•68 



Appendices to Sixteentk Annual Report 



9. By the ' Fishery Board (Scotland) Act 1882 ' (45 & 46 Vict. c. 

 78), section 5, subsection 2, it is provided that 'the Fishery Board' 



" (being the Fishery Board for Scotland established by that Act), * shall 

 ' have the genei-al superintendence of the salmon fisheries of Scotland, 

 ' and shall have the powers and duties of Commissioners under the 

 ' Salmon Fishery Acts, but without prejudice to or interference with 



" ' the powers of District Boards.' 



In October 1894, the Fishery Board drew the attention of the 

 " second party's Board to the bye-law Schedule F, above quoted, 

 "in so far as it provided that no ' cruive shall be less in any pai-t of 

 " ' it than 4 feet broad in the clear,' and suggested that, in this respect, 

 " the said cruives were not in conformity with the bye-law. The second 

 " party submitted the communication for the observations of the first 

 " party, and it was ultimately arranged that the parties should adjust a 

 " special case for the opinion and judgment of the Court upon the 

 question of law at issue between them. The parties are agreed that 

 " the widening of the cruives to the said breadth of 4 feet each would, 

 " by lessening the pressure of water, assist the free passage of fish ; but 

 " if the said cruives are so widened, the first party's water supply for 

 " Rack Mill above mentioned, his right to which was judicially afiirmed 

 " by the interlocutors above referred to, will, or may be, prejudiced 

 " during the summer months. The first party estimates the annual 

 " value of the Rack Mill, including the present water power, at XI 5. 



"•11. The first party maintains that, in virtue of his titles, and of the 

 " decrees of Court above referred to, and of the proviso to section 6 of 



the Salmon Fisheries (Scotland) Act 1862, above quoted, he is entitled 

 " to maintain and continue to use the said cruives of the width, viz. not 

 " more than an ell, or 37 inches, each in breadth, as fixed by the said 

 " decrees, at which breadth the cruives have been from time immemorial 

 " maintained ; and that the said 10th section of the Salmon Fisheries 



(Scotland) Act 1868, and relative bye-law, do not in any way alter or 

 " abridge his said right. The second party, on the other hand, maintains 

 " that, on a sound construction of the said Statutes and Schedule, the 

 " first party is bound so to alter and construct the said cruives as to 

 " bring them into conformity with the i-equirements of the said 

 " Schedule." 



The Lord President, in giving judgment, said : — 



" The main question raised by this special case is whether the first 

 " party is entitled to maintain and continue to use his cruives at their 

 existing size, which is 37 inches, or is bound to conform to the regula- 

 " tions of the Commissioners, which require cruives to be of the width 

 " of 4 feet. 



" Now, de facto, the Duke's cruives, 37 inches wide, have been there 

 " for upwards of a hundred years ; but then their origin is very clearly 

 " shown in the special case. The first party does not ascribe the size of 



the cruives to any specific provision to the efiect in the Royal Charters 

 ' ' under which he is in right of the salmon fishings. On the contrary, 



the size of 37 inches was laid down by the Court of Session in the 

 *' decree mentioned on record ; and, from the terms of the decree, it is 



clear that the court prescribed cruives of this size by way of equitably 



harmonising the exercise of the rights of the Earl of Fife with the 

 '* interests of the upper riparian proprietors. In short, the provision of 



