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CONSIDERABLE dissatisfaction
has for many years existed in regard to a dam-dyke across the River Earn,
with cruives therein for taking salmon, erected near Dupplin. The
proprietors on the upper reaches of the river complain that the effect of
this dyke is to prevent the fish going up, and thus injurious to their
rights of property Remonstrances by public bodies and private proprietors
have been made, but the dyke remains.
In introducing the subject,
attention is drawn to the fact that the alleged grievance is not of modern
origin, but of very ancient date. The predecessor of the present proprietor
of Duppiin and Aberdalgie estate was Lord Oliphant of Aberdalgie.
On 7th August, 1610, a
complaint was made to the Privy Council by John, Earl of Montrose; John,
Ear! of Tullibardin; and Sir James Cunynghame of Glengarnock, setting forth
that divers Acts of the Scottish Parliament were passed, ordaining all
cruives or dams made in fresh water for rivers that are "corst or set within
the Hood mark" to be destroyed, as tending to the destruction of smolts and
fry of salmon fish (1581, ch. xv.); and the late Laurence, Lord Oliphant,
first in 1560, and again in 1583, having set up certain cruives and dams on
the water of the Erne, be-east the coble of Forteviot—to the "grite spoyll"
of all kinds of fish in the said water—charges had been given to the Sheriff
of Terth in both these years, to cast down the said dams. The said charges
having been executed, and Lord Oliphant having duly obeyed the same, there
had been no violation of the said Act on the said water till lately, when
Laurence, now Lord Oliphant, had resolved to set up a new dam on the said
water between the complainers and the water mouth, and so not only to spoil
them of their fishing in the said water, wherein they are heritably infeft,
but also to destroy the whole fish, young and old, within the said water,
thereby making the said river, which was "verie ritche and plentifull of
fischeis,'" to become "altogidder barren and void of fischeis, to the grite
hurte of the commonwele." Lord Oliphant appearing, and the Earl of
Tullibardin, but neither of the other complainers, the Lords, in regard that
the decision of this matter will depend on the heritable right claimed by
the defender to the erecting of a dam of the said water, continue the case
until 15th March next, and- meanwhile, discharge the defender from setting
up any dams, cruives, or yairs on the said water.
On 10 Aug., 16:0. Lord
Erskine became bound by Act of Caution for John, Earl of Tullibardin, in
3000 merks, and for William, Master of Tullibardin, in 2000 merks, not to
harm Laurence, Lord Oliphant.
On 1 Aug., 1611, a complaint
was made to the Privy Council by Laurence, Lord Oliphant, and Sir Thomas
Hammiltoun of Bynnie, for His Majesty's interest, as follows:—Lord Oliphart
having resolved to build a mill on his lands of Dupline, "first causic cast
the lead and watter-gang for the said mylne, and biggit ane dam, weill and
substantiouslie gairdit with fourty tua cupplis of alk," for holding the
water of the mill, and expected to have finished the work without any
trouble, "now in this tyme of universal obedience and quietness under His
Majesteis' most happie and blissit governament." But, in July then last,
William, Master of Tullibardin; Sheriff of Perth, Sir Mungo and Robert
Murrayis, sons of Johnne, Earl of Tullibardin, with others to the number of
100 horsemen and 300 footmen, of whom many were the said Earl's men, and the
rest broken Highlanders, including fugitives of the Clan Gregour, armed with
bows, habershons, targs, pole-axes, two-handed swords, and with hagbuts and
pistolets, came about three o'clock in the morning to the said dam, and
destroyed it, cutting with axes his whole forty-two cupples of oak with
twelve other pieces of '"grite treis" lying beside the dam. Charge had been
given to the defenders, including the said Earl, to answer, and now,
pursuers appearing personally, and the Earl and Master of Tullibardin being
present for themselves, and the other defenders being also present, the
Lords find the convocation of the leiges in arms, and with hagbuts and
pistolets, and the destroying of the dam and cutting of the cupples and
timber thereof, to be clearly proved against the said Master, and that it
was done with the foreknowledge of the Earl, and therefore ordain both to
enter in ward in the Castle of Edinburgh; but they assoilzie the defenders
from having some of the Clan Gregour in the company at the time libelled.
On 16 Aug., 1611, Sir Thomas
Hammilloun of Bynnie, for His Majesty's interest, and John, Earl of
Tullibardin, as landlord to Thomas Mitchell and Johne McEwne, his tenants,
complained that. on 15 July last, Laurence, Lord Oliphant, accompanied by a
number of his men, all armed with certain weapons, and with hagbuts and
pistolets, set upon the said tenants in the highway at Dalcharrochie,
wounded them, and then led them as prisoners to the place of Duplene. where
he would have hanged them but for the "grite entreatie" of Sir John Lindsay,
frar of Kynfawnis. Lord Oliphant then cast them in the "pit and thevis hole"
of Dupline, and detained them there divers days and nights without meat,
drink, or other necessaries. After nine days he brought them "fetterit and
bundin thair handis behind thair back to Edinburgh." All this the said
tenants, being free subjects, taken for no recent crime, and the defender
having no power over them. Both parties appearing, the Lords find that
Oliphant has violated the laws in so far as he had piatolets in his company
the time libelled, and therefore ordain him to keep ward within the burgh of
Edinburgh till relieved. His defence for taking and warding the said tenants
having been that, foregathering with the said tenants and with Symone
Leutefute and Robert Quhite, and seeing hagbuts and pistolets in their
company, he had apprehended Mitchell and McEwne and committed them to ward,
as required by Act of Parliament made in 1597. The Lords, having considered
the defence, assoilzie Lord Oliphant from all pain for his taking of the
said tenants. A further complaint was lodged for the Earl of Tullibardin by
Sir Thomas Hammiltoun for His Majesty's interest, setting forth that the
barony of Gask, with the right of fishing on the water of Erne from the
mouth thereof cn both sides up to the said barony, belonging to the said
Earl heritably, he and his predecessors, past memory of man, had been in the
peaceable possession thereof, the late Laurence, I.ord Oliphant, good-sire
of the present Lord Oliphant, having been discharged by the ordinary courts
of justice, first in the time of Queen Mary, and since then in His Majesty's
own time, from erecting dams on the said water, that matters have rested now
for thirty years. Lately, however, Laurence, the present Lord Oliphant, had
resolved to renew his grandfather's attempt to erect dams on the said water;
and the Lords of Secret Council having discharged him from building his dam
till the question between him and the said Earl had been decided by the
ordinary judge, the said Lord, impatient of having to prosecute his right
according to law, had resolved by strong hand to build a dam on the said
water, and with "grite diligence pat the same up." Knowing the said Earl was
thereby "havelie prejudgeit in his right," and that it was, therefore,
necessary that the work should be prosecuted with force, he and ccrtain of
his servants, viz., Niniane Oliphant, Johnne New, Henry Oliphant, Johnne
Miller, Richard Dae, Johnne Duncane, William Keir, Thomas Meinzies, Thomas
Sword, and Wm. Baxter, had, on the fields of Dupline and at a mill, from 11
to 15 July last, borne hagbuts and pistolets, ridden "athorte the cuntrey"
therewith, and to the "forder contempt of law brought certain hagbuts of
found to Lord Oliphant's work at Dupline, plantit the same in a little house
neir by, made murdreis hoillis within the same house of nurpois to schote
anu slane all such personis as sould have interrupit the said works." Both
parties appearing, the Lords assoilzie the defender from the charge of
having had hagbuts and pistolets in his company, and remit the matter of the
dam to be pursued before the judge competent.
On 24 Feb.. 1612, the Lords
of Privy Council, who had be^n nominated by John, Earl of Tullibardin. and
William, Master of Tullibardin. and by Laurence, Lord Oliphant, on the other
side, for settling the dispute, remitted it to the Lords of Council and
Session, and in the meantime ordained the parties to suffer the dams to rest
as they were till decree be given in the case.
We do not know the ultimate
result of the contention between the parties. The extracts above given from
the Privy Council records should prove interesting at the present time, when
the question as to the obstruction of the salmon fishing on the Earn is
again raised. They are also curious as giving a graphic account of the
manner in which great proprietors at the time endeavoured to assert their
rights. |
