If a superior heritor can divert a rivulet from the inferior tenement?
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The question was, whether the defenders were intitled, for the purpose of watering their meadows, to divert a rivulet, which passing through their property, run into that of the pursuer, from whom they held their lands in feu.
There was no servitude constituted in favour of the pursuer by grant, nor was the use of employing the water for fertilizing her meadows alleged to have subsisted 40 years.
Argued for the defenders: Though it is not in the power of a superior heritor, by any opus manufactum, to force the water out of its natural course, upon the lands of his neighbour, and to his prejudice, yet he is entitled to apply the water on his own grounds to every necessary and proper use; he may even prevent it from descending upon his neighbour's grounds entirely, if this be not done in æmulationem.
The distinction is pointed out in various texts, as L. 2. § 9. L. 1. 21. D. De acq. et acq. pluv. arc. L. 10. C. De serv. et acq.: And the reason of it is given in L 21. § 23. D. eod. Nature has imposed a servitude upon inferior grounds, of receiving the water of the superior, which is understood to be made up by the soil and manure which the water brings along with it; and, at any rate, must be submitted to by the proprietor, from the necessity of the thing, without any conventional servitude. But there is no such natural servitude upon the superior heritor, and law could not impose it without injustice, since he derives no advantage from the inferior. Accordingly, Lord Bankton lays it down, II 7. 29. that, “the owner of the higher ground may wholly intercept the water within his own grounds, and hinder it from running into the lower, unless the heritor has a servitude upon him.”
Answered; The pursuer has not perhaps instructed a practice for 40 years of artificially diverting the water for the use of her meadows, but, from time immemorial, the rivulet has overflowed them naturally, and thereby contributed to their fertility.
That a navigable river cannot be diverted is laid down L. 10. § ult. D. De acq. et aqu. pluv. The same doctrine is established with respect to smaller runs of water, L. 4. 7. C. De servit. et aqu. And this is not contradicted by the laws referred to by the defenders, which will be found to relate not to perennial runs of water, or rivulets, but to collections of rain-water, falling upon the superior grounds, or to springs rising in them, which, according to the doctrine of those laws, may be applied to the necessary uses of the proprietor.
Lord Stair gives his opinion, that, “without a servitude, water may not be altered or diverted from its course,” II. 7. 12. And so it was decided, 25th June 1624, Bannatyne contra Cranston, No 3. p. 12769.; and more lately in the question between the Town of Aberdeen and Menzies, 22d November 1748, No 16. p. 12787.
“The Lords found, that the defenders have no right to divert the water of the rivulet within their grounds, so as to prevent its returning into its natural course, upon entering into the lands of the pursuer.”
Act. Rae.Alt. Macqueen.
Fol. Dic. v. 4. p. 175. Fac. Col. No 68. p. 307.
