Scottish Court of Session Decisions

Subject_1Fishing
Subject_2Salmon
Subject_3Solway
Subject_4Privileged Fixed Engine — Solway Salmon Fisheries Commissioners (Scotland) Act 1877 (40 and 41 Vict. cap. 240), sec. 5 — Situation and Description of Fixed Engine where Shifting Sand.
Facts:

By section 5 of the above Act it was provided—“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.” The Newbie fishings extended along the shore of the Solway between Stennar Scaur, near Annan Waterfoot, on the east, and the junction of the Lochar and the Solway on the west, being a distance of about five miles. It appeared to the Commissioners upon the evidence that “Within the limits of said fishery the shore is liable to great alteration from sudden changes in the course which the waters of the streams and tidal waters take within the firth. The course of the fresh and ebb waters may be half-a-mile farther north, or half-a-mile farther south at the end of a season than it was at the beginning. These changes are attended with great shiftings of the sand, which accumulates at places formerly free of it, and is removed from places lately covered. If at any particular point there be for years no alterations of the channel or shiftings of the sand, the accumulations of it may come to be covered with grass, and above high water-mark, yet the next year, or even in the course of the same season, the whole may be swept away and there may be laid bare the old steading of a stake-net disused for years. Sometimes lakes or lochs are left between the new channel and high-water mark, and these in turn get filled with sand. From these causes nets set in different seasons on certain sites within the fishery vary in length, and sometimes cannot be set on the old sites, and it has therefore been the practice to set them in various places within the limits of the fishery so as to suit the position of the channel at low-water, near to which the nets must reach.” The nets in question which were found to be privileged consisted of ranges of pockets or chambers in which the fish were caught, each range containing from one to ten pockets, and each pocket having a relative flood, ebb, and cross arm.

The proprietor of the nets maintained—(1) that each pocket, and not each range of pockets, ought to be certified as a “privileged fixed engine;” and (2) that owing to the shifting nature of the sands he was entitled to have certificates for the number of pockets, with relative flood, ebb, and cross arms, and hooks, proved to be privileged, situated within the bounds of the fishery; and that these should be stated in the certificates to be situated in the waters and on the shore or sands of the Solway Firth in Scotland, extending from Stennar Scaur, near Ann an Waterfoot, on the east, and the confluence of the Lochar and the Solway on the west; or at least that the certificates should bear, after the description of the position of the nets, the words “or as near thereto as the nature of the foreshore will admit,” or words to that effect.

The Commissioners held—(1) that each range of pockets, and not each pocket, constituted a “fixed engine;” (2) that a certificate permitting a change in the

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site of the range in a lateral direction would be illegal under the Act of 1877, but that such a change seaward was legal. They therefore in the certificates described precisely the situation and direction of each fixed engine and of its pockets by reference to a copy of the Ordnance Survey map, and added these words—“With liberty to place the whole of said range of nets and pockets, with relative hooks or any portions of said range and pockets, either continuously or separately, at any place or places between high and low water-mark, in the line or direction indicated on the said sheet of the Ordnance Survey, or so near thereto as to be substantially in the said direction.” The Court on appeal affirmed the determination of the Commissioners on the first point, but on the second point remitted “to the Commissioners to amend the certificates granted to the appellant by substituting in each for the words” or so near thereto as to be substantially in the said direction,” the words “or so near thereto as to leave them substantially on the same banks or scaurs on which they were in the years 1861, 1862, 1863, and 1864” (being the years directed under the Act to be taken into account), “as shown upon said sheet of the Ordnance Survey, and that even if the sands come to be intersected by what are called lakes or lochs.”