salmon Fisheries Commissioners (Scotland) Act 1877’ the area within which the Commissioners are authorised to grant certificates on the one hand, or to order fixed engines to be abated and removed on the other, is conclusively I fixed under the authority of ‘The Salmon Fisheries

Page: 766↓

(Scotland) Act 1862,’ and the ‘Salmon Fisheries (Scotland) Act 1868,’ so as to exclude all inquiry into the meaning of the phrase ‘Water of Solway’ under the Act of 1563, and that the stake-nets in question being situated within the said area, and satisfying the other conditions required by the statute to entitle the appellant to certificates for them as privileged fixed engines within the meaning of the said Act of 1877, the appeal ought to be sustained. Further, it is maintained that, even if it be relevant to inquire into the meaning of the phrase ‘the Water of Solway’ as used in the Act of 1563, the stake-nets in question are proved to be situated in the Water of Solway within the meaning of the said Act of 1563, so far as that can be proved at so great a distance of time; or otherwise, that they are on the shore of the open sea.”

The question for the decision of the Court was—“Whether on the facts above stated the appellant is entitled to have the said fixed engines, or either of them, certified as privileged fixed engines under the said Act of 1877.”

The enactments relied on by the appellant are quoted in the opinion of the Lord President infra.

Argued for the appellant—The limit of the Solway Firth seaward was now conclusively settled to be a straight line drawn from the Mull of Galloway to Hodbarrow Point in Cumberland. The Act of 1868, sec. 10, and Sched. B. made that clear, and destroyed the effect—if in law it had any effect — of Mr Leslie's statement that the Commissioners of 1862 never did in fact sign or approve of the bye-law to which their names were appended. The Act of 1868 ratified the bye-law without regard to its origin. The duty of the Commissioners of 1877, therefore, was to take the limit so fixed, and settle what nets within that limit were legal, in terms of section 4 thereof. They had nothing to do in the way of fixing the limit. But even if the views of the Commissioners were sound, it was ultra vires on their part to order the removal of the nets, for on their theory the nets must be held to be outside their jurisdiction.

Authorities— Murray v. The Earl of Selkirk, June 9, 1824, 2 Shaw App. 299; Oswald v. M' Whir, April 13, 1835, 1 Shaw and Macl. 399.

At advising—