of the Fishery Board for Scotland. 



69 



" district." It seems doubtful, however, whether the word weirs " 

 as used in this section refers to mill dams ; but even if it does, and if 

 application may be made to the Secretary for Scotland to issue 

 regulations applicable to dams used in connection with turbines, the 

 case of Morphie or Kinnaber is so special, in view of the provision of 

 the 12th section of the Act of 1868, that it seems doubtful if the 

 Secretary for Scotland could issue I'egulations affecting it. 



It would appear from the case of the Tay District Board v. 

 Robertson, 1887, 15 R. 40, that District Boards, being statutory Boards, 

 have only power to prosecute for offences created by the statutes by 

 which they have been established. If, therefore, as it seems to me, the 

 abstraction of a greater volume of water is not an offence under the 

 Salmon Fishery Acts of 1862, 1863, 1864, or 1868, it is not competent 

 for the District Board to take action in the matter, but it must be left 

 to the proprietors to vindicate any claims which they may have at 

 common law themselves. The effect at common law is perhaps more 

 doubtful, as it could be argued that the new method of using the water 

 power is so different from the original method as to injure the salmon 

 fishings of upper proprietors as anciently enjoyed. There is, however, 

 so far as I am aware, no authority to justify such an argument. The 

 question may also to a certain extent depend upon the charter under 

 which the mill owner holds his right. 



With regard to the second point, it is difficult to understand why the 

 Kinnaber lade should be exempted from the bye-laws as to the 

 shutting of sluices which are applicable to every other mill lade in 

 Scotland. 



From the reference to the lowering of the intake sluice during the 

 weekly close time, which is made at the end of sec. 12, it would almost 

 appear as if it were thought that the bye-law (Schedule G) provided that 

 all the sluices should be entirely closed from 6 o'clock on Saturday 

 afternoon to 6 o'clock on Monday morning, and that it was desired to 

 modify this provision as regards Kinnaber lade in view of the great 

 inconvenience that it would cause to the Royal Burgh of Montrose, 

 seeing that the burgh depends for its water supply on the working of 

 Kinnaber mill. From the opinions which were expressed to me it was 

 evident that the view prevailed among some of those whose salman fish- 

 ing interests were affected that if it had not been for the exemption con- 

 tained in sec. 12, the sluices would be entirely shut on Sunday, and the 

 water made to flow over the dam. But this was a mistaken view. The 

 weekly close time applies to fishing only, and there is nothing in the 

 bye-law which regulates dams, &c., to prevent the water being used for 

 milling purposes at any hour of the day or night, on Sundays or on 

 week days. Sec. 2 of the bye-law (Schedule G) does not in effect seem 

 to go further than to provide that all water not required for milling 

 purposes shall be made to flow over the dam into the river as far as 

 practicable. Even to this rule there is an exception, as it is not impera- 

 tive when the intake sluice is more than 300 yards from the water 

 wheel to shut it, or to keep the bywash sluice shut during the ordinary 

 meal hours or during any stoppage of the wheel not exceeding an hour 

 at a time. It would seem therefore that this bye-law^ is very moderate, 

 that it does not interfere with the privileges of mill owners, or do more 

 than define what was practically the law before. It is, therefore, all 

 the more difficult to understand why the mill at Kinnaber should be 

 exempted from its provisions, or why closing the sluices at Kinnaber 

 when the mill is not working should occasion greater inconvenience 

 than closing them at any other mill in Scotland. 



