Sale of licence. Mortgage of licence duties. licence. pounds nor more than twenty pounds for the third; and not less than twenty pounds for the fourth. All persons demanding to purchase licences, and tendering to any person appointed by the board to distribute the same the amount of licence duty to be paid under the provisions of the Salmon Fishery Acts, shall be entitled to receive the same without any question or objection whatsoever. But no licence shall confer any right to fish in any place or at any time in or at which the licensee is not otherwise entitled to fish; nor shall the grant of a licence be held to make any fishing weir, fishing mill-dam, putts, putchers, net or other instrument or device legal that would otherwise be illegal, or to imply any recognition of the legality of any such instrument (s). A board of conservators may, for the purpose of defraying any costs, charges and expenses incurred or to be incurred by them under the Salmon Fishery Acts, 1861 to 1873, with the consent of one of her Majesty's principal secretaries of state, borrow and take up at interest on the credit of the licence duties authorized to be imposed by them, or of any other property belonging to them, any sums of money necessary for defraying such costs, charges and expenses; and for the purpose of securing the repayment of any sums of money so borrowed, together with such interest as aforesaid, the board of conservators may mortgage and assign over to the persons by or on behalf of whom such sums are advanced the said duties and property, or any part thereof; and the clauses of the Commissioners Clauses Act, 1847, with respect to mortgages to be created by the commissioners, shall form part of and be incorporated with this act (t); and any mortgagee or assignee may enforce payment of his principal and interest by appointment of a receiver (u). Production of Any licensee under this act on producing his licence, any conservator on producing a certificate of his being a conservator, or any water bailiff appointed in pursuance of this act on producing the instrument appointing him, or any constable, if authorized so to do by the justices in quarter sessions, may require any per (s) 24 & 25 Vict. c. 121, s. 34, sub-sect. 5. son found fishing with a rod and line, fishing weir or fishing milldam, net, or other instrument, to produce his licence; and the person required to produce the same shall, if he do not produce the same, or make a reasonable excuse for the nonproduction thereof, be liable to a penalty not exceeding one pound for the first offence, not less than one pound and forfeiture of licence for the second and subsequent offences. nent im In addition to the licence duties authorized to be levied in a Board may levy addifishery district, the board of conservators may from time to time, tional duty with the sanction of the secretary of state, for the purpose of for permadefraying the charges of any improvements made or about to be provements. made for the purpose of facilitating the passage of salmon, levy additional licence duties throughout the district, not exceeding in any one year twenty-five per cent. of the sum paid by each person respectively, and the said additional duty shall be payable as and in addition to the ordinary licence duty, and shall for all the purposes of the Salmon Fishery Acts be deemed part of the ordinary licence duty, and no licence granted after the passing of this act without payment of such additional duty, if any, as well as the licence duty applicable thereto, shall be valid: provided that notice shall be given by the board, by advertisement in one or more local newspapers, one calendar month before the commencement of each fishing season, of the amount of such additional duty to be paid in addition to the ordinary licence duties in force in each district. And the estimate on which such additional duty is founded shall be kept by the clerk or other officer of the board, and be open to the inspection of all previous licence payers, riparian owners, and persons entitled to vote within the district, at reasonable times and places to be appointed by the board before the commencement of each fishing season (x). dain. CHAPTER VII. DAMS, WEIRS AND FISH PASSES. Definition of THE Salmon Fishery Act, 1861 (a), defines the word dam to mean "all weirs and other fixed obstructions used for the purpose of damming up the water." If they have anything to do with fishing, being used either for the purpose of catching or of facilitating the catching of fish, they then fall under the head of either fishing weirs or fishing mill-dams. The law as to these kinds of dams will be found in a subsequent chapter (b); the present is confined to the ordinary case of a dam or weir used for supplying water to mills, inland navigation, or for any other purpose. Duties of Conservators as to dams. As all dams obstruct the passage of salmon, one of the chief duties of boards of conservators is to facilitate the passage of salmon over dams or weirs (c), and to enable this to be done the Salmon Fishery Acts have given them very extensive powers. In regard to these powers weirs must be divided into two classes, those erected or altered since the 6th August, 1861, and those erected prior to that date. (a) 24 & 25 Vict. c. 109, s. 4. (b) Chapter IX., Sects. 3 and 4, pp. 272–334. since 6th Any person can erecta weir in a non-navi gable river. As to the first class, there is no law to prevent weirs erected any person erecting a weir in a non-navigable river, August, 1861. provided he does not by so doing injure his neighbours, either above the weir by flooding or damaging their lands, or below it by diminishing their supply of water or preventing the ascent of fish. Of course no such weir could be used for fishing, as the Salmon Fishery Act, 1861, forbids any dam to be used for fishing not so used on the 6th August, 1861 (d); and it would have to comply with the requirements of the Salmon Fishery Acts as to fish passes (e). But if these are complied with there is nothing to prevent any one building a weir in a non-navigable river, and after twenty years' user the owner of the weir would have, under the Prescription Act (f), acquired a right to its use, even if it prejudiced his neighbours. This is expressly stated by Lord Chief Justice Cockburn: "Though weirs in navigable rivers are illegal, unless they existed before the time of Edward I., such an easement may be acquired in private waters by grant from other riparian owners, or by enjoyment, in short, by any means by which such rights may be constituted" (g). The case of Weld v. Hornby (h), and a dictum of Lord Ellenborough in that case, have frequently been cited and relied upon to establish the contrary proposition that a weir in a non-navigable river is a public nuisance, (d) 24 & 25 Vict. c. 109, s. 11. (e) 24 & 25 Vict. c. 109, s. 23; 36 & 37 Vict. c. 71, s. 46. (f) 2 & 3 Will. 4, c. 71. (g) Rolle v. Whyte, L. R., 3 Q. B., at p. 302. (h) 7 East, 195. field v. Lord Lonsdale. and therefore illegal. This proposition, if it ever was law, is no longer so, as it has been expressly overruled by the Court of Common Pleas. Lord Chief Justice Bovill, in delivering the considered Lord Lecon- judgment of the court in Lord Leconfield v. Lord Lonsdale (e), said, "We see no ground for saying that a coop (that is, a kind of weir) that is not in a public navigable river can be treated as a nuisance. The supposed authorities which were cited do not appear to us to make out any such proposition, and the passage in the 2nd Institute involves the contrary. The case of Weld v. Hornby (ƒ), which was relied upon on this point, did not raise any such question. It was an action for a private nuisance, and unquestionably maintainable in respect of the plaintiff's private right of property, which was injured by the act of the defendant in making his weir more impervious to fish, and so preventing them from arriving at the plaintiff's fishery, a grievance long recognized as giving a right of action, independent of any question of public nuisance; see the precedent in the last case of Year 46, Lib. As.” "The dictum of Lord Ellenborough must be read as assuming that the river was public; and the marginal note to the report of the case in 3 Smith, 244, expressly refers to it as a public river. turning out upon inquiry not to be so in fact, at the point where the weir actually was, only shows that Lord Ellenborough was mistaken as to the (e) L. R., 5 C. P. 657. (f) 3 Smith, 244. Its |