Scottish Court of Session Decisions

In the northern shore of that large arm of the sea which is known by the name of the Moray Frith, there is an opening of 4400 feet in width between two rocky headlands termed the Sutors of Cromarty. The water within the Sutors is the Frith of Cromarty, which expands on either side into the bay of Cromarty on the south, and the bay of Nigg on the north. After passing inwards as far as Invergordon, the breadth of the water is contracted to about three-fourths of a mile, after which it increases, and, at high water, varies from two miles to one mile throughout the remainder of the Cromarty Frith, which reaches above the town of Dingwall. About two miles above Dingwall, the water is contracted to the breadth of 290 feet where it is crossed by Conon bridge. The river Conon, descending from Ross-shire, flows under this bridge, after having experienced the first influence of the tide at a distance of about two miles above it. At or near the point of Ardully on the Cromarty Frith, is the line below which the sea never recedes at low ebb tide. At the distance of two miles above this point there are certain lands belonging to Duncan G. Forbes of Culloden, whose titles contain a grant of fishings “tam in mari quam in aqua de Conon.” The level of the surface of the water at Conon bridge is about twelve feet higher than the level at or near Ardully point; from which, to the Sutors, the level remains the same. The distance from Conon bridge to the Sutors of Cromarty, is above twenty miles. The superficial area, covered by water, at low tide, within these limits, is about seventeen square miles; at high water it is 34 1 2 square miles. Between high and low tide, at neap-tides, the difference in the volume of water within these limits is 4750,000,000 of cubic feet; and at spring-tides, the difference is twice as great. There is great depth of water, at all times of the tide, between the Sutors, and also in the Cromarty Frith. There is no bar of sand, or other deposit, at or near the Sutors.

In 1828 the Honourable Mrs Maria Hay Mackenzie, as proprietor of Salmon-fishings in the river Conon, and her tacksman Captain Hugh Munro of Teaninich, presented a bill of suspension and interdict against various parties, proprietors along either shore of the Cromarty Frith, including the bay of Cromarty and bay of Nigg, down to the Sutors of Cromarty, complaining that they made use of stake-nets, and similar machinery for catching salmon and other fish, and praying for interdict against them, in respect that the stake-nets were placed in the estuary of the river Conon, which was a situation prohibited by statute. ¹

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¹ 1424, c. 11; 1427, c. 6 (or 116); 1469, c. 37; 1477, c. 73; 1488, c 16; 1489, c. 15; 1563, c. 3 (or 68); 1579, c. 89; 1581, c. 3; 1685, c. 20; 1705, c. 2.

The application was opposed by Archibald Horne, accountant, judicial factor on the estate of Cromarty, which was situated on the bay of Cromarty, near the Sutors; and also by Robert B. Æ. Macleod of Cadboll, and Colin Mackenzie of Newhall, whose estates lay nearer to the fishings of Mrs Mackenzie, than the estate of Cromarty did, but all of them below the point of Ardully.

The respondents maintained that the prohibitions of the statutes were meant for the protection of rivers, not of the sea, or arms of the sea, and did not reach below the line of low ebb tide, and therefore did not strike at their stake-nets.

The bill of suspension was passed; and after a record was closed, the following issue was adjusted between the suspenders and Horne, as representing the Cromarty estate:—“Whether the defender, or his predecessors in office, have or has wrongfully fished for salmon in the Frith of Cromarty, opposite to the lands and estate of Cromarty, and others, during the years 1824, 25, 26, 27, and 28, or any part thereof, by means of stake-nets, bag-nets, yairs, or other engines placed in situations prohibited by statute.”

A similar issue was framed as to each of the other respondents. A jury trial took place, at which the suspenders stood as pursuers, and which lasted for three days, and at which evidence was led on both sides, as to the size of the river Conon; the quantity of the water discharged by it; the traces of a channel, indicating a current of water, through the frith of Cromarty, down to the Sutors; the extent to which a river-course was apparent at low water, flowing through sands and shaulds towards the Sutors; the depth of the water at low tide, and the rise of the tide; the soundings, &c.; the proportion of fresh and salt water present throughout the space between the bridge of Conon and the Sutors; the character of the land boundaries on either side, and particularly the fauces terræ separating the Cromarty Frith from that arm of the sea, termed the Moray Frith; the strength of the river-current perceptible throughout the space in question in navigating the Cromarty Frith after floods and otherwise; the kinds of fish, shell-fish, &c., and also the species of sea-wreck or weeds found within the limits, as indicating whether the water should he regarded as river, or as sea; the species of birds frequenting it, &c. These and similar induciæ were adduced in evidence on both sides. The jury found a verdict for the pursuers. The defenders presented a bill of exceptions, embracing two points; first, the competency of certain evidence as admitted at the trial; and, second, a direction in law, given by the presiding Judge, in his charge to the jury.

1 st Exception:—

One of the witnesses adduced by the suspenders was George Buchanan, civil engineer, who had been employed for upwards of two months in making a survey of the shores and channel of the Cromarty Frith, &c., the soundings, tides, &c. From the facts and observations thus collected by him in his field-book, he had afterwards, at the distance of six or eight weeks, prepared a report for the information of the pursuers, stating the results at which he had arrived, as deducible from these observations. The report was printed by the pursuers, and a copy of it was given by them to Buchanan. At the trial, as the notes of the presiding Judge bore, Buchanan deponed, “I have often examined estuaries. I reported on South Esk, Solway, and Nith. I surveyed Conon, aided by Mr Gunn—made plan—sounded, &c. (Proves the large plan, No. 71 of process, and its accuracy, and the accuracy of the reduced copy, as engraved.) On 29th August, 1836, 100 yards above Conon Bridge, the discharge of water was 125,000 cubic feet a minute. Little or no flood water. No rain for some days. Conon descends from high and central parts of Ross; and in floods, discharge must be ten times as great.”—“At this stage of the examination of the said George Buchanan, the counsel learned in the law for the said defenders did object to the witness having before him a printed paper, while giving his testimony. And the witness being examined as to the said printed paper, deponed, That it was a copy of a report which he had made to the pursuers, on their employment, and on the margin of which he had, two days ago, made a few jottings. The witness stated that he had his original note-book with him, and that these jottings are not in it, though their materials are. He could with a little time, repeat the calculations of which these jottings consist, but he happened to make them with a view to his own explanations as a witness, on the margin of the printed copy. His report is dated 1st November, 1836. It is made from his original notes, but it is not a literal transcript of them; but in substance it is the same. Whereupon the said counsel for the defenders did object to the said witness being allowed, while giving his testimony, to have before him, and refer to the said printed paper and notes written thereon, which were not made at the time of making the survey or observations with reference to the firth of Cromarty. But the said Lord Cockburn, after looking at the said printed paper and notes, repelled the objection. Whereupon the said counsel for the said defenders did then and there except to the foresaid judgment of the said Lord Cockburn, and insisted that the said George Buchanan ought not, in giving his testimony, to be allowed to have the said paper and jottings thereon before him, or to refer thereto, and that such testimony so given could not be received as legal and competent evidence.” At the close of the examination this document was sealed up, and placed in the hands of the Court, on the motion of the pursuers.

In support of their exception, the defenders pleaded that Buchanan should not have been allowed to refer to the copy of the report; ( 1.) Because it was not proved even to be a correct copy of the principal report, and if inaccurate in its figures, or other details, it might materially mislead the witness. (2.) Even if an accurate copy, the principal was not in the situation of a memorandum made up at the time, and therefore it could not be referred to by a witness to refresh his memory. (3.) The report was a document prepared for a special purpose, to support one side of a question, and when the mind of the party preparing it was necessarily subject to a strong bias. It was, therefore, highly inexpedient that be should have it at hand while deponing, as it served the purpose of tutoring him in his testimony. (4.) The defenders had not been allowed access to the document for the purpose of cross-examining the witness, either on their initial objection to it, or afterwards on the testimony given by him in causa. ¹

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¹ Robertson, 2 Murr. 304—Robertson, 2 Murr. 368—Lindsay, 3 Murr. 99—Oswald, 5 Murr. 8—Graham's Trustees, 5 Murr. 99—Graham, 5 Murr. 75—Jones, 2 Carr and Payne, 166—Starkie on Evidence, 154.

The suspenders answered, that the precise exception set forth in the bill of exceptions, could alone be regarded, and keeping that strictly in view, the pleas of the respondents were either unfounded or inapplicable. (1.) Buchanan expressly deponed that the document was “a copy of a report, &c.” These words, in their fair signification, necessarily meant a true or accurate copy, for, otherwise, it was no copy at all; and that import of the words was not shaken by any cross-examination. (2.) The original notes of Buchanan's field-book were all made up at the time. They consisted of numerous detailed observations on tides, soundings, &c., which could not be accurately carried in the memory, and which, moreover, required to be classed and averaged, in order to arrive at results. Buchanan was a scientific witness, and the results and opinions formed by him were necessarily made afterwards, but on these details as their basis. Buchanan had deponed as to his report, that though not a “literal transcript” of his original notes, “in substance it was the same.” Thus there was no other change except such classification and generalization of the memoranda in the notes, as was essential to make his evidence, as a scientific witness, intelligible. The substance of the report was the same with the substance of the notes, and it was therefore just as competent to allow him to look at the one, as it would have been to allow him to look at the other. There was no more difference between the report and the notes on which it was based, than in the case of a medical report of a post mortem examination, where memoranda are taken at the moment of inspection, and the report is extended after an interval of various duration; or than in the case of a map of a tract of country which is prepared after an interval, from the data of the various heights, distances, &c., which have been taken down at the date of the survey. It was true that the document could not, in the present instance, be proved and put into Court as a piece of documentary evidence, because it had not been lodged in process eight days before the trial; but its authenticity was as free of objection as a report in any of the above cases would have been, and, to the limited effect of allowing it to be referred to by the witness in his examination, it was competently used. The parole evidence of Buchanan, which was all that went to the Jury, was not thereby vitiated. But, separatim, Buchanan had his original notes with him. It did not appear as to any one fact to which Buchanan was bound to speak from recollection, or from notes made at the time, that he did speak from any thing else; and as he was entitled to refer to his report as containing the result of calculations which could neither be made at the time, in the field-book, nor in the witness-box at the trial, the exception was plainly unfounded which went to exclude Buchanan from all reference to his report for any purpose whatever, and which, moreover, did not instruct that he used it for any purpose, for which it could not legitimately be used. ¹ (3.) The report was just a statement of the true deductions and results from the detailed observations in the field-books. It was liable to no bias which did not equally attach to any report prepared by a scientific witness, whether it were the plan or map of a frith, or anything else. (4.) The respondents did not ask for the use of the document in cross-examining, and could not complain of the want of what was never denied to them.

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¹ Phillips on Evid. I. 289 (7th edit.)—Starkie on Evid. 155 (2d edit.)

2 d Exception:—

In charging the Jury, the following statement was made by the presiding Judge as to the local position in which the prohibitions of the statutes applied to stake-nets:—“Assuming these machines to have been used, the point is, whether they were so, wrongfully? There are many circumstances which might have made the use of them wrongful; but the only ground on which they can be held to have been so, under these issues, is, that they were placed in illegal situations. Hence the full question put to you is, whether salmon were wrongfully fished by means of these engines, ‘placed in situations prohibited by law.’

“It may naturally occur to you as odd, that a question so much involved in law should be put to you. But it was unavoidable. Because, though a Court may give the legal rule, which permits or condemns these machines, according to circumstances, the determination of the circumstances, that is, of the facts to which the rule is to be applied, is the proper province of a jury. I shall, therefore, begin by giving you as much of the law as is necessary, and shall then leave you, with such observations as may appear to me to be proper, to apply this law to what you shall think the true import of the evidence.

“I say as much as is necessary; for it is not necessary for the determination of this particular case that I should give, or attempt to give you a catalogue, or a description, of all the circumstances, even of situation, under which stake-nets may be lawful, or the reverse, many of them having no application to this case; and it is needless to encumber ourselves with legal matter that is superfluous. Nor shall I trouble you by any observations, either on the history or on the policy of the law. These may be useful to lawyers, by assisting them to put the right construction on disputed statutes. But they are of little or no use after the construction of these statutes is fixed, and least of all to juries, who, without any reasoning on the subject, must take the law as they receive it from the Court.

“Now, I have to lay it down to you, in the first place, that the statutes, as explained by decisions, make these machines unlawful, if they be placed in what is usually known as a river, in the ordinary sense of this word. You have heard enough in this case to let you know, that science and investigation may discover rivers where the uninformed eye cannot or does not trace them. Of this case I shall speak instantly. All I now say is, that this apparatus is prohibited by law, if it be placed in a river.

“In the second place, there are many rivers which only join the ocean through a firth, or through a land-locked valley, where the fresh and salt waters meet. In this situation it will probably depend upon external appearances whether ordinary observers will say that the space is occupied by the sea, or by the river, or by both. If it shall be so fully and distinctly occupied by the flowing fresh water, as that it is really a river, though the common river features may be periodically effaced by the tide, it comes under the preceding rule; that is, being still a river, these machines are unlawful.

“Moreover, rivers have estuaries; that is, spaces intermediate between the strictly proper river and the strictly proper sea. Through these partly fresh, and partly salt estuaries, though its ordinary river features may be impaired, or at high tides even obliterated, the river still does in truth exist and operate, though its existence be only continued among sands and shaulds through which it has to work its way, struggling with the tide. Now these structures are also unlawful in these estuaries. Not that estuaries are specially mentioned by name in the statutes, neither are friths; but the estuary is a part of the river, and is included under this word. The mere name is of little importance. The thing to he looked to is the fact of the absence, or of the prevalence of the fresh water, though strongly impregnated by salt. Now, where this fresh water prevails, though in the estuary, these structures are illegal; and they are not only unlawful (meaning always within the ebbing and flowing of the tide) when placed in the channel of the estuary that is always covered with water, but they are so also if they be placed on the sands which are left dry by the ebbing of the sea.

“In these two situations, viz., in the river, or in its land-locked estuary, the contrivances are illegal. There are two situations of a different description in which they are lawful.

“For, in the third place, some rivers terminate without passing through any frith or estuary, and are lost in the open ocean almost so soon as they touch the salt water. In this case stake-nets are not prohibited, if they be placed away from the immediate mouth of the river, though situated where the sea ebbs and flows. The ebbing and flowing wont of itself render them unlawful, because they may be within the sphere of this phenomenon, and yet in the pure and undoubted sea.

“In the fourth place, there are examples in which the junction of the fresh water and the salt does not take place, as in the case last put, at the edge of the open ocean, but far up in the land, where the river loses itself in arms, or in bays of the sea. These portions of the ocean become what are called arms of the sea, merely because they happen to be enclosed within ridges, which guide their waters into the interior. But this circumstance does not make these arms identical with estuaries. They are the sea; and being so, these machines, if placed in or on arms of the sea, as distinguished from the estuaries of rivers, are not unlawful. What shall be held to be an arm, and what an estuary, is a question of fact for you. All I say as to the rule is, that if there be an arm distinct from an estuary, then, in that arm, or, in other words, in that portion of the sea, these fixed traps are not illegal.

“The substance of these rules is nearly this,—that to make the particular engines with which we are now dealing unlawful, it must be proved that they are in a river, or in its estuary, whether within the channel, or on the sands made dry by the ebbing. It is the pursuer's business to prove that they are so placed. If he shall fail, the defenders may have nothing to do. But if, not content with relying on the pursuer's failure, the defenders choose, they may show, and they have tried to do so, that their structures are truly in the sea—whether the open sea, or on one of its arms or bays—and if so, they are lawful.

“In short, a river does not lose its legal protection, in reference to salmon-fishing, merely by being met by the advancing tide, provided this be within what are called (though usually by two Latin words) the jaws of the land, and provided the relative size of the river, and the other circumstances, shall satisfy a jury, that, on the whole, the space is river, including in this term its estuary. And, on the other hand, the sea does not lose its privileges merely because a river flows into it, or flows through one of its arms or bays, where the tide ebbs and flows, provided the relative smallness of the stream, and other circumstances, shall satisfy a jury, that, on the whole, the space is sea and not river, or the continuation of a river through its estuary.”

The defenders “excepted to the aforesaid opinion and direction of the said Lord Cockburn, and did maintain that the said Lord Cockburn ought not to have directed the jury in point of law, that the engines set forth in the issues were illegal if placed in estuaries, according to the aforesaid description and definition of them. And did also except to the said charge, in so far as it did not direct the jury that the prohibitions of the statutes could not extend lower down than to the point where the fresh water of the river joined the salt water of the sea at low ebb tide.”

In support of this exception, the defenders pleaded—

1. The Tay Fishing Case ¹ was decided on specialties, by which the Court were guided in determining the limits of the River Tay, and it did not fix any general rule for ascertaining, in other cases, the limits between sea and river in the sense of the statutes. In particular, (1.) The act 1581, c. 15, which appointed conservators for the rivers, had named the Sheriffs of Perth, Forfar, and Fife, and the Magistrates of Perth and Dundee, as conservators of the River Tay, thereby indicating that it was held to be under statutory protection as a river, at least as low as Dundee. Whereas the same statute only appointed the Bailie and Chamberlain of Ross, as conservator for the water of Conon; thereby equally indicating that the water, at least as soon as it reached the Cromarty Frith, was not held to be under the statutory protection afforded to rivers, otherwise the Sheriff of Cromarty would have been conjoined as conservator also. But, according to this test, the fishings of the defenders were far below the statutory limits. (2.) The great bar of the Drumly Sands, at the mouth of the Tay, was held to be another important indication that the river continued till then to retain its river character, and only there lost its force and current in the sea, so as to occasion the deposit which had formed the bar. But in regard to the Conon, there was no bar at or near the Sutors of Cromarty, and the only appearance of a bar was at Finden Bank, above Ardully Point. Ardully was at or near the point below which the sea, at ebb-tide, never receded. And taking the bar, if such there were, as the river terminus, the fishings of the defenders were below it. (3.) The title-deeds of proprietors along the Tay had been much relied on by the Court, as indicating the limits of the river; especially a Crown charter to Lord Gray, containing the hereditary office of Keeper of the River Tay on both sides, which described the limits as extending from Drumly Sands, “usque ad summitatem et caput dictæ aquæ.” But no similar titles were produced to show that the limits of the Conon had ever been considered such as the pursuers alleged. On the contrary, in the titles of Culloden, whose property lay above all the stake-nets of the defenders, his fishings were described as “tam in mari quam in aqua de Conon.” It thus appeared, that in determining the limits of the statutory protection of the River Tay, the Court had various important specialties to guide them, which were independent of the natural physical boundaries between river and sea, and even went to overrule these, so as to give a latitude of application of the prohibitory statutes to the Tay, such as they did not possess as to any other river. And in regard to all these specialties, they were either wanting, in the case of the Conon, or they were of an opposite character, and tended to restrain the river limits, not to extend them.

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¹ Duke of Atholl and Others, March 7, 1812, F. C.—June 16, 1816, 5 Dow, 282—and Feb. 4, 1817, F. C.

2. If the authority of the Tay case were removed, there were no other cases which, on examination, could be held precedents against the rule of construction of the statutes, which was maintained by the defenders.

3. According to the true construction of the statutes, their prohibitions did not reach below the point where the fresh water of the river, cut the sea-line at the lowest ebb of the tide. At that point there was always sea, and always would have been sea, even if no river had existed, and there the statutory prohibition ceased.

It was fixed by the case of Kintore that the statutes did not apply to the shores of the proper sea; ¹ and confessedly the open sea, or a true arm of the sea, were on the same footing in this respect. On the other hand, a river was clearly within the prohibition; and the question was, to draw the limit, as to the space in which the river and the sea intermingled. The description ¹ of the space within that limit, in the old statute of Robert I. c. 12, passed in 1318, was, “in aquis ubi ascendit mare et se retrahit, et ubi Salmunculi, vel smolti, seu fria alterius generis piscium maris vel aquæ dulcis descendunt et ascendunt.” Taking these words for a guide, the prohibition could not strike below the line of low ebb tide. Below that point the sea never withdrew itself; and moreover, below that point the salmon fry and other fish, could not be said to ascend or descend, because, although the river-stream flowed down to that point at ebb tide, and the fish might be said to ascend and descend the stream, as far as that point, yet below it there was perpetual sea, and no more descent, but the sea-level always remaining. From the line of lowest ebb to the high water mark, there was, in the case of the Cromarty Frith, a space of about six miles in length, and varying in breadth from 100 to 2000 yards, within which the river was periodically swallowed up by the ocean, and again left free by the receding tide. That was the space described in the words of the statute, within which, if the fishing machinery were placed, it truly was “in aquis ubi ascendit mare et se retrahit,” &c. But this description could not apply below the lowest line of ebb, because although the water there was liable to ebb and flow, it was so, only like the body of the ocean; and on the shores of proper sea, it was fixed that the prohibitions did not apply. Besides this, the only change made by a flood or ebb tide, or any spot situated below the ebb-line, was a change of depth and nothing else: it was not a change described by the words “ascendit et se retrahit.” Below that line, the sea never withdrew.

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¹ Earl of Kintore and Others, May 31, 1826 (ante, IV. 641, or 648, new ed.), and July 11, 1828—3 W. and S. Appeals, 265.

The subsequent statutes corresponded with this construction; ² and the policy of the statutes supported it. Their purpose was the protection of the fry, ³ and preservation of the salmon. But according to the habits of that fish, as ascertained in its natural history, a prohibition which extended above the ebb-line, would give ample protection; as the fry, descending to the sea, left the sides of the water and went into the middle as soon as they reached the body of salt water. And accordingly (the defenders alleged that) their stake-nets being on the shore, and below the ebb-line, had never injured the fry in the smallest degree. They were thus entirely beyond the intendment of the statutes; and as many of these statutes imposed penalties, their limits ought not to be extended.

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¹ The argument on this point is only briefly given, as it has been already reported in Duke of Atholl and Others, March 7, 1812, F. C.

² 1424, c. 12; 1427, c. 116; 1429, c. 22; 1457, c. 34; 1469, c. 87; 1477, c. 6; 1488, c. 13; 1489, c. 16; 1563, c. 3.

³ Per Lord Meadowbank, senior, and Lord Gillies; Duke of Atholl and Others, ut supra.

Further, the line of demarcation contended for by the defenders, was obvious to common observation, at least for all practical purposes, though it might require the aid of science to define it with absolute precision. And this was material in construing old statutes, especially which imposed penalties on contraveners, as it was in the highest degree improbable that any other line of prohibition would be imposed than such as the lieges could easily understand and apply.

Institutional writers had adopted that view of the construction of the statutes; ¹ and there was one decision in regard to a private right of fishing, in which the House of Lords had occasion to give a judgment, expressly defining the import of the words “ostium fluminis;” in which the same limits were assigned to them as those now contended for. They held them “to comprehend the whole space betwixt the lowest ebb and the highest flood-mark.” ² That fixed the lowest limit of the mouth of the river towards the sea, precisely where the defenders contended that the statutes in question held it to be.

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¹ Balf.; voce Fishings; 2 St. 3, 70; 2 Bankt. 3, 70; 2 Ersk. 6, 15.

² Earl of Moray, April 16, 1728 (12797).

If these views were well founded, the direction of Lord Cockburn was exceptionable, because his Lordship had not charged the jury that the line of low ebb tide, was the lowest to which the statutory prohibitions reached. But even independently of this, the charge was exceptionable in stating that the statutory prohibitions reached to all estuaries as described by his Lordship's charge. The word estuary itself was nowhere in any of the statutes: and the chief test laid down by his Lordship for trying whether the statutory prohibition applied, being “the absence or the prevalence of the fresh water,” was a test inaccurate in itself, and without any warrant, either in the statutes, decisions, or institutional writers. In addition to this, the definition of estuaries given by his Lordship, was in itself obscure and liable to misapprehension, as it was not easy for a juryman to know, provided the water was not either absolutely and wholly fresh, or absolutely and wholly salt, whether the test did not instantly apply, or at least, what relative proportion of these two ingredients admitted or excluded the test.

The bill of exceptions ought, therefore, to be sustained.

The pursuers answered—

I. The Tay case ³ was a ruling precedent, by which it was fixed, after the very fullest consideration, that the doctrine maintained by the defenders, as to the construction of the statutes, was untenable. For although that doctrine was expressly pleaded, it was over-ruled, and the statutory prohibitions were carried far below the lowest line of the ebb tide. It was true that, in fixing the actual boundary, special circumstances were taken into view, as must always be the case where the physical features and characters of river, shore, and sea, must, in all their details, be taken into account, in every individual case. But there were no specialties which prevented the decision from being such an application of the statutes (regulating all rivers alike), as completely negatived the doctrine of the defenders.

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³ Duke of Atholl and Others, March 7, 1812, F.C.

In particular, as to the specialties alleged by the defenders—(1) The statute 1581, c. 15, in naming conservators for a river which ran between two countries, frequently selected the party having jurisdiction on one side of the river only; as where the Sheriff of Banff was named conservator of the Deveron, which divides the county of Banff from that of Aberdeen; and the Sheriff of Forfar was chosen for the North Esk, which flows between Forfar and Kincardineshires. And so in like manner, as the Conon flowed chiefly through Ross-shire, and was all along bounded by Ross-shire on the North, down to the Sutors of Cromarty, the hereditary Bailie and Chamberlain of Ross was alone named conservator of the water of Conon. But the nomination of that officer did not in the least affect the question as to the limits of the statutory prohibition. And in the statute 1685, c. 20, for protecting fishings, a commissioner was appointed “from Ness to Conon, high and low, comprehending Cromartyshire:” which words seemed necessarily to comprehend the Frith of Cromarty as part of the river Conon. (2.) The effect of the existence of a bar such as Drumly Sands, was merely one of the circumstances of evidence for indicating where the limits of the river lay. It was merely an element in the question of fact for the jury. But it had no relevancy whatever in the question of law as to the proper construction of the statutes. Such a fact, however, would have been wholly irrelevant and immaterial in the Tay case, if the doctrine of the defenders had not been there repelled, because the statutory prohibition would have stopped far short of the Drumly Sands. (3.) The title-deeds of the private proprietor along a river, however expressed, could have no effect on the construction of public statutes, which, without reference to such titles, were intended to regulate all rivers for objects of public policy. They might, as matter of mere evidence, assist in showing that, in point of fact, the river Tay had always been regarded as an actual river, far below the limit to which the defenders would confine the statutory prohibitions. But the Court could not, in construing the statutes, have founded on these titles to any effect, without first laying aside, as wholly untenable, the limit for which the defenders contended. And as to the titles of Culloden, they merely referred to the admixture of river and sea water, which took place along the frith; and as they were fully two miles above Ardully point, the words were directly at variance with the plea maintained by the defenders, if they could be held to imply that the river proper was already at an end before passing the lands of Culloden.

2. Besides one decision ¹ prior to the Tay case, ² there had been a series of subsequent decisions, ³ each of which decided, or implied, that the plea of the defenders, as to the construction of the statutes, was untenable; because in each of them, the statutory prohibition was carried far below the limit contended for by the defenders.

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¹ Earl of Kinnoull and others, Jan. 26, 1802 (14301).

² Duke of Atholl and others, ut supra.

³ Magistrates of Dumbarton, Jan. 16, 1813 (Clyde fishings), F.C.—Carnegie's Trustees v. Erskine and Ross (South Esk fishings), 1812, not rep.—Carnegie, Jan. 17, 1829 (South Esk fishings), (ante, VII. 284).—Fraser v. Grant and others, Dec. 5, 1817 (Beauly fishings), not rep.—Fraser, Nov. 13, 1829 (Beauly fishings), (ante, VIII. 14).—Mackenzie and others v. Magistrates of Tain and others, March 7, 1817, and Mackenzie v. Magistrates of Tain and others, June 5, 1818 (Dornoch fishings), not rep.—Mackenzie v. Houston, Feb. 26, 1831 (Dornoch fishings), not rep.—M'Whir, March 11, 1837 (Solway fishings), (ante, XV. 873; and references there).

3. It was therefore a point of law which had been settled after the fullest deliberation, that the plea of the defender was unfounded, and that the point where the descending river cut the line of lowest ebb tide of the sea, was not the limit at which the statutory protection stopped short. But had the point not been definitively closed by decisions, the doctrine of the defenders was untenable on principle.

To satisfy the description of the statutes, there required to be a space in which there was not only river, but also sea. It was something different from river-proper; and, after the Kintore case, it was admitted to be something different from sea-proper. But if both river and sea were present in any valley or channel, and if the sea was ebbing and flowing within that valley, the whole requisites of the statutes were satisfied, and the prohibitions applied to the entire valley, intra fauces terræ. Stake-nets placed in such waters were truly “in aquis ubi ascendit mare et se retrahit.” And there also the salmon and other fry might correctly be said to go up, or to go down, according as their course was inwards from the sea to the stream, or outwards from the stream to the sea; so that the statutory description, by the words, “descendunt et ascendunt” applied according to its plain sense and common use.

To the water, in such a land-locked valley, the term “estuary” was commonly applied. The whole of such estuary was protected by the statutes. And its boundaries were of a sort more obvious to common observation than that contended for by the defenders, which could not be precisely fixed without much nice calculation, such as Robert the Bruce and his Parliament never contemplated.

The fact that it had been solemnly tried whether the statutes did not even extend to the shores of the open sea, went far, of itself, to show that they clearly extended at least as far as the pursuers now contended for. ⁴

_________________ Footnote _________________

⁴ Earl of Kintore and others, May 31, 1826 (ante, IV. 641), and July 11, 1828, 3 W. and S. Appeals, 264.

1299

The whole subsequent statutes were consistent with this construction; and in particular, the act 1563, c. 3, could not admit of any other, when prohibiting yairs, &c., “that are set, of late, upon sands and schauldes far within the water.” These words applied to the shores of an estuary, at ebbing tide, but could not apply at all, if the limits of the prohibition were as confined as the defenders would make them. This appeared further, from the express exception of “the water of Solway” from the statutes 1429, c. 22, and 1563, c. 3, which was inserted in such terms as showed the statutes to include estuaries, where not excepted; as the Solway itself was not a river, but a frith or estuary, into which various streams disembogued themselves.

The policy of the statutes was only in part to protect the fry; it was in part also to protect the rights of the upper heritors. And the habits of the fry were not admitted or proved to be such as the defenders alleged; and it was denied that their stake-nets were not injurious to the fry, in the places where they were set up.

But independently of general principle or reasoning, the law was settled that both a river and the continuation of a river or its estuary were within the prohibition of the statute. The direction, therefore, which the defenders contended should have been given by Lord Cockburn, was contrary to law. And their objection to the direction which his Lordship did give was also untenable. The word “estuary” did not indeed occur in the statutes, but it was of frequent use in previous cases, both in the arguments of parties, and in the opinions of the Court. His Lordship had observed that the mere name was of little importance; and he had defined the estuary of a river as the space “intermediate betwixt the strictly proper river, and the strictly proper sea.” His Lordship had also observed, that through these “partly fresh and partly salt estuaries,” the “river” still “exists and operates,” though its river-features were impaired or obliterated by the tides. And it was only in these river-estuaries, so described, that his Lordship stated it to be unlawful to place the stake-net machinery, either in the channel, or on the sands left dry by the ebbing tide. His Lordship carefully separated these river estuaries, from proper arms of the sea, and, having done so, the charge was unimpeachably correct, and could not be shaken without overturning the authority of the Tay case. As to the single sentence, stating that “the thing to be looked to is the fact of the absence, or of the prevalence of the fresh water, though strongly impregnated with salt,” it must be read in connexion with the rest of the charge, of which it was but a subordinate part. And the next sentence bore, that “where this fresh water prevails, though in the estuary, these structures are illegal.” These observations were all applicable to a river-estuary, characterized and defined as above quoted, and they merely pointed out farther, that where fresh water was prevalent, or predominant, in such an estuary, the machines were unlawful. Taking the whole description together, the river-estuary, as there set forth, was truly stated to be within the prohibition of the statutes. The bill of exceptions ought, therefore, to be refused.

The Court ordered Cases, and afterwards directed these to be laid before the other Judges for their opinion.