Scottish Court of Session Decisions

The complainers in this case were the masters and the patrons and managers of Allan's mortification, Stirling, who were proprietors of the Longcrack salmon-fishings on the river Forth. The respondent was the tenant of the Tulliallan fishings, which were situated on the Forth below the Longcrack fishings, and extended from about a mile above Kincardine pier to about three miles below it.

The question related to the legality of a certain mode of fishing practised by the respondent. The following joint minute of admissions sufficiently sets forth the nature of the fishing:—“(2) The said portion of the estuary of the river Forth is not suitable for being fished by means of net-and-coble fishing, pursued by sweep-nets in the usual method; and fishing by that method is practically not possible in the said portion of the river. (3) The method of fishing practised by the respondent is as follows:—The net used by the respondent is 6 or 7 feet deep, and about 200 yards long. The meshes, which are made of very fine twine almost approaching to thread, are from 2 1 2 to 3 inches wide from knot to knot—that is, from 10 to 12 inches round. A light head-rope runs along the whole length of the top of the net, to which are attached cork floats at intervals of about 3 feet, and to a similar rope running along the bottom are fixed light weights or sinkers at intervals of about 10 to 12 feet. The purpose of these floats and sinkers is to keep the net in an upright position in the water, and to keep the upper side of the net always on the surface. A portion of the kind of net used by the respondent, with head and foot ropes, floats, and sinkers attached, is produced. (4) In fishing with this net the practice is to fish about three or four hours every tide, commencing when the ebbing tide begins to slacken, and continuing a short time after the commencement of the flow. This period of the tide is selected because owing to the lightness of the material of which it is composed, if the net were used at a time when the tide flowed at its full strength, the strength of the tide acting with greater force on the floats than on the sinkers would carry the upper part of the net more rapidly than the lower part, and thus make the net take a horizontal position and float upon the surface. But for that circumstance the net might be used in any state of the tide. (5) The operation of fishing with the net is conducted in the following manner:—The boat with the net in it is rowed out into the stream. One end of the net, which may be called the far end or the loose end, is then begun to be payed out into the stream, and during the operation of paying-out the boat is rowed towards the shore, either directly across the stream or in such a direction as will allow sufficiently for the difference of the action of the wind and tide upon the net and the boat respectively. When the net is all payed out the end next the boat is attached by a short rope, one or two yards long, to the stern of the boat. The net is then in the fishing position. There is no direct connection between the far end of the net and the boat or its occupants; and the rope attaching the net to the boat does not for fishing purposes require to be held, and is not in practice held, by any of the occupants of the boat except when the net is being hauled in. The net is generally fished with in water much deeper than the depth of the net, and at a distance from the side sufficient to secure such a depth of water as will keep the net from coming in contact with the bed of the river. The fineness of the material of the net renders it necessary to keep it in a free and slack position, both from the circumstance that if it were kept strained or tight a strong fish would easily burst through it, and also that it would not serve so well the purpose of entangling the fish. The boat is rowed gently for the purpose of putting such a strain upon the net as will keep it extended, and also for the purpose of drawing and keeping the end of the net attached to the boat a little in advance of the middle portion of the net, in which position it fishes more successfully, but not so as otherwise to accelerate the motion of the net, which is allowed to be carried with the current. For the purposes above referred to, the man in charge of the oars requires to ply them constantly except on an occasion when a favourable wind, acting on the boat with greater force than on the floats of the net, renders a continuous use of the oars unnecessary. Occasionally, also, a strong wind blowing in the same direction as the current renders it necessary to restrain the boat so as to prevent it from putting too great a strain upon the net. The action of the tide being in general stronger at the centre of the river than at the shore, the outer end of the net gets gradually in advance of the boat until at length the net lies in a line parallel or nearly parallel to the shore. Being then in a position unsuitable for fishing, it is taken out of the water and again shot or payed out in the manner above described. Throughout the whole process the net and the boat are kept continually in motion in the manner above specified. (6) While the net is being fished as aforesaid, as soon

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as a fish is caught (which is ascertained by the splashing and other motions in the water) the net, up to the part in which the fish is entangled, is drawn on board the boat and the fish taken out immediately. The net has also to be taken out of the river should it get, as it frequently does, into an unfavourable position, or should any obstruction, such as a vessel or buoy, be encountered. Fishing begins, and fish are frequently caught, so soon as the net begins to be paid out as above described. (7) It is the habit of fish of the salmon kind to swim with the head against the current, and when lying in estuaries or tidal water, such as the Firth of Forth, within the boundaries of the Tulliallan fishings and the vicinity, to keep about the same locality. It is only in the time of flood or spate that they push further up the stream. On these occasions the net cannot be used on account of the velocity of the current. Except on such occasions, fish of the salmon kind do not ‘run,’ and do not, it is believed, shift their position much. At all events, in ordinary circumstances it is the tendency of fish of the salmon kind, lying in waters of the kind referred to, to drop back, tail first, with the ebbing current, and as the water gets shallower, and when the tide turns, the fish turn with it, and face and come up stream with the upflowing current. (8) The manner in which salmon and grilse are caught in the respondent's net is as follows:—When the net comes into contact with the fish, or the fish comes into contact with the net, the fish makes an attempt to push through the net, but the fine threads of the mesh entangle it about the mouth, and in further endeavours to escape it envelopes itself in the loose net, the fine threads twisting about the snout of the fish, its teeth and the bones of its mouth, its fins, tail, &c. The lightness of the material of which the net is composed, and the free and unstrained position in which it is purposely kept, except at the end attached to the boat, assist materially in the entanglement of the fish. The net, from the wideness of its meshes, catches fish only of the larger sizes, the smaller fish escaping through the meshes. (9) In the course of the hour and a-half or two hours during which the respondent fishes before the turn of the tide, he usually traverses a distance altogether of about three miles, without including the distances rowed back as after mentioned. His usual course is to fish between Kincardine Pier and the eastern or seaward boundary of his fishing ground, fishing portions of that distance once and perhaps two or three times over—the boat being rowed back for that purpose against the tide. While the boat is being rowed back the net is not in use, but lying in the boat. The respondent usually times his operations downward so as to arrive at the eastern boundary of his ground at the turn of the tide, when he repeats the operation up-stream.”

The complainers pleaded—“(1) The said nets used by the respondent as aforesaid being fixed engines employed and adapted for the capture of salmon and fish of the salmon kind, the same are illegal both at common law and under the statutes libelled. (2) The said nets used by the respondent as aforesaid being illegal, and in violation of the rights of the complainers as upper proprietors on the said river, the complainers are entitled to interdict against the continued use of the same, in terms of the-prayer.”

The respondent pleaded, inter alia—“(2) The nets used by the respondent being neither fixed engines nor illegal obstructions to the passage of salmon or fish of the salmon kind in the river Forth, interdict should be refused, with expenses. (3) The method of fishing pursued by the respondent being merely an improvement on the ordinary method of fishing by net and coble, and rendered necessary from the nature of the river or estuary within the points mentioned, the complainers have no good ground of complaint, and the reasons of suspension should be repelled, with expenses.”

The Lord Ordinary ( Young) sustained the second plea-in-law for the respondent, and refused interdict.

The complainers reclaimed. The arguments of parties sufficiently appear from the opinions of the Court, infra.

Authorities— Hay v. Magistrates of Perth, December 20, 1861, 24 D. 230, rev. May 12, 1863, 4 Macq. 535, and the cases therein cited; Thomas v. Jones, November 29, 1864, 34 L.J., Mags. Cases 45; Act 24 and 25 Vict. c. 109, sec. 11.