Scottish Court of Session Decisions

The Earl of Mansfield and William Dalziel Mackenzie of Newbie in the county of Dumfries, complainers, brought a note of suspension and interdict against John Fisher, Craigwood, Glencaple, James Parker, Bank-end, and Joseph Douglas, Wardlawmains, Dumfriesshire, respondents, in which they craved the Court to “interdict, prohibit, and discharge the said respondents from erecting and using stake nets, paidle nets, or other fixed engines for the purpose of capturing salmon or fish of the salmon kind, or fitted to capture salmon or fish of the salmon kind, or of such size and construction, or in such situations, or used in such manner and at such times as to prejudice,

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interfere with, or injure the complainers' rights of salmon fishings on the river Annan or estuary thereof, and upon the sands and shores between high and low water-marks within the limits of the district of the river Annan, fixed and defined by the Commissioners acting under the Salmon Fisheries (Scotland) Act 1862.”

The complainers pleaded—“In respect that the use of said stake nets as constructed and situated constitutes a material injury to the salmon fishing rights of the complainers, interdict should be granted as craved.”

The respondents pleaded, inter alia—“(1) The nets in question being situated within the water of the Solway, where the sea ebbs and flows, are privileged by the Act of Queen Mary, 1563, cap. 68, said privilege being reserved by the first section of the Statute Law Revision Act, 6 Edw. VII, cap. 38. (2) The respondent James Parker, in erecting and using the nets in question, having acted in pursuance of his just and legal rights, is entitled to be assoilzied from the conclusions of the action. (3) The respondent James Parker is entitled to be assoilzied from the conclusions of the action in respect that (first) he has not erected or used the nets in question for the purpose of catching salmon or fish of the salnlon kind; (second) and the said nets are not of such size, construction, or so situated or used as to injure the complainers' rights of salmon fishing to any substantial or material extent.”

The respondent Fisher did not appear.

Interim interdict was granted and thereafter, the note having been passed, the Lord Ordinary ( Skerrington) allowed a proof.

The facts of the case and the import of the proof sufficiently appear from the opinion of the Lord Ordinary, who on 17th December 1912 refused the prayer of the note of suspension and interdict.

Opinion.—The complainers are the Earl of Mansfield and Mr Mackenzie of Newbie, who are the proprietors of salmon fishings within the salmon fishery district of the river Annan. At the date when the present note of suspension and interdict was presented, the respondents, John Fisher, James Parker, and Joseph Douglas, were fishing each with a range of three paidle nets on the Blackshaw Bank, a large sandbank which is dry at low tide, and which is situated in the parish of Caerlave-rock and county of Dumfries. An imaginary line running north and south across this bank divides the salmon fishery district of the river Annan on the east from the district of the river Nith on the west. The complainers ask for an interdict to restrain the respondents from ‘erecting and using stake nets, paidle nets, or other fixed engines for the purpose of capturing salmon or fish of the salmon kind, or fitted to capture salmon or fish of the salmon kind, or of such size and construction, or in such situations, or used in such manner and at such times as to prejudice, interfere with, or injure the complainers' rights of salmon fishings on the river Annan or estuary thereof, and upon the sands and shores between high and low water-marks within the limits of the district of the river Annan, fixed and defined by the Commissioners acting under the Salmon Fisheries (Scotland) Act 1862.’ The complainers' pleadings are as confused as their prayer, and they mix up in a very perplexing manner three separate and distinct grounds of action, viz.—(1) The old Scots Statutes, and particularly the Act 1563, c. 68, which have been construed as prohibiting fixed engines for the capture of fish within the estuaries of rivers where the tide ebbs and flows, but excepting always fixed engines in ‘the water of Solway’; (2) the Salmon Fishery Acts of 1861 and 1862, which prohibit the placing or using of fixed engines ‘for catching salmon’ in the Solway Firth or its tributary rivers; and (3) the rule of the common law which is expressed in the maxim sic utere tuo ut alienum non laedas. Though the locus in the present case is within the fishery district of the river Annan, the Ordnance plan shows that it is also in the Solway Firth. The salmon stake nets belonging to the complainer Mr Mackenzie are four miles further east and nearer the mouth of the river Annan, but they have been held to be legal as being in the Solway Firth— Johnstone v. Mackenzie, (1869) 6 S.L.R. 727. On the other hand, in a case which he decided in 1886, Lord Trayner found that the paidle nets complained of in that action were not in the Solway but were in the river Nith. This distinction is of great practical importance, because it followed from the foregoing finding in fact that these nets were illegal without any proof that they were placed or used for catching salmon and without proof of material injury either actual or imminent. The respondent Douglas, who acted as his own counsel, argued that it was not proved that the place on which his three nets had been erected was within the district of the river Annan. I do not agree with him. The respondent Fisher did not lodge answers. The respondent Parker lodged answers and was represented by counsel.

For the reason already explained, I decide that the respondents' nets were in the water of Solway. I now proceed to consider whether they were illegal under the Acts of 1861 and 1862 or at common law. The nets used by the three respondents were paidle nets—in other words, miniature stake nets, 4 1 2 to 5 feet in height, as contrasted with proper salmon stake nets, which are from 10 to 12 feet in height. Paidle nets are primarily adapted to catch flounders—fish which swim near the ground and will therefore enter the nets at all states of the tide except when the nets are dry. On the other hand, as salmon swim near the surface, these nets are specially adapted in order to avoid, so far as possible, either catching salmon or obstructing their passage up and down the Solway. Owing to the Jowness of the white fishers' nets, it would be difficult for them to creep into the chambers at low tide and collect the fish, and they would further with their heavy boots destroy the netting, which is generally spread over the floor of

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the chambers. Hence the advantage of a ‘paidle’ or barrel trap in which the fish are collected, and from which they are removed by the fishermen shortly before low tide. Salmon nets have no paidle. The fisherman walks into the chamber and collects the fish. It has been recently suggested that paidle nets ought to have a heck or gate made of horizontal spars three inches apart in order to prevent salmon from entering the chamber, but this suggestion has not yet been proved to be feasible. In the opinion of the white fishermen it would prove unworkable owing to the quantities of jelly-fish which are found in the Solway. The present case is in its facts entirely different from one which was recently decided by the Second Division on appeal from the Sheriff of Dumfries and Galloway and which at first sight appears to be very similar— Buccleuch, v. Smith, 1911 S.C. 409. The locus was the same sandbank, but that part of it which lies within the fishery district of the river Nith. It also appears from the opinions of the Judges that they assumed that the nets complained of were in the Solway Firth. Lastly, exceptfor one specialty which affects the respondent Parker alone, the nets used in the two cases were substantially the same, viz., the ordinary paidle net. So far the two cases were very similar. On the other hand, it appears from the opinions of the Lord Justice-Clerk (p. 417), Lord Ardwall (p. 424), and Lord Salvesen (p. 425) that they held it to be proved that the netting which formed a cover over the top of the chamber of the defenders' nets was useless for preventing the escape of flounders, but was useful for preventing the escape of salmon. It was inevitable that white fishers who used nets specially adapted for catching salmon and not flounders should be subjected to an interdict. I have not seen the evidence by which it was proved that flounders will not rise from the sand and escape by swimming when there is plenty of water available. No such evidence was adduced by the complainers in the present action. Neither in his cross-examination nor in his speech did their counsel suggest any doubt as to the truth and accuracy of the evidence given by the respondent Parker and his witnesses to the effect that the removal of the covers subsequent to the judgment of the Second Division had been proved by actual experience to diminish the value of the catch of white fish by about one-half owing to the larger flounders making their escape through the top of the net. On the other hand, the complainers' counsel tried to prove that the cover did not materially facilitate the capture of salmon. His witnesses propounded the theory that a salmon would not try to jump or swim through the top of the net, but would make its way straight into the paidle. In deference to the views expressed in the 1911 case, most of the Caerlaverock white fishers, including the respondent Parker, removed the covers from their nets and submitted during the seasons 1911 and 1912 to the loss of a large part of their catch. The complainers are not content with this sacrifice, but insist that the paidle also must be removed. No person has ever used a net which had neither cover nor paidle, and I do not believe that such a method of white fishing is practicable, though it was recommended so long ago as 1881 in the report referred to by Lord Ardwall at page 423 of his opinion. I distrust the complainers' theories as to the mode in which the respondents ought to carry on their business, and as to the probable behaviour of fish when inclosed in the chamber of a net. It is very remarkable that the theories upon which the Court was induced to interdict the white fishers in 1911 are now abandoned as not worth defending.

The complainers tried to prove that the respondents had selected a fishing ground which was better suited for catching salmon than flounders, and that under the pretext of catching flounders they fished with the object of catching salmon, but this attempt was a failure. I saw Parker and I heard his evidence. I believed him when he said that he had no desire to catch salmon and did not try to do so. He proved his sincerity by taking the covers off his nets after the Judges had suggested that the covers were hurtful to the salmon-fishery owners. Douglas did not go into the witness-box, but as he had not the benefit of legal advice I do not draw any unfavourable inference from this fact. It is enough to say that it is not proved that salmon and not flounders were the real object of his fishing. His refusal to remove the covers from his nets shows merely that he objected to the loss of his best flounders. There is no evidence that any of the respondents killed a single salmon. But it is proved that their nets whether with or without covers were capable of catching not only flounders but salmon, and did in fact capture some salmon or fish of the salmon kind. Their nets were repeatedly inspected by the police from late in April until early in July 1912. In the case of Fisher (who used a cover but no paidle) thirteen visits disclosed eight salmon or fish of the salmon kind in his three nets; in the case of Parker (who used a paidle but no cover) twenty-one visits disclosed four such fish in his three nets; and in the case of Douglas (who used both cover and paidle) eighteen, or as he maintains twenty-two, visits disclosed sixteen such fish in his three nets. In view of these figures I do not think it possible to hold that the respondents captured salmon only occasionally or accidentally. There must be many places within the Solway Firth (which for the present purpose extends to the Mull of Galloway) where no one would expect to catch salmon, though occasionally a salmon might come into a net as might a porpoise or a small shark. But the Blackshaw Bank seems to me to be a place where the capture of salmon or sea-trout is at least probable, notwithstanding the fact that a paidle net is used and not a proper salmon net. Accordingly if the respondents' acquittal depends on my holding that it was an unlikely event that salmon would be caught in their nets, and that they in fact entertained any such belief, I should find them guilty. I use the language of criminal law, because the first question is whether the complainers have

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proved that the respondents have committed an offence against the Salmon Fisheries Acts 1861 and 1862.

Section 33 of the Salmon Fisheries (Scotland) Act 1862 (25 and 26 Vict. cap. 97) enacts that from and after 1st January 1865 the provisions of the English Act of 1861 shall ‘extend and apply to salmon fisheries in the waters and on the shores of the Solway Firth, situate in Scotland, as the same may be fixed by authority of this Act, and to the rivers flowing into the same, in so far as such provisions relate to the use of fixed engines for the taking of salmon: Provided that all offences against such provisions shall be prosecuted and punished as directed by this Act.’ The Commissioners under the Act of 1862 fixed the limit dividing the Solway Firth from the Sea to be a straight line from the Mull of Galloway to Hod-barrow Point in Cumberland. Section 11 of the English Salmon Fisheries Act of 1861 (21 and 25 Vict. cap. 109) enacted that ‘No fixed engine of any description shall be placed or used for catching salmon on any inland or tidal waters, and any engine placed or used in contravention of this section may be taken possession of and destroyed, and any engine so placed or used and any salmon taken by such engine shall be forfeited, and in addition thereto the owner of any engine placed or used in contravention of this section shall for each day of so placing or using the same incur a penalty not exceeding £10.’ The section excepted ‘any ancient right or mode of fishing as lawfully exercised at the time of the passing of this Act by any person by virtue of any grant or charter or immemorial usage.’ In order to give practical effect to this legislation a private Act was passed on 14th August 1877 (40 and 41 Vict. cap. 240) authorising the appointment of commissioners to inquire ‘into the legality of all fixed engines erected or used for the taking of salmon in the waters and on the shores of the Solway Firth in Scotland,’ and empowering the Commissioners to ‘abate and remove all such fixed engines as are not proved to their satisfaction to be privileged as hereinafter provided.’ In Stewart on Fishings (2nd ed.) p. 556 et seq., there is a list of the fixed engines on the Solway which received a certificate of privilege, and also a memorandum by the Commissioners as to their proceedings. The Act of 1877 does not throw any light upon the interpretation of the Act of 1861. It uses the words ‘erected or used’ as equivalent to the words ‘placed or used’ in the earlier Act. The Court of Session decided that these Commissioners had jurisdiction to order the removal of paidle nets when they were satisfied that such nets had been erected or used for taking salmon— Coulthard v. Mackenzie, (1879) 6 R. 1322. The Acts of 1861 and 1862 are highly penal, and must be strictly construed. The purpose for which the net is set is of the essence of the offence— Haydon v. Cormack, (1835) 22 S.L.R. 563; Marshall v. Phyn, (1900) 3 F. (J.) 21; Watts v. Lucas, L.R., 6 Q.B. 226. According to the ordinary use of language a person does not fish for salmon who adopts every known and practicable means in order to avoid catching them, and who puts back every salmon which is caught in his net. Fishermen cannot help catching fish which are either worthless to them or which they are legally bound to return to the water. Anglers for trout catch eels, salmon anglers catch kelts, and sea fishers catch dog-fish. It is inevitable that they should do so, and in a sense they intend to catch these fish, because every man must be deemed to contemplate and intend the natural consequences of his acts. But in ordinary parlance it would be absurd to say that such fishermen use their tackle for catching eels or kelts or dog-fish. If the Act of 1862 had intended to make it a part of the law of Scotland that no fixed engine capable of catching salmon as well as white fish should be placed or used in waters frequented by salmon it would have said so. Any such enactment would have made white fishing impossible in places where it had been practised from time immemorial. I do not believe that Parliament would have passed such a law without giving the white fishers an opportunity of defending themselves by their counsel and witnesses. They have since had such an opportunity before departmental and royal commissioners, but no legislation has followed upon these inquiries. If upon a sound construction of the Act of 1861 the paidle net is illegal merely because it is fitted to catch salmon as well as flounders, I do not understand why the Nith and Annan Fishery Boards have not long ago swept them away. Instead of doing so they have left it to individual proprietors of salmon fisheries to attack individual white fishers upon the round that the latter, though ostensibly shing for flounders, did so as a pretext for catching salmon. Anyone can see that a paidle net will catch a salmon, and everybody knows that large numbers of salmon ascend and descend the Solway Firth between the mouth of the Nith and the mouth of the Sark. If the capacity to catch salmon is the test of legality no evidence except of a formal kind would be necessary in an application for an order for removal of such a net from a place like the Blackshaw Bank. Proof of material injury, or indeed of any injury, to a salmon fishery is by statute unnecessary in an action for interdict or removal directed against a a white fisher who uses an illegal engine within the same fishery district.—See the Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. cap. 123), sec. 37. The complainers have, in my judgment, failed to prove that the respondents while ostensibly fishing for flounders placed or used their nets for the purpose of catching salmon. Their case under the Acts of 1861 and 1862 having failed, it now remains to consider whether they have made out a case which entitles them to a remedy at common law.

The common law applicable to cases of this kind is familiar and simple and is summed up in the maxim sic utere tuo ut alienum non laedas. There is, so far as I am aware, no specialty affecting the application of this general principle of law to conflicts between a heritable right of salmon

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fishing and a public right of white fishing, though the contrary is, I think, sometimes assumed to have been decided in the case of Gilbertson v. Mackenzie, (1878) 5 R. 610, and although that decision is sometimes referred to as if it professed to lay down in advance precise conditions with which persons fishing for white fish by means of stake nets must comply under pain of being regarded as outlaws. In Gilbertson's case the pursuer had come into Court with the extravagant claim that he was entitled to fish for white fish by means of stake nets without any regard whatsoever to the rights and interests of the owners of salmon fisheries. He was met with the equally extravagant defence that members of the public who used the foreshore in the exercise of their undoubted common law and statutory right of fishing were not entitled to use stake nets for the purpose of catching white fish. The Court negatived both these contentions. Accordingly, in declaring that the pursuer as one of the public had right to fish for white fish in the Solway by means of stake nets fixed on the shore, the Courts added the words ‘in such places and of such a description as not to interfere with the defenders' salmon fishing.’ The interlocutor further contained a reservation ‘of the right of the parties respectively to take such legal proceedings, the one against the other, as may be competent for preventing all undue or improper encroachments on or interference with his or their respective right of fishing.’ From this judgment I extract four propositions, viz.—(1) The public right of white fishing resembles all other rights in that it is absolute and unqualified only in those cases where its exercise does not to any extent interfere with the rights of third parties, e.g., a right of salmon fishing; (2) if there is any interference at all with the rights of third parties the Court must decide whether it is material or negligible; (3) if the interference is material the Court must try to reconcile the exercise of both rights so that each may subsist and continue to be enjoyed; and (4) if in any particular case white fishing by means of stake nets is impossible without material injury to a salmon fishing, it may be that the latter right should prevail as being ‘the higher and more potential,’ but no decision was pronounced on this point. The recent case of Pirie & Son, Limited v. Kintore, 5 F. 818, 8 F. 1058, aff. 8 F. (H.L.) 16, is a practical example of the application of the principles which we affirmed in general terms in Gilbertson's case. The action arose out of a conflict between a right of salmon fishing and a proprietary right to divert the water of a river for driving a mill. Both the Court of Session and the House of Lords rejected the argument that it was illegal for riparian owners to build a weir across a river, because it would necessarily interfere with the rights of the owners of salmon fishings by detaining salmon in the pool below the weir where they were liable to be caught by poachers. On the other hand, interdict was granted on proof of material obstruction to the passage of the fish up and down the river. Lord Davie said (p. 18)—‘The respondents say that their right is to have the river maintained in its natural condition, and that any interference, however slight, with the natural flow of the stream is therefore a wrong which may be restrained by interdict. I think that this puts the right of the fishery owners against the lower riparian proprietors too high, and that their right is only to require that no interference shall be made which materially obstructs the passage of the fish.’

Applying these principles to the facts of the present case, I find that the complainers have failed, or rather have not attempted to prove, that the respondents' nets have in the past caused any material injury to their salmon fisheries, or that any such injury directly resulting from the use of these nets is imminent and certain in the future. There is no proof that salmon are diverted from the complainers' nets, the nearest of which are four miles distant from the nets of the respondents. There is no proof that the respondents have caught and killed a single salmon or sea trout. The only interference which the complainers have proved is the detention of a few salmon for a short time in the respondents' nets upon their journey up and down the Solway Firth. If the respondents are carrying on a business which is otherwise lawful it is absurd to suggest that they can be interdicted upon any such ground. The complainers, no doubt, believe, rightly or wrongly, that the respondents will poach and kill salmon whenever they get the chance of doing so with impunity, but at the same time they shrink from incurring the trouble and expense of proving their case. They wish to have the benefit of the Acts of 1861 and 1862 without having to prove what the Acts require as a condition of the remedy. Accordingly they ask the Court to assume without evidence that the respondents' nets were placed and used for the purpose of catching salmon. The difficulty of proving actual or intended poaching is not a good reason for assuming that men who may be innocent are guilty.

There are four decisions by the Second Division of the Court of Session in which decree has been pronounced at the instance of the owners of salmon stake nets for interdict against the use of or for removal of paidle nets. In the earliest of these cases— Mackenzie v. Murray (1881), 9 R. 186—the locus was Powfoot, a village some miles to the east of the Blackshaw Bank. The Court held that the paidle nets complained of had been used for the purpose of catching salmon and had been ‘chiefly profitable as real salmon nets.’ It followed that these nets had been placed and used in contravention of the Acts of 1861 and 1862. It was further proved that they had been placed unduly near to the complainer's nets, and that they diverted salmon from these nets. It followed that they were also illegal at common law. The second case is the decision by Lord Trayner in 1886 to which I have already referred. It is reported under the name of

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Buccleuch v. Herries in a footnote to the report of Buccleuch v. Smith, 1911 S.C. 409, to which I have also already made reference. The locus in both these cases was the Black-shaw Bank. Lord Trayner's first ground of judgment was that the nets complained of were ‘placed on the river Nith and estuary thereof and not in the waters of the Solway.’ The contrary was assumed to be the fact in the 1911 case. The plan was used in the litigations of 1886 and 1911. The nets referred to in the 1886 case are marked in red and numbered in black ink. The nets referred to in the 1911 case are marked in black and numbered in red ink. They are very numerous in each of the two cases and occupy much the same positions. The line of nets begins at a point which is undoubtedly on the left bank of the river Nith and not in the Solway, and it extends for a long distance southward along the side of the channel in which the Nith runs at low water before joining the Solway Firth. It then turns eastwards across the Blackshaw Bank until it crosses the line dividing the district of the river Nith from that of the river Annan, and so reaches the locus of the present dispute. There has been much litigation as to the boundary between the river Nith and the Solway.—See M'Whirr, 11 S. 552, rev. 1 S. and M'L. 393, 15 S. 299, 873. The line fixed in M'Whirr's case is shown on the plan No. 6 as running parallel to and three-quarters of a mile to the west of the line which divides the fishery districts. The Salmon Fisheries Acts of 1862 and 1868 do not touch this question of fact.—See Stewart on Fishings (2nd ed.), p. 354 note. In the litigations of 1886 and 1911 the Court in each case applied the broad axe, and in the earlier case treated the nets as being all in the Nith, and in the later case as being all in the Solway. Lord Trayner's second round of judgment was that the respondents’ nets were erected and used for the capture of salmon, and were not bona fide erected or used for the capture of white fish. This amounted to a conviction of an offence against section 11 of the 1861 Act. His third ground of judgment was that the capture of salmon in these nets was prejudicial to the pursuers as salmon fishery owners. It was proved that prior to 1886 the owners of paidle nets thought themselves entitled to capture and kill and did capture and kill salmon. The case which Lord Trayner had to decide was therefore a very clear one-(1) under the old Scots Acts, (2) under the Acts of 1861 and 1862, and (3) at common law. The same is true of the recent case in the Second Division, except that the old Scots Acts did not apply, as the locus was assumed to be in the Solway. The fourth case— Buccleuch v. Kean, 17 R. 829—was decided in the year 1890, and the locus was Powfoot. This decision seems to carry the rights of the salmon fishers very far, as it does not appear that there was any evidence of guilty intention or of actual injury to a salmon fishing on the part of the white fisher by killing salmon or otherwise. This last decision, and also the dicta of some of the Judges in all the four cases, have caused me considerable difficulty. After giving them the best consideration in my power I do not think that they compel me to issue an interdict against persons who are not proved to have fished with the object of catching salmon or to have caused any injury whatsoever to the complainers. For the sake of clearness I have thrown into statutory form the legal proposition which I should have to affirm if I granted interdict in the present case, and the result is a very formidable amendment of the Act of 1861, viz.—‘No stake net capable of catching salmon, though primarily adapted for catching flounders, shall be erected or used for the bona fide purpose of catching flounders in any place in the Solway Firth where the capture of salmon (except accidentally or occasionally) is likely to result or has in fact resulted from the use of such a stake net, and the erection or use of such a stake net in any such place shall without further evidence be deemed to be injurious to every salmon fishery in the same fishery district.’

“For the foregoing reasons, I refuse the note and recall the interim interdict in the case of the respondents Parker and Douglas.”

The complainers appealed, and argued—The Lord Ordinary had treated the present case as if it were a criminal prosecution where the mental intent of the respondents was the chief thing, whereas the de quo queritur in the case was the nature of the engine. The presumption was that the respondents had set the nets to catch salmon because that was the only thing that would pay them. It was further proved on the evidence that salmon as a matter of fact were caught in the nets. The complainers in the present case were suing at common law and not under statute. The present case was ruled by that of Buccleuch v. Smith, 1911 S.C. 409, 48 S.L.R. 300, and was indistinguishable from it, except as to the cover on the net. Complainers did not dispute the right of white fishers to fish with fixed engines on the Solway. This right was not, however, derived from the statute of Queen Anne, 1705, c. 48, or the Fisheries (Scotland) Act 1756 (29 Geo. II, c. 23) cited by respondents, but from the old statute of Queen Mary, 1563, c. 68. The Statute Law Revision Act (6 Edw. VII, c. 38), repealed this in part, but the right to fish in the Solway with fixed engines had been recognised by a long series of decisions, and the complainers did not dispute it— Gilbertson v. Mackenzie, February 2, 1878, 5 R. 610, 15 S.L.R. 334, referring to two earlier cases in 1777 and 1811 (not reported), and following them. This right, however, could not be exercised to the material injury of salmon fishing. In 1879 the Solway Salmon Fisheries Commissioners, acting under the Solway Salmon Fisheries Commissioners (Scotland) Act 1877 (40 and 41 Vict. cap. ccxli), secs. 3 and 8, made an investigation to determine what nets were authorised to catch salmon, and paidle nets were condemned— Coulthard v. Mackenzie, July 18, 1879, 6 R. 1322, 16 S.L.R. 767 (reported

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s. v. Solway Salmon Fisheries Commissioners, Mackenzie and Coulthard's cases). This case was followed in Mackenzie v. Murray, December 1, 1881, 9 R. 180, 19 S.L.R. 157. The test was not whether the nets were intended to capture white fish, but whether they were fitted to capture and did capture salmon— Duke of Buccleuch v. Kean, May 30, 1890, 17 R. 829, 27 S.L.R. 695. The cover had nothing to do with the actual decision in these cases, which was based on the fact that the nets were capable of catching salmon and did so in considerable numbers. It was not necessary for the proprietors of salmon fishings to prove material injury by the illegal acts of other persons—The Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 123), sec. 37, and Stewart on Fishings, p. 159. The form of interdict in the present case was almost exactly the same as the form under which interdict was craved and granted in Buccleuch v. Smith, cit. sup. The cases of Haydon v. Cormack, March 19, 1885, 22 S.L.R. 563; Marshall v. Phyn, December 11, 1900, 3 F. (J.) 21, 38 S.L.R. 171; and Watts v. Lucas, 1871, L.R., 6 Q.B. 226, referred to by the Lord Ordinary, were not in point.

Argued for the respondent Parker—This defender had adopted all practicable means of avoiding the capture of salmon while continuing to catch white fish. His nets were low and had no cover. It could not be questioned that he had a statutory right to fish for white fish by stake nets—Act of 1705, c. 48, and the Fisheries (Scotland) Act 1756 ( cit. sup.). The Court could not deprive the respondent of that right on the ground that the nets did in fact catch a few salmon. The salmon fishing was not paramount— Gilbertson v. Mackenzie ( cit. sup.). Stake nets were not illegal at common law, and the Act of Queen Mary, 1563, c. 68 ( cit. sup.) exempted the Solway from the prohibition against fixed engines—Stewart on Fishings, p. 344; M'Whirr v. Oswald, March 8, 1833, 11 S. 552, 1 S. & M. 393; Murray v. Earl of Selkirk, July 6, 1821, 1 S. 107, 2 Sh. Ap. 299. This respondent was fishing in a position which was comparatively innocuous for catching salmon. If it could be shown that the place in question was prolific in salmon the complainers' right to interdict might be good, but that was not so. There were no covers in this case, and in that respect it was different from the case of Buccleuch v. Smith ( cit. sup.), founded on by the pursuers. It was further distinguishable from that case in that it was proved that the respondent was genuinely fishing for white fish, and that the complainers had not proved any material injury. Further, the complainers must show the nature and extent of their interest in salmon, and they had failed to do so. In any event the interdict craved was too vague— Cathcart v. Sloss, November 22, 1864, 3 Macph. 76; Cairns v. Lee, October 29, 1892, 20 R. 16, 30 S.L.R. 47; Perth General Station Committee v. Ross, June 26, 1896, 23 R. 885, 33 S.L.R. 786, 24 R. (H.L.) 44, 34 S.L.R. 871.

The respondent Douglas presented on his own behalf an argument of substantially the same import as the foregoing, subject to the admission that his nets were covered.

At advising—