Scottish Court of Session Decisions

This case is reported ante ut supra.

This was an action raised by the Edinburgh and District Water Trustees against the Clippens Oil Company, Limited, and Major John Gibsone of Pentland. The action concluded for declarator (1) that the pursuers in virtue of their Act of 1869 were

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vested in the undertaking and the whole lands and other property of the Edinburgh Joint Stock Water Company incorporated by the Act of Parliament 1819 (59 Geo. III. c. cxvi.), and further that the pursuers as vested therein, and more particularly as vested in the Castlehill Reservoir, had “good and undoubted right to receive in the said reservoir from the Crawley Spring … a continuous and uninterrupted supply of water by means of a pipe or aqueduct laid, inter alia, in a strip of ground, about 1083 yards long and about 25 yards wide (taking its average width), extending from the march of the Dryden estate to the road leading from the Penicuik and Edinburgh Road to Loanhead in the parish of Lass—wade, belonging to the pursuers, and in the lands of the said Major John Gibsone of Pentland from the last-mentioned point where the said pipe or aqueduct emerges from the said strip of ground belonging to the pursuers to the boundary of the said Major John Gibsone of Pentland's property at the march between the parish of Lass—wade and the parish of Liberton, and thence through the lands of Straiton, belonging to the defenders The Clippens Oil Company, Limited, for 815 yards or thereby to the point where the said pipe or aqueduct passes out of the said lands of Straiton in the parish of Liberton, and that the pursuers have good and undoubted right to have the said strip of ground and the said pipe or aqueduct, in so far as it is laid in the said strip of ground and in the said lands of Pentland and Straiton, supported so that the said pipe or aqueduct may serve continuously and uninterruptedly as a conduit for the water passing from the said Crawley Spring to the said Castlehill Reservoir; and ( Second) that the defenders, The Clippens Oil Company, Limited, as lessees of the minerals in the said lands of Pentland on both sides of the said strip of ground belonging to the pursuers, and where the said pipe is laid, and as the owners of the lands and minerals of Straiton, are not entitled to work the shale, limestone, and other minerals adjacent to the said strip of ground, and adjacent to or under the said pipe or aqueduct belonging to the pursuers, in such manner as to injure the said strip of ground or bring down the surface thereof, or to injure the said pipe or aqueduct, or to bring it down or affect or interfere with the continuous flow of water through the said pipe or aqueduct from the Crawley Spring to the said Castlehill Reservoir in any way.” There were also conclusions (1) for a remit to a man of skill to fix the limits within which the Clippens Oil Company should be bound to abstain from working the minerals, and (2) for interdict against the company working the minerals adjacent to and under the strip of ground and the pipe or aqueduct so as to injure or bring them down, and against their working within the limits to be fixed by the Court.

The averments and pleadings of the parties are fully stated in the report of the previous stage of the case, to which reference is made supra.

The following extract from the opinion of the Lord Ordinary infra, states the nature of the circumstances in which the action was raised:—“The pursuers of this action, The Edinburgh and District Water Trustees, have two main water pipes, which on their way to Edinburgh traverse the lands of Pentland and Straiton. In this part of their course these two pipes lie side by side, a few feet apart, in what is practically the same pipe-track. The one pipe carries the Crawley Springs, and was laid in and shortly after the year 1820. The other, which was laid in or about 1876, carries the Moorfoot water.

Pentland and Straiton are mineral estates, the most valuable seams being shale and limestone. After entering Pentland, the pipes are laid for a little over a thousand yards in a narrow strip of ground which is held in feu by the pursuers, inclusive of the minerals, and which their predecessors acquired in 1825. With that exception, the defenders the Clippens Oil Company are lessees of the minerals in Pentland, and they are proprietors of Straiton, including the minerals.

The main purpose of the present action is to have the Crawley pipe protected from being brought down or injured by the defenders' mineral workings.

The action does not relate to the Moorfoot pipe. That pipe was laid under a statute which incorporates the Waterworks Clauses Act of 1847, and its legal relation to the minerals below it is defined by that Act. The defenders in the course of their workings had from time to time given notice to the pursuers of their intention to work minerals adjacent to and under the pipe-track. The pursuers gave no counter notice until February 1898, when, in pursuance of the Waterworks Clauses Act, they intimated to the defenders that the working of the minerals within a certain area was likely to damage their pipes, and that they were willing to make compensation for the same, so far as the Company were entitled thereto. A statutory reference followed, in order to fix the amount of compensation for the minerals to be left un worked. But both the statutory notice and the reference were expressly declared to be without prejudice to and under reservation of the Trustees' right of support of the Crawley pipe passing through the mineral field.

They now bring this action to have that light of support for the Crawley pipe declared, and to have the defenders interdicted from infringing it. So far as regards that pipe, they claim an absolute and unqualified right of support; and if this necessitates the defenders leaving the subjacent and adjacent minerals unworked in order to secure it, the pursuers will be in a position at least to contend that the Moorfoot pipe, which runs beside it, will incidentally get the benefit of that support without payment.

The action deals also with another matter, namely, the pursuers' right to have

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lateral support for their strip of ground held in feu. To this end they seek to have it declared that the defenders are not entitled to work the minerals adjacent to that strip ‘in such manner as to injure the said strip of ground or bring down the surface thereof.’ This introduces a specialty, to which I will recur afterwards.”

The defenders having pleaded res judicata, the Lord Ordinary ( Pearson) on 7th February 1899 found that the action, with certain exceptions, was excluded exceptione rei judicatæ, in respect of the proceedings in a note of suspension and interdict presented by the pursuers on 16th March 1897, and reported ante February 3, 1898, vol. 34, p. 425, and 25 R. 504.

The pursuers reclaimed against this interlocutor, and the First Division, on 7th June 1899, repelled the defenders' plea of res judicata, and remitted to the Lord Ordinary to proceed.

The Lord Ordinary allowed a proof, the nature of which, and of the documents bearing upon this case, sufficiently appears in the opinions infra.

Section 38 of the Act of 1819 (59 Geo. III. cap. cxvi.), entitled “An Act for more effectually supplying the City of Edinburgh and places adjacent with water,” enacts that the company should have power “to take and use grounds and premises for the purpose of forming a reservoir or reservoirs,” at the points therein particularly described, “provided that the consent in writing of the owners and occupiers of the land whereon the same may be formed shall be previously obtained.”… Power was

given to “compensate” owners and occupiers of mills and landowners for the water taken for the purposes of the Act, and “to make the necessary cuts, trenches, mounds, or other works for connecting the springs and water hereinbefore authorised to be taken, and also the necessary cuts, trenches, conduits, mounds, or other works for conducting the water thereof to the said city in the line or lines pointed out in the said map or plan, and to construct the necessary aqueduct or aqueducts, and to lay the necessary pipe or pipes for that purpose, giving one month's notice of such their intention to the owner or owners or occupier or occupiers of such grounds and premises, and making satisfaction to such owner or owners and occupier or occupiers in manner hereinafter directed.”

Section 73 enacts—“Provided always, and be it enacted, that if any person or persons, bodies politic, corporate or collegiate, or owners or occupiers of any spring, brook, stream, grounds, houses or other property required for the purposes of this Act, specified in the schedule hereto annexed, seised or possessed of, interested in, or entitled to the same respectively, shall refuse to treat, contract or agree to sell the same as aforesaid, or to allow the said Company to enter upon, use or take the same for the purposes of this Act, they shall be bound and obliged to state in writing the sum or sums which they demand as damage or recompense for the ground or other subjects taken or to be taken for the purposes of this Act.” The schedule referred to included the lands of Pentland and Straiton.

Section 17 of the Act of 1843 (6 and 7 Vict. cap. lxxxix.), entitled “An Act to enable the Edinburgh Water Company to bring in an additional supply of water, and to alter and amend the Acts relating to the said company,” enacts that “The directors shall have full power and authority on behalf of the company to contract for and purchase all such lands as may be necessary for the purposes of this Act, and in so far as the same or any part of the lands heretofore acquired by the company under the powers of the hereinbefore recited Acts, or any of them, may not be required for such purposes, to dispose of the same or any part thereof, and also to treat and agree with every person touching the compensation to be made for any damages to be done in the exercise of the powers given by this or the before recited Acts.” Among the recited Acts was the Act of 1819.

Section 70 enacts that the company shall have power to purchase any interest in land the purchase whereof may have been omitted by mistake.

Section 73 provides, that with respect to any minerals “under any land purchased by the company, … the company shall not be entitled to any such mines or minerals, except only such parts thereof as shall be necessary to be dug or carried away, or used in the construction of the works by this Act authorised.”

Sections 111–116 enact that “for the purpose of protecting the works of the company from danger to be apprehended from the working of any mines either under or closely adjoining the same the mineral owner or occupier should give notice of his desire to work such minerals, and that if it appeared to the company that such working was likely to damage their works, and if the company were willing to make compensation for such mines, the owner or occupier should not work the same, but that if the company within thirty days should not state their willingness to treat for payment of such compensation, it should be lawful for the owner or occupier to work the said mines, and if any damage or obstruction were occasioned to the works of the company by the improper working of such mines, the same should be repaired or removed at the expense of the owner or occupier of the minerals. These sections also contained certain other regulations with regard to the working of such minerals and the payment of compensation.

Section 124 enacts that “the water shall be brought in and the works finished within five years from the passing of the Act.”

On 28th June 1900 the Lord Ordinary pronounced the following interlocutor:—“Finds and declares in terms of the first and second declaratory conclusions of the summons: Finds that within the limit after mentioned the shale, limestone, and other minerals adjacent to the pursuers' strip of ground, and adjacent to or under

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the pursuers' pipe or aqueduct, described in the summons, cannot be wrought out without imminent risk of bringing down the surface of the said strip of ground and the said pipe, that is to say, the limit formed by lines drawn from the points to be supported perpendicular to the plane of the strata on the rise side, and at an inclination of one in five towards the dip: And Finds that within said limit the defenders the Clippens Oil Company, Limited, are bound to abstain from working the said shale, limestone, and other minerals: Interdicts, prohibits, and discharges the said defenders from working the said shale, limestone, and other minerals within the said limit, and decerns: Finds the pursuers entitled to expenses against the said defenders the Clippens Oil Company, Limited,”&c.

Opinion—“… The pursuers' first contention is that their Crawley pipe was laid under a statute of 1819 by their predecessors the Edinburgh Water Company, to whose rights they have succeeded; and that these rights include the absolute right of support for this pipe. This depends on the terms of that statute, and what followed upon it.

The Act is entitled ‘An Act for more effectually supplying the City of Edinburgh and Places adjacent with Water.’ It appears that there were two previous Acts having the same object, which apparently vested the management in the Town Council. For this the Act of 1819 substituted a company named the Edinburgh Joint Stock Water Company, the members of which were in large part leading citizens of Edinburgh, and included as a member the corporation itself, under the style of the Lord Provost, Magistrates, and Town Council of the city. It was also provided that the Town Council should have a substantial representation on the board of directors, as set forth in section 15.

The company were empowered to make and divide profits, but these profits were not to exceed a certain percentage on the amount actually expended by the company.

The Act was an enabling Act, and a period of ten years was allowed for the completion of the works. I was not referred to any clause of the Act which renders the maintenance of the supply obligatory on the company. Nor does it appear whether any such provision had a place in the previous Acts, although by section 34, which transfers the existing waterworks from the corporation and vests them in the new company, the company are taken bound to free and relieve the corporation ‘of all obligations incumbent on them for or in respect of supplying water either to the inhabitants or to any of the public institutions in the city.’ A certain limited right to complain of the supply is conferred by section 101, which provides that any person thinking himself ‘aggrieved by a partial distribution of the supply of water by the said company’ may apply to the Sheriff, who shall make such order therein, binding on the company ‘for the period of time during which such company shall have contracted and agreed to supply with water the person making such complaint,’ as to him shall seem just.

By section 36 the company were empowered to take certain springs, including the Crawley spring, and the necessary ground adjoining for reservoirs and the like.

Section 38 is one of the more important sections. It deals with two different matters. It empowers the company (1) to ‘take and use grounds and premises’ for reservoirs at places described in a deposited plan; and (2) to make the necessary cuts, trenches, conduits, mounds, or other works for conducting the water of the springs to the city, in the line or lines pointed out in the said plan, ‘and to construct the necessary aqueduct or aqueducts, and lay the necessary pipe or pipes for that purpose, first giving one month's notice of such their intention to the owner or owners and occupier or occupiers of such grounds and premises, and making satisfaction to such owner or owners and occupier or occupiers in manner hereinafter directed.’ And then follows a provision for access to the grounds through which the water may be conducted, for inspection and repair of the ‘line or track of the aqueduct,’ the company indemnifying the owner or occupier for all damages thereby done.

Now, in ascertaining the legal position of the pipes so laid, it is of course important for the defenders, if they can show that the statute draws a distinction between ground taken as for reservoirs and ground used as for a pipe-track; and that the clause as to making satisfaction to owners and occupiers—namely, section 73—applies to the former case and not the latter. The language of both clauses certainly lends itself to the defenders' criticism, but I am unable to adopt the construction which they suggest. It is true that by section 38 it is the owners and occupiers of ‘such grounds and premises’ to whom satisfaction is to be made, and that in the preceding part of the clause the expression ‘grounds and premises’ is used with reference to making reservoirs and not to laying pipes; and further that while the power conferred as to reservoirs is ‘to take and use grounds,‘the expression used as to the aqueducts is simply power’ to make the necessary cuts, … to construct the necessary aqueduct, … and lay the necessary pipe or pipes. ‘It is further pointed out that in the clause as to making satisfaction (section 73), the claim to be made by the owners or occupiers is described as ‘the sum which they demand as damage or recompense for the ground or other subjects taken or to be taken for the purposes of this Act.’ Giving all due weight to these considerations, my opinion is that these sections read as a whole clearly import the right of anyone through whose lands the pipe passes to make a claim in respect thereof. The case dealt with in section 73 as opening a claim for ‘satisfaction’ is the case of an owner of any grounds or other property required for the purposes of the Act, specified in the schedule thereto, refusing to treat, contract,

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or agree to sell the same, ‘or to allow the company to enter upon, use, or take the same for the purposes of this Act.’ I cannot doubt that this includes the case of ground entered upon and used for a pipe—track; and a reference to the schedule shows that the very ground now in question is therein specified under the general heading of ‘Aqueduct from Crawley Spring to the City of Edinburgh.’ Then, recurring to section 38, the direction as to giving one month's notice to the owner and occupier, and making satisfaction to him, is grammatically connected in the most direct manner with what goes immediately before as to making aqueducts and laying pipes.

Then it is said that by section 75 it is provided that payment is to be a condition precedent to lawful possession by the company, and that there is no proof of payments by the company to the defenders' predecessors in respect of the pipe-track. They take a piece of ground in feu where the pipe required to be in deep cutting, and they have an express title to that. But as regards the parts where the pipe is simply laid in the ground and covered over no title is shown and no payment proved, and the suggestion is, that this was so trivial an interference with the proprietary right, that the statute may well be supposed to have taken no account of it in the matter of compensation. But if the statute uses language which covers the case, as I think it does, it is more natural either (1) to suppose that the proprietors of Pentland and Straiton were ready to waive their claim to compensation for the pipe-track, or (2) to presume after so long a time as eighty years that all claims were settled and paid. Certainly the documents produced, dated in and shortly after 1820, show both as regards Pentland and Straiton that parties were in active negotiation as to matters arising out of the pipe-laying—such as, the sums to be awarded to the tenants for surface damage, the amount to be arranged for with Mrs Gibsone of Pentland, and the quarrying of stone in Straiton for use in the works. It cannot therefore be suggested that the thing was done behind the backs of the proprietors. They must have been quite well aware of what was going on, and the inference I draw is, that payment or ‘satisfaction’ in respect of the laying of the pipe was either adjusted and settled or was deliberately waived.

Now, it is true that the Act of 1819 makes no reference to minerals, and it may be that no one then had sufficient foresight to claim, or at all events to claim adequately, for the loss of available minerals which is involved in the right of absolute support to the pipe. But if such claim was open under the statute, and was either waived or assessed and paid, I do not see how the singular successors of the then owners can take the objection that the claim might have been for a larger amount.

As showing the result in law of the view of the statute which I have adopted, the pursuers rely on a series of English cases— Normanton Gas Co., 52 L.J., Q.B. 629; Benfieldside Local Board, L.R., 3 Ex. Div. 54; Dudley Corporation, L.R., 8 Q.B. Div. 86; and (the latest and most applicable to the present) London and North Western Railway v. Evans, L.R. (1893), 1 Ch. 16. In the last-mentioned case the Railway Company were owners of a canal, and Evans was owner of minerals under the canal, which he had worked so as to cause a subsidence. The value of the minerals to be left unworked, if the right to support was absolute, was estimated at £144,000, and the outside cost of repairing the canal, if all the coal were worked out, at £5550. The canal had been made by private undertakers under an old statute which contained no reference to minerals, and under which no conveyances had been granted. The principle on which the Appeal Court proceeded is thus expressed by Lord Justice Bowen—‘Where an express statutory right is given to make and maintain a thing necessarily requiring support, the statute, in the absence of a context implying the contrary, must be taken to mean that the right to necessary support of the thing constructed shall accompany the right to make and to maintain it. More especially would this seem reasonable when the thing to be constructed is one of public advantage and utility in which the public are to have rights.’ Then the learned Judge deals with the presence or absence of a compensation clause as of first-rate importance in construing such a statute, and holding that the statute contained apt words of compensation for the right of support in the expression ‘first making satisfaction to the owners of such lands as shall be made use of,’ he goes on to say—‘It is true that at the date of the Act the minerals were not thought to be of value, and were not taken into account in assessing the actual compensation exacted. But if the right of support was not substantially measured in the price given for the lands taken and used, it might have been demanded and estimated in the price had the owners been sufficiently prescient, and after this lapse of time it must be assumed that all was paid for which was capable of calculation or measurement, and which was thought worth claiming by the owners, and that all conditions-precedent have been fulfilled which were requisite to give the canal proprietors the right to the necessary support for the maintenance and making of their canal.’ I need not stay to point out how closely all this applies to the case in hand.

One difference there is, namely, that a canal occupies the surface of the ground, while in this case the pipes are beneath the surface. This, however, seems to me to make no difference in the application of the principle which establishes the right of support (see the cases of Normanton Gas Co., where the subject was a gas-pipe, and Dudley Corporation, where it was a sewer) though it may make some difference in the precise nature of the right which the undertakers have to the ground occupied by their works. I do not think the obligation of support is affected according as that right to the ground is truly property in the

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highest sense, or is a perpetual and irrevocable right to the exclusive use of the strip or stratum of soil occupied by the pipe. Such a right has nearly all if not all the characteristics of property, and is obviously capable of sustaining the consequential right of having the pipe supported at its original level.

But then it is said all this has been changed by subsequent legislation. The Act of 1819 was referred to and continued by later statutes before it was repealed with saving clauses in 1847. In particular, the Edinburgh Water Company's Act of 1843 (6 and 7 Vict. c. lxxxix), contains in sections 111–116 a set of mineral clauses which, the defenders contend, must be taken along with the Act of 1819 as furnishing a code applicable to the subjects now in question. It seems to me, however, extremely difficult to adopt that conclusion if the view I have expressed as to the rights of parties under the earlier statute be sound. If, indeed, minerals could be regarded as having been excluded hinc inde under the earlier statute, it would be quite reasonable to introduce later a code to regulate the respective rights and obligations in that particular, and to apply it to the existing works as well as to new works. But then I do not regard the earlier statute as having excluded mineral rights from consideration, and I think that so serious an alteration in the rights of parties as to the existing works is not to be imposed unless the construction contended for is a necessary one. As I read the Act of 1843, its mineral clauses do not apply except to the new works thereby authorised, which, it is to be observed, are almost entirely situated in the parishes of Penicuik, Colinton, and Currie, and not at all in the parish of Lasswade, in which Straiton and Pent—land lie. It is quite true that the previously existing works are not altogether unaffected by the Act of 1843. Thus by section 124 the company are taken bound within five years to complete the necessary works for introducing the whole of the water which they were authorised to take ‘by the said recited Acts and this Act.’ By section 125 it imposes on them the duty of providing and maintaining a meter on the main Crawley pipe; and by section 141 they are bound to erect and maintain an additional gauge on the Glencorse Burn, below the works at Crawley. These and other enactments show that the Act of 1843 had the existing works distinctly in view; but I cannot hold that the expression ‘the works of the Company,’ contained in the mineral clauses, applies to the works then in existence, the rights in which had been acquired more than twenty years before.

The pursuers present an alternative case on this head. They allege a right of servitude, founded on the ownership of the reservoir on the Castlehill, which has been vested in them and their predecessors since before the middle of the last century, and which ever since the Crawley pipe was opened in 1823 has been receiving by it a continuous supply of Crawley water. The proof clearly establishes these facts. In the view I take, however, of the pursuers' rights, it is unnecessary to follow out this topic. The plea rests, as I understand the pursuers' case, upon implied grant, importing an obligation not to derogate from that grant by letting down the pipe. It seems to me it would be difficult to affirm an implied grant in a case where the origin of the right of aqueduct is perfectly well known, seeing it rests on the statute of 1819. I could understand the contention that the Act of Parliament itself imports a statutory grant of servitude; but there seems to be no room for grafting a common-law servitude upon the statutory enactments.

The next question is, whether, assuming the right of support to exist, the defenders' operations, if continued, will substantially interfere with that right. By the right of support, I mean the right to have the pipe supported as it lies, and at its present level, whether by the natural strata being left undisturbed, or by means of some substituted structure which will ensure the same result ab ante. I put the question thus because I think that must necessarily be the extent of the right of support, if it exists, and because the parties are not really so far apart on the questions of fact as they appear to be on the proof. The conclusions of the summons do not expressly put the pursuers' case so high as to demand support by the natural strata, and to exclude substituted support. On the other hand, it is, I think, clearly established that a continuance of the defenders' threatened operations will result in substantial lowering of the pipe and imminent risk to the water supply. Further, the pursuers' criticism of the position taken up by the defenders as to substituted support seems to me perfectly sound, namely, that it contemplates not the prevention of subsidences, but their cure. The sits or draws which are assumed by all the witnesses to be practically inevitable as the result of the defenders' operations are to be watched for, and a massive structure of beams or girders is to be applied, from which the pipe is to be slung with chains, with appliances for screwing up the pipe from time to time as the level alters. It appears to me that, even apart from the pursuers' evidence, which is weighty, the defenders' own witnesses (Mr Rankine, Mr Dixon, Mr Scoular, and Mr Armour) show that the pipe would from time to time over a considerable part of its course be in a condition of peril, would need careful watching, and would be liable at least to ‘drawn joints’ and consequent leakage, if not also to breaks and stoppage of the supply. Add to this, that the pipe in place of being underground, as it is now, would be exposed in considerable sections to atmospheric influences, and might be damaged by frost if the flow were sluggish; and it becomes plain, in my opinion, that the defenders' proposed substituted support is not support at all in the sense in which the pursuers are entitled to it. What they are entitled

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to have, in the lowest view, is efficient substituted support for the pipe at its present level and in its present situation; and in my view this requirement is not met by any of the proposed alternatives.

The result is, that in my view recourse must be had to the only possible alternative, to leave a certain area of the minerals unworked for the support of the pipe. The question is, how is that area to be defined? In their summons the pursuers conclude that the Court should, ‘by remit to a person or persons of skill or otherwise,’ fix and determine the limits within which the defenders should be bound to abstain from working, or otherwise the manner and conditions in and under which the workings may go on adjacent to the feu, and under and adjacent to the pipe. The defenders maintain that the words ‘or otherwise’ are not sufficient to include the determination of the area by a decree following on a parole proof, but this, I think, would be too critical a construction. It might be inexpedient and possibly unfair so to fix it, if the proof showed serious divergence in point of principle between witnesses of equal skill. But the weight of the evidence seems to me to be all in one direction, possibly because the defenders' purpose on this head is not so much to minimise the area to be left unworked, but rather to show that none (except a little at the outcrop) need be left unworked if their proposal for mechanical substituted support is adopted. All agree that some of the mineral near the outcrop should remain as it is, the limit being variously stated at from 100 to 200 yards. As to the area traversed by the pipe between that limit and the east end of the feu, the defenders' witnesses, Mr Rankine, Mr Miller, and Mr Armour, practically concede that this could not be worked out without affecting the level and stability of the pipe to the extent at least of causing drawn joints, and their suggestions go to remedy rather than prevention. But on the assumption that these suggestions are in adequate to satisfy their obligation of support, the defenders' witnesses do not really suggest any practical alternative to the rule formulated by the witnesses for the pursuers. All agree that to the rise of the strata the line of safety is to be found by dropping a ‘normal’ or perpendicular line to the strata from the surface point to be protected. But to the dip, the defenders' witnesses have really no practical suggestion to make as to how the limit of safety is to be ascertained, and their theory, such as it is, does not appear to have ever been adopted in practice—certainly not by the defenders in their plans—and it is contradicted by the evidence of how far actual subsidences extended as noted on the defenders' working plans from time to time. The pursuers' witnesses, indeed, are not at one either upon this point, but they are substantially so. The evidence discloses a variance between the practice in England and Scotland. In Scotland the slope or batter left to the dip in the ordinary case is one in four; in England it appears to be a little less, namely, one in five. I see no reason to doubt that the English rule will furnish a sufficient margin of safety, and there being no special circumstances here to suggest that the situation is specially risky, I am prepared to apply that rule in this case.

Then as to the feu, it is not disputed that the defenders cannot work any further minerals under it, as these belong in property to the pursuers. The controversy, therefore, turns upon whether the pursuers are entitled in present circumstances to have the limits of safety applied to the boundaries of the feu itself, irrespective of the pipe lying in it; in other words, whether the right to lateral support of land to land entitles them to interdict adjacent workings ab ante on proof of danger reasonably apprehended. That there is such reasonable apprehension of subsidence in the surface of the feu if the defenders work out the adjacent minerals in their own ground, is, I think, clearly proved, not merely by the subsidence which occurred there some years ago (for that followed on an encroachment made by the defenders' workings within the fen), but by applying the ‘limit of safety’ to the feu boundary all round. There is practically the same reason for apprehending subsidence of the feu when that limit is overpast as for apprehending subsidence of the pipe. But the difficulty I have felt on this part of the case is caused by certain English authorities, of which Smith v. Thackerah (1866, L.R., 1 C.P. 564) is one and perhaps the strongest. They appear to lay down that the owner must wait till actual damage arises, and that even when the surface has in fact been lowered by the withdrawal of lateral support, no action will lie unless substantial damage has accrued. There may be a distinction between the case where the two adjoining subjects have never been united in one ownership, and the case where (as here) the complainer derives his grant from his neighbour, or his neighbour's predecessor. Smith v. Thackerah has been doubted in more recent cases, on the ground that if the right of support of land to land has been actually infringed, an action ought to lie at least for nominal damages, even if the damage is not substantial. But if that point is reached, I do not see how in Scotland the remedy of interdict is not appropriate and competent to safeguard the right, on proof of reasonable apprehension of imminent risk of subsidence if the workings are continued past the limit of safety, and in my opinion that is established here by the proof.

It remains to consider the defenders third plea-in-law that the pursuers are barred by their actings from insisting in this action. It is said that the defenders have in the knowledge of the pursuers spent a large sum of money—upwards of £5000—in developing and working their mineral field in such a way that a large part of the expenditure will be rendered useless if the pursuers succeed. This is a plea which depends largely on facts, and on the facts here I do not see my way to

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sustain it. It must be kept in view that, assuming the right to support, the pursuers had no title to interfere with the defenders' workings until that right was seriously threatened. What they got from the defenders from time to time in the way of information was contained in the notices given as under the Waterworks Clauses Act, and the notices which gave occasion to the present disputes were not given until all or nearly all the expenditure had been incurred. At the most the prior notices would bar the trustees from insisting on the defenders going back upon anything they had done in pursuance of those notices. I see nothing to suggest that the pursuers were aware of the defenders being in course of incurring expenditure for a specific purpose, and wrongfully failed to let them know that the purpose was regarded by the Trustees as contrary to their rights.

In the result my opinion is that the pursuers are entitled to decree substantially as concluded for.”

The defenders reclaimed, and argued—(1) It was clear that under the Act of 1819 the defenders were not specifically given any right of support for their pipe, and accordingly they must show that such a right was implied in the statute. In considering the statute with regard to this point, three questions must be kept in view, viz., ( a) What was the nature of the work, was it compulsory and of a public nature? In that case it must be admitted there would be a presumption that a right to support was implied. ( b) Was the authority to construct given by the statute such a one as put upon the proprietor the duty of claiming compensation, his right to it being lost if he failed to do so? ( c) Did

the statute contain any provisions which, if the body authorised had chosen to put them in force, would have given it a right of support? Looking to the terms of the statute, all these questions would be answered in the negative, and it followed that the pursuers had not this implied right. The doctrine of the case of the London and North—Western Railway Co. v. Evans, [1893], 1 Ch. 16, on which

the pursuers relied, did not apply, because in that case the purpose of the undertaking was a public one, and the proprietors' right to compensation had been partly satisfied, the Court holding that the claim for compensation must be made once and for all, and that no new element could be taken into account. Here the purpose of the undertaking was not public, and no claim for compensation had been made— Roderick v. Aston Local Board, (1877) 5 Ch. Div. 328; Metropolitan Board of Works V. Metropolitan Railway Company, L.R. (1869), 4 C.P. 192; in re Corporation of Dudley, L.R. (1881), 8 QBD 86, at p. 93. Moreover, the cases on which the pursuers founded turned upon the construction of different statutes, and it was not competent to argue that there was an implied right in one statute by analogy from another— Knowles & Sons v. Lancashire and Yorkshire Railway Co., 1889, 14 App. Cas. 248, at p. 253. As regards the pursuers' claim of lateral support for the strip held in feu by them, and the pipe in it, the defenders did not dispute that the pursuers were entitled to support for the land itself in its natural state, but it by no means followed they were entitled to such support for the pipe, a thing which had been inserted in the ground by themselves, and which increased the burden upon adjacent lands— Dalton v. Angus, (1881), 6 App Cas 740. (2) There was no record of any payment having “been made, or contract entered into with reference to the laying of the pipe, and accordingly the rights of the pursuers must be determined, not by the Act of 1819, but by that of 1843. The mineral clauses in the later Act, secs. 111–116, must be taken as giving a code for regulating the rights of parties. “The works of the Company” to which these clauses referred must apply to works already existing and not only to those authorised by the Act. Accordingly, even if the pursuers had their alleged right of support under the Act of 1819, it must be held to have been modified and regulated by the Act of 1843. (3) Asto the pursuers' contention that they had a common law right of servitude of aqueduct, in respect of which they were entitled to support, there was no relevant averment of such a right. It was not enough to say they had laid a pipe and carried water through it for more than forty years. They must show that they had done so as of right. Mere possession was not enough, there was nothing to show anything but tolerance on the part of the proprietors— Macnab v. Munro-Ferguson, January 31, 1891, 17 R. 397; Duke of Athole v. M'Inroy's Trustees, February 8, 1890, 17 R. 456; Waddell v. Earl of Buchan, March 26, 1868, 6 Macph. 690. Accordingly, all the right possessed by the pursuers was to open up the ground and put in a pipe, and it was impossible apart from an implication drawn from their authorising statute—which it had been shown that statute did not bear—to predicate a right of support. (4) But assuming such right to exist, interdict was not an appropriate remedy to prevent a contingent injury which might never arise. The ground of action did not arise until the pursuers had sustained some injury to their pipes, when they could raise an action— Backhouse v. Bonomy, 1861, 9 Clarke's H. of L. Ca. 503; Darley Main Colliery Company v. Mitchell. [1886], 11 App. Ca. 127; Normanton Cas Company v. Pope & Pearson, 1883, 52 L.J.Q.B. 629, at 634; Stevenson v. Pontifex & Wood, December 7, 1887. 15 R. 125; Hood v. Traill, December 18, 1884, 12 R. 362.

Argued for the respondents—(1) The Crawley pipe was laid by the respondents' predecessors under the statute of 1819, and in respect of the terms of that statute, and in particular of sections 38 and 73, they were entitled to an absolute unqualified support for the pipe. Where a right was given by statute to do a certain thing, such as to lay a pipe, and there was also a right of compensation given to the proprietors, there was a strong presumption that a right to

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support for the pipe was implied since otherwise the right given would be worthless. That principle applied still more strongly in a case such as the present where the undertaking was one of public advantage and utility. The case of The London and North—Western Railway Company v. Evans [1893], 1 Oh. 16, was precisely in point. See also In re Corporation of Dudley, L.R. [1881], 8 QBD 86; Normanton Gas Company, 1883, 52 L.J.Q.B. 629; Benfleldside Local Board v. Con—sett Iron Company [1877], 3 Ex. Div. 54 It was true that these were English authorities, but in Caledonian Railway Company v. Sprot, 1856, 2 Macq. 449, the Scottish law of support was said to he the same as the English. The defenders argued that no compensation had in fact been paid when the pipe was laid. But the fact that the proprietor had not applied for it and had waived his right did not affect the pursuers' statutory rights. The right to compensation was a personal one, and did not run with the lands— Kelvinside Estate Company v. Donaldson's Trustees, June 5, 1879, 6 R. 995. Accordingly, the case must be treated in the same way as if compensation had actually been paid. (2) If these were the pursuers' rights under the Act of 1819, there was nothing in the Act of 1843 to take them away. Such confiscation would not be presumed without statutory compensation being given for it. There were provisions in the later Act to obviate the necessity of undertakers acquiring the whole land for their undertaking, and as to the purchase or working of minerals adjacent to the works authorised by the Act itself, but there was nothing to derogate from the pursuers' rights with regard to the existing works. The “mineral” clauses were in no sense intended to introduce a code to regulate these existing rights. (3) Alternatively, if the pursuers were outside the statute, they had a common law right to support. Being the owners of the reservoir on the Castlehill, and having enjoyed for more than seventy years a continuous supply of water through the Crawley pipe, they now had a right of servitude, one of the incidents of which was the right of support. They were in precisely the same position as if they had a grant, from which the granter could not derogate. (4) Assuming their right to support, what kind of support were they entitled to? An absolute right to have the pipe supported at its present level— Caledonian Railway v. Sprot. supra; Dalton v. Angus [1881], 6 A.C. 740. It was no answer for the defenders to say that when they had infringed the pursuers' statutory right, there were expedients by which the injury done might be remedied. The substituted support suggested by the defenders contemplated a remedy for subsidences, not their prevention, and it was the latter to which the pursuers were entitled. The defenders did not seriously challenge the Lord Ordinary's findings in fact that there would be subsidences and damage to the pipes. The pursuers were entitled not only

to a declarator of their right but to interdict in the form proposed by them— Trinidad Asphalt Company v. Ambard [1899], A.C. 594; Elliott v. North—Eastern Railway Company, 1863, 10 Clarke's H. of L. Ca. 333.

At advising—