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The word prevalence then, as used by the learned judge, was by the respondents understood as presence ; the consulted judges however say, that it is quite impossible to hold the prevalence means presence only ; Lord Gillies says expressly, that if prevalence was to be understood as mere presence, he could not agree to the direction.
From this, I think, it may be assumed, that if the word presence had been used instead of the word prevalence, the court would have held the direction to be erroneous, as, beyond all doubt, it would have been. But the judges seem to have been influenced by the explanation of the term used by the learned judge who directed the jury, as if the question were, whether the judge was right in his view of the law, instead of being, what it really and solely is, whether the direction was in terms calculated to lead the jury to a right understanding of the law. I have no doubt but that the jury under-stood the word prevalence to mean presence, and that, so understood, the direction was erroneous. Let it, however, be assumed that it means predominance I think it scarcely less erroneous.
The consulted judges say, that if they were satisfied that the true import of the whole direction, in point of law, was, that the only thing to be looked to was, whether there was a preponderance of salt or of fresh water at the place, they should certainly have had great difficulty in finding it to be a correct exposition of the law ; and the Lords Moncreiff and Cockburn say, that if the sentence had stood alone as the substance of the charge, it would have been liable to exception ; and Lords Corehouse and Mackenzie say, that they did not consider that the prevalence of salt or fresh water was the chief circumstance to be regarded.
I quite agree with the consulted judges and others, who thought, that if the direction was to be considered as implying, that the fact of the absence or predominance of fresh water was the only thing to be looked to, or, in other terms, was the thing upon which in their opinion the verdict was to be founded, it would be erroneous ; but I totally differ from them in thinking that such is not the natural and obvious construction and meaning of the words used. The question is, not what was the meaning of the author of these words, to be collected from different passages, but what effect the words spoken were calculated to produce upon the jury. And when we find that they were told, that the thing to be looked to was the fact of the presence or of the prevalence of fresh water, it must be assumed that they understood that such was the test upon which they were to try the question between the parties.
But were it otherwise, if the words imported only that this was an important subject for consideration, I could not agree that the direction would be sound in point of law. I see nothing in the statutes, or in any authority, to justify the putting the legality or illegality of the act upon such a test ; and on principle there is nothing to support it. If this were the test, the legality of the act at any particular place would depend upon the state of the tide, and the right of fishing would belong to one party at high tide, and to another at low tide. Suppose a small river flowing into a large estuary, at low water there might at any particular place be scarcely any salt
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water, whereas at high water the presence of fresh water might be scarcely perceptible. Whereas in a large river the fresh water might predominate long after the junction with the sea. The large rivers of America are perceptible at a great distance from the shore, and in the Mediterranean ships take in their water from the Rhone in the open sea. The test suggested is therefore, I think, erroneous, whether it be treated as exclusive, or as an important ingredient in the consideration of the question.
If your Lordships should agree with me in this view of the direction of the learned judge, it follows that the bill of exceptions ought to have been allowed, and that the judgment of the court below ought therefore to be reversed. It is therefore unnecessary, and would be improper, to pronounce any opinion or decision as to what ought to have been the direction. But as there is much of uncertainty in the decisions which have taken place, and much doubt appears to exist as to the proper rule to be followed, I think it may be useful to throw out some suggestions, to which those who may have to decide upon the merits of this and other similar cases, in the first instance, will give such weight as they may think them entitled to.
The statute of Robert the First, in the year 1318, speaks of waters in which the sea rises and falls, and in which the fish descend and ascend. The waters mentioned must be distinct from the sea, and this the Don case1 has established. They must also be waters above the level of the sea, at least at low water, because otherwise the sea could not rise in them, nor would the fish, having the level of the sea, be said to ascend in such waters.
In the subsequent statutes the expressions vary, but it being decided that none of these include the sea proper, I do not apprehend that they in fact extend the limits beyond those prescribed by the statute of Robert the First.
In those waters which are above the point at which the river reaches the level of the sea at low tide, all the circumstances described in the statute of Robert the First concur, but in no others. Down to the point of low tide the waters of the river descend, but no further. Into these waters the sea rises, and the fish ascend, which cannot be said of any part beyond that point. This also is a point capable of being ascertained with much precision. The definitions in Lord Stair, Lord Bankton, and Mr. Erskine, coincide very much with this view of the case ; and the decisions of the House of Lords, in the case of the Earl of Moray v. the Duke of Gordon, (Spey Case,) deciding that “ the ostium fluminis ” comprehended that space betwixt the lowest ebb and the highest flood mark, and in Lord Kintore v. Forbes, (Don Case,) seem strongly to confirm their authority. Finding, however, that the learned judges of the court below rejected this as the proper rule, I abstain from expressing any opinion upon the subject.
If your Lordships shall concur with me in thinking, that upon these grounds, there must be a new trial, it is unnecessary to come to any decision upon the point of evidence raised by the bill of exceptions. I am, however, clearly of opinion, that for some purpose at least the witness was at liberty
1 Earl of Kintore v. Forbes and others, post, p. 2438.
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to refer to the paper he produced, and that the bill of exceptions could not have been supported upon that ground.
I therefore move your Lordships that the interlocutor appealed from be reversed, and the bill of exceptions allowed.
The House of Lords ordered and adjudged, that the said interlocutor complained of in the said appeal be, and the same is hereby reversed ; and it is further ordered, that the cause be remitted back to the Court of Session in Scotland, with directions to allow the bill of exceptions, and to grant a new trial, and to proceed further in the said cause as shall be just, and consistent with this judgment.
SPOTTISWOODE and ROBERTSON—RICHARDSON and CONNELL, Solicitors.
APPELLANTS AUTHORITIES. (1st Exception.) Robertson, 2 Murr. Rep. 304, 368 ; Lindsay, 3 Murr. 99 ; Oswald, 5 Murr. 8 ; Graham's Trustees, 5 Murr. 99 ; Graham, 5 Murr. 75 ; Jones, 2 Carr. & Pay. 196 ; Starkie on Evid. 154 ; Burton v. Plummer, 2 Ad. & El. 341, and 4 Nev. & Man. 315 ; Doe v. Perkins, 3 T. R. 749 ; Adam on Trial by Jury, 171. 238. 306.
(2d Exception.) Balfour, voce Fishings ; Stair, b. ii. tit. iii. sec. 70 ; Ersk. b. ii. tit. vi. sec. 15 ; Bank. b. ii. tit. iii. sec. 70 ; Earl of Moray v. Duke of Gordon, (Spey Case,) 16th April 1728, Morr. 12797 ; Earl of Kintore v. Forbes, (Don Case,) 31st May 1826, F. C., 4 Sh. & D. 641, or 648 new edit., S. C., 11th July 1828, as affirmed, 3 W. & S. 265 ; Oswald v. M'Whir, (Solway Case,) 11th March 1837, F. C., 15 D., B., & M., 873: Statutes, (Scots Acts,) see Thomson's edit., Robert I., 1318, c. 12; James I., 1424, c. 12 ; 1427, c. 6 or 116 ; 1429, c. 22 or 131 ; James II., 1457, c. 34 or 66 ; James III., 1469, c. 13 or 87 ; 1477 or 1478, c. 6 or 73 ; James IV., 1488, c. 13 or 16 ; 1489, c. 16 ; 1503, c. 17 or 72 ; James V., 1535, c. 16 ; Mary, 1563, c. 3 ; James VI., 1579, c. 27 ; 1581, c. 15 ; 1685, May 30 ; William III., 1696, c. 35 ; 1698, c. 3 ; Anne, 1705, c. 12.
RESPONDENTS AUTHORITIES. (1st Exception.) 1 Phillipps on Evidence, 289 (7th edit.) ; Starkie on Evidence, 155 (2d edit.) ; Tait on Evidence, 372 (2d edit.) ; Bell's Princ. 653.
(2d Exception.) Bell's Princ. 296, 8 ; Bell's (Wm.) Digest, voce Salmon ; Earl of Kinnoul v. Hunter and others, (Seaside Case,) 26th Jan. 1802, Mor. 14301 ; Duke of Athol and others v. Maule, (Tay Case,) 7th March 1812, F. C. and Buchanan's Rep. 254 ; S. C. 5 Dow, 282, 4th Feb. 1817, F. C. ; Magistrates of Dumbarton v. Colquhoun, (Clyde,) 16th Jan. 1813, F. C. ; Carnegie`s Trustees v. Erskine and Ross, (South Esk,) 1812, not rep. ; Carnegie, (South Esk,) 7 S. & D. 284 ; Fraser v. Grant and others, 5th Dec. 1817, (Beauly,) not rep. ; Fraser, 13th Nov. 1829, (Beauly,) 8 S. & D. 14 ; M'Kenzie and others v. Magistrates of Tain, 7th Mar. 1817 and 5th June 1818, (Dornoch,) not rep. ; M'Kenzie v. Houston, 26th Feb. 1831, (Dornoch,) not rep. ; Sir James Colquhoun v. Duke of Montrose, Mor. 14283 ; Duke of Queensberry v. Marquess of Annandale, Mor. 14279.
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