22 
A^miMom to Tenth Ammd Report 
Cauld through which the water runs into the fish-pass on the left bank 
and so entirely preventing the ascent of salmon into the upper waters. In 
the ordinary case, such a proceeding would be utterly illegal and in dis- 
tinct violation of the 6th section of the bye-law (Schedule G). But it was 
stated to me that in this case the municipality of Dumfries, from whom the 
miller holds his lease, have a title fortified by prescription, which exempts 
them from the provisions of the above-mentioned bye-law. It seems to me 
that the town can only claim such an exemption under the provision at 
the end of the 6th section of the Salmon Fisheries Act of 1862, that the 
regulations made by the Commissioners 1 shall not interfere with any rights 
1 held at the time of the passing of this Act under royal grant or charter, 
' or possessed for time immemorial.' But I venture to think that, even if 
the town can show that their title is covered by this proviso, it will not 
entitle them or their lessee to block up the fish-pass in defiance of the bye- 
law (Schedule G). For the decision in the case of ' Kennedy v. Murray, 
' 8th July 1869' seems to authorize the view that the Commissioners 
regulations embodied in the bye-law are valid and binding in spite of the 
proviso. It was there held (1) ' that the Salmon Fishery Commissioners 
' under the Act of 1862 have power to make bye-laws applicable to lades, 
' dams, &c, whether in the process of being constructed or repaired or not ; 
1 and (2) (by a majority of seven judges, the Lord President, Lord Justice- 
' Clerk, and Lord Cowan dissenting) that the Commissioners have also 
' power to impose an obligation on the owners and occupiers of mills to 
* execute at their own cost the works embraced in the bye-laws so made.' 
Pollution of There is no diminution in the pollution of the Mth since I inspected 
the Nith. it in 1883 ; and it is still made the receptacle for the sewage of Dumfries, 
and the polluted and poisonous water from the mills and manufactories on 
its banks. The consequence is that the bed of the river in many places 
between the Cauld and the sea is a mass of foetid mud, as I can testify 
from personal observation, and the salmon fishings have greatly fallen off. 
And unfortunately, as the law at present stands, District Boards are 
powerless to deal with the evil. They cannot travel beyond the Acts 
which create them and define their powers, and cannot, therefore, prosecute 
at common law, as riparian owners may do. Consequently, they can only 
act upon the 13th clause of the Salmon Fisheries Act of 1862, as amended, 
or rather emasculated, by the 16th section of the Act of 1868. That 13th 
section provided that ' ever}' person who causes or knowingly permits to 
1 flow, or puts or knowingly permits to be put, into any river containing 
' salmon, any liquid or solid matter, poisonous or deleterious to salmon, 
' or who shall discharge into any river sawdust to an extent injurious to 
i any salmon fishery, shall be liable to the following penalties,' &c. 
Under this section it was sufficient, for the purpose of procuring a con- 
viction, to prove the discharge of liquid or solid matter poisonous or 
deleterious to salmon into any river containing salmon. But the amend- 
ment introduced by the 16th clause of the Act of 1868 strikes out the 
words ' or who shall discharge into any river sawdust,' the putting of saw- 
dust into rivers being separately provided against by paragraph 7 of the 
15th section of the Act of 1868 ; but then it unfortunately leaves in the 
words, ' to an extent injurious to any salmon fishery,' which evidently 
belong to and were meant to be read in connection with the words, * or 
4 who shall discharge into any river sawdust,' and which ought, therefore, 
to have been struck out at the same time. As it is, they have been 
allowed to remain, and now read in connection with the words, ' any 
' liquid or solid- matter poisonous or deleterious to salmon ; ' and the con- 
sequence has been that while, under the Act of 1862, it was sufficient to 
prove the simple putting in of matter poisonous or deleterious to salmon 
