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Affluent or Effluent

At the Devon Quarter Assizes in the April of 1881 and interesting appeal was heard pertaining to a leat and whether or not it should be regarded as a tributary of the River Dart. Firstly what can be considered as a Dartmoor Leat? In simple Dartmoor terms Eric Hemery defined a leat as being; “A course dug to convey water by gravity from its point of diversion from a stream to a working point.” – High Dartmoor, p.57.  Secondly it will be useful to define a tributary.  According to the Cambridge Dictionary they are defined as; “a river or stream that flows into a larger river or lake.”

Having established that let’s turn back the clock to the October of 1880 when Messrs. William Lee, Richard Coaker, and Edward Worth all appeared at Tavistock Petty Sessions on the 27th of October. They were summonsed by the Dart Fishery Board of Conservators for; “having in the parish of Lydford, on the 15th of September, fished for and taken certain trout without a licence, within the limits of the Dart Fishery Board, to wit, in the Devonport leat at Princetown, and did also fish for the said trout with an illegal instrument.” A Mr. Bridgman appeared for the Board of Conservators and a Mr. Bone for the Devonport Water Works Company for who the three men worked for. As the prosecutor Bridgman stated that the Board of Conservators had obtained a certificate under the Freshwater Fisheries Act from the Home Secretary. This prohibited fishing in private and other waters without a licence and was applicable to all the rivers and streams in the Dart district.  He then explained that the three defendants were spotted by the water bailiff  fishing with a small net in the leat and on asking to see their licenses they replied they did not need one as the leat belonged to the Water Works Company who had given them  permission to fish the leat. For the defence Mr. Bone argued that by a special act of 1793 the Devonport Water Company had the right to take all waters from the West Dart for supplying the town of Devonport with water which they had done so. He also pointed out that providing people obtained a licence from the Water Company they had the right to fish the leat. The prosecution then pointed out that the boundary of the Dart Conservators was defined as including all the river Dart including its tributaries in the north of Devon and the coastline from Hook’s Nose to Start Point in the south. Therefore as the Dart District included all rivers and streams within the set limits the leat was within the Dart District. The defence then argued the point that the leat was not a tributary but an artificial channel. Henry Caunter, the water bailiff then gave his evidence affirming that the; “Devonport leat came from the principle stream of the Dart and afterwards emptying back into the Dart.” The Head of the Waterworks, Mr. Henry Francis then pointed out that; “the leat commenced at the West Dart and ran into the Cowsick (sic) river, at Cowsick Weir. It took up the waters of the Cowsick and West Dart rivers and the ran into the Blackabrook, but was carried over the river by an iron aqueduct, and then passed on through the Prison grounds to Devonport. In cases of floods the leat would overflow into the Blackabrook. The Blackabrook leat in the Prison grounds was below where the aqueduct or launder crossed the Cowsick.”
So basically the whole point of contention was whether of not the Devonport Leat could be regarded as an artificial watercourse or in fact a tributary of the river Dart in which case the defendants were guilty. Whether or not Mr. Bridgman could see his case slipping away he the proposed that the charge of fishing with an illegal instrument be dropped in order to mitigate the sentence. The conclusion of the Bench was that the three men should be found guilty of illegally fishing without a licence and were fined £1 5s. each including costs or seven day’s imprisonment. On hearing this Mr. Bone immediately asked for the case to be appealed in a superior court and the request was granted. –The Tavistock Gazette, October 29th 1880.

Now turning the clock forward to the April of 1881 when the appeal was heard at the Devon Quarter Sessions. Once again it was the Dart Fishery Board and the Devonport Water Works Company who were arguing the toss.  Messrs. McKellar and Mr. Underhay appeared for the respondents and  Messrs. George Pitt-Lewis and the Hon. Claude Vivian for the appellants. McKellar and Underhay presented much of the same evidence as that of the initial hearing contending that the leat could not be regarded as a tributary of the river Dart. It was pointed out that; “The leat commences at the banks of the West Dart, the water from which river flows through the artificial channel forming the leat on the river Cowsick, an admitted tributary of the Dart, into which river it enters. A weir constructed across the Cowsick to divert the water into a continuation of the leat cut on the other side. It frequently occurred that the water flowed over this weir and so back into the Dart again. From the Cowsick the leat flowed on to the Black a Brook (sic), another admitted tributary of the Dart. It crossed over this stream through an iron channel, but the surplus water was turned off by flood hatches in the Black a Brook and so again to the river Dart. It was after passing this place that the offence was committed within the grounds of Dartmoor Prison. After passing the spot where the offence was committed the leat flowed on and in its passage ran near to the Swincombe river. Flood hatches were provided and an artificial channel made to convey the surplus water from the leat, which surplus water went into the Swincombe and so in the Dart again. The water bailiff, Caunter, deposed to his having caught trout in this artificial channel. Under these circumstances the Conservators contended that the leat, up to this point, is a tributary of the river Dart, and, in fact, going further they claimed to have jurisdiction  over all the watercourses within their district, it was therefore argued by them that the men had been guilty of an offence in taking the fish with a net, for which they had no licence.” Several witnesses were produced on behalf of the appellants, one being Mr. H. Drew of Exeter who had made a detailed survey of the location in question. He contended that the water from which the fish were taken be regarded as a tributary but that it was impossible for any fish to find they way to the location and back into the Dart due to the conformation of the ground. Other witnesses testified that very little water overflowed by way of the storm overflow on to the surrounding land and if they did would find their ways back to the Dart by; “channels of the roughest and uneven description.” It was also questioned that should water in a meadow be considered as forming for fishing purposes a part of an adjacent river as to consider the water in dispute as constituting a tributary of the Dart?
The verdict of the court was the dismissal of the appeal with costs to which Mr. Pitt-Lewis asked for the Court to be able to once again take the case to another superior court. He noted that it was a matter of importance to the Water Company. He pointed out that if the present decision was to stand it would mean the Water Company would have to pull up the flood hatches on the leat once a week and to keep them closed during the entire time of the salmon fishery season. The Magistrates granted the application. – The Western Times, April 7th, 1881. As far as I can ascertain the second appeal never materialised and so at that point of time a leat was to be regarded as a tributary no matter who owned it. Therefore the BIG question still remains is can a ‘leat’ which is an artificial watercourse considered to be a river or stream? Or does a leat carry affluent or effluent?
It is also worth recognizing how aggressively protective the Dart Fishery Conservators were of their waters. There were many more court appearances where they brought charges against mine owners for polluting their waters, numerous people caught fishing without a license or poaching, they even declared war on the herons for taking their fish stocks.

About Tim Sandles

Tim Sandles is the founder of Legendary Dartmoor

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