408 Appendices to Fifth Annual Report 



Ailsa but to the Crown, and that therefore the Marquis of Ailsa had no right 

 to exercise proprietary rights over it. The Marquis of Ailsa said that his 

 title gave him not only the territory along the banks of the stream, consider- 

 ably further down than it was at present, but that his title gave him also sole 

 and exclusive right to the fishing of all kinds, both white fishing and salmon, 

 and that to a point which must necessarily exclude the right of the pursuer. 

 He said, besides, that the real object of the proceeding on the part of the 

 fishermen was to- entitle them to fish for sea-trout, and fish of that kind, on the 

 pretext that they were fishing for white fish. He said there were no white fish 

 there, and to go to that particular part of the river was a mere device to obtain 

 leave, under colour of which illegal fishing might be carried on. Further, he 

 said there were no means of reaching the fishing in question without trespass- 

 ing on his private property. It was said on the part of the pursuer that the 

 water might be gained by the public footpath, and that a public road ran upon 

 the south side. Lord Ailsa denied that. Now, these were the questions which 

 the Court had to consider, and undoubtedly they trenched upon some very 

 important principles of law in regard to property in sea and river. In the 

 first place, his Lordship was quite clear that the Acts of Parliament referred 

 to did not affect this case at all, and were not meant to affect any question 

 about private property and title in a stream. They were meant to secure 

 fishermen, and provide protection for the public in carrying on a large article 

 of commerce without interruption. In the second place, the question was 

 whether the river was tidal. But, before stating his view upon that subject, 

 his Lordship thought it not immaterial to state how this question arose, because 

 a good deal of light might be thrown on it by considering the real object of the 

 action as well as the right of parties. The defender's title gave him the bank 

 of the river on each side, as well as the fishing, and his possession had been ex- 

 clusive, because, although it was quite true that some of the public had been 

 in the habit of fishing in part of the stream at the mouth so far, that was uni- 

 formly done by permission, either of Lord Ailsa or of the tacksmen, and the 

 pursuer himself had a written permission in 1879 under which he fished, 

 which was clearly an acknowledgment of Lord Ailsa's possession. Therefore, 

 his Lordship held that Lord Ailsa had a right to the whole fishings, and that 

 the public only exercised that right either by tolerance or rather by direct 

 permission. The pursuer maintained that he had a right to fish as far inland 

 as the ordinary high-water mark of the stream — that was, above Doonfoot 

 Dam close by Hutchison's garden, and thirty yards above that. He was 

 found there fishing, and endeavoured to escape. In the first place, it turned 

 out that he had some fish in Ms bag, and he threw them out. One was got, and 

 it was found to be a whitling, not a white fish. He was taken to the police 

 office and gave a false name, but at last he gave his real name when he was 

 examined, and his Lordship saw that even then he fenced with the question 

 whether it was not a whitling which was taken by the police, and whether 

 these were not the fish which in reality he meant to take. The whole conduct 

 on the part of the pursuer showed that he was quite aware that he was so far 

 trespassing and that he equivocated about the fish he caught, and that, his 

 Lordship thought, indicated pretty clearly that the real object to obtain this 

 decree to fish for white fish was not for that fish, but for fish of the salmon 

 kind, sea-trout, and whitling. That was the object which the pursuer had in 

 view when he brought this action. Now, the first question therefore was, was 

 this a tidal river ? His Lordship was of opinion that it was not a tidal river. 

 It was quite true that the influence of the tide extended towards the point 

 contended for by Lord Ailsa ; but that must take place in every case where 

 fresh water meets salt water, and salt water is liable to the tide. The 

 evidence, he thought, sufficiently bore that the salt water ceased at a point 

 considerably below Doonfoot Dam. He thought it had been held in every 



