of the Fishery Board for Scotland. 



69 



' the 37 inch cruives was a regulation laid down by the Court of Session, 

 ' which was then the only body competent to do in particular cases 

 ' what is now done by the Commissioners through general regulations. 

 ' I dg not think, therefore, that the first party can be said to have any 

 ' right to this particular size of cruive under his Charters, and I do not 

 'think that the mere fact of the cruives having been there since 1774 



* discloses a case of a right possessed for time immemorial in the sense 

 ' of the Act, especially when the origin of the cruives is seen to have 

 ' been a decree regulative of possession. The Act of 1862 introduces a 

 '■ new system of regulation, and regulations made under it apply not 

 ' merely to structures to be erected in the future, but to existing struc- 

 ' tures, as was held in the case of Kennedy v. Murray. This being so, 



* I see nothing in the history of the cruives now under consideration 

 'to afibrd to them any immunity from the regulations of the 



* Commissioners. 



"A special point was made regarding the effect of widening the 

 'cruives on the flow of water into the mill-lade. But I suppose the 

 ' necessary result of widening cruives is to affect the flow of the water ; 

 " and this is one of the incidental results of the regulations which must 

 ' be submitted to. Here, again, the first party has no special right con- 

 ' ferred by Charter which places his mill-lades in a protected position. 

 ' The provision in the decree which relates to this matter is again of a 

 ' regulative character, confers no immunity, and does not denote any 

 ' right of the character which is safeguarded in the Act of 1862. 



" I am, therefore, for answering the first question in the negative. 

 ' It was decided in the case of Kennedy that the cost of the operations 

 ' necessary to produce conformity with the regulations falls on the 



* proprietor ; and, therefore, the second query should be answered in 

 ' the afiirmative. This does not necessarily imply that the Board might 

 ' not be entitled, in case of failure on the part of the proprietor, themselves 

 ' to widen the cruives ; and therefore, considered in the abstract, the 

 ' third query is not properly alternative to the second. But it is so 

 ' put, and no circumstances are stated as giving rise to it, except the 

 ' contention of the first party on the question of expense. Accordingly, 



* I think that we should hold it to be superseded." 



Lord Adam said : — 



" By section 6, sub-section 6, of the Fisheries Act of 1862, the Com- 

 ' missioners are directed to make general regulations with respect to , 

 ' inter alia, the construction and use of cruives, provided that such 

 ' regulations shall not interfere with any rights held under Royal Grant 

 ' or Charter^ or possessed from time immemorial. 



" The right of cruive fishing, and, so far as I know, all other rights 

 ' of salmon fishing, are exercised under conditions and regulations 

 ' imposed by Act of Parliament, or otherwise. Any alteration of such 

 ' conditions and regulations would in one sense be an interference with 

 ' such rights of salmon fishing. If that be the meaning of the Act, I 

 " do not see how the Commissioners could make any regulations altering 

 ' or affecting the previously existing conditions and regulations, so that 

 * would be interfering with the right of fishing. 



