Scottish Court of Session Decisions

The Dighty water rises in the Lochs of Lundie, to the north-west of Dundee, and flows in an easterly direction till it falls into the sea a little west of Monifieth. The Fithie burn, rising in the Sidlaw Hills, pursues a southerly course and falls into the Dighty at an angle of about 60 degs., a few feet west of the Brechin or Pitkerro Road Bridge. Messrs M'Intyre Brothers were proprietors of lands to the south of the Dighty and to the west of the Brechin Road called the lands of Ballunie, and used by them as bleaching fields, the northern boundary of these lands being the medium filum of the Dighty. The Dighty above the junction had for more than 40 years prior to 1889 been used for manufacturing purposes, especially for bleaching, there being several works above that point, and had been much polluted. The Fithie, which is a much more rapidly flowing stream than the Dighty, and whose volume at the junction is equal to from one-third to one-half the volume of the Dighty, had remained comparatively pure and did much towards purifying the Dighty below that point. For some yards below the bridge the two

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streams can be distinguished by their different colours.

In August 1888 Messrs M'Intyre Brothers placed a box or tank in the bed of the stream a few feet to the west of the bridge. This box was covered with an iron grating and was sunk 4 or 5 inches below the gravel which formed the bed of the stream. By means of it the combined water of the Fithie and Dighty in an almost pure condition was obtained by the Messrs M'Intyre Brothers for their works. The water was led by a trough from the box into a tank, and thence by a pipe running westwards or up stream for 1150 feet, where it was discharged into a sunk well from which it was pumped up into reservoirs for use in the works. The difficulty of the gradient, which was not steep, was thus overcome. After being used in the works the water was returned to the Dighty by outlets situated about two-thirds of a mile above the point from which it had been drawn undiminished in quantity but considerably polluted.

In the beginning of 1889 Robert M'Gavin of Ballumbie, whose lands of Baldovie were bounded on the south by the Dighty and on the east by the Fithie, and Douglas Drummond Dick of Pitkerro, and others, riparian proprietors on the Dighty below its junction with the Fithie, brought a note of suspension and interdict against the Messrs M'Intyre Brothers to have them interdicted and prohibited “(1) from altering or otherwise interfering in any way with the bed or alveus of the Dighty water and of the Fithie burn, or either of them, either above or below their junction: and (2) in particular from removing stones, shingle, or gravel from the bed or alveus of said stream or streams, and also from removing stones. shingle, or gravel from any one part of the bed or alveus of said stream or streams to any other part of said bed or alveus; and (3) from placing in or upon the bed or alveus of the said stream or streams any tank, box, pipe, drain, or other opus manufactum; or at least (4) from placing in or upon the bed or alveus of the said stream or streams any such tank, box, pipe, drain, or other opus manufactum except at such part or parts of said bed or alveus as shall be entirely within their own property, as bounded by their titles, or by the medium filum of the said Dighty water; and (5) from abstracting the water of said streams, or either of them; and (6) from detaining and arresting the water of said streams, or either of them, and preventing the same running uninterruptedly and continuously in its natural course through or past the complainers' lands; and (7) from using any conduit, aqueduct, or other opus manufactum, whereby the water of the said stream or streams may be made to regorge into tanks or reservoirs at the respondents' works at Ballunie bleachfield, and there be detained or arrested for use in their processes of bleaching, or otherwise, and may be prevented from continually running in the said bed or alveus, through or past the complainers' lands; and (8) from discharging any refuse from their bleach works, or other deleterious and noxious or impure stuff of any kind into said stream or streams, whereby the said stream or streams may be polluted or rendered unfit for agricultural and manufacturing uses and purposes, or its amenity diminished, or the property of the complainers in any way injured; and further, to ordain the respondents to remove all tanks, boxes, pipes, drains, or other opera manufacta, erected or placed by them in or upon the alveus or bed of said stream or streams, and to fill up all excavations made by them in the said alveus or bed, and to restore the said alveus or bed to the state in which it was prior to the operations of the respondents thereon.”

The complainers averred (Stat. 15) that the respondents, by the operations explained above, “have most injuriously affected the property of the complainers. They have caused erections to be made in alveo of the said Dighty water and Fithie burn, and have disturbed the alveus of the said streams ex adverso of the property of the said Robert M'Gavin and Douglas Drummond Dick, and have altered the course of the said streams. They have by their said operations encroached upon the property of the said Robert M'Gavin and Douglas Drummond Dick. They have, by abstracting and storing the water of the Fithie before it has joined the Dighty, interrupted the accustomed and continuous flow of said stream or streams. By returning to the Dighty said abstracted water, polluted by the refuse of their bleachwork, they have materially increased the pollution of the Dighty below its confluence with the Fithie to such an extent that whereas prior to the year 1887 the combined water of the Dighty and Fithie was, below the junction of the said streams, available for the secondary purposes of agriculture and manufactures as it passed through the complainers' lands, it is now rendered deleterious to animal life, and noxious and offensive to sight and smell, and unsuitable for manufacturing purposes. The amenity of the complainers' properties, and particularly the policies of Linlathen House, through which it passes within a short distance of the mansion-house, has been thereby injuriously affected, and the value of the complainers' properties has been thereby deteriorated.”

The respondents answered—“Denied. Explained that the operations complained of were conducted entirely to the south of the medium filum of the Dighty. They could not possibly alter the bed of the river or affect the flow of the water. The water drawn by the respondents was insignificant in amount, and was all returned to the river before it left the respondents' property. The said operations did not and could not produce any greater pollution in the water flowing past the complainers' properties or works than had previously existed.”

The complainers pleaded—“(1) The respondents not being entitled to erect or place any opus manufactum in or upon the alveus of the Dighty ex adverso of their

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lands, interdict should be pronounced as craved. (2) Separatim—The respondents not being entitled to erect or place any opus manufactum in or upon the alveus of the Dighty or Fithie beyond the boundary of their own property, whether that be an artificial line or the medium filum of the stream of the Dighty, or of the conjoined stream of the Dighty and Fithie, as it passes their property, interdict should be pronounced as craved. (3) The respondents not being entitled to abstract the water of the Fithie, or of the combined stream of the Dighty and Fithie, or to retain and store the same, and interfere with the accustomed and continuous flow of the said stream or streams, interdict should be pronounced as craved. (4) The respondents having, by their operations complained of, materially increased the pollution of the combined stream of the Dighty and Fithie, to the loss and injury of the complainers, interdict should be pronounced as craved.”

The respondents pleaded—“(5) The respondents' operations in alveo having been confined to their own side of the medium filum, and having been of such a nature as could not by possibility affect either the bed of the river or the flow of the water, the complainers are not entitled to complain of the same. (6) The whole water drawn by the respondents being returned by them to the stream at a point higher up than where it is drawn, and before the river leaves the respondents' property, the respondents are entitled to continue the use of the water as presently possessed by them. (7) The respondents operations having no effect whatever in increasing the pollution of the water passing the complainers' properties or works, the Note of Suspension ought to be refused. (8) The complainers are not entitled to complain of the polluted state of the Dighty, in respect that it has been polluted by public works for more than forty years, and it is now polluted by complainers and others along its entire course from below the Lochs of Lundie to the sea.”

Upon 19th March 1889 a remit was made to Mr William Allan Carter, C.E., to examine the works complained of, to prepare plans of the locus, and to report, and upon 21st May 1889 the Lord Ordinary pronounced the following interlocutor:—“On caution, passes the note, and meantime interdicts, prohibits, and discharges the respondents, and all others acting with their authority, from using the conduits, aqueducts, or opera manufacta mentioned in Mr Carter's report, or any of them, for the purpose of withdrawing water from the stream or streams mentioned in the note of suspension, and conducting the same into the tanks or reservoirs at the respondents' works, or from erecting or using any similar conduit, aqueduct, or opus manufactum for the said purpose.

Upon 14th June 1889 the record in the note of suspension and interdict was closed and a proof allowed.

The import of the evidence as to the quantity of water withdrawn, the additional pollution, and the effect of the respondents' operations upon the flow and quality of the Dighty, sufficiently appears from the Lord Ordinary's note, and from the opinion of the Lord Justice-Clerk.

The evidence as to whether the box was an encroachment upon the lands of the complainers, Robert M'Gavin and Douglas Drummond Dick, or either of them, as being beyond the medium filum of the Dighty, was conflicting, the skilled witnesses differing as to the method to be employed in determining the line of the medium filum at that point.

For the complainers Mr George G. M'Laren, surveyor, Dundee, deponed—“In judging of the medium filum of the stream, I find that it passes through the existing box, in my opinion. In ascertaining the medium filum, I would take the average centre between the two banks for a considerable distance up-stream and downstream, drawing a line through those points until they joined. In the present case you have an artificial interference with the natural condition of the stream—in the shape of the pier of the bridge. … In taking the medium filum where there is such an obstruction as that, you may either eliminate the artificial obstruction and take what the course of the stream would have been but for it, or you may take it as it is there. I have shown the medium filum here on the assumption that the pier was not there, which in my opinion is the fair way to take it… . In order to ascertain the point where the media fila of the two streams join, assuming the pier of the bridge is to be entirely eliminated, I should think the medium filum of the Fithie would pass through and join the Dighty at a point to the eastward of the bridge altogether… . Again, supposing the bridge is there, I should take the medium filum of the Fithie through the north arch entirely, it is the natural flow of the Fithie. In the same way I adhere to the medium filum of the Dighty as I have shown it on the plan. They would not join till the two streams were quite united below the bridge, and then I would start a new medium filum for the combined streams.”

Mr James M'Laren, surveyor, Dundee, deponed—“In point of fact I ascertain the medium filum above and below, and unite them as if there had been no such thing as the pier of the bridge there. I would consider that to be the correct way of ascertaining the medium filum. That being so, the proper medium filum passes through the existing box… . The line representing the medium filum of the Fithie goes quite straight. If you straighten the medium filum of the Dighty it will meet that of the Fithie very near the centre of the box. I can conceive no reason for making the medium filum of the Dighty trend northwards except some idea of the cut-water of the bridge being somehow to be taken as the centre of the stream, which I think is erroneous, because practically the Dighty flows all through the one arch.”

Mr G. Miller Cunningham, C.E., deponed—“I understand the medium filum is to be determined by taking the average width of

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the waterway for some distance up and down the stream in its ordinary flow. In doing so I do not take artificial encroachments into consideration, such as watering-places for cattle, or jetties projecting out into the stream. In fact, it is just an average taken in sections of the stream, and the longer stretch you can get the better. I should not consider a bridge as interfering with the medium filum, but would take the flow of the water on the assumption that the bridge was not there. In my opinion the red line upon plan No. 67 correctly indicates the medium filum of the Dighty. It strikes through the existing box at A. Where there is a junction of two streams as here, each stream has a medium filum. (Q) How would you deal with the part of the water after you have passed the angle of land between the two streams?—(A) I would lay down a medium filum for the Fithie in the same way as that for the Dighty until it meets the medium filum of the Dighty. Until the two have met I consider there could not be a single medium filum for the stream. I think the only way when you have two streams joining is to take their media fila, and prolong them till the one meets the other.”

For the respondents Mr W. Allan Carter, C.E., deponed—“I prepared a plan on which I laid down what in my opinion is the correct line of the medium filum. I show the box, marked A, with its connections, to the south of the medium filum. I arrived at the medium filum in this way—Going a certain distance up the Dighty westward, I divided what appeared to me to be the natural and normal bed of the stream, putting the medium filum in the centre of it. I took a central point a short distance before I came to the spit of land at the south-east corner of Mr M'Gavin's property, and took a central point there again, running right across to the southern bank, and I drew in my line between those two points. Then, going further east, having no bank to measure from opposite the mouth of the Fithie, the next fixed point I was able to obtain was the centre of the pier of the bridge—that is, the centre of the available waterway between the abutments of the bridge. I carried my line through the centre of that pier, dividing the bridge into two equal parts. I have carried my medium filum no further eastwards. It would have made no difference if the bridge had had a single span. It is a mere accident that my line happens to come to the point there.”