Action sustained for restoring a march burn to its former channel, from which it was drawn to serve a mill, though the pursuer could qualify no prejudice from want of it, other than amœnitas, or trouting.
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Mr James Bannatyne, Commissary of Edinburgh, pursues ——— Cranston of Skatisbus to hear him decerned to restore a burn which run betwixt their lands, to the old channel and water gang wherein it run continually, before that the said John Cranston diverted the said burn out of the old course, by cutting of a ditch, and drawing the water in within that ditch, to serve a mill which the defender had built upon his own lands, whereby a part of the channel where the water used to run is dry. The summons and action for restoring of the water and burn to the old course was sustained, albeit that the pursuer could qualify no prejudice in any sort, which he sustained by the diverting thereof, and that the defender was served therewith, and had a going mill thereby; and albeit the defender alleged, That as the pursuer had no prejudice by the said diversion, so he had profit thereof; likeas, it was lawful to him to draw in the water before it ran or touched, or came to the pursuer's lands in any part, and to make his use thereof, seeing the pursuer had no prejudice thereby, as said is, and that the water was restored and ran again in the old channel, after that the defender was served therewith; so that albeit it ran not throw the whole channel and course, wherein it ran before the defender's in-taking thereof, yet seeing it fell in within a part of the old channel again, albeit that part nearest to the defender's in-taking was thereby dried, and seeing it was as steadable to the pursuer as it now runs, as it was when it formerly ran throw the whole channel before the defender made use thereof, therefore the pursuer's action could not be sustained. This allegeance was repelled, and the action was sustained, for causing of the defender to restore the water to the whole old course where it ran before his intaking thereof; and it was not found necessary to the pursuer, to libel or qualify any use of the burn and water thereof, wherein he was prejudged by the defender's in-taking of the same, seeing the Lords found that the water running by his land, which lay marching contiguous to the one side thereof, could not be drawn from any part of the land marching thereto without his own consent; for albeit he had no present use thereof, yet he might possibly find thereafter some use for the same, neither was there any use qualified in spe, or appearing, whereof he might be prejudged; for the burn fell in again into the old channel, and ran by the pursuer's lands some space, under and beneath the part where it first fell in, and ran by the pursuer's ground before the defender's cast, and served him in all uses as profitably as before; and the Lords found it enough of prejudice, that he wanted his pleasure, seeing he had the use thereof ad amœnitatem et voluptatem, and also had sometimes fishing therein of trouts, whereof he alleged he was prejudged, and which could not be altered without his own consent.
Act. Stuart.Alt. Nicolson.Clerk, Hay.
Fol. Dic. v. 2. p. 273. Durie, p. 130.*** Haddington reports this case:
Water running through the Laird of Newton's lands on both sides, and from there to Newhall's lands on the one side, and Skatisbus's land on the other side, and thereafter to Newhall's lands; Skatisbus, by Newton's permission, made a loch in Newhall's lands, diverted the course of the water by a long compass to enter toward his land, to serve a mill built by him, and then made it to fall in the old channel in Newhall's bounds, towards the end of his lands; Newhall's action was sustained to compel Skatisbus to restore the water to the old channel in the whole course thereof, without qualification of any prejudice done to him by the diversion, wherein I thought him more beholden to his friend, nor to who were of contrary opinions.
The action being called the next day, L. unica. Ne quis aquam de flumine publico, and being alleged by the defender, and answer made by the pursuer, being considered, he was ordained to condescend upon his prejudice by the diversion of the water. He declared, that to take from him the commodity of watering his goods, of fishing of trouts, and the burn fishes, and it being before a water march, was now made a dry march; whilk the Lords found relevant.
