Scottish Court of Session Decisions

The only remaining question therefore is what operations are necessary in order to carry out the bye-law of the Commissioners. That bye-law requires that there shall be a salmon-pass or ladder on the down stream face of every dam, weir, or cauld capable of affording a free passage for the ascending fish at all times when there is water enough in the river to supply the ladder. The question, What alterations on the dam may be necessary to produce this result? is one of engineering skill; and the Sheriff took the assistance of a very able scientific adviser, Mr Stevenson, who received suggestions from the parties, and modified his original views in some respects in consequence of representations from the appellant. The Sheriff has acted on his report, and has directed the appellant to construct the works described by him; and I am of opinion that we should not disturb that judgment.

The dispute between the parties ultimately resolved into two considerations; first, the nature of the pass; and secondly, the position in which it should be placed. The appellant did not dispute that the shoeing in front of the dam rendered the pass substantially useless; but he proposed to extend the existing ladder to the edge of the stone platform, so as to connect it with the deeper part of the stream. Mr Stevenson, however, is of opinion that the construction of the ladder itself is faulty, and that its position is unsuitable to the existing state of the river. On the first of these matters, which is entirely one of engineering science, I do not see that we can do otherwise than follow the views of the judicial reporter, which I do with the more confidence, that some experiments made on the part of the appellant, in the way of improving the present ladder, were admitted to have been unsuccessful. Mr Stevenson, it is true, only says of the last proposal of the appellant that he has no confidence in it; and in the face of that opinion I do not think we can sanction it as effectual. In regard to the position of the passage, Mr Stevenson's views are very strong and clear, and are in a large measure supported by the practical knowledge and experience of many of the witnesses examined. From various causes the channel of the river has altered of late years, and it is reasonable that the salmon-pass should be so placed as to communicate with that part of the bed of the river where the fish may be expected chiefly to run.

I concur with the appellant in thinking that he is not bound to furnish the very best passage for the fish, if he furnished one capable of accomplishing what is required by the bye-law. But it must be efficient, and I cannot hold that what the appellant proposes would be so.

The other Judges concurred.