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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v. Steuart [1878] ScotLR 16_72 (8 November 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0072.html
Cite as: [1878] ScotLR 16_72, [1878] SLR 16_72
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SCOTTISH_SLR_Court_of_Session
Page: 72↓
Court of Session Inner House First Division.
[
v.
Recompense.
Facts:
A raised an action against B, an adjoining proprietor, for a certain sum as the value of water supplied from A's lands to certain feuars and tenants of B, the supply having been introduced at a time when the lands of A and B were in the hands of one proprietor. Held that (1) A could not exact water-rates without a contract or an Act of Parliament; and (2) that he had no claim in the nature of recompense, his remedy being to cut off the supply.
Observed per Lord President Inglis that to found a claim for recompense there must be a loss to one party resulting in a gain to the other.
In 1857 Sir William Drummond Stewart made an application to the Court for power to feu part of his entailed estate of Murthly called Inchewan. He obtained that power subject to the Condition that the feu-charter to be granted should be drawn according to the form fixed by the Court. In the feu-charters granted in compliance therewith it was conditioned that Sir William should supply from another part of the entailed estate water to the feus at Inchewan, and that the feuars should pay a yearly sum for that supply of water. In 1864 he excambed that part of the entailed estate called Inchewan for certain other lands held by him in fee-simple, and from that date Inchewan ceased to be part of the entailed estate. He still went on granting feus of Inchewan with the same feu-charter as he had previously used. In 1869 he had conveyed Inchewan to Franc Nichols Steuart, the defender, and it had been held by him as his property from that date down to May 1877, when it was sold. In a previous case between these parties, July 5, 1877, ante vol. xiv., 608, 4R. 981, it had been found that in so far as regarded the feus granted before the excambion the water-rate was payable to the heir in possession of the entailed estate, and in regard to other feus granted after the excambion that as fee-simple proprietor of Inchewan Sir William had no right at all to give his feuars a water supply from the entailed estate.
Sir Archibald Douglas Stewart, the heir of entail in possession, Sir William having died in April 1871, raised the present action to obtain payment from the defender of a sum of £62, 16s. 6d., which he described as the amount due to him for water supplied to the feus from 15th May 1871 to 15th May 1877, with interest thereon, if the rates so due were calculated on the same principles as the water-rates in the feucharter previously granted under authority of the Court; or alternatively, he claimed such sum as should be fixed to represent the fair and true value of the water supply.
The circumstances will be found more fully narrated in the previous report, and below in the Lord Ordinary's note and the opinion of the Lord President.
The defender pleaded, inter alia—“The defender having only used the water which he found upon his own lands, was entitled so to do, and the pursuer having had it in his power to stop the supply if so advised, is not entitled to maintain the present claim.”
The Lord Ordinary (
Rutherfurd Clark ) assoilzied the defender, adding this note:—“ Note.—The late Sir William Steuart in order to feu Inchewan brought water to it from other parts of the entailed estate. Some feus were given off, and thereafter Inchewan was disentailed. After the disentail additional feus were granted, and to all the feu-rights, whether before or subquent to the disentail, Sir William attached the privilege of using the water which he had introduced, on payment of a certain rate.
By his last settlement Sir William conveyed Inchewan to the defender, so that he was vested with the dominium directum as regards those parts which were feued, and the dominium utile as regards those parts which had not been feued.
Sir William died in 1871. The defender ceased to be proprietor of Inchewan at Whitsunday 1877.
In July 1877 it was decided that Sir William had no power to confer on the feuars subsequent to the disentail any right to the water introduced from the entailed estate. The consequence of that decision was that the pursuer as heir of entail was entitled to cut off the water from the proprietor and feuars of Inchewan other than those whose feu-right was anterior to the disentail.
The pursuer alleges that during the period between Whitsunday 1871 and Whitsunday 1877 the defender by himself and his tenants—almost exclusively by the latter—used the water which had been introduced by Sir William Steuart, and he claims that he shall be recompensed for this use either by a rate at 5 per cent. on the annual value of the subjects which were supplied by the water, or on some other reasonable principle. He does not allege that he gave any notice of the claim until the decision of the Court was pronounced. He explains that the reason was that the defender had claimed a right to the water, and a right to levy the water-rates stipulated in the feu-contracts, whether before or after the disentail. On the other hand, the defender maintains that he continued to possess Inchewan just as his predecessor had left it, and that the only right of the pursuer was to cut off the water if he so desired.
The Lord Ordinary is of opinion that the defence is sufficient. It is not alleged on the record that any change was made by the defender, nor
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is it said that the pursuer has suffered any damage. The defender has merely made use of an artificial stream which had been introduced into his lands before he came into possession. It seems immaterial whether the stream flowed in a pipe or in an open channel. The right of the pursuer was in both cases the same, viz., to cut off. But having permitted the use, he cannot, it is thought, claim any payment or recompense.” The pursuer reclaimed, and argued—The water could not have been cut off— Blantyre v. Dunn, Jan. 28, 1848, 10 D. 509; Mackenzie v. Woddrop, Jan. 24, 1854, 16 D. 381. But there was a good claim for recompense to the extent to which the defender has been made richer by having these subjects supplied with water. The pursuer here might have made money by that which has been taken from him, and lucrum cessans is loss just as much as damnum emergens—Stair, i. 8, 6, et seq. Lord Kames in his Principles of Equity dealt with (1) considerations that entitled a man to have his loss made up out of another's gain; (2) considerations where there had been no loss that entitled participation in another's gain. It was under the second head that the pursuer's claim arose. There was no right of property claimed here, but merely a recompense for the trouble and expense of bringing the water.
The defender argued—It was assumed by the pursuer that he had a right of property in the water; that was the only ground on which he could found a claim to these rates; but water was inter res communes. The expense of bringing it had already been received by the pursuer's author, for it was taken into account in the excambion. There had been no expense or loss to the pursuer here so as to found a claim for recompense.
At advising—
The defender became proprietor of Inchewan in 1869 by disposition from Sir William Drummond Stewart, and in 1871 Sir William died, and was succeeded in the entailed estate by the pursuer of the present action, Sir Archibald Douglas Stewart. From 1871 to 1877, when the defender sold Inchewan, the pursuer never made any such claim as he now makes. That is a very unaccountable delay; and the only explanation of it that is given is to be found in the twelfth article of the condescendence—“So long as the defender claimed the said water-rate or assessment as payable to himself as proprietor of the foresaid portion of the lands of Inchewan, and until it had been decided, as it has now been, that this claim was unfounded, the pursuer was prevented from demanding payment from the defender of the sums sued for in the present action in respect of the water supplied to the parts of the said lands of Inchewan, in the personal occupation of the defender or in the occupation of his tenants.” How he was thereby prevented from making his demand I am quite at a loss to understand. Nothing could be more natural than that he should have made that demand in the previous action; it was a most appropriate opportunity for making the demand. But it is now made for the first time. During the whole interval the statement is that the defender has been using this water and giving nothing for it. Was it not a strange thing that the pursuer should not have intimated his claim? That he did not do so is not a bar to the action; but it raises a suspicion as to the justice of his grounds of action that is difficult to remove from one's mind. The first conclusion of his summons is that “the defender should be ordained to pay in respect of the water supplied from the said estates of Grandtully, Murthly, and others to that portion of the lands of Inchewan in the parish of Little Dunkeld and county of Perth of which the defender was proprietor, and which was either in his personal occupation or in the occupation of tenants under him during the period foresaid,” and it was almost entirely by his tenants that this water was used, and rates calculated in the same way as the water-rates were calculated in the feucharter granted under the authority of the Court. It is a sufficient answer to say that water-rates can only be demanded under an Act of Parliament or the terms of a contract, and we have neither of these here.
The second conclusion is in the nature of a claim for recompense. What he claims is such a sum for recompense as shall be found “to be the fair and true value of and consideration for the water supplied from the pursuer's entailed estates foresaid to the said lands of Inchewan belonging to the defender, and occupied by him or his tenants for the period from 15th May 1871 to 15th May 1877.” Now, there is an obediential obligation of recompense well known to the law, but that obligation is founded on this—that the party making the demand has been put to some expense or some disadvantage, and by reason of that expense or disadvantage there has been a benefit, created to the party by whom he makes the demand of such a kind that it cannot be undone. The best and most familiar example of that is the case of one building on another's land. But in every case there must be, in order to ground the claim, the loss to one party resulting in a benefit to the other.
Now, the only expenditure here is the expenditure made by Sir William Drummond Stewart when heir-of-entail in possession of Inchewan for bringing in the water supply to Inchewan. That was most legitimately incurred for the purpose of benefitting a portion of the entailed estate. It does not appear upon the record that that expense was charged upon the entailed estate. I have little doubt it was, and it might certainly have been most properly so charged as a benefit to the rest of the entailed estate and the succeeding heirs. It improved the lands of Inchewan, and these passed into the possession of a third party by excambion. Now, that is the only expense incurred here. It is no doubt maintained that the commodity—the water — has a marketable value, and that if it had not been supplied to the defender and his tenants it might have been going elsewhere to the benefit of the pursuer. The defender had no right to prevent diversion of the water. The pursuer could have diverted it when he pleased, and can divert it now by cutting it off from these houses. In the case I have put of a house built on another man's land, the house must remain there, but the benefit said to be given to Inchewan by this water can be taken away. The simple view of the Lord Ordinary seems to be the correct one,
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The Court adhered.
Counsel for Pursuer (Reclaimer)— Balfour— Mackay. Agents— Dundas & Wilson, C.S.
Counsel for Defenders (Respondent)— M'Laren— Murray. Agents— Tods, Murray, & Jamieson, W.S.