Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

What Title requisite in the Positive Prescription.
Subject_3 SECT. XII.

Positive Prescription of other Rights.

Brigadier Prestoun, and the other Creditors of Valleyfield,
v.
Colonel John Erskine of Carnock

Date: 5 February 1714
Case No. No 162.

A person having been in the immemorial possession of water brought from a lake along a dam, in his neighbour' s ground to his own mill and coalworks, and of casting feal, &c. upon the next adjacent ground for repairing the dam, was found to have prescribed a right of servitude thereto.

Click here to view a pdf copy of this documet : PDF Copy

In the mutual declarators of property and servitude betwixt Brigadier Prestoun and the other Creditors of Valleyfield, and Colonel Erskine, it being proved, that the heritors and tacksmen of Valleyfield have been in the immemorial uninterrupted possession of using the water running from the lochs of Carnock and Carneil to the dam of Inzever in Colonel Erskine's ground, and from thence to Craigmill and coal-works of Valleyfield, and of mending and repairing the dam-heads of Carneil and Inzever, and of the leads and aqueducts whereby the said water is carried from these dams to the works of Valleyfield, and of casting feal and divots, clay, and other materials necessary for repairing the said dams, leads, and aqueducts, upon the ground next adjacent there;—the Lords found, That the heritors and creditors of Valleyfield have right to the said water for the use of the said mill and coal-works, and of casting feal and divots, clay, and other materials necessary for mending and repairing the said dams and aqueducts from the next adjacent ground thereto; and that there is a servitude thereby constituted and established in favours of the said heritors and creditors to the said water and others aforesaid, upon the grounds and lands belonging to Colonel Erskine.

Albeit it was alleged for Colonel Erskine, That possession without a previous title in writ cannot constitute a servitude. Lawyers distinguish betwixt the power that a proprietor hath, whose ground lies upon a natural river or rivulet, to stop another through whose ground that rivulet comes, from inverting the course of it, and him through whose ground water coming from an artificial pond, or any other water-work, does run. It is agreed, that the course of a natural current water cannot be stopped or inverted, which is the case of the decision, 20th July 1677, L. Gairltoun contra L. Stevenson, voce Servitude; but where water hath run artificial from a pond, or water-work, into another's ground, though for never so many years, the proprietor of the water-work may alter the course of the water, divert, or destroy it, as he pleases. The reason is plain—that the proprietor's letting in the water from his artificial work upon another's lower ground, is directly for the advantage of the owner of the water-work, and tends to impose a servitude upon that inferior ground, somewhat of kin to the servitude de cloacis or de stillicidiis. And though, in the event, the inferior tenement may afterwards find some consequential advantages from the water's being so let in upon it, that can never alter the nature of the right, and make that inferior tenement the dominant one; because, initium cujusque rei est inspiciendum. So, if the Colonel had gathered a mill-dam for his own use, no question but he might remove it, though thereby the heritor of the lower ground should lose any consequential advantage he might otherwise reap from the former situation of the dam, or course of the water. The application of all to the present case, is obvious. Since the first bringing in of the water to the dam of Inzever was for the utility of the Colonel's authors, proprietors of Inzever, to serve their coal-works; and the setting of it down from these coal-works through Craigmill ground, for the voidance thereof, was a deed tending to impose a servitude upon that tenement, the proprietors whereof cannot ex post facto mutare slbi causam possessionis, possess as a dominant tenement. 2do, The acquisition of a servitude by possession, without a title, being founded only on the presumed will of the proprietor of the servient tenement, how can it be presumed, that the setting down the water by Colonel Erskine's authors upon Craigmill ground, for their own convenience and advantage, was to constitute such a right to the proprietors of Craigmill, or the coal-work of Valleyfield, as would deprive themselves of the property and use of that water, acquired with so much expense, pains, and of ground. At this rate, no man making use for 40 years of a water of is kind to drain a coal in one part of his ground, can ever use that water to drain the coal in another, which cannot be done without altering the course of the water.

In respect it was answered for Brigadier Prestoun, &c. Their plea for a servitude upon the water aforesaid, for the use of their mill and coal-works, and of casting feal and other materials for the use aforesaid, upon the Colonel's lands, is established by L. 10. D. Si servit vind. L. ult. D. De aqua et aqua pluv. hic, and the decision, 20th July 1677, L. Gairltoun against Stevenson, voce Servitude. It is not the bare using of the water that the heritors of Valleyfield have been in possession of, but likewise of mending and repairing the dam-heads of Carniel and Inzever, and the leads and aqueducts whereby the water is carried from these dams to the works of Valleyfield, and of casting feal and divots, clay, and other materials necessary for that work upon the adjacent ground; which several acts, by the proprietary of the dominant tenement joined with possession, are sufficient to constitute a servitude; L. 6. § 2. D. Si servit vind.

Fol. Dic. v. 2. 111. Forbes, MS. p. 23.