Scottish Court of Session Decisions

This was an appeal from a decision of the Sheriff of Wigtown and Kirkcudbright, upon a petition at the instance of the Dumfries and Maxwelltown Water Works Commissioners, against Walter M'Culloch, of Ardwall, and James Smith, farmer, Lochside, both in the parish of Lochrutton and stewartry of Kirkcudbright. The petitioners set forth that, by virtue of the powers conferred upon them by 13 and 14 Vict., c. 34, and the Dumfries and Maxwelltown Water-Works Amendment Act, 1852, they had acquired right to the water of Lochrutton Loch for the purpose of supplying Dumfries with water, and that they had paid the various proprietors interested all claims in respect thereof, in terms of the Lands Clauses Consolidation (Scotland) Act, 1845, and had obtained conveyances by which the various parties made over to their predecessors, “according to the true intent and meaning of the said Acts the permanent servitude of taking through their pipes so much of the water of Lochrutton as might be necessary for the purposes of their works in addition to the servitude right of taking eighty-three cubic feet of water per minute.” The petitioners alleged further that the respondent Smith, with the concurrence of his landlord, was in the habit of washing sheep, which had been previously dipped in chemical substances, in the Loch and so fouling the water, and they craved the Court to “interdict the respondents and all other tenants of the said estate of Hills from washing or causing to enter into the said Loch any sheep or other animal, or otherwise fouling the water of the petitioners.”

The pleas in law for the petitioners were, inter alia:—The petitioners, by virtue of their title to the water of Lochrutton Loch, so far as necessary for the purposes of their works, are entitled to interdict against the respondents and all other persons interfering therewith by making the said water unfit for these purposes. The respondent Walter M'Culloch and his predecessors having received payment of and discharged all their claims of compensation in respect of the petitioners’ right to the water of the said loch, and of any contingent damage arising from the exercise of such right, he is personally barred from interfering with the petitioners in the exercise thereof.

The pleas for the respondents were, inter alia:—The petitioners have acquired no other right to the loch than the privilege of taking and carrying off so much of the water of the said loch as may be necessary for their said works, and the said loch not being a stream, reservoir, aqueduct, or other water-works belonging to them within the sense and meaning of the statutes referred to, the loch and rights of the respondents remain the same as before the said servitude right was acquired. The servitude right of taking water from the loch acquired by the petitioners does not entitle the petitioners to interfere with the exercise of the respondent's said rights as one of the proprietors of the loch. Neither the respondent Mr M'Culloch nor his predecessors have renounced or conveyed any right, or been paid a compensation therefor, in connection with the said loch, or the uses thereof competent to him and his tenants prior to the passing of the petitioners’ Acts, except as regards the said servitude right. The operation complained of not being injurious or deleterious to the water supply of the petitioners, there are no grounds in fact for this application.

The Sheriff-Substitute pronounced the following interlocutor.

“ Kirkcudbright, 22 d October 1873.—The Sheriff-Substitute having heard parties' procurators, and considered the closed record, productions, and whole process, before further answer allows to both parties a proof of their respective averments, so far as not admitted, and to the petitioners a conjunct probation: Grants diligence against witnesses and havers, and assigns the day November next at ten o'clock forenoon, within the Courthouse here, for proceeding with the proof hereby allowed, and decerns.

Note.—If it were perfectly clear that the 61st section of the Water-Works Clauses Act is applicable to the operation here complained of, the Sheriff-Substitute would have considered the admission of the respondents as to the washing of sheep in the loch in question sufficient for the disposal of the case without a proof; but the questions, both of fact and of law, on which the parties are at issue, are of such importance, and some of them of such nicety, that the only thing quite clear at present to the Sheriff-Substitute is the necessity of a proof. The special points on which further information is required appear to be these—1st, The means, if any, whereby Lochrutton has been made, in the sense of the Water-Works Clauses Act, a “reservoir, aqueduct, or other water-works belonging to the undertakers. 2d, The nature and extent of the possession exercised by the parties respectively since the date of the last conveyance by the respondent Mr M'Culloch; and 3d, The nature and extent of the alleged pollution of the water of Lochrutton.”

On appeal, the Sheriff pronounced the following interlocutor:—

“18 th November 1873.—The Sheriff having considered the interlocutor appealed against and the debate, sustains the appeals for both parties, pursuers and defenders: Recals the interlocutor appealed against, and allowance of proof therein contained; and quoad ultra having considered the averments and admissions on the closed record, and the several statutes and other documents produced, finds that the pursuers are Commissioners for executing the purposes of the statute 13 and 14 Vict., cap. 34, passed 25th June 1850, for supplying the burghs of Dumfries and Maxwelltown and suburbs with water, and which statute proceeded on the preamble that the said burghs were not then sufficiently supplied with “water, but that an abundant supply of water can be easily and cheaply introduced into those burghs and suburbs from Lochrutton Loch, in the stewartry of Kirkcudbright, and the streams issuing therefrom and adjacent thereto, but that object cannot be effected without the authority of Parliament,” therefore the Act was passed, and the several statutes therein specified (1) including the Water-Works Clauses Act, 1847, save as varied or otherwise provided, were incorporated with, and declared to form part of the said special Dumfries and Maxwelltown Water-Works Act, 1850: Finds that by the said special Act, 1850, it was (sec. 19) declared lawful for the Commissioners “to make and maintain the works therein referred to, and to enter upon, take, and use such of the said lands, waters, and streams as shall be necessary for the purpose:”

Page: 565↓

Finds that the pursuers' predecessors, as statutory Commissioners, commenced operations in or about the said year 1850, and have since been in possession of the water-works authorised by the statute, including the water in Lochrutton, and pipeage and other works for conveying the same to Dumfries and Maxwelltown for the ase of the inhabitants: Finds that the pursuers' titles consist of the statutes and of the several notices, conveyances, and other documents referred to in the record and produced, and that the title of the pursuers' predecessors was by the Court of Session recognised and sustained against the defender Mr M'Culloch in a process of interdict at his instance regarding the quantity of water which the Commissioners might take from Lochrutton, and which process was decided against Mr M'Culloch (see report of case under date 29th January 1863, M'Pherson's Reports, vol. i. p. 334): Finds that in sec. 23 of the said special Dumfries and Maxwelltown WaterWorks Act, 1850, there is a provision for the Commissioners furnishing to owners or occupiers of houses or parts of houses a sufficient supply of water ‘for domestic use’ at a rate not exceeding that specified; and in sections 24 and 25 there are provisions for supplying water not for domestic purposes at other rates to be agreed on; Finds that by section 35 of the general Water-Works Clauses Act, 1847, incorporated with and forming part of the pursuers' Special Act, 1850, it is enacted that ‘the undertakers (Commissioners) shall provide and keep in the pipes to be laid down by them a supply of pure and wholesome water sufficient for the domestic use of all the inhabitants of the town and district within the limits of the Special Act, who, as hereinafter provided, shall be entitled to demand a supply, and shall be willing to pay water-rate for the same; and such supply shall be constantly laid on at such a pressure as will make the water reach the top storey of the highest houses within the said limits, unless it be provided by the Special Act that the water to be supplied by the undertakers need not be constantly laid on under pressure:’ Finds that the provisions in the said general Act for protecting the water of the Commissioners against being ‘fouled;’ and, in particular, section 61 provides that every person committing any of the offences therein referred to shall be subject to penalties, viz., ‘every person who shall bathe in any stream, reservoir, aqueduct, or other waterworks belonging to the undertakers, or wash, throw, or cause to enter therein any dog or other animal;’ and amongst the other provisions in the same section against fouling there are penalties against persons who shall do any other act whereby the water of the Commissioners shall be fouled: Finds that the defender Mr M'Culloch is one of the proprietors of lands adjacent to Lochrutton, and that the other defender Mr Smith is one of his tenants: Finds that in violation of the pursuers' rights in the water of said loch, the defenders, in or about June last (1873), fouled the water therein by causing large numbers of dirty sheep to be washed therein, and threatened to do so thereafter, notwithstanding the pursuers' remonstrances: Finds that the defenders have failed to make averments relevant or sufficient to support their pretended right to foul the water in question by washing sheep therein: Repels their defences against this process of interdict, and, without prejudice to the interim interdict granted on 19th June last, grants of new interdict in terms of the prayer of the pursuers' petition against the defender Mr M'Culloch, and the other defender James Smith, and all other tenants of the estate of Hills, their servants and dependants, from washing, throwing, or causing to enter into the said Lochrutton or other water-works belonging to the pursuers any sheep or other animal, or otherwise fouling the water of the pursuers, and decerns: Finds the defenders jointly and severally liable in expenses of process, as these may be ascertained before the Sheriff-Substitute, and remits the account to the Auditor.”

The respondent appealed.

On 5th February 1874 the case was sent to proof before answer, and the Lord Justice-Clerk took the proof.

At advising—