Scottish Court of Session Decisions

The Molendinar Burn has its source in Hogganfield Loch. Immediately after leaving the loch it flows in a westerly direction through the Hogganfield Bleach Works, and on leaving the said works it flows through the lands of Riddrie Park and Provan Mill, possessed by Duncan Stevenson.

Duncan Stevenson raised an action of declarator and interdict against the Hogganfield Bleaching and Finishing Company, inter alia, to have it declared “that the pursuer has good and undoubted right to the whole water of the said stream as it flows out of Hogganfield Loch, and that the defenders have no right to diminish that quantity in any way, nor to cause the said stream nor any part thereof to flow other than past, through, or over the lands of the pursuer,” and to have the defenders interdicted “from diminishing in quantity the water of the said stream, or from causing the said stream or any part thereof to flow in any way other than through, past, or over the lands of the pursuer.

A proof was led before the Lord Ordinary (Low), which showed that in 1890, in consequence of threatened action by the Public Health Local Authority of the Barony Parish, the defenders made important alterations in their works with a view of mitigating the pollution of the stream caused by them. Prior to that date they had discharged the liquid waste matter into the stream, but they then made a connection between their works and the public sewer, and made arrangements for pumping into the sewer all the waste liquid, with the exception of the water used for washing goods and for cleaning the starching mangle. The defender's evidence showed that the following quantities of water taken from the stream were pumped into the sewer, viz., 400 gallons daily, used for boiling the cloth in the kiers, and 400 gallons twice a week used in the scouring machine. The defenders, however, led evidence to show that about 5000 gallons of water from the Loch Katrine Water-supply were used daily in their works, and that most of that water, after being so used, was sent into the burn.

On 26th April 1892 the Lord Ordinary pronounced an interlocutor finding, inter alia, “(4) that the amount of water from the said stream which is pumped by the defenders into the public sewer is not sufficient to prejudice in any material degree the pursuer's right to have the water of the stream transmitted to him undiminished in quantity.

“ Note.— … The pursuer also seeks to have the defenders prohibited from pumping any part of the water of the stream into the public sewer. … To prohibit the operation would, I think, practically amount to stopping the works altogether, and would require strong reasons to justify it. The water pumped into the sewer is only what is used in the boiling kiers and in the boxes which contain chemical solutions. The total amount of water so used is not large, nor, in my opinion, sufficient to affect appreciably the normal flow of the stream. When the stream is very small the defenders require to use a considerable quantity of Loch Katrine water, which is put into the stream. I think that when the stream is so low as to be appreciably affected by the water which is pumped away more Loch Katrine water will be put into the stream than the amount abstracted. In view, therefore, of the whole circumstances I do not think that such an amount of water is pumped into the sewer as to encroach upon or prejudice in any material degree the pursuer's right to the stream transmitted to him undiminished in quantity.” …

The pursuer reclaimed.

At advising—