Dalgliesh, and Others, - Appellants; Duke of Athol, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1816 |
| Date | 20 June 1816 |
| Court | House of Lords |
English Reports Citation: 3 E.R. 1330
APPEAL FROM THE COURT OF SESSION.
3 Scots E. E. 384. See Hay v. Magistrates of Perth, 1863, 4 Macq. 535, 547. See Salmon Fisheries Act, 1862, ss. 8, 11.
Salmon fishing with stake-nets held to be illegal.
[282] SCOTLAND. APPEAL FROM THE COURT OF SESSION. dalgliesh, and Others,-Appellants; duke of athol, and Others,- Respondents [June 16, 20, 1816]. [3 Scots E. E. 384. See Hay v. Magistrates of Perth, 1863, 4 Macq. 535, 547. See Salmon Fisheries Act, 1862, ss. 8, 11.] [Salmon fishing with stake-nets held to be illegal.] The fishings of all the Appellants are situated in that part of the Tay where the sea ebbs and flows. About thirty years ago, a mode of salmon fishing was introduced upon the shores of the Solway (the Scottish statutes regulating salmon fishing did not apply to the Sol way), which, from the nature of the apparatus employed, is termed stake-net fishing. In its most improved form, it is practised in the following manner. In rivers, or friths where the sea ebbs and flows, a row of stakes is driven from high to low water-mark, for the most part obliquing down the river, or forming zigzags in that direction. The stakes are from four to six feet asunder, and are fastened together at the top, the middle, and the bottom, with strong ropes. Over these ropes a net is extended, the upper part of which is usually about the level of the highest flow of the tide. The meshes of the net measure from ten to twelve inches in circumference; that is to say, each side of the parallelogram measures from two and a half to three inches. In this manner a complete barricado is formed, from high to low water-mark, through which no salmon or grilse can penetrate. In this barricado, at convenient distances, openings [283] are left, which lead into enclosures of several acres in extent, surrounded with netting exactly similar to that which forms the barricado. The openings are from twenty to thirty yards in width; arid across the top of them a net is fixed, which rises and falls with the tide ; and which, of consequence, acts as a valve to prevent the fish which have entered with the tide from getting out when it ebbs. The enclosures vary in size and shape according to the nature of the ground. At the angles, openings are left which lead into smaller enclosures, provided each with a net valve of the kind already described; and, in this manner, a labyrinth is formed, out of which no fish that enters can extricate itself. The enclosures are termed by the fishermen courts or yards; and the barricado which conducts the fish into them is termed the leader. ' In this manner, it is scarcely possible that a salmon ascending the river between high and low water-mark should not either be detained in the yards, or entangled hi the meshes of the leader. It is usual also to take advantage of the natural hollows, or to form artificial excavations behind the leader, where fish descending the river are left at the fall of the tide. In 1797 the stake-net mode of fishing was introduced in the Tay at Sea-side, fifteen miles below Perth; but the Earl of Kinnoul and other superior proprietors having in 1799 brought an action of declarator, this mode of fishing, at least in that part of the river, was in 1801 declared to be illegal by judgment of the Court of Session, which was affirmed on appeal by the House of Lords. But the fishings of the Appellants being situate considerably below Sea-side, where the Tay is an arm of the sea, [284] they maintained that the statutable prohibitions did not extend to their fishings; and they continued to fish with stake-nets. The Eespondents as proprietors in the higher part of the river, in 1804, brought an action of...
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