Servitude of a Damhead. - Moss. - Water-run in Coal Works. - Astriction to a Smithy.
TheLaird of Gairlton v. The Laird of Stevenson
Date: 20 July 1677 Case No. No. 38.
Where one had the servitude of a dam-head on the ground of another, and the ground had been carried away by the water, he was found entitled to extend the dam till it touched firm ground.
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The Laird of Gairlton, as heritor of the mill, called the Sands-mill, pursues the Laird of Stevenson, on whose ground was the end of the pursuer's dam-head, whereof he had been in immemorial possession; but, by a speat of water in anno 1674, the ground being washed away from the end of the dam, Gairlton extends the end of the new dam, and Stevenson impedes it; therefore Gairlton craves it may be declared, that he hath right to build his dam to the next adjacent ground thereto. The defender alleged absolvitor, because the suffering of a dam to be laid to his ground was of mere favour, and the occasion that the speats of water washes away the same; likeas, the pursuer hath no right to force him to admit of his dam to be any longer, or to encroach upon his ground more than formerly; but the most he can require is, that the defender permit him to make up the breach made in his dam, the pursuer satisfying the damage the defender hath sustained through the sanding of his ground upon occasion of the said dam.
The Lords found the declarator relevant, that this dam had been 40 years, or immemorially, fixed to the defender's ground, to give him right to such a servitude upon the defender's ground, and that he was not liable for any damage occurring by speats, or any other accidents, without his fault, but that he might extend his dam till it touched the defender's ground, in such a way as might be least prejudicial to the defender; and appointed commissioners to visit the ground, and set the place where the dam should be fixed.
Fol. Dic. v. 2. p. 375. Stair, p. 545.*** Fountainhall reports this case:
Gairlton pursues a declarator, that he has right to repair his dam-head and mills. Alleged, it is on Stevenson's ground turned in by the speat of water. The Lords ordained before answer a visitation, albeit Gairlton offered to prove the place he intended to repair is the same where the dam-head had stood before, and that the nature of that servitude of a dam-head implied a liberty to alter the place when necessary, being without the defender's prejudice.
1683, March 14.—Between Sir John Seaton of Garmilton, and Sir Robert Sinclair of Stevenston, “The Lords found Garmilton could have no other servitude on Stevenston's land for his mill-dam, save what he bas been in possession of; and assoilzied Stevenston from damages.”
1683, March 30.—Between Garmilton and Stevenston.—“The Lords alter the interlocutor of the 14th current, and found Stevenston liable to refound and make up Garmilton's damage, that the water ran not towards his mill as it was wont to do. Though all the servitude which Stevenston owed him in law was only a nuda patientia through his ground, and that the channel of the water was diverted casu and by speat, without any fact or deed on Stevenston's part, and could not be returned to the former channel.
