Scottish Court of Session Decisions

Lord Blantyre, the pursuer of this action, was proprietor of the barony of Kilpatrick, in the county of Dumbarton, and of a loch known as Loch Fyn therein, and of 44 of the 64 acres of Loch Humphrey, lying partly therein. The two lochs practically formed one loch, being connected together by a burn called the Black Burn. The waters from the lochs flowed away by the Humphrey Burn through Lord Blantyre's lands, serving on their course the purposes of several mills, until they ultimately, under the name Duntocher burn, flowed into the Clyde.

In 1849 Lord Blantyre entered into a minute of agreement with Alexander Dunn, whose cotton-mills were situated on his own lands adjoining those of Lord Blantyre. By this agreement Lord Blantyre agreed to grant an absolute disposition to Dunn and his heirs and assignees of his mills on Duntocher Burn (the name of the lower part of the Humphrey Burn), and also the pieces of ground particularly therein described, with his whole rights of water and water-power, and other rights connected with said lands and mills, including all rights he had to dam up and draw water from the two lochs, or to form embankments at them, and also including the right to take materials for their formation and maintenance, in consideration of which Lord Blantyre was to receive an absolute disposition of certain lands, and a sum of £2000, “whereupon the said Alexander Dunn shall have right to use and manage the dams and sluices at the two lochs and the water in the Duntocher Burn at his pleasure.” The seventh article of this agreement ran as follows:—“Lord Blantyre reserves to himself and his successors all his rights in the foresaid lochs and Burn, except his rights therein connected with his said mills, and with the pieces of ground to be conveyed to Mr Dunn as aforesaid, and other rights hereby agreed to be conveyed to Mr Dunn; and particularly, without prejudice to this general reservation, he reserves his right to use the water of the said burn for all ordinary domestic and agricultural purposes, including the driving of agricultural machinery or the supplying of steam-engines to drive the same (any water that may be so taken for driving such machinery being returned into the burn, so as not to interfere with the right of servitude hereby agreed to be granted); and he also reserves the right of watering cattle in the intended dam at Pedlars Steps, and of drawing water therefrom for the use of his fields and any houses he may build near thereto, but no greater quantity of water to be so taken than will pass through a pipe one inch in diameter, and the exclusive right of fishing, shooting, and boating in or on the same.”

In pursuance of this agreement Lord Blantyre executed a feu-disposition in favour of Dunn, whereby he sold and disponed to him lands belonging to him, part of his estate of Kilpatrick; and, in the third place, he sold “All and whole my whole rights of water and water-power, and other rights connected with the mills hereby disponed, including all right to dam up and draw water from the two lochs, or to form embankments or breastworks at the said lochs.” He further bound himself not to divert the water surrounding the lochs, and which flowed into them and was the source of their supply. Dunn was also to have full right of access through Lord Blantyre's lands at all times when necessary for working the sluices on the said lochs or for repairing the same or the dams connected therewith. By disposition dated 9th November 1827 Mr Buchanan of Auchintorlie, the proprietor

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interested in so much of Loch Humphrey as did not belong to Lord Blantyre, had conveyed to William Dunn, who was a brother and predecessor of Alexander Dunn, and who possessed mills on the Duntocher Burn, “All and whole the waters of Loch Humphrey situated in the parish of Old Kilpatrick and sheriffdom of Dumbarton, so far as I or my foresaids have right thereto.” The rights of the Dunns were conveyed to the defenders in this action as explained by the Lord Ordinary infra.

In 1883 the Provost, Bailies, and Councillors of the burgh of Dumbarton, constituted by the Dumbarton Waterworks Reclamation and Municipal Extension Act 1857, and by the Dumbarton Waterworks and Municipal Act 1869, and by the Dumbarton Waterworks, Streets, and Buildings Act 1853, introduced into Parliament a bill, which subsequently passed into law as the Dumbarton Waterworks, Streets, and Buildings Act 1883. Section 8 of the Act empowered them to appropriate the waters of the two lochs, and of the Black Burn and all streams flowing into them for domestic and other purposes. By section 9 of the Act it was provided that “the Water Commissioners shall, as soon as the waterworks authorised by this Act are completed so far as to be able to afford the supply of compensation water hereinafter mentioned, cause to be discharged from the reservoir by this Act authorised, down the stream called Loch Humphrey Burn, a regular and continuous flow of not less than three hundred and twenty thousand gallons in every day (Sundays excepted) of twenty-four hours, and if the Water Commissioners shall commence and continue to discharge from and out of the said reservoir the due quantity of water in manner aforesaid, the same shall be deemed to be compensation to millowners and other persons interested in the waters flowing down the said stream called Loch Humphrey Burn and the stream called Duntocher Burn for the water intercepted and appropriated for the purposes of this Act.”

This clause had been disputed before Parliament, and Lord Blantyre successfully opposed the bill in so far as to get the amount of compensation water proposed by the promoters (viz., 270,000 gallons per day) raised from that quantity to 320,000 gallons.

Section 10 of the said Act provided—“Nothing in this Act contained shall be held to prejudice or affect the rights (if any) of the Right Honourable Charles Stuart Lord Blantyre in the loch known as Loch Humphrey, or to prevent him from claiming from the Water Commissioners compensation for any such rights which shall be injuriously affected by anything done by the Water Commissioners under or for the purposes of this Act.”

By section 32 of the Act it was provided—“That the proprietors for the time being of Kilpatrick and Auchintorlie, and their families and visitors, or persons with their written authority, should have exclusive right of fishing, shooting, and sporting, and of keeping and using pleasure-boats, and skating and curling in and over Loch Humphrey, but so as not to injure the embankments or pollute the waters of the loch; that the said proprietors should be entitled to protect the loch from trespassers, provided always that the right of curling and skating should be personal to the proprietors, and not transferable for money consideration.”

On 14th June 1884 the Dumbarton Water Commissioners, in pursuance of the provisions of their said Act and of the Lands Clauses Consolidation (Scotland) Act 1845, served a notice on Lord Blantyre intimating that a portion of ground belonging to him, and shown on a plan accompanying said notice, was required to be taken and acquired absolutely by them, and that in regard to a further portion of ground, also shown on said plan, they required to take and acquire a right of servitude or way-leave as described in said notice. They further gave him notice that they demanded from him the particulars of his interest in the said land or property so to be taken, and of the claims made by him in respect thereof, and that they were willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that might be sustained by him and them by reason of the works authorised by the said first-mentioned Act. He accordingly on 2d July 1884, referring to said notice, and in answer, to the call made thereby, and under reservation of his right to object to the sufficiency of said notice, stated the particulars of his claim. He averred, inter alia, that by the acquisition of the lands and way-leaves the Water Commissioners would be in a position to abstract water from Loch Humphrey and from the burn flowing therefrom, with the result that his rights and interest would be most injuriously affected. In respect of the land taken, and for the damage to be sustained by him, or in consequence of the works of the said Water Commissioners, he claimed the sum of £7000.

These claims were objected to by the Water Commissioners, and an arbitration took place under the Lands Clauses Act 1845. The reference ultimately devolved on Mr James Arthur Crichton, Sheriff of Fife, the oversman. By his award, he found, in the first place, that the sum of £50 was to be paid by them to Lord Blantyre “for or in respect of the land taken and the way-leave or servitude set forth in the notice of the Dumbarton Waterworks Commissioners before narrated, and for the rights to be obtained by them, and for all other damage to be sustained by him or in consequence of the works of the said Dumbarton Waterworks Commissioners under his said claim, other than his claim for the rights or damages on the assumption after mentioned. And in the second place, in the event of its being admitted or judicially determined that the said Lord Blantyre had at the date of the foresaid statutory notice retained any right or interest in the waters of Loch Fyn and Loch Humphrey, and the streams called Loch Humphrey Burn and Duntocher Burn, or any of them, and that he is now entitled to compensation in respect of such right or interest notwithstanding the provisions contained in sections 9 and 10 of the said Dumbarton Waterworks, Streets, and Buildings Act 1883, or either of them, I hereby find and determine the sum of £3000 to be the amount to be paid by the said Dumbarton Waterworks Commissioners to the said Right Honourable Charles Lord Blantyre for or in respect of the right or interest to be acquired from the said Lord Blantyre by the said Dumbarton Waterworks Commissioners in the foresaid waters, and the embankments at said Lochs Humphrey and Fyn, and the right to intercept and to appropriate the said waters, and for the damage to be sustained by

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him by or in consequence of the work of the said Dumbarton Waterworks Commissioners, and that over and above the said sum of £50, including in said sum of £3000 the sum of £1650 as the estimated price or value of the embankments made at Loch Humphrey and Loch Fyn.”

The Water Commissioners were willing to pay the £50 mentioned in the first part of the award, and the question in this action (though raised by Lord Blantyre for the two sums) was, whether the defenders were bound to pay the £3000 conditionally found due in the second part of the award? The pursuer (article 10 of his condescendence) maintained that he was so entitled “in respect that at the date of the said statutory notice he had rights or interests in the waters of the said lochs or streams, or of some one or more of them;” and he pleaded—(2) The pursuer is entitled to payment of the said sums of £3050, with interest, as concluded for, in respect that at the date of the said statutory notice he had rights or interests in the waters of Loch Fyn, Loch Humphrey, and the streams called Loch Humphrey Burn and Duntocher Burn, or in one or more of them, and that he is entitled to compensation in respect thereof notwithstanding the provisions of sections 9 and 10 of the defenders' Act of 1883, or either of them. (3) The defenders having, in virtue of their said Act, interfered with the pursuer's water rights, reserved to him under the agreement and feu-disposition set forth on record, and his right to claim compensation in respect of said interference being specially reserved to him by said Act, he is entitled to payment of £3050, being the amount of said compensation as now assessed by the oversman.”

The defenders denied that the pursuer and his predecessors had and did maintain a dam on Loch Fyn or an embankment on Loch Humphrey, and worked the sluices there. They referred to the terms of the agreement and feu-disposition to Alexander Dunn granted by the pursuer, and stated—“The said agreement and feu-disposition contained a general reservation in the pursuer's favour of what is not conveyed, but the only rights specially referred to in the clause of reservation are (first) a right to the pursuer to use the water of the Loch Humphrey Burn for ordinary domestic and agricultural purposes, any water so taken being returned into the burn, (second) the right of watering cattle and of drawing water therefrom through a one-inch pipe, (third) the right of fishing, shooting, and boating on the intended dam. Since the date of the agreement Alexander Dunn and his representatives have had the exclusive control of the sluices on Loch Humphrey and Loch Fyn, and they have maintained and largely rebuilt and strengthened the reservoir. The embankment of Loch Humphrey was reconstructed, and large iron pipes with the necessary sluices upon them were put in, all at the expense of Mr Dunn. Since said date the pursuer has had no control of said sluices, nor has he spent any money upon them or the embankments.” As regards any claim for the value of the solum of the loch, they averred that they had taken no part of it, and the pursuer was under obligation not to drain the loch. As regards the claim for the value of 200-horse-power of water for use in a mill, the pursuer, according to the agreement and feu-disposition, could only use the water for domestic and agricultural purposes, and according to section 9 of the statute the compensation water of 320,000 gallons per diem was declared to be compensation to persons interested in the waters flowing down the stream.

The Lord Ordinary ( Fraser) decerned against the defenders for the sum of £50, with interest from 3d December 1884: Quoad ultra assoilzied them from the other conclusions of the summons, and decerned.

“ Opinion.—The object of this action is to obtain payment of a sum of money found due to the pursuer Lord Blantyre under a submission entered into between him and the defenders. The claim of the pursuer arises out of the action of the defenders in supplying the town of Dumbarton with water. The defenders are the Dumbarton Waterworks Commissioners, acting under an Act of Parliament, the 8th section of which authorises them to divert, appropriate, and distribute for the purposes of their Act the [waters of the] two lochs called Loch Fyn and Loch Humphrey. They are bound to make compensation for any property which they take for the purposes of their Act to the owners of such property, in terms of the Waterworks Clauses Act 1847 (10 Vict. cap. 17), and the mode of ascertaining the compensation so to be made is under the Lands Clauses Consolidation (Scotland) Act 1845. It was under this last Act that the submission was entered into to two arbiters, who did not issue an award within the statutory period of three months, and consequently the duty fell upon the oversman Mr James Arthur Crichton, whose award it is now sought to enforce. The oversman by his award has found two sums of money to be due to the pursuer—the one absolutely and the other conditionally. He has found that the sum of £50 shall be paid by the defenders to the pursuer ‘for or in respect of the land taken and the way-leave or servitude set forth in the notice of the Dumbarton Waterworks Commissioners before narrated, and for the rights to be obtained by them, and for all other damage to be sustained by him by or in consequence of the works of the said Dumbarton Waterworks Commissioners under his said claim, other than his claim for the rights or damages on the assumption after mentioned.’ About this sum of £50 there is no dispute. The defenders tender payment of it.

It is in regard to the second head that the parties are not agreed.

Before construing this portion of the award it is necessary to explain some matters connected with the two lochs from which the defenders draw their water. These lochs are called Loch Fyn and Loch Humphrey, which are connected together, and indeed constitute one loch. The proprietors of these lochs are, or were, Lord Blantyre and Mr Buchanan of Auchintorlie. The water from the lochs flowed away by a burn down through the lands of the pursuer, serving on its course the purposes of several mills. Ultimately the burn went into the Clyde. In the year 1854 Lord Blantyre executed a feu-disposition in favour of Alexander Dunn, whereby he sold and disponed to Dunn lands belonging to him, part of his estate of Kilpatrick; and in the third place he sold ‘All and whole my whole rights of water and water power, and other rights connected with the mills hereby disponed, including all right I have

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to dam up and draw water from Loch Humphrey and Loch Phin, or to form embankments or breastworks at said lochs.’ Lord Blantyre further bound himself not to divert the water surrounding the lochs, and which flowed into them, and was the source of their supply. Alexander Dunn, the feuar, was also to have full right of access through Lord Blantyre's grounds ‘at all times when necessary for working the sluices on the said lochs, or for repairing the same or the dams connected therewith.’

Thus Dunn obtained a title to all Lord Blantyre's rights to the water in the two lochs. William Dunn, Alexander Dunn's brother, had previously obtained right by disposition dated 9th November 1827, executed by Mr Buchanan of Auchintorlie, to ‘All and whole the waters of Loch Humphrey, situated in the parish of Old Kilpatrick and sheriffdom of Dumbarton, so far as I or my foresaids have right thereto.’ Thus the Dunns became the owners of all the waters in these lochs, and their representatives by disposition in 1885 conveyed over to the defenders, on the narrative of their Act of Parliament, ‘All and whole our whole right, title, and interest, present and future, in Loch Humphrey and Loch Fyn, the streams connecting these lochs, and the stream known as Loch Humphrey Burn, all situated in the county of Dumbarton, with our whole water rights and water privileges in said lochs and streams, including all right we have to dam up and draw water from said lochs or streams, or to form embankments or breastworks at said lochs or streams, together also with the embankments, breastworks, sluices, and other erections connected with said lochs already erected, in so far as we have right to the same, ’ &c. Therefore the defenders have obtained right to the water in Loch Humphrey and Loch Fyn as ample as Lord Blantyre or Mr Buchanan of Auchintorlie had, and this they did by means of private contract, and not in virtue of the exercise of compulsory powers granted by Act of Parliament.

The Act of Parliament was passed on 2d August 1883, and it contains in the 9th section a special clause in reference to compensation to be made by the defenders for the water appropriated by them for their water works.—[ Quotes 9 th clause]. This clause was adjusted before Parliament (as narrated by the pursuer in the 6th article of his condescendence). He opposed the passing of the bill, and was successful in getting the amount of compensation-water proposed by the promoters, viz., 270,000 gallons per day, raised from that quantity to 320,000 gallons. The clause says that this quantity of water (which admittedly has been given by the defenders) is to be ‘deemed to be compensation to mill-owners and other persons interested’ in the waters ‘flowing down the said stream called Loch Humphrey Burn and the stream called Duntocher Burn, for the water intercepted and appropriated for the purposes of this Act.’ The pursuer contends that he is not included within the class of persons to whom the water compensation is said to be sufficient. Why not? The words are ‘mill-owners and others.’ He of all persons is interested in the water, and it was on the footing that he was interested in it that his title to oppose was sustained.

But then there follows another clause which the pursuer was successful in getting inserted in the Act of Parliament in the following terms (section 10)—[ Quotes 10 th clause]. This section has two limbs — 1st, The rights of the pursuer in the loch are not to be prejudiced or affected by the provisions of the Act; 2dly, None of the provisions of the Act are to prevent him from claiming from the Water Commissioners compensation for such rights of his which shall be injuriously affected—that is, rights in the loch. Now his rights to the water in the loch were conveyed away to Dunn, whose representatives conveyed them to the defenders. There are indeed certain other rights in Loch Humphrey which are specially saved by section 32 of the Act. The proprietors of the estates of Kilpatrick (the pursuer) and of Auchintorlie (Mr Buchanan) have reserved to them the exclusive right of fishing, shooting, and sporting, and of keeping and using pleasure boats, and of skating and curling over Loch Humphrey. These privileges are declared to be personal to the proprietors, their visitors, and friends; and it was declared not to be lawful to lease these rights to any person for pecuniary consideration. What other rights in the loch could be contemplated under section 10 is nowhere explained, nor is any intelligible explanation made upon the subject anywhere except that it is pointed out that the solum is not conveyed by the pursuer and Mr Buchanan. But this cannot be what was intended—if anything was intended—because the solum is worth nothing. In order to get at it the whole water must be pumped away, and it must cease to be a loch. But the pursuer and Mr Buchanan cannot pump away water which they have sold for good consideration to the defenders' authors.

It was in these circumstances that the pursuer appeared before the oversman and insisted upon certain claims which he required him to entertain. He demanded compensation for his right and interest in the waters of the lochs; also for his right and interest in the embankments of these lochs; also for the right conferred upon the defenders to intercept and appropriate the waters of the lochs; and he further made a claim for damage. These claims were all objected to by the defenders. They involved questions of law which the oversman had no power to determine; but he proceeded quite rightly to value them, upon the assumption that a court of law would sustain them. He expressed no opinion as to their validity though he valued them. It now falls to be considered whether any of them are maintainable in law.

The oversman's deliverance was in the following terms—[ His Lordship quoted the award as given above]. This is a conditional finding, and requires two things to be admitted or judicially determined, viz.—(1) That Lord Blantyre had a right or interest in Loch Humphrey and Loch Fyn, and the streams called Loch Humphrey Burn and Duntocher Burn; and further (2) that he is now entitled to compensation. He may have an interest, but unless he is to have compensation for that interest the finding is not to take effect. Now, so far as regards the loch, there can be no doubt that Lord Blantyre and Mr Buchanan of Auchintorlie had very material interests, because the rights of fishing, shooting, boating, skating are specially reserved to them under the 32d section of the special Water Act; but this clearly was not the kind of interest which the oversman had in his mind, seeing that a statutory enactment did not

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require to be admitted or judicially determined. What other interest had he, then, in the loch that could be made the subject of compensation? The water had been all conveyed away to Dunn, and to the defenders, Dunn's disponees, and although the solum remained, that was a subject of no value, which the pursuer could not get at, except by pumping away the water which did not belong to him. Therefore the solum could not be the subject of compensation.

Then what interest had he in the burn flowing from the loch? In the conveyance to Dunn of the water in 1854 there is a reservation of the pursuer's rights generally ‘and particularly, without prejudice to this general reservation, our right to use the water of the said burn for all ordinary domestic and agricultural purposes, including the driving of agricultural machinery, or the supplying of steam-engines to drive the same.’ But then this interest in the burn is made the subject of compensation under the 9th section of the Act of Parliament, for which compensation has been made.

Therefore, taking the first part of the finding of the oversman, the result is, that so far as regards the loch and the burn, the pursuer has no interest for which a claim can be made.

But assuming that he has such an interest, in respect of what is the £3000 given? It is the right or interest to be acquired from Lord Blantyre in the lochs and burns. No right or interest was acquired from Lord Blantyre under the statute. The right or interest had been acquired and paid for in the year 1854 by Dunn. No embankments had been acquired by the defenders from Lord Blantyre. The embankments were necessary to make the loch, and are part and portion of the loch. In regard to these embankments, for which £1650 are allowed by the oversman, very little information is given by the parties. The pursuer avers that he and his predecessors made the embankment, but that is met by a denial on the part of the defenders.—‘Denied that the pursuers and his predecessors had and maintained a dam on Loch Fyn, or an embankment on Loch Humphrey.’ It appears that there was a dam or embankment round the lochs; but the averment of the defenders is, that William Dunn ‘enlarged and improved and repaired said dams and sluices connected therewith, and Lord Blantyre had no control of the said dams and sluices, nor did he spend any money upon them.’ The conveyance to Alexander Dunn contained a right to form embankments or breastworks. Now, if the defenders are not bound to pay for the water that they take from the lochs, they are not bound to pay for the embankments which are necessary for the existence of the lochs.

In the next place, the oversman gives the £3000 in respect of ‘the right to intercept and to appropriate the said waters,’ which is nothing different from the right to ‘the foresaid waters,’ with which the award has already dealt. If the words here mean the interception of the burn for the defenders' waterworks, the answer is that that has been already compensated for by compliance with the 9th section of the Act of Parliament.

Then comes an allowance ‘for the damage to be sustained by him by or in consequence of the work of the said Dumbarton Water-Works Commissioners.’ As regards this head, there is no information whatever on the record, nor in the claim by the pursuers submitted to the arbiters, and therefore it is a claim that cannot be sanctioned.

It is unfortunate that the oversman did not specify what sum he allotted for each of the matters that he considered the subject of compensation, further than that he allows £1650 for the embankments, leaving the balance of the £3000 to be distributed among the other subjects referred to by him. In the view that the Lord Ordinary takes of the matter this is of little consequence, because he is of opinion that the whole of this award of £3000 should be disallowed, but it may happen that a different opinion may be entertained, and that certain of the items may be sustained as a ground of compensation while others are not; and as there are no means of ascertaining how much was allowed for one item, and how much for another, the whole £1350 runs great danger of being disallowed in toto.”

The pursuer reclaimed.