Scottish Court of Session Decisions

This was an action raised against Roderick Kemp, proprietor of the Macallan Distillery on the Ringorm Burn, a tributary of the river Spey, by the Countess-Dowager of Seafield, proprietrix of the estate of Easter Elchies, and Mrs Kinloch Grant, proprietrix of the estate of Arndillv, and the proprietors of the estates of Wester Elchies and Aberlour. The estates of Easter Elchies and Wester Elchies are situated on the Ringorm Burn and the river Spey, and the estates of Aberlour and Arndilly are on the Spey. The conclusions of the action were for declarator that the pursuers Lady Seafield and Mr Grant of Wester Elchies had a right to have the water of the Ringorm Burn, and that the whole of the pursuers had a right to have the water of the Spey, transmitted in a state fit for the use of man and beast, and for all primary purposes, and that the defender was not entitled to pollute the water of the Ringorm Burn or the Spey by putting into the burn discharges from his distillery, so as to make it unfit for primary purposes, and to the prejudice of the pursuers' salmon-fishings, and for interdict against his doing so.

The estate of Arndilly, which was situated on the Spey at some distance below the Ringorm Burn, was that which was farthest removed from the seat of the alleged pollution.

The pursuers averred that in the process

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of distillation a large quantity of water was rendered impure by the defender, the whole of which up to the beginning of 1898 was discharged by him through a pipe into the Ringorm Burn, and after that time into ponds, from which, by leakage and percolation, the polluted water continued to find its way into the burn and the Spey, and that the water and the bed of the burn and of the river were rendered filthy by these discharges.

The pursuers also averred that the salmon-fishings ex adverso of their respective lands were being injured by the alleged pollution, that salmon would not stay in their waters, subject as they were to frequent discharges from the defender's distillery, and that these discharges had seriously injured the spawning beds in the Spey below the influx of the Ringorm Burn, and were destructive to fish life.

In answer, the defender stated that the distillery had been carried on for upwards of seventy years, and that until the end of 1896 a considerable amount of the waste products of the distillery was discharged into the Ringorm Burn, but that in the beginning of 1897 operations were carried out by him whereby the waste products of the distillery were carried through pipes into filtering-ponds and treated in such a way as to prevent any pollution escaping into the Ringorm Burn or the Spey.

The defender further stated that in 1886 the Countess of Seafield had entered into a feu-contract with his predecessor, whereby she conveyed to him “the distillery of Macallan, with the right to take water for the use thereof from the burn of Ringorm,” The feu-contract contained also the following declaratory clause—“It shall not be lawful to nor in the power of the said James Stuart or his foresaids to erect or carry on upon the piece of ground hereby disponed any manufactures or operations which may be legally deemed a nuisance or be dangerous or injurious to the amenity of the neighbourhood, but which declaration shall not apply to the carrying on of the said distillery.”

After a proof, the result of which sufficiently appears from the Lord Ordinary's note and the opinions delivered in the Inner House, the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“(1) Finds that until a recent period—or at all events until a period well within the years of prescription—the waters of the Ringorm Burn and also of the river Spey ex adverso of the properties of the pursuers were substantially unaffected by artificial impurities, and were under normal conditions fit for all the primary uses; Therefore declares and decerns in terms of the first declaratory conclusion of the summons: (2) Finds that the defender has no right or title to pollute the waters of the said burn or of the said river by discharges of waste products of his distillery or other artificial impurities to the effect of materially deteriorating the condition or quality of the water of the said burn and river; Therefore to that extent and effect declares and decerns in terms of the second declaratory conclusion of the summons: (3) Finds further that during each of the years from 1893 to 1897 inclusive the defender did discharge into the said burn and river waste products of his distillery, and did pollute the water of the said burn and river to the nuisance of the pursuers: (4) Finds further that the evidence led is insufficient to prove that the pursuers are adequately secured by the remedial works lately executed by the defender against the continuance or recurrence of the said pollution; but (5) in respect the pursuers are willing that before moving for interdict time shall be allowed for testing adequately under a remit by the Court the effect of the said remedial works or of other works which have since been or may be executed by the defender, and also the means which the defender has taken or may take for securing the due use of the said remedial works, supersedes in the meantime consideration of the conclusion for interdict,” &c.

Note.—[ After dealing with the evidence by which he found that pollution was proved and was brought home to the defender, and that it was to the nuisance of Mr Grant of Elchies, his Lordship proceeded]—“Neither is there (apart from the point which I shall presently notice) any doubt as to the position of Lady Seafield. She owns both sides of the Ringorm Burn, from the distillery downwards, with the exception of the portion owned by Mr Grant of Elchies. She also owns the left bank of the Spey for a considerable distance below the outlet of the Ringorm Burn. She is thus the heritor who—if there is pollution—suffers most directly, and in the greatest degree. Unless, therefore, she has barred herself from complaining, it cannot, I apprehend, be disputed, that if the defender pollutes he does so to her nuisance. But the defender points out that in 1886 Lady Seafield granted a feu of the distillery subjects to the defender's predecessor, and that the feu-charter contained a power to draw water from the burn for distillery purposes, and a declaration (qualifying a prohibition of manufactures or operations which might be legally deemed a nuisance) that that prohibition should not apply to the carrying on of the distillery in question. The suggestion is that this declaration implied a licence to carry on the distillery in the previously accustomed manner, and, inter alia, to discharge its waste products into the Ringorm Burn without responsibility at all events to Lady Seafield or her successors.

I have accordingly to decide whether such an implied licence can be deduced from the stipulations of the feu-charter.

I am of opinion that it cannot. It is admitted, to begin with, that the alleged licence cannot be held to cover the material increase of the pollution which has taken place since 1886. But apart from that, it appears to me that a permission to carry on a distillery on ground feued cannot be stretched by implication so as to constitute a right to pass the bounds of the feu, and in effect to trespass by discharging refuse or

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otherwise upon the superior's adjacent property. Nor can it extend the feuar's rights that while a tenant of the superior such acts of trespass may have been tolerated. The fair meaning of the declaration in question is, I think, satisfied far short of the licence suggested. If the feuar had desired the right which he now claims, it would, in my opinion, have been necessary to use very express and quite different words. I am accordingly of opinion that the defender has polluted to the nuisance of Lady Seafield.

[ His Lordship then dealt with the case for the proprietor of Aberlour, which he found to be proved, and continued]—

The case which remains is that of Mrs Grant of Arndilly, and I think it might have been perhaps as well if her instance had been dispensed with. It is not, in my opinion, proved that any pollution that has vet occurred, whether caused by the distillery or other polluting agencies, has as yet affected the Spey water so far down as Arndilly. Mrs Grant's case accordingly rests entirely on her interest as a salmon-fishing proprietor in the spawning beds in the neighbourhood of the Ringorm Burn, and as to these I must say that I think the evidence is somewhat narrow. Still it is impossible to deny that the spawning beds in the Spey for some distance below the mouth of the Ringorm Burn have been appreciably affected by the discharges from the distillery. And if the spawning beds are affected, it seems equally impossible to deny the interest of Mrs Grant in those spawning beds. Accordingly I am not prepared to throw out the action so far as at the instance of Mrs Grant. On the contrary, I think she is entitled—if the point is considered of importance—to have it affirmed that the defender's pollution has been to her nuisance.

The result therefore is that if the case had gone to a jury under the usual issue the pursuers must have had a verdict, and on that verdict judgment must in ordinary course have followed, giving the pursuers decree substantially in terms of the declaratory conclusions of their summons, and judgment also finding and declaring that the defender has in fact polluted to the nuisance of the pursuers.

It remains to consider as to interdict. Now, I had thought it possible that I might be relieved from considering that question, because the pursuers at the close of the proof intimated that they did not propose to move for interdict until an opportunity had been given of ascertaining by experiments and periodical tests extending over a sufficient period, the adequacy of the remedial works which the defender has lately executed. And it appeared to me that the attitude thus assumed was a moderate and reasonable attitude, and one which has in a number of similar cases led to satisfactory results. But the defender maintains that he has in this case proved (whether relevantly to the main issue or not) that at the date of the action—or at all events at the date of the proof—he had executed and set agoing works which, if kept in order and duly used, must cure the alleged pollution, and on the strength of this his counsel contended that they were entitled to have, at all events, the conclusion for interdict de piano dismissed. Indeed, I am not sure that they did not also insist for dismissal of the whole conclusions of the summons.

Now (as I took leave to point out in the course of the proof) when in an action for pollution it is once established that the defender, at a period reasonably recent, in fact polluted, that is in itself prima facie ground for granting of interdict. And that especially holds, where as here, the defender has come into Court denying the pollution and maintaining his right—on the ground of prescription or otherwise—to continue the proceedings of which the pursuers complain. Even therefore if it could be affirmed that the defender had at the date of the proof, or at the date of the action, put in operation with apparent success a method of preventing future pollution, it would by no means, in my opinion, follow that the pursuers should be denied if they claimed the security of an interdict. Nor if the success of the remedial works was real and complete, would such an interdict be necessarily injurious to the defender. In point of fact, however, I am not able, so far as the case has gone, to hold it established that the defender's remedial works have yet even effected a permanent and reliable cure. There has been a great deal of evidence on the point—conflicting evidence which I should have been glad to restrict if that had been possible. But assuming the defender's view of its import, it cannot, in my opinion, be overlooked that the defender's case was rested entirely on certain laboratory analyses made, I think, of five samples of water, taken on certain occasions between 20th November and 15th January last. Now, without in the least impugning either the fairness or the skill of the eminent chemists who made those analyses, it seems to me to be impossible to hold a test so limited as conclusive one way or the other. The practice of the Court has, in my experience, always been to require that such remedial works should be tested by inspection and analyses made over a lengthened period, and not made ex parte, but by neutral authority. That has been the practice in cases of this description—so far as I know without exception—from the Esk case downwards; and I confess I see no reason why—unless the defender is prepared to submit to an interdict—it should not be followed here. In short, however honest have been the defender's efforts, and however promising his method of purification, he must, in my opinion, submit his works and methods, as others in a similar position have done, to a period of probation, a period which may be long or short according to circumstances.”

The defender reclaimed. So far as it is necessary for the purposes of this report to notice the arguments presented, the reclaimer argued—The Countess of Seafield was barred from complaining of the defender's operations by the feu-contract

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entered into in 1886 between her and the defender's predecessor. It would deprive the right to take water from the Ringorm Burn, granted by her in that contract, of any meaning if the defender were to be bound to return the water absolutely pure, because that was not possible. The size of the distillery was doubled on the faith of that contract. Having acquiesced in the use of the water for the only purpose for which the right to use it was or could have been granted, Lady Seafield could not now complain— Hamilton v. Dunn, July 30, 1838, 3 S. & M'L. 356. That case was not a direct authority, but the principle that a landlord was liable for the operations which he allowed his tenant to carry on was illustrated by what was said by the Lord Chancellor, p. 379, and that principle applied in the present case to the relations between Lady Seafield and the defender, and the grant by Lady Seafield protected the defender from responsibility— Robertson v. Stewarts and Livingston, Dec. 6, 1872, 11 Macph. 189. The feu-contract was granted for distillery purposes, the feuar's obligation being to dispose of the refuse in the way customary at the date of the contract, and in a question with the superior his obligation was satisfied if he returned the water to the burn as pure as the business of the distillery would permit. The measure of Lady Seafield's right was use and wont, and the Lord Ordinary's interlocutor gave her a higher right than she had at the date of the contract— Cairncross v. Lorimer. August 9, 1860, 3 Macq. 827, Lord Chancellor, p. 829. Mrs Kinloch Grant of Arndilly had failed to prove that she was injuriously affected. No witness was cited by her as to the quality of the water ex adverso of her lands, which were too far distant from the defender's distillery to be affected by it, and her case amounted to a mere inference that injury to the spawning beds would prejudice her; no such injury was proved, nor was it proved that there had been any falling off in the fishing in the Spey, or that any injury had been done to fish life or to the spawning beds.

Argued for the pursuers—Though Lady Seafield by the feu-contract of 1886 had consented to water being drawn from the burn for the purposes of the distillery, she had not consented to its being returned in a filthy condition— Dunn v. Hamilton, 11 March 1837, 15 S. 853, Lord Gillies, p. 871, Lord Corehouse p. 872; Henderson & Thomson v. Shaw Stewart, 23 June 1818, reported 15 S. 868. In this case the feu-contract had not given the defender any right to let filthy matter into the burn— Robertson v. Stewarts & Livingstone, ut sup., Lord President p. 196—the defender's distillery could be carried on without any nuisance. Consent to what was being done in 1886 did not entitle the defender to increase the size of the distillery and the consequent pollution to such an extent as to materially change the situation. The fishing was the main interest, and neither Lady Seafield nor anyone else suffered any damage by what was being done before 1886. The defender's case gained nothing by the fact that he had a right to take water from the burn, the feu-contract gave no right to create a nuisance of any sort, and Lady Seafield was in the same position as the other pursuers. Mrs Kinloch Grant of Arndilly had an interest to resist any pollution that injured her interests as a proprietrix of salmon-fishings. The pollution from the defender's distillery was having a serious effect on the fishing, and on the spawning beds, but it was not necessary to prove actual destruction of fish or fishing; it was sufficient to prove, as the pursuers had done, that if the pollution continued damage would result.

At advising—