of the Fishery Board for Scotland. 



73 



firm the opinion on the construction of the statute expressed above, though 

 it does not definitely settle the point. 



The Secretary for Scotland has also power, under the 1868 Act, on the 

 application of a district board, to alter ' the regulations with respect to the 

 ' construction and use of cruives, and cruive dykes or weirs within such 

 1 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.' The 

 power is also subject to the same qualifications as were the Commissioners' 

 regulations under the Act of 1862. 



If the construction, above expressed, of the 1862 Act is correct, it is 

 extremely important to see how the law stood prior to the passing of that 

 Act, and how the earlier statutes were interpreted by the courts, in 

 order that it may be learned how far the regulations exceed or fail to 

 come up to these decisions. If the regulations do not exhaust the 

 decisions, it does not necessarily follow that what they laid down has not 

 now effect, simply because the regulations do not deal with the matter. 

 For instance, the Commissioners had no express, though they may have 

 had an implied, power to regulate the construction of cruive dykes, and 

 they have not dealt with this matter in their bye-laws. The old decisions 

 on this point will, therefore, probably have effect still, unless and until 

 the Secretary for Scotland alters the regulations by inserting regulations 

 in the bye-laws in regard to the construction of the dykes, in virtue of his 

 powers above-mentioned. 



If also the bye laws have impaired, or the Secretary for Scotland's 

 alterations shall impair, the value of the cruives to their owners, to an 

 extent materially exceeding that entailed by the old law, then to such 

 extent the bye-laws or the alterations will probably be held to exceed the 

 qualification prescribed by the Act. 



An examination of the bye-laws issued by the Commissioners at once 

 reveals the fact that they are, generally speaking, extremely moderate ; 

 and that, while they may entail some cost and some inconvenience to the 

 owner, not put upon him by any legal decision, they do not materially 

 prejudice his rights. In some cases the regulations relax the old law, 

 and, as above-mentioned, they do not touch on the construction of the 

 dykes. Further, they contain no regulation for the enforcement of the 

 statutory provision of the mid-stream, but this point will be dealt with 

 after. 



Bye-law I. provides that the upper surface of the sill of the cruive 

 shall not be higher than 12 inches above the natural bed of the river; 

 and, in the event of the sill being placed any higher than the natural bed 

 of the river, it provides for a paved floor of certain dimensions being made 

 down stream. 



By legal "decisions, cruives had to be placed on the level of the bed of 

 the stream, so that the Commissioners cannot be said to have exceeded 

 their powers in prescribing the conditions on which the sill of the cruive 

 can be placed higher. In the case of Fishers of Northesk v. Scott of 

 Brotherton (1746 Morison 14,264), it was laid down that 'the cruives 

 ' should be built in the channel of the water and not above the same;' 

 and again, in the subsequent case of Halkerton v. Scott (1769, Morison 

 14,268), it was decided that the cruives 'must be built upon the channel 

 1 or bottom of the river,' and that the defender was bound ' to remove 

 1 the nob or sole at the bottom of the mouth of the cruive.' The same 

 rule was laid down in Grant v. Duke of Gordon (1777, 5 Brown's 

 Supplement 477). In the second of these cases, however, the Court 

 ordered some shoeing or causewaying in the river farther down than the 

 lower end of the keying stones to be removed. 



Bye-law II. provides for the cruives being four feet wide, and, if they 

 have a centre post, the width, exclusive of the post, must be four feet. 



