of the Fishery Board for Scotland. 



107 



found 'that the form and construction of the cruive dykes and 

 ' boxes, and the construction and position of the inscales, are to be 

 ' regulated according to law,' and remitted back to the Court of 

 Session to give precise directions to the parties about the form and 

 construction of the cruive dykes and boxes, and the construc- 

 tion of the inscales according to law. I venture to think that it 

 must be held that this case is decisive, and determines the point 

 that these Doachs are really cruives, and that they must, conse- 

 quently, be subject to the provisions of the bye-law which now 

 regulates the construction and use of cruives, just as all the other 

 cruives in Scotland, such as those on the Forth, Earn, Deveron, 

 Conon, &c — all of which are held under very ancient titles — 

 admittedly are. It is understood, however, that it is maintained 

 by the proprietor of the Doachs at Tongueland, that he is not bound 

 to comply with the provisions of the said bye-law, because the 6th 

 section of the Salmon Fisheries (Scotland) Act, 1862, which em- 

 powers the Commissioners under the Act to make general regula- 

 tions with regard to the construction and use of cruives and other 

 matters specified, has the following proviso attached to it : — ' Pro- 

 ' vided that such regulations shall not interfere with any rights 

 ' held at the time of the passing of the Act under royal grant or 

 ' charter, or possessed from time immemorial.' He holds that the 

 terms of this proviso exempt him from the necessity of complying 

 with the bye-law regulating cruives ; and he is also understood to 

 hold that the 9th section of the Salmon Fisheries (Scotland) Act, 

 1868, does not apply to the Doachs, because it has the same proviso 

 attached to it as is attached to the 6th section of the Salmon 

 Fisheries Act of 1862. The 9th section of the Act of 1868 

 empowers the Secretary of State to do certain things on the 

 petition of any District Board, among others — ' To alter the regula- 

 1 tions with respect to the construction and use of cruives and cruive 

 ' dykes or weirs within such district, provided such alterations do 

 ' not injure the supply of water to any person entitled to use any 

 ' existing cruive dyke as a dam dyke.' 



There can be little doubt that it is somewhat difficult to tell 

 what is the exact effect of the proviso at the end of the 6th section 

 of the Act of 1862 and the 9th section of the Act of 1868 upon 

 the bye-laws made by the Commissioners under the former Act; 

 and Mr Buckland and I felt this so strongly, that one of the 

 recommendations made at the end of our Eeport of 1871 on the 

 effect of recent legislation on the Salmon Fisheries in Scotland is 

 as follows: — 'It should be more clearly ascertained and defined 

 ' how far the 6th clause of the 6th section of the " Salmon Fisheries 

 ' " (Scotland) Act, 1862," affects the bye-laws of the Commissioners/ 

 At the same time, if the construction put upon the proviso by the 

 owner of the Doachs were to be admitted, it would almost entirely 

 strike at the root of the Commissioners' power to make any 

 effective regulations whatever. Every bye-law that they have 

 drawn up does, to some extent, interfere with existing rights, and 

 some of them with ancient rights held by royal charter. Most 

 valid rights of salmon fishings are of this kind, and if the Com- 



