of the Fishery Board for Scotland. 
29 
feet wide, still unobstructed ; whereas the artificial dam and the rocks to 
which it joins on entirely block up a space of 49 J feet. In addition to 
the dam being substantially built of piles and tree-trunks and stones, it 
is still further strengthened and bound together by railway metal rails 
running along its crest, and by two iron struts supporting the down stream 
face. I have little doubt that when the river is in such a state as to in- 
duce fish to run — and it was just in such a state when I inspected it — 
that such lish, instead of taking the narrow channel on the left bank, 
will find a resting-place in the pool below the artificial dam ; and I think 
there can be no doubt that spawning fish will not ascend to the valuable 
spawning beds higher up with anything like the same ease that they could 
do before the obstruction was erected and the natural course of the river 
interfered with. The present obstruction serves no industrial purpose. 
It is not in connection with a saw or a corn mill. It is an obstruction, 
pure and simple ; and, as such, I think it might be removed by an action 
of Declarator and Removal, or other process of law. 
In several places in his Treatise on the Law of Scotland relating to 
Rights of Fishing, Mr Stewart distinctly states that obstructions like 
that in the Truim are illegal. Thus on p. 141 he writes : 'In a private 
' stream a person who is proprietor of the fishings, and also of one of the 
' adjacent banks, is entitled to make such use of the bank for the purpose 
' of fishing or otherwise, as he may think proper. But his power is sub- 
' jected to the important limitation, that no erections which he may 
' make, and no operations which he may carry on, shall have the effect 
' of altering the flow of the stream, to the possible damage of the 
' opposite proprietor. The proprietors upon the opposite banks of a 
' private river have a common interest in the stream, and though each 
' has a right of property in the alveus from his own side up to the 
! medium filum fluminis, neither is entitled to use the alveus in such a 
' manner as to interfere with the flow of the stream. Erections on the 
' bank which do not impinge upon the water cannot be objected to ; 
' but the slightest encroachment upon the stream may be resisted and put 
1 a stop to without the necessity of proving that damage has been likely 
' to be sustained, for it is impossible to foretell what the result of it may 
' be on the course of the river. And, for the same reason, if any ob- 
' jection be taken, the onus of proving that the act is not an encroach- 
' ment falls on the party making such encroachment, who is, 'prima facie 
'held responsible.' On page 159 he further writes: — 'Obstructions, 
' whether partial or total, have always been found to fall under the pro- 
' hibitions ; and no kind of barrier to the progress of the fish, whether it 
' rise above the surface of the water or not, will be permitted. It has 
' even been found that placing a row of loose stones, not of any consider- 
' able size, in the bed of a river, not across it, but merely upon the edge 
£ of a pool to facilitate fishing by net and coble is illegal, though net and 
' coble is the ordinary and legal mode of fishing ; the prohibitions extend 
' also to all practices, either destructive to the breed of salmon or so 
' noxious to their tastes and instincts to deter them from ascending 
' higher than suits the interests of the party using such practices.' (See 
also Stewart, last paragraph on page 167 and top of page 168.) 
But supposing it to be decided that a prosecution shall be raised for the 
removal of the illegal obstruction in the Truim, then comes the farther 
question, Who is to prosecute — the Spey District Board or the Fishery 
Board for Scotland % Looking to the terms of ' The Fishery Board 
* (Scotland) Act, 1882,' it humbly seems to me that the Spey District 
Board must raise the prosecution, as the 2nd sub-section of the 5th section 
of that Act provides that 'the Fishery Board shall have the general 
