( Ante, vol. xxix. p. 878, and 19 R. 1083.)
Subject_River — Pollution — Right to have Natural Purity of Water Preserved — Mine — Interdict against Pumping Water from Mine into River.
A mine-owner held ( aff. decision of the First Division) not entitled to pump water from the mine into a river, although he may not unfit the river for primary purposes, but only for special purposes for which it is in its natural state peculiarly adapted.
This case is reported ante, vol. xxix. p. 878, and 19 R. 1083.
Young & Company appealed.
At delivering judgment—
From the judgment delivered by the Lord President it appears that the respondents, in maintaining their right to have the appellants interdicted from discharging the pit water into the Doups Burn, presented their case in two different aspects. In the first place, they complained of the quality of the pit water on the same footing as if it had been water taken from the burn, used by the appellants for some secondary purpose, and then returned to the stream in a pure but hard condition. In the second place, they complained that the pit water which could not find its way to the burn in the natural course of events had been introduced by artificial means, to their prejudice. Upon the first hypothesis their Lordships' decision was in favour of the appellants. They appear to have affirmed that it is the right of a riparian proprietor not only to use water for secondary purposes, but in so using it to alter its chemical properties to any extent so long as he does not render it impure in the sense of being unfit for primary uses. To that view of the law I am not prepared to assent. It was not necessary to decide the point, and its decision is unnecessary for the disposal of this appeal; but seeing that it was decided, I think it right to say that I am not satisfied that a riparian owner is entitled to use water for secondary purposes except upon the condition that he shall return it to the stream practically undiminished in volume, and with its natural qualities unimpaired. I am not satisfied that in returning the water in a state fit for primary uses he has any right to alter its natural character, and so make it unfit for uses to which it had been put or might be put by a riparian proprietor below. Upon the second contention their Lordships decided against the appellants, and granted interdict accordingly. The ratio of their decision is very clearly and forcibly stated by the Lord President, with whose opinion I entirely concur. The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in œmulationem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour's property by artificial means, and I can see no distinction in principle between water raised from a mine below the level of the surface of either property, which is the case here, and water artificially conveyed from a distant stream. The law of Scotland upon this point is the same with that of England. In Blair v. Hunter, Finlay, & Company, 9 Sess. Ca., 3rd Series, 207, Lord Gifford said—“Although there is a natural servitude on lower heritors to receive the natural or surface water from higher grounds, the flow must not be increased by artificial means although reasonable drainage operations are permissible.” The rule that the upper heritor cannot interfere with the gravitation of the water so as to make it more injurious to the land below is clearly stated by Chief-Justice Erle in Baird v. Williamson, 15 C.B. (N.S.) 392, which was rightly accepted by the First Division as
The law relating to the rights of riparian proprietors is well settled. A riparian proprietor is entitled to have the water of the stream on the banks of which his property lies flow down as it has been accustomed to flow down to his property, subject to the ordinary use of the flowing water by upper proprietors, and such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. Every riparian proprietor is thus entitled to the water of his stream in its natural flow without sensible diminution or increase, and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to found a claim which may ripen into an adverse right, entitles the party injured to the intervention of the Court.
The respondents are riparian proprietors in regard to the Doups Burn. They carry on the business of distillers on their property by means of a distillery, which has been in work there for the last sixty years. The appellants, without any prescriptive right so to do, are pouring into the burn a large body of water which they pump up from their mines. The respondents do not complain of the increased volume of the stream. The increase itself is no disadvantage to them. But they say that the foreign water is of a character and quality different from that of the natural stream, and that it prejudicially affects the burn water for distilling purposes. The appellants insist that they are entitled to continue their operations, and therefore it is necessary to determine the question of right.
It is proved that the water of the burn in combination with the water which the appellants are pouring into it is less suitable for distillery purposes than it used to be. It used to be very soft water. It has been made very hard. The appellants have thus seriously impaired the manufacturing value of the burn. They have in fact destroyed its special value. Their answer is that the ingredient introduced is only water, and very good water too. It may be very good water for some purposes. But that is not much satisfaction to the respondents if it will not do for the one purpose for which they want to use it. It seems to me that the appellants have no more right to pour into the burn foreign water which has the effect of changing its natural quality than they would have to put into it some chemical substance which would produce a similar alteration.
Then the appellants urged that working coal was the natural and proper use of their mineral property. They said they could not continue to work unless they were permitted to discharge the water which accumulates in their mine, and they added that this watercourse is the natural and proper channel to carry off the surplus water of the district. All that may be very true, but in this country at anyrate it is not permissible in such a case for a man to use his own property so as to injure the property of his neighbour.
I have therefore no doubt that the appellants are not justified in pouring into the burn foreign water to the injury of the respondents.
Agreeing with the learned Judges of the First Division in this, which is the ground of their decision, I am compelled to add that I am unable to concur in one proposition which their Lordships lay down as a proposition of law. Their Lordships hold that if the change in the quality of the Doups Burn of which the respondents complain had been effected not by the introduction of foreign water, but by some manufacturing process employed by an upper proprietor entitled to the use of the flowing stream, the respondent would have been without remedy. It is not necessary to decide the point. But as at present advised, I am disposed to think that if the appellants had abstracted the natural water of the burn, and returned it to the stream so altered in quality or character as to be materially less serviceable for the reasonable use of the respondents, though still fit for primary or ordinary uses, they would have been equally liable to an interdict, just as they would be liable if they were to return water unchanged in its chemical constitution but so heated as to be injurious to a lower riparian proprietor.
I therefore concur in the motion which has been proposed.
I am, however, clearly of opinion that while a lower proprietor must submit to the flow of water coming down upon his lands by the natural force of gravitation, he is not bound to receive water brought up from a depth by artificial means such as pumping. The appellants would no doubt be entitled in mining to excavate and remove the strata of minerals in the lands leased them to any depth practicable to which they might choose to go. If in doing so in the ordinary course of their working they should happen to tap springs or a water waste from which the water by gravitation rose to the surface and flowed down to a lower proprietor's land, this must be submitted to; but the mineowner is not entitled by pumping to increase this servitude or burden on one unwilling to submit to it by pumping up water which might never rise to the surface, or which might only do so more gradually and slowly and in much smaller volume. This is, I think, the rule or principle on which the Court decided the case of Baird v. Williamson, the decision in which has been approved of by your Lordships.
I know of no distinction between the law of Scotland and the law of England in the class of questions relating to the common interest and rights of upper and lower proprietors on the banks of a running stream. The whole series of authorities in both countries seem to be entirely against the claim or pretension of the appellants for their own profit to pump up water from the depths of their pit and send it into the stream, greatly enlarging the quantity of water in the bed, and impairing its quality. In these circumstances the defenders' counsel invited your Lordships to follow the decision in an American case decided in the Supreme Court of Pennsylvania—the case of The Pennsylvania Coal Company v. Sanderson, decided in February 1866. In that case undoubtedly the Court held that the owners of a mine were entitled to pump up water from the lower strata of the mine and to send it into an adjoining stream, although the quantity of the water was thereby increased and its quality so affected as to render it totally unfit for domestic purposes by the lower riparian owners. The case had been twice previously before the Court, when judgment was given against the mineowner. On the third occasion, which occurred in consequence of a third trial to assess the damages, the jury found a very large sum due to the lower owner, but the verdict was quashed, and the whole case reconsidered with reference to the legal rights of the parties, and with the result I have stated. In a Court of Seven Judges there were three who dissented from the judgment, including the Chief Justice of the State. This circumstance, and the grounds of the judgment, seem to me to be sufficient to deprive the case of any weight. These grounds appear to me from a perusal of the judgments to be fairly stated in the head-note as follows—“The use and enjoyment of a stream of pure water for domestic purposes by the lower riparian owners, who purchased their land, built their houses, and laid out their grounds before the opening of the coal mine, the acidulated waters from which rendered the stream entirely useless for domestic purposes, must ex necessitate give way to the interests of the community in order to permit the development of the natural resources of the country, and to make possible the prosecution of the lawful business of mining coal.” I shall only add that while the enormous value of the mining interests in the district of Pennsylvania from which the case came, and which is fully explained in the judgment, might have formed a good reason for appealing to the Legislature to pass a special measure to restrain any proceedings by interdict at the instance of surface proprietors, and to give them a right to damages only for injury sustained, that value could, in my opinion, afford no good legal ground for allowing the proprietor of a mine so to work his minerals for his own profit as to destroy or greatly injure his neighbour's estate by subjecting it, by means of artificial operations, to the burden of receiving water enlarged in quantity and destroyed in quality. The case has no application to the present, because the decision was based on special circumstances as to the great relative value of the minerals as compared with the surface in the district, and because in any view the decision seems to me to have been making law rather than interpreting the law, and giving effect to sound and well-recognised principles as to the common interest and rights of upper and lower proprietors in the running water of a stream.
The House affirmed the decision of the First Division and dismissed the appeal with costs.
Counsel for the Appellants—Lord Advocate ( Balfour, Q.C.)— C. S. Dickson. Agents— Grahames, Currey, & Spens, for Webster, Will, & Ritchie, S.S.C.
Counsel for the Respondents— Sir Horace Davey, Q.C.— Munro— Wilson. Agents— Andrew Beveridge, for G. Monro Thomson, W.S.