BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Thomas, Lord Erskine of Alva, and John Erskine of Balgownie v. The Magistrates and Town-Council of Stirling; Michael Potter of Easter Livylands and Robert Galloway of Burrowmeadow [1765] UKHL 6_Paton_774 (20 March 1765) URL: http://www.bailii.org/uk/cases/UKHL/1765/6_Paton_774.html Cite as: [1765] UKHL 6_Paton_774 |
||
[New search] [Printable PDF version] [Help]
Page: 774↓
(1765) 6 Paton 774
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
No. 137
[Fac. Coll., Vol. iii., p. 248; et Mor. 14,268.]
House of Lords,
Subject_Salmon Fishing in the Forth — Act 1698. —
Held that the appellants were prohibited by the above Act from using a stoupnet, which was a species of pock-net, in their fishing salmon in the river or Firth of Forth, and that they were not entitled to use either pock-net or herrywater net, in said fishing, contrary to the said Act.
The river Forth takes its rise a considerable way to the west of the town of Stirling, where there is a bridge to which the tide flows; and the river is there navigable for small vessels; from thence it runs eastward for twenty-four miles by many windings, to the town of Alloa, which is only four miles distant by land; here it becomes navigable for large ships, and runs, increasing in breadth, mixed with salt water, until it is joined on the south bank by the River Carron, where it is lost in the sea, or Firth of Forth.
Royal Charters, 1620, 1699, 1741.
The appellant, Lord Erskine, was entitled by royal grants, “to the salmon fishings and other fishings whatsoever, in and upon the river of Forth, descending from the Abbey Boat of Cambuskenneth, to the mouth of the river Carron.” This includes the space of twenty-five miles of the river, or thereabouts.
Jan. 4, 1598.
Sasine 1618.
The other appellant, Mr Erskine, stood infeft in the lands of Poppletrees, lying in the barony of Cowie, and shire of Stirling, “together with a stoup-net and fishing therewith, upon and in the water of Forth, in the places used and wont, or thereabouts, within the bounds of the said lands.”
The respondents stated that, an Act of Parliament passed in 1698, against pock-net fishing upon the water of Forth, which prohibited all salmon fishing whatsoever in the Firth of Forth by such pock-nets, herrywater nets, or other engines, and appointed the Sheriff-principal of the county of Stirling, and the bailie of the water of Forth, to suppress said unlawful fishing.
Page: 775↓
The appellants brought an action of declarator in the Court of Session, whereby, for themselves and other owners of salmon fisheries in this river, they insisted to have it found and declared that they had good and undoubted right to fish with pock-nets, herrywater nets, stoup-nets and cobles, and all other nets and engines whatsoever, not expressly discharged or prohibited by law.
The respondents, the Magistrates of Stirling, as owners of fisheries, and two others, also owners of the same, were cited to this action.
The defence stated by the respondents was, that the words of the Act did comprehend the appellants' fishings, and the mode of fishing by pock-net and herrywater nets, and, therefore, that their fishings by stoup-net were prohibited.
Feb. 25, 1763.
The Lords found “the Act of Parliament, 1698, is general, regulating the fishing in the River Forth, and that the stoup-net being a species of pock-net, is within the prohibition of the Act, and that the pursuers (appellants), and all the heritors, are debarred by the said Act from fishing in the said river, above the Pow of Alloa, with pock-nets, stoup-nets, or herrywater nets, and assoilzie from that branch of the declarator and decern.”
July 14, 1763.
Feb. 11, 1764.
On reclaiming petition, the Court adhered.
Against these interlocutors, the present appeal was brought to the House of Lords.
After hearing counsel,
It was ordered and adjudged, that the interlocutors complained of be, and the same are hereby affirmed.
Counsel: For the Appellants,
Tho. Miller,
C. Yorke.
For the Respondents,
Fl. Norton,
Al. Forrester.
