Salmon Fisheries (Scotland) Act 1868

1868 CHAPTER 123 31 and 32 Vict

An Act to amend the Law relating to Salmon Fisheries in Scotland.

[31st July 1868]

Modifications etc. (not altering text)

C1 Preamble (which recites Salmon Fisheries (Scotland) Act 1862 (c. 97), Salmon Fisheries (Scotland) Act 1863 (c. 50) and Salmon Fisheries (Scotland) Act 1864 (c. 118)) omitted under authority of Statute Law Revision Act 1893 (c. 14)

C2 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

1 Short title. S

This Act may be cited for all purposes as “The Salmon Fisheries (Scotland) Act 1868.”

[F1 1A Expressions used in this Act. S

In this Act, unless the context otherwise requires the expressions “board” or “district salmon fishery board”, “district” or “salmon fishery district”, “fishery”, “proprietor”, “salmon” and “river” shall have the meanings ascribed to them in section 40(1) of the Salmon Act 1986 (interpretation).]

Textual Amendments

F1 S. 1A inserted by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 1

2—10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2 S

Textual Amendments

F2 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

11 Acts not to apply to streams not frequented by salmon. S

Notwithstanding anything contained in or authorized by this Act or the recited Acts, no regulations with respect to the construction and alteration of [F3 dams, including mill dams] or lades or waterwheels, so as to afford a reasonable means for the passage of salmon, shall apply to streams or branches or tributaries of rivers which are of such small size as not to be frequented by salmon, nor to dam dykes which in their existing state at the time and in the average state of the river do not obstruct the passage of salmon; and where in any existing intake lade there is at present a sufficient sluice, it shall not be necessary to remove the said sluice to a higher point of the lade, nor to construct an additional sluice at the intake thereof; and it shall be lawful to lift any heck from out the water as a means of protection during a flood, or when the river is encumbered with ice, or with weeds and floating leaves to an extent to choke the heck.

Textual Amendments

F3 Words substituted by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 2

Modifications etc. (not altering text)

C3 S. 11 applied by Salmon Act 1986 (c. 62, SIF 52:2), s. 3(5)

12—14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4 S

Textual Amendments

F4 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

15 Penalties for offences. S

[F5 Any person],—

(1) Who fishes for, takes, or attempts to take, or aids or assists in fishing for, taking, or attempting to take, salmon during the annual close time by any means other than rod and line;

(2) Who fishes for, takes, or attempts to take, or aids or assists in fishing for, taking, or attempting to take, salmon (except during Saturday or Monday by rod and line) during the weekly close time, or contravenes in any way any byelaw in force regarding the observance thereof;

(3) Who fishes for or takes, or aids in fishing for or taking, salmon during the annual close time by means of rod and line at a period not sanctioned by the byelaws in force in the district;

(4) Who fishes for or aids in fishing for salmon with a net having a mesh contrary to any byelaw;

(5) Who sets or uses, or aids in setting or using, a net or any other engine for the capture of salmon when leaping at or trying to ascend any fall or other impediment, or when falling back after leaping;

(6) Who does any act for the purpose of preventing salmon from passing through any fish pass, or taking any salmon in its passage through the same;

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

(8) Who in any way contravenes any byelaw;

[F7 shall be guilty of an offence; and section 19 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (forfeiture of fish, instruments, articles, vehicles or boats) shall apply in relation to persons convicted of an offence under this section as it applies to those convicted of an offence under Part I or section 13 of that Act]

Textual Amendments

F5 Words substituted by Salmon Act 1986 (c. 62, SIF 52:2), s. 5(1)(a)

F6 S. 15 para. (7) repealed by Salmon Act 1986 (c. 62, SIF 52:2), s. 5(1)(b)

F7 Words substituted by Salmon Act 1986 (c. 62, SIF 52:2), s. 5(1)(c)

Modifications etc. (not altering text)

C4 S. 15 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), ss. 6, 7, Sch. 2, Sch. 3 Pt. I para. 5(a)-(c)

C5 S. 15 paras. (2)(3)(4) amended by Salmon Act 1986 (c. 62, SIF 52:2), s. 5(2)(b)

C6 S. 15 para. (8) amended by Salmon Act 1986 (c. 62, SIF 52:2), s. 5(2)(a)

16, 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8 S

Textual Amendments

F8 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

18 †Penalty for using roe. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F9 and every person that shall buy, sell, or expose for sale, or have in his possession, any salmon roe, shall for every such offence be liable to a penalty not exceeding two pounds, and shall forfeit all salmon roe found in his possession; but this section shall not apply to any person who. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10 gives any reason satisfactory to the court by whom he is tried for having the same in his possession.

Textual Amendments

F9 Words repealed by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), Sch. 2

F10 Words repealed by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 3(1)

Modifications etc. (not altering text)

C7 Unreliable marginal note

C8 S. 18 excluded by Salmon Act 1986 (c. 62, SIF 52:2), ss. 28(2)(b)(iii), 29

C9 S. 18 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), s. 6, Sch. 2

19 Penalties for destroying the young of salmon, or disturbing spawning beds. S

Every person who shall [F11 knowingly] take or destroy any smolt or salmon fry, or shall buy, sell, or expose for sale, or have in his possession, the same, or shall place any device or engine for the purpose of obstructing the passage of the same, or shall [F11 knowingly]injure the same, or shall [F11 knowingly]injure or disturb any salmon spawn, or disturb any spawning bed, or any bank or shallow in which the spawn of salmon may be, or during the annual close time shall obstruct or impede salmon in their passage to any such bed, bank, or shallow, shall be liable to a penalty not exceeding five pounds for every such offence, and shall forfeit every rod, line, net, device, or engine used in committing any such offence, and shall forfeit any smolt or salmon fry that may be found in his possession; but nothing herein contained shall apply to acts done . . . F12 in the course of cleaning or repairing any dam or mill-lade, or in the course of the exercise of rights of property in the bed of any river or stream: Provided also, that the district board may, with the consent of all the proprietors of salmon fisheries in any river or estuary, adopt such means as they think fit for preventing the ingress of salmon into narrow streams in which they or the spawning beds are from the nature of the channel liable to be destroyed, but always so that no water rights used or enjoyed for the purposes of manufactures, or agricultural purposes or drainage, shall be interfered with thereby.

Textual Amendments

F11 Word substituted by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 4

F12 Words repealed by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 3(2)

Modifications etc. (not altering text)

C10 S. 19 excluded by Salmon Act 1986 (c. 62, SIF 52:2), ss. 28(2)(b)(iii), 29

C11 S. 19 extended by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), s. 22(1) and amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), s. 6, Sch. 2

20 Penalties for taking unclean salmon. S

Every person who shall wilfully take, fish for, or attempt to take, or aid or assist in taking, fishing for, or attempting to take, any unclean or unseasonable salmon, or who shall buy, sell, or expose for sale, or have in his possession, any unclean or unseasonable salmon, shall be liable to a penalty not exceeding five pounds in respect of each such fish taken, sold, or exposed for sale, or in his possession, and shall forfeit every such fish; but this section shall not apply to any person who takes such fish accidentally, and forthwith returns the same to the water with the least possible injury, . . . F13

Textual Amendments

F13 Words repealed by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 3(3)

Modifications etc. (not altering text)

C12 S. 20 amended by Fisheries Act 1981 (c. 29, SIF 52:1), s. 33(5), Sch. 4 Pt. II para. 22

C13 S. 20 excluded by Salmon Act 1986 (c. 62, SIF 52:2), ss. 28(2)(b)(iii), 29

C14 S. 20 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), ss. 6, 7, Sch. 2, Sch. 3 Pt. I para. 5(d)

21 Penalty for buying or selling salmon in close time. S

Any person who shall buy, sell, or expose for sale, or have in his possession, any salmon taken within the limits of this Act between the commencement of the latest and the termination of the earliest annual close time which is in force at the time for any district, shall be liable to a penalty not exceeding five pounds, and to a further penalty not exceeding two pounds for every salmon so bought, sold, or exposed for sale, or in his possession; and any salmon so bought, sold, or exposed for sale, or in his possession, shall be forfeited; and the burden of proving that any such salmon was caught beyond the limits of this Act shall lie on the person selling or exposing the same for sale, or having the same in his possession.

Modifications etc. (not altering text)

C15 S. 21 amended by Fisheries Act 1981 (c. 29, SIF 52:1), s. 33(5), Sch. 4 Pt. II para. 23

C16 S. 21 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), ss. 6, 7, Sch. 2, Sch. 3 Pt. I para. 5(e)

22 Provision as to exportation of salmon. S

All salmon intended for exportation shall be entered for that purpose with the proper [F14 officer of Customs and Excise] at the port or place of intended exportation before shipment thereof; and any salmon shipped or exported or brought to any wharf, quay, or other place for exportation between the commencement of the latest and the termination of the earliest annual close time for any district in Scotland contrary to this section shall be forfeited, unless proof be given to the satisfaction of the [F14 Commissioners of Customs and Excise] of the salmon having been legally captured, and the person so illegally shipping or exporting or bringing the same for exportation shall be liable to a penalty not exceeding [F15 level 1 on the standard scale] for every salmon so shipped or exported or brought for exportation; and no salmon caught by rod and line during the annual close time for net-fishing shall be shipped, exported, or brought for exportation under the like penalties; and any [F14 officer of Customs and Excise] may during the aforesaid period open any parcel entered or intended for exportation, or brought to any quay, wharf, or place for that purpose, and suspected by him to contain salmon, and may detain any salmon found in such parcel until proof is given to the satisfaction of the [F14 Commissioners of Customs and Excise] of the salmon being such as may be legally exported; and if the salmon before such proof is given become unfit for human food, the [F14 officer of Customs and Excise] may destroy the same.

Textual Amendments

F14 Words substituted by virtue of Customs and Excise Act 1952 (c. 44), s. 318, Sch. 10 Pt. I

F15 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

23 All boats and other engines to be removed during annual close time. S

The proprietor or occupier of any fishery shall within thirty-six hours after the commencement of the annual close time remove and carry from such fishery, and from the landing places and grounds adjacent thereto, all boats, oars, nets, engines, and other tackle used or employed by such occupier in taking salmon, and effectually secure the same so as to prevent their being used in fishing until the end of the close time, with the exception of such boats and oars as may be used for angling; and the proprietor or occupier of any cruive shall within thirty-six hours after the commencement of the annual close time remove and carry away all the hecks, rails, and inscales, and effectually secure the same so as to prevent their being used in fishing, and shall also remove all planks and temporary fixtures and other obstructions to the free passage of fish through the cruive; and any proprietor or occupier who neglects to remove and carry away and effectually secure in manner aforesaid any boat, oar, net, engine, or other tackle, or any heck, rail, or inscale, or any obstruction to the passage of salmon through a cruive, shall forfeit every engine and thing not removed and carried away in compliance with the terms of this section, and for every day during which he suffers any such engine or thing to remain unremoved beyond the period prescribed in this Act he shall be liable to a penalty not exceeding ten pounds: Provided always, that nothing herein contained shall apply to any ferry boat, or prevent any proprietor of lands from continuing any boat for the use of himself or of his family, if such boat shall have the name of the proprietor painted thereon, and be secured, when not in use for lawful purposes, by lock and key.

Modifications etc. (not altering text)

C17 S. 23 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), ss. 6, 7, Sch. 2, Sch. 3 Pt. I para. 5(f), Pt. II para. 11

24 Penalties on proprietor or occupier for breach of weekly close time. S

The proprietor, or when let the occupier, of every fishery at which stake, weir, or stake nets, fly nets, or bag nets are used, shall in regard to such nets do all acts required by any byelaw in force within the district in which such fishery is situated for the due observance of the weekly close time; and if any such proprietor or occupier shall omit to do any act so required, he shall incur the following penalties; that is to say,

(1) He shall forfeit the net or nets with regard to which such omission has occured:

(2) He shall for each weekly close time during any part of which such omission has occurred pay, in respect of each net to which the proof of such omission applies, a sum not exceeding ten pounds, and a further sum not exceeding two pounds for every salmon taken or killed by means of such nets during the said weekly close time.

Modifications etc. (not altering text)

C18 S. 24 amended by Freshwater and Salmon Fisheries (Scotland) Act 1976 (c. 22), s. 6, Sch. 2

25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16 S

Textual Amendments

F16 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

26 Sheriff or justice may grant warrant to search premises. S

It shall be lawful for the [F17 sheriff principal] or any justice of the peace, upon an information on oath that there is probable cause to suspect any breach of the provisions of this Act [F18 or the M1 Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951] to have been committed on any premises, or any salmon illegally taken, or any illegal nets or other engines or instruments, to be concealed on any premises, by warrant under his hand to authorize and empower any water bailiff, constable, watcher, or other officer of the board, or police officer, to enter such premises for the purpose of detecting such offence, or such concealed fish or instruments, at such time or times in the day or night as in such warrant may be mentioned, and to seize all illegal nets, engines, or other instruments, or any salmon illegally taken, that may be found on such premises: Provided, that no such warrant shall continue in force for more than one week from the date thereof.

Textual Amendments

F17 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

F18 Words inserted by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), Sch. 1

Marginal Citations

M1 1951 c. 26.

27 Constables or water bailiffs entering on lands not to be deemed trespassers. S

Any water bailiff, constable, watcher, or officer of the board, or any police officer, may enter and remain upon any lands in the vicinity of any river or of the sea coast during any hour of the day and night for the purpose of preventing a breach of the provisions of this or the recited Acts [F19 or the M2 Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951], or of detecting the persons guilty of any breach thereof, and no such person entering and remaining upon such lands as aforesaid shall be deemed to be a trespasser: Provided always, that the owner or occupier of such land may require such person to quit, and such person may on refusal be proceeded against as a trespasser, and shall be liable to the penalties, unless he shall prove to the satisfaction of the [F20 sheriff principal] or justices before whom he is tried that he had reason to apprehend a breach of the law had been or was about to be committed.

Textual Amendments

F19 Words inserted by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), Sch. 1

F20 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C19 S. 27 applied (15.4.2001) by 1986 c. 62, s. 10B(2) as inserted (15.4.2001) by 2001 asp 3, s. 1; S.S.I. 2001/116, art. 2

Marginal Citations

M2 1951 c. 26.

28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F21 S

Textual Amendments

F21 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

29 Apprehension of offenders. S

It shall be lawful for any person, without any warrant or other authority than this Act, brevi manu to seize and detain any person who shall be found committing any offence contained in the first six sub-divisions of the fifteenth section, or in the . . . F22 eighteenth, nineteenth, twentieth, twenty-first, and twenty-second sections of this Act, and to carry such person before any [F23 sheriff principal] or justice of the peace or other magistrate, or to deliver such person to a constable, who is hereby required to carry such person before a justice of the peace or other magistrate, who shall forthwith examine and discharge or commit such person until caution de judicio sisti be found, as the case may require.

Textual Amendments

F22 Word repealed by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), Sch. 2

F23 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C20 S. 29 amended by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), s. 12(2)

30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24 S

Textual Amendments

F24 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

31 Forfeiture of articles found in possession of any offender. S

Every person found guilty of any offence against any of the provisions of the recited Acts or any of them, or of this Act, shall, in addition to any other penalties to which he may be liable, at the discretion of the [F25 sheriff principal] or justices before whom he has been tried, forfeit every boat, net, rod, line, gaff, spear, leister, or other article or instrument of whatever kind which has been or may be used in fishing for or in taking salmon, and which is found in the possession of such person at the time of committing such offence, and which was capable of being used in the commission of such offence, and also any salmon that may be found in his possession.

Textual Amendments

F25 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

32 Forfeited articles may be seized. S

Where any salmon, net, rod, line, or other article directed to be forfeited under this Act has been seized by any constable, water bailiff, watcher, or other officer appointed by the board, or by any police officer, the [F26 sheriff principal] or justices may order the same to be destroyed or handed over to the district board, or to the person prosecuting, to be disposed of as such board or person prosecuting may think fit.

Textual Amendments

F26 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

33 Minimum penalties. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F27 Any boat, net, rod, line, or other article or thing used in the commission of any offence under this Act or found in the possession of the offender, shall be forfeited.

Textual Amendments

F27 Words repealed by Statute Law Revision Act 1893 (c. 14)

34 As to disqualification of justices. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F28 no justice shall be entitled to hear any case in respect of an offence committed on his own fishery.

Textual Amendments

F28 Words repealed by Statute Law (Repeals) Act 1978 (c. 45), Sch. 1 Pt. X

35 Offences on boundary rivers or on sea coast where to be tried. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F29 Any offence committed under this Act on the sea coast, or at sea beyond the ordinary jurisdiction of any [F30 sheriff principal] or justices of the peace, shall be held to have been committed within the body of any county abutting on such sea coast, or adjoining such sea, and may be tried and punished accordingly.

Textual Amendments

F29 Words repealed by Statute Law Revision Act 1893 (c. 14)

F30 Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C21 Reference to county in relation to sheriff principal to be construed as reference to Sheriffdom: Sheriff Courts (Scotland) Act 1971 (c. 58), Sch. 1 para. 1

36 Fishing illegal where prohibited by existing law. S

It shall not be lawful to fish for or take salmon at any place or by any mode prohibited by any Statute relating to salmon or salmon fisheries in Scotland subsisting and in force at the date of this Act; and nothing contained in this Act or in any byelaw shall render legal any mode of fishing which was or would have been illegal at the date of the passing of this Act.

37—40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F31 S

Textual Amendments

F31 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

41 Extent of Act. S

This Act shall not extend to England or Ireland; and no part of this Act, except the thirteenth, eighteenth, [F32 nineteenth], twentieth, and thirty-third sections thereof . . . F33 , shall apply to the River Tweed, as defined by the M3 Tweed Fisheries Act 1859; and the penalties imposed by this Act, so far as applicable to the River Tweed and its fisheries, shall be recoverable and applicable in the same manner as penalties imposed by the M4 Tweed Fisheries Act 1857; and the sections of this Act hereby applied to the River Tweed shall be read and taken as if they formed part of such last-mentioned Act, and of Tweed Fisheries Amendment Act 1859; and the words “district board” in the said sections shall signify the board of commissioners of the River Tweed.

Textual Amendments

F32 Words inserted by Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26), Sch. 1

F33 Words repealed by Salmon Act 1986 (c. 62, SIF 52:2), s. 41, Sch. 4 para. 5

Marginal Citations

M3 1859 c. lxx.

M4 1857 c. clxviii.

42, 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F34 S

Textual Amendments

F34 The whole Act (except ss. 1, 11, 15, 18–24, 26, 27, 29, 31–36, 41) (with saving for s. 13) repealed by Salmon Act 1986 (c. 62, SIF 52:2), ss. 30(1), 41, Sch. 5

SCHEDULES

SCHEDULES (A.)—(G.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S