p. 2415. C
HORNE v. MACKENZIE (1839) MACLEAN & ROB. (H.L.) 977.
(Appeal from the Court of Session, Scotland.)
Archibald Horne, Judical Factor, on Cromarty, and Colin McKenzie of Newhall, Appellants.1
[Sir F. Pollock—Pemberton.]
The Honourable Mrs. Maria Hay Mackenzie of Cromarty and Captain Hugh Munro, her Tacksman, Respondents.
Salmon Fishing—Statutes 1424, c. 11, &c.—Stake Nets—Evidence.—At the trial of an issue as to whether certain stake nets and other engines were placed in situations prohibited by the statutes regulating the salmon fisheries, the judge in the course of his direction to the jury, after defining estuaries as spaces between the strictly proper river and the strictly proper sea, the waters of which were partly salt and partly fresh, proceeded thus :—“ The mere name is of little importance. The thing to be 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.” The Court of Session disallowed a bill of exceptions to the direction. The House of Lords reversed this judgment, and remitted the cause with directions to allow the bill of exceptions, and grant a new trial.
Question raised,—Whether it was matter for exception that a witness had been allowed during his examination to use, for the purpose of reference, a printed copy of a report, with certain jottings and calculations recently made thereon, relative to the subject of his testimony, which report he had prepared on the employment of the party adducing him as a witness :—observed, per L. C.—It is clear that for some purpose at least the witness was at liberty to refer to the paper he produced, and that a bill of exceptions could not have been supported on that ground.
By a statute of Robert I., A. D. 1318, c. 12, it is enacted thus :— “Item ordinatum est et assensum, quod omnes illi qui habent croas, vel piscarias, vel stagna aut molendina in aquis ubi ascendit mare et se retrahit, et ubi salmunculi vel smolti seu fria alterius generis piscium maris vel aquæ dulcis
1 Rep. 16 D., B. & M., 1286.
“ descendunt et ascendunt, tales croæ et machinæ infrapositæ sint ad minus de mensura duorum pollicum in longitudine et trium pollicum in latitudine, ita quod nulla fria piscium impediatur ascendendo vel descendendo, secundum qoud libere possint ascendere et descendere ubique.”
Another statute, in the reign of James I., 1424, c. 12., enacts,—“ Item, It is ordanyt that all crufis and yairs, set in fresche waters quhair the sea fillis and ebbs, the quhilk destroys the fry of all fisches, be destroyt and put away for three yeirs to cum.”
Another statute, in the reign of James III., 1469, c. 87., enacts,—“ Item, for the multiplication of fish, salmond, grilsis, and trowtes, quhilk are destroyed by cowpes, narrow messes, nettes, prynes, set in rivers that hes course to the sea, within the flude mark of the sea, it is advised in this instant parliament, that all sic cowpes and prynes be destroyed and put away for three ziers. ”
Another statute, in the reign of James IV., 1488, c. 13., enacts,—“ It is statute and ordained, that all cruffis and fisch-dammys that ar within salt watyrs quhar the sey ebbs and flows, be utterly destroyed and put down, alswell thai belongis to our soveregn lord, as utheris throw all the realme. And as anent the cruiffis in fresche waters, that they be of sic largnes and sic days keepit as is containit in the actis and statutes maid thereupon of befor.”
Another statute, in the reign of Queen Mary, 1563, c. 3., ratifies the preceding statute, with the following addition :— “ That is to say, that all cruives and yairs that ar set. of late upon saundes and schauldes far within the water where they were not of before, that they be incontinent, tane doun, and be put away, and the remanent cruives that ar set and put upon the water sandis to stand still quhil the first day of October next to cum, and incontinent after the said first day to be destroyed and put away for ever.”
In 1828 the respondent, as proprietrix of salmon fishings in the river Conon, and her tacksman, Captain Hugh Monro of Teaninich, applied to the 30 Court of Session, by bill of suspension and interdict, against several proprietors of fishings situated to the eastward of her fishings, on the ground, that they were fishing illegally within the locality described by the statutes above recited. In support of this application it was averred, that the whole expanse of water between a point at or near the town of Dingwall and the two great headlands called the Sutors, which abut upon the ocean and form the entrance to what is known as the Frith of Cromarty, was subject to the prohibitions in the said statutes.*
* The following description of the locus in question is taken from the report of the case in the courts below, vide 16 Sess. Cas. (1st Ser.) 1286, 1287 :—
“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 4,400 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.
The application was opposed by Mr. Archibald Horne, accountant in Edinburgh, judicial factor on the estate of Cromarty, situated near the Sutors ; and also by M'Leod of Cadboll, Mackenzie of Newhall, and others whose fishings are situated between the Cromarty fishings and those of the respondent. By these parties it was contended, that all the water below the line of lowest ebb tide beyond which the sea never recedes, whatever shape or form the contiguous coast might assume, was excluded from the operation of the prohibitions aforesaid.
The bill of suspension was passed ; and a record having been made up, issues were adjusted for all the parties in a corresponding form, but it was agreed that the issue as to the Cromarty fishings should be held as the issue for all the others, mutatis mutandis, and that their interests respectively should be determined by the result of that issue. The following accordingly was the issue sent to trial, viz. “Whether the defender, Mr. Horne, or his predecessors in office, has or have wrongfully fished for salmon in the Frith of Cromarty, opposite to the lands and estate of Cromarty and others, during the years 1824, 1825, 1826, 1827, and 1828, or any part thereof, by means of stake nets, bag nets, yairs, or other engines, placed in situations prohibited by statute ? ”
The affirmative of the issue was with the respondents, the pursuers of the action. In the course of the trial a witness for the respondents, who had been employed to make a survey of the subjects in dispute, proposed to refer to a printed paper purporting-to be a report of his survey, and containing also certain manuscript jottings on the margin. This was objected to by the appellants, but the objection was over-ruled, and the examination proceeded.
After a variety of evidence adduced by both parties, the judge directed the jury in point of law, and a verdict was returned for the respondents.
The above ruling of the judge in respect to the evidence, and certain parts of his direction to the jury in point of law, were then made the subject of a bill of exceptions.
The first ground of exception was thus set forth in the bill :—“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
About two miles about 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 34½ square miles. Between high and low tide, at neap-tides, the difference in the volume of water within these limits is 4,750,000,000 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.
“ 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 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 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 Frith 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”
The direction of the judge in point of law was thus set forth in the bill of exceptions :—“ Now, assuming the 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 have 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 long land-locked valley, where the fresh and salt waters meet. In this situation it will probably depend upon external appearances,—whether ordinary observers 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 be 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 as 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.”