Scottish Court of Session Decisions

Subject_1 SERVITUDE.

Kincaid
v.
Sir James Stirling

1752, June 11.
Case No. No. 6.

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In this case, which is marked 12th January 1750, supra, Sir James Stirling complained that Kincaid had turned the curve of his dam-dike upward, which before was downward, and thereby took in more water, and Kincaid complained that Sir James had diverted the course of the burn on his side of the river, called Newmill-burn that before did fall into the river above his dam-dike, but he had now by a sluice carried it to his lintmill below Kincaid's dam:—On which we remitted to Mr Gray, a mathematician, to inspect and report; and he reported, that the altering the curve in the dike made no alteration in the quantity of water: 2dly, That Kincaid had sufficiency of water Without the help of the burn; that it was not quite the 100th part of the water in the river; and that by the old vestige of the natural course of the burn, it appeared to him to have been below Kincaid's dam-dike; that it entered the river till Sir James's predecessors diverted the course of it to serve their own corn-mill, from whence it fell into the river above the dam-dike till Sir James, built his lint-mill, and altered the course of the river. We assoilzied from the complaint as to the curve;—but as to the burn, several thought that it depended on what was reported by Gray as to its natural course, and if that was proved, thought that Sir James might again alter it. But as that point was not mentioned in the remit to Mr Gray, his report was no evidence, and therefore were for a new proof; and of this opinion were Drummore and Kilkerran; and at first the President as to the point of law, but thought his report was evidence. I thought the decision did not depend on what was the natural course of the burn in this case, because if it was necessary for Kincaid's mills, he had acquired a servitude on Sir James as well for the burn as for the river, and Sir James could not divert the burn, no more than a part of the river; but if it was not necessary for Kincaid's mills, which was the fact reported, the servitude could not emulously be extended beyond the necessary use of the mills. Kilkerran agreed with me, and the Court came into my opinion, and found that Sir James might dispose of the burn as he pleased. Kincaid then insisted in his conclusion of declarator, that he might from time to time repair his dam-dike of the height it now is, which we found accordingly. The President thought, that if it was necessary he might raise it a foot higher.