William Cunningham of Craigens v. Thomas Kennedy of Pannel
Date: 22 November 1713 Case No. No 7.
An heritor was found entitled to build a dam-dyke, both ends of which rested on his own ground, above a mill belonging to an inferior heritor; the water returning into the same channel.
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In a process of declarator, at the instance of William Cunningham against Thomas Kennedy, and the counter declarator, at the instance of the latter against the former, the Lords found, that Thomas Kennedy could build a dam-dyke on the water of Lochre, for gathering of the water to his own mill, above the place where William Cunningham had a mill upon the said water; both the ends of the dam-dyke being made to rest on Thomas Kennedy's own ground; and it being so built, as not to divert the water that comes over it, or goes from his mill, from returning to the channel of the water, and going to William Cunningham's mill, below.
Albeit it was alleged for William Cunningham,’ That he, beyond all memory, had been in possession of the free course of the said water to his mill, without any dam-dyke above upon it; and Thomas Kennedy's building one now was novum opus, which would hinder William Cunningham of that aquæductus, so far as necessary to the going of his mill, acquired by the positive prescription. To clear that jus aquæductus may be so acquired, he cited 1. 3. § 4. D. De aqua quotidiana et æstiva, l. 1. §. in med. D. De aqua et aquæ pluviæ arcend. And a recent case of Thomas Aitkenhead of Jaw against Russell of Elrig, (not reported).
In respect it was answered for Thomas Kennedy, Albeit the master of a: lower tenement is obliged to receive therein the water flowing off the higher tenement, it was never before pretended, that the master of a superior tenement was obliged to let the water run free; Donell, lib. 11. c. 9. 1. 15. c. 47, L. 1. § 12. D. De aqu. et aqua pluv. arcend. et opus aliquod in suo faciente novum non potest nuntiari, 1. 2. D. De operis novi nunciatione. Nor can any prescribe a right to hinder another to do in suo what he pleases, especially what depends ex mera facultate. The water's having always run free, can neither be called Craigens' nor Thomas Kennedy's possession of the free course of the water, possession being rather facti than juris; and jus aquæductus, and a free water-course, quite different things. So that this case hath no affinity to that of Jaw and Elrig, where it was not a declarator of the free course of the running water, but of a water-gang, made by way of ditch, proceeding furth of the Loch of Elrig, to which Jaw had an express title by charter and sasine; whereas, Craigens cannot pretend to infeftment in the free course of the water of Lochre.
It seemed also to weigh with the Lords, that this running water was but flumen privatum, or a burn, which is considered as a part of the lands it runs through; and, therefore, the heritor of the lands can dispose of it at pleasure, by damming up, or otherwise, for his own use, qui hoc facit in suo, provided the natural course be not diverted, so as to hinder the water to turn into the former channel, when it comes to the bounds of the heritors of the lands below.— See Property.
