Scottish Court of Session Decisions

This was an action of declarator relative to the rights of parties in the Partick Mill Dam on the river Kelvin. The pursuers were the owners of the Old Mill of Partick, otherwise known as the Bishop Mill, and the defenders the owners of the Scotstoun Mill. These mills were on opposite sides of an old mill dam called the Partick Mill Dam, formed by a weir thrown across the river Kelvin, the Bishop Mill being on the north side of the dam and the Scotstoun Mill on the south side. They were nearly ex adverso, and each drew the water for its wheels from the dam by sluices on the north and south sides of the damhead respectively. There were two defenders to the action as raised—the owners of the Scotstoun Mill and the owners of the Slit Mills, also situated on the bank of the river Kelvin, but the Slit Mills had been closed for some years, and the owners withdrew from the litigation under an arrangement with the pursuers.

The rights of parties to the water in the Partick Dam had been for long in dispute, and had been the subject of several litigations. The present action arose out of the fact that in 1900 the pursuers erected an additional turbine wheel, by which they very materially increased the supply of water for the use of their mill. As a consequence the defenders were compelled, as they averred, from time to time to draw off the water for the purposes of their mill when the water in the dam was not level with the damhead or overflowing, thereby, as the pursuers averred, interfering with the supply of water necessary for the pursuers' mill. The present action was accordingly raised, the conclusions of the summons being—“That the pursuers, as proprietors of the Old Mill of Partick, now commonly known as the Bishop Mill, are entitled to the first water of the river Kelvin for the use of their said mill, as the same now exists as regards its capacity to draw water— that is to say, to the extent of 6000 cubic feet per minute ( without prejudice to the rights and pleas of parties in the event of any future extension of said mill), and that in preference to the Scotstoun Mill belonging to the defenders, … and that the defenders … are not entitled to withdraw any water from the dam of the river Kelvin immediately above pursuers' and said defenders' said mills, and which dam is generally known as the Mill of Partick Dam, or to allow any water to pass therefrom through their sluice at any time save and except only when the said dam is full, and the water therein either standing level with the dam-head or running over, and then only to the extent of 2077 cubic feet per minute, and the defenders … and the partners thereof ought and should be interdicted, prohibited, and

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discharged by decree foresaid from withdrawing any water from said dam, or allowing any. water to pass therefrom through their said sluice at any time save and except only when the said dam is full, and the water therein either standing level with the dam-head or running over, and from at any time withdrawing water from the said dam to a greater extent than 2077 cubic feet per minute.”… [The words in italics were added by minute of amendment for the pursuers during the debate on the reclaiming-note. ]

The following narrative is quoted from the opinion of the Lord Ordinary ( Kincairney):—“The Bishop Mill (the pursuers') is of very ancient date. The pursuers have produced a charter by King David I, which is said to refer to it. I understand that a large part of Glasgow is within its thirl. The Magistrates of Glasgow possessed it for a long time as kindly tenants, and it was not until 1738 that they obtained a Crown charter. That charter proceeds on the narrative that past human memory the Magistrates had possessed the dam with the mill-house and certain ground ‘being parts of the barony of Glasgow,’ as kindly tenants and rentallers, and on the further grounds stated the charter disponed to the Magistrates and their successors in office, heritably and irredeemably, the Mill of Partick on the water of Kelvin, with thirlage and multures and the services of the mill, all in the ordinary terms ‘cum stagnis lie Dammie Inlairs et acqueductis aliisque integris previlegiis et pertinentiis ejusdem.” There follows a precept of sasine in similar terms.

“Prior to that date it does not clearly appear that anyone except the Magistrates made use of the dam. But about that time a company called the Smithfield Company built what is called a slit mill, and they applied to the Magistrates for leave to carry an aqueduct from the Partick Mill Dam to a dam to be erected on their own ground for their slit mill. This petition was granted by the Magistrates, and the aqueduct and dam were constructed, but the minute bears that the operation was to be conducted ‘in such manner that the said Mill of Partick shall receive no detriment or prejudice, and shall be kept in the same order and condition as it is now’—that is, that the Magistrates' mill should not suffer prejudice. This minute bears date 30th May 1738, before the Crown charter, but it was confirmed by another minute dated 3rd January 1740.

“It is to be observed that the owners of the Scotstoun Mills are not mentioned in these proceedings, and do not seem to have been consulted, and it does not clearly appear whether at that precise time the Scotstoun millers drew water from the dam.”

[The first writ of importance in the defenders' progress of title was a charter of resignation by Queen Anne in favour of William Walkinshaw, their predecessor, dated 25th July 1711. The grant was in the following terms:—“Totum et integrum illud molendinum vocatum molendinum Fullonis de Partick cum libertate post hac eodem utendi quasi molendino frumentario una cum duabus ulnis Terræ circa idem,” &c. The defenders also produced an excerpt from a sasine recorded in 1727 on disposition by William Walkinshaw to John Walkinshaw in the following terms:—“All and whole that his miln called the Wake-miln of Partick, now ane corn miln,” &c.]

“A deed has been produced, of great importance in this case, which was granted in 1780. It is by the Smithfield Company, and it bears to sell and dispone to one John Craig, Scotstoun Mill, with certain other subjects mentioned. How the Slit Mill Company acquired the Scotstoun Mill does not appear. But it appears that at first the Scotstoun Mill was a waulk mill or fuller's mill, for which it was said a mill dam was not essential. But that does not signify much, because this deed bears that ‘it was now’ (that is in 1780) ‘made use of as a corn mill.’

“This disposition by the Smithfield Company (slit mills) to Craig bears the following clause:—‘But alwise with and under this condition and provision, as it is hereby expressly conditioned and provided, that the said John Craig and his foresaids, and the miln before disponed, shall have no right to the water of Kelvin until the old Miln of Partick is first served, she having the first water, and until our works at our slit miln on the water of Kelvin for rolling and slitting of iron and grinding of tools is next served, they being declared to have the second water, the same being hereby limited to three wheels, the foresaid waulk miln of Partick hereby disponed being only to have the third water, and for one wheel only. But in case at any future period we or our foresaids shall find it convenient or necessary to discontinue the manufactory of rolling and slitting of iron and grinding of tools, and shall instead thereof erect any other milns or machinery which may require a greater quantity of water than is now used by us, then and in that case the second water so now reserved for our present works shall in all times thereafter, during the scarcity of water, be applied for driving the new machinery so to be erected in the proportions stated, viz., three-fourths of said water shall be applied for the use of the machinery so to be erected by us and our foresaids, and one-fourth thereof shall be applied for the use of the Scotstoun Miln aforesaid, or our said works so to be erected shall go eighteen hours of the twenty-four and Scotstoun Miln shall go the remaining six hours. But in case that we or our foresaids shall have occasion in future to erect upon our works any water wheels besides the foresaid three, all such wheels above three shall have no privilege of water (until the Scotstoun Mill is fully served), whether used as a corn miln or any other purpose, and shall only be used at such times when there is a superplus quantity of water in the River Kelvin running over the damhead after serving the Miln of Scotstoun as aforesaid.’

“The owners of the Bishop Mill were not parties to this deed, although their right to the first water is affirmed or acknowledged in it. Then it is also said that the slit mills

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are to have the second water limited to three wheels, and the waulk mill of Partick ( i.e Scotstoun) is to have the third water, and for one wheel only. This is the first time when the enigmatical phrase first, second, and third waters occurs in the titles. Presumably the parties knew what they meant. But I think no one at the debate knew precisely, and I don't think the term has been successfully explained.

“It is possible that the respective rights of the Slit and Scotstoun mills might he arranged by this deed, but it could not prejudice any right of the Bishop Mill, whose owners were no parties to it.

“I do not think it necessary to trace the history of these mills in more detail. It seems enough to say that the Slit Mills were closed a considerable number of years ago, and no water has since been drawn from the dam on their account, and that the Bishop Mill, after passing through intermediate owners, was sold and disponed to the pursuers in 1897.

“Scotstoun Mill appears to have remained in the possession of John Craig and his successors until 1839, when it was sold to John Blackwood, and by him in 1854 to John White, father of the defenders, from whom it passed in 1897 to the present defenders.

“With regard to the possession and use of the dam by the Bishop Mill and Scotstoun Mill, it appears that parties are agreed (1) that Bishop Mill was entitled to draw and did draw the first water, although I do not think they are agreed as to the precise import and effect of that right and privilege; (2) that from 1780 to 1865 the owners of Bishop Mill drew no more than 1200 cubic feet per minute; I am not able to point to any document in which this measure of their use is stated. But I understand that parties are agreed about it. Further, I understand that parties are agreed that about that time the Scotstoun Mill was in use to draw 2077 cubic feet per minute, but that only after the Bishop Mill's right to the first water was satisfied.”

The pursuers pleaded, inter alia—“(1) Under and by virtue of their titles, the pursuers being entitled to the first water of the river Kelvin for the use of their mill in preference to the defenders' mill, they are entitled to declarator and interdict as concluded for. (2) The defenders … having no right to the water of the Kelvin, except to the third water, and that at the time and to the extent mentioned in the summons, the pursuers are entitled to declarator and interdict, as craved. (3) The pursuers' right being a right of property in the dam and water, they are entitled to increase the extent of their use thereof as occasion requires.… (6) In respect of their title and the use and possession had by them and their authors, the pursuers are entitled to decree as concluded for.”

The defenders pleaded, inter alia—“(3) The pursuers not being entitled to any preferable right to the use of the water of the dam to a greater extent than is in accordance with prescriptive usage, are not entitled to maintain their present claims.”

On 27th October 1903 the Lord Ordinary ( Kincairney) allowed a proof, in which the facts above stated were ascertained or admitted.

On 6th July 1904 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Finds (1) that the Bishop Mill, belonging to the pursuers, and the Scotstoun Mill, belonging to the defenders, are situated on the mill dam of Partick, on the Kelvin, and are ex adverso of one another; (2) that by Crown charter, dated 22nd September 1738, there was disponed to the Magistrates of Glasgow the said Bishop Mill with various pertinents, including ‘dams’ (3) that in 1809 the said subjects were sold by the said Magistrates to John Gibson and others, and thereafter, by subsequent transmissions, they came in 1897 to be vested in the pursuers, and that the pursuers are now in right of the subjects conveyed by the said Crown charter; (4) that from the date of said Crown charter in 1738 the said Bishop Mill has been served with water from the said mill dam; (5) that from 1780 or thereby, and for more than forty years thereafter, the Scotstoun Mills belonging to the defenders have been served with water from the said null dam; (6) that the defenders have acquired by prescriptive use and possession, founded on a sufficient title, a right to draw water from the said mill dam for the use of the said Scotstoun Mill; (7) that by the first part of the conclusion of the summons, viz., ‘that the pursuers are entitled to the first water of the river Kelvin for the use of their said mill, and that in preference to the Scotstoun Mill,’ the pursuers seek for a declarator which, if granted, would enable the pursuers to draw the whole water in the dam and exclude the defenders from all use thereof: Therefore assoilzies the defenders from the first part of the conclusion: Quoad ultra finds it unnecessary to dispose of the conclusions of the summons, and decerns.”

Opinion.—[ After the narrative quoted above his Lordship proceeded]—“A long proof has been led and many titles and other documents have been produced. There have been various litigations already between the owners of these mills, the processes in which have been produced, so that this process has become very bulky and cumbrous.” [The litigations referred to are sufficiently noticed in the opinion of Lord Moncreiff infra.] “Yet when the precise meaning of the conclusions is attended to it does not seem necessary to enter into much detail in advising the case. The first part of the conclusion seems to claim an unrestricted use of the water in the dam so long as it can be utilised for the Bishop Mill. The second part of the conclusion, with the corresponding interdict, seems to deny the defenders' right to draw water from the dam except when it is full, but apparently to concede that right when it is full.…

“The first question is, whether decree should be pronounced in terms of the first conclusion, or whether there should be absolvitor from that conclusion.

“That first conclusion is that it should be declared that the owners of the Bishop Mill are entitled to the first water of the river Kelvin for the use of their mill.

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“Now, the meaning of this conclusion depends on the meaning of the phrase ‘first water.’ What is meant by first water? Does it include all the water in the dam or some definite part of it? I understand that the Scotstoun owners admit, and have all along admitted, that the Bishop Mill owners are entitled to a certain preference which they call first water. But they maintain that the amount of first water must be determined by previous usage. They say that the Bishop Mill owners are entitled to the first water, but only to the extent of 1200 cubic feet. The Bishop owners claim the right absolutely without any restriction, unless it be only that they are bound to use the water for the mill, and that is certainly the nature and extent of the pursuers' claim. They think they will settle all the questions which have arisen between them on the footing of joint ownership of the dam by denying the defenders' right altogether, because they claim it was a piece of heritable property under their Crown charter of 1738. They maintain that that deed gives them an absolute right, just as if the dam was a rood of agricultural land, and that no one could use the mill afterwards without their permission, because it is covered by their heritable title and sasine. Thus the pursuers' case rests on title, and the defenders' on prescription.

“I hesitate to accept the pursuers' argument on the title. I think, no doubt, that it puts a meaning on the charter which it will bear, but that it is not its necessary meaning.

“There is no question here about the property of the alveus. It has not been suggested that anyone is proprietor of the alveus except the pursuers under their Crown grant. But this is a question about the water, not the alveus. A dam is a portion of the flowing water of the river which has been temporarily arrested, and it does not appear to me that a disposition of a dam necessarily gives an exclusive right to all the water in it. I rather think it means a right to use the dam as a dam, but not necessarily an exclusive right. I do not remember that any authority on this point was quoted.

“Now, had the pursuers been able to point to such a use following the charter as indicated, a claim to or an assertion of an exclusive use the case would have been different. But that was not the character of the use which followed the charter. For more than forty years the pursuers drew a comparatively small part of the water from the dam and left the rest to others. I do not affirm that the pursuers were thereby ever after restricted to 1200 cubic feet per minute—I am not trying that question—only that their practice was not such as would support a claim to an exclusive right. The defenders maintained that as riparian proprietors, though they were nothing else, they could object to the pursuers' summons. I understand the argument to be something like this. Conceding your right of property in the dam, still you cannot abstract more water from it than your prescriptive use warrants, because it is flowing water, and you cannot detract from it without the consent of the riparian proprietors. I doubt whether the law as to riparian proprietors, whose right does not include the alveus, can be extended to the case of a dam, and in the absence of authority I am not prepared to affirm it. This dam has existed for above 800 years, and I hesitate to say that it is to be treated as flowing water all along.

“The defenders maintained that no property could be acquired in water without appropriation. I do not see how to affirm that proposition as applicable to a mill-dam. Surely this mill-dam was the property of somebody during the 800 years of its existence—a right of property which involves the right to put the arrested water to the uses subserved by the water in a dam. I suppose that until 1738 it was the property of the Crown.

“The pursuers maintained that their case was not affected by the negative prescription, because although they did not make full use of their property their abstention was res meræ facultatis and could not affect their right. This argument, of course, assumes the pursuer's original right, and if that be assumed I incline to think that the argument that the right was not lost by mere non-use is well founded. But the defenders' best answer to the pursuers' claim to an exclusive right to the dam seems to be in their plea of positive prescription. I understand that for much more than forty years (perhaps a hundred) the proprietors of Scotstoun supplied their mill with water from this dam. They and the pursuers were using the dam together, and this, prima facie, would entitle the defenders to claim the right to continue to use it. But now it is objected that they have no title on which their plea of prescription can be vested. But when possession has lasted for a hundred years, and no misunderstanding is alleged, it seems late in the day to plead no title. I need not discuss the question whether a prescriptive title is necessary. See Kintore v. Pirie, May 30, 1903, 5 F, 813, per Lord M'Laren. But I think the defenders have a sufficient title for prescription in the deeds which were produced late in the debate, in particular in the Crown charter by Queen Anne in 1711, the application of which to the Scotstoun Mill was admitted. The plea that the possession of the Scotstoun owners was mere matter of favour seems inconsistent with the whole history of the case and the continual litigations. The origin of the Scotstoun admission to the benefit of the dam does not seem to be known.

“On the whole, on this matter it appears to me that the owners of the Scotstoun Mill have acquired by prescription a right to draw water from the Partick dam. I do not say how much water or under what conditions. No questions of that character are raised by the first conclusion of the summons—nothing, I think, but a claim to exclusive right, and it seems to me that the defenders have adduced a sufficient title to enable them to plead their possession against this claim.

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“If the pursuers have not an exclusive right to the whole water in the dam, and a right to prevent everyone else from using the dam, the only possible result is absolvitor from that conclusion.

“The following cases were referred to on this branch of the case— Lyons & Gray v. Bakers of Glasgow, 1749, M. 12,789; Dick v. Abercorn, M. 12,813; Mackenzie v. Waddrop, 1854, 16 D. 381; Hunter v. Aitkenhead, 1880, 7 R. 510. But the whole law is to be found fully discussed in Kintore v. Pirie, supra.”

The pursuers reclaimed, and argued that under the charter of 1738 the Bishop Mill acquired an unqualified and exclusive right to use the water in the dam so long as the use was confined to the legitimate needs of the mill. This right was recognised in all subsequent deeds in which the Bishop Mill was mentioned. The Scotstoun Mill had no express title to any water-rights till 1780, and then only under a deed to which the proprietor of the Bishop Mill was not a party and in which the rights of the Bishop Mill were reserved. The defenders' contention that right to use the water was conferred on them by their charter of 1711 was not borne out by the evidence as to use or by the deed itself. Even admitting that the defenders were riparian owners, this did not help them in a question with the pursuers, whose rights depended on express grant, the common law of riparian ownership not being applicable to the present case— James v. Montgomerie & Company, December 18, 1903, [1904] AC 73, 41 S.L.R. 137. The pursuers were entitled, even to the prejudice of the defenders, to increase their use of water beyond what they had hitherto taken— Lyon & Gray v. Bakers of Glasgow, January 7, 1749, M. 12,789—and their right under their charter to take an unlimited supply was res meræ facultatis, which could not be lost by disuse— Smith v. Stewart, June 13, 1884, 11 R. 921, 21 S.L.R. 623. The defenders had no competing title of property, and had not, at least in a question with the pursuers, prescribed any competing right which could limit the pursuers' right under their titles. As heritable proprietors under their charter of 1738 of the dam and the alveus of the stream, the pursuers were entitled to use the water as they required— Dick v. Abercorn, November 16, 1769, M. 12,813; Baird v. Robertson, February 2, 1836, 14 S. 396; Scottish Highland Distillery Company v. Reid, July 17, 1877, 4 R. 1118. In any event, the defenders' rights, if any, were limited to 2077 cubic feet per minute, the quantity taken by them from 1780 onwards.

Argued for the respondents—The pursuers had not under their titles an exclusive right to the water. Under their charter of 1711 the defenders acquired right to use the mill as a corn mill, and the evidence showed that it was used as such before 1727. This implied a grant of some water rights 27 years before the date of the deed founded on by the pursuers, and it was not to be assumed that the Crown in 1738 intended to derogate from its grant to the defenders in 1711. The rights of parties accordingly fell to be determined by the evidence as to possession for the prescriptive periods. The right of the pursuers was limited to 1200 cubic feet per minute, the amount de facto used by them since 1780— Hunter & Aitkenhead v. Aitken, January 23, 1880, 7 R. 510, 17 S.L.R. 319; Earl of Kintore v. Pirie & Sons, Limited, May 30, 1903, 5 F. 818, 40 S.L.R. 210. By prescriptive possession the defenders had acquired a right to draw 2077 cubic feet per minute, and the pursuers were not entitled to increase their use in any way which might prejudice this right. Apart from the question of title the defenders, as riparian owners, were entitled to have the pursuers restrained from increasing their use of the water— Mason v. Hill and Others, January 27, 1832, 1 L. J. (N.S.) K.B. 107; Bealey v. Shaw and Others, February 7, 1805, 6 East 208; Embrey and Another v. Owen, April 30, 1851, 20 L.J. (N.S.) Ex. 212; Bicket v. Morris, July 13, 1866, 4 Macph. (H.L.) 44, 2 S.L.R. 222; Orr Ewing & Company v. Colquhoun's Trustees, July 30, 1877, 4 R. (H.L.) 116, per Lord Blackburn, at p. 126, 14 S.L.R. 741. The defenders' rights depended on their position as riparian owners, and it was not necessary that they should own any part of the alveus— Lyon v. Fishmongers Company, July 27, 1876, 1 App. Cas. 662.

In the course of the debate on the reclaiming note a minute was lodged for the pursuers, in which they stated that, “with the view of making the declaratory conclusion of the summons more plain,” they desired to amend it by the addition of the words in italics above quoted.

At advising—