Scottish Court of Session Decisions

This action at the instance of Sir Coutts Lindsay of Balcarres, Baronet, against Robert Thomson, Esq., concluded that the embankment erected by the defender in the course of the summer or autumn of 1864, in the Motray Burn, within the line of high-water mark of ordinary spring tides, or along the south side of the said burn, for a distance of about 1000 feet opposite to the pursuer's lands and farm of Milton, forming part of his estate of Leuchars, has been so erected or constructed wrongfully and illegally, and to the injury of the pursuer's said lands and farm of Milton; and that the defender ought to be ordained forth with to remove the said embankment and works connected therewith, or otherwise the pursuer ought to be authorised to remove the same at the expense of the defender.

The pursuer averred—

(Cond. 3.) On the south side of the Motray River or Burn, and considerably within high-water mark of ordinary spring tides, the defender, in or about the summer or autumn of 1864, wrongfully and illegally, and without the knowledge or consent of the pursuer, who does not reside at or in the neighbourhood of the property in question, constructed an embankment ex adverso of the pursuer's said lands of Milton, or part thereof, about 1000 feet in length, and of an average height of 7 feet or thereby, and made and executed other works and operations in connection therewith; which embankment and works have reduced the superficial area of that part of the channel of the said Motray River or Burn, along which the said embankment is situated, by about 2 acres 1 rood and 9 poles. The embankment has also reduced the average sectional area of that part of the channel of the burn which is situated opposite the pursuer's said lands, and where the said embankment is situated, from 738 superficial feet or thereby to 471 superficial feet or thereby, being a diminution of more than one-fourth of the sectional area. The said embankment has been constructed in a circuitous form, and the part of the channel of the said Motray River or Burn before referred to, has been thereby lengthened by about one-fifth.

(Cond. 4.) The effect of the defender's said operations is to raise to a considerable extent the surface of the water in the channel of the said Motray River or Burn opposite the pursuer's said lands, and the velocity of the stream has been thereby increased. Its velocity has been nearly doubled at high water of high spring-tides, and in extraordinary spring-tides, accompanied by heavy land freshets, its velocity will be thereby nearly tripled. The drainage from the pursuer's lands is thereby greatly obstructed, and the banks of his lands are at all times much more liable than formerly to be worn away and damaged by the increased height, weight, and rapidity of the current in the said channel, and are in the course of being so damaged and worn away accordingly.

(Cond. 5.) The pursuer's lands have already suffered considerable damage by the drainage thereof being obstructed, and the banks considerably undermined and partly washed away, from the causes above set forth; and if the embankment should not be removed, further and much more serious damage will inevitably be the result. The pursuer has often desired and required the defender to remove the said embankment, and to compensate him for the damage which has already been caused to his lands; but he refuses or delays to do so. The pursuer reserves all claims against the defender for the damage which his lands have already suffered through the illegal operations of the defender before referred to.

The pursuer proposed the following issue:—

It being admitted that the pursuer is proprietor of the lands and estate of Leuchars, in the parish of Leuchars and county of Fife; that the

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defender is proprietor of the lands and estate of Seggie, in the said parish and county; and that the Motray River or Burn flows between parts of these respective lands:

Whether, in or about the year 1864, the defender wrongfully constructed an embankment of about 1000 feet in length, or thereby, on the south side of the said river or burn, and within high-water mark of ordinary spring-tides, ex adverso of the pursuer's lands of Milton, part of his said lands and estate of Leuchars, to the injury of the pursuer's lands, or any part thereof?

The Lord Ordinary (Kinloch) reported the case with the following

Note.—The defender maintained that the issue should not set forth the embankment complained of as being constructed ‘on the south side of the said river or burn, and within high-water mark of ordinary spring-tides,’ but should expressly set it forth as constructed within the alveus of the river. The Lord Ordinary was not prepared to sanction this view—to adopt which would be substantially to decide the case beforehand against the pursuer. He is not prepared to hold that, in the case of a tidal stream, an embankment constructed within the widened channel produced by the rise of the tide, is not equally objectionable (if injurious to the proprietor on the opposite bank) as an embankment within the alveus of the river properly so called. He thinks the question is not one to be determined beforehand, nor until the facts are ascertained. The pursuer must establish at the trial, not only that the embankment has been constructed in the place alleged prejudicially to his land, but also that it has been constructed ‘wrong-fully,'—that is, that the defender had no legal right to construct it.

The pursuer's counsel suggested that the case was one more fitted for a remit to an engineer than a trial by jury. The defender did not agree in this view.”

Campbell Smith ( Lord Advocate with him), for the defender, argued—The issue is ambiguous and framed for the purpose of trying different kinds of cases, either that of an erection in alveo, which the pursuer may complain of without being required to prove damage, or that of an erection not in alveo but on the bank of the river, in regard to which it would be necessary for him to prove damage. The former is the case raised by the summons. The conclusion of the summons is directed against an embankment “ in the Motray Burn;” and that this was the case intended to be raised appears also from there being no averment of damage.

Young and Shand for the pursuer.

The Court approved of the issue proposed, deleting only the word “any,” being the third last word. An opinion, however, was intimated that as this was the case of a tidal stream, the pursuer would require to prove not only that the embankment had been erected wrongfully, but that it caused substantial injury to him.