of the Fishery Board for Scotland. 



119 



fixed engines on the Scotch shore of the Solway, and soon after- 

 wards the Home Secretary announced in Parliament that the law- 

 officers of the Crown concurred in this decision, and that these 

 engines could not be dealt with without further legislation. 



An express grant of fixed engines in those parts of the ' Water of 

 ' Solway ' where the sea ebbs and flows will confer a valid title ; but 

 an express grant of fixed engines where the tide ebbs and flows, 

 but which cannot be shown to be within the ' Water of Solway,' will 

 not be sufhcieut, because such a, position is not exempted from 

 the prohibitions of the old statutes. In other parts of Scotland, a 

 grant of fixed engines within an estuary is ineffectual, but in the 

 Solway, where such engines in such a situation were not illegal 

 previously to 1862, an express grant prior to that date will confer 

 a right which cannot be defeated by the subsequent prohibitions. 

 Thus in the case of Johnston v. Mackenzie and Others, 20th July 

 1869, it was found that the Solway Firth was exempt from the 

 restrictions of the old statutes, which made fishing for salmon by 

 stake-nets in the estuary of a river illegal, and that the Newbie 

 fishings, far within the Commissioners' estuary line for the Esk, 

 Annan, and Nith, were legally exercised by means of such nets. 

 From the evidence of Thomas M'Queen — a very old tacksman of 

 salmon fishings — given in that case, it appears that these Newbie 

 fishings were fished by the Littles — the then tenants — with stake- 

 nets so far back as 1778, and that previously to that date they had 

 been fished by means of fixed engines, with this difference, that 

 there was wattling instead of netting between the stakes. 



It is a mistake to suppose or assert that the fixed nets on the 

 English side, abolished by the Act of 1861, were in the same 

 position as the fixed nets which still exist on the Scottish side. On 

 the English side, the right to fish by such nets in a navigable arm 

 of the sea was not a private right, except in very rare and excep- 

 tional instances, but a right common to the public, or what is 

 termed a right of common fishery. There was, therefore, in the 

 general case, no interference with vested rights or private property 

 in abolishing these nets. On the other hand, all those proprietors 

 on the Scottish shore who have a good title to fish by means 

 of fixed engines in the ' Water of Solway,' possess that right as 

 private real property in the strictest and fullest sense of the term, 

 derived from the Crown, in whom all the salmon fishings in 

 Scotland, in rivers, estuaries, and in the narrow seas were originally 

 vested as part of the patrimonium principis. These fishings have 

 again and again been the subject of Acts of Parliament and of 

 decisions of the Supreme Court, all confirming their legality. It 

 may or it may not be expedient to abolish them. But if their 

 abolition be decided on, it seems obvious that it could not be 

 carried through without injustice, unless compensation were 

 granted to their owners. Such engines are, in fact, very much in 

 the position of the privileged fixed engines mentioned in section 41 

 of the English Salmon Fishery Act of 1865. 



In 1871, in my Eeport on the Solway question, I made the 

 following suggestions for bringing about a satisfactory solution 

 of it: — ' 1. The appointment of a Commission for the purpose 



