Scottish Jury Court Reports

You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Smiles v. Kerr and Trotter. [1827] ScotJCR 4_Murray_302 (17 July 1827)
URL: http://www.bailii.org/scot/cases/ScotJCR/1827/4_Murray_302.html
Cite as: [1827] ScotJCR 4_Murray_302

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 302↓

(1827) 4 Murray 302

CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.

No. 36

Smiles

v.

Kerr and Trotter.

1827. July 17.

PRESENT, LORDS CHIEF COMMISSIONER, Cringletie, AND Mackenzie.

This was an action of declarator to have the

Page: 303↓

right to the water of a small stream ascertained, and to have it restored to what was alleged to be the old course.

Defence.—The stream has for more than forty years flowed to the defender's mill.

ISSUE.

“It being admitted that the pursuer, Robert Kerr, is treasurer to the governors of James Gillespie's Hospital in Edinburgh; and that the governors of the said hospital are proprietors of certain lands in the parish of Colinton, in the county of Edinburgh; and that the pursuer, Alexander Trotter, is also proprietor of certain lands in the said parish.

It being also admitted that a stream of water, which rises at the Bungwell, situate on the property of Woodhall, in the said county, runs in an easterly direction, till it crosses the lane leading from the village of Colinton to Bonally, both in the said county, then along the east side of the said lane, till it reaches a field belonging to the said hospital, which field is bounded on the west by the lane, and on the north by a field called the Burnshotpark, also the property of the said hospital.

Page: 304↓

Whether, after entering the field, bounded as aforesaid, the said stream, or a part thereof, has, for forty years preceding the 1st day of June 1824, or for time immemorial, run to the eastward until it entered the lands of Dreghorn, the property of the pursuer, Alexander Trotter; and whether the defender, or his predecessors, have diverted the course of the said stream, or a part thereof, and have caused the same to run in a northerly direction, and not to enter the lands of Dreghorn, to the loss, injury, and damage of the pursuers?”

Cockburn opened the case for the pursuer, and said, The whole, or at least a large proportion of the stream, flowed through the lands of the pursuers, till the defender deepened the course towards his mill, which now carries off the whole.

After several witnesses had been examined, his Lordship suggested, that there probably was water enough for both parties, and that, unless the defender claimed the whole, it was probably unnecessary to go farther; but if he claims the whole, of course, it is not for the Court to stop the pursuer. Mr Jeffrey said,

Page: 305↓

though they had called evidence to prove posession of the whole by the pursuers, yet they were willing to take a half. On the other side, however, this was not agreed to.

On the cross-examination of the eleventh witness called for the pursuers, he stated, that part of the water had been given off to Sir William Forbes in a pipe.

Jeffrey, for the pursuers.—There is nothing of this in any of their pleadings. They seem to intend to raise a new plea against us, that water was given off, and that we acquiesced. The only plea in law is prescription; and are they under this entitled to prove that I was deprived of the water by other causes?

Moncreiff, D. F.—This is a groundless and absurd objection. I expect to demonstrate that the pursuers have lost the water by other causes than any operation by the defender, and the cause mentioned by the witness is one of them. Their supply was from the waste-pipe.

Lord Chief Commissioner.—The question here is, who shall have the water flowing at a particular point at the date of the action? and that point is below where the pipe is taken off. The fact undoubtedly was stated by the witness,

Page: 306↓

but it appears to me not to be in the cause. It is said this is got on cross-examination; but it is an universal rule, that though you may on cross-examination put leading questions, and try the truth of the witness, you cannot get in evidence that which is illegal.

This is a question as to the state of the water flowing from a well at the date of the action; and is it possible to draw into this case any thing which diminished that flow long before? What is the stream mentioned in the issue, and which the defender is accused of diverting? Is it a stream that existed long before, or is it the stream at the time the action was brought? Were we to allow this, it would be trying a question as to a different stream from that which existed at the date of the action. The question is not competent on cross-examination, the fact not being within the action.

Moncreiff.—To raise the question, we are entitled to ask, whether any other supply of water flowed into the stream?

Lord Chief Commissioner.—If this question had been put in the ordinary course of examination, I do not know that I would have objected, but, in the circumstances in which it

Page: 307↓

is put, the question is incompetent But if a bill of exceptions is taken on the ground of our rejecting the question as now put, the case will not be fairly before the Court to which it is taken.

(After some delay the parties adopted the suggestion given by the Court, and the case was settled by a private arrangement.)

Counsel: Jeffrey and Cockburn, for the Pursuers.
Moncreiff, D. F., Sandford, and for the Defenders.

Solicitors: (Agents, Kenny & Hunter, w. s. and John B. Watt)

1827