on 
Appendices to Tenth Annual Report 
river must now ascend by the other channel, which is constantly and 
systematically swept by the nets of the lessee of the salmon fishings. 
This, it humbly seems to me, gives an unfair advantage to the proprietor 
of these fishings, and is highly injurious to the upper proprietors on the 
Awe, Loch Awe, and the Orchy, the principal feeder of Loch Awe. 
The following is a summary of the law with regard to artificial obstruc- 
tions in rivers to the passage of salmon, as given by Mr Stewart in his 
' Treatise on the Law of Scotland relating to Rights of Fishing.' On page 
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 subjected 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 
1 though each has a right of property in the alveus from his own side up 
■ to the medium filium 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 a stop to without the necessity of proving that damage has 
' been or is 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 objection be taken, the onus of proving that the Act is 
' not an encroachment falls on the party making such encroachment, 
' who is, prima facie, held responsible.' On page 149 he further writes : 
— ' Obstructions, whether partial or total, have always been found to fall 
' under the prohibitions : and no kind of barrier to the progress of the 
' fish, whether it rise above the surface of the water or not, will be per- 
' mitted. It has even been found that placing a row of loose stones, not 
1 of any considerable 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 pro- 
' hibitions extend also to all practices, either destructive to the breed of 
' salmon or so noxious to their tastes and instincts as to deter them from 
' ascending higher than suits the interests of the party using such 
' practices.' 
Lastly, on pages 167, 168, he writes: — 'The general result of the 
' statutes and decisions is, that all nets which are permanently or tempo- 
' rarily fixed, and all erections, permanent or temporary (with the excep- 
' tion of cruives possessed on a valid title), which form even a partial 
' obstruction, or tend to frighten the fish, and are fixed either right across 
' the river or at the side of it, are illegal. No length of possession will 
' legalise a mode of fishing originally illegal, or authorise its continuance. 
' Ingenuity might suggest various new and effectual modes of destroying 
' salmon, applicable to the different situations in which the fish are to be 
' found, and which might not be expressly prohibited by any statute 
- or decision, but no such methods will be permitted if they come within 
' the description of prohibited engines before defined ; and it is no defence 
' to an action for the removal of such contrivances, that the right to use 
' them has been expressly conveyed by grant, or that they have been in use 
' for the prescriptive period, or for time immemorial. Damages may be 
' recovered for loss caused by the use of illegal machinery or by the use 
' of legal machinery in an illegal manner.' 
I have underlined part of the last quotation, as Mr Macarthur, the Clerk 
