of the Fishery Board for Scotland. 



51 



NOTE III. 



REPORT BY MR. W. L. CALDERWOOD, INSPECTOR OF 

 SALMON FISHERIES, ON THE CRUIVE DYKES AND 

 CRUIVE FISHINGS OF SCOTLAND. 



Following the judgment of the Court with reference to the construc- 

 tion and alteration of the cruives of the river Deveron (34 Scottish 

 Reporter, p. 440), and the ultimate agreement between the Duke of 

 Fife and the District Fishery Board to have the cruive dyke removed 

 altogether, it becomes of interest to ascertain the present condition of 

 cruive fishing in Scotland. 



The case referred to is of special interest, because it places on record 

 the first judicial decision upon the effect of the Commissioners appointed 

 under the Salmon Fisheries (Scotland) Acts (25 & 26 Vict. cap. 97 ; 26 

 & 27 Vict. cap. 50 ; 27 & 28 Vict. cap. 118), so far as the regulations 

 regarding cruives are concerned (Schedule F of the 1868 Act), and it fully 

 upholds the requirements of the Commissioners' bye-law. Previous to 

 this decision the case of Kennedy v. Murray (1869, 7 Macph., 1001) 

 could be cited as a guide to the proper interpretation of the statute ; 

 but the case dealt rather with the powers of the Commissioners as 

 expressed in the 1862 Act, and 1868 Act, with reference to mill dams 

 and hecks, than to cruives. 



The right of fishing by means of cruives was granted by the Crown 

 in ancient times, and is distinct in law from all other methods of catching 

 salmon. By the memorandum dealing with the law as to the regulation 

 of the fishing and the construction of cruives, published in 13th Annual 

 Report, Part II., Appendix Note III., p. 67, it is evident that in all 

 probability cruive fishing was fully established before the time of William 

 the Lion (12th century); indeed, the system of catching fish in cruives 

 may be considered as only a modification of the most primitive method 

 of fishing by means of loosely built pools, which has been common to 

 many races, and is exemplified still to some extent by the old yairs of 

 the shores of the West Highlands, or the doaches of Tongland. 



In all the early Acts bearing upon the subject of cruive fishing provi- 

 sion is made for the keeping open of what is termed " a mid-stream." 

 For instance, an Act of James III., 1447, cap. 73, requires "that the 

 mid streme be left free the space of six fute." It has since been argued 

 in more than one case that the provision for the mid-stream has now 

 lapsed. Mr. Archer and Messrs. Carmichael & Miller, W.S., in the 

 memorandum above referred to, call attention to this when dealing with 

 the case of the Heritors of Don v. Town of Aberdeen, 1667 (M. 10,840), 

 as follows: — "In judgment," the Lords, "considering that the mid-stream 

 " has been long in desuetude, and that this late ratification was passed 

 " without notice, therefore ordained the parties to adduce witnesses 

 " whether the middle streams was accustomed in any cruives in Scot- 

 " land." "This seems a high-handed way of riding over an Act of Parlia- 

 " ment ; but, in point of fact, the statute would seem to have been totally 

 " disregarded in the law courts." It would appear that in Scotland, in 

 view of the provision which was made for a mid-stream gap in mill 



