p. 2420
“ In. the fourth place, there are examples in which the junction of the fresh water and the salt does not take place, as in the case last put, at the edge of the open ocean, but far up in the land, where the river loses itself in arms, or in bays of the. sea. These portions of the ocean become what
are called arms of the sea, merely because they happen to be enclosed within ridges, which guide their waters into the interior. But this circumstance does not make these arms identical with estuaries. They are the sea. And being so, these machines, if placed in or on arms of the sea, as distinguished from estuaries of rivers, are not unlawful. What shall be held to be an arm, and what an estuary, is a question of fact for you. All I say as to the rule is, that if there be an arm distinct from an estuary, then, in that arm, or, in other words, in that portion of the sea, these fixed traps are not illegal.
“ The substance of these rules is nearly this, that to make the particular engines, with which we are now dealing, unlawful, it must be proved that they are in a river or in its estuary, whether within the channel or on the sands made dry by the ebbing. It is the pursuer's business to prove that they are so placed. If he shall fail, the defenders may have nothing to do. But if, not content with relying on the pursuer's failure, the defenders choose, they may shew, and they have tried to do so, that their structures are truly in the : sea ; whether the open sea, or on one of its arms or bays ; and if so, they are lawful.
“ In short, a river does not lose its legal protection, in reference to salmon fishing, merely by being met by the advancing tide, provided this be within what are called (though usually by two Latin words) the jaws of the land, and provided the relative size of the river and the other circumstances shall satisfy a jury that, on the whole, the space is river, including in this term its estuary. And, on the other hand, the sea does not lose its privileges merely because a river flows into it, or flows through one of its arms or bays where the tide ebbs and flows, provided the relative smallness of the stream and other circumstances shall satisfy a jury that, on the whole, the space is sea and not river, or the continuation of a river through its estuary.”
This direction was excepted to, in the first place, as being in itself erroneous ; and, secondly, in respect the judge “ did not direct the jury, that the prohibitions of the statutes could not extend lower down than to the point where the fresh water of the river joined the salt water of the sea at low ebb tide.”
The Lords of the First Division, having heard parties upon the bill of exceptions, ordered cases, and thereafter pronounced the following interlocutor :—“ 21st Dec. 1837.—The Lords direct the cause to be laid before “ the judges of the other division of the Court and the Lords Ordinary, for their opinions upon both the grounds of exception contained in this bill of exceptions, and with that view appoint the parties to pat into the boxes of the said judges printed copies of said bill of exceptions, record, and cases for the parties, together with the plan of Mr. Buchanan, and that quam primum.”
p. 2421
The consulted judges thereafter returned in writing the opinions, which are subjoined.1
1OPINIONS signed by Lords Justice Clerk (Boyle), Glenlee, Meadowbank, Medwyn, Fullerton, Jeffrey, and Cuninghame.
“ We are of opinion, that the first ground of exception, touching the evidence of Mr. Buchanan the engineer, cannot be sustained ; and that the bill, so far as rested on this ground, should therefore be disallowed.
“ As to mere calculations, or statements of averages or general results, we are clearly of opinion that these might with perfect propriety have been read from or referred to by the witness, though made out immediately before his examination. If not so made out indeed they probably must have been framed and reduced to writing while the examination was going on, to the great delay and embarrassment of the proceedings.
“ With regard again to matters of fact and observation, it is admitted that the original notes made at the time might have been competently referred to ; and the witness swore distinctly, that the report, to which he did refer, was made up entirely from these original notes ; and, though. not literally, was 'in substance the same.' The defender did not attempt to test or discredit this statement, by calling for the original notes, or by any farther examination ; and the statement must therefore now be taken for true. The result is, that he spoke from a transcript of the original notes, made carefully by himself.
“ As to the separate objection, that the witness referred only to a printed copy of the report, and not to the original, and that there might have been variances or errors, in printing or transcribing, we are of opinion that the defenders have not put themselves in a condition to insist on this objection, inasmuch as they have not sought to ascertain, from the witness himself, or otherwise, in what way the accuracy of the copy had been tested. The witness expressly swears, that the print before him was a ;copy of the report prepared by him from his original field notes ; and we are of opinion this must now be taken to mean that it was a correct copy ; and that, if he had been farther interrogated on the subject, he would have proved this, by specifying the collations or other means by which its correctness had been established. The defenders, we think, having proposed no such interrogatories, are not now entitled to hold that, in positively swearing that it was a copy, the witness was swearing to a fact which he had no sufficient means of knowing, or to assume the existence of variances or errors, without proof, either of their actual existence, or even of its being possible, from the way in which the copy was prepared, that they might have existed.
“ The report, it should also be observed, was not laid before the jury as a piece of documentary evidence, in which case the law as to primary and secondary evidence might have applied, but was merely referred to by the witness to refresh his memory, the only proper evidence on the matters which it might contain being his own oral deposition, and nothing more.
“ As to the argument in the case for the defenders, that they were at all events entitled to see the paper referred to, and to cross-examine the witness on its contents, it seems to us to be a conclusive answer, that it is nowhere stated in the bill of exceptions that they ever asked to see that paper, or proposed to go into such cross-examination ; and the bill being necessarily held to set forth all the facts on which exceptions are to be raised, it is plainly incompetent for the court now to go into any other averments, even if their truth were admitted (as it is here positively denied) by the opposite party.
“ We are therefore clearly of opinion, that none of the grounds of exception as to Buchanan's testimony have been established ; and that the bill as to these should be dismissed.
“ 2. With regard to the second ground of exception, or that relating to the directions in point of law which the judge addressed to the jury on the merits of the cause, there may, at first sight, appear to be a little more difficulty ; but, on the fullest consideration, we have come to the opinion, that the defenders have failed on this point of the case also, and that the bill ought therefore to be disallowed in toto.
“ If we were satisfied, indeed, as the defenders have contended, that the true import of the whole direction in point of law was; that wherever a river terminated in an estuary the only thing to be looked to, in determining whether stake-nets placed in such estuary were legal or illegal, was, whether there was a preponderance of salt or of fresh water at the place, we should certainly have had great difficulty in finding this to be a correct exposition of the law. But we think it manifest, that such is
p. 2422
The cause having come on, on 30th June 1838, for advising upon these opinions, the following judgment was pronounced by the Lords of the First
not the import of the direction ; and that it never can be supposed that the jury took this to be its meaning.
“ In the first place, there is nothing whatever in the passage referred to, as to the comparative prevalence or predominance of salt or of fresh water in a river estuary, affording the only true
criterion of the legality or illegality of stake nets in such a situation. What the judge says is to be looked to is, the absence or prevalence of the fresh water only. We think it quite impossible to hold, that prevalence here means presence only ; especially when such a substitution would make the direction more questionable than as it stands. The word prevalence, in fact, is too plain to admit of interpretation ; and the judge told the court in consultation, that he meant it in its natural and plain sense, as equivalent to predominance.
“ Now, even if we could hold (as we certainly do not) that this single passage contained the only direction in law which the judge gave to the jury, and that it could not be qualified or explained by what went before or came after, we are not prepared to say that it would have been absolutely unsound or erroneous. It was confessedly applied only to the case of a river terminating in an estuary, intra fauces terræ ; and is supposed to have been given as a criterion for judging whether that estuary was sea or river, in the sense of the laws about salmon fishings. Now if, in such an estuary, there is absolutely no sensible admixture of fresh water whatever, when the tides are ebbing and flowing (and it is plain that this is the only thing that could be meant by the absence of fresh water), we can scarcely conceive a more decided proof that an estuary of such a description could not be considered as a river, in the sense of the laws referred to. On the other hand, if, during the ebbing and flowing of the tides, and in the average condition of the waters, the fresh water actually predominates, or forms more than a half of the whole, it seems almost as difficult to hold that such an estuary could over be regarded as the sea, or an arm or branch of the sea.
“ But the substantial ground on which we have come to think that this exception must be dis allowed, is, that this part of the direction must clearly be taken along with all that relates to the same matter in the context ; and that, when so taken, it is quite plain that the absence or prevalence of the fresh water is not meant to be held as the only thing to be looked at, but only as a very material circumstance to be attended to, along with all the other circumstances from which the jury were to form their own conclusion as to the question of fact, Whether, on the whole matter, the estuary in question partook more of the character of a river or of the sea ?
“ That this is the way in which such a direction is to be dealt with can admit of no doubt. Detached words are not to be separated from the context, nor inaccurate or imperfect expressions catched at, to obscure or apparently contradict, what every one must have seen to be the clear meaning of the whole, when taken together. There are other instances, perhaps, of such expressions in the direction now in question ; as, where the judge, after describing estuaries merely as spaces intermediate between the proper river and the proper sea, and where salt and fresh water are mingled, says generally, and apparently without limitation, that such engines as the defenders' 'are unlawful in these estuaries.'— But though this seems to be absolutely stated as law, it is plain from what-follows, that nothing more is meant than that they may be unlawful in such situations for very soon after comes the passage so much relied on, where it is said that they are only unlawful, though in an estuary, if the fresh water prevails or preponderates, but not unlawful if there are indications of any fresh water, though in an estuary. The correction or qualification of the inaccurate expression follows here a little more closely after that expression than in the case now in dispute ; but we think it is, in the last case, if possible, still more complete and decisive.
“ In the first place, the judge states distinctly, in the very beginning of his exposition, that the law ‘ permits or condemns those machines according to circumstances ; and that the determination of these circumstances is the proper province of the jury.' He then informs them, that in a proper river they are clearly unlawful ; and proceeds to state the effect of their being in an estuary, in the way already referred to. He then speaks to the case of an arm of the sea, which has this much in common with an estuary, that it is intra fauces terræ ; and distinctly tells them that what should be held to be an arm of the sea, and not an estuary, is a question of fact for them. But the most important and decisive passage is that which closes the whole direction, and in which, professedly resuming the whole substance of what had been previously said, and apparently for the very pur-
p. 2423
Division :—“ 10th July 1838. The Lords disallow the bill of exceptions, but find no expenses due.”1
Mr. Horne and Mr. Mackenzie of Newhall appealed.
“ pose of removing ambiguities or supplying defects, he again recurs, though in a different form of expression, to the absence or prevalence of the fresh water, but takes care, in this final summing up, to state, twice over, that it is not the only thing to be looked to, but is always to be taken along with the whole other circumstances of the case. The words are : ‘ In short, a river does not lose its legal protection merely by being met by the advancing tide, provided (1) that this be within what are called the jaws of the land, and provided (2) that the relative size of the river, and (3) the other circumstances, shall satisfy a jury, that on the whole the space is river, including in this term its estuary ; and on the other hand, the sea does not lose its privileges merely because a river flows into it, or flows through one of its arms or bays, where the tide ebbs and flows, provided (1) the relative smallness of the stream, and (2) the other circumstances, shall satisfy a jury, that on the whole the space is sea, and not river, or the continuation of a river through its estuary.' ”
“ After this, it seems to us impossible to doubt that, when it was previously said that ‘ the thing to be looked to ' was the absence or prevalence of fresh water, it was only meant, and must have been understood by all who heard the direction to the end, that it was ‘ the great or principal thing,' but to be taken into view along with all the other circumstances ; not, in short, a legal or exclusive criterion, but merely a very important element in judging of the complex question of river, estuary, or sea. It is to be observed, that it is not said, even in the previous passage, to be the only thing to be looked to, but simply that it is the thing—a form of expression quite common for signifying the chief thing ; as, when it is said that the thing to be looked to in a witness is veracity, or in a lawyer skill or learning ; these expressions certainly could never be conceived to imply, that intelligence or exact memory was of no consequence in the former, or honour or honesty in the other. If the passage therefore stood unexplained by any other we should think that this was its fair meaning ; but when the whole direction is resumed and summed up, in the anxious and accurate words which we have cited, we think there is not even a pretext for saying, that there could be any doubt or mistake about the matter.
“ We are also very clearly of opinion, that the law as suggested in the bill of exceptions is not that which it was the duty of the judge to state to the jury as applicable to the case before them.
Lords Moncrieff and Cockburn added the following concurrence in the foregoing opinion.
Lord Moncrieff.—“ I entirely concur in the first part of the above opinion.
“ I also concur in the second part of it, but with the following explanation : Taking the charge as an entire whole, and looking to the substance and result of it, I think that it amounts to this, that in this question the estuary of a river is to be considered as a part of the river ; that stakenets placed in such an estuary are illegal ; and that the question, whether the particular place or part of the water condescended on is in the estuary of the river or in the sea, is a question of fact for the consideration of the jury, depending on all the various circumstances which may have been brought before them in evidence. Viewing it in this light, I have come to be of opinion that the observations made, or the mere form of expression employed, in pointing out any of the particular circumstances requiring attention, ought not to be regarded as laying down to the jury any unbending rule of law, in opposition to the whole scope and very precise conclusion of the charge, so as in any manner to control or fetter the judgment of the jury on the question of fact expressly left to their determination on the whole evidence ; and therefore that supposing that there may be some inaccuracy of expression, according to the opinion of the court, in the particular passage of the charge excepted to, in so far as the learned judge may seem to have attached more weight than is justly due to one particular circumstance, as a test of the stake-nets being in the estuary of the river and not in the sea, that does not afford a good ground of exception to the charge generally, in so far as it is a charge on the law of the case.
1 Further OPINIONS at advising (30th June 1838), by Judges of First Division :—
Lord President.—Two points were raised on this bill of exceptions : (1.) one in regard to Buchanan's evidence ; in regard to it we all agree ; but there is another question, viz. (2.) as to the law contained
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Appellants.—(1st exception.) Although the appellants admit that Mr. Buchanan was entitled to refresh his memory in regard to the observations
“ But I think it necessary to qualify my concurrence by observing, “ that in so far as it may be held to be laid down or strongly implied in the above opinion, that if that part of the charge wherein it is said, that, in the question whether it is the estuary of the river or not, ' the thing to be looked to is the fact of the absence or prevalence of the fresh water, though strongly impregnated by salt ; now, where this fresh water prevails, though in the estuary, these structures are illegal,' had stood alone as the substance of the charge, it would not have been liable to exception. I cannot agree in that opinion, because I think that the fact thus rested on is both in its nature exceedingly loose, as affording any legal or decisive rule in the question, and even when definitely ascertained is not such a test as could invariably or in all circumstances lead a jury to a correct result.
“ But being on the whole inclined to think that that particular part of the charge ought not to be so considered, I am, on full consideration, of opinion that the exception should be disallowed.
“ I have no doubt that the law suggested in the bill of exceptions is not that which, consistently with the decisions, it could be the duty of the judge to lay down to the jury,”
Lord Cockburn.—“ I have only to state, that the construction put upon the charge in the preceding opinion gives it the meaning which it was intended to convey ; and that, thus understood, I have not seen ground for thinking it wrong.”
in the charge. As to it, seven judges adhere, and Lord Moncreiff concurs, with an explanation, and Lord Cockburn adheres to his previous opinion.
Lord Gillies.—As the judge who presided at the trial has explained his meaning to be, that in using the expression “ prevalence ” of fresh water he meant by it predominance, I agree in the main with him ; but if he had meant, as I understood it from the charge, to be mere presence of fresh water, I certainly could never agree, because in that way any body of salt water must be held to be a river, if the presence of any portion of fresh water could be detected. We could not stop short after that, and refuse to call the Frith of Forth a river ; and indeed in that way the Mediterranean would become a river, or estuary of the Nile.
Lord Mackenzie.—On the whole, I am inclined to adhere to the opinions delivered.
Lord President.—I have gone over the whole of the statutes referred to. Some of them talk of salt waters, and others of waters, and fresh water that ebbs and flows, and so much confusion prevails in the mode of expression, that it is exceedingly difficult to make sense of any one act.
Lord Corehouse.—I certainly agree with the opinions of the consulted judges, but under the explanation given by Lord Moncreiff. It did not appear to me that it would be just to set aside the verdict of the jury because the charge referred to the prevalence of fresh water, as I did not consider that the prevalence of salt or fresh water was the chief circumstance to be regarded, and I don't think that this was decided in the Tay or other cases. There were other matters in the charge, on which the jury may have proceeded. Therefore, with the caution contained in the charge, I am inclined to hold that we cannot allow the exception to the law ; for I consider the law in the charge to have been properly ruled, and it appears to me that the charge is exceedingly well expressed, and I agree that it was a most fitting question for a jury.
Lord Mackenzie—I concur with what has just been expressed by Lord Corehouse ; and I ought to have said previously, that it is entirely under the explanation given by Lord Moncreiff that I coincide in the opinions of the other judges. I think the explanation of Lord Moncreiff is very necessary.
Dean of Faculty moved for expenses.
Lord Gillies—This has been a question of very great difficulty indeed. So I do not see why you should get your expenses. It is not the ordinary case where you would be entitled to expenses. Indeed, I consider that the result is contrary, not only to justice, but it is contrary to common sense, to make a river of the Cromarty Frith.
Lord Mackenzie.—I certainly am against allowing expenses, for it was a question attended with great difficulty.
Lord Corehouse.—I should rather be inclined to give expenses. There was a very ingenious argument by Mr. Solicitor General, but I think after the decision in the Tay case it was clearly made out to my mind that the law in the charge was well laid down by the presiding judge. So I think expenses should be given, and that too where the judges are so unanimous.
[1927lab]
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