of the Fishery Board for Scotland. 



139 



to his salmon fishing, and it had been found, by the Second Division of 

 the Court of Session, there was in the public a right of fishing for white 

 fish by stake nets in the sea, and along the shores of the Solway Firth, 

 but this right was to be so exercised as not to interfere with Mr 

 Mackenzie's right of salmon fishing, and all remedies were reserved 

 competent to either party for preventing undue encroachment on, or 

 interference with, their respective rights of fishing. (Gilbertson v. 

 Mackenzie, February 2, 1878, Rettie's Reports, vol. v. p. 610.) 



Those using these nets admitted that they had no right to fish for salmon, 

 and they claimed no certificates of privilege. In these circumstances 

 it was contended by them that the Solway Salmon Fisheries Commis- 

 sioners had no jurisdiction to entertain the complaint of Mr Mackenzie. 



Being directed by § 3 of the statute under which we were appointed ' to 

 inquire into the legality of all engines erected or used for taking salmon,' 

 we held that we were bound to hear the evidence tendered, and having 

 heard it, were satisfied of the truth of the allegation, that they were 

 erected and used for the taking of salmon, and therefore we ordered to be 

 removed such of them as we had seen at the period of our visit to Annan. 



The nets are simply small stake nets of the same general form as the 

 ordinary salmon stake nets, with covered pockets, and the ground 

 selected for fixing them is precisely of the same kind as that chosen for 

 the ordinary salmon nets. They are much higher than the poke nets 

 above referred to, and hardly lower than some avowedly salmon nets 

 fixed elsewhere, but they are much lower than the salmon stake nets used 

 in Mr Mackenzie's fishings. They are set as near low- water mark as they 

 can be securely fixed. On appeal, the Second Division of the Court of 

 Session, without looking at the evidence, declined to interfere with the 

 deliverance of the Commissioners, who, they held, had a clear statutory 

 duty which they were bound to perform. 



Some questions of considerable practical importance were raised in 

 appeals by the Earl of Mansfield, the Burgh of Annan, and Mr Mackenzie 

 of l^ewbie. 



They have been in the habit of using long ranges of stake nets with 

 many pockets, and each claimed right to treat each pocket as a separate 

 fixed engine, and to set all or any of them any where they pleased along 

 the whole length of their fishery, extending, it may be, to a distance of 

 several miles. To allow this seemed inconsistent with the statutory 

 instruction to state in any certificates granted the situation, and also the 

 size and description of the fixed engines, and therefore effect was not 

 given to this claim, but each range of nets and pockets was treated as a 

 fixed engine. The First Division of the Court of Session adhered to this 

 view on appeal. 



As regards the situation, — in the certificates the site or steading stated 

 was that in which the engines were fixed during some of the years 1861-64. 



The low water channel varies much in different seasons, being some- 

 times several -hundred yards nearer than at others to the English or the 

 Scotch coast respectively. By the certificates the position of the nets as 

 between the shore and the channel was allowed to be regulated as the 

 fisherman thought most expedient, provided they did not exceed the 

 maximum amount of net and number of pockets granted. 



But the sites or steadings of the nets are sometimes silted up with sand, 

 so that no net can be fixed upon them. The fishers have been in use to 

 shift the nets laterally, and fix them on other sites, of which several may 

 be known on the same bank or scaur, sometimes as far apart as 540 yards. 

 This lateral movement was allowed wherever there was evidence of its 

 having taken place during the years 1861-64. The principle of allowing 



