Scottish Court of Session Decisions

This was an action of declarator and interdict raised by Mr Robertson of Endradynate, Perthshire, against Mr Alexander Stewart of Derculich, and Mr Donald Livingston. The action was brought on account of a nuisance which the pursuer alleged was caused by a farina mill situated on the lands of Derculich, and occupied by the defender Mr Livingston. The estates of Endradynate and Derculich adjoin, and are divided by a burn called the Derculich Burn, near which the farina mill in question is situated. The nuisance was said to arise in two ways—(1) by offensive smell, which the pursuer alleged injuriously affected his mansion-house, lodge, and avenue; and (2) by pollution of the stream so serious as to destroy it—according to the pursuer's averment—for primary uses. The pursuer also complained that the defenders diverted the water of the stream to a greater extent and for other purposes than it was in use to be diverted prior to the operations complained of, and pleaded that they were not entitled to do so. The summons therefore contained conclusions of declarator and interdict to the effect that the defenders should be prevented from carrying on the farina manufacture, or at least from carrying it on in a manner injurious to the pursuer; and that the defenders should be prevented from polluting the stream, and from diverting the water from it to a greater extent, or for other purposes than it was in use to be diverted formerly.

The defender Mr Stewart averred that, in virtue of his titles and the possession and immemorial custom which had followed thereon, he was entitled to use the water of the Derculich Burn in such quantities as he might find necessary from time to time for manufacturing purposes. He therefore pleaded that the pursuer's averments as to an additional quantity of water having been diverted from the stream by the tenant were irrelevant, and insufficient to support the relative conclusions of the action. The said defender further pleaded that the pursuer and his predecessors having recognised and acquiesced in the said use and control of the water of the said burn by the defender and his predecessors, the pursuer was barred from now objecting to such use and control being continued, and the defender not having caused or authorised any pollution of the Derculich Burn, or any nuisance in connection with the farina works, he was entitled to absolvitor from the conclusions of the action relating to such alleged pollution and nuisance. In support of this plea, the defenders produced the minute of lease under which the defender Donald Livingston held the mill, and in which he bound and obliged himself not to have anything about the farina works, or elsewhere, that should be a nuisance to the property or to the public.

The defender Donald Livingston in the first place denied the pursuer's allegations as to the nuisance. He further pleaded that the water of the said stream not having been diverted by the defender to any greater extent than it had for time immemorial been in use to be diverted, or so as to injure the rights of the pursuer, was entitled to absolvitor, and that the pursuer and his authors having acquiesced in the operations complained of, were barred from obtaining decree in terms of the conclusions of the summons.”

The Lord Ordinary allowed the parties a proof before answer, and under reservation of all pleas. A proof was accordingly led, and the result will be sufficiently gathered from the Lord Ordinary's interlocutor and subjoined note, and from the opinion of the Lord President.

The following is the Lord Ordinary's interlocutor:—

“ Edinburgh, 19 th March 1872.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process: Finds (first) that it is sufficiently proved in point of fact that for sometime previous to the raising of the present action, and in particular during the summer and autumn of the year 1871, the defender Donald Livingston so carried on the manufacture of farina or starch from potatoes at the mill occupied by him on the lands of Derculich as to cause a nuisance to the pursuer: Finds (second) that the said nuisance was occasioned both by smell or unpleasant and offensive odours emanating from the said defender's manufactory, and from refuse produced therein, and by the pollution of the Derculich Burn, occasioned by the said defender's operations: Finds (third) that the Derculich Burn is not a stream dedicated to manufacturing purposes, and that it has not for the prescriptive period been so polluted as to be unfit for the primary uses: Finds, in point of law (fourth), that the defenders are not entitled so to carry on the manufacture of farina or starch at the mill of Derculich aforesaid as to cause a nuisance to the pursuer, either by offensive smell or by pollution of the said stream; and with these findings, and before further answer, appoints the cause to be enrolled, that the defenders, or either of them, may state whether, and how. they are prepared to abate the said nuisance in time to come, or that a remit may be made for ascertaining how the said nuisance may be abated, or for such further proceedings as may be necessary: Finds the pursuer entitled to expenses up to this date, reserving for after consideration whether there should be any, and what, modification of said expenses in reference to the pursuer's pleas as to the quantity of water diverted or abstracted by the defenders, and remits the account of said expenses to the Auditor of Court to tax the same and to report.

Note.—This case has been litigated with great keenness on both sides, and it has been very fully and ably argued both on the questions of fact and on the questions of law which it involves. Both in fact and in law the case is attended with difficulty and nicety.

The Lord Ordinary has embodied the results at which he has arrived in the preceding interlocutor. The first three findings are findings in point of fact; the fourth is a finding in point of law. These findings will ultimately lead to the disposal of the action; but the Lord Ordinary cannot proceed further at present, because the defenders are entitled to suggest means by which the nuisance may be abated without abolishing or discontinuing their manufacture. For example—the offensive smells may perhaps be prevented by covering the

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tanks or receptacles from which the smells proceed, and the pollution of the burn may perhaps be prevented by making a settling pond, or by washing the potatoes in tanks, or in some other place than in the open mill-lade. Into these matters, however, the Lord Ordinary cannot at present enter, and he may probably require the assistance of a skilled reporter.

I. The Lord Ordinary's first finding is that a nuisance has been caused to the pursuer by the mill in question.

This is really a jury question, and the Lord Ordinary has dealt with it as such. There is conflicting evidence, and the Lord Ordinary is far from saying that there is no difficulty in weighing and deciding upon that evidence. It is certainly not a very strong case of nuisance. The nuisance is not constant, and in ordinary circumstances it is not very great. When the supply of diseased potatoes is small, when the weather is cold, when the wind is in a particular direction, or when the burn is in flood, very little annoyance, or no annoyance at all, may be caused to the pursuer; and even when there may be unpleasant odour or a polluted stream, feelings of good neighbourhood might induce persons in the pursuer's position to overlook the matter, and put up with what many would hold to be a very trifling inconvenience.

Still the pursuer is entitled to insist in his absolute right, and the Lord Ordinary has found himself obliged to hold that at least sometimes, and in circumstances occurring more or less frequently, the defenders' mill has occasioned a nuisance both by causing offensive odours and by polluting the stream. In particular, it seems to be established that the nuisance was more frequent, more continuous, and greater in degree during the summer and autumn of 1871—that is, during the period immediately preceding the raising of the present action—than it had been during previous years. It may even be true that, but for the considerable failure of the potato crop in 1871, and the greatly-increased manufacture at the defenders' mill that year, this action would never have been raised; and it seems to be true that a large and offensive tank, which was in operation in 1871, has, since this action was raised, been removed. Still, if only in 1871 a nuisance was caused, this would justify the action and entitle the pursuer to some remedy, or to some security that in future years the nuisance should not be repeated.

The Lord Ordinary abstains from any analysis of the evidence of nuisance. From the nature of the case the evidence is limited. The pursuer's mansion-house and lodge seem to be the only houses injuriously affected; for although Mr Livingston's house is near his work, he cannot complain of his own manufactory. It was only on rare ocasions, too, that the smell reached the pursuer's mansion-house; but the Lord Ordinary thinks that it amounts to a nuisance if it pervaded with sufficient constancy or frequency the avenue or approach thereto. Then the pollution of the stream seems to have been not inconsiderable. Fifty cartloads of diseased potatoes for a considerable period were daily washed in the lade, and this at intervals during the working day. It may be that the stream, after each washing, soon ran itself clear, but then it was very soon polluted again by the next washing. The pursuer seems well entitled to complain of this.

On the whole, although not a very clamant case, the Lord Ordinary thinks that during 1871, at least, the nuisance is proved.

There is no dispute as to the particular mode in which the nuisance is caused, viz., (1) by offensive smell; (2) by pollution of the stream.

A considerable part of the proof was directed against offensive deposits of manure made up of the refuse of the mill. There is no special conclusion as to these, and they were treated simply as the mode in which the manufacture was conducted so as to cause offence. To some extent these deposits have now been removed, or are in course of being removed, and it was stated that they would not be renewed. This belongs, however, rather to the abatement of the nuisance than to the proof of its existence.

III. The third finding in the preceding interlocutor raises questions of some nicety both in point of fact and in regard to the legal effect of the alleged facts.

(1) The defenders urged that they had absolute right to the water, to take any quantity of it, and to use it for any purpose, in particular for manufacturing purposes. On this point the landlord of Derculich Mill relied on his titles, and on the past history of the stream. The Lord Ordinary is of opinion that, on a fair reading of the titles, they do not support the defender's contention. No doubt the defenders, Stewart's trustees, have a grant of Derculich Loch and of the streams therefrom, but they have so only as proprietors of the meal-mill of Derculich and of the mill lands thereof. The meal-mill and its lands are far further up than the farina work, and have nothing to do therewith. All the water from the meal-mill is restored to the burn long before it enters the lands on which the farina mill is situated, and which are held by different titles. The defenders cannot use the titles of one estate as giving them a right to divert or use the water for a different estate far further down the stream.

(2) The defenders contended that Derculich Burn was dedicated to manufacturing purposes, and was no longer applicable to the primary uses. The defenders have failed to instruct this. No doubt there was at one time a waulk or dye-mill about a mile further up the stream, but this only existed for a few years, and it has been discontinued and in ruins for at least half a century. It does not appear that even when it existed it created any nuisance or material pollution of the stream. The other mills upon the stream merely used the water as a motive power, and did not in any way pollute it, for it is impossible to hold that the accidental escape of sawdust or of lint dressings into the stream would ever give any right permanently to pollute it, so as to unfit it for its primary uses.

The only other ground upon which it was maintained that the stream had been dedicated to polluting manufactures was that at one time holes or pits for steeping lint existed on or near the stream. But although a lint hole causes for a week or a fortnight an offensive smell, this occurred only once a year, and acquiescence therein would not entitle the defender to carry on his present manufacture, if it really causes a nuisance. If the water from the lint holes was returned to the stream it might pollute it, but probably only for an hour, and that only once a year; and such as it was, the steeping of lint has been discontinued for about forty years. Such uses, it is thought, are quite insufficient to establish that the Derculich

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Burn is a manufacturing stream, and that parties residing thereon have no right to insist that its water shall be applicable to the primary uses.

(3) The defenders pleaded the pursuer's acquiescence as a bar to the present action. It appears to be true that the pursuer and his father, from friendly feelings, were very unwilling to take proceedings against the defender Mr Livingston, and they appear to have submitted for a good many years to what they considered a grievance and an annoyance. But last year things became worse than ever, and it would be most unfair, as well as most unfortunate, to hold that delay or reluctance to challenge an incipient and a growing nuisance will cut off altogether the right to challenge it to whatever height it may be carried. The cases regarding acquiescence in encroachments or buildings do not apply to a case like the present, where admittedly the pursuer has no right to stop the defenders from building what they please on their own land; and the Lord Ordinary thinks that the pursuer's forbearance in past years does not prevent him from vindicating his legal rights.

The Lord Ordinary's finding in point of law needs no remark. If the Lord Ordinary is right in his findings in point of fact there cannot be much dispute about the law applicable to the case.

The Lord Ordinary has found both the landlord and the tenant liable in the expenses hitherto incurred. No doubt the landlords did not directly create the nuisance. But they appeared and resisted decree, although the pursuer only concluded for expenses against such of the defenders as might appear and resist. Still further. the landlords raised very important questions upon the titles, inter alia claiming right to the whole water “for manufacturing purposes.” In these pleas the landlords have been unsuccessful. There may possibly be some ground for modifying the pursuer's expenses in respect that he claimed too broadly a right to stop the diversion of the stream otherwise than by the old lade and for the old purposes. This formed a very small part of the case, however, and the Lord Ordinary reserves its effect on the expenses till the account is seen. If there is room for modification at all, it will be very slight.”

On 16th May the Lord Ordinary pronounced this further interlocutor:—“The Lord Ordinary having heard parties' procurators, before further answer, remits to Mr James Dewar, lecturer on chemistry, Edinburgh, to inspect and examine the farina or starch manufactory carried on by the defender Livingston at the mill of Derculich, and water courses and works therewith connected, and to report whether the smell and effluvia emitted from the said manufactory, and the pollution of the water of Derculich occasioned by said manufactory, can be prevented or abated, and in what manner; and also to report on any special points which any of the parties may suggest as material in the present case.”

Against these interlocutors the defender Donald Livingston reclaimed.

It was argued for him that as the situation of the Farina Mill had been the site of a mill from time immemorial, and as it was a work profitable to the landlord and the public, and as the smell and pollution had not been proved to be so offensive as to destroy the comfort of life, it could not be held to be a nuisance. Further, that as the pursuer had allowed the mill to continue in operation for many years without any complaint, and had himself made use of it, he was therefore barred from objecting to the manufacture being continued. Riahby v. Beardmore, 10 Macph. 568; Hart v. Taylor. 4 Murray 307; Dewer v. Fraser, M. 12.803; Magistrates of Linlithgow v. Elphinston, M. 12,805.

It was argued for Mr Stewart that there were no grounds of decree against him. He had nothing to do with the nuisance, for the lands were expressly let under the condition that the manufacture was not to be carried on in such a way as to create a nuisance. Although a landlord was liable if he let his lands for a purpose which necessarily created a nuisance, yet he was not liable if the tenant, departing from the proper use, created a nuisance. Therefore it was argued that the action should be dismissed quoad the defender Mr Stewart. Collins v. Hamilton and Mackay, 15 S. 895; Dunn v. Hamilton, 15 S. 853; Rich v. Baslerfield, 16 L.J. (Common Pleas) 273.

It was argued for the pursuer that the findings of the Lord Ordinary had been rightly directed against the landlord, because, in the first place, it was not entirely a question of nuisance, but was also a question of right between the proprietors of the stream; and, in the second place, because the landlord opposed the pursuer's conclusions and supported the other defender, on the ground that, by his title and by immemorial use, he had the exclusive possession and control of the burn for manufacturing purposes. It was argued that it had been proved that the landlord had no such right to the stream, and that therefore effect must be given to the pursuer's plea that the defenders were not entitled to pollute the stream so as to render it unfit for primary purposes, or to divert the water therefrom to a greater extent than it was in use to be diverted prior to the operations complained of. In regard to the nuisance, it was argued that the averments of the pursuer had been clearly proved. Dunn v. Hamilton, 3 Shaw and M'Lean, H.L. 356; Duke of Buccleuch v. Cowan, 5 Macph. 214; Cowan v. Lord Kinnaird, 4 Macph. 236.

At advising—