When a private river separates the property of two heritors, the one retains his right of preventing the other from diverting part of the stream, though the predecessors of the former had taken off a cut from it, on his side, for a wauk-mill, and he had himself further used the waters, so diverted, for a bleachfield.
A right to eel-cruives may be acquired by possession, with an infeftment in adjacent lands with part and pertinent.
Click here to view a pdf copy of this documet : PDF Copy
The lands of Ryelaw, belonging to James Braid, are separated from the lands of Strathendry, the property of Colonel Douglas, by the river Leven in Fifeshire. The proprietors of Ryelaw had been in possession of a dam-dike across the river, erected for the purpose of catching eels, by a cruive on their side of it.
A short way below this, the proprietors of Strathendry have right to a dam-dike, stretching across the river, from which a lead has been taken off on their side for time immemorial, for the purpose of supplying a waulk-mill: The water is not returned opposite to Ryelaw.
About 1780, Colonel Douglas feued ground for a bleachfield, which is supplied with water from this lead; but no alteration was then made on the dam-like.
In 1789, Braid proposed to enlarge the Ryelaw dam; and, for the purpose of erecting a lint-mill, to make a cut on his lands, by which a considerable portion of the water in the river would be carried quite past the waulk-mill dam.
Having been interrupted by Colonel Douglas in his operations, he applied to the Sheriff for an interdict, and likewise to have it declared, that he had right to half of the water.
The points at issue came to be, How far Braid had right, 1mo, To the superior dam-dike, and to catch eels there? 2do, To make the alterations proposed by him.
Colonel Douglas's titles give right to eel-cruives; and he contended, that the possession of them by the proprietors of Ryelaw was a matter of tolerance from him.
Braid is infeft in his lands with part and pertinent, and maintained his right to the dam-dike, and uses of it by prescription.
The Sheriff allowed a proof as to the first point, and refused the interdict as to the other.
Braid complained by advocation. The Lord Ordinary allowed a proof; and afterwards gave both points in his favour.
A petition for the defender was followed with answers; and counsel were heard in presence.
On the first point, the defender stated, That eel-cruives are illegal, without an express grant from the Crown; 1424, c. 11.; 1477, c. 73.; 1489, c. 15.; 1581, c. 111.; 1685, c. 20.
The pursuer
Answered: That these statutes relate only to salmon-fishing.
The question depended chiefly on the proof.
On the other point, the pursuer did not dispute the general principle settled in the case, 5th March 1793, Hamilton against Edington, No. 38. p. 12824. But he contended, that the defender, by the use of the lead, enjoyed by him for the waulk-mill and bleachfield, was barred from objecing to the intended operations.
The defender
Answered: That as no alterations had been made on the wauk mill-dam, or lead from it, for time immemorial, the pursuer had no title to investigate the uses made of the water, after it was diverted, and that the defender retained his common law right in the river above his dam-dike.
The Lords “found, that the pursuer has right to the eel-fishing in the river Leven, and to exercise the same by an eel-dike or cruive across the river, at the place, and in the manner, it has usually been exercised: Found that the common interest which the parties have in the river opposite to their respective lands, does not enable the pursuer to divert or carry off any part of the water, by a new lead through the property, to supply a lint-mill, or for any other purpose, without the consent of the opposite proprietor; and therefore assoilzied the defender, in so far as it was craved to discharge him from interrupting the carrying on of any works, that tend to divert the stream from its channel, or for carrying the half of said stream through the pursuer's lands.”
A petition for the pursuer, craving that he should at least be allowed to take off a lead, provided he returned the water above the wauk-mill dam, was, on a report from a surveyor, refused, (6th March) without prejudice to the pursuer erecting machinery on the present situation of the eelcruive.
Lord Ordinary, Monboddo.For Braid, J. & W. Clerk.Alt. Solicitor-General Blair.Clerk, Menzies.
Fac. Coll. No. 169. p. 355.
