of the Fishery Board for Scotland. 



409 



case — mainly cases about river estuaries — that it was a fair jury question 

 where' the sea ends and where the river begins, or where the river ends and 

 the sea begins ; and the dicta, which had been stated in cases relating to sea 

 margin entirely, had no real bearing upon the question they had here, and, 

 therefore, his opinion was in this case the high- water mark of ordinary spring 

 tides was to be found as marked upon the Ordnance Survey, and as reduced 

 to plans which Mr Stevenson had put into process, and that the tide did not 

 extend any further ; that at the portion of the river at the point he had men- 

 tioned, Doonfoot, there was no salt water, or substantially none, and conse- 

 quently the rising of the fresh water by the operation of the tide was not a 

 test of where the right in the river ended. If he was right in that, and there 

 was no doubt of it, both in principle and on the evidence, there was substan- 

 tially an end of this case, because it would follow that the river above the 

 point was private property, and not public. His Lordship did not think there 

 was any pretext for saying that it was a navigable river ; and further he was 

 of opinion that the banks of the river were the property of Lord Ailsa, that 

 the public had no right to private footpath, and that there was no means of 

 getting at the water from the public road except by trespassing on the bank. 

 His Lordship proposed to recall the Lord Ordinary's interlocutor, and sub- 

 stantially revert to that of the Sheriff- Principal. 



Lord Young said he was of the same opinion. Indeed, he agreed exactly 

 with all that his Lordship had said, and he agreed generally with the Sheriff- 

 Principal's opinion as expressed by him in the Sheriff Court action. It was 

 quite clear, and he had no doubt about it, that the public had the right to fish 

 for white fish in the sea, and he should say that they had that right irre- 

 spective of the statute of Queen Anne and of the statute of George II., which 

 were passed to protect the fishing industry in Scotland. With his Lordship, 

 he also agreed that the River Doon was no part of the sea. Nor did he think 

 that it was a river of the kind or class to which the statutes he had noticed 

 referred. It was a river with a distinct and narrow channel very much like 

 a creek, only that there the water flows from bank to bank, leaving no shore 

 on either side which is ever dry at any stage of the tide. Then this was not 

 a public river, but a private river as distinct from a public navigable river, 

 and the fishing industry of Scotland was not to be prosecuted there. That 

 fishing industry, according to the statutes, applied to the taking of herrings, 

 cod, ling, or any other sort of white fish, and fishing for these in the sea, and 

 taking measures upon the sea coast for curing them. There was no doubt 

 about the fact that the pursuer was detected poaching in the River Doon ; 

 possibly he was a representative poacher, who, with others at his back, 

 appealed to these statutes, and to what his Lordship assumed to be a 

 common law and public right to fish in the sea, and brought this action. His 

 Lordship called attention to the conclusion of the action, and to the terms in 

 which the Lord Ordinary had pronounced decree that the pursuer had a right 

 to fish with single rod and line for these fish. Was that the way that herring, 

 cod, and ling were fished for ? Why limit it to that method of fishing? He 

 was entitled to fish with a net, and to fish in every way that might be prac- 

 tised in order to take herrings, cod, ling, and other fish which are inhabitants 

 of the sea. Why was it limited to single rod and line ? Single rod and line 

 was very well for such poaching as the pursuer was detected in, and which he 

 intended to continue to practise if he had a right declared to it. Single rod 

 and line were an odd idea in herring fishing. Therefore this judgment of 

 declarator of a right on the pursuer's part to fish with single rod and line 

 was rather singular when contrasted with the Act of Parliament upon 

 which the Lord Ordinary founded. His (Lord Young's) opinion was 

 that the defences ought to be sustained, and absolvitor pronounced with 

 expenses, and that the appeal from the Sheriff Court by the pursuer ought to 



