of the Fishery Board for Scotland. 



141 



' ing salmon in any inland or tidal waters . . . but this section shall not 

 1 affect any ancient right or mode of fishing as laivfully exercised at the 

 ' time of passing this Act by any person by virtue of any grant or charter 

 ' or immemorial usage.' 



Coupling the inquiry directed into the legality with the condition of 

 use in pursuance of grant or charter or immemorial usage, it was thought 

 that the use founded on by claimants of certificates in Scotland 

 must have been legal use. This was necessary to make the application 

 of the law in the two countries identical. The words used in the 

 English statute were 'lawfully exercised,' and that was the law which was 

 imported into Scotland. 



There were, it appeared to us, two things to be done, in order to give 

 effect to the statute : (1) to restrain the hitherto legal right of proprietors 

 of salmon fishings in Scotland to place as many fixed engines as they 

 pleased on open shores or deep waters, whether in the Solway or else- 

 where ; (2) to save the old rights, so far as exercised at a certain date. 

 This change in the Scotch law was not to be universal, but only within 

 limits, to be ascertained in a certain way. It was therefore, as we 

 thought, to fix those limits, and set bounds to the territorial jurisdiction 

 of the Commissioners, to restrain the erection of 'engines that but for the 

 Act would have been legal, that the limits of the Solway Firth were to be 

 ascertained ; and they were fixed on the Scotch coast at the Mull of 

 Galloway. It seemed to us that it could not have been intended to save 

 engines, if any such there were, which were not legal at the date of the 

 statute of 1862, as this would have been in contradiction of the object of 

 applying the same rule to English and Scotch fisheries. 



Taking this view, we proceeded to inquire into the legality of every 

 fixed engine for taking salmon to the east of the Mull of Galloway 

 brought under our notice, and independently into its privilege, dependent 

 on use during the period mentioned in the Statute in virtue of grant 

 charter or immemorial usage, and only granted certificates when both legality 

 and privilege concurred, and we pronounced orders of removal wherever 

 according to our view either legality or privilege was not established. 



The Court held that the Commissioners had no right to inquire into 

 legality as a matter separate from 1 a right to salmon fishing ' and ' use in 

 the years specified.' The effect of this is — 



1. Six stake nets have been restored which had been ordered to be 

 removed as situated in estuaries which we held, rightly or wrongly, to be 

 not within the Solway waters as the Act 1563, cap. 3, has been hitherto 

 understood. 



2. Seven fixed engines known as yairs in the Eiver Dee, which had 

 been ordered to be removed have been certified as privileged.* 



These belong to the Burgh of Kirkcudbright, and to the Earl of 

 Selkirk. The titles of the latter give right to fish salmon in the 1 Water 

 ' of Dee,' and admittedly his lordship's engines are even at low tide in 

 the channel of the Dee, as are also those belonging to the Burgh of 

 Kirkcudbright. They are not even like the stake nets near the mouth 

 of the Nith belonging to Mr Oswald of Covens, which were the subject 

 of much litigation, and which were ultimately ordered to be removed as 

 in the river and not in the Solway, though they were fixed on sandbanks 

 which were dry at low water ; nor are they, as those nets were near the 



* There was no doubt as to there having been immemorial usage in both these 

 classes of cases ; but that had never been held in Scotland per se, or even combined 

 with title, to give a right to set a fixed engine in an illegal site, nor, up to this time, 

 in a river, even though flowing into the Solway, except in the case of cruives. A 

 fixed engine in the Cree was also restored. 



