6 



Appendices to Sixteenth Anniial Report 



improve it. The dam, which is curved in shape, is about five feet high, 

 and presents, except at certain levels of the river, a considerable 

 obstruction to the passage of fish. The face of the dam is about twenty- 

 seven feet broad, sloping, for the upper half of its breadth, at an angle 

 of about one in four, and for the lower half at about one in seven. The 

 fish-pass is nothing more than a depression, a few inches deep, on the 

 face of the dam, and, in its present condition, cannot possibly afford a 

 free passage to fish at all times in terms of the bye-law (Schedule G). 

 What is required is the erection of three small subsidiary dams in the 

 angle formed by the curve of the mill dam. The fall from the crest of 

 one to the crest of the other should not exceed fourteen inches ; they 

 should not be less than ten feet apart ; and there should be at least 

 three feet depth of water in the pools formed between each. The cost 

 would be trifling if they were constructed in the same manner as 

 those at Mile End Weir, Llangollen, on the river Dee (Cheshire), 

 of which a plan is given in the Thirty-fifth Annual Report of the 

 Inspectors of Fisheries (England and Wales). East Mill dam is not 

 such a serious obstruction, but its ascent might be greatly facilitated if 

 similar subsidiary dams were placed in the angle which it forms with 

 the right bank of the river. At Blaikie mill dam the provision of the 

 bye-law with regard to the construction of a fish-pass is altogether 

 disregarded, while at Finavon the pass is inefficient. Further, although 

 at neither of the two last-mentioned places were the mills working at 

 the time of my inspection, yet in each case a greater volume of water 

 was running to waste through the lade than was flowing over the dam ; 

 and I was informed that the provisions of the bye-law (Section 2, 

 Schedule G) as to the shutting of sluices when the mills are not working 

 are habitually contravened. These matters require the attention of the 

 South Esk District Board, as it would seem, after the decisions given 

 in the Court of Session in the cases of Kennedy v. Murray, 1869, 

 7 Macph. 1001 ; Myers v. Grant, 1871, Scot. Law Reporter, Vol. VIII., 

 p. 404 ; and Duke of Fife and others, 1897, Scot. Law Reporter, Vol. 

 XXXIV., p. 440, that District Boards should have no difficulty in 

 enforcing the provisions of the Commissioners' bye-laws, and that they 

 have, therefore, now no excuse for neglecting to do so. The provisions 

 of the bye-law (Schedule G), and the requirements which modern 

 experience has shown are necessary in order to produce an efficient 

 pass, are discussed at length in my Report on Ci-aigo and Morpliie 

 dam dykes which is appended in Note II. 



In a prosecution raised by the South Esk District Board an important 

 point of law was decided, on appeal, by the High Court of Justiciary, 

 with regard to the liability of a tenant, or occupier of salmon fishings, 

 for offences committed by a servant against orders. The offence 

 complained of was a breach of the regulations with regard to the weekly 

 close time by neglecting to take out of the water the leaders of certain 

 bag-nets. The Court held that the 24th Section of the Act of 1868 

 (31 and 32 Vic. cap. 123), and the 3rd Section of Schedule D appended 

 to that Act, lay a statutory duty on occupiers of salmon fishings 

 to remove their nets during the weekly close time, and that a tenant of 

 salmon fishings is an occupier within the meaning of the Act and 

 cannot evade responsibility for failure to perform that duty by 

 pleading fault on the part of his servants (Don and another v. Johnston, 

 Scots Law Times, Vol. V., 296 App.) 

 Dereron. From the South Esk I went to the Deveron to advise the District 



Fishery Board as to the alteration of the cruives, which the Court 

 decided, in the special case referred to in my last Annual Report, must 

 conform to the regulations contained in the Commissioners' bye-law 



