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Appendices to Fifth Annual Report 



' assoilzied from the leading conclusions of declarator, removing, and interdict. 

 ' 2. The defenders are entitled to be assoilzied from the remaining conclusions 

 ' of the summons in respect that (1) they have not erected or used the nets in 

 ' question for the purpose of catching salmon or fish of the salmon kind ; (2) 

 ' and the said nets are not of such size or construction, or so situated or used, 

 ' as to injure the pursuers' rights of salmon fishing to any substantial or 

 ' material extent, 3. In any case the pursuers have neither title nor interest 

 ' to object to the erection or use of such nets as are situated further up 

 ' the Solway Firth than the line taken by salmon and fish of the salmon kind 

 ' in entering or leaving the River Nith. 4. The nets in question being situated 

 ' within the water of the Solway, where the sea ebbs and flows, are privileged 

 ' by the Act of Queen Mary, 1563, c. 68. 5. Generally, the defenders are 

 ' entitled to absolvitor with expenses.' 



The Lord Ordinary, Lord Trayner, in giving judgment, read the following 

 opinion: — The pursuers complain that the nets licensed b} r the defender 

 Lord Herries, and used by the other defenders under such license, are 

 stake-nets, and being placed on the River Nith, or estuary thereof, are 

 illegal; and, at all events, that said nets are erected and used by the 

 defenders for the purpose and with the effect of capturing salmon and fish 

 of the salmon kind, to the prejudice and injury of their (the pursuers') rights 

 of salmon fishing in the River Nith. The defenders, on the other hand, main- 

 tain that the nets in question are in the waters of the Solway, and are not 

 illegal ; that they are erected and used for the capture of white fish, and that 

 the capture of salmon, or fish of the salmon kind, is only occasional and 

 accidental; and that in any view no injury is done to the pursuers' fishings, 

 because any salmon captured by said nets are not fish which would go up 

 the Nith. The proof led by the parties is conflicting to some extent, at least 

 on every one of the points on which there is any controversy, but notwithstand- 

 ing that conflict I have come to hold a very distinct opinion as to what is the 

 truth of the matter regarding each of fthese points. 1. As to the character 

 of the nets. — They are certainly not so large as the ordinary salmon stake-nets, 

 but they are. constructed on the same principle, and are, when covered by less 

 than three or four feet of water, just as deadly. The evidence of Mr Young 

 (an authority of great weight on such a matter) is to my mind conclusive, even 

 were it not corroborated by other evidence. Mr Young says : — ' They are prac- 

 ' tically miniature stake-nets, not having such great killing power as ordinary 

 ' stake-nets, from the stakes being lower, but so far as the} T go they are nets 

 ' on precisely the same principle, and calculated to take salmon, and must in- 

 ' evitably take salmon, until they have three or four feet of water over them.' 

 This evidence proceeds upon an examination of the nets themselves, and not 

 merely upon an examination of the model produced by the pursuers. It is, 

 therefore, not affected by any observations which may be made on the cor- 

 rectness or incorrectness of the model, although on that point I am of opinion 

 that the correctness, generally speaking, of the model is quite sufficiently 

 established. 2. The position of the nets. — This is shown on plan No. 22 of 

 process ; and on that plan and the evidence adduced in relation thereto I have 

 no difficulty in coming to the conclusion that the defenders' nets are placed on 

 the River Nith and estuary thereof, and within the limits of the district of the 

 River Nith as fixed and defined by the Commissioners acting under the Salmon 

 Fisheries (Scotland) Act, 1862. 3. The purpose and effect of the nets. — There 

 can be no doubt whatever as to the effect of the nets, as it is proved by the 

 defenders themselves that they capture salmon and fish of the salmon kind. 

 The extent to which such capture is made is perhaps the part of the case on 

 which any serious difficulty arises, for on this the evidence is most conflict- 

 ing. The evidence for the pursuers shows that a very large number of 

 salmon and fish of the salmon kind are captured by the nets in question every 



