of the Fishery Board for Scotland. 



403 



hibited, and discharged from erecting or using stake-nets, paidle-nets, or 

 other fixed engines on the River Nith or estuary thereof, or on the sands 

 and shores between high and low water mark within the limits of the River 

 Nith fixed and defined by the Commissioners acting under the Salmon 

 Fisheries (Scotland) Act, 1862 : and in the event of its being held that the 

 defenders are entitled to erect and use the stake-nets, paidle-nets, or other 

 fixed engines erected and used by them as aforesaid, or one or more of said 

 stake-nets, paidle-nets, or other fixed engines, for the purpose of catching 

 white fish, it ought and should be found and declared, by decree foresaid, 

 that the defenders have erected and used the said stake-nets, paidle-nets, 

 ' or other fixed engines for the purpose of catching salmon, or fish of the 

 ' salmon kind, or of such size and construction, or in such situations, or used 

 1 in such manner and at such times as to prejudice, interfere with, or injure 

 ' the pursuers' rights of salmon fishing ; and that the defenders are not en- 

 ' titled so to erect and use the said stake-nets, paidle-nets, or other fixed 

 ' engines : and the defenders, in the event foresaid, ought and should be 

 ' interdicted, prohibited, and discharged, by decree foresaid, from erecting and 

 ' using the said stake-nets, paidle-nets, or other fixed engines for the purpose 

 ' of catching salmon, or fish of the salmon kind, or of such size and construc- 

 ' tion, or in such situations, or used in such manner and at such times as to pre- 

 ' judice, interfere with, or injure the pursuers' right of salmon fishing : and 

 ' the defenders, in the event foresaid, ought and should be decerned and 

 ' ordained, by decree foresaid, either to remove the said stake -nets, paidle- 

 ' nets, or other fixed engines, or to substitute therefor stake-nets, paidle-nets, 

 ' or other fixed engines, of such size and construction, and in such situations, 

 1 and to use the same in such manner and at such times as not to prejudice, 

 ' interfere with, or injure the pursuers' rights of salmon fishing; and the 

 '.defenders, or such of them as shall appear and oppose the conclusions before 

 ' written, ought and should be decerned and ordained, by decree foresaid, to 

 ' make payment to the pursuers of the sum of £500 sterling, or such other 

 ' sum as our said Lords shall modify, as the expenses of the process to follow 

 ' hereon, conform to the laws and daily practice of Scotland used and ob- 

 ' served in the like cases, as is alleged.' The pleas in law for the pursuers 

 were — ' 1. The stake-nets of the defenders being within the bounds of the 

 ' River Nith and estuary thereof, are illegal, and should be removed. 2. Esto, 

 ' that the said stake-nets are upon the water of Solway, they are illegal in 

 ' respect that there has been no use or custom to take white fish by means 

 ' of stake-nets at the places where they are situated. 3. In any view, the 

 ' defenders are not entitled to use the said nets, or any of them, for the pur- 

 ' pose of capturing salmon or fish of the salmon kind, or to use stake-nets or 

 ' other fixed engines of such a construction and in such situations or manner 

 ' as to prejudice or injure the pursuers' rights of salmon fishing. 4. The 

 ' nets in question being injurious to the pursuers' salmon fishing, the de- 

 ' fenders are bound either to remove the said nets, or at all points to sub- 

 ' stitute therefor nets of such size and construction, and in such situations, 

 ' and to use the same in such manner and at such times as not to injure or 

 ' interfere with the pursuers' rights. 5. The stake nets in question being 

 ' used for catching salmon within the district of the River Nith, as defined by 

 ' the Commissioners acting under the Salmon Fisheries (Scotland) Act, 1862, 

 ' by the defenders, as proprietors or occupiers of a fishery within said district, 

 ' the pursuers, as proprietors of fisheries also within said district, have by 

 ' statute a good title and interest to object thereto as illegal. 6. Generally, 

 ' in the circumstances condescended on, the pursuers are entitled to decree as 

 1 concluded for.' The pleas in law for the defenders were — 1. ' The defenders, 

 ' in erecting and using or sanctioning the erection and use of the nets in ques- 

 ' tion, having acted in pursuance of their just and legal rights, are entitled to be 



