86 SALMON-FISHERY OF SCOTLAND. 



were of little value, the owners of them, in purchasing their 

 properties, paid as little for them : and if they paid nothing 

 for ideal fishings, illegal in the very Grants, and which in most 

 cases had no actual existence, is it just that they should be 

 allowed, by new fishing machinery, to extinguish, or to trans- 

 fer to themselves, the properties of their neighbours properties 

 which are in every respect as much entitled to legal protection 

 as their own lands, or any other species of property ? A man 

 may improve, as we have already remarked, a land estate 

 without any injury to others, but he cannot improve his salmon- 

 fishery in a part where others have rights by new fishing 

 engines, without occasioning a corresponding diminution of 

 their fisheries ; and this we conceive to be an unanswerable 

 reason, in justice, why the usage of the fishery by net and 

 coble, under which the whole fishing properties were acquired 

 or purchased, should not be departed from. 



When stake-nets were introduced into the estuary of the 

 Tay, the upper heritors, however, whose fisheries were threat- 

 ened with being rendered utterly useless by the interception 

 of the fish, and which had in fact declined exactly in propor- 

 tion to the increase in the number of the stake-nets, as has 

 been already shown, instead of proceeding against these engines 

 on the ground of the common law, founded on the usage of the 

 fishery, or upon the mere plain principles of justice, either of 

 which ought to have been quite sufficient for their purpose, 

 had recourse to certain ancient Statutes of the Scottish Legis- 

 lature, by which yairs and similar engines are prohibited " in 

 waters where the tide ebbs and flows, as destructive of the fry 

 of all fishes.' 7 



We shall not trace all the lengthened course of litigation 

 which took place in this celebrated Case, which occupied the 

 attention of the Court of Session for so long a period of time. 

 It was, in truth, a Case of mere quibbling and sophistication 

 from one end to the other. Great lawyers made fine speeches, 

 replete with eloquence and with nonsense, which, as is often 

 the case, left the matter in greater obscurity than they found 

 it. The meaning of the word " Water," in the statutes, was a 

 puzzle of the very worst kind. - Did it mean waters in general, 



