Privileges accessory to, and inherent in, a Right of Salmon Fishing. - Regulations for fishing.
Lieutenant-Colonel Dirom, and others, v. John and William Littles
Date: 25 February 1797 Case No. No. 18.
Fishing by stent and hang-nets prohibited.
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In 1768, the superior heritors on the river Annan brought a declarator against the Marquis of Annandale and his tenants, complaining of the mode in which the inferior fishings were exercised.
The Court (No. 16. p. 14279.) found, “That although the Marquis of Annandale, the inferior heritor, and his tenants, have right to use all legal engines and methods for catching the fish in the river Annan, conform to law, and their possession, yet they have no right, either in time of actual fishing, or at any other time, to erect any engine, or use any other method, not for the purpose of catching fish, but for preventing or obstructing them from passing up the river; and therefore found, that the method used by them, of stenting nets across the river, either reaching altogether from side to side, or overlapping each other, in the manner mentioned in the proof, or stenting them across the arch of Annan Bridge, or of putting leisters with long shafts in the said bridge, or the method of stretching a rope in the river, with bones tied to it, are illegal methods, intended for preventing or obstructing the fish from passing up the river, and are not only prejudicial to the superior heritors, but destructive of the fishing, and ought to be discontinued in time coming.”
In 1796, Lieutenant-Colonel Dirom, and other superior heritors on the river, presented a petition and complaint against John and William Littles, the lessees of the inferior fishings, in which they accused them of acting contrary to this judgment.
The defenders answered, That the fishing was exercised by them in the manner in which it had been ever since the date of the decree, and for time immemorial before, by means of “hang-nets,” of which, and of the mode of using them, they gave the following description. The hang-net is fixed by one extremity on the shore, and then drawn diagonally downwards, across a smooth part of the river, and reaching not above one half the breadth of it. The other extremity of the net is left loose. The one side of the net is sunk by small pieces of lead, and the other supported by cork, so as to make the net stand perpendicular in the water; and when a fish comes against it, the net yields, and the fish is caught, by being entangled in it. They further contended, that, from the want of pools in the river proper for a draught-net, this was the only way in which the fishing could be carried on with advantage; and that being a mode of killing the fish, and not merely of obstructing their passage, like stent-nets, it was not struck by the interlocutor in the former action.
The complainers, on the other hand, maintained, that the hang-net had the same object, and nearly the same effect, with the stent-net; the former being stretched across that part of the river by which alone the salmon attempted to pass; and extremely detrimental to the complainers, both by the obstruction which it occasions, and, when the fish caught are left hanging in it, by frighting other salmon from coming at all up the river; and that, consequently, these nets were illegal, both in terms of the former interlocutor, and of the principle of the decision, 21st December, 1793, Sir James Colquhoun against the Duke of Montrose and others, No. 17.
The Lords, upon advising the petition, with answers, replies, and duplies, prohibited the defenders “from erecting any engines, or using any method, not for the purpose of catching fish, but for obstructing or preventing them from passing up the river; and, in particular, from using stent-nets or hang-nets, of any sort or denomination.”
A petition, and additional petition, were (16th May, 1797,) refused without answers.
Act. Hay.Alt. H. Erskine, Hope, Williamson.Clerk, Menzies.
Fac. Coll. App. No. 1. p. 1.
