Scottish Court of Session Decisions

This was an appeal in an action for interdict brought in the Sheriff Court of Forfar at the instance of William Donaldson, labourer, Charleston, Glamis, against the Earl of Strathmore, in the following circumstances:—The petitioner was a feuar in the village of Charleston, which was built upon the property of Charles Henderson of Woodbank, and under the original rules and regulations for the village the feuars were to have the use and privilege of the water in a burn which flowed past the village, and of a piece of ground to be laid out as a bleaching green. This ground lay between the burn and the petitioner's feu. Mr Henderson was proprietor of only one bank of this burn, and his property was purchased by Lord Strathmore, who was proprietor of the other bank. Lord Strathmore thus became sole riparian proprietor, and superior of the Charleston feus.

For thirty years Lord Strathmore's factor's house at Glamis had been supplied by water from the burn, conveyed from a point slightly below the village in a 3-inch drain. Lord Strathmore, on account of the drainage of the village having polluted the water, proposed to lay a 3-inch pipe drain to convey the water to Glamis, not from the burn, but from a stone-built drain which was supplied by a spring in a field above the village and upon his Lordship's property. This stone-built drain conveyed the water from the spring into the burn, the junction being near the lower end of the bleaching green. There was no intention of removing the stone drain, which would continue to convey into the burn the spring water in so far as it was not carried off by the 3-inch pipe. There was another strong spring, which the respondent averred amply supplied the bleaching green and the village. This action was for the purpose of interdicting Lord Strathmore from laying the proposed pipe-drain.

The petitioner pleaded — “The petitioner having right to the water in the said burn, the respondent is not entitled to interfere therewith, or to carry it away, or to alter or divert any of the sources thereof.”

The respondent pleaded—“(2) The respondent being proprietor of the spring and drain and adjoining lands, is entitled to take water therefrom for his own uses. (3) The petitioner having only a privilege of servitude for using water, and the operations complained of not being such as to deprive him of the requisite supply, the petition ought to be refused.”

A proof was taken at Forfar on July 10, 1876, and on 11th December 1876 the Sheriff-Substitute (D. Gillespie) pronounced an interlocutor in which he, inter alia, found as follows:—“Finds in law that the petitioner has no higher rights than that of servitude in regard to the water of the said burn, and that he is not entitled to object to the operations of the respondent unless these operations are such as to injuriously affect the petitioner's use and privilege of the water of the said burn: Finds, in fact, that the operations complained of will not injuriously affect the petitioner's said use and privilege, inasmuch as even if the respondent abstracts the whole water of the said channel, the natural water of the burn, unaugmented by the water from the channel, will suffice not only for all the purposes of the petitioner but of the whole villagers of Charleston: Therefore sustains the third plea in law for the respondent; recalls the interim interdict formerly granted; refuses the prayer of the petition.

Note.—The petitioner's feu is upwards of a hundred yards from the nearest point either of the burn or of the covered channel. He is not riparian proprietor, and accordingly cases relating to the rights of upper and lower riparian proprietors have no direct application to the present case. The right conveyed by his titles is

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nothing more or less than a servitude of a recognised character (Stair, ii. 7, 11; Bell's Pr., sec. 990 ad fin). The principles which must regulate the decision of the present case are clearly stated in Erskine, Part II., 9, 33 and 34, and Bell's Pr., sec, 987-988. The owner of the servient tenement is no further restricted in his use of the subject of the servitude than the servitude requires. Being a question of servitude, the Sheriff Court has power to deal with this case as unreservedly as the Court of Session could do; nay, more, it is incompetent for the Sheriff to decline to entertain the merits of the question and confine himself to a possessory judgment ( Glow's Trustees v. Mealls, May 28, 1875, 2 Rettie 729). But the Sheriff-Substitute may add, that in his opinion a possessory judgment, if such had been competent, would have led to precisely the same result. It does not appear that the grant in the petitioner's favour has ever been clothed with sasine, and therefore to make it effectual against a singular successor infeft the grant must be followed by possession. The proof of possession by the petitioner and his predecessors in the feu is meagre, but the Sheriff-Substitute is willing to deal with the case upon the footing that a valid servitude has been constituted in the petitioner's favour as against the respondent. The artificial channel has been in existence beyond the memory of any of the witnesses, although it was not originally covered as now. The petitioner says that it has existed for fifty years, and it may be taken as proved that it was in existence in 1833, when Mr Henderson drew up his articles and regulations for the proposed village. The petitioner's titles contain no reference to the channel; but if his use and privilege of the water of the burn would be injuriously affected by the abstraction of the channel water, which would otherwise reach the burn, the Sheriff-Substitute thinks that he would have a right to object to the respondent abstracting the channel water. Now, Mr Paterson's evidence shows that the respondent's pipes are large enough to carry off the whole water of the channel in dry weather. In order, therefore, to justify the respondent's operations it must be shown that the water of the burn, unaugmented by that of the channel, is sufficient at all times to give the petitioner the enjoyment of his use and privilege. The petitioner brings witnesses to say that in dry seasons the burn itself would not furnish a sufficient supply for the villagers, and this is met by witnesses for the respondent, who say that even in the driest seasons the burn alone furnishes an ample supply. To balance these conflicting statements might be no easy task if there were no other way of getting at the truth. But there are two things which, in the Sheriff-Substitute's opinion, conclusively determine the point in the respondent's favour. In the first place, there are the careful measurements made by Mr Blackadder and Mr Anderson. These measurements were made on 14th June last. The proof was led on 10th July, and a large number of witnesses speak to the state of the burn at the date of the proof and for a month or so before, and upon a careful review of their evidence the Sheriff-Substitute is satisfied that when the measurements were made the burn was as low, or very nearly as low, as it ever has been known to be. Some five witnesses for the petitioner say that they have seen it lower than it was at the date, of the proof. About seven witnesses for the respondent say that they never saw is lower than it was then, and two or three of the petitioner's witnesses agree with them. The petitioner's own daughter, Ann Donaldson, says ‘the burn water is pretty low just now. I never saw it lower than it is at present. It was as low a month ago as it is at present.’ Ann Mather, another witness for the petitioner, says ‘the burn has been as low lately as it has been for years;’ and Mrs Duncan, also a witness for the petitioner, says ‘the burn is very low at present, but I have seen it as low before' Indeed, it is almost matter of history that owing to the unusually small rainfall during the first half of this year springs and streams were remarkably low in June and July. It may therefore be fairly concluded that if there was sufficient water when Mr Blackadder and Mr Anderson measured it, there will always be sufficient. These gentlemen found the flow of the burn above the junction with the channel to be 54,000 gallons per day, and the discharge from the channel nearly 10,000 gallons per day. They also examined other sources of water supply in the village of Charleston, but the Sheriff-Substitute thinks that the petitioner is entitled to have the case dealt with on the footing that the burn and its affluent (the channel) are the only available sources of supply. Mr Blackaddder reckons 7000 gallons per day as afull supply for the whole population of the village. These figures, which there is no attempt to contradict, speak for themselves. They are not in the least inconsistent with the statements of some of the witnesses, who say that at times it is troublesome to get water from the burn. A stream may contain water enough to supply a village many times over, but yet from its running wide and shallow, or some other reason, it may not be an easy matter collecting water from the stream. The measurements also show that the supply of water contributed by the channel is small compared with the amount of water in the burn. Assuming that the respondent takes away the whole of the channel water, he will be taking away less than one-sixth of the united water—a fact of which the significance is obvious. Secondly, the respondent's case derives material confirmation from the evidence as to the points of the burn where the villagers draw water. The Sheriff-Substitute has studied this evidence carefully, and he has come to the conclusion that if the evidence be taken as a whole, and due regard be paid to the explanations and qualifications made by the witnesses, as well as to their more general statements, there is no such conflict as perhaps appears at first sight. He thinks that the following facts are clearly brought out:—(1) That from the junction of the channel with the burn to the lower end of the green the burn runs wide and shallow; that it is consequently impossible to collect water there except by damming back the stream; (2) that although water is occasionally collected there by that means, this is not an ordinary practice; and (3) that the only places where the villagers are at all in the habit of getting water from the burn are either above the junction or below the bleaching-green altogether, at a point near the inn, close to where the burn passes under the statute-labour road. There are a very large number of witnesses who speak to the state

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of the burn below the junction C, and many of them say that the burn and its banks between this point and the lower end of the green show no appearance of the villagers having been in use to take water there. There are no doubt a good many witnesses who say that they have collected water there by damming back the stream, or have seen others doing so. Negative evidence must yield to positive evidence, but still it is difficult to believe that water is often got from this part. It is not only that several witnesses who have good opportunity of seeing what goes on at the green, including at least one for the petitioner, say in so many words that they have never seen water taken at the green below the junction, but a decided preponderance of the whole testimony is substantially to the same effect. In short, the Sheriff-Substitute thinks it proved that most of the villagers who get their water from the burn at the bleaching-green at all get it always above the junction. This fact deals a heavy blow at the root of the petitioner's case—viz., that the channel water is necessary to supplement the burn—and furnishes important real evidence in favour of the statements of the respondent's witnesses. … Even if the Sheriff-Substitute had come to the conclusion that the respondent's operations would diminish the supply of water in the burn to such an extent as to render impracticable the primitive mode of collecting water now in use by dipping vessels into the natural stream, he is by no means clear that if by a drop or other artificial means the respondent were to enable the petitioner and the other villagers to get water from the burn as conveniently or more conveniently than they do at present the petitioner would have any legitimate interest to object to the respondent abstracting by a pipe some of the water for the primary purposes of life. But the motive and amount of the proposed abstraction are not, in the Sheriff-Subtitute's opinion, such as to raise that question.”

On appeal, the Sheriff ( Maitland Heriot) adhered.

The petitioner appealed to the Court of Session.

At advising—