Scottish Court of Session Decisions

By a bye-law dated 24th December 1862, and in terms of the 6th and 15th sections of the Salmon Fisheries (Scotland) Act 1862 (25 and 26 Vict, cap. 97), the Commissioners appointed under that Act fixed the limits of the district of the river Nairn, and the point of division between the upper and lower proprietors.

The 18th section of the said Act provides—“Within three months after any bye-law constituting the district shall have been published, the sheriff shall direct the sheriff-clerk to make up a roll of the upper proprietors, and also a roll of the lower proprietors in each district; … and the sheriff shall thereafter direct the sheriff-clerk to call a meeting of the upper proprietors, and also a meeting of the lower proprietors, at such times and such places as he shall direct; … and the upper proprietors and lower proprietors present at such separate meetings respectively shall elect not more than three of their number to be members of the district board; … and the members so elected, with the proprietor having the largest amount entered in the valuation roll as the yearly rent or yearly value of fisheries in such district, shall constitute the district board; and the last-mentioned proprietor shall be the chairman of the board, and have a deliberative

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as well as a casting vote; and the election of such board shall be notified by the chairman of such respective meetings to the sheriff-clerk within seven days from the date of the same, and the sheriff shall thereafter summon the first meeting of such board for such day and such place as he may fix.”

By the 24th section of said Act it is provided—“Each district board shall continue in office for three years, and members thereof shall be eligible for re-election, and vacancies occurring during such period shall be filled up by the board until the next meeting of proprietors, who shall then fill up the same; and the meetings of the upper and lower proprietors respectively for the purpose of each triennial election of not more than three upper proprietors and three lower proprietors respectively shall be called by the clerk.”

By the 2d section of the Act 26 and 27 Vict, cap. 50, it was provided that the first meeting of the district board should be held at any time within twenty-one days after the first election of the district board under the last-quoted section.

The district of the river Nairn having been defined and constituted by the bye-law before—mentioned, approved on 30th January, and taking effect on 10th February 1863, the Sheriffs of the counties of Inverness and Nairn thereupon, in terms of the 18th section of said Act, directed the Sheriff-Clerks of these counties to make up a roll of the upper proprietors, and also a roll of the lower proprietors, in the district. This having been done, meetings of these proprietors were held at Nairn on 25th August 1863, when three upper and two lower proprietors were elected members of the district board.

The district board having been duly constituted, met at Nairn on 17th September 1863, and thereafter continued to meet from time to time down to 3d March 1873. It was the duty of the clerk to the board to have called meetings of the upper and lower proprietors respectively, within the statutory period, for the purpose of electing a district board for the next three years, all in terms of the said 24th section of the Salmon Fisheries (Scotland) Act 1862. This, however, was not done, and the district was without a board since 1877.

There was no statutory provision for the case of the lapsing of a board through failure to call a meeting within the three years, and Hugh Fife Ashley Brodie of Brodie and Duncan Forbes of Culloden, two of the proprietors in the district qualified under the 18th section of the Act, with consent and concurrence of the whole other upper and lower proprietors so qualified, now made this application to the Court to have the board reconstituted.

It was stated that “having regard to the importance of the salmon-fishings in the district, to the increasing prevalence of illegal fishing, and the greatly increased facilities for disposing of the fish so caught, the proprietors of salmon—fishings in the district deem it of the utmost importance to their interests that the district board should be reconstituted as soon as possible.”

Authority— Campbells, Petitioners, March 17, 1883, 10 R. 819.

The Court pronounced this interlocutor:—

“The Lords having considered the petition, Remit to the Sheriffs of the counties of Inverness and Nairn to direct the Sheriff—Clerks of the said counties to make up a roll of the upper proprietors, and also a roll of the lower proprietors, in the district of the river Nairn, in terms of the 18th section of the Salmon Fisheries (Scotland) Act 1862, and Acts amending the same; direct the Sheriff-Clerks to call a meeting of the upper proprietors, and also a meeting of the lower proprietors, at such times and places as the said Sheriffs shall direct, notice of such meeting being given as provided by the Salmon Fisheries (Scotland) Act 1862; grant warrant to and authorise the upper proprietors and lower proprietors present at such separate meetings respectively to elect not more than three of their number to be members of the district board of said district, all in terms of the said 18th section: Find and declare that the members so elected, with the proprietor having the largest amount entered on the valuation roll as the yearly rent or yearly value of fisheries in the said district, shall constitute the district board of the said district, and that the last-mentioned proprietor shall be chairman of the board, and shall have a deliberative as well as a casting vote; grant warrant to and authorise the Sheriff of said county, the Sheriff-Clerk, and the chairman and the respective meetings foresaid respectively to do the acts set forth in the 18th and 22d sections of the said Salmon Fisheries (Scotland) Act 1862, and the 2d section of the Act 26 and 27 Vict, cap. 50, relative to calling and holding the first meeting of a district board, and decern.”