Scottish Court of Session Decisions

At advising on 7th December 1938,—

LORD JUSTICE-CLERK (Aitchison).—In this action the pursuer, who is the owner of heritable property consisting of a dwelling-house and gardens situated at No. 1 Kirkford, Stewarton, seeks a declarator against the defenders, the owners of an immediately adjoining property, that he has a prescriptive right of servitude to carry all sewage and other effluent from his lands through the lands of the defenders along the line of an existing fireclay sewer drain in the defenders' lands to a sewer in the public road beyond the defenders' boundary. The Sheriff-substitute, after an elaborate inquiry into the facts, decided against the pursuer, and on appeal the Sheriff adhered. The pursuer now appeals to this Court. [After the narrative printed supra his Lordship proceeded]—

The first thing is to examine what use and possession has been had by the pursuer and his authors between 1891 and 1931 of the channel through the defenders' lands. There is a dispute as to whether the stone conduit in the pursuer's lands prior to 1905 linked up with a stone conduit in the defenders' lands or with a horseshoe tile drain in these lands. No trace of a stone conduit has been found, whereas a horseshoe tile drain is still in situ joining at each end with a portion of stone conduit and indicated on the plan by the pink line. The Sheriff-substitute has held in fact that the old stone conduit behind the pursuer's house discharged into this horseshoe tile drain, which carried its contents through the defenders' ground until it joined up with a stone conduit at the boundary at Cutstraw Road, which discharged into the river Annick. The horseshoe tile drain is a very old drain, 50 years or more; it is a field or catch drain to which the pursuer's conduit would naturally link up; and, in the absence of any evidence of a stone conduit in the defenders' lands except at each end of the horseshoe tile drain, the conclusion seems to me to be irresistible that it formed the connecting channel between the pursuer's conduit and the conduit in Cutstraw Road—that is to say before 1905, because, after 1905, the fireclay drain was put in and became the channel for effluent from the pursuer's lands through the lands of the defenders. In relation to the matter of use we are now considering, the point is really immaterial, because there is no doubt that a channel of some kind existed throughout the entire prescriptive period, beginning in the pursuer's lands and passing through the defenders' lands and thereafter to the river Annick or the public sewer. The question is as to the character of the use of this channel by the pursuer and his predecessors during the prescriptive period.

Since 1922, when the pursuer installed water drainage in his house, all his sewage has passed through the defenders' lands by means of the fireclay pipe. Prior to 1905, it is sufficiently proved that, from 1891 onwards and earlier, effluent from the row of houses, other than closet sewage, was discharged into the pursuer's conduit, being put in through jawholes opposite each house. That is to say, all domestic effluent, such as water from the wash tub and kitchen, waste water generally, and everything of a consistency that would flow or could be washed away, went down—in short, everything that did not go on to the middens or into the dry closets. The same is true between 1905 and 1922, the only difference during that period being that, as regards effluent from the pursuer's property, the channel was the fireclay drain. For convenience, I shall refer to all effluent of this character as scourings, and all sewage from the human body as closet sewage. What is the position of closet sewage between 1891 and 1922? There is evidence that closet sewage (urine and contents of chamber pots) from the pursuer's house was sometimes flung into the conduit. This was a quite improper use to make of the conduit, which was not constructed for that purpose, but it undoubtedly occurred from time to time when young children were about the place. I am, however, not able to hold on the evidence that this irregular use of the conduit was a constant use; on the contrary, it was intermittent, and, in my opinion, it falls a long way short of what is required to establish a continuous user for closet sewage between 1891 and 1922. After 1922 the position was changed, because the pursuer's closet system was connected up with the fireclay drain, and as regards the period 1922 to 1931 the user for closet sewage was continuous. But, upon the evidence, a similar continuous user cannot be ascribed to the earlier period. It is not necessary to examine the evidence in detail, because, even if continuous user for closet sewage throughout the requisite period had been established, as, in my opinion, it has not, there is no sufficient evidence to warrant the inference that the user was open or overt in the sense which is essential to the acquisition of a prescriptive right of servitude.

The law defining this requisite of a prescriptive right of servitude was formulated by Lord Watson in M'Inroy v. Duke of Athole, which was a case relating to a servitude right of way for purposes of sport, in the following passage:—

"I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right. The proprietor who seeks to establish the right cannot, in my opinion, avail himself of any acts of possession in alieno solo, unless he is able to show that they either were known, or ought to have been known, to its owner or to the persons to whom he entrusted the charge of his property."

In this case what were the acts of possession in alieno solo that should have apprised the defenders or their authors of the right now alleged? [After discussing the evidence bearing upon such acts, his Lordship continued]—Upon this part of the case, therefore, I reach these three conclusions in fact:—(1) that the pursuer and his predecessors have had the user of a channel through the defenders' lands for scourings, not being closet sewage, from time immemorial; (2) that the pursuer and his predecessors have not had a continuous user of a channel through the defenders' lands for closet sewage for the prescriptive period of 40 years; and (3) that such user of a channel as was had for closet sewage through the defenders' lands was not overt in the sense of being a user that was known, or ought to have been known, to the servient owners or to persons in charge or in occupation of their property.

The pursuer maintained that, even upon this basis of fact, he was entitled to the declarator of servitude craved. His argument was that, having prescribed a right to discharge sewage of the nature of scourings through the defenders' lands, he was enfranchised to pass along the line of the channel all closet sewage, upon the ratio that this latter use was a development that could fairly be held to be involved in the use and possession proved. In my opinion this is an untenable proposition. The distinction between a prescriptive possession which is the foundation of a right, and a prescriptive possession which is merely interpretative of an antecedent grant, was stated by Lord Watson in Lord Advocate v. Wemyss, and is apposite to this case. He said (at p. 9):

"There is, in my apprehension, or ought to be, a practical distinction recognised between the prescriptive possession which establishes a new and adverse right to the possessor, and the prescriptive possession which the law admits, for the purpose of construing or explaining, in a question with its author, the limits of an antecedent grant or conveyance. In the first case the rule obtains tantum præscriptum quantum possessum. In the second, it appears to me that a much more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole, in cases where the subject of controversy has been in itself a distinct and definite tenement."

The present case, in which the pursuer is seeking to have declared a new and adverse right, is one in which, in my opinion, the rule tantum præscriptum quantum possessumobtains. The rule must always be applied reasonably, and not too literally, and regard must be had to the substantial nature and extent of the use and possession proved. It would cover a possession that was in substance inherent in the actual possession proved, but not something that was not essentially implied in it, even though the new feature involved no material increase in the quantum of use. To use a channel in alieno soloto carry away waste water is one thing, to use it to carry away closet sewage is quite another thing; and these separate uses or possessions do not become one, for the purposes of a prescriptive right, merely because the effluent in both cases comes, in modern scientific terminology, within the genus sewage. The cases of The Laird of Gairlton and Carstairs v. Spence were founded on by the pursuer. In the former case, an owner with a servitude of a damhead on the lands of another was allowed to extend his dam until it touched firm ground, the old foundation having been carried away in a spate. That was not in any proper sense an extension of the servitude right. In the latter case, it was held that a prescriptive right of access for cart traffic covered the use of the access by cart for all purposes, although the former use had been for agricultural purposes only. The true ratio of this decision is to be found in the fact that, in our law, borrowing from the civil law, servitudes of way fall into the three categories of foot road, horse road, and cart or coach road, so that, once a prescriptive use within any one of the categories is established, the use may be for any purpose within that category. But I am not aware of any definition of the servitude of sewer such as would permit the prescriptive possession of a sewer for one effluent to be regarded as a sufficient possession for all effluents however diverse in origin and kind. If in Carstairs there are any expressions of judicial opinion that can be read as casting doubt upon the applicability of the rule tantum præscriptum quantum possessum to cases where a new and adverse right is sought to be set up, I respectfully differ from them, as being, in my opinion, contrary to our law as stated by Lord Watson in Lord Advocate v. Wemyss . But I do not read what was said in Carstairs in any contrary sense.

There remains the question raised by the conclusion first (secundo) of the initial writ, namely, whether the pursuer is entitled to renew and repair when necessary the fireclay drain which was put in in 1905. It was maintained on his behalf that, even if he was not entitled to carry closet sewage through said fireclay drain, he was entitled to continue its use for all sewage of the nature of scourings, in respect that the fireclay drain was merely a substituted channel for the old channel which had become inadequate for its purpose. I think that this contention is unsound. [After referring to the circumstances surrounding the construction of the fireclay drain, his Lordship proceeded]—It is impossible, in my opinion, to regard the fireclay drain as merely a substituted drain for the old water channel. It is entirely different in character, it is watertight and airtight, it cannot serve the purpose of a field or catch drain capable of carrying away surface water, and it is a drain for the pursuer's exclusive use, and not for common use, as was the former channel. It was introduced into the defenders' lands without leave asked or obtained, and without any intimation to the servient owner. It is, in my opinion, an invasion of the defenders' property rights. It is accordingly not necessary to consider whether the drain has deviated substantially from the line of the former channel which, for the pursuer's own purposes, it superseded in 1905.

Upon the whole matter I am clearly of opinion that the judgment of the learned Sheriff, affirming the judgment of the Sheriff-substitute, was right, and, accordingly, that the appeal should be refused.

LORD MACKAY .—The pursuer, who launched this action of declarator of a right to carry all sewage through his neighbour's land, is owner of No. 1 Kirkford, a house originally not of very great size or extent, and thatched. It is in an old burgh. The building in the tenement filled the narrow stance from north to south. It had, fronting a road which I shall call Cutstraw Road, a garden ground and hedge, the extent being about 44 feet, and behind, another garden ground, terminated by a hedge, of 58 feet. Kirkford House, a rather bigger affair, lay to the north-east but fronting to the same road which curved to the eastward. The result was an irregular area of then rough ground triangular in shape, but curvilinear on the road side.

The pipe or drain through which the pursuer desires to establish by our decree a servitude for the passage of all sewage as now in modern days defined, and which he desires to protect by an interdict from any interference or removal, enters the triangular area by a non-porous tile pipe at a point about five feet from the pursuer's back garden, proceeds, as measured on the plan, eight and a half feet into the triangle, turns westward and, after dipping south a little, passes out again into the public road at a point F. There it connects with a town sewer in the public road apparently laid down there about 1904. It is notable that, in the whole of the course within the defenders' ground, the pipe is not suitable for taking any drainage from Kirkford House, any surface drainage from the land it passes, or any drainage or other sewage matter from a number of properties to the eastward—properties which, in my judgment, were formerly entitled to share, with the triangle surface water and with the five other tenements, something in the nature of a common pipe.

The pursuer has only been owner—and, therefore, the proprietor—of the alleged dominant tenement since 1920. He had, as a boy, however, lived as occupier in that tenement, and can speak to the user, while, of course, not being owners but mere occupiers, his people had no part in creating permanent servitudes by way of assertion of possession. The defenders, a gentleman and his wife, only came to the neighbouring property in 1928, when they purchased it. Previous owners of both properties are poorly ascertained. We hear of Mrs Wilson, and of a Mr Ferrier and a Mr Sim. None of these appears. Some are dead. The defender Brown or his wife were not aware of the presence of a pipe, or the use made of it, till they discovered offensive smells coming from the ground which they were converting into a garden. This was in 1931. It is agreed that the matter of servitude became litigious at the date 24th March 1931. The first necessary clearance of the ground for our decision seems to be this:—that the pursuer seeks to set up some positive prædial servitude over what he now deems to be his neighbour's triangle; and that, having no express grant in any shape, he asserts his success in doing so by having established 40 years' positive and overt use of, I will not say the pipe or track in question, but of a right of passage in forma specifica of all sewage through the land in "substantially" the line and direction which that pipe now takes. The period, without possession for the whole of which such right could not be effectively established, is therefore from March 1891 to March 1931.

So much is admitted by pursuer's counsel, but late in one of the speeches a claim was made of, I think, a very different sort. It was claimed that, by virtue of some alleged presumption of law, a mode of user proved in satisfactory manner for (say) 20 or 25 years could lawfully be presumed to have continued backwards for the necessary remaining years to make up the tale of 40. He was therefore entitled to have decree that he had already established what he claims by immemorial possession prior to the year 1905. In my opinion, it is well to say at once that there is neither legal room for, nor adequate proof directed to, such an alternative case. Possession for this purpose must be, in my opinion, overt in the sense to be explained; and must also have been continuous; and have been exercised as of right; and the earliest reliable evidence of any unprejudiced sort carries back not farther than the year 1881. It seems that it would be in the nature of monstrous to permit the pursuer at this stage (for there is no trace that it was tried below) to attempt to set up, by presumptions backwards covering 16 more years than did the proof, that something was a judicially ascertainable right as early as 1905. The claim involves that his opponents, who were not familiar with the premises before 1905, must show (theirs being the onus) that the changes of 1905 and 1922 were such as illegally to "increase the burden." I need not add more on this topic. It is worth notice that, assuming for the moment that the proper measure to be applied is tantum præscriptum quantum possessum, the 40 to 50 years of actually known practice is so pregnant with changing possession and new possessions of an increasing onerosity as to make any presumption backward as to the quantumof possession from about 1865 a very perilous assumption.

I think, therefore, the decision of this case must turn on the ability of the pursuer to show that, from 1891 onwards, there has been an adverse and overt possession up to 1931 such as to establish the right which he now seeks. In order so to do, the pursuer has to knit together different periods of possession in such a manner as to make one reasonably continuous whole. [His Lordship then considered the effect of the evidence in its bearing upon the question of the use made of the ground in connexion with the discharge of sewage during the period 1891-1931. For the purpose of his investigation he divided this period of 40 years into four periods, 1891–1905; 1905–1920; 1920–1928; 1928-1931. Having dealt with the evidence as to user during these four periods, his Lordship proceeded to summarise his conclusions, and continued as follows]—

In my opinion, the attempt to set up a right of discharging all varieties of sewage by 40 years' user fails in so many crucial particulars that it is unnecessary to deal in full with any. Firstly, what is "sewage"? Even the colloquial understanding of the word "sewage" in those first days is not proved. I put a good deal of confidence in saying that the pig farmers and cottars of 1880 would not, if asked, have called the body water and the clothes water "sewage" at all. Suffice it to say that I do not think the neighbouring proprietor of rough ground like the triangle in question can be, on the evidence, held to have acquiesced in the overt use of passing through his ground and his open field drain any deleterious matter whatever, in the sense in which, in those days, matter was regarded as deleterious. I do not think it is proved by any competent evidence that the water from hand basins and from a wash-house was then regarded as sewage or as deleterious. Next, I am practically certain that, if the proprietors had been properly warned of the occasional uses for piggery muckings, children's fæces or for urine, they would at once have taken objection. Thirdly, I think that the proof of a certain amount of tolerance, for a certain number of years, of the minor waste products, of the liquids to which I have referred, through a porous field drain, would never suffice to connect it organically with a later period of more deleterious matter being sent down through a closed drain, wherein it could not be aerated. Fourthly, I think that, subject to the law to which I shall advert, the tantum præscriptum quantum possessum maxim applies, and rules out the setting up which occurs when user of any sort by contribution to a common drain is converted into a monopoly user of a different drain through another's property which the dominant owner can alone avail himself of. Fifthly, I think that it would be alone enough that the proof in this case shows that the last 26 years' user, in its character as monopoly, and in the character of the sewage carried, was not "overt" or-properly made known to the defenders, and that it was, in point of fact, a great enhancement of the burden of older time. I am of opinion that to convert a mere branch drain, commonly shared as an open field drain by the supposed servient owner and by others, into a privately-owned and possessed sewer, unless by clear express or implicit consent, is not within the plain doctrine of acquisition by overt possession. This conversion was effected, not by a taking of the old thing out, by a mutual agreement as required by the references to the law of Hozier v. Hawthorne, but by crossing over it twice at a higher altitude, adopting a new course, and carrying one's effluent, no longer to the river by an under-road conduit, but into a burgh drain. Unless the onus is discharged by proving that the owner then affected assented to all this, it is not, in any proper sense, a continuity of the old user, but a new and different burden altogether. To all these difficulties, cumulative, there is superadded my initial difficulty, that I am unable to see how, if ownership was a disputed matter, and if the possession observed might reasonably be ascribed to an exercise of a claim as owner, it could be set up against the observer as the adverse user of 40 years required to constitute a positive prædial servitude. In fine, for cumulative reasons the pursuer has failed to establish right to knit together these four periods of disparate enjoyments into one continuous assertion of a right established and measured by quantum possessum over the entire period. The attempt to displace that doctrine as not apposite fails, in view of Stair, Erskine and Bell, and of what Lord Watson said in the case referred to by your Lordship in the chair.

In my opinion, touching for a moment on a final question much canvassed, there does not occur, in this case, a serious question about the line of the older pipe. But, if it is serious, I do not hold the line substantially the same. Mr Hunter argued that he was entitled to put in a monopoly pipe in addition to an older pipe, whether or not he removed that older pipe, so long as it was "substantially in the same line." I do not think that proposition is sound. The question is not one of a material or non-substantial variation, and the question is not correctly rubricked under the phrase "increasing the burden." The cases which were so much canvassed were Gairlton and Bruce of Kennet, with the adverse comments thereon of Lord Ivory in his edition of Erskine and of Professor Rankine at pp. 50–55 and note 39, and at p. 425, of Landownership. Their use turned on a theory that the question in 1905 could rightly be described as a question as to whether the burden was unduly increased. While I coincide in principle with the implied criticism or exposition of Gairlton by Professor Rankine in his note on p. 50, and with the admitted rejection of Bruce, I venture to add that, in my humble view, there is a total misapprehension of the bearing of these cases in seeking to apply them here. Those were all questions, after the well-establishment either by express grant or immemorial prescription of a right of a certain quality, as to whether something done by the established dominant owner went outside his right because it went beyond what he had enjoyed. All that the criticism of Gairlton leaves, in effect, is that the dam head was only a machinery, and that the real burden (that is its measure) was the extent of land of the neighbour inundated permanently by the dam's existence. If that was not increased, the burden was not increased merely because the ravages of nature necessitated a new rest for a "head" restraining the same area of water. I agree that Erskine (alone) overdraws the enlarging effect of these two old cases. He seems to make an exception out of it, when no exception is derivable. I am of opinion that, where you have to knit the first 15 years on to the last 25 years in order to make up a prescriptive period at all, the question can never be one of increasing the burden. There is no established burden at the 15th year. There is only a user which is in course of establishing a burden if it goes on and is permitted for the requisite period, and the question is whether the known user, claimed at the fortieth year, has been justified by the quantum possessum of all the 40 years. That is a different question. I therefore lay aside that fasciculus of cases, which yields no help.

A word as regards two other groups of cases. The question of substituting a new pipe for the old pipe without displacing it was said to be governed by the authority of Bridges v. Police Commissioners of Fraserburgh . Once again, I think there is a failure of consistent thought. The question was not of this class at all. It was a grant of statutory right to place one pipe, and carry commercial effluent, through an area defined by deviation lines. One pipe was obsolescent. Another was put into its place, but served the same purpose and was within the line of deviation. The point taken was not at all that there was no right established by grant to carry the effluent through; it was simply that to leave the old pipe in was to increase by some inches the place occupied on the territory. The decision of the Court rested on the doctrine de minimis non curat prætor and on no other doctrine. I entirely fail to see its appositeness. A good deal of assistance was begged from a number of right-of-way cases, and particularly from Carstairs v. Spence . I have the utmost dubiety whether any legitimate use was made of right-of-way cases. I think the decision, whatever other criticism may be fairly made of it, in Carstairs proceeded upon the ground that we have derived from the Roman law three categories of passage, and that the passage in particular for wheeled traffic, which was the Roman "via," could be established by any reasonable amount of passage of wheels, irrespective of the frequency being increased from old time to new or from year to year. So far as the dictum of Lord Blackburn goes beyond this and suggests the partial abandonment of the law of servitude by use, i.e., tantum præscriptum quantum possessum, he is negatived by Lord President Clyde and the majority, and we must hold the dictum to be unsound in law. In one sense, the very same question of increasing amount of the same user is true of a right of aqueduct, which I think this controversy most resembles. No one would say that the frequency of sending down bath water, for instance, being quadrupled by modern sanitary methods, would create a new quality of right or would fail by "increase of burden." These instances are what Professor Rankine means by "development … inherent in the character of the right." But that is not the way in which the question was used at all.

The ultimate difficulty in law on which the pursuer's argument largely came to grief seemed to me to be this:—It was argued that there is known to the law of Scotland a prædial servitude known as "Sink" or "Sinks"; that it was the exact equivalent of a Roman right known as jus cloacæ, and, when once you had been in use for a number of years to put down filthy liquids which in modern times might be called "sewage," you were entitled thereby to put down anything which modern sanitation as well as older usage would describe as sewage—I mean, for instance, every solid a wash-down system will deal with, including all deleterious commercial by-products. I am of opinion that the argument halts at each step. I think it to be true that the passages from Stair's Institutes, II, vii, 8, and Rankine on Landownership, p. 573,—"(of which one example is the right of sinks)"—establish that the word "sink" has a significance in Scotland as a right of a particular sort, of sending the water from one's tenement down on to, and through, the tenement lying lower. Chambers's Dictionary (which founds itself on Jamieson) has the meaning thus:—

"Sink: a drain to carry off dirty water."

But I cannot believe, indeed I am sure that the fact is the contrary, that that right derived in any strict sense from the cloaca of the Latin writers. The latter was strictly an urban right—"urbanorum prædiorum," and I envisage it as a right to send waste products in common down to a publicly provided drain and to a river. The passages from the Digest all concern Prætorian Edicts and deal with sending stuff through "your neighbour's house." One passage adopted from Ulpianus on the Edict, Book LXXI, seems very much adverse to the pursuer:—

"(8) The prætor next says … ‘which is common to his house and yours’ …; (10) Where the prætor says ‘is common to his house and yours’ he means ‘is directed to, extends to, or comes as far as your house.’"

The passages collected from the writers on the Edict all deal with private erection of common sewers to two houses or with the connexion of such private sewers to a public one. Cloaca derived from a feature of the Roman city which was centuries before any other civilisation of the western world. By contrast, Professor Rankine is perfectly right in treating the Scottish word "sink" as just one illustration of what he calls a servitude aquæeducendæ—Landownership, 2nd edition, p. 500, 3rd edition, p. 537. It is among the prædial servitudes and not the urban servitudes, and the question has been raised, and has been settled, that the right is one concerning aqua—Rankine, ut supra. I do not suggest that aqua in this use is strictly confined to water proper, or to clean water, but roughly, it should be something akin. It will not extend to solids of any sort. The question has been mooted, no doubt, whether this old right of such a nature entitles your water which has been dirtied to go down—dirtied, that is, by the natural uses of the land. And the law of Scotland is in favour of that relaxation; for all, or nearly all, natural water on the surface becomes fouled by one method or another. But I am certain that that right of sink or sinks never, at any time, permitted the putting down of noxious solids, carried, well or ill, along by the flow of water artificially brought into the dominant tenement to flush it. Modern flushing was not thought of when the right of sink was elucidated. Hence it is my opinion that the disposal of excrementa, whether human or animal, of all sorts is a totally different question and that it cannot be constructively set up by the reception, for a period, of filthied waters. The two things were, according to the older Scottish law and practice, of a different character. It seems to me that the true aim of the pursuer is to negative all that law, and to induce the Court for the first time to take the erroneous step of saying that the right to discharge one's dirtied water through lower lands will carry the right to send down excrementa, or even to send commercial effluents of any, however obnoxious, sort, on the footing that, once a right of sink, always a right of everything which by aid of modern engineering, plenteous flushing, and sanitary requirement, is carried downwards to the sea. It is because of this startling claim that I have regarded the present case with anxiety. I am glad to think the claim has not been established.

LORD PITMAN .—[In his Lordship's absence, his opinion was read by the Lord Justice-Clerk]—This case turns, I think, upon the question whether the pursuer's predecessor was entitled in the year 1905 to put a drain of his own into his neighbour's ground without his consent. When he did so, was he just continuing to use his neighbour's property as he had done for many years?

I shall assume that, from time immemorial before 1905, the stone conduit, at the back of the pursuer's cottage and the other cottages in the row, connected up with a drain in the defenders' ground, and that, from time immemorial, the effluent from the wash-houses and any filth the cottagers put down the drain had flowed through the defenders' property. There is, apparently, some doubt as to whether this effluent drained into a stone conduit or a tile drain, but, whichever it was, that drain carried away in addition surface water on the defenders' ground, with the result that, after 1905, there would necessarily be two drains instead of one. It would be out of place for me to analyse the evidence. It is sufficient for me to say that I am satisfied with the Sheriff-substitute's very careful findings, and in particular with the much canvassed finding No. 23, because there is no other conduit into which the sewage can have discharged. That finding reads as follows:—

"The old stone conduit at the rear of the houses Nos. 1, 3, 5 and 7 discharged into the said horseshoe shaped tile drain marked pink in No. 8/32 of process, and carried its contents towards the southwest corner of defenders' ground, thence northwest by a stone conduit to the River Annick."

There is a stone conduit at each end of the horseshoe drain, which looks as if there was stone only where the drain passed under the roads. Possibly stones were removed when the horseshoe drain was laid. A very important piece of evidence is that, about 10 feet to the west of the point where the 1905 drain crosses the horseshoe drain, there is a place at which a drain from the pursuer's property at one time coupled up with the horseshoe drain—See Warren, pp. 545–546. Now, this is just opposite the spot where the drain from the pursuer's property entered the defenders' ground before the building line was moved east, a junction which would of course be sealed up at that time.

On the assumption of immemorial use, the proprietor of the house No. 1 was, I think, entitled (in 1905) to continue to discharge his effluent into the defenders' ground, but does that mean that he was entitled to put in a new drain of his own, or to discharge solids? It is said that the new drain was rendered necessary by the passing of the Public Health Act of 1897. All that the proof discloses is that, on 13th October 1904, a newly appointed sanitary inspector gave notice "that the washing house" (i.e., of the pursuer's house) "requires a fireclay cesspool and grating complete and also ashpit built round with bricks and drained in a proper manner," and that thereafter a new drain—the drain now in dispute—was put in at the sight of the sanitary inspector. The approval of the sanitary inspector did not legalise what was an innovation to which the owner of the servient tenement could object. It may be that the sanitary inspector had power to say that the existing conduit was not to be used for the conveyance of sewage, but there is not a scrap of evidence that he did. If he did, I ask, Why should that give a right to the person putting the sewage into the existing conduit or drain to put another drain into his neighbour's ground? If a thing is not permitted by law it must be stopped. When the owner of No. 1 found that he could not go on as he had been doing, it was his duty to go to the owner of the waste ground to the north and ask permission to lay a drain of a different kind through his ground if he wished to do so. What possible right had he to do so at his own hand? If he had a right to lay such a drain, so had everyone else whose dirty water had found its way into the defenders' drain. The ordnance survey sheet, so strenuously founded on by the appellant's counsel as showing the line of the conduit, shows other drains connecting with it. Was the owner of each of these entitled to run a new tile drain of his own through the defenders' property? We heard considerable argument on the question whether the scrapping of the dry privies in 1922, and the passing of all sewage from No. 1 through the defenders' lands, increased the burden at that date to such an extent as to entitle the defenders to say then tantum præscriptum quantum possessum and no more. That is not, I think, the question upon which this case turns, or the proper date to look at. Could the pursuer's predecessor have begun to prescribe a right to discharge his solid sewage when everybody, including the owner of the servient tenement, knew that his solid sewage was disposed of in dry privies? In my opinion he could not. He cannot say that the owner of the servient tenement ought to have known that he was discharging his solid sewage into the drain when he knew exactly the opposite. The pursuer is asserting a right of servitude which he never had before, and which he has not acquired by prescriptive possession for a period of 40 years. The possession of the pursuer and his predecessor of the drain dates from 1905, and it was interrupted in 1931.

In my opinion, the defenders are entitled to say now what their predecessor was entitled to say in 1905, viz., take away this drain which you have unlawfully put on my ground. If the answer is "Very well, but let me as formerly put my dirty water into your drain," the reply should be "Certainly, provided the sanitary authorities do not object." That, however, is not the case which we have to try. We are not called on to decide to what extent, if any, the defenders' lands must bear the burden of carrying off the drainage from the pursuer's lands, but only whether the pursuer is entitled to keep his 4-inch pipe in the defenders' property. For tactical reasons the pursuer now says that he is prepared to allow others with a similar right of drainage to couple up with his drain, but that will not help him, for there will still be two drains, whereas previously there was only one, and I may add that that idea did not occur to him in 1905. If truth be told, it looks as if the tile drain had been built in ground believed to belong to the pursuer's predecessor as averred in condescendence 3. If not, it must just have been placed in a piece of waste ground without any regard to the question whose property that ground was. In that connexion I note that on 15th August 1935 the pursuer wrote to the defenders' solicitors that the "sewer drain referred to by you is my property and is in my own ground." This mistake on his part is the origin of this unfortunate litigation, the expenses in which must be many times what it would have cost the pursuer to lay a drain in front of his house as his neighbours have done.

LORD WARK .—This is a most lamentable litigation, the cost of which must far exceed any possible benefit which could be derived by the pursuer from establishing the right of servitude claimed by him. I have come to the conclusion, like your Lordships, that he is not entitled to succeed.

The servitude here claimed is one which is undoubtedly recognised in our law; but I am by no means convinced that it has anything to do with the jus cloacæ of the Roman law. Stair (II, vii, 8) treats of it in connexion with stillicide. Rankine (Landownership, 573) and Ferguson (Law of Water, 254) appear to me to be more correct in considering it to be a form of the prædial servitude aquæ educendæ, which is regarded as a complement or form of the more important servitude of aqueduct. The jus cloacæ was an urban servitude, and I agree with what Lord Mackay has said as to its character, which I think is quite distinct from that of the servitude recognised by the Scottish law.

It is not seriously disputed that from at least 1881 the pursuer and his predecessors have been in the habit of discharging into the stone conduit behind his house surface water—for which that conduit was originally intended—and also domestic scourings; and that these have been in use to be conveyed through the defenders' lands, by a conduit of some kind, to the river Annick. No stone conduit has been discovered by either party in the defenders' lands but I think the Sheriff-substitute was entitled to conclude—and I should myself reach the same result upon the evidence—that the channel by which these scourings went through the defenders' lands was, during the material period, the fifty-year-old drain spoken to by Mr Warren and shown in pink on his plan No. 8/32 of process. That also is a drain intended for surface water drainage.

It is also not matter of dispute that, until 1922, the general system of disposal of sewage of human origin applicable to the row of houses of which the pursuer's is one was by dry closets; and that this system applied to all the row until 1905, when the proprietor of No. 3 made a direct connexion to the main sewage system in Stewarton by a drain underneath his house which did not enter the defenders' lands. We heard a good deal of argument regarding the use of the stone conduit for liquid other than scourings, and particularly for liquid sewage of human origin, during the period of 40 years prior to 1931. I have read the evidence on that matter with care, and I agree with your Lordship that, in the result, it falls short of the overt use as a matter of right which is essential to establish a prescriptive right. I think the effect of that evidence is to show, at best for the pursuer, an intermittent use of a kind which the witnesses who speak to it recognise should not have been made; and of a kind, moreover, of which the defenders and their predecessors are not proved to have been aware and which they were not bound to anticipate. The evidence—upon which Mr Hunter laid much stress—as to opening up the conduit in the defenders' lands to remove chokes does not appear to me to be of a kind which instructs the frequent occurrence of such operations, or anything which ought to have brought home to the mind of a reasonably watchful owner the fact—if it were a fact—that use was being made of a drain within his lands for sewage of human origin, liquid or solid, in the assertion of a right to use that drain for such a purpose. There is no evidence of any other operation within the defenders' lands prior to 1905. The pursuer's counsel relied upon the making of the original connexion to the defenders' drains. But the evidence discloses nothing as to when that connexion was made. For aught that appears, it may have been part of a general system of surface drainage when the lands were all in the possession of one owner.

On the evidence as a whole, I agree with the Sheriff-substitute that the pursuer has failed to instruct a prescriptive right to pass sewage of human origin, liquid or solid, through the defenders' lands as at 1905, when he ceased to use the defenders' drain and made a new and different drain upon a substantially different line through the defenders' lands. That is admittedly a drain which is useless to the defenders for purposes of drainage of their lands. No permission was asked for from the defenders' predecessors to put in that drain; and no notice given to them that such an operation was intended; and there is nothing in the evidence to show that they were aware that it had been done. The Sheriff-substitute was right, I think, in holding that the pursuer has failed to prove his averment that the fireclay drain was led into an old stone conduit lying practically in the same line as the fireclay drain was laid. I should add that I agree also with the Sheriff-substitute that there is no sufficient evidence that, in 1922, when the pursuer built a bathroom on to his house and connected it up to the new fireclay drain, he informed the defenders' predecessor Mr Sim of his intention or showed him a plan disclosing the existence of a fireclay drain leading from the pursuer's house through the defenders' lands.

In that state of facts, I am unable to understand how the pursuer can maintain that he has established a prescriptive right to discharge his whole sewage through the defenders' lands by means of the fireclay drain now in dispute. A right on the part of the pursuer to discharge water, or even sewage, into the defenders' conduit is one thing; and a right to have an independent and exclusive drain of his own through the defenders' lands appears to me to be quite another thing; and it is, in my view, vain to attempt to justify the latter right by saying that a change in the law prevented the pursuer from continuing to exercise the former right modo et forma, and that the new pipe was only a natural and necessary development of the former possession. There is no question here of servitude of necessity or by implied grant such as was under consideration of the Court in Ewart v. Cochrane . As the Sheriff-substitute has found, there is nothing to prevent the pursuer from satisfying the more modern requirements of the sanitary authorities by constructing a drain beneath his house direct to the main sewerage system, as his neighbour in No. 3 Kirkford did, without encroaching on the defenders' lands. The case of The Laird of Gairlton v. The Laird of Stevenson, on which Mr Hunter founded, does not appear to me to support his argument. In that case all that was decided was that the dominant owner was entitled to restore his right to its former scope by replacing what had formerly been the support for his dam, and had been swept away, by an extension of the dam itself upon the lands of the servient owner. That was not truly an extension of the former right. But in this case the pursuer seeks, under the guise of development, to establish against the defenders what appears to me to be a new and different right. This I think he is not entitled to do. Even on the assumption, which is certainly not proved, that the new drain followed the line of a former conduit of the defenders, I should be of the same opinion. But I think the Sheriff-substitute is right in concluding that it did not; and that, in fact, it followed a line which involves substantially more encroachment upon the defenders' lands than would have been involved in the continued exercise of the right to use the drain marked pink on No. 8/32 of process, or a sealed fireclay drain upon that line. I agree entirely with the Sheriff-substitute as to what happened in 1905. It is, I think, quite clearly shown by the evidence of Mr Snedden that, in the purported exercise of a supposed right residing in the local authority to put a drain where they pleased, Mr Snedden fixed the line of the new drain without reference to the rights or convenience of the defenders' predecessor. The explanation of this proceeding may be that at the time it was not clear who was the proprietor of the ground through which that drain was laid. It is of some significance, both in this connexion and on the pursuer's claim as a whole, that he was maintaining in this very action that he was the proprietor of that ground; a claim which has failed.

But, apart from all these considerations, there is another reason why, in my opinion, the pursuer cannot succeed, namely, that it is not proved that solid sewage of human origin was in use to be sent through the pursuer's fireclay pipe until 1922. Overt use for that purpose, of which the defenders and their predecessors were, or ought to have been, aware, is certainly not proved; for until that time the system of disposal of solid sewage was by dry closets; and I can find nothing in the evidence which should have disclosed to a careful owner of the neighbouring lands that that system was being, to any extent, departed from. Mr Hunter argued that, if he had established a prescriptive right to send through the defenders' lands anything which fell within the general category of sewage, he was entitled to extend his right to sewage of all kinds. In my opinion this contention is unsound. No doctrine is more firmly established in connexion with the acquisition of servitude by prescription than that the right must be measured by the extent of the possession. Tantum præscriptum quantum possessum. The case of Carstairs v. Spence was appealed to as justifying the view that, once a right to a particular kind of servitude is established, everything is included which may be brought within that kind of servitude. I happened to be of counsel in the case of Carstairs, and I am satisfied that the decision in that case was never intended to impinge upon the maxim to which I have referred. That was a case of a servitude of way, and, as was pointed out by Lord President Clyde (at p. 385), "in the law of Scotland the prescriptive use of a private way not merely established the existence of the right, but, in some most important ways, defines the extent of the right. … The use instructs the kind of traffic (foot, horse, or cart) for which the way may be availed of, and limits that traffic to such as finds its source in certain grounds or subjects." The decision of the Court was that the use acquired was not further limited by reference to the purposes served by the traffic, not because a right of servitude road may not be so limited—the Lord President and Lord Skerrington refer to numerous examples of the contrary—but because, on the evidence, the proper conclusion was that a right of access to the subjects by cart was proved. I think this is particularly clear from the judgment of Lord Skerrington, who holds that the evidence instructed a right of ish and entry by vehicles, horses, bestial and foot passengers. There are certain expressions in the opinion of Lord Blackburn which appear to conflict with the rule tantum præscriptum quantum possessum, but I think it appears from the context that he is speaking of a right of servitude—such as of way—whose extent is known when its nature is ascertained. If he means his obervations to apply to servitudes generally, I respectfully think they are in conflict with a great body of authority. I refer in particular to the opinion of Lord Watson in Lord Advocate v. Wemyss, quoted by your Lordship in the chair. One of the nearest analogues to the servitude we are now considering is a servitude of aquæhaustus—or the right to draw water—as to which it was said, not so long ago:—

"Here we are on the solid ground of a prædial servitude by possession, and the rule is tantum præscriptum quantum possessum"

—Per Lord Robertson in J. White & Sons v. J. & M. White . And, with regard to the servitude of discharging waste water through the lands of another—which is just the kind of servitude claimed in this case,—it is matter of express decision that the maxim does apply, at least so far as the quality of the discharge is concerned—Scouller v. Robertson . On the matter of quantity, Lord Alloway expressed the view that, in the case of water being brought into a town so that each inhabitant gets a more ample supply for his ordinary purposes, an increase of water might be a reasonable exercise of this right of servitude if the sewer were sufficient for it. The majority of the Court thought that the maxim applied as to quantity also.

I agree that the appeal should be refused.