Scottish Court of Session Decisions

In 1886 the Gilmerton Gas Coal Company, Limited, entered into possession of the lands of Gilmerton Colliery, situated in the parish of Liberton and county of Edinburgh. Part of these lands was bordered by a stream called the Dean Burn, which afterwards passed through the policies of Dalkeith Park, belonging to the Duke of Buceleuch.

In 1892 the Duke of Buccleuch brought an action in which he sought, inter alia, to have the colliery company interdicted “from discharging into the burn, known as the Dean Burn, from their coal workings at Gilmerton Colliery in the parish of Liberton and county of Edinburgh, any water, impure stuff, or matter of any kind whereby the said stream or burn in its progress through or along the property of the complainer may be polluted or rendered unfit for domestic use, or for the use of cattle or for all its natural primary purposes or the amenity of the said stream or burn in any way diminished.”

The complainer averred that the water of the burn had been suited for domestic and other primary purposes until it was polluted by the respondents discharging impure water into it. The respondents averred that the minerals under the lands in their occupation had been wrought for upwards of a hundred years, and the water from the workings had always been pumped into the Dean Burn, which was actually known as the Gilmerton Day Level Rivulet or Water Run, and that they had not increased the amount of water sent into the burn or rendered it more impure.

The Lord Ordinary allowed a proof, the result of which appears from his Lordship's opinion.

Upon 5th August 1893 the Lord Ordinary found that the respondents were not entitled to discharge into the Dean Burn water pumped from their coal workings at the said colliery, whereby the said burn in its progress through or along the property of the complainer might be polluted and rendered unfit for its natural primary purposes other than of supplying drink to man.

“ Opinion.—I hold the following facts to be proved—The colliery now occupied by the respondents has been worked from time immemorial, and has always drained into the Dean Burn by means of a day level, which enters the burn near the Melville Kennels, a short way above the lands of the noble complainer. The respondents are at present working a pit called the Square Pit, from which they pump, on an average, 260 gallons per minute into the day level. The quantity of water finding its way from the day level into the burn is about 450 gallons per minute, and the balance of 190 gallons comes by gravitation from other parts of the workings.

The earliest tenant in the colliery mentioned in the proof was a man of the name of Marshall, whose occupation lasted for several years prior to 1838, and during his time water was pumped into the day level from a pit called the Venture Fair Pit. After his lease expired the colliery lay for sometime idle, and then was occupied successively by Proudfoot, Ramsay, and Smellie, but no pumping of any consequence took place till 1870, when the Glasgow Iron Company entered into possession. Their occupation lasted for sixteen years, during which pumping was regularly carried on from the Venture Fair Pit, the Square Pit being at that time full of water. When the present respondents took possession in 1886 they emptied the Square Pit, deepened it by 30 fathoms, and have continued to pump water from it ever since. The water so discharged into the burn percolates from the surface through the mineral strata, and thereby becomes highly impregnated with oxide of iron. This iron is originally held in solution, but by exposure to air passes into suspension and is precipitated, both in the day level and after it reaches the burn, in the form of ochre. There can be no doubt that the bed and banks of the burn are reddened by this ochre during the whole of its course below the

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day level, and that the water itself is often so turbid that the channel cannot be seen. In this respect it presents a marked contrast to the water above the day level, which although not possessed of a high standard of purity, and admittedly not fitted for human consumption, is yet comparatively clear and entirely free from ferruginous matter.

So far the facts do not admit of much dispute. But the point on which the evidence is most conflicting is whether and how far this state of things has become aggravated since the respondents began their operations in 1886. I own that I have found this conflict very perplexing, but I have come to the conclusion that the evidence of witnesses like Inglis, Speedie, and Dobbie, who have had daily opportunities of observing the state of the water, is to be preferred to that of the numerous witnesses for the respondents, whose observation was of a much more casual sort. The latter say, in effect, that they have noticed little or no difference in the burn ever since they knew it. The evidence of the former, on the other hand, comes to this, that prior to 1886 the water of the burn was clear and tolerably pure, so as to hold fish, to be fit for watering plants, and even to be drinkable by cattle, except for a few days twice or thrice in the year, when it was as bad as it now is continuously. Their evidence is corroborated by that of Dunn, and other servants of the complainer, who say that prior to 1880 (when the Moorfoot water was introduced into the Dalkeith Gardens), the water of the burn was regularly used for watering plants, that trout were caught in it, and that it was occasionally drunk by the gardeners. At the same time, it is fair to notice that all of them admit the channel of the burn to have been red ever since they knew it, and one of them even declares that it was known long ago as the ‘Ochrey Burn.’ It is unfortunate for the complainer's case that there is no evidence of the burn water having been regularly used for watering cattle, but I am disposed to think that this is due to its not having been required rather than to its being unfit for that purpose. It is not very easy to account for there being a marked increase of pollution since 1886 as compared with the period of the Glasgow Iron Company's occupation during the sixteen years prior to that date. Pumping took place during both periods, but the Glasgow Company pumped from the Venture Fair Pit, and the present respondents pump from the Square Pit, which is considerably nearer the burn. This leads me to the conclusion that during the earlier period either the water must have parted with a greater proportion of its iron before reaching the burn, or that the water standing in the Square Pit must have acted as a kind of settling-pond and have intercepted a considerable quantity of the polluting matter.

Such being the facts I hold to be proved, it is clear in law that the day level must be treated exactly as if it were a natural water-course, and that the complainer cannot object to any water, however highly charged with iron, which finds its way through that level into the burn by means of gravitation. But I think it is equally clear, on the authority of the case of Bankier Distillery Company v. Young, 19 R. 1083 (in which the judgment of the First Division was recently affirmed by the House of Lords), that the respondents are not entitled, apart from contract or prescriptive right, to interfere with the law of gravitation and to pump water into the burn if the effect of the operation is to injure the inferior heritor. There is here no contract entitling them to do so, and they have no prescriptive right because during the forty years prior to the raising of this action there was no pumping for the first eighteen years. It is, I think, impossible for the respondents to rely on the pumping which took place in Marshall's time, because that had been discontinued between the period from 1838 to 1870— Rigby & Beardmore v. Downie, 10 Macph. 568. It is quite true that the water pumped in the Bankier Company's case was water which would not have found its way into the stream if let alone, while here the evidence undoubtedly is that if pumping were discontinued the water would accumulate in the Square Pit, and would overflow into the burn by way of the day level. Here, again, there is a perplexing conflict of evidence as to what the effect would be of leaving the water to find its own way into the burn, but if it be the true result of the evidence that there has been a material increase of the pollution since 1886, I think that that is prima facie attributable to the pumping operations of the respondents, and that they have not succeeded in displacing the presumption against them which arises from their interference with the law of gravitation.

It is impossible for me to grant interdict in the terms asked, as these would include the discharge of water by natural drainage and would exact a higher standard of purity than is possessed by the water above the junction of the day level with the burn. But I shall pronounce findings establishing the complainer's right to prevent the pumping of water which shall make the water of the burn unfit for the primary purposes other than that of supplying drink to man.”

The respondent reclaimed, and argued—In the first place, the respondents had only acted as the previous tenants of the colliery had done without challenge for more than forty years in pumping the water into the burn, and it was not proved that they had increased the amount of polluted water which they sent into the burn. For all that time the burn had not been more fit for any uses than it was now. In the second place, it was conclusively proved that even if the respondents did not pump the water, the natural effects of gravitation would cause as much water to flow into the burn as was now sent in by the pumping, so the complainer could not say that it was the pumping which did the harm. This case was not ruled by the case

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of Young & Company v. Bankier Distillery Company, July 27, 1893, 20 R. (H. of L.) 76, because here the respondents had a prescriptive right to pump, and no more water was sent into the burn than would go there by natural gravitation— Duke of Buccleuch, &c., v. Cowan, &c., December 21, 1866, 5 Macph. 214.

The complainer argued—It was amply proved that the amount of water sent down by the respondents had injured the amenity of the Duke of Buccleuch's policies and that was a sufficient ground for interdict; it also had injured the water for other primary purposes than drinking, the cause of which was the pumping and the careless working of the pit. The case was ruled by that of Young, &c. v Bankier Distillery Company (cited supra).

At advising—