406 



Appendices to Fifth Annual Report 



salmon and fish of the salmon kind, and are not bona-jide erected or used for 

 the capture of white fish ; and (4) that the capture of salmon and fish of the 

 salmon kind in said nets is to the injury and prejudice of the rights of 

 the pursuers as proprietors of salmon fishings in the River Nith. With 

 regard to this last finding, I would add that the defenders have failed to 

 show that the salmon captured by them would not in any case go up the Nith. 

 The evidence in this matter is not very great on either side, but the pre- 

 ponderance of it is in favour of the pursuers. It was urged upon me that to 

 order the removal of the nets in question, or to subject them to other 

 restrictions than those already imposed by their licenses, would inflict great 

 injury on the defenders, and deprive them of their means of livelihood by 

 diminishing the take of white fish. I should be very sorry if this were so. 

 As I have already said, I do not think the white fishing alone, even as the 

 nets now exist, affords a livelihood for the fishermen ; but, however that may 

 be, if the nets are illegal, as I think they are, I have no alternative" but to 

 order their removal. Nor am I entitled to allow the fishermen to continue 

 what they have been doing improperly to the detriment of the rights of others. 

 The white fishing may still be carried on by nets of proper construction, and 

 probably with more success, if the best places for white fishing are chosen 

 instead of the best places for salmon. I was anxious to make a remit to some 

 man of skill, in order to see if, and how, the white fishing could be carried on 

 by fixed nets without injury to the pursuers' rights, and I would have done 

 so had I seen my way to help the defenders effectually thereby. But, on 

 consideration, I have thought it better to dispose of the case as presented on 

 the evidence by both parties, as that decision does not in the least affect the 

 defenders in the legitimate exercise of their right to fish for white fish. I 

 wish to add, in conclusion, that the defender, Lord Herries, by the licenses 

 issued by him from time to time, seems to have adopted any restrictive 

 measures which appeared to him available to protect the rights of the pursuers 

 from encroachment or injury by the fishermen. His restrictions and con- 

 ditions, however, I fear, have been largely disregarded, and it is open to 

 doubt whether those who were charged with the duty of seeing those con- 

 ditions and restrictions enforced have been as careful and energetic in the 

 performance of that duty as they might have been. His Lordship then pro- 

 nounced the following interlocutor : — Edinburgh, 10th December 1886. — 

 The Lord Ordinary having considered the cause with the proof adduced, 

 and heard parties, Finds that the nets in question belonging to the defenders 

 respectively are fixed stake-nets or paidle-nets, and are fixed and erected on 

 the River Nith or estuary thereof, and upon the sands and shores between 

 high and low water mark within the limits of the district of the River Nith, 

 as defined by the Commissioners acting under the Salmon Fisheries (Scot- 

 land) Act, 1862 : Finds, therefore, that the said nets are illegal : Finds 

 further, and separatim, that the said nets have been erected and used by 

 the defenders (except the defender, Lord Herries) for the purpose of 

 capturing salmon and fish of the salmon kind ; and that the capture of 

 salmon and fish of the salmon kind by the said nets is injurious to the rights 

 of the pursuers ; therefore ordains the defenders forthwith to remove the 

 said nets erected and used by them as aforesaid ; interdicts, prohibits, and 

 discharges the defenders, and each of them, from erecting and using stake- 

 nets, paidle-nets, or other fixed engines fitted to capture salmon or fish of 

 the salmon kind on the River Nith or estuary thereof, or on the sands and 

 shores between high and low water mark within the limits aforesaid, and 

 decerns. Finds the defenders liable in expenses. 



Counsel for Pursuers — The Dean of Faculty, Mr Dickson, and Mr For- 

 syth. Agents— J. K. & W. P. Lindsay, W.S. 



Counsel for Defenders — Mr R. Johnston and Mr Rankine. Agent — 

 M'Kenzie & Kermack, W.S. 



