Scottish Court of Session Decisions

Subject_1 SALMON FISHING.
Subject_2 SECT. III.

Cruives. - Saturday's Slop. - Act 1581. Cap. 3.

Mr James Carnegy of Phineven, and the Heritors of the Water of Southesk,
v.
the Magistrates of Brechin

Date: 26 February 1704
Case No. No. 24.

Unlawful to put sheeting upon cruives.

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Mr. James Carnegy of Phineven, and the upper heritors of Southesk, pursue a declarator against the Magistrates of the town of Brechin, for contravening the acts of Parliament anent salmon fishing, regulating the wideness of the hecks to three inches, and enjoining the Saturday's slop; all which they have violated, and likewise fallen on a new method to stop the fish wholly from going up to spawn, by sheeting the cruives, i. e. putting a sheet daubed with pitch all alongst their cruives, by which it is impossible for any fish to pass through, which damnifies the superior heritors in a considerable sum yearly, and renders their fishing wholly ineffectual to them; and concluding they may be discharged that unwarrantable custom of sheeting, &c. Alleged for the town, That what they did in this case was not in amulationem vicint, but merely for preservation of their mill, which was a great part of their common good; and if they be not allowed this privilege of sheeting in low water, to gather their dam for making their mill go in drought, their mill-rent will fall at least the one half of what it presently pays, and their prejudice will be vastly more than all the advantage the upper heritors can have by the discharging and removing it; for they never put on that sheet on their cruives but when their mill cannot grind for want of water; and mills being a necessary instrument of human subsistence, and for public utility, must preponderate any casual or accidental damage arising to their fishings: And though there be more laws and acts of Parliament for the freedom of salmon fishing than perhaps there are upon any one subject whatsoever, yet even these laws had a due regard to the going of mills; and therefore the 33d act 1696, against the destroying the young fry, expressly excepts the case of mills situated on these rivers, that they be no way prejudged; and act 3. 1698, discharges pock-net fishing, with herry-water nets, and other engines, marring salmon fishing; but not one syllable against sheeting of cruives, which would not have been omitted had it been judged unlawful. Answered for Phineven and the superior heritors, That this practice of sheeting was against the public laws, and contrary to common utility; and though they had been forty years in possession of it, without interruption, (as they were not), yet it could not prescribe; neither was such a prescription to be allowed: And Lord Panmuir, and his factor, had several times torn off the said sheets, which was sufficient to accresce to the other heritors, though they had not done the same; and the pretence of making their mill go by the sheeting was notional and unjust; for they had proved that the town of Brechin had used that unjust practice, stopping all fish to swim up the river, as well in high water as in low. And suppose they put it on when the water was low, how does it appear they took it off when the water rose in a speat? So this excuse was a mere sham, to justify their transgression of clear laws; and the upper heritors can never be secure till it be totally discharged; and the reason why our laws have not condemned it is, because none have attempted to practise it but the town of Brechin. It was farther alleged, The hecks were not full three inches wide. Answered, That the timber bulging and swelling might be the cause of that. Replied, It is not sufficient that they be so at their first in-putting, but they must continue of that wideness as long as they stand. The Lords, by plurality, found the sheeting an unwarrantable practice, and ordained them to be taken down; but thought if any method could be proposed for regulating the measure of the low water, when they may be put on, and the measure of the rising high water, when they should be taken off, that the damage to their upper fishings, in that case, could not be great, and the going of their mill in a drought might be likewise provided for; and also found the wideness of the hecks from top to bottom ought to be three inches, and continued so, and the Saturday's slop observed. For solving the inconveniendes on all hand, it was offered by the town, that a slop should be fixed in the river, on which there should be a mark or jedge for determining high and low water; and when the river sunk below the jedge, then they might sheet; and when it rose above it, then it should be removed. As to the question of the hecks, see the famous debate betwixt the Town of Aberdeen and the Heritors on the water of Don, 26th January, 1665, No. 107. p. 1084O. voce Prescription.

Fol. Dic. v. 2. p. 361. Fountainhall, v. 2. p. 227.