Scottish Court of Session Decisions

This is an action at the instance of Charles and John Cowan, surviving partners of the company carrying on business at Valleyfield as papermakers, under the firm of Alexander Cowan & Son, and

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heritable proprietors of parts of the lands of Bullion and others situated partly within the united parishes of Liff, Logie, Benvie, and Invergowrie, in the county of Forfar, and partly within the parish of Longforgan, in the county of Perth, and of the Mills of Bullion, situated thereon; and is directed against Lord Kinnaird, as heir of entail in possession of the estate of Rossie. The conclusions of the action have reference to certain operations performed upon two different occasions by the defender—viz., in 1853 and 1842—whereby the pursuers say that a large portion of a stream of water which formed part of a burn, which burn was a feeder of another burn which passed through the pursuer's lands, and was used as part of the motive-power of their mills, has been illegally and unwarrantably taken away. The complaint against the operations of 1853 is withdrawn, and the summons is only insisted in to the extent of the conclusion referable to the works of 1842. The conclusion is thus expressed:—“And that the dams, embankments, or other obstructions, and the drain water-course, or water-pipe, or other works or operations executed by the defender, or by those for whom he is responsible, in or about the year 1842 or thereby, at or about the farm or distillery of Dron, belonging to the said defender, whereby a large portion of the water of the said Burn of Dron was diverted from its natural channel, and from the said Benvie Burn, and was thereby conveyed away from the said lands and mills of the pursuers to a farm and works belonging to the said defender, were illegal and unwarrantable acts, and were executed to the prejudice of the pursuers, and in violation of their right and interest in the said water.” Two special defences were put in for Lord Kinnaird, to the effect that although he took away a certain amount of water at one part of the stream he returned as much at another, and that the pursuer had acquiesced in the operations which had been made. The plea of acquiescence is founded on the following statements:—

“Stat. 5. A contract or deed of agreement was entered into between the defender and Lord Gray, and Mr Webster of Balruddery, dated the 17th day of February 1843, and subsequent dates. By this deed the defender consented, agreed, and bound and obliged himself and his heirs, executors, and successors, at their sole expense, to enlarge and deepen the mill-dam at Dron, and to form a new dam in Redmyre wood, where there was then a stagnant and marshy loch, and to redd and deepen the different ditches in his wood, situated between Dron and Redmyre, so as to permit the water to flow freely therefrom into the mill-dam of Dron and on the other hand, and in consideration of the said obligations by the defender, Lord Gray and Mr Webster did thereby consent and agree, and bound and obliged themselves, and their heirs and successors respectively, that the defender and his foresaids should be entitled to divert a portion of the water in said burn to his said farms of Carmichaels and Mill-hill, and that by a cut to be made at a point of said burn immediately below the wheel of Dron mill; and all the parties consented and agreed that the working of said cut, and the diverting of a portion of said water to Carmichaels and Millhill should be managed by placing in the course of the stream in a substantial and permanent manner a sharp wedge-shaped stone, or other lasting material, so as to throw a portion of the whole water running in the burn at that point, whether original or acquired, into the new cut, but always so as such portion should not exceed the acquired water to be obtained by the operations before described, to which acquired water the defender had a right, the remainder running in the old line of said burn; and all parties consented and agreed that the several operations specified in the agreement should be executed at the sight of Mr Webster, and of James M'Laren, residing at Castlehill, and of James Bell, residing at Rochdale Cottage, or an oversman to be named by them, whose actings and award in the premises should be final and binding on all parties; and the defender further thereby bound and obliged himself and his foresaids, not only to be solely at the expense which would be then incurred in carrying the foresaid alterations into effect under the agreement, but also in all time to come to repair the erections, and keep clean the drains, ditches, and dams, so as to secure, as far as practicable, the continuance of the surplus or additional water to the extent to be originally attained by the operations contemplated in the agreement.

Stat. 6. Acting on the faith of this agreement, the defender proceeded to execute, and did execute, the operations under the agreement, at the sight of the parties therein named, and the flow of the water was regulated accordingly, and continues still to be carried in terms of the said agreement, by sending into the Dron Burn a quantity of water more than equal to that diverted from the burn by the defender, and which, but for such diversion being allowed, the defender would not have sent into the Dron Burn, but would have carried direct to his farm of Mill-hill. The arrangement was a fair and equitable adjustment of the rights of parties, and was carried out at considerable cost to the defender. Had it not been in consideration of the division of the water of the Dron Burn, as augmented under the agreement, and on the faith of the continued use and enjoyment of the water so divided, the defender would have drained his lands in a way more beneficial to his estate, and the water would have naturally flowed westward where water has always run; and he would also by such means have supplied his farms of Carmichaels and Millhill in another manner than from the Dron Burn.

Stat. 7. There were two persons who took advantage of the arrangement, although they were not subscribers to the agreement. These were James Miller, bleacher, Bullionfield, and Alexander Clay-hills of Invergowrie. The agreement was entered into in 1843, and the works were immediately executed. James Miller was the predecessor and author of the pursuers. He saw and well knew of the operations now complained of being executed, and acquiesced in and agreed to the same being executed; and the pursuers, his successors, came into his rights after the whole operations were completed, with his knowledge and sanction. The pursuers' right to the subjects of which they claim to be proprietors was acquired after the date of the agreement and completion of the works—viz., in 1846. The pursuers have acquiesced in the operations ever since, and have also taken benefit under the agreement by using the water brought by the defender into the burn in lieu of that portion of the water which he diverted from it under the agreement. The pursuers have never till lately attempted to quarrel the agreement, or the arrangement under the same, but they have now instituted the present proceedings after a period of sixteen years' acquiescence in the arrangement, and taking benefit as aforesaid.”

The case was before the Court on a report by the Lord Ordinary upon issues and counter-issues that were lodged for the parties.

Objections were stated to the pursuers' issues: but the discussion was mainly on the defender's counter-issues, which the Court have disallowed.

The counter-issues proposed were—1. Whether the pursuers or their authors acquiesced in the formation of the said cut, drain, or lade, and the diverting the water thereby? 2. Whether the defender, in or about the said year 1842, or thereby, made to flow, and still makes to flow, into the Dron Burn, so as to be available to the pursuers, as much water as he diverted therefrom by the said cut, drain, or lade?