Scottish Court of Session Decisions

Maxwell Hyslop Maxwell of The Grove and Glengaber, in the stewarty of Kirkcudbright and the county of Dumfries respectively, brought this action against Henry Lamont, shipowner, proprietor of the estate of Gribton, in the county of Dumfries, and against His Majesty's Advocate, as acting under the statute 20 and 21 Vict. c. 44, on behalf of His Majesty, and on behalf of the Commissioners of His Majesty's Woods, Forests, and Land Revenues, for declarator that the pursuer had right and title to fish for salmon and other fish of the salmon kind by all legal methods in a portion of the river Clouden referred to as the Fourmerkland Water, in the parish of Holywood, including the two pools known as the Fourmerkland Pool and the Gaff Pool, and that he had the sole and exclusive right to the salmon-fishings in the said Fourmerkland Water, and that the defender had no right or title to fish for salmon or other fish of the salmon kind in the said Fourmerkland Water, or to interfere with the pursuer fishing in the said Fourmerkland Water for salmon or other fish of the salmon kind, and that for the purpose of exercising his said right of fishing in the said Fourmerkland Water the pursuer was entitled to obtain for himself and his servants and others having his authority, access to and from the river bed through the property of Gribton belonging to the defender, lying on the north or left bank of the said river in a manner described; and further, that the defender should be interdicted from obstructing the pursuer's access to said Fourmerkland Water in the manner described, or interfering with the pursuer in his exercise of his right of fishing for salmon therein.

The defender Lamont was the only compearing defender.

The pursuer was the proprietor of the Grove, situated on the south, and of Glengaber, situated on the north, of the river Clouden, but neither of these properties actually abutted on the stream.

The pursuer's title to the estate of Glengaber included a Crown charter of resignation and sale dated December 20th 1826, which conveyed property described as the Threemerkland or Fourmerkland “cum piscatione in acqua de Clouden secundum morem et consuetudinem.” Upon this charter the pursuer's predecessor in title obtained sasine and was infeft in 1827.

The pursuer averred (Cond. 5) that the fishings in the Water of Clouden mentioned in this charter were the salmon-fishings in that portion of the river Clouden referred to in the summons as the “Fourmerkland Waters,” embracing two pools called the Fourmerkland Pool and the Gaff Pool. “These pools have been hollowed out by the action of the water in the river-bed, which at the part in question and for some

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distance below is of a rocky nature, bounded on either side by precipitous banks. The pursuer and his predecessors and authors have from time immemorial, by virtue of their charters and infeftments, had exclusive possession and enjoyment of the salmon-fishings in said Fourmerkland Water. The engine they have invariably and regularly employed has been a shovenet, which is a rectangular net 16 feet long by 12 feet wide, and having a depth of 6 feet when lowered into the water. It is attached to two poles and is worked by a couple of men, who have it constantly in motion during the time the act of fishing is in progress. There is no other practicable method of fishing the said Fourmerkland Water for salmon. The character of the river-bed within the limits of said Fourmerkland Water renders impossible the use of net-and-coble, while the height and precipitous nature of the banks are such as to prohibit the effective use of rod and line. In an average season the catch is inconsiderable, and is no more than sufficient to supply the pursuer's own house-hold.”

The pursuer also averred, that his lands not being at any point contiguous with the river he was unable from his own lands to obtain access to the river for the purpose of fishing the Fourmerkland Water, and that he and his predecessors and their servants had been in use from time immemorial to obtain access through the defender's lands to the river for the purpose of fishing the said water for salmon. The pursuer further averred that the defender had no right or title to fish for salmon in the portion of the river in question; that he had challenged the pursuer's right to fish for salmon in the Fourmerkland Water; and that he had obstructed the access by which the pursuer and his servants had been in use to approach the river to fish for salmon.

The defender's lands of Gribton extended for a distance of over two miles along the north bank of the Water of Clouden, the lower extremity of the estate ending at the lower end of the Fourmerkland Pool. The defender was infeft in the estate of Gribton under titles flowing from the Crown, and in particular a charter of adjudication and confirmation dated March 3rd 1699 conferring an express grant of salmon-fishing in the Water of Clouden. In 1790 the estate of Gribton belonged to a predecessor of the defender, who was infeft conform to instrument of sasine dated May 6th 1790, the said title containing an express grant of “the salmon-fishing and other fishing in the said Water of Clouden belonging to all or any part of the lands” disponed.

The defender averred—“(Ans. 5) … The pools referred to by the pursuer are not truly salmon pools at all, but are small deep pots hollowed out by the action of the water in the river-bed, which at that point is of a rocky and shelving character. The fishing at that point is not the fishing mentioned in the pursuer's titles… While the pursuer's titles relate to a different part of the stream, … he and his predecessors in title have taken salmon from the part of the stream now in question, but neither he nor his predecessors ever had exclusive possession of the salmon-fishing at the part of the river in question. The defender and his predecessors in title have from time immemorial, in virtue of their said titles, from time to time, by themselves, their servants, and others, used and enjoyed the salmon-fishings in the said portion of the river, as well as in the other portions thereof ex adverso of the lands of Gribton, by rod and line, which is the only practicable and legal mode of fishing it… . Any possession exercised by the pursuer and his predecessors has been of an entirely illegal character, and is incapable of founding or supporting any right to the fishing. Two methods of fishing have been followed. According to one method a large ladle with a bag-net attached is held at the bottom of a run, and the fish in the run are then frightened and driven into it. The other method is to use a large double-handed landing or shove-net consisting of a net about 18 feet deep and 10 or 12 feet wide stretched between two poles over 20 feet long. The instrument is made to fit the deep pots in the part of the stream in question, and is worked by two men, each of whom takes one of the poles. The men stand on the same side of the pot, and lowering the landing net to the bottom of the pot, one pole being put into the near side and the other into the far side, they then push the net rapidly forward, cross the poles and raise it, thus scooping out whatever is in the pool. The methods of fishing above described are destructive and unsportsmanlike. Similar methods of taking salmon are a common mode of poaching in certain parts of Scotland, and if they were generally adopted they would lead to the extermination of salmon in the upper reaches of rivers and streams. At the point in question their use is specially injurious to the upper riparian proprietors, including the defender, owing to a fall in the stream immediately above, which prevents the fish from ascending except in certain states of the water, and accumulates them in great numbers in these pots. The methods of fishing in question differ entirely from and are in no sense a mode of fishing by net and coble. They are in contravention of the policy and provisions of the statutes regulating salmon-fishing in Scotland generally and in the tributaries of the Solway in particular, and are illegal. The defender has remonstrated, but without success, against their use by the pursuer. No other method of fishing has ever been used at the point in question by the pursuer or his predecessors sufficient to found the right which he claims, and he is not entitled to found on the illegal use above described for any purpose whatever.”

The defender admitted that the pursuer's servants had recently made a practice of getting access to the river through the defender's lands, but denied that the pur suer or his predecessors and their servants

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had from time immemorial used said access. He admitted that he had challenged the pursuer's method of fishing and had erected a gate for the purpose of preventing access to the river for the purpose of such fishing. He averred that the pursuer had no right to fish the water at all, and that the defender's unquestioned right to the salmon fishing in the stretch of water immediately above was seriously prejudiced by the rights and methods of fishing claimed to be exercised by the pursuer.

The pursuer pleaded, inter alia, as follows—“(1) In respect of his titles and possession following thereon as condescended on, the pursuer is entitled to decree of declarator of his right to the salmon fishings in question as concluded for. (2) The defender Henry Lamont having no right or title to the fishings in question, the pursuer is entitled to obtain decree of declarator to that effect as concluded for. (3) The pursuer being proprietor of the salmon-fishings in the portions of the river Clouden in question, is entitled to obtain reasonable access thereto from the lands of the defender Henry Lamont ex adverso thereof.”

The defender pleaded, inter alia, as follows—“(1) No title to sue. (2) The pursuer's statements are irrelevant and insufficient to support the conclusions of the summons. (3) The pursuer not being entitled to the salmon fishings in question in respect either of his title or of possession following thereon, the defender should be assoilzied, with expenses. (4) Any possession had by the pursuer or his predecessors of the salmon fishings in question is, in any view, inept and insufficient to fortify his title by prescription, in respect (1st) that the methods employed were and are illegal… . (7) In any event, the methods of fishing adopted by the pursuer being illegal, the defender was entitled to prevent the pursuer's access to the river for such a purpose, and should be assoilzied from the conclusion for interdict and expenses.”

A proof was led, the purport of which sufficiently appears from the opinion of Lord Kyllachy and Lord Kinnear infra.

On February 27, 1903, the Lord Ordinary ( Kyllachy) pronounced an interlocutor assoilzieing the compearing defender from the conclusions of the summons, and finding the pursuer liable to expenses.

Opinion.—“In this case there has been a lengthened proof which was quite properly directed to a number of facts on which the parties were at issue. There has also been a long argument upon the import of the proof and of the titles of parties. In the view, however, which I have come to take of the case, it falls to be decided upon a comparatively narrow ground.

I think I may say that my judgment would have been substantially for the pursuer had I been satisfied that his method of fishing was a legal method. At least it would have been so as regards the subject mainly in controversy, namely, the fishing in the pool known as Fourmerkland Pool. I see no reason to doubt the sufficiency of the pursuer's title as a basis for prescription. I think also he has proved that in virtue of that title he and his authors have for time immemorial fished for salmon in, at all events, the upper part of the Fourmerkland Pool; and that he has done so by a method which, if legal, involves the fullest possible possession. I think he has also proved that, so far back as the evidence goes, he and his authors possessed, and have not lost by non-user, a right of access through the defender's lands to the pool in question. I do not think he has proved any possession of the Gaff Pool, or of any water except the upper part of the Fourmerkland Pool. Neither do I think that he has displaced, by an examination of the defender's title, the right of the latter to challenge his (the pursuer's) title and criticise his possession. As regards that matter I am disposed to be of opinion that the defender's title is sufficiently good, and that in any case the right of access claimed through his lands removes any difficulty on that point. But, subject to these qualifications (and to perhaps some further qualification connected with the regulation of the right of access), I should, as I have said, have been in the pursuer's favour if only I had been able to hold that, according to the law of Scotland, the net which he and his authors have used is a legal appliance for the capture of salmon.

But after a full, and I hope careful, examination of the authorities, and having regard especially to the opinions of the majority of the learned Lords who delivered opinions in the recent case of the Duke of Atholl v. Glovers of Perth ( 2 F. (H.L.) 57) I have come to the conclusion that the pursuer's method of fishing is not according to the law of Scotland a legal method.

There is, I think, no room for doubt as to what exactly the pursuer's method is, or as to the particular conditions under which it is practised. The method is this. Two men stand at the foot of a pool or pot which forms the upper portion of the Fourmerkland Pool, and has been hollowed out of the rocks by the action of a fall or cascade about 16 feet up. This pool or pot is about 20 feet long by 10 to 15 feet wide, and is surrounded on all sides (except at the foot, where there is a narrow passage into the lower pool) by a more or less perpendicular ledge of rock—a ledge about 9 feet high, and which rises when the water is fishable to within about 2 1 2 feet of the surface of the river. The men are armed with two poles about 22 feet long, having a net hanging between, and attached to them for about half way up. Being so armed, the men first push the net down as far as possible perpendicularly, and then push or shove it along the bottom of the pool to its upper end, when the poles are crossed, and the net is raised and turned over on to the rocks. There is some conflict—even between the pursuer's witnesses—as to whether the pool is swept in each shove, and also as to whether between successive shoves the men change their position. But that is probably not very material. The net is certainly not stationary, nor does it leave while it is being used the hands of the fishermen.

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But in the interval between the successive shoves it has been the practice (generally, but not universally) to use a third pole, by which the bottom of the pool is searched, and any fish lurking in crevices or corners not reached by the net are stirred up so as to be caught at the next shove. The shove, which is in itself very rapid, is generally repeated two or three times, and perhaps oftener. And when the water is suitable, and there are fish lying in the pool, it is sometimes very successful. That is, I think, a fairly accurate description of the pursuer's method, and of the conditions under which it is worked and workable.

Now, upon this description I think one thing is clear. This is not net-and-coble fishing, or any modification of net-and-coble fishing. It is not, in my opinion, anything like net-and-coble fishing. It is not only that net-and-coble fishing is only practicable under entirely different conditions—particularly that it cannot be practised in a pool or pot of narrow dimensions—but requires a certain expanse of open water. Apart from that, the two modes of fishing differ, I think, in principle. The principle of net and coble is that of a draught net working with a prolonged sweep and directed against fish which until caught have their natural freedom. The principle of the shove net, on the other hand, is really that of the gaff or landing net, by which fish already under restraint are pulled or scooped out of the water. It is vain, as it seems to me, to suggest that the two poles are just the counterpart of the two haul ropes, and that the shoving of the net and the subsequent crossing and lifting of the poles are just counterparts of the paying-out and hauling-in which are characteristic of net and coble. I say nothing against the fairness of the pursuer's method. In a river where cruives exist, and I suppose are lawful, there is not much room for considerations of that kind. But whatever may be its merits, and whatever may be the result in law, I hold, and am not able to doubt, that the pursuer's method is not net-and-coble fishing or anything like it.

But that being admitted, is there authority for the proposition that any net fishing for salmon, otherwise than by net and coble, is recognised by our law as legitimate? I know of no decision which affirms the legality of any other mode. Nor prior at all events to the Bermoney Boat Case ( Hay v. Magistrates of Perth, 4 Macq. 535) do I know of any judicial opinion which can be quoted to that effect. The pursuer, however, says that if not by the decision, at all events by the grounds of judgment in the Bermoney Boat Case, the old rule in this matter, if it was a rule, was displaced, and that this has been recognised in at least some of the opinions in the recent case of the Duke of Atholl v. Glovers of Perth.

The question therefore comes really, I think, to be what is the true import of these two decisions ( Hay v. Magistrates of Perth, Duke of Atholl v. Glovers of Perth), having regard to the grounds on which they were respectively decided.

Now, it humbly appears to me that neither the judgment nor the grounds of judgment in either of the two cases go further than this. Given a mode of fishing fairly answering the description of net and coble, there is, with respect to such mode of fishing, no limit to the improvements and modifications which may be admitted, provided only that the net is kept constantly in motion and does not leave the hand of the fisherman, or, to put it otherwise, provided always that the net does not itself fish and do the work of the fisherman. It is, of course, possible to read Lord Westbury's observations in the earlier case, and those of the present Lord Chancellor in the later case, as laying down or favouring a more general doctrine. But judicial opinions must, of course, always be read with reference to the concrete facts to which they apply, and having that in view I am not able to hold that a more general doctrine was really intended.

I cannot overlook that in the Bermoney Boat Case Lord Colonsay's judgment in the Court below was expressly approved by Lord Westbury, and endorsed, or rather re-expressed, in terms almost identical by Lord. Chelmsford, and there can certainly be no doubt as to Lord Colonsay's opinion and ground of judgment. What he said was this—‘I think the question may be put in this form, Is this net and coble, or is it not? That is the real question, apart from the other question as to putting obstructions into the alveus of the river. Is this a fair exercise of the right of fishing by net and coble, or is it not?’

That I must hold expresses the true test of legal fishing as accepted and applied in the Bermoney Boat Case: and if there remained any doubt on the subject it must, I think, be displaced by an examination of the judgments in the recent case of the Duke of Atholl v. Glovers of Perth. For in the decision of that case five of the learned Lords took part, and while of those two perhaps may be held to have proceeded upon other grounds, the remaining three beyond doubt adopt without qualification Lord Colonsay's statement of the rule. Lord Macnaghten said this—‘However that may be, it seems to me that the law on the subject is now finally settled by the decision of this House in Hay v. Lord Provost of Perth, and that nothing would be gained by trying to go behind that decision. And looking for a guide in the opinion delivered in that case I must say, speaking for myself, that I rather prefer the simple test proposed by Lord President M'Neill and adopted by Lord Chelmsford to the more elaborate disquisition of Lord Westbury, which led that noble and learned Lord incidentally to the conclusion that fishing with a casting net was very much the same thing as fishing with a draft net, and which in the case of the Master of Allan's Mortification v. Thomson ( 7 R. 221) contributed in some degree to a decision not I think in accordance with established principle.’ Lord Morris concurs with Lord Macnaghten, and Lord Davey, who also concurred, ends his judgment thus—‘I think the effect of the decision

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in the Bermoney Boat Case was (as expressed in Lord Chelmsford's judgment) that net-and-coble fishing is the type, and the exclusive type, of all lawful salmon-fishing with nets, and although other modes of fishing may conceivably be invented differing in some details and in form from net and coble as at present practised, they must conform to that mode of fishing in substance.’

That appears to me to be the law of the matter, and holding as I do, for the reasons which I have assigned, that the pursuer's method of fishing does not in any reasonable sense answer the description of fishing by net and coble, I consider I am bound to hold that the pursuer's method is unlawful, and that his possession cannot therefore avail for purposes of prescription.

The result is that the defenders will be assoilzied with expenses.”

The pursuer' reclaimed and argued—(1) Title—The pursuer's title to the property described as Fourmerkland “cum piscatione in acqua de Cluden secundum morem et consuetudinem” was at the least a sufficient basis for prescribing a right of salmon-fishing in, inter alia, the Fourmerkland Pool, and he and his predecessors had from time immemorial fished for salmon in that pool in the fullest and most open manner possible, and had possessed a right of access to the pool through the defender's land. On the question of title the Lord Ordinary, as he expressly stated, would have been with the pursuer if only he had been of opinion that the pursuer's method of fishing was legal. On the other hand, the defender had failed to connect himself with the Crown grant of salmon-fishings, and had had no possession of the salmon-fishing in this pool. (2) Legality of Mode of Fishing— The mode of fishing practised by the pursuer was both legal in itself and also sufficient to establish the right of a proprietor infeft cum piscationibus to salmon-fishing. This might be said to be a matter of express decision in Ramsay v. Duke of Roxburgh, February 9, 1848, 19 D. 661, where the mode of fishing was by cairn net. The legality of fishing and taking salmon by means of salmon-cruives, and the sufficiency of that mode of possession to establish prescription, were recognised in Lord Advocate v. LordLovat, July 12, 1880, 7 R. (H.L.) 122, 17 S.L.R. 421, prœsertim per Lord O'Hagan at p. 153, and per Lord Justice-Clerk Moncreiff at p. 134. The judgment in Hay v. Magistrates of Perth ( Bermoney Boat Case), May 12, 1863, 4 Macq. 535, was in favour of the legality of the net there in question. The net as used in the present case satisfied the criteria of legality laid down by Lord Westbury in the Bermoney Boat Case at p. 553, viz., that the net should continue in the hand of the fisherman and should be in motion during the operation of fishing. In Wedderburn v. Duke of Atholl and Duke of Atholl v. Glover Incorportion of Perth, May 28, 1900, 2 F. (H.L.) 57, 37 S.L.R. 686, the ground of judgment was that the modes of fishing there practised involved an illegal obstruction to the passage of salmon up the river prior to the time of capture. As explained by Lord Macnaghten (at p.64) the net there used when set was a fixed engine held in position for the purpose of obstructing the run of the fish. The net here in question was not an obstruction of that kind. It could not take fish automatically, but only when in motion like an ordinary sweep net, and during the act of fishing it was constantly in motion. There was no other practicable method of fishing this pool for salmon, for net and coble was rendered impossible by the small size of the pool and the nature of the river-bed, and the use of rod and line was impracticable owing to the precipitous banks. The defender's case came to this—that no other mode of fishing was legal except by net and coble. This view of the law found no support in the early cases— Colquhoun v. Duke of Montrose, 1804, M. 14, 283; Duke of Atholl v. Wedderburn, December 16, 1826, 5 S. (N.S.) 139, (O.S.) 153; Gray v. Syme, July 9, 1835, 13 S. 1089; Mackenzie v. Houston, May 25, 1830, 8 S. 796, in which the legality of toot-and-haul nets, and modes of fishing other than net and coble, was affirmed or not disputed. Nor did the statutes prohibit fishing by such a method as that used by the pursuer. The statutes only struck at engines which obstructed the passage of fish or which were of the nature of a yair— Duke of Queensberry v. Marquis of Annandale, 1771, M. 14, 279; Dirom v. Littles, 1797, M. 14, 282; Colquhoun v. Duke of Montrose, 1793, M. 12, 827, 1801, 4 Paton 221, 1804, M. 14, 281; Kinnoull v. Hunter, 1802, M. 14, 301, 1804, 4 Paton 561. The case of Erskine v. Magistrates of Stirling, 1763, M. 14,268, was a decision under the Act 1698, c. 3, applying to the Forth, which expressly prohibited the use of “pock and herry water” nets. (For the nature of “herry water” nets see Jamieson's Dictionary, sub voce). The pursuer did not employ any fixed engine or fixture of any kind within the principle of such cases as Grant v. M' William, 1846, reported in note at 10 D. 666; Stuart v. M'Barnet, July 21, 1868, 6 Macph. (H.L.) 123, 5 S.L.R. 704; Earl of Dalhousie v. M'lnroy, July 20, 1865, 3 Macph. 1168; Trustees of Allan Mortification v. Thomson, November 14, 1879, 7 R. 221, 17 S.L.R. 113. It was enough for the pursuer's case to show that his mode of fishing was not clearly illegal, i.e., that it was not such as a proprietor having a right of salmon-fishing would be prohibited from using. The essential point was that his mode of fishing should clearly show possession under his title. A method, of fishing, even though illegal, if pursued in assertion of a right, would found a prescriptive right. The pursuer's mode of fishing was at least an open assertion of his right to take salmon from the pool in the only way in which salmon could be taken from the pool— Mackenzie v. Renton, June 12, 1840, 2 D. 1078; Mackenzie v. Davidson, February 27, 1841, 3 D. 646; Duke of Richmond v. Earl of Seafield, February 16, 1870, 8 Macph. 530, 7 S.L.R. 359, and that was

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enough to constitute the kind of possession necessary to prescription.

Argued for the defender and respondent— Title.—The defender was infeft in the lands of Gribton, abutting on the Clouden, ex adverso of the water in question, under titles from the Crown containing an express grant of the salmon-fishings in the water of Clouden “belonging to all or any part of the lands disponed.” The defender's right under such an express Crown grant could be excluded only by a special title of the same kind or by exclusive possession for the prescriptive period under a habile title— Mackenzie v. Davidson, February 27, 1841, 3 D. 646. Further, the fact that the pursuer also sought declarator of a right of access to the water through the defender's land was in itself sufficient to give the defender a title to dispute the pursuer's right. On the other hand, the pursuer had no right of salmon-fishing ex facie of his titles, for a grant of land cum piscationibus did not carry a right to salmon-fishing unless it was construed to cover such fishing by lawful possession for the prescriptive period. Legality of the Mode of Fishing.—The mode of fishing by the pursuer was illegal both at common law and by statute. It was a destructive and unsportsmanlike method which might be described as scooping the fish out of the pool with a net specially adapted to the pool. In Erskine v. Magistrates of Stirling, 1763, M. 14, 268, it was expressly decided that even proprietors with a right to the estate of salmon-fishing were not entitled to fish with pock-nets, herry water-nets, or stoop-nets. These nets, as described in the case, were similar to the net used by the pursuer. It was true that this decision rested on the Act 1698, c. 3, which applied in terms to the Forth. But it had been clearly stated by Lord Corehouse in Grant v. M' William, 1846, 10 D. 666, in dealing with the effect of the old Scots Acts on this subject, that the Act 1698, c. 3, applied to the rivers of Scotland as a whole. Vide also per Lord Westbury— Hay v. The Magistrates of Perth ( Bermoney Boat Case), supra. The Salmon Fisheries (Scotland) Acts, 25 and 26 Vict. c. 97, sec. 11, and 31 and 32 Vict. c. 123, secs. 15 and 17, also struck at the mode of fishing practised by the pursuer. Thus the use of any instrument for “dragging” for salmon, was expressly prohibited by 31 and 32 Vict. cap. 123. sec. 17. The instrument used by the pursuer might fairly be so described. The cases, too, established the principle that net and coble used fairly and together was the only legitimate mode of fishing by net— Colquhoun v. Duke of Montrose, 1804, M. 14, 283; Duke of Atholl v. Wedderburn, December 16, 1826, 4 S. 153; Mackenzie v. Houston, May 25, 1830, 8 S. 796; Gray v. Syme, July 9, 1835, 13 S. 1089; Duke of Sutherland v. Ross, June 11, 1836, 14 S. 960; Duke of Atholl v. Wedderburn, May 28, 1900, 2 F. (H.L.), 57, 37 S.L.R. 686. It was clear that the pursuer's mode of fishing could not by any stretch be described as net and coble, or any modification of net and coble. The natural formation of the pool, taken in connection with the instrument used, was a relevant consideration— per Lord Blackburn in Duke of Sutherland v. Ross, April 15, 1878, 5 R. (H.L.) 137, 15 S.L.R. 532. Here the pool and the net so fitted each other that the fish had no chance of escape. If the pursuer's mode of fishing was unlawful the continuance of such unlawful fishing for the prescriptive period would not make the pursuer's right effectual — Ramsay v. Duke of Roxburgh, supra; Mackenzie v. Renton, Feb. 27, 1841, 2 D. 1098; Mackenzie v. Macdonald, June 12, 1840, 3 D. 646; Duke of Richmond v. Earl of Seafield, February 16, 1870, 8 Macph. 530, 7 S.L.R. 359; Warrand's Trustees v. Mackintosh, February 17, 1890, 17 R. (H.L.) 13, 27 S.L.R. 393; Duke of Argyll v. Campbell, July 9, 1891, 18 R. 1094, 28 S.L.R. 813. It was said that this pot or pool was not capable of being fished in any other way than by the pursuer's method; if that were so it was impossible to acquire a right of salmon-fishing there by prescription.

At advising—