Where the one heritor built the march dyke, without requiting the other to concur; this last was found liable only in quantum lucratus, by not being put to the expense of concurring in the building, which he might have done by his own servants.
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Seaton of Garleton pursues Seaton of Barns on this ground, That he having inclosed a park, a part of the dyke whereof is upon his ground, adjacent to the march of Barns's ground, and therefore, conform to the act of Parliament for inclosing of ground, that part of the dyke which is upon the march, should have been made up by equal expense of both parties. The defender alleged, 1mo, No process, because the defender was never required to concur in building of the dyke, which he might have done by his own servants, and by the landstones of his own ground, which the pursuer made use of; and the act of Parliament doth not ordain the half of the expenses by either party, but that both parties could concur, which necessarily imports a requisition, though it be not expressed; 2do, By a decreet of the Lords, it is already found, that a strip of water running from the Lady-well, is the march between both parties, so that the pursuer's dyke is not upon the march; and this being a new statute, should be strictly interpreted, The pursuer answered, That the act of Parliament hath not required requisition, and doth not bear, That both parties shall concur to the dyke on their march; so that when it is an earth-dyke, the whole dyke must be upon the incloser's ground, and the ditch upon the ground of the other party; so that this strip of water is but in place of the ditch, and the pursuer is at the loss, who must build the whole stone-dyke upon his own side; whereas if it were a dry march, the middle of the stone-dyke might be upon the march, and therefore a defence upon a rivulet, burn, or strip of water, was repelled in the case of the Earl of Crawford against Rig, No 1. p. 10475.
The Lords repelled the second defence, but found, That seeing requisition was not made, that they would only sustain the process against the defender in quantum lucratus, by not being put to the expense in the concurring to the building, which he might have done by his own servants, and therefore would modify the expenses so much the lower.
Fol. Dic. v. 2. p. 86. Stair, v. 2. p. 667.*** Fountainhall reports this case:
Sir John Seaton of Garleton pursues Seaton of Barns, 1st, for payment of as the half of the price and expense of his stone park-dyke, built by him on the march betwixt them, conform to the 41st act, Parl. 1661; 2do, To demolish his dam-head, &c. Barns had also a declarator against him, This being reported, “the Lords, before answer, granted commission to the Lords Newbyth and Gosford, to visit the ground of the well controverted, and there to examine witnesses, not exceeding ten upon either hand, how high the dam-dyke hath been these 40 years bygone, how far the water from that dam was wont to restagnate upon Garleton's meadow, and if Garleton was in use to interrupt when the water did restagnate, and if the dyke was made lower, and how much of the water controverted is necessary for the going of the mill; adds sustained Garleton's libel, as to the expense of the building of the park-dyke, relevant, notwithstanding there was no intimation made to Barns, that the pursuer was to build the said dyke, and requiring him, &c. reserving to themselves to consider, after probation of the libel, what part of the expenses Barns ought to pay, and how far Barns is benefited by the building of the said park-dyke; and repel the allegiance, that the said park-dyke is not built upon the march, but on the side of the strip, which strip is the march; and ordain both parties to condescend upon the advantage that doth accrue by building the said dyke.”
