140 



Appendices to Second Annual Report 



lateral movement has been extended by the First Division of the Court 

 of Session, irrespective of there having or not having been any shifting 

 of the site during the years 1861-64, provided the new site be on the 

 same bank or scaur mentioned in the certificate. 



It will be observed, that even under this greater latitude allowed by 

 the Court, there can be no increase of the fishing powers actually 

 exercised in the years 1861-64. 



II. — Kirkcudbrightshire. 



The number of fixed engines reported by the Police was 50, with 80 

 pockets. 



Certificates were claimed for 47, with 81 pockets. 



The number allowed is 31, with 62 pockets; the number of orders of 

 removal, 27, embracing 40 pockets. 



Some orders of removal were pronounced on the ground that the claim 

 had not been substantiated ; some, although the use of the engines had 

 been fully proved, because they were situated in rivers flowing into the 

 Solway, in which hitherto fixed engines other than cruives had not been 

 allowed ; and some, because in estuaries, not being in our view estuaries 

 entitled to be considered waters of Solway in the sense of the Act of 

 Queen Mary of 1563, cap. iii., on which Act rested hitherto the exemption 

 of the Solway waters from the general law of fixed engines applied else- 

 where in Scotland. 



The provisions of the Act, 40 and 41 Vict. cap. ccxl., seemed to us 

 somewhat obscure on many points, more especially as to the effect of the 

 reference in § 3, to the fixing of the limits of the Solway Firth at the 

 Mull of Galloway, under the Scotch Salmon Fisheries Act of 1862. The 

 leading instructions given us are contained in the 3d section and section 

 4. Thus : 



' 3. * * * The Commissioners appointed under this Act shall 



* inquire into the legality of all fixed engines erected or used for the 

 1 taking of salmon in the waters and on the shores of the Solway Firth 

 ' in Scotland, as the same have been fixed under the authority of " The 

 ' " Salmon Fisheries (Scotland) Act, 1862," and in the rivers flowing into 

 ' the same and shall abate and remove all such fixed engines as are not 

 1 proved to their satisfaction to be privileged as hereinafter provided. 



< 4. In this Act, and in "The Salmon Fisheries (Scotland) Act, 1862," 

 ' and in any Act therewith incorporated, " fixed engine " shall include 

 1 any net or other implement for taking fish fixed to the soil, or made 



* stationary in any other way, not being a cruive or mill dam ; and 

 ' " priviliged fixed engine " shall only include such fixed engines as were 

 ' in use for taking salmon during the open season of one or more of the 



* years eighteen hundred and sixty-one, eighteen hundred and sixty-two, 

 ' eighteen hundred and sixty-three, and eighteen hundred and sixty-four, 

 ' in pursuance of any grant or charter or immemorial usage.' * * * 



The Salmon Fisheries (Scotland) Act referred to, 25 & 26 Vict. cap. 

 xcvii., enacts, in § 33 — 



4 From and after 1st January 1865, the provisions of 24 & 25 Vict. c. 

 ' 109, shall extend and apply to salmon fisheries in the waters and on 

 ' the shores of the Solway Firth situate in Scotland, as the same may be 

 ' fixed by authority of this Act, and to the rivers flowing into the same 

 ' in so far as such provisions relate to the use of fixed engines for the 

 ' taking of salmon.' 



The English Statute, 24 & 25 Vict. cap. cix., enacts in § 11 — 



' No fixed engine of any description shall be placed or used for catch- 



