Scottish Court of Session Decisions

Subject_1 PROPERTY.

Farquharson
v.
Farquharson

1741, June 25,27.
Case No. No. 5.

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The questions were two; First, As to the dike or bulwark that Invercauld is building on his own ground not altogether on the ripa close to the ripa of the water of Cluny, whereby when the water overflows its banks the greater weight of water must of course go over to Achindryne's grounds on the other side, and which bulwark he is building to save about 60 acres of ground, having already destroyed four or five,—the question was, Whether he might lawfully build that fence, or if he should at least find caution for Achindryne's damage, as in the case of the Duke of Gordon and Lord Braco? and the Lords found he can lawfully build upon his own ground upon the side of the water of Cluny to save his own grounds. The next question was, Whether Invercauld could dig a channel for the river Dee in a place where the river formerly run but now became Achindryne's property alluvione though of little value being all chingle, and that in order to save his own ground, at least on finding caution for damages? and the Lords unanimously found he could not touch Achindryne's property to save his own ground. Arniston and Justice-Clerk differed from the first vote.