The right of a conterminous heritor to object to the extension of a mill-lead, taken from a march stream, is lost if not exerted tempestive.
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The river Leven, in Fifeshire, separates the lands of Goatmilk, belonging to Colonel Aytoun, on the south, from the lands of Prinlaws, on the north, which belonged to John Berry.
The lands of Goatmilk stretch along the river about 200 yards. From the abruptness of the bank, as well as from there being somewhat less than the three feet of fall between the extremities of the property, they are not well fitted for machinery, and none has hitherto been erected on them.
The lands of Prinlaws extended farther up the river than those of Goatmilk, and near their utmost extremity there has been, for time immemorial, a dam-dike across the river, and mill-lead taken from it, for supplying a barley-mill on the lands of Prinlaws.
By this lead, about a third of the water is taken off in dry seasons; but a much less proportion when the river is full. The water from this lead was returned to the river, opposite to about the middle of the lands of Goatmilk.
In 1778 or 1779, Mr Berry extended the mill-lead so as to carry the water quite past the lands of Goatmilk, in order to supply a lint and barley mill, erected at the lower extremity of them.
In the course of this operation, Mr Berry had occasion to carry the lead across the public road, over which he built a small bridge.
It was not established whether Colonel Aytoun was then in Scotland; but it was certain, that he was very little in it from before this period to the end of 1783, after which he resided in the neighbourhood.
His tenants and neighbours carried their flax to the mill; and barley, for the use of his own family, was ground at it. In 1788, 1789, and 1790, Berry advertised the lands for sale; the advantages of the situation for machinery, and there being a lint-mill already on the premises, were particularly noticed.
In 1791, Prinlaws was purchased by John Melville, who, in the view of erecting extensive machinery upon the site of the old barley-mill, (where he afterwards expended several thousand pounds,) prevailed on the tenant to give up his lease; and, to induce him to do so, purchased the current lease, and gave him possession of the lint and barley mill erected on the extended mill-lead.
Hitherto the extension of the mill-lead had not been complained of by Colonel Aytoun.
But in 1795, in the same action in which he complained of the operations of Colonel Douglas and Mr Birrell, (See No. 5. supra,) he likewise called Mr Melville as a defender, and contended, that the extended part of the lead should be filled up.
The preliminary procedure was the same as in the branch of the action already reported.
The principles of the decision, 5th March 1793, Hamilton against Edington, No. 38. p. 12824, were admitted on both sides, and the defence of Mr Melville was attended with more difficulty than that of Colonel Douglas and Mr Birrell, from having no positive acts of homologation on the part of the pursuer to found on. He rested entirely upon the delay in instituting the challenge.
On the one hand, it was contended, that it was irrelevant to inquire what use the pursuer could make of the water on his side; that he had at least, originally, the admitted power of preventing the operations on the other side, for his consent to which, as in the case of any other property vested in him, he was entitled to an adequate consideration; and that a person, particularly in the circumstances of this case, cannot be gratuitously deprived of his property, merely from his delay in challenging an illegal act, while it is not sanctioned by prescription; see Preface to Lord Kames's Dictionary of Decisions, p. 10.; see Dictionary, voce Homologation; 8th January 1663, Nicoll, No. 12. p. 5627.; Bankt. vol. 1. p. 341.; Ersk. B. 3. T. 3. § 49.; May 1796, Buchanan against Johnston, (not reported); 15th May 1799, Wilson against Douglas, (not reported).
On the other hand, it was held, that the pursuer's continued acquiescence in the operations to which he had so little interest to object, the defender's purchase of the property, and the large sum expended on the faith of the validity of the right, barred the pursuer from insisting in the present action, and amounted to consent adhibited rebus ipsis et factis; 28th June 1666, Laird of Philorth against Lord Fraser, No. 4. p. 5620; Haldane Corbet against Mackenzie, (not reported.)
The Court, upon these opposite grounds, were much divided in opinion. “The Lords, (29th January 1800,) in respect the pursuer was in the knowledge of the operations now complained of, made by John Melville, while the same were carrying on, and did not object thereto, sustained Mr Melville's defences.”
But, on advising a petition for the pursuer, with answers for Mr Melville, “the Lords (1st July 1800) found, That no sufficient acts of homologation or other circumstances are condescended on by him, for establishing his right to protract the tail-race or mill-lead of his former barley mill, now converted into a machinery mill, to the effect of working his lint-mill, or any other mill or works in that quarter: Therefore found, that he is bound to return the said mill-lead or tail-race at the place where it formerly did return into the river Leven, before the erection of the said lint-mill.”
Mr Melville reclaimed.
And the Lords returned to the interlocutor first pronounced.
Lord Ordinary, Justice-Clerk, Rae.Act. Ar. Campbell, Wm. Erskine.Alt. Solicitor-General Blair, Craigie, Monypenny.Clerk, Pringle.
Fac. Coll. No. 229. p. 519.
