of the Fishery Board for Scotland. 



NOTE III 



FIRST DIVISION. 



(Before the Lord President and Lords Adam, M'Laren, and Kinnear.) 

 Special Case : The Duke of Fife and others for opiiiion and judgment. 



A case involving questions of great importance to the salmon fisheries 

 of Scotland was decided in the Court of Session, on the 23rd February 

 1897 — viz., the Duke of Fife and others (34 Scottish Law Reporter, 

 p. 440) — in w^hich it was declared that the Duke, who held the right of 

 cruive fishing on the river Deveron by grant from the Crown, was not 

 entitled to maintain his cruives at the width fixed by the decrees of the 

 Court, and ' at which width they had been maintained from time 

 immemorial, but was bound to alter and construct them so as to bring 

 them into conformity with the requirements of the Commissioners' 

 Bye-law (Schedule F., 31 and 32 Vic. c. 123). 



In this case the Duke of Fife, the first party, and Mr. George, clerk 

 to the District Board of the River Deveron, the second party, being 

 agreed upon the statement of facts, submitted the following questions of 

 law for the opinion and judgment of the Court, viz. : — (1) " Is the first 

 " party entitled, in the circumstances set forth, to maintain and continue 

 " to use the said cruives at their present width ; or (2) is the first party 

 " bound, when called upon to do so by the Fishery Board (represented by 

 " the second party), to widen the said cruives to a width of 4 feet each ; 

 " or (3) is the said Fishery Board entitled so to widen the said cruives ? " 

 The Court answered the first question in the negative, the second in the 

 affirmative, and found that the third was superseded. 



The circumstances set forth, on which both parties were agi-eed, were 

 as follows, viz. : — 



"1. The first party is proprietor, in virtue of Royal Grants or Charters 

 " of very ancient dates, of the salmon fishings in the river Deveron, from 

 " the sea for about four miles upwards. The said Royal Grants or 

 " Charters, and the titles of the first party and his predecessors connect- 

 " ing therewith, comprehend the right of fishing both by cruives and by 

 " net and coble. The first party is also proprietor of the lands on both 

 " sides of the river for the same extent. The second party hereto is 

 " Francis George, solicitor, Banfi", Clerk to the Fishery Board of the 

 " distrietof the river Deveron, for behoof of the said Board, under and 

 " by virtne of Section 22 of the Salmon Fisheries (Scotland) Act 1862. 



" 2. The cruive dyke belonging to the first party is situated on the 

 " said river Deveron, about two miles from the sea, near to the Rack 

 " Mill, in the parish and county of Banff*. In an action of declarator in 



