Servitude of a Damhead. - Moss. - Water-run in Coal Works. - Astriction to a Smithy.
Sir Archibald Hope v. Andrew Wauchope
Date: 14 January 1779 Case No. No. 41.
An opus manufactum, in an inferior coal-pit, by the proprietor, to prevent the water of a higher coal-pit from flowing down upon it, how far legal?
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The lessee of Niddry coal, in working it, left a wall, of a certain breadth, stipulated by the lease, betwixt it and the coal of Woolmet, which is a continuation of the same seam, but lies higher than that of Niddry. The coal of this wall being of a porous nature, the water which came down from the coal of Woolmet pierced through it, and was carried off by the level of the Niddry coal to the sea. Mr. Wauchope, proprietor of the Niddry coal, in order to prevent the water from piercing the wall, caused make downsetts, or pits in the wall, which he was proceeding to fill up with clay, when Sir Archibald Hope, lessee of Woolmet coal, obtained a suspension, which was conjoined with a process, at the instance of Mr.Wauchope, against the suspender. In this action, Mr. Wauchope supported his claim to fill up these pits on the following grounds.
By the operations of the proprietor in the Woolmet coal, the natural course of the water was altered, and it was brought down in larger streams upon the Niddery coal than before these operations took place. A superior heritor on the surface would not be allowed to collect separate rills, flowing down to an inferior tenement, by a cross ditch, into one channel, and thus send the whole, in one body, upon his neighbour's ground. The civil law not only permits the inferior heritor to defend himself in such a case, but gives him an action of damages against the superior heritor; L. 1. § 1. De aqua et aq. pl. arc. Bank. v. 1. p. 682. § 30.
It will not entitle a superior heritor to alter or increase a natural servitude, that the inferior heritor cannot qualify damage thereby, or that he may easily prevent the damage. If the servitude is altered or increased, the obligation on the inferior heritor to submit to it is removed, and he is entitled to make such opus manufactum as the present, on his own grounds, to counteract the effect of the operations made on the superior tenement.
Answered for the defender: In working the coal of Woolmet, the defender carried on no operations but what are usual in working coal. The Niddry coal being the inferior tenement, was subject to a natural servitude of receiving the water that came down from the coal of Woolmet; and these operations did not bring down the water of any other coal upon it. They had no other effect than to reduce the water into fewer channels than would otherwise have been the case. It is nothing more than what happens frequently on the surface. A superior heritor, in cultivating his lands, makes small ditches or furrows, by which means the water becomes more collected, and discharges itself somewhat differently from what it did before. This does not come up to what the law considers to be an opus manufactum, for changing the natural course of the water, or increasing its quantity. The inferior heritor would not be allowed, on this pretence, to erect an opus manufactum on his property, to make the water regorge on the superior tenement.
Even when the opus manufactum was a real benefit to the inferior heritor, the Court have ordained it to be removed Earl of Eglinton contra Fairly, No. 15. p. 12780. voce Property.
In the present case, Mr. Wauchope can suffer no damage from the water passing through the Niddry coal, as the level is more than sufficient to carry off all the water that comes into it, either from Niddry or Woolmet. This operation, therefore must be considered as merely in æmulationem vicini, and on purpose to overflow the coal of Woolmet. On that account, it ought not to be permitted.
The Court found, “That Mr. Wauchope of Niddry cannot make the downsets complained of by Sir Archibald Hope, upon any of the seams of coal within the lands of Niddry, so as to prevent the natural passage of the water through the seams, in its present course, and thereby occasion a reflux or stagnation of the water upon the property and coal of the superior lands of Edmonston and. Woolmet.
But, upon advising a reclaiming petition and answers, the Court found,
“That the petitioner, Andrew Wauchope of Niddry, is entitled to make downsets in the seams of coal upon his own ground, and to fill up the same with clay, stone, or other materials, so as to effectually prevent the water from coming down upon his coal of Edmonston and Woolmet.”
Lord Ordinary, Kennet.Act. D. Rae, Ilay Campbell, M'Laurin.Alt. Blair.Clerk, Menzies,
Fol. Dic. v. 4. p. 282. Fac. Coll. No. 54. p. 96.
*** This case was appealed.—The House of Lords, 21st February, 1780, “Ordered and Adjudged, That the Cases be remitted back to the Court of Session in Scotland, with liberty to each party to reclaim and amend the process, as he shall be advised; and with particular directions to the said Court, to inquire respecting the communications of the level in question.”
