Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROPERTY.
Subject_3 A Superior Heritor must not, by extending a rivulet over his ground, divert it from returning to its course.

Mrs Mary Kelso
v.
William and George Boyds

Date: 30 June 1768

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[Faculty Collection, IV. p. 307; Dict. 12,807.]

Auchinleck. A perennial burn cannot be diverted by the superior heritor so as to be prevented from descending to the inferior heritor. Here, the superior heritor sets aside the burn for ever.

Monboddo. The Roman law furnishes us with principles for determining this case. The doctrine of aqua pluvia is not to the purpose; for the question here is concerning a flumen, not a torrent, but perennial by the Roman law. Flumen publicum is not a navigable river, but any streams usus publici, where of a navigable river is composed. To such the Prætor's edict applies, uti priore œstate, &c. The right of the inferior tenement is not a servitude, but it is a right owing to the nature of the subject. The superior heritor may use the water even for fructifying his ground, but he must use it so that the water return to its channel. We cannot force parties to use the water alternis vicibus, though that may be convenient for both parties.

Kennet. I think the superior heritor may divert the water for a time. Alternis vicibus is a good rule, and pointed at by the Ordinary. Kelso cannot appropriate it for a season more than Boyd can.

Auchinleck. There is no declarator on Boyd's part, as to his tenement inferior to Kelso's. Besides, Kelso does not seek to divert the burn at all, being satisfied with its overflowings.

Alemore. This is not a fountain rising in Boyd's ground, but a rivulet running through different grounds. Every one may use it. None can divert it.

President. I am of Lord Alemore's opinion. I do not, however, say that, if a spring arose in a man's ground, he might not divert it; though, if he did not divert it, the consequence would be, that it might join below with other springs.

On the 30th June 1768, the Lords found, in substance, that the superior heritor could not divert the burn so as to prevent its returning into the channel for the behoof of the inferior heritor; adhering to the interlocutor of Lord Coalston.

Act. D. Rae. Alt. R. M'Queen.