What diligence sufficient. - Effect of partial interruption.
Sir Patrick Home v. Linthill
1684.
November. Case No. No 422.
Click here to view a pdf copy of this documet : PDF Copy
Found, That an interruption via facti in demolishing a mill-dam, made with that excess that it was a riot, might yet serve as an interruption of prescription. See No 420. p. 11241.
Harcarse, (Prescription.) No 768. p. 218.***Sir P. Home reports this case:
1684. December.—In the action at the instance of Sir Patrick Home, Advocate, against Home of Linthill, in November 1684, for laying in the dam-head of Brown's Banks mill, Linthill having offered to prove interruption via facti, the Lords allowed him to prove the same; reserving to the Lords to consider, at the advising of the probation, the import of an agreement in the year 1625, betwixt the Laird of Aiton, Linthill's author, and the Laird of Wedderburn, who built the built, by which the Laird of Aiton was obliged that he should not stop the going of the said mill, otherways than by order of law; and granted commission to visit the ground, and to consider the building of dam-head, if it would prejudge Linthill's mill, by causing the same to stand in back water: And the commission being reported, it did appear by the report, that the water at the dam-head, when there was no flood, or when it is low water, will be six feet of measure lower than the water below Linthill's mill. Alleged for Linthill; That the commissioners were mistaken as to the way and manner of trying and measuring the fall of the water from Linthill's mill to the dam-head below; seeing it appears by the report, that they did begin their measure from Linthill mill downward; whereas, they should have taken the level from the dam-head upwards, to the end of Linthill's tail-dam, which is far below the mill-wheel; and if the level had been so considered, the dam-head would not be two feet of measure below the level of the fail-dam; so that if the dam-head were built up, the water would restagnate; and that Sir Patrick could not found upon prescription, because Linthill had proved his interruption via facti, by cutting the dam-head, and stopping the laying thereof, by Alexander Home of Blackhill his author, in the year 1652; as also, the ground on the other side of the water belongs to Linthill, at least is commonty to the town Eyemouth, wherein he has interest, and that he will not suffer Sir Patrick to affix the end of his dam-head to any part of the ground on the other side. Answered; That the commissioners did justly take the measure of the level from Linthill's mill-head to the dam-head below, and not from the end of the tail-dam; because, there is a great descent from the mill-wheel to the end of the tail-dam; and where there is a descent, the water must run; and so long as the water runs, there can be no restagnation; so that, unless the super-fice of the water, at the dam-head below, were as big as Linthill's mill-wheel, the water cannot restagnate; and the level was taken by a mathematician that was employed by the commissioners appointed for visiting the dam-head; and, as a further demonstration that the report was just, and that the building of Sir Patrick's dam-head cannot make Linthill's mill restagnate, they have been both going mills together upwards of these 60 years; and no respect ought to be had to the probation adduced by Linthill, for proving the interruption via facti; because, there was litiscontestation formerly made in this action, by which Linthill offered to prove interruption scripto and via juris; and there is probation adduced and advised, and is found not to prove; so that he having elided the manner of probation to prove interruption via juris, he cannot have recourse to prove the same via facti; and albeit it had been entire to him to prove his interruption via facti, yet the act alleged to be proved, being the cutting and casting down of the dam-head, which is a riot and crime, could not be sustained as an interruption, seeing unjust and unwarrantable acts cannot have the benefit of a legal diligence; it being a principle in law, that nemo debet lucrari ex suo dolo vel culpa; and the foresaid deed of interruption, alleged to be proved, was so unwarrantable an act, that Blackhill, who did cut and throw down the dam-head, being convened before the English Judges, it was found to be a riot, and he was severely fined; and, by an express decision, the 22d June 1667, Hay of Stroway, No 9. p. 1818. the Lords found, that, albeit a party might use a civil interruption via juris of a mill, or laying in of a damhead, yet he could not stop a going mill, or demolish the dam-head via facti, if the mill was a going mill before, without the authority of a Judge; and as this is clear in the general, much more in this particular case, seeing, by the agreement betwixt the Laird of Wedderburn and the Laird of Aiton, in the year 1625, Aiton, Linthill's author, is obliged not to stop the going of the mill, otherways than by order of law, which excludes all interruption via facti; and albeit the ground on the other side of the water doth not belong to Sir Patrick in property, yet he having interest in the commonty, as well as Linthill, it is a certain rule in law, that any party having an interest in the commonty, may make any use thereof that does not prejudge the common interest; but so it is, that the affixing of the end of Sir Patrick's dam-head to the water brae on the other side, doth not prejudge the ground; and it is clear by Craig, Lib. 2. Dieges. 8. § 5. that, in flumine privato pro reparando aquæductu, sive clusam molendini sua posunt imponere ligna et lapides in fundo vicinorum, invito etiam domino, quamvis non potest pro novi molendini constructione; and it is evident, that Linthill's stopping the laying in of the dam-head was only æmulationem vicini; and by the report, the building of this dam-head cannot make Linthill's mill restagnate; so that it is a principle in law, that what is done in æmulationem, invidiam, et injuriam, altering ought not to be allowed, nam maliciis hominum non est indulgendum.—The Lords sustained the report; and found, that there was no restagnation; but, in respect of Linthill's interruption via facti, assoilzied him as to that point, anent the pursuer's affixing the lintal of his dam-head upon the other side of the water, wherein Linthill has interest either of property or commonty.
