Scottish Court of Session Decisions

Lord Neaves This is a case of a peculiar kind. It is an application at the instance of the Procurator-Fiscal of Roxburghshire against certain parties who are mill-owners and proprietors of a mill-lade skirting the haugh, which belongs to the town of Hawick. The allegation is that the mill-lade, which is below the level of the ground and at present is accessible to all, is in a dangerous condition, and the Procurator-Fiscal's object is to have it rendered more safe for the public and particularly for young children, by placing a wall along the town side of the lade. This is therefore a summary application ad factum præstandum in order to abate a nuisance.

In considering the case I do not mean to lay down any general rule, and it would be difficult to do so, as to the duties of procurators-fiscal. I do not enter upon the question, whether the Procurator-Fiscal is intended to enter upon a crusade upon all lochs, streams, and waterfalls, with a view of rendering them safe for persons of tender years, I am not prepared to affirm such a proposition. The peculiarity of the case is that the mill-owners who were convened along with the Magistrates of Hawick, and who are proprietors of the mill-lade, have never sisted themselves and are willing to be decerned to erect the fence at their own expense. The only parties who resist are the Magistrates of Hawick. And when we look at their statement there is no objection to the title of the prosecutor nor to the relevancy. Their objection is on the merits solely. That being so, it is not our duty to find out objections unless it is quite clear that the application was incompetent. What we have to deal with is the application of the Procurator-Fiscal which has been considered by the Sheriff, and which we are now asked to overturn. It might have been more desirable for us to see exactly how the title of the ground stood, but it seems to be admitted that the haugh is vested in the magistrates for the benefit of the public. There is a difficulty on the part of the Procurator-Fiscal, that he is not seeking to prevent a recent nuisance, but one which is admitted to have existed for the last seventy years. It has been proved that the haugh has been used for the purpose of bleaching, and young persons have been in use to bathe in the mill-lade. An objection is raised that the fence proposed will encroach upon the haugh. But from all that I see the fence is to be erected on the retaining wall of the mill-lade. Now a mill-lade is a kind of box, and the proprietor of the lade is proprietor also of the bottom and sides, so far as they are necessary to support the lade. If therefore the fence is erected on the wall of the mill-lade, it is no encroachment on the solum of the haugh.

What other objection is there? It is said that the inhabitants have the right of bathing in the lade, and of drawing water from it. But I do not understand that it is proposed to interfere with the right of access in any way. I suppose that the gates which it is proposed to erect will be provided with steps by which the water may be reached. I do not see any reason for preventing the mill-owners from erecting the fence on their wall, and so making the public safe. This is a very material consideration for owners of mill-lades, who are liable in damages if any accident should happen from their lades not being properly fenced.

I should not like that the Magistrates should be prevented from stating any objections to the access which is proposed, and therefore I propose that we should repel the reasons of appeal, and remit the case back to the Sheriff, to give the Magistrates an opportunity of stating any objections they may have.

The other Judges concurred.