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Appendices to Thirteenth Annual Report 



ordinary current from 15th April to 15th May, and to be sloping and not 

 perpendicular. In the subsequent case of Falconer v. Scott (1701), relat- 

 ing to the same cruives, it was declared that the defender's cruive dyke 

 ought to be only three ells broad, and a foot and a half above the water 

 as at ordinary times from 15th April to May. 



In the Fishers of Northesk v. Scott in 1746, the Lord Ordinary held 

 that the defender's cruive dyke should only be half an ell Scots broad at 

 the top, and only one foot and a half above the surface of the water 

 in its common course as it runs from 15th April to 1st May, and that the 

 said dyke ought to be built sloping from the top till it was two feet under 

 the water, and that below that the defender could build his dyke as broad 

 as he pleased, and either sloping or perpendicular. On appeal, while 

 adhering to other parts of the Lord Ordinary's judgment, the Lords found 

 that the defender might keep up his cruive dyke as to height and breadth 

 ' as now possessed by him.' What the height and breadth were does not 

 appear. Again, in the case of Haikerton v. Scott in 1769, it was found 

 that the defender was not bound to alter the height and breadth of his 

 cruive dyke. 



In the case of Johnston v. Stotts in 1802, it was found that the cruive 

 dyke should be of the same height as formerly, built of rough stones in a 

 compact and substantial manner, without loose or projecting stones. 

 Indeed, the cases practically decide that each cruive dyke was to remain 

 as it had been in the past, and no general rule affecting the construction 

 of all cruive dykes was laid down. 



In connection with the construction of the dykes, there arises the ques- 

 tion of the mid-stream. This question has been brought up in a great 

 many of the cases, and in all it has been decided that the provision is in 

 desuetude. At first sight it is not easy to reconcile this with another 

 series of cases in which illegal methods of fishing, though practised for 

 time immemorial, were stopped, as in the case of Fraser v. Duke of 

 Gordon (1765, Morison 14,298), where it was decided that the laws made 

 for the improvement of salmon fishing could not be abrogated non utendo. 

 The distinction between the two series of cases, however, is that the one 

 applies to individual instances, and the other to a universal neglect of the 

 statute. But it is difficult to understand how the Acts could have gone 

 into desuetude so soon after they were enacted, and it would almost seem 

 as if they had never been recognised at all. The matter is thus referred 

 to by Lord Chancellor Eldon (Johnston v. Stotts, 4 Patton's App. 274) : 

 ' — We see here, too, that a Scotch statute may be lost by desuetude, as it 

 ' is termed ; that the ancient statutory regulation of a mid-stream in all 

 * cruive dykes is entirely gone and no longer remaining part of the law. 

 ' The English lawyer feels himself much at a loss here ; he cannot con- 

 ' ceive at what period of time a statute can be held as commencing to 

 ' grow into desuetude, nor when it can be held to be worn out. All he 

 c can do is to submit to what great authorities have declared the law of 

 ' Scotland to be.' 



If the construction of the qualification in the 1862 and 1868 Acts 

 above expressed is correct, it would have been beyond the powers of the 

 Commissioners to have revived the mid-stream in their bye-laws, or to 

 have required cruives to be materially altered from their usual construc- 

 tion, and it will be beyond the power of the Secretary for Scotland, on 

 the application of a District Board, to make such provisions now. On the 

 other hand, if the views expressed by Mr Stewart in his Treatise on the 

 Law of Fishing (page 199) are sound, it would seem to follow that the 

 Secretary for Scotland, on proper application being made to him, can 

 alter the bye-laws by inserting in them provisions materially altering the 

 formation of cruives and cruive dykes. Probably the simplest way of 



