232 REPORT OF COMMISSIONER OF FISH AND FISHERIES. [4] 



the abolition of a practice which was really illegal at first, and which 

 has only acquired a semblance of right because, owing to the uncertainty 

 of the law and the want of proper opposition, it has been allowed to 

 exist beyond the prescriptive period. The appropriation of the waters 

 of rivers and streams by manufacturers, without any title, and totally 

 oblivious of the rights of others, is a case on all-fours with that under 

 discussion. Theirdoing so destroyed in many cases the fishings enjoyed 

 by riparian proi)rietors, and deteriorated in all cases the value of the 

 land through which the streams passed; but for want of proper chal- 

 lenge, and a notion that it would not do to interfere with industry, the 

 illegal encroachments were allowed to go on till they obtained a hold 

 which it is difficult now to shake off. The dispossessed proprietors had 

 no compensation here either. No doubt many of the present proprietors 

 of coast fisheries have paid large sums for their fishings in the belief 

 that they were legal, and it might be hard to punish them for the fault 

 of their predecessors. These cases might, perhaps, receive extra con- 

 sideration, but they do not affect the public question of the legality or 

 illegality of the fixed nets ; and if that question were decided against 

 the legality, there can be no doubt that there would be no right to com- 

 pensation. On the contrary, there would arise claims of damages on 

 the part of those who had suffered from the usurpation. 



There is a strong preponderence of evidence and presumption that 

 these nets were unlawfully erected at first against the spirit, if not the 

 letter, of the statutes, and that therefore prescription should not be held 

 to legalize them. Besides, prescription properly only applies to private 

 rights, and has never been, and is not now, admitted where it is "hurt- 

 ful to the commoun weill." 



The argument that the abolition of fixed nets would seriously reduce 

 the food supply of the country, supported, as it is, by the high authority 

 of the commissioners of 1870, Is, of course, entitled to greater considera- 

 tion. But it is fair to state that there is a good deal of evidence on the 

 other side, and it is backed up in many cases by actual proof. A use- 

 ful pamphlet, published by Mr. Alexander Jopp, in 1860, contains a 

 large quantity of valuable statistics relating to the Aberdeenshire fish- 

 ings bearing upon this point. It is shown conclusively that salmon had 

 greatly decreased, both in number and weight, since the introduction 

 of stake-nets, though of course his results referred more particularly to 

 the rivers and not to the sea. But the number of boxes of salmon ex- 

 ported tells the same tale, and a stronger proof still that the total num- 

 ber of fish is diminished by stake-nets is derived from the fact that 

 several proprietors of fixed nets on the coast obtained a large increase 

 of the rentals of their whole fisheries by giving up these fixed nets. 

 The Duke of Eichmond, for example, increased his rental from £6,000 

 to £13,000 in eight years by removing his fixtures at the mouth of the 

 Spey, and the Duke of Sutherland and Earl of Fife, by adopting a simi- 

 lar policy, attained similar results. There are proofs of the same kind 



