Scottish Court of Session Decisions

Sequel of the case reported ante XV. p. 295, which see. It was fixed by decreet-arbitral, in 1807, that the property of the Loch of Stevenston belonged to Robert Cuninghame of Auchenharyie, who possessed lands at the lower end of it, but that this right of property was subject to certain servitudes of fishing, pasturage, &c. in favour of John Dunlop of Dunlop, now Sir John Dunlop, Bart., and Others, who were the proprietors of the other grounds surrounding the loch. Cuninghame alleged that the servitude of pasturage was abused by the other parties, or their tenants, and that some of them had unwarrantably executed an operation for deepening a water-course from the Loch of Stevenston to the Mill of Stevenston, belonging to one of them, by which operation the size of the loch had been reduced from 40 acres to 20 acres. Cuninghame also alleged that this operation was not necessary for procuring a due supply of water to the mill, according to use and wont, but had merely the effect of illegally extending the servitude of pasturage of the defenders. He presented a petition to the Sheriff of Ayr, and brought an advocation of the Sheriff's judgment. He also raised a declarator, the conclusions of which were, “that the pursuer has the sole and absolute right of property of the said loch, and of the whole ground, soil, alveus, and bounds thereof, in the full extent of the same, in length and breadth, so far as the water flows, or has flowed on all the sides thereof, and to the grazings within the limits thereof, and to the full and absolute use and enjoyment thereof as owner, under the burden only of the servitudes mentioned in the decreet-arbitral, and hereinafter specified; and it ought and should be found and declared, what are the proper boundaries of the said loch; and stakes and posts ought and should be placed therein, under authority to be granted to that effect by our said Lords, in order to ascertain, in all future time, the boundaries thereof; and it ought and should be found and declared, by decree foresaid, that the defenders have only right to the servitudes of fishing and shooting in the said loch, and of pasturing at low water in the same, the cattle forming the stocks on the adjoining properties respectively belonging to them as aforesaid, and of cutting reeds and rushes within the same, opposite to the said properties respectively, conform to the said decreet-arbitral, and that the defenders have no right whatever either to cut any grass within the bounds of the said loch, or to make any other use whatever of the said grass, than that of pasturing the said cattle, or to make any cuts or drains in the boundaries of the said loch, as the same shall be ascertained and fixed as aforesaid, or otherwise to interfere with the pursuer's right of property in the same.”

The defenders contended that, under their servitude of pasturage, they possessed a certain right of cutting down grass and herbage on the servient tenement, and carrying it off; and also that they were not limited, in using the pasturage, to the stocks upon their respective adjoining properties. They farther pleaded that the margin of the loch was variable according to the drought of the season, and other causes; that no unwarrantable operation had been made for draining it; but that it had no fixed boundary, and that in proportion as it receded, they were entitled to follow it, with their servitude of pasturage.

The declarator and advocation were conjoined, and a judgment was pronounced, as already reported, defining certain limits of the servitude of pasturage, and granting a corresponding interdict. In regard to the alleged operation for draining the loch, Cuninghame's averments were contained in articles 6 and 7 of his condescendence, and these were denied by the defenders. It was admitted by Cuninghame that he had, on one occasion, caused a species of mound to be erected at the lower end of the loch, which was his property, for the alleged purpose of restoring the loch to its original sze; and it was admitted by the defenders, that the tenants of some of the defenders had cut through this, for the alleged purpose of restoring the loch to its actual size, as it was before the mound was made. But parties were at issue, whether or not any previous unwarrantable operation had been made for draining the loch. The judgment formerly reported, allowed to the pursuer a proof as to the averments in articles 6 and 7 of his condescendence.

Under the proof it appeared, that originally there had been march stones or stobs round the margin of the loch, for fixing its boundary, as in the summer season, when it was lowest; that the loch had originally, and since the date of the decreet-arbitral, covered about forty acres, and now covered only about half that extent; that this diminution was especially occasioned by an operation performed on the water-course, from the loch to the mill, about the year 1818, when that course had been not only cleared by the sucken, but afterwards deepened by the miller and some assistants, to the extent of eighteen inches or two feet; and that this was done without putting on any additional sluice, so that there was no improved supply of water gained for the mill.

On considering the import of this proof, the Lord Ordinary (Cockburn) pronounced this interlocutor:—“Finds, under the first conclusion of the summons, that the pursuer is the sole proprietor of the Loch of Stevenston, and of the soil on which it rests, but that the extent of this property must vary with any permanent rising or falling of the water from natural causes, or from the lawful abstraction of the quantity necessary for the fair supply of the mill of Stevenston; and that the pursuer is not entitled, as proprietor of the loch, to the grazirigs which may emerge opposite to the lands of any of the defenders, by the water receding either permanently or occasionally; but that, as he is entitled to exercise the rights of proprietor of the loch over the defenders' lands, when the waters shall extend over them, so the defenders are entitled to follow the water when it shrinks, and to exercise their servitude of pasturing down to its edge, unobstructed by the pursuer, who cannot, as owner of the loch, interfere with them in this respect. Under the second conclusion, in respect that the pursuer explains that he does not desire merely to have the boundaries of the loch, as it exists at present, ascertained, but that the object of the conclusion is to have its ancient limits fixed, with a view to their being held as its boundaries in all time coming; finds that the extent of the surface over which his right reaches being naturally variable, he is not entitled to have the ancient boundaries ascertained for this purpose and to this effect, and therefore, sustains the defences against this conclusion, and assoilzies the defenders therefrom: Finds, under the third conclusion, that the defenders have servitudes of fishing and shooting in the loch, and of pasturing on the ground left dry when the water is low, opposite their respective lands; but that they are not liable, in the exercise of this servitude, to be restricted, at the instance of the pursuer, to the cattle which may happen to form the stock of their respective lands, and that they are not entitled to make cuts or drains into the loch, in order to diminish its size, but that the owners of Stevenston Mill, and their tenants therein, are entitled to maintain such a water-course as shall be necessary for the legal supply of the mill, according to use and wont, and that the pursuer has failed to prove that the defenders, Mr Dunlop, or his tenant, or the defenders, Bowman, Hamilton or Warner, have made cuts or done any thing with a view to diminish the water, and decerns; reserving all questions of expenses, in so far as open, till the parties shall be heard thereon.” ^*

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* “Note.—The case has been rendered much more complicated than it need have been, by the peculiarities both in the claims and in the language of the pursuer's conclusions.

“The leading statements are, that since the date of the decreet-arbitral, the loch has diminished from 40 to 20 acres, and that this diminution has been produced, not by natural causes, but by the improper deepening of the cut (no matter by whom) which supplies the mill, and the remedy which the pursuer seeks for this, consists in having the ancient limits of the loch ascertained, and in then having these limits judicially fixed as the boundaries in all time coming.

“The Lord Ordinary is neither satisfied with his proof of the grievance nor with his proposed remedy.

“The proof certainly establishes, that the cut was occasionally deepened, particularly about the year 1818, but it is not established, firstly, that it was as large at the date of these operations as it was anciently, or as it was at the date of the decreet-arbitral; nor, secondly, that these deepenings were not necessary for the supply of the mill; nor, thirdly, that all the diminution of the loch is to be ascribed solely to these artificial operations. Lochs fill up naturally, and it is not easy to believe that the whole evil wa3 owing to operations, some at least of which seem to have been performed under the pursuer's own eye, if not by his orders.

“But although he had enabled the Court to distinguish the extent of the natural from that of the artificial lessening of the water, and were to get the loch made as large as ever it was, what right has he to have its boundaries, which are naturally variable, fixed at this size for ever? This is the great object of the action, but instead of being warranted, it is directly contradicted by what was done by the Court in the case of Dick; ¹ and it would, in fact, exclude the defenders altogether from access to the water. His claim to participate with the conterminous proprietors in the grazing of the space left dry between the high and the low water, might possibly be well-founded, if this were simply a competition between a dominant and a servient tenement, and depended solely on the general principles which regulate such a case. But it is plain that the arbiter, in applying the word ‘servitude’ to the defenders’ rightsof grazing over this space, merely meant to indicate that they had no permanent property in it, but could only use it occasionally, as the loch receded, and did not intend to constitute a joint right of grazing between them, as dominant, and the pursuer as servient. Accordingly, the parties have shown that this was their understanding of what was meant by the decreet-arbitral by their conduct under it. It is not even averred by the pursuer, that he has ever exercised the right which he now claims; and, on the other hand, the defenders have been allowed to inclose their lands down to the water's edge, so that the pursuer's access has become impossible, unless he either destroy these fences or land his cattle from the water; and even then there could be no grassing by him without either fences on the upper line of the vacant space, or by herds or other devices, which makes the thing impossible.

“The right to make cuts into the loch has never been claimed by the defenders except by the owners or tenant of the mill for their fair supply of water, and it was never attempted to be exercised, except to destroy the effect of a novum opus by the pursuer.”

¹ November 16, 1769 (12813).

Cuninghame reclaimed, and, inter alia, stated that that part of the Lord Ordinary's note, which represented the case of Dick as an authority against fixing any precise boundaries to the loch, must have referred to the interlocutor quoted on p. 12816 of the report of the case; but that that interlocutor was altered, by another quoted on p. 12817, which was finally adhered to, and which authorized permanent boundaries to be marked off.

Lord Gillies.—I think an alteration should be made in the interlocutor of the Lord Ordinary. The operation on the water-course was not made for the purpose of keeping up a due supply of water to the mill, for it is in proof that no advantage was thereby gained to the mill, in consequence of no additional sluice having been made. The only effect of the operation, therefore, was to drain the loch, and increase the extent of dry ground, without the consent of the proprietor of the loch. Looking to the case of Dick as a precedent, where the boundaries of a loth were marked off at the sight of the Sheriff, and declared by the Court to be the true and permanent boundaries, I am of opinion that we ought to ordain the boundaries of this loch to be marked off, as they existed at the date of the decreet-arbitral, or as nearly as that can be ascertained. The other conclusions of the declarator appear to be well-founded. In regard to the servitude of pasturage, I am clearly of opinion that it must be limited to the stock on the respective dominant tenements. It is a real servitude. The owner of the dominant tenement may purchase 5000 head of cattle from the Highlands, if he pleases, but he is not entitled to put all these down on the servient tenement, nor any thing more than the stock of the dominant tenement itself.

Loud Mackenzie.—I am of the same opinion. As to the difficulty of access from the pursuer's grounds, to the portions which may remain dry between the present margin of the loch, and the property of the several defenders, I do not see how it can arise. The loch and its solum are the property of the pursuer. After the proper boundaries of the loch are fixed, the whole solum within then being the property of the pursuer, and contiguous to his other ground, he has, of course, an access from one part of his ground to another which is contiguous to it.

Lord President and Lord Corehouse concurred.