authorized in erecting or doing any necessary act to erect or maintain such fish pass shall incur a penalty not exceeding ten pounds for each act of obstruction; and any person injuring such fish pass shall pay the expense of repairing the injury, such expense to be recovered in a summary manner, and, in addition thereto, if such injury is wilful, shall incur a penalty not exceeding five pounds: provided that if any injury is done to any dam by reason of the affixing of a fish pass in pursuance of this section, any person sustaining any loss thereby may recover compensation for such injury in a summary manner from the person or body of persons by whom such fish pass has been affixed (p), if proceedings for the recovery of the same are instituted within two years after the time at which the fish pass was first affixed to the dam (q). When any proprietor of a fishery or board of conservators is or are, from the circumstances of the case, unable to attach a fish pass to any weir, dam, fishing mill-dam, or obstruction under the provisions of the twenty-third section of the Salmon Fishery Act, 1861, such proprietor or board of conservators may, after giving one month's notice of their intention to the owner of the bank adjoining any weir, dam, fishing mill-dam, or obstruction, present a petition to the secretary of state praying to be allowed to purchase so much of the bank adjoining the same as may be necessary for such fish pass, and to be allowed to put in force the powers of the Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, and such prayer shall be supported by such evidence as the secretary of state may require. Upon the receipt of such petition, and upon due proof of notice being given to the owner and occupier of such land, the secretary of state, after satisfying himself that the board are provided with funds for the purchase of them, shall take such petition into consideration, and may either dismiss the same or direct an inquiry in the district in which such weir, dam, fishing mill-dam, or obstruction is situated, or otherwise inquire into the propriety of assenting to the prayer of such petition. Provision as to purchase of land for fish passes. (p) 24 & 25 Vict. c. 109, s. 23. Damage to fish passes. Secretary of After the completion of such inquiry, the secretary of state may, by provisional order, empower the said proprietor or board to put in force with reference to so much of the bank adjoining the said weir, dam, fishing mill-dam, or obstruction, the powers of the Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, with such conditions and modifications as he may think fit, and the board shall serve a copy of any order so made upon the owner and occupier of the said land. No provisional order so made shall be of any validity until the same has been confirmed by act of parliament, and the act confirming such order shall be deemed to be a public general act of parliament, and the said proprietor or board shall be thereupon deemed and taken to be the promoters of an undertaking to purchase the said land (q). Any person wilfully altering or injuring any fish pass, or doing any act whereby fish are obstructed or liable to be obstructed in using such fish pass, or whereby such fish pass is rendered less efficient, or altering the bed or banks of the river so as to render any fish pass less efficient, or using any contrivance or doing any act whereby fish are in anywise liable to be scared, hindered, or prevented from passing through such fish pass, or doing any act for the purpose of preventing salmon from passing through a fish pass, or taking any salmon in its passage through the same, shall for every such offence incur a penalty of not exceeding five pounds for a first offence, and not exceeding ten pounds for each subsequent offence, and shall forfeit any salmon taken by him in contravention of this section, and any instrument used by him in taking the same: and a further penalty of not exceeding one pound for every day during which any such alteration, obstruction, or contrivance is continued from the date of a second conviction for such offence, in addition to any expense which may be incurred in restoring such fish pass to its former state of efficiency (r). In all cases where any fish pass has been already constructed state may ap- in any weir, dam, or fishing mill-dam, and has received the approval of the secretary of state, such fish pass shall be deemed to be a fish pass within the meaning of the Salmon Fishery prove existing fish passes. (q) 36 & 37 Vict. c. 71, s. 49. (?) 24 & 25 Vict. c. 109, s. 23; 36 & 37 Vict. c. 71, s. 48. Acts, 1861 to 1873, notwithstanding such fish pass was not constructed in the manner and by the parties specified in the Salmon Fishery Acts, 1861 to 1873. And it shall be lawful for the secretary of state to approve and certify any fish pass that now is or hereafter shall be constructed, if he is of opinion that such fish pass is efficient in all respects and for all purposes, as if the same had been constructed under the provisions of the Salmon Fishery Act, 1861, with the written consent and approbation of the secretary of state (s). fish pass or free gap. On application to the secretary of state by any board of con- Alteration of servators, setting forth that any fish pass or free gap within their district, under the provisions of the Salmon Fishery Act, 1861, is in their opinion capable of improvement, the said secretary of state may direct any alteration in the said fish pass or free gap, or may direct a new fish pass or free gap to be made in another site, and the board of conservators shall defray all costs, charges and expenses attending the alteration or erection of any such fish pass or free gap, and for the purposes of this section, where a river is divided into separate branches, each branch shall be considered as a separate river: provided, that no injury shall be done under the exercise of the powers given by this section to the supply of water to or of any navigable river, canal, or other inland navigation (†). The sluices, if any, for drawing off the water which would otherwise flow over any dam shall be kept shut on Sundays and at all times when the water is not required for milling purposes, in such manner as to cause such water to flow through the fish pass, if any, or over the dam; and any person making default in complying with the requisitions of this section shall incur a penalty not exceeding five shillings per hour for every hour during which such default continues; but this section shall not preclude any person from opening a sluice for the purpose of letting off water in cases of flood, or for milling purposes, or when necessary for the purposes of navigation, or for cleaning or repairing any dam or mill or the appurtenances thereof (u). In all cases in which it is alleged that a board of conservators, (8) 36 & 37 Vict. c. 71, s. 52. (t) 28 & 29 Vict. c. 121, s. 32. (u) 24 & 25 Vict. c. 109, s. 26; 36 & 37 Vict. c. 71, s. 53. Supply of water to fish passes. Compensa- paid on erect- Provision as to Severn Navigation weirs. in executing the powers and authorities of the Salmon Fisheries Acts, 1861 to 1873, have caused any damage to or injuriously affected any land or other hereditaments by reason of the making or maintaining of any fish pass or other work, if the compensation claimed in respect of such alleged damage shall not exceed the sum of fifty pounds, the same shall be settled by two justices of the peace; but if the compensation shall exceed the sum of fifty pounds, the same shall be settled by arbitration, in accordance with the provisions of the Common Law Procedure Act, 1854: provided always, that no compensation shall be recovered under this section unless proceedings for the recovery of the same are instituted within two years from the date of the erection of such fish pass or other work (∞). Whereas it is expedient that the dams or weirs which have been constructed by the Severn commissioners under the provisions of the Severn Navigation Acts, 1842 and 1853, should be placed under the same general law as is applicable to dams or weirs under the Salmon Fishery Acts, 1861 to 1873: Be it therefore enacted, that sections one hundred and fifty-eight, one hundred and fifty-nine, and one hundred and sixty of the Severn Navigation Act, 1842, and so much of section three of the Severn Navigation Act, 1853, as extends their operation to the Tewkesbury weir therein mentioned, be hereby repealed, and that each of the dams or weirs constructed by the Severn commissioners under the provisions of the Severn Navigation Acts, 1842 and 1853, respectively, or either of them, shall be deemed a dam or weir within the meaning of the Salmon Fishery Acts, 1861 to 1873, and the provisions of the said acts shall apply thereto; and that every fish pass now existing in the said dams or weirs or either of them, or which may be constructed therein under the provisions of this act, shall be deemed a fish pass within the meaning of the Salmon Fishery Acts, 1861 to 1873, and shall be maintained in an efficient state by the said Severn commissioners (y). (x) 36 & 37 Vict. c. 71, s. 54. CHAPTER VIII. GRATINGS. grating. THE Salmon Fishery Act, 1873, defines a grating Definition of as "any device approved by the secretary of state for preventing the passage of fish through any channel" (a), and in that sense the word is used throughout the present chapter. The Salmon Fishery Act, 1861, provided for the erection of gratings, to prevent the descent of salmon into artificial channels, in two cases (b): (1) when the channel was used for the purpose of supplying towns with water; and (2) when used for supplying any navigable canal. No provision was made in that act for the erection of gratings at the head or tail races of mills, or at the mouths of small brooks, up which it was not desirable that salmon should go. The Salmon Fishery Act, 1873 (c), empowers boards of conservators to put up gratings in every case, and to fix by bye-law (d) the time in each year during which they are to be kept shut; and the law upon the subject of gratings to watercourses is now as follows: (1) In any artificial channel used for the purpose (a) 36 & 37 Vict. c. 71, s. 4. (b) 24 & 25 Vict. c. 109, s. 13. (c) 36 & 37 Vict. c. 71, Part IX., ss. 58 to 61, Gratings in supplying channels for canals and towns with water. |