Scottish Court of Session Decisions

In 1835 the dam-head or cauld and intake of a mill-lade formed in the river Jed were destroyed by a flood. The magistrates of Jedburgh, who were the owners of the mills supplied by the lade, rebuilt the cauld further up the stream, and constructed a new mill-lade on the northern half of the bed of the river. This mill-lade passed ex adverso of lands then belonging to Thomas Miller, which were described as bounded on the south by the river Jed. These lands, therefore, prima facie extended to the meduim filum of the river, and the magistrates in. constructing the mill-lade on the northern half of the bed of the river, were constructing it on ground belonging to Thomas Miller. He, however, raised no objection to the construction of the mill-lade.

The mill-lade supplied two mills, the upper of which was known as the Abbey Mill, and the lower as the Waulk Mill. The latter is now known as the Canongate Mill. The magistrates of Jedburgh remained in possession of the said mills and mill-lade until 1845. In 1845 the magistrates, under the powers conferred by a private Act of Parliament, sold, under a ranking and sale, the upper or Abbey Mill to Mr Robert Laing, town clerk of Jedburgh, and the lower or Waulk Mill to Mr George Hilson, manufacturer in Jedburgh. The decree of sale, dated 1st July 1845, describes the subjects sold and adjudged to Mr Laing as follows:—“All and whole that com mill of Jedburgh commonly called the Abbey Mill, with the whole machinery thereof, and the waterfall, dam-head, sluices, and other works thereof, and all and sundry multures, sequels, mill lands, particularly that portion of the ground or embankment lying to the east of the said mill, and between the mill—lead and the water of Jed, and extending downwards from the said mill to the waste—water sluice in the side of the lead between the said mill and the Waulk Mill, and the houses, biggings, yards, and the whole parts and pertinents thereof, all as presently occupied by William Dodd, the tenant therein.” By the same decree the subjects sold to Mr Hilson are thus described:—“All and whole the mill commonly called the Waulk Mill of Jedburgh, with the machinery house and all machinery thereof, and the waterfall, dam-head, and sluices, and other works thereto belonging, and mill lands, and particularly the mill-lead, and that portion of ground or embankment lying to the west of the said mill, and between the mill-lead and the water of Jed, and extending upwards from said mill to and including the waste-water sluice in the side of the lead between the said mill and the Abbey Mill, and the houses, biggings, yards, and whole parts and pertinents pertaining thereto, all as presently occupied by Messrs James and George Hilson, the tenants thereof.” The decree subsequently contained the following findings:—“Find and declare that the said Robert Laing and George Hilson, purchasers of the Abbey Mill and Waulk Mill, being lots first and second, have a joint pro indiviso right of property in the waterfall, dam-head, or

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cauld, sluices, and mill-lead thereof, subject always to the conditions as to keeping up, maintaining, and upholding the same and cleaning the mill-lead, which apply and are stipulated for during the currency of Messrs Hilson's lease of the Waulk Mill; and after the expiry of the said lease, then the said purchaser of said mills shall be bound to keep up, maintain, and uphold the said dam-head or cauld and sluice, and clean out the said mill-lead down to the said wastewater sluice between the said mills at their mutual expense.”

George Hilson conveyed the subjects thus purchased to himself and his brother James Hilson, equally between them, by disposition dated 9th December 1845, and the brothers then obtained a charter of sale and confirmation from James Grieve, the superior of the mill, on which they were infeft conform to instrument of sasine recorded in the General Register of Sasines on 5th May 1846. The said charter of sale and confirmation contained a description of the subjects included in the conveyance of the Waulk Mill in the same terms as those used in the decree of sale above quoted. It also contained the following confirmation clause:—“And further, I have ratified and approved, and for me, my heirs and successors, perpetually confirmed, likeas I hereby ratify, approve, and for me, my heirs and successors, perpetually confirm to and in favour of the said James Hilson and George Hilson and their foresaids a disposition of, inter alia, the subjects above disponed, dated the 4th day of April 1818, and registered in the Sheriff Court Books of Roxburghshire the 13th day of February 1819, made and granted by Alexander Thomson, stationer in Jedburgh, to and in favour of John Jackson, Esquire, Provost, Thomas Caverhill, George Hilson, William Young, and John Rutherford, Bailies, William Hope, Dean of Guild, and John Robinson, Treasurer, all of the burgh of Jedburgh, for themselves and as representing the town council and community of the said burgh, and to their successors in office, community of the said burgh, and their assignees, containing obligation to infeft by two several infeftments and manners of holding a me vel de me, with procuratory of resignation and precept of sasine, also the instrument of sasine following on the said disposition in favour of the disponees therein above mentioned, dated the 13th, and registered in the Particular Register of Sasines, Reversions, &c., at Kelso the 20th days of April 1818, or of whatever other dates, tenor, or contents the same may be, and that in the whole heads, articles, clauses, tenor, and contents thereof, but that allenarly in so far as regards or can be extended to the subjects before disponed.” The description in the disposition referred to, which constituted the title of the Town Council of Jedburgh at the date of the decree of sale in favour of George Hilson, was—“All and whole these three corn mills of Jedburgh, commonly called the Abbey Mill, Town Mill, and East Mill or Flour Mill, with the Waulk Mill of Jedburgh, and all and sundry multures, sequels, mill lands, houses, biggings, yards, and whole parts and pertinents thereof respectively.” George and James Hilson and their successors have since carried on business in the Waulk or Canongate Mill, and have used the mill-lade for the purposes of their mill. The subjects, by successive transmissions, are now the property of Oliver Hilson, manufacturer, Jedburgh, the complainer in the present action.

George Scott, merchant, Castlegate, Jedburgh, is now the proprietor of the lands ex adverse of the mill-lade, which belonged, in 1835, to Thomas Miller. The subjects conveyed to the said Thomas Miller were held by burgage tenure, and were described in the instrument of sasine in his favour dated 14th October 1825, as bounded, inter alia, by “the water of Jed on the south parts.” He proposed to build a house on this property, and to construct drains discharging into the mill-lade above Hilson's mill. Hilson in consequence brought the present action of interdict against him.

The complainer pleaded—“(1) The complainer being proprietor or joint-proprietor of the mill-lade referred to, as condescended on, and the respondent having no right or interest therein, the complainer is entitled to interdict as craved. (2) The complainer and his predecessors in the title having used the water of the said lade for the purposes of their manufactures for over forty years, for which the said water has all along been fit, and as the discharge of sewerage, &c., by the respondent into the lade would make the water unfit for these purposes, the complainer is entitled to interdict with expenses.”

The respondent after narrating the history of the construction of the new dam-head and lade in 1835, stated—“This extension was formed by encroaching on the property of the respondent's predecessors in title and of the conterminous proprietors, cutting a channel through said properties, and forming an embankment between said channel and the course to which the river was subsequently confined. The embankment was erected in that half of the original river bed lying between the lands of the respondent and his conterminous proprietors and the medium fllum of the river. The said proceedings were taken without any sanction or authority being sought or obtained by the magistrates and town council from the respondent's authors, or from any of the said proprietors, and constituted an unwarranted interference with their proprietorial rights. By the said proceedings the respondent's authors became the proprietors of said mill-lade, solum thereof, and embankment separating the mill-lade fram the river bed, all so far as ex adverse of their said lands respectively, subject to a servitude in favour of the magistrates and council of permitting the water to flow through the said lade as if in a natural channel passing their lands.”

On 28th June the Lord Ordinary ( Low) pronounced the following interlocutor:—“Finds (1) that by virtue of the titles produced and the possession admittedly following thereon, the complainers have, along

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with the proprietors of the Abbey Mill of Jedburgh, a joint pro indiviso right of property in the mill-lade set forth and described in the prayer of the note of suspension and interdict ex adverfso of the respondent's property; (2) that it is admitted that the respondent has constructed or laid a drain or pipe for the purpose of discharging or adapted for the purpose of discharge of sewage from a house or houses recently erected by him on his property into the said mill-lade; (3) that the respondent is not entitled to discharge sewage or other matter into the said lade by means of pipes or drains: Therefore to the above extent and effect sustains the complainer's pleas-in-law, suspends the proceedings complained of, and interdicts, prohibits, and discharges the respondent and all others acting by his authority from sending or discharging into the said mill-lade sewerage or any other impure stuff or matter of any kind, or impure liquid or water, by means of pipes or drains, &c.

Against this judgment the respondent reclaimed, and argued—(1) The decree of sale relied on by the complainer did not convey to his author the mill-lade in question ex adverso of the respondent's property. (2) By the respondent's titles he had a right to the river Jed usque ad medium, filum. (3) The Lord Ordinary had made an obvious error in holding that the respondent admitted that the possession which the complainer had enjoyed following upon a title a non domino was adequate to exclude the respondent's prior right. The respondent distinctly denied such possession, and possession in order to fortify a title a non domino required to be exclusive and adverse—Act 1617, c. 12; Campbell v. Duke of Argyle, May 19, 1836, 14 S. 798; Christina v. Hope, November 18, 1847, 10 D. 111; Earl of Fife v. Sir John Sinclair, November 19, 1849, 12 D. 223. The respondent further in the course of the argument offered to amend his averment that the extension of the lade “was formed by encroaching on the property of the respondent's predecessors in title, cutting a channel through said properties, and forming an embankment between said channel and the course to which the river was subsequently confined” by averring that the channel had been cut outside the river bed.

The Court thereupon, without pronouncing any opinion, recalled the Lord Lord Ordinary's interlocutor, allowed the respondent to amend, and remitted back to the Lord Ordinary to allow parties a proof.

A proof was accordingly allowed by the Lord Ordinary on 27th November 1894, and thereafter on 4th December 1894 the complainer lodged a minute of admission in the following terms:—“WATT, for the complainer, stated that for the purposes of the present note of suspension and interdict he was prepared to admit, and hereby admitted, that the discharge of sewage from the respondent's recently erected dwelling-house and offices into the said mill-lade would not render the water of the said lade unfit for the purposes for which the complainer and his predecessors have used it for the last forty years or prejudice his manufacturing processes.”

The proof was taken on the 4th of June, and thereafter on 20th July the Lord Ordinary pronounced an interlocutor refusing the prayer of the note of suspension and interdict.

Note.—“I have again carefully considered this case in the light of the evidence and the full argument which was addressed to me, and I shall now state the conclusion at which I have arrived.

A great part of the evidence was directed to the question whether the mill-lade is situated upon what was formerly the bed of the stream, or was formed by cutting into the bank.

I am of opinion that the most reliable evidence is that it was formed wholly in the bed of the stream. Prior to 1835 the bed of the stream, where the upper part of the lade is now situated, was a mill-dam. The bank upon the side upon which the respondent's property is situated rises abruptly from the river bed, and there was a rough retaining wall built along the foot of the bank. In ordinary states of the stream the water of the mill-dam rose some distance up the retaining wall. When the cauld was swept away in 1835, and a new cauld built higher up the stream, the retaining wall was utilised as one of the sides of the new part of the mill-lade, and an embankment with another retaining wall was constructed further into the bed of the stream. These facts may account for there having apparently been no opposition to the construction of the mill-lade at the time, because it made no practical difference to the proprietors upon that side of the stream. The only difference was that instead of having the water of a mill-dam flowing against their bank they had the water of a mill-lade.

I am therefore of opinion that the case must be dealt with upon the footing that the mill-lade formed in the bed of a stream was substituted for a mill-dam which formerly occupied the bed of the stream.

Turning now to the titles. The earliest title produced by the respondent is an instrument of sasine, dated in 1825, in favour of Thomas Miller, in which the lands are described as bounded on the south by the ‘water of Jed.’ It appears from the instrument that the lands were held of the Crown in free burgage. The lands being bounded by the water of Jed, presumably extended to the medium filum of the stream. That presumption was in no way lessened by the existence of the mill-dam, and it is plain that the right of the respondent's predecessor in the alveus could not be taken from him by the substitution of a mill-lade for a mill dam.

The complainer's authors first acquired the Waulk Mill (now called the Canongate Mill) under a decree of sale pronounced in the Court of Session in 1845. In that year an action of sale and ranking of various properties belonging to the burgh of Jedburgh was brought, and among them were four mills. There were, first, the

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Abbey Mill and the complainer's mill, which were situated upon the mill-lade in question, and then there were two mills, called respectively the Town Mill and the Bast Mill, situated upon another lade further down the stream.

The Abbey Mill was sold and adjudged to Robert Laing, and the description in the decree of the subjects so sold and adjudged was as follows—[ His Lordship read the description.]

The Waulk Mill was purchased by George Hilson, the complainer's author, and the subjects are described thus—[ His Lordship read the description.]

It is to be observed that in these descriptions there is no mention of the part of the mill-lade now in question—that is to say, the portion above the Abbey Mill—the only part of the mill-lade sold and adjudged being that lying between the Abbey Mill and the Waulk Mill.

The Town Mill and the Bast Mill were both sold and adjudged, ‘with the waterfall, damhead, sluices, and other works thereof … and the whole parts and pertinents,’ without any special mention of the lade upon which they are situated.

The decree, after decrees of sale applicable to each of the properties which were sold, contained various declaratory findings of the rights of the various purchasers in regard to the lades and damheads, and it is among these that the declaration in regard to the right of property in the part of the lade in dispute, upon which the complainer's case is rested, is to be found.

It is first declared that Laing, the purchaser of the Abbey Mill, is to have right to remove certain machinery which had been used to drive water into the town reservoirs. There is then the declaration upon which the complainer relies. It is in the following terms—[ His Lordship read the declaration.]

I think that it is clear that the part of the mill-lade there referred to includes that in dispute, namely, between the cauld and the Abbey Mill, because Laing and Hilson are to maintain the cauld and to clean out the ‘said mill-lead down to the said waste—water sluice,’ which is below the Abbey Mill.

It is then declared in the decree that Laing shall not, by lowering the sluices, obstruct the flow of water down to the Waulk Mill, and that Hilson shall not, by raising the backfall, interfere with the free run of the water from the Abbey Mill.

There are then declarations in regard to the East Mill and the Town Mill similar to these to which I have referred to in regard to the Abbey Mill and the Waulk Mill.…

I have referred to the decree at length, because I think that it is of importance to observe that the declaration in regard to the right of property in the upper part of the mill-lade is not introduced in what I may call the dispositive part of the decree, but in the part which deals with the rights, inter se, of the purchasers of the properties situated upon, and more or less interested in, one or other of the mill-lades.

Passing now to the way in which George Hilson made up his title under the decree of sale. He first disponed the subjects to himself and his brother James upon the narrative that he had made the purchase for his brother as well as for himself; and then the brothers obtained a charter of confirmation and sale from James Grieve, the superior of the lands. George and James Huson took sasine upon that charter, which forms the first writ in the prescriptive progress upon which the complainer founds.

The charter follows precisely the terms of the decree. The superior dispones the mill with the machinery, and so forth, in the words used in what I have called the dispositive part of the decree; and then it is declared that ‘these presents are granted under the whole declarations … referred to in the decree of sale,’ and then the declarations—including that in regard to the joint right of property in the mill-lade—are repeated.

Now, I have already said that the respondent's property was held burgage; and that also seems to be the tenure by which nearly all the properties upon the north side of the stream above the Abbey Mill were held. The Abbey Mill and the Waulk Mill, on the other hand, were held by the magistrates in feu of Grieve as subject-superior. The magistrates, therefore, had no title to sell, and Grieve had no title to dispone, the mill-lade above the Abbey Mill, so far as the ground upon which it was constructed was concerned. Of course, if the charter unequivocally dispones the solum upon which the mill-lade is constructed, and possession has been had upon it for forty years, the complainer's right cannot be affected by showing that it was originally granted a non domino. But if the charter is open to construction, then I think that it is competent to inquire into the state of the title, and the circumstances when it was granted.

Here I think that the charter is open to construction. The upper part of the mill-lade is not part of the subjects disponed, but is only mentioned in the declarations and restrictions subject to which the disposition is granted. In other words, the disponees are declared to have a joint right of property in a part of the lade which is not disponed to them.

Further, from the nature of the subject, the right of property which is declared is not necessarily a right of property in the solum. A mill-lade involves an artificially constructed channel, and I do not think that the declaration in the charter necessarily refers to more than the artificial channel. If there was a servitude of mill-lade over lands other than those disponed, of which the two mills were the dominant tenement, it is quite intelligible that the respective owners of the mills should be declared to have, as between themselves, a joint right of property in the mill-lade, that is, in the artificial channel by means of which the water was conveyed to their mills. And so to construe the declaration is the only construction of the charter which can be at all reconciled with the circumstances which existed at the time.

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I do not say that the magistrates had a valid right to a servitude of mill-lade, because they were not entitled at their own hand to substitute a mill-lade for a mill—dam. But they had in fact done so, and for ten years the mill-lade had been in use. It is, therefore, intelligible that they should have exposed the mills for sale upon the footing that the servitude of mill lade would pass with them, and also such a right as the owner of the dominant tenement in a servitude of the kind has in opera manufacta by which the servitude is made available.

Reading the charter, therefore, in the light of the circumstances under which it was granted, I am of opinion that it was not intended to convey, and does not convey, the lands upon which the lade is constructed.

The next question is, What has been the possession which the complainer and his authors have had upon the charter? They have had the use of the water coming down the mill-lade for the purposes of their mill, and they have cleaned out the lade and kept it free of obstructions. No other or further acts of possession have been proved. Now, there is nothing in that possession going beyond what would be naturally referable to a right of servitude, and I do not think that the possession has been exclusive of the right of the respondent and other riparian proprietors, whose titles, ex facie, carry them ad medium filum. Further, it is proved that the proprietors along the side of the lade had steps down to it which they used for the purpose of drawing water. That is what one would have expected to find if the mill-lade was a servitude, but not if it was altogether outside the properties adjoining it.

I am, therefore, of opinion that the complainer is not proprietor of the solum upon which the mill-lade is constructed, and that the lade is only a servitude with Which the lands through which it passes are burdened.

The remaining question is, Whether, in these circumstances, the complainer has a right to object to the drain which the respondent has made from the new house which he has built?

Now, it is proved that the drain does not cut through, or in any way interfere with, the sides of the lade, but is entirely within the respondent's lands. It is true that any sewage which is discharged from the dram will find its way, by the natural slope of the ground, into the lade; and there is no doubt that the respondent had that in view when he constructed the drain. But the complainer does not now say that he will be injured thereby. He has led no evidence in support of his averments of pollution, but stands entirely upon his claim of property, which, for the reasons which I have stated, I am of opinion is not well founded.

In these circumstances, I am of opinion that the complainer is not entitled to the interdict which he asks.”

The complainer reclaimed, and argued—(1) The Lord Ordinary was wrong in holding that the decree of sale did not convey to the complainer the mill-lade ex adverse of the respondent's lands. It did so in express terms, vesting the lade either in the complainer exclusively, or at least pro indiviso with the purchaser of the Abbey Mill. (2) Admitting the respondent's property was held burgage, and that the magistrates had no title to sell the lade in question, this interposed no obstacle to the complainer's acquiring an exclusive right by title recorded in the feudal register and prescriptive possession following thereon. (3) A river boundary raised only a presumption that the proprietor's right extended to the medium filum of the stream, and the silence of the respondent's authors in 1835, when the lade was extended, at least suggested that they did not claim any right in the stream. (4) The complainer had enjoyed all the possession of which the subject was capable, and the slight use made of the water by the riparian proprietors was inconsistent with ownership, and instructed only tolerance, or at best servitude in their favour. (6) In any view, the complainer had a right of servitude in the mill-lade, and this gave him a right in the opus manufactum, consisting of the retaining walls and solum of the lade. The drain—pipe which the respondent proposed to insert penetrated through the retaining wall of the lade, and therefore the complainer was entitled to interdict— Scottish Highland Distillery Company v. Reid, July 7, 1877, 4 R. 1118. Notwithstanding the minute of 4th December 1894, the complainer, as proprietor, was entitled to resist any introduction of sewage into the lade, although the quantity taken by itself was insufficient to cause material increase of pollution in the lade.

Argued for the respondent—The Lord Ordinary's judgment was sound. The titles of the respondent and of the adjoining proprietors made it clear that along the extended part of the lade the subjects had been held burgage, and had been bounded by the water of the Jed. Such a boundary raised a strong presumption that the grant extended to the medium filum, and no attempt had been made to rebut this presumption— Bicket v. Morris, July 13, 1846, 4 Macph. (H.L.) 44; M'Intyre's Trustees v. Magistrates of Cupar-Fife, May 24, 1867, 5 Macph. 780; Gibson v. Bonnington Sugar Refinery Company, January 20, 1869, 7 Macph. 394. The riparian proprietors had had no interest to object to the extension of the lade in 1835, because the stream flowing through the lade was more useful to them than the former river bed. The effect of the extension was to constitute in the mill-owners a servitude of aqueduct, precisely corresponding to the right which an ordinary inferior heritor has against an ordinary superior heritor, to insist that the water in a natural stream flowing through their lands should be transmitted undiminished in quantity and quality. The decree of sale of 1845 was clearly a non domino so far as it purported to confer any right of property in the mill-lade ex adverso of the respondent's lands. The Lord Ordinary

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was therefore justified in subjecting the decree of sale and the charter following thereon to a strict construction, and his construction was sound. The complainer's right, however depended, not on the decree of sale, but on the charter of sale and confirmation granted in 1846. This charter was a charter by progress, and was therefore incapable of extending the vassal's right. It contained, no doubt, the new description of the subjects taken from the decree of sale, but it also defined the subjects conveyed as forming part of the subjects contained in the older titles, which negatived any right of property in the mill-lade— Hutton v. Macfartane, November 11, 1863, 2 Macph.79, per Lord Neaves, 88; Boyd v. Bruce, December 20, 1872, 11 Macph. 243. Infeftment, in order to found a presumptive right, required to be taken in the appropriate register of sasines—Conveyancing Act of 1874, section 34. The mill-lade in question being held burgage, the complainer's sasine, recorded only in the feudal register, was inept. In 1846 sasine in burgage subjects still required to be recorded in the burgh register within sixty days of its date—Act 1681, cap. 11.

Even if the complainer's title was a good foundation for prescription, his right was not fortified by adverse and exclusive possession. His operations were equally consistent with property or servitude, and in dubio servitude was to be preferred. Rights of property could not be taken away by equivocal acts of possession. Here the original proprietors had continued to exercise rights which were equally consistent either with property or with servitude, and in the circumstances these must be regarded as a continued assertion of proprietorial rights, and not as fresh servitudes acquired from the complainer at a time when ex hypothesi he was himself prescribing a right of property. The use of a running stream was res merae facultatis, and the property in it could not be lost merely because the owner did not exercise the full use of which it was capable. Assuming the case to be one of servitude, the respondent was entitled to succeed, because the drain-pipe in question did not pierce the wall of the lade, but was merely rested on the top of it. Further, the servitude in the present instance did not give the complainer any right in the retaining-walls or solum of the lade, or in the water itself. The extent of the dominant proprietor's right in a case of aqueduct depended on the special circumstances of the case, and here the proof showed that the complainer's authors had done nothing beyond building a retaining-wall between the lade and the bed of the river. The retaining-wall along the landward back of the lade was the old retaining-wall which existed before the lade was constructed, and it remained the property of the riparian proprietors.

At advising—