Scottish Court of Session Decisions

The defender Scott was proprietor of certain lands on the Water of Gogo, in the county of Ayr, which he had acquired from the trustees of Sir Thomas Brisbane of Brisbane, in 1815. They were situated on both banks of the stream, but extended further down on the north, than on the south bank on which was situated, opposite Scott's lands, a haugh, held from the Brisbane trustees under long leases by two persons called Hyndman and Jameson. In 1830, the pursuers, Johnstone, &c. purchased from the Brisbane trustees a mill called Gogo mill, situated further down the stream than Scott's property, and supplied with water drawn off from the Gogo by a lead having its inlair on the ground above mentioned as held in lease by Hyndman, and passing through his ground and that of Jameson. In 1831, a great flood occurred in the river, which swept away about half an acre of Hyndman and Jameson's ground, destroying the inlair and mill-lead. The pursuers thereupon raised this action, the summons in which, after narrating that the injury in question had been occasioned by certain embankments and other operations by the defender Scott on the north bank, and also on the channel of the river, proceeded thus:—“That the miln being thus deprived of the usual supply of water obtained by said lead or aqueduct, has been thrown idle, and the tacksman withholds and refuses to pay his rent, and also claims damages from the pursuers: And although the pursuers have often desired and required the said John Scott, defender, to remove the obstructions made by him on the bed of the said water of Gogo, and to rebuild and restore the lead or aqueduct to its former state, and to desist from further encroachments, and also to make payment to the pursuers of the loss and damage sustained by them in consequence of his unwarrantable operations, yet he refuses so to do: Therefore the said John Scott, defender, ought and should be decerned and ordained, by decreet of the Lords of our Council and Session, immediately to remove the jettees, breastworks, and other obstructions and encroachments erected or made by him on the bed of the water of Gogo, and to restore the said water to its former course; and also to rebuild and restore the embankment which formed the lead or aqueduct on the south side of the river, and to secure and strengthen the same, and renew the lead, in such a way as that it shall be sufficient to retain and conduct the water from the river for the supply of the mill, in the way which it formerly did; and in every respect to restore the said lead, or aqueduct and water-course to the state in which they were before the said defender commenced his operations and encroachments before complained of; and in the event of his failing or refusing so to do, our said Lords ought to appoint proper persons to see this done at his expense: And farther, the said defender ought to be ordained, by decreet foresaid, to make payment to the pursuers of the sum of £1000, or such sum as our said Lords shall modify, or shall be assessed by the verdict of a jury, as the amount of damages already sustained by the pursuers from the unwarrantable operations of the said defender before detailed, with interest from the date of executing this summons; and also to make payment to the pursuers of the sum of £500, or such sum as shall be modified or assessed as aforesaid, as the damages to be sustained by them yearly and each year until the said defender shall restore the water-course, lead, and aqueduct, to the state in which they were when he commenced his operation before complained of, with interest from the term of Martinmas yearly.”

After some discussion, mentioned ante, XII. 492 and 804, the following issue was sent to trial:—

“Whether the pursuers are proprietors of a mill or certain mills on the water of Gogo, in the county of Ayr; and whether, during the years 1816 and 1832, and intervening years, or any of them, the defender wrongfully performed certain operations, by erecting jettees, bulwarks, embankments, or other works, in the bed of the said river, and for the completion thereof, by bringing stones and materials from the bed and south bank of the said river, and elsewhere, to the loss, injury, and damage of the pursuers?

“Damages laid at £1000, as the amount sustained previous to the commencement of the action, and £500 yearly thereafter.”

In proof of their proprietorship of the mill, the pursuers put in a disposition by the Brisbane trustees, of date 1830, to the mill of Gogo, “together with the dam or inlair on the water of Gogo, and the water and water leads upwards,” &c., “in so far as the said mill has a right thereto by prescriptive use, or otherwise, and the whole other parts, privileges, and pertinents belonging to the said mill.” They also proved that the mill had been supplied by the lead in question for a period beyond memory. As to the other parts of the case, it was given in evidence, that the defender, Scott, had acquired his property in 1815, and had for some years thereafter carried on operations on the bank and in the stream, which consisted chiefly in making a considerable embankment on the north side of the river, to protect his lands against the stream, for which purpose he had taken from the bed of the stream and the south bank, a considerable quantity of stones, which were of a large size, and had also quarried materials from the channel itself, and that these operations had been completed before the pursuers purchased Gogo Mill in 1830. It was further proven, that the carrying away of the mill-lead bad been effected by an unusually violent flood; but it was given in evidence by engineers, that the effect of the defender's embankment and other operations was to throw the water with much more violence than formerly against the south bank, and that they were the cause of the injury suffered.

No proof was led as to any loss sustained by reason of the alleged stoppage of the mill; but estimates were deponed to of the expense which would be required to restore the lead to an equally efficient condition as before.

For the defender it was pleaded, in addition to the argument on the proof as to the embankment, &c., being the cause of the injury, 1st, That the pursuers had not instructed any title to the mill-lead, there being no reservation thereof shown to exist in the leases to Hyndman and Jameson, through whose ground it passed. 2. That they, not being conterminous proprietors with the defender, and having acquired the mill after the operations complained of had been completed, could not recover damages; and, besides, that the operations of the defender were not wrongful. And, 3. That the damages to be given by the jury, if they found for the pursuers, could not include the expense of restoring the lead, the conclusion as to that matter in the summons being simply ad factum praestandum, and consequently to be disposed of by the Court of Session after the verdict.

The Lord Justice-Clerk charged the jury, That the title was sufficiently proved to satisfy the issue, and to entitle the pursuers to recover, if damage had been done by the defender's operations:—that if injury had been so caused by the operations, they must be held to have been wrongful, and that under the summons the jury might competently, in assessing the damages, take into view the expense of restoring the lead to its former condition.

The defender excepted to this direction, in so far as his Lordship instructed the jury that a sufficient title had been proved, and that they might competently award as damages the expense of restoring the lead.