The Sun.
London, England, 1828-02-23 00:00:00

HOUSE OF LORDS, FEB. 9:?.

r AR", or xlsirorte, &C. AGAINST FORBES, &C.
This case, in which Counsel were heard during the
greater part of three days, related to a peculiar system of
salmon fishing adopted in Scotland, by means of fixed
machinery. Lord Iti:ntore, and the other appellants, are
the proprietors of salmon fishings on the River Don, in
Aberdeenshire. The respondents have estates, with rights
of salmon fishing, along the sea-coast, to the north of the
River Don, and have placed the machinery complained of
upon the sands of the sea-shore, adjoining their respective
properties. This machinery consists of nets, stretched
upon poles or stakes fixed in the sand, and known in Scot-
land by the name of stake-nets. They are so effectual in
their operation, that the appellants in this case not only
alleged that serious damage was sustained by themselves,
but maintained that the apparatus in question, if not dis-
couraged, would lead to the great decrease, and eventually
to the extinction, of salmon in Scotland. Now as it is
well known that the London market derives its chief
supply from the Scotch salmon fisheries, it may truly be
said that the question involved in this appeal was
of great, and even national, importance. In the cases
relating to the fishing,. of the river Tay, it had been de-
cided by a judgment of the House of Lords that stake nets
wore illegal in rivers and estuaries. But until the judg-
ment of the Court of Session (now appealed from) in
favour of stake-nets, it bad never been decided whether such
machinery was legal on the shores of the sea in the neigh-
bourhood of rivers. Mr. CAstrseLL was heard for the
appellants on a previous day, and contended that even
at common law they were entitled to maintain the
present action, because the operations of the respon-
dents affected their legal rights, and rendered the fish-
ings on the river Don of comparatively little use or value.
But independently of the common law, it would appear that
the several methods of fishing for salmon in Scotland had
been objects of legislative regulation for a period exceeding
five centuries ; and although there was undoubtedly some
obscurity in the language of these ancient statutes, they
plainly exhibited an intention to abolish all manner of
fixed machinery " set within the flood mark of the sea,"
which the Learned Gentleman contended must plainly in-
clude the sea shore. He commented on these statutes at
great length, and referred to the Act 1469, c. 38, whereby
it is directed, that " ilk Sheriffe within his schire, sail de-
stroy all nets, creillis, or ony other sicklike ;" and to an
Act of Queen Mary, 1563, c. 68, by which " it is stated
and ordained, that all cruives, and fish dammes, that are
within salt water, that ebbs and flows, be all utterly de-
stroyed and put down." The word water plainly applied
to the sea, and this was further apparent from the
expression " ebbs and flows," which ran through all the
statutes. Mr. KEAY followed this day on the same side,
and with great ability. He maintained that the respondents,
like other coast proprietors, were only entitled to fish by
means of what is called net and ceble ; and that the fact
of there being so very few stake-nets in Scotland amounted
to a national interpretation that they were contrary to law.
Mr. ADA )1. was heard for the respondents, and argued that
the :statutes relied on by the other party applied only to
rivers and estuaries, and were never intended to prevent
fixed Machinery on the sea-shore. Mr. Sergeant SIANKIE
was also for the respondents, and began by observing, that
it was incumbent on the appellants to show that the ope-
rations in question were illegal iu themselves, and also that
they occasioned damage to the appellants. The respondents
claim a right to fish in al tam mare; now suppose they were
to try an action again 4 the heritors of the river Don,
present ease, that they were de-
they might say, as in the
prived of salmon in
the sea, which they would have caught
if the fishing in that river were discontinued. But to what
an absurdity would this lead? The Learned Gentleman
then argued, that fishing in altarn mare was not in the
gift of the Crown, but common to all the world; but we
have only room to say, that after hearing these arguments,
the Loan CIiANCELLOS rose and stated, that this case must
stand'over, as it appeared to involve principles of great im-
portance in thc law of Scotland.