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Ogilvie possessed a farm watered by the burn of Kirriemuir. About 15 yards from the bed of this rivulet, he dug pits for steeping flax, in the manufacture of which he traded to a considerable extent. Into these pits the water entered, and issued from them into the rivulet in a continued stream.
Mr Kinloch, a neighbourtng heritor, commenced a process against Ogilvie, before the Sheriff of the county, on account of these pits, upon the statutes 1606, c. 13. and 1685, c 20.; by which it is enacted, “That in time coming, no person shall lay in lochs or running burns, any green lint, under the pain, of 40s. Scots, and a forfeiture of the lint.”
In an advocation of a judgment of the Sheriff, decerning in terms of the libel, the defender
Pleaded; In this case an implicit obedience has been paid to the injunction of the statutes, the pits challenged not being in the bed of the rivulet, but at a considerable distance. They are, farther, precisely conformable to a later statute, 13th George I. c. 16. requiring, “That no lint or hemp shall be steeped, or watered, in any standing pool, or in any hole or pit with standing water, unless such hole or pit is dug near to the side of a running river or rivulet, from whence the said pool, hole, or pit, may be frequently supplied with fresh water, under forfeiture of the lint or hemp so steeped.”
Answered; As the water of this rivulet runs into the pits, and from thence back to the rivulet in a continued stream, the pits so constructed become a part of the rivulet, as much as if they had been dug in its original channel; and the statute of George I. which directs the operation of steeping lint and hemp to be porformed where the water may be frequently renewed, was nowise intended to repeal the former law, but to guard against a practice then frequent, of watering them in moss and bog holes, and standing pools, by which they were greatly damaged.
The Lords thought that persons steeping lint were entitled to take water from a running stream for the use of their lint-holes, and to renew the water therein from time to time, when necessary; but were not entitled to divert the course of any part of a rivulet into a lint-hole, in the manner here followed.
They, therefore, “remitted the cause simpliciter.”
Reporter, Lord Alva.Act. Buchan-Hepburn, John Erskine.Alt. Nairn.Clerk, Colquhoun.
Fol. Dic. v. 4. p. 202. Fac. Col. No 7. p. 15.
