Scottish Sheriff Court Decisions

Sheriffdom of Grampian, Highland and Islands at Aberdeen

 

 

Case Ref: A801/08

INTERLOCUTOR in causa ANDREW ALLAN BUCHAN residing formerly at 27 Rubislaw Den South, Aberdeen and now at Brownhills, Fintry, Aberdeen and ROY ALLAN BUCHAN residing at Craigearn, 170 Broomhill Road, Aberdeen PURSUERS against THE FIRM OF W.J. A& H.A. BEATON, FARMERS OF MILTON OF GIGHT, having a place of business at Milton of Gight Farm, Methlick, Aberdeenshire and WILLIAM JOHN BEATON and MRS HELEN AGNES COWIE or BEATON residing together at Milton of Gight Farm, Methlick, Aberdeenshire as the partners thereof and as such partners and as individuals   DEFENDERS

ABERDEEN, 25 November 2011

 

The sheriff, having resumed consideration of the cause, finds the following facts as admitted or proved:-

 

(1)    The pursuers are Andrew Allan Buchan, residing formerly at 27 Rubislaw Den South, Aberdeen, and now at Brownhills, Fintry, Aberdeen, and Roy Allan Buchan residing at Craigearn, 170 Broomhill Road, Aberdeen.

 

(2)    The pursuers are the heritable proprietors of Little Gight Farm near Methlick, Aberdeenshire.

 

(3)    The defenders are The Firm of W. J & H.A. Beaton, Farmers of Milton of Gight, having a place of business at Milton of Gight Farm, Methlick, Aberdeenshire and William John Beaton and Mrs Helen Agnes Cowie or Beaton, both residing at Milton of Gight Farm, Methlick, Aberdeenshire, as the partners of said firm and as individuals.

 

(4)    The defenders are the heritable proprietors of Milton of Gight Farm, Methlick, Aberdeenshire.

 

(5)    The defenders are domiciled in Scotland.

 

(6)    The Sheriff Court of Grampian, Highland and Islands at Aberdeen has jurisdiction in this action.

 

(7)    Roland Davidson Buchan, who is the father of the pursuers, purchased Little Gight Farm, Methlick, in 1960. By Disposition recorded on 5 August 1998, he disponed that property to the pursuers. Document production 5.1 of process is a copy of that Disposition. Following upon this change, Roland Buchan was engaged by the pursuers as their Farm Manager.

 

(8)    James Ferguson Beaton, who is father of the male defender, purchased Milton of Gight Farm in 1953. By Disposition recorded on 6 July 1984, he and others disponed that property to the defenders. Document production 5.2 of process is a copy of that Disposition.

 

(9)    Little Gight Farm and Milton of Gight Farm adjoin one another. Milton of Gight Farm is situated to the north.

 

(10)By Disposition recorded on 10 November 1919, the Trustees of the Marquess of Aberdeen and Temair disponed the farm Milton of Gight, then described as Milltown of Gight, under reservation of a right inter alia to "use for the water supply, drainage or sewerage of any other parts of the said lands, baronies and estates all (if any) existing water pipes and connections, drains and sewers, in or under the lands hereby disponed." The farm of Little Gight was, at that point, part of the larger estate.

Document production 5.3 of process is a copy of that Disposition.

 

(11)By Disposition recorded on 28 February 1920, the trustees of the Marquess of Aberdeen and Temair disponed the farm of Little Gight together with "the right to use for the water supply, drainage and sewerage of the subjects hereby disponed all existing water pipes and connections, drains and sewers in or under any parts of the said lands, baronies and estates". Document production 5.4 of process is a copy of that Disposition

 

(12)The water supply to the lower part of the farm of Milton of Gight comes from a spring situated to the north of the public road. Water is then piped to the farm steading area, held in a header tank there and then pumped to the farm, its steading and its water troughs situated on its lower fields.

 

(13)In addition, said system supplies a water trough which services two fields on the north west of the farm of Little Gight. (hereinafter referred to as the "end trough")

 

(14)Said two fields are those numbered 16 and 17 on plan, document production 5.65 of process.

 

(15)Until on or about 1992, said water was delivered by means of a hydraulic ram pump which operated continuously. Said system required to be open ended, the open end being the end trough which could, and did, overflow when required. The system involved a progressive supply with the result that the end trough was the last to receive water. Its ground level is higher than the troughs on Milton of Gight which, together with the farm buildings, were progressively higher than one another, leading upward from the said ram pump.

 

(16)The farm proprietors experienced difficulties with the reliability of the hydraulic ram system and required from time to time to undertake maintenance and repair.

 

(17)A replacement ram pump was fitted to the system in or about 1980.

 

(18)After taking entry to the subjects Milton of Gight, the defenders experienced difficulties with the ram pump system. Accordingly, in or around 1992 they replaced the hydraulic pump system with an electric pump. Said electric pump was capable of delivering a higher level of water into the system. It was controlled by a timer switch.

 

(19)In or around 1992 Roland Buchan amended his farm policy from mixed farming to one of arable farming. In particular from that point the two fields to the north-west of Little Gight were used for crop growing.

 

(20)This change in farming policy resulted in a substantial reduction in the requirement for water in the two north-west fields. There remained a limited requirement. Said fields were, from time to time, used for winter grazing and water from the trough was, to a limited extent, used to assist with the arable farming.

 

(21)In or about mid 2006, the pursuers decided to alter the farming policy on Little Gight and to return the whole farm to pasture for grazing. As a result, more extensive use of water from the end trough became necessary.

 

(22)In preparation for this change, Roland Buchan checked the end trough and found that there was no water supply thereto. He then investigated the final trough on the defenders' farm and found the ball-cock to have been removed and that trough overflowing with water. At that point Roland Buchan believed that the removal of the ball-cock was the cause of there being no water supply to the end trough.

 

(23)For the end trough to be filled, it was necessary that, once the defenders' final trough was full, the water supply thereto was cut off by the ball-cock engaging to enable the pumped water then to proceed further up the hill and arrive at the end trough. In absence of an operating ball-cock, water would simply continue to be pumped into the defenders' trough and spill over.

 

(24)Roland Buchan met, by chance, William Beaton, the male defender, and asked him to take steps to reinstate the supply of water to the end trough.

 

(25)Both defenders then investigated the position and inspected their last trough. They found the ball-cock to be missing, the trough to be unbalanced, the corner broken and water spilling from the trough. They chose to adopt the position that these defects in their trough had no effect on the supply of water to the end trough and declined to take any action to resolve the position. This decision was intimated to Roland Buchan by telephone call.

 

(26)The pursuer, Andrew Buchan, then attempted to discuss the matter with William Beaton who refused to become involved in any such discussion.

 

(27)The pursuers then instructed solicitors who, on 28 September 2006, wrote to the defenders seeking reinstatement of the water supply. Document production 5.66 is a copy of that letter.

 

(28)On or about 2 October 2006, the defender, John Beaton, responded to that letter appearing to refute the request and questioning the pursuers' right to use the supply of water.

 

(29)As a direct result of there being no water supply to the end trough and the defender's having declined to restore the supply it was necessary for the pursuers to install an alternative supply.

 

(30)They required to investigate an alternative source of water, to install a well there, to install pumping equipment, pipe work and a new trough. They incurred cost in so doing.

 

(31)Document production 5.39 is a schedule detailing their claim for costs.

 

(32)The costs claimed with reference to document productions 5.42, a claim for a trough to replace the end trough, and document production 5.52, an unidentified claim for digger hire, are not costs reasonably incurred by the pursuers as a result of the defender's actings.

 

(33)The unvouched costs claimed for two high head water pipes and travelling expenses are not costs reasonably incurred by the pursuers as a result of the defender's actings.

 

(34)The costs claimed in respect of a nominal claim for the time of Roland Buchan are not are not costs reasonably incurred by the pursuers as a result of the defender's actings

 

(35) Roland Buchan is employed by the pursuers as their farm manager/administrator. His remuneration is agreed annually at the end of each year depending upon how matters had progressed during that year.

 

(36) Roland Buchan required to undertake additional tasks in respect of the installation and operation of the temporary water supply system. Document production 5.38 is an invoice dated 1 November 2009 prepared by the pursuers on behalf of Mr Buchan and addressed to the pursuers seeking payment for various tasks connected to the temporary water supply system and calculated on an estimate of the time involved charged at £15 per hour. Said account has not been paid by the pursuers. Said invoice is grossly over-inflated and is unreasonable. The pursuers do not intend to make payment of the invoice unless they succeed in recovering payment from the defenders.

 

(37)The time claimed by Mr Buchan is exaggerated and could have been greatly reduced by the installation of a pressure valve system and use of motorised transport.

 

(38)The remaining costs set out in the schedule are costs reasonably incurred by the pursuers as a result of the defenders' actings.

 

(39)In or around April 2007, the defenders installed a more powerful electric pump on the system. Shortly thereafter they installed a pressure switch system. Said system shuts off the pump when pressure in the system reaches a certain level thus preventing water being pumped into the system when full. For this to operate, the system requires to have a closed end point. The plumber installing said system did not, at that time, create the closed end by severing the pipe serving the end trough.

 

(40)Prior to the installation of the new pump the defenders had experienced vandalism whereby supply pipes to troughs had been cut and water had been released into the fields.

 

(41)The defenders at or around this time also fitted a stopcock to the supply pipe to their final trough, enabling them to isolate that trough and prevent water from spilling out from that trough. They installed an alternative trough at a different position in the same field.

 

(42)In or about June 2009, the pursuers commissioned a report from Quick Water Design in an effort to establish the reason for the loss of supply to their trough. They obtained permission from the defenders to investigate the matter and a site visit was arranged for 6 June 2009.

 

(43)In preparation for said site visit the pursuer, Andrew Buchan, attended at the site and excavated two areas previously investigated at each side of the defenders' terminal trough. He further commenced to excavate an area along the line of what he anticipated to be the supply pipe to the pursuers' trough. At that point he uncovered part of the pipe which had been severed.

 

(44)At the point of severance the pipe was situated at a significant depth underground. It had been deliberately severed. The act of severance had taken place some considerable time before discovery. Document productions 5.13 and 5.14 are photographs of the severed pipe.

 

(45)Said pipe was severed by or on behalf of the defenders at a point after 1992, when the ram pump was removed. The defenders were aware in mid 2006 that the supply pipe to the end trough had been severed.

 

(46)Document production 5.61 is the report prepared by Design Quick Water.

 

(47)On or about 1 April 2010, and with the consent of the defenders, a plumber instructed by the pursuers repaired the severed pipe. The defender, John Beaton, then activated the pump and water flowed into a small plastic trough arranged by the pursuers as a replacement for the end trough.

 

(48)On the same date, a further small leak found in the supply pipe leading to the defenders final trough was noticed by the pursuer, Andrew Buchan, and was repaired by the plumber.

 

(49)The pursuers incurred costs in respect of said repairs

 

(50)The pursuers thereafter installed a large circular trough and connected the system to that trough.

 

(51)Thereafter Roland Buchan monitored the level of water being supplied to the new trough. He formed the view that it was not being adequately supplied. On three occasions he emptied the trough and observed that it took around four days to completely fill.

 

(52)Document production 5.68 is a summary of the findings of Roland Buchan for the period 11 May 2010 to 3 June 2010.

 

(53) From 1992 the supply of water to the pursuers could be controlled by a timer system operated by the defenders. Water was supplied to the pursuers only at times permitted by the timer, which times were set and controlled by the defenders. Prior to the installation of the timer, water was supplied to the pursuers continuously, subject only to its availability as restricted by the pumping system in place from time to time.

 

(54)The circular plastic trough installed by the pursuers has a considerably larger capacity than the original cast iron trough.

 

(55)The pursuers' field number 17 being one of the two similarly sized fields serviced by the trough is presently utilised for grazing approximately forty cows and thirty calves. Said animals require a constant supply of drinking water.

 

Finds in Fact and in Law

 

(1) The pursuers have a heritable and irredeemable servitude right of aquaehaustus and aqueduct over and through the defenders' property.

 

(2) The pursuers said right entitles them to a continuous water supply, subject only to its availability from its source.

 

(3) The defenders unlawfully disrupted the pursuers' supply of water by severing or causing to have severed the supply pipe to the end trough.

 

(4) The defenders unlawfully disrupted the supply of water to the pursuers by fitting and operating a timer switch to the pumping system thus restricting the times at which water is supplied to the pursuers.

 

(5) As a result of the defenders unlawful disruption of the pursuers' supply of water, the pursuers have incurred loss and damage.

 

(6) The level of the pursuers' reasonable loss and damage is £ 3,894.60

 

(7) The pursuers reasonably incurred costs in respect of the reinstatement and repair of the water supply pipes, for which costs the defenders are liable.

 

(8) The reasonable costs incurred in connection with said reinstatement and repair are £ 235.07.

 

ALLOWS

the pursuers to amend crave 1 as follows, line 36 delete the word "a"; line 37 delete the words "right of aqueduct" and substitute "rights of aqueduct and aquaehaustus"; line 49 delete the words "the steading at" and line 52 delete the word "flowing" and substitute "a pipe leading".

 

AND ACCORDINGLY,

Sustains the pursuers' pleas in law numbered one, two, three and five; Sustains in part their plea in law number four; Dismisses their plea in law number six; Sustains in part the defenders' plea in law number five; Dismisses their pleas in law numbered one, two, three, four and six;

 

AND THEREFORE,

(1) Finds and Declares that the pursuers, as heritable proprietors of ALL and WHOLE the lands known as Farm of Little Gight, in the Parishes of Fyvie and Methlick and County of Aberdeen, Aberdeenshire, extending to 217.707 acres or thereby and consisting of the three lots (First), (Second) and (Third) described in and delineated and respectively coloured pink, blue and yellow on the plan annexed and signed as relative to the Disposition granted by Findlay Blair Anderson and Herbert William Haldane, the trustees acting under the Trust Disposition and Conveyance granted by the Marquess of Aberdeen and Temair with consent therein mentioned in favour of Alexander Milne dated the Second and Fourth, both days of December Nineteen Hundred and Nineteen and recorded in the Division of the General Register of Sasines for the County of Aberdeen on the Twenty-eighth day of February Nineteen Hundred and Twenty (hereinafter referred to as "Little Gight Farm"), have a heritable and irredeemable servitude right of aqueduct and aquaehaustus over and through part of the land within the heritable proprietorship of the defenders, being ALL and WHOLE, the farm known as Milton of Gight in the parish of Fyvie and County of Aberdeen extending to 74,493 acres or thereby consisting of (First) the land disponed in Disposition by Findlay Blair Anderson and Herbert William Haldane as Trustees in favour of Alexander Ewen recorded in the said Division of the General Register of Sasines on Fourteenth November Nineteen Hundred and Nineteen under exception of three areas of ground together extending to 7,679 acres or thereby disponed (in the second place) by Contract of Excambion between Eric Cameron and another and James Ferguson Beaton and another recorded in the said Division of the General Register of Sasines on Twentieth September Nineteen Fifty-five and (Second) an area of land extending to 8.833 acres or thereby disponed (in the first place) by the said Contract of Excambion (hereinafter referred to as "Milton of Gight Farm"), by a pipe running in a south westerly direction from a well or spring situated within Milton of Gight Farm over fields lying to the west of the steading to a trough located to the north of fields at Little Gight Farm with ordnance survey references NJ/83651/40273 and NJ/83347/40375 respectively and thereafter a pipe leading into a trough located within the said fields;

 

(2) Finds and Declares that the defenders are unlawfully disrupting the supply of the water to the dominant tenement in accordance with the established servitude right;

 

(3) Ordains the defenders to reinstate the supply of the water to the dominant tenement;

(4) Finds the defenders liable to the pursuers in the sum of THREE THOUSAND, EIGHT HUNDRED AND NINETY FOUR POUNDS AND SIXTY PENCE (£3894.60) STERLING with interest thereon at the rate of eight per centum per annum from 29 August 2008 until payment;

 

(5) Finds the defenders liable to the pursuers for payment in the sum of TWO HUNDRED AND THIRTY FIVE POUNDS AND SEVEN PENCE (£235.07) STERLING with interest thereon at the rate of eight per centum per annum from 29 August 2008 until payment;

 

(6) Reserves meantime the issue of expenses of the action and appoints parties to be heard thereon at Aberdeen Sheriff Court on 14 December 2011 at 9.45 am.

 

 

 

NOTE

[1] This is an action for declarator, specific implement and payment raised by the proprietors of a farm against the proprietors of a neighbouring farm, in respect of a servitude for the supply of water to a feeding trough on the pursuers' farm from and over the defenders' farm. Warrant was granted in the action on 26 August 2008, the action served on the following day and after a lengthy and varied procedural history, called for proof on 28 March 2011. Proof was heard over a period of seven days, concluding on 21 June 2011.

 

[2] At the point of commencement of the submissions there was some discussion about the legal position concerning rights of aqueduct and rights of aquaehaustus. The pursuers' counsel moved to make minor amendments to the pursuers' first crave which I allowed.

 

 

 

Pursuers' Evidence

 

[3] At the outset of the case, the joint minute of admissions, No. 32 of process, was submitted. The pursuers then led evidence from four witnesses. Roland Buchan is the father of the pursuers and the previous owner of Little Gight Farm, Methlick. He owned and operated the farm from 1960 to 1998 when he transferred ownership to his two sons but continued to act as their farm manager. When he had purchased the farm the previous owner had shown him round, and introduced him to the then owner of Milton of Gight Farm, James Beaton, who was the father of the defender William John Beaton, and in particular had shown him the ram system which supplied water to the fields of that farm and one trough on the farm he was about to take on. He spoke in detail of the arrangements for this type of water system in the area, particularly throughout the Haddow estate. He explained the operation of a ram system which pumped water at all times and which he understood to be a reliable type of water pump. He spoke to the location of the two farms and the relevant water troughs. The operation of a ram system required there to be an open end which meant that if all of the troughs were filled the last one on the system, in this case the one on his property, would then overflow. That had not caused any problem on his property as the area of the terminal trough drained well. The ram pump would not operate if the end of the system was closed. It was necessary to have strategic water points around a farm, particularly for the welfare of livestock or, if in crop, to assist with sprayers, machinery and personnel. He discussed various farming options explaining that livestock was more labour intensive and that farming decisions were largely based on market forces. It was his evidence that in his time at the farm he had, on occasions, looked after up to 200 head of cattle and had not at any point experienced difficulty with water supply. He stated that both fields served by the terminal trough had been used for cattle without any difficulty. He did not quantify the number of cattle in that situation. When cropping, water was required at the fields in order to top up vehicles, for spraying or humans washing and drinking. A sprayer required 20 to 30 gallons each time. Water supply was essential at all times. The field to the right had no source of water. The one to the left did have an alternative source but this was standing water which could not properly be utilised. He had noted that water was not coming in to his trough for some time. He could not put a date on that. He noted that water was pouring out of the last trough on the defenders' ground, also for some time. In September 2006 he had decided to put livestock back on to his farm. He had checked the last trough on the defenders' ground and taken photographs. Productions 5.5 and 5.6 were photographs taken at that point. There was water spilling from the trough. He had checked that trough and found the ball-cock to be missing. An effective ball-cock was essential otherwise water would not reach his trough. The whole assembly had been removed. Photograph 5.8 demonstrated this point. He had then spoken with William John Beaton and asked him to replace the ball-cock in order to allow water through to his trough. Mr Beaton had initially agreed. He had not appeared surprised. He had later phoned back and said that he had decided not to restore the water. He had not denied that there was an obligation nor had he disputed that the supply was disconnected. Mr Beaton was fully aware of his intention to stock the field. Pursuer Andrew Buchan had then phoned Mr Beaton but been told that he intended to take no action. Mr Beaton had not indicated any lack of understanding about the supply to Little Gight. He understood that Mr Beaton had taken steps to re-engineer his watering system. He understood that he had fitted an electric pump but had still not been formally advised of that. They had undertaken investigations in May 2009 and thereafter instructed an expert report. At that point they had noted that a stopcock had been fitted under the last trough on Mr Beaton's land. He was not aware of when that had been fitted.

 

[4] The fields could not be used for stocking cattle without an adequate water supply. Failure to utilise the fields for any purpose would result in the loss of their single farm payment under the European Union Payment System. This provided £90 per acre. The potential loss he quantified at £20,000 to £25,000. Solicitors had been instructed as they had failed to resolve the matter amicably. He referred to his solicitor's opening letter and the response received from Mr Beaton. That response appeared to dispute the question of his right to supply. This correspondence was in September and October of 2006.

 

[5] As the matter was clearly not going to resolve quickly, it was necessary for him to engineer a water supply to enable proper use of the fields. He spoke to the arrangements undertaken involving instruction of a water diviner and the sinking of a new well together with the installation of a pumping system to a new trough at the foot of the main field. He spoke to the various invoices involved in this process. In particular he spoke to his own invoice submitted to his sons for his time involved in this exercise. He considered it reasonable to charge his time at £15 per hour and spoke to the number of hours which he had required to put in to the project. He stated that he had paid up to £25 per hour for farm workers. He explained that once the system was operating he had to check it twice per day and that on each occasion this took him three hours. He also required to undertake winter maintenance of the system and had accurately set out the time involved. In November 2008 it had been agreed to upgrade the temporary system and replace the pump with a diesel pump and then ultimately an electric pump which was easier and reduced his time commitment to around two hours per day. The temporary supply was continuing and had been made as efficient as possible. He had not received payment in respect of his submitted invoice.

 

[6] He confirmed that Andrew Buchan had carried out investigation, had initially checked the pipes at the connections to the Beaton's trough and found nothing but, on a second occasion had investigated beyond the trough, had excavated the pipe and found it to be severed. As a result of this finding, the severed pipe was repaired in April 2010 at which point the water resumed flowing in to his trough. It was not, however, a constant flow, only coming through during certain hours. At that point it was clear that Mr Beaton was able to switch the water on and off, although the mechanism for this was not clear. He had monitored the water flow and believed that it was flowing in to his trough at a rate of approximately 40 gallons per day. Production 5.68 was a copy of notes which he had taken while monitoring the situation. He estimated that 80 gallons had been delivered to the trough on an exceptional day. He believed that his new trough should fill within a couple of hours if the supply was continuous. He had not measured the delivery from the ram pump as it had always been adequate. He had increased the size of the trough to act as a reservoir. He accepted that it did not require to be full at all times. When full the trough would hold 250 gallons. At 12 inch depth he estimated it was one third full at 80 gallons. It was his evidence that the original trough on his land had a similar capacity of 250 gallons. He was unable to explain satisfactorily why, in that case, he required a new trough. He did mention that a trough with a ball-cock would, he thought, suit the system as then in existence. The supply appeared to be unpredictable and insufficient for use to water his livestock. He considered that the system in place would work if the pump was given adequate time to fill the trough on his land. It was not acceptable that Mr Beaton could and did turn off the water supply when he chose.

 

[7] Under cross-examination, it was Mr Buchan's position that the supply of water to his field stopped by September 2006 and that prior to that he had been obtaining water and it was available whenever required. He had not been advised by Mr Beaton of any difficulty with the hydraulic ram and was unaware of any problem with supplying his trough. He was insistent that there had been a continuing use of the water from his trough for purposes associated with cropping and during any period when land was used for winter grazing. He confirmed his position concerning the meeting with Mr Beaton, the telephone calls and the correspondence which had followed thereafter. The court action had not been raised until August 2008 as they had been attempting to resolve matters. He was unable to explain any specific reason for what was effectively a two year gap. He had believed that re-installation of the ball-cock on Mr Beaton's trough would have resolved the problem. That had been his objective but Mr Beaton would not co-operate. He did not believe he had the right to carry out the repair himself. He recalled that before the digging operation he had tried turning off the stopcock, which would result in no water getting to Mr Beaton's trough, but that had not resulted in water getting through to his trough. The expert report had been instructed on the advice of his solicitors. There had been no surface indication of the positioning of the severed pipe as the ground had been neat and tidy. He insisted that it was appropriate that he walk to and from his trough to check it rather than taking a vehicle as the use of such vehicle would damage the pastures. The intensity of his involvement depended upon whether there was stock in the field or not. The main stocking time was between March and September. If there was no requirement for cattle the fields would have had sheep. He had, when testing, emptied the trough on occasions to see how long it took to refill. It was entirely clear that Mr Beaton was switching off the water. He was not entitled to do so. The second repair, which had been undertaken by the plumber, had resulted from there being an apparent burst in the pipe just before it reached Mr Beaton's trough. He was adamant that this had not been caused by his son digging there as there would have been no purpose for such an exercise. He rejected the suggestion that it was he who had severed the pipe and closed off the end. He pointed out that the ram system required an open ended system so that if he had done that the whole system would have stopped. He spoke again to the various invoices received in respect of the work and installation of the larger trough. He confirmed that his measurements when monitoring water in the trough were accurate and that he had not emptied water out of the trough prior to taking such measurements. He claimed that stocking levels on his whole farm unit could be between 500 and 600 head of cattle but could not adequately explain why he had earlier referred to a figure of 200. He did indicate that stocking levels can go up and down, depending on the season and markets. He accepted that more water was needed for livestock than for crops. He was shown a series of photographs, production 6.5 and agreed that these showed his new trough well filled or full in each photograph. It was his point that it was open to Mr Beaton to fill the trough or not and therefore photographs taken by him had little value. He could give no indication of the likely delivery from the ram pump. The delivery of an electric pump depended upon the size of the pump and the time during which it was running.

 

[8] On re-examination, he again explained the ram system and claimed it to have refilled his trough all the time. He was not now getting water at the same rate as previously. He accepted that it was now possible to have a higher volume of cattle, that his holding was 280 acres and that would support 500 or more cattle and that the present water supply on the top fields would not support that number. The two fields covered approximately 60 acres which would support up to 240 animals in total, but probably nearer 180. The current tenant, Mr Andrew Buchan, complicated the calculation by using the field for both cows and calves. He confirmed that he had not used the smaller or original trough on the field since the water had been re-connected. He confirmed that the discovery of the severed pipe was a surprise. When this was discovered they were endeavouring to check the plumbing system with a view to establishing why the water was being interrupted.

 

[9] Mr Buchan confirmed that he was paid by his sons, who owned the farm, after a retrospective assessment of what he was worth for the immediately preceding year. He was required to remain at the farm and manage it as they were not present. The duties which related to the temporary water supply were over and above those which he normally carried out.

 

[10] The second witness for the pursuers was Andrew Buchan (not the first pursuer), a neighbouring farmer and tenant of grass lets at both farms. He tenanted field number 17, that being the larger field serviced by the end trough. He used the grazing for sheep or cattle. When in cattle he grazed around 40 cows and perhaps 30 calves. The grazing was adequate for that number. He confirmed that at the start of 2007 the water supply was not satisfactory as there was not a constant supply. On a hot day when the trough was emptied there was no backup. He had complained to Ronald Buchan who had improved the water supply to a satisfactory level. This was a reference to temporary water supply installed by the Buchans and it was now satisfactory for his purposes. He recalled that in or around mid 2009 he had been asked by Roland Buchan to inspect the severed pipe, which he had done. In his opinion this was not accidental as the pipe had been bent over to prevent water flowing through. He had not been present when repaired but had seen activity from his own farm. After this there was a water supply to the original trough but it did not appear to be consistent. On only one occasion following this did he see water running in to the trough. He was visiting once or twice each week. He did see the trough full on various occasions. In his opinion the situation was not satisfactory but did not affect him as the temporary arrangement was satisfactory. There was an alternative source in the field from a pond, but that dried up on occasions and could not be relied upon. The cattle themselves had kicked over the temporary trough at the point when its supply was also inadequate. This demonstrated that it was that source that they were primarily relying upon. He confirmed that on one occasion Mr Beaton had asked him about the water flowing to Little Gight and had mentioned that he could adjust the time clock if he wished. He did not, however, want to become involved with that situation.

 

[11] Under cross-examination he confirmed that he thought that before he had started renting the fields they had been in crop and that he had not seen livestock there for about 20 years. It was his evidence that he had not seen the new trough in field 17 full at any point during the grazing season other than when he had sheep there who used less water, and out of season. He had seen the trough empty but could not say whether that was resulted from Roland Buchan having emptied it. When he had seen the trough empty it had taken three or four days to fill up. He thought, at a guess, that the new plastic trough was around twice the size of the original.

 

[13] Under re-examination he confirmed that he considered the supply coming from Mr Beaton's land to be inadequate. He had not closely monitored the situation. He estimated that cattle used between 10 and 20 gallons of water per head per day depending upon weather conditions. He confirmed his evidence that there had been no livestock on field 17 for around 20 years, up to the point when he had started to rent the field. He could not speak for the adjacent field as he could not see that from his own farm.

 

[14] The third witness was Duncan Henry, a civil engineer, trading as Quick Water Design. He had been instructed by the pursuers to prepare a report. He had attended at the premises on 6 June 2009 and carried out an inspection which resulted in submission of his report, production 5.61 of process. He spoke to the plan on page 1 of his report which showed the location of the troughs and his estimate of the line of the supply pipes. He was unable to comment on the date of installation of the system but did indicate that it must have been more than 20 years old as lead pipes were no longer in use after that time and indeed had not been allowed for domestic use since 1969. He confirmed that the original ram pump had been replaced by a new unit. He had been shown, and had inspected, the severed pipe noting that both ends had been closed, most likely by a hammer. One end showed three creases indicating attempts to cut with a spade or hatchet. He was unable to comment on the age of the ram system suggesting anywhere between 20 and 200 years old was possible. He confirmed that the location of the severed pipe was between the pursuers' and the defenders' troughs. It had the effect of preventing supply to the pursuers' trough. The severing of the pipe had been deliberate. He confirmed that an alternative pump to the ram pump could be sufficient if adjusted correctly. Under cross-examination, he confirmed that at the point of his inspection neither of the two troughs appeared to have a water supply. It was his own conclusion that the pipe had been deliberately severed. He confirmed that he had not measured the distance between the parties' trough but that the defenders' final trough lay downhill from the pursuers' trough.

 

[15] The final witness for the pursuers was Andrew Allan Buchan, the first pursuer. He referred to himself as a partner in the Little Gight Farm. His principal occupation was as managing director of a company dealing with pressure testing of pipelines. He is an engineer with expertise in pumps and pipelines. He explained the operation of the ram pump system. In 1998, Roland Buchan had gifted the farm to himself and his brother. Roland Buchan had continued to manage the business on their behalf. As he became older it was decided to move the farm to grass letting for easier management. He had personally worked on the farm up until 1992. There had been a lot of livestock on the farm when he was younger. When the farm moved to arable cultivation there had been a reduction in the requirement for water on the fields. Water remained a necessity however, being used for a number of tasks such as spaying, drinking and washing. The farm had primarily moved to arable in around 1992 although there were still some sheep kept there. After cropping a field of barley, cattle were put in to clean up the field. Sheep had also been used for that purpose. The decision to move to arable had been taken in 2006 when the fields were under sown in grass ready for 2007. From that point they had been rented out for livestock. Witness, Andrew Buchan had rented one of the fields for the last four years. He did not understand that there had been any change to the ram system or piping system by that stage. He accepted that as long as there was water in the trough then there would have been no reason to question the operation of the system. He explained the arrangements for water supply to the fields on his farm. He confirmed that there was, at times, a small stagnant supply on the northwest side of the field containing the disputed trough but that was not a supply suitable for livestock. In 2006, his father had advised him that the water supply to the field trough had stopped. He could not say precisely when the water had stopped. He had not been monitoring the situation. Water had been used on that field for spraying, washing and other reasons. He was aware that there was water in the trough in 2006 but could not say whether this was from rain or from the supply. When he went to check the position he could see the water was overflowing from the last trough on the defenders' ground. That should not have been occurring. When he obstructed the pipe into that trough it did not have the result of water flowing into the end trough. He believed there must be some form of blockage between the two troughs. The ball-cock on the defenders' last trough had been removed. There was no evidence of it there which suggested it had been removed on purpose. Roland Buchan had reported to him on his meeting with Mr Beaton and he thought that the situation would be resolved, however, it had not as Mr Beaton had called to say he was not taking any steps to reconnect the supply. At that point in time the pursuers still believed that the system was operating with a hydraulic ram. He had sought a meeting with Mr Beaton and had telephoned him but had not had a positive response. Mr Beaton had indicated that there was nothing to discuss. He did not mention having disconnected the supply. He did not comment on the existence of any rights. There had been little discussed during the telephone call. A solicitor's letter had been instructed but that did not have the necessary effect. There had been an agreement that they could go on to the defenders' land to investigate the position. It had been agreed that Mr Beaton would be present but when they had done so he had not been present. He spoke in detail to the investigations which he had carried out. He had undertaken two small excavations at both ends of the defenders' water trough. A stop-cock had been installed by the defender but he could not say when. This enabled the supply to the trough to be turned off but should not affect the supply going to the pursuers' trough. On his first investigation he had opened the stop-cock but there was still no water coming out into the defenders' trough. This indicated no water was being sent up the pipe. He believed therefore that the pipe must have been disconnected further down assuming still, that the system was working with a ram pump. He had established that the supply pipe to the pursuers' trough went under the wall on which the defenders' trough was situated. He started to excavate on the other side of the wall and at that point had found the severed pipe. The pipe was situated around one foot to eighteen inches below the surface. It had been deliberately severed with the ends flattened. Both ends were still close to one another. When he had excavated there, there had been no sign of recent disturbance to the ground. It looked as if the pipe had been struck with a spade or other implement on three occasions as there were dent marks. It was clearly not an accidental exercise. By this point he thought he was aware that Mr Beaton had said that the system was now operated by an electric pump. There had been no mention at that stage of a timer on the pump. That became apparent after the plumber had reconnected the severed pipe. He confirmed that the field could not be let out without water and also that in order to obtain their E.E.C. subsidies, the farm and fields had to be kept in good condition. The connection to a water supply was essential.

 

[16] He then spoke to the arrangements made for an alternative water supply in the realisation that the water was not to be reconnected quickly. An alternative well was located near the farmhouse and a temporary supply set up once the well had been consolidated using a generator and small pump with pipe work to the field. The tenant, Andrew Buchan, had said that he was not satisfied with the supply in the field and required there to be an improvement. In May 2008, they installed an electric pump system to the temporary supply. This was initially on a timer which filled the temporary trough each three hours. There was also a pressure switch which stopped the pump when the trough was full. His father, Roland Buchan, had checked the trough to ensure that the system was working and continuing to work.

 

[17] He confirmed that the arrangement with his father was that he managed the farm and that at the end of each year they would assess an appropriate level of remuneration depending upon how matters had progressed. He would be paid whether or not the business had been profitable. It was anticipated that by putting the farm into grass his workload would reduce and therefore his remuneration would reduce accordingly. Roland Buchan had complained to them about the considerable level of extra work occasioned as a result of the water supply situation. They had accepted that he would require to be remunerated for such additional work. He spoke in detail to the costs claimed in respect of the temporary water supply. He accepted that they had initially set it up using a petrol generator then had altered to a diesel generator which was more satisfactory. In June 2008, an electric pump had been installed. He had prepared, on behalf of his father, a schedule calculated at a rate of £15 per hour and reflecting the additional work undertaken by him in respect of the alternative water supply. He considered that this claim was understated rather than overstated in terms of the hours undertaken by his father. He accepted that the insulation of the electrical system had reduced the time taken in maintenance and supervision. It had not reduced the time taken to dismantle and store the system. He considered that £15 an hour was a reasonable rate for an unsupervised farm worker carrying out these tasks.

 

[18] After the discovery of the severed pipe, there appeared to be an admission by the defenders that there was a right to draw water through their property and accordingly steps could be taken to arrange for its repair. This was agreed on the basis that Mr Beaton would be present at that time. On the date agreed he had gone up to secure the excavation in preparation for the plumber attending. Mr Beaton and two others were there to supervise. These were defence witness, Mr Smith and his wife who is Mr Beaton's sister. The plumber had attended, having been brought up by his father and had carried out the repair. At that point, water could be seen bubbling from the ground next to the defenders' trough. He had excavated that, found a small burst in the pipe and had the plumber repair that at the same time. Mr Beaton had not agreed to this second repair. During the repair, Mr Beaton had asked if he wanted the water shut off and had gone to do that. He had been able to turn it on again once the repair had been completed. Mr Beaton had suggested that any damage to the pipe next to the trough had been undertaken by Mr Buchan's own excavations, although that had not been the case. The plumber had made both repairs on the same date. It was difficult to allocate his costs between the two repairs. He thought perhaps the costs would be about two-fifths to the severed pipe and one-third of the plumber's time to that pipe although callout charges would apply to both. The water started to enter the small plastic trough which had been set up next to the pursuers' trough as soon as Mr Beaton turned on the water after the repair. He confirmed that shortly after they had installed a new 250 gallon trough with ball-cock which was now required as the ram system was no longer in operation. This was in an effort to catch as much water as they could. The day after the reconnection, his father had established that water was again not coming through the pipe. He had monitored the situation and established that they appeared to be receiving approximately 50 gallons of water per day, but it was inconsistent. It was not a constant flow. It was apparent that the system was operating on a timer or some other switching device. Mr Beaton had declined to explain the basis on which he was operating the system. He accepted that the new trough installed by the pursuers was larger than their original trough. He did not accept that it was twice as large. He conceded that there was probably a greater need for water than there had been when his father initially took over the farm. There was certainly a greater need for water when livestock were on the field as opposed to crops. He believed that cattle required 15 gallons per day so that when Mr Buchan had 40 cows and 30 calves he estimated a total requirement of the order of 800 gallons per day. He accepted that an electric pump system would operate perfectly satisfactory if set up appropriately with a pressure switch and ball-cocks on each of the troughs. Such a system would not be difficult to maintain. He accepted that the ram system was not efficient as it did require an open end which involves spilling water which was surplus to the requirement. He confirmed that he could not indicate precisely when the water system had stopped working. It could not have worked from the point of the severing of the pipe but he did not know when that had been. As they had been using the trough to a lesser extent and as it still collected rain water it would be difficult to tell precisely when the problem had arisen.

 

[19] Under cross-examination, he confirmed that the problem had first been drawn to his attention in around September 2006 sometime before the first lawyer's letter had been sent. He accepted that there may have been a problem with the supply for some time before that. He insisted that water had been used from the trough for the purpose of spraying which was done regularly on a monthly basis. He was not aware of any problem arising from the spraying process. To facilitate that water had been taken out of the trough. It was not a question of chemicals being put into the trough. Livestock could still drink from the trough during the winter period. He had personally used the trough in 1992. His father had initially thought the problem related to the removal of the ball-cock although he had thought it to be more complicated. Mr Beaton had made it clear that he did not intend to reconnect. He had sought to meet Mr Beaton but he had declined to agree to that. It was only then that legal advice had been taken. He did not know when the disconnection had been made but did hold Mr Beaton responsible for that as it had taken place on his land. The temporary supply arrangement had been made because it was clear that Mr Beaton did not intend to reinstate the supply. He had initially excavated at the trough itself and found the underground pipes. On the day of the expert calling he had excavated on the other side of the wall looking for a blockage between the two troughs. He had no knowledge of a severed pipe until he found it by his excavation. He refuted the suggestion put to him that he was fully aware that the pipe was severed before this point. He accepted that Mr Beaton had not been present when he had undertaken either excavation. He accepted that Mr Beaton had not objected to them investigating but that they had not arranged for him to be advised of the date of the expert inspection as they wanted no pressure from him on that day. He had been present when the plumber had been called to repair the problem. The second hole dug had been on the opposite side of the dyke where he expected, from his initial investigation, the pipe would run towards their trough. He confirmed that the severing of the pipe with it being hammered shut would have affected the hydraulic ram system but that the removal of the ball-cock would have supplied an alternative open end. He accepted that up to February 2010, there had been no request to Mr Beaton for access to undertake repairs. He had known from the point of his investigations in 2006 that there was more to the issue than the removal of the stop-cock. There was a blockage at some point. He confirmed that after 2007 when the defender had fitted a stop-cock, which he accepted would have done the same job as the ball-cock on the trough itself, he had tried opening the stop-cock but was still receiving no water to his trough. He accepted that during the period when his farm had mainly been in crop there was a lesser requirement for water on the field. He accepted that if the water was not used regularly it would run out of the trough and spill over into the field. It was his position that this did not cause any difficulty as it drained satisfactorily. He believed he had arranged for the plumber to attend in April 2010. He was not aware if the defender had been given a time for this exercise. The defender had been present before he had got there. Once the water had been turned on he noted water bubbling up near the connection to Mr Beaton's trough. This indicated there was a leak. As the plumber was present he had further excavated and arranged for the plumber to repair the leak at that point. Mr Beaton had been unhappy with the second repair, and suggested it should be left alone. It was a small pinhole in the pipe but water was escaping from it. He refuted the suggestion that the hole had been caused by his own digging activities. He had no way of telling when the hole had appeared. He believed that the severed pipe was the reason why water was not getting to his trough. He was unable to comment on the different stages of the formal pleading in the case.

 

[20] After the repair, his father had monitored the level of supply which was being received. The supply had initially been reconnected to a new small plastic trough with a ball-cock fitted. The substantially larger trough was then fitted to capture all of the water which was being offered. With reference to document production 5.67 he accepted that the second entries were probably in relation to the connection of the larger trough. Production 5.68 contained his father's measurements of the water being received. They were not getting much water regularly hence the need to install a larger trough. He estimated the maximum they were receiving was 80 gallons per day. He accepted that after the resumption of supply in April 2010 they had made no complaint to the defender about the inadequacy of the supply. They had created the temporary alternative to respond to the tenant farmer's complaint that the supply was inadequate. He accepted that the defenders' photographs showed the trough full or reasonably full over a period of days but pointed out that it was the defender who controlled the supply and could easily do so to facilitate these photographs. In principal, a timer system could be adjusted to provide a sufficient and effective supply but that was not happening. He was unable to accurately access the number of stock on the relevant fields.

 

[21] With regard to the terms of invoice, production number 5.38, he confirmed that this was an invoice prepared on behalf of his father who was instructed to manage the project of creating the temporary supply. He had been given responsibility for the exercise. It was necessary to have it managed as certain elements require direct control and others instruction of contractors. He accepted there were no timesheets to support the invoice. He considered the times set out in the invoice were reasonable. He supported the view that it was appropriate for his father to walk up to the top of the hill rather than drive to prevent difficulties concerning gate opening. In all, he believed the invoice underestimated the level of work undertaken by his father. He accepted that the invoice had not been paid. With regard to production numbers 5.41 and 5.43, he accepted that these involved the purchase of a total of four new water troughs. His evidence on the requirement for this was somewhat vague. At one point, he suggested that the original trough covered two fields so that one new trough was required for each of those fields. He explained the requirement for two pumps. It was necessary to have an additional pump as a standby unit lest the first failed. The first generator purchased was a petrol generator which proved difficult and expensive. He decided therefore to install a diesel generator in its place. He had not anticipated that the temporary arrangement would require to be operated for such a long period of time. There was no significance in the fact that certain invoices were in the firm name and certain in his father's name. All had been required for the business and all had been paid by the firm.

 

[22] On re-examination, he maintained that with reference to a textbook, Black's Veterinary Index, he had established that on average cattle required 15 gallons of water per head per day. The tenant farmer had 40 cows and 30 calves in field 17. That was a similar level to when used by his father. Field 16 was also stocked by a different tenant farmer, he thought on much the same level. Both needed a supply of water. He thought that a calf would take less water, perhaps half of a full cow. This meant that for field 17 alone something in the region of 900 gallons of water would be required each day. He accepted that this would vary depending upon the weather. For both fields the figure would be 1,800 gallons per day. The water had to be available on demand. He confirmed that all invoices were paid from the farm's cheque book. His father did not use his own money. He did not accept, notwithstanding the photographs, that the large trough placed on field 17 was full most of the time. He had not been able to establish any relationship with Mr Beaton and required to discuss matters through solicitors. The reason his father had taken measurements was an attempt to quantify the level of supply which they were receiving. He had become aware that the defender was using an electric supply pump in or around 2006. In April 2010 he became aware that the defender was controlling the supply when he had offered to turn it off to facilitate the plumber's visit. After September 2006 and before the defender fitted a stop-cock, the flooding had dried up around his trough. He had assumed that he had diverted the water elsewhere but it may now be that this was enabled by his ability to control the water supply. He was aware that the defender had been undertaking work on water supplies as his contractor had turned up at the pursuers' farm by mistake. It was clear to him that Mr Beaton did not appreciate their being on his land for any purpose. A system involving a timer switch in conjunction with a pressure switch could be adequate if properly set. He confirmed that he personally had not seen water in the trough between his last time working there, 1992, and the present incident starting in August 2006. His father confirmed, however, that he had continued to use water from that trough.

 

[23] These four witnesses, together with the joint minute of admissions, number 32 of process, comprised the pursuers' evidence in the case.

 

Defenders' evidence

[24] The defenders' first witness was William John Beaton, the first named defender. He is an agricultural officer, holds a diploma in agriculture and also works as a part-time farmer. He had owned the property at Milton of Gight since 1984 having purchased it from his father. He in turn had owned the property since 1953. He was familiar with the farm and had lived there since the age of eight. He had left for a period after his completion of his college diploma. The farm has 65 acres. With the exception of one field it was given over to growing cereals. His farm bordered, amongst others, with Little Gight farm. He knew Ronald Buchan but did not know the sons having met with Andrew Buchan only once. He had experienced no problems with them prior to this incident. Although he let out his ground for grazing lets he did regularly check the water troughs. He did that as part of his obligation to provide his tenants with sufficient water. He estimated that he did this on approximately three occasions per week. Little Gight farm was not visible from his farm building but was from parts of his farm. He saw it regularly also from travelling on the surrounding road. From his observations he could confirm that the farm was now largely let out for grazing and had been since around 2007. Before that it had been devoted to cropping. He believed the whole farm to have been so devoted but certainly the fields adjacent to his farm had been used for that purpose. He was not aware of any winter grazing on those fields. He believed that he would have seen cattle had they been there. It was his understanding that his fields were supplied by a ram pump system and that there was a terminal trough on the farm of Little Gight. It was known as the overflow trough. He was aware of the workings of a hydraulic ram, that it worked continually and that it must have an open ended system.

 

[25] Shortly after his taking ownership of the farm, he had replaced the hydraulic ram with an electric pump. He thought this would have been around two to three years after his taking entry. He confirmed that the water supply came from within his field number 4, on the other side of the public road, was piped to the steading area and then distributed by use of the pump to the troughs on his farm and the one on the pursuers' farm. It supplied only the fields to the south side of the road. He was aware that it had been in operation since at least 1953. The water supply was variable dependent upon a number of factors, in particular, the amount of water available to it. He estimated that the pump was capable of supplying 700 gallons per day in the winter but would only supply around 350 gallons in the summer. If something went wrong with the pump system it took a long time to get it back to pumping water round the full system. He had experienced repeated problems with it. He changed to an electric pump which would pump all of the water available to it without wastage. It had greater capacity, greater pressure and was more instant. The new pump could deliver four and a half gallons per minute, almost 300 gallons per hour. The ram pump system had been unsatisfactory. It supplied water to his house. It failed on occasions and took a considerable time to restart. The electric pump was far more reliable. He maintained that the hydraulic ram required a lot of maintenance. There had been great difficulties with it until it was replaced. His father had experienced maintenance difficulties with it and had spent a great deal of time keeping the ram operating. If the cylinder in the ram filled with water, the system ceased to function properly and had to be stopped, emptied and the pump reprimed. He had a young family at home and the unreliable water supply was far from ideal. There were occasions when there was insufficient water to supply all of the elements. On one occasion, their house had been without water for almost a week. Usually it was for a shorter period. The interruptions occurred once or twice in each year.

 

[26] He was aware that the title deeds did contain an express servitude in favour of Little Gight for the supply of water. He was not aware of the full terms of the right. He was aware of the existence of the supply pump. He stated that he had always accepted the terms of the title. He could not say whether the water was, or was not being, used. There had been no stock on the fields for a long time. He had probably thought that the water was not being used. If there was no stock, particularly cattle, there was no water requirement. Document production 6.2.3 showed the pursuers' original cast iron trough together with a small plastic and larger plastic troughs. It was the original trough which had been connected to the system before alteration. He accepted that the plan shown on page 1 of the pursuers' production 5.61.1 was accurate and showed the position of the various troughs. There were four troughs actively supplied in the system, namely number one in the pursuers' field and numbers 3, 4 and 5 on his property. Number 2 had been disconnected and replaced with number 4. He had not seen the pursuers making use of trough one for some considerable time. He doubted whether it could properly be used for spraying both through lack of capacity and that any such use would leave chemical residue in the water which would affect any person or cattle claimed to be drinking from it. The change to an electric pump had been made to improve the system. He had not consulted with the pursuers as he did not believe they were using the system. The first pump which he had tried had not been quite up to the mark and he had improved the specification in 2007. He had experienced no problem with that pump since. The switch had been made to resolve what he regarded as serious problems with the system.

 

[27] He had been surprised to receive the solicitor's letter in September 2006. He was unsure about their continuing use of the supply and felt the letter to be inaccurate. He had not taken legal advice before replying at that time.

 

[28] It was his position that he had not done anything to alter the water system so as to prevent water reaching the pursuers. He had not removed the ball-cock to prevent water flowing passed his last trough. With reference to photograph production 5.6 it could be seen that the trough was not level and that a ball-cock would not have operated successfully in any event. He was not certain when the ball-cock had been removed but thought it was at least two years before the pursuers' contact in September 2006. He accepted it was not there then. He thought it debateable whether the lack of ball-cock would affect the situation as, in his view, the pursuers' trough was at a similar level to his own, it being set closer to the ground.

 

[29] He recalled having agreed with Roland Buchan that he would have a look at the situation but not undertaking to replace the ball-cock. He did not agree to do anything in particular. When he inspected the area he saw nothing visible. There were no signs of digging and he therefore believed there was no obvious cause to the problem. When the first pursuer had 'phoned him at work he was irritated as this prevented him carrying out his job which was to answer queries. He did not feel in any position to discuss matters. He simply repeated that he did not know why there was a problem and accordingly saw no point in having a meeting. He could not explain what had happened to the ball-cock and its components. He had not removed nor had it removed. The spillage was as a result of his last trough no longer being level and having a broken corner. He did not accept that the pictures production 5.23 and 5.24 had been taken in 2007 as they showed an Aberdeen Angus herd which had only been on his ground until 2006. The water had not been turned off from trough 2 until later in 2007 when he had installed the stop-cock. He believed the stop-cock had been installed in March 2007. The relevant invoice was production 6.1.7 dated 22 April 2007.

 

[30] Under cross-examination, It was his position that he would have allowed access to his ground for investigation if asked. It was his position that he had never refused such access. He had discussed the principle of negative prescription with his solicitor. He had seen the pursuers on his land in 2007 when Mr Buchan senior was taking photographs. He had been aware of the intended visit for the purpose of an expert report but had not attended as he had not been advised of the date. He had seen evidence of digging on both sides of his final trough but no other digging. He accepted that on that visit his final trough might have had no supply if the pump was not operating at that time of the day or if the stopcock had not been opened. On the repair visit in April 2010 the stopcock had been opened and all present had seen water run into the trough.

 

[31] It was his position that he had not severed the pipe between the parties' two troughs. This action had been done without his knowledge. The sealing of the end would have prevented the ram pump working successfully. He expressed the opinion that this could have been the cause of the ram pump's failure.

 

[32] He had agreed to the pipe being reconnected and had been present when this was done. After the repair, he had gone back and activated the pump switch to enable water to flow. He had not seen water bubbling up from a hole in the pipe going into his trough. He considered that Andrew Buchan, who had been digging there, had perhaps caused a rupture in the pipe which had not previously been there. After the pipes had been fixed and the water turned on, water had flowed into the little trough which had been placed on the pursuers' ground.

 

[33] He stated that he was unaware of any suggestion that insufficient water was then getting through to the pursuers' trough. He had received no specific complaint about that and was aware of this only in the context of the court action. He had arranged to operate his electrical pump on a timer switch to operate at two to three hours each day and had also fixed a pressure switch to the system. He thought this was somewhere between April and August in 2009. He had fixed the timer because otherwise the system was pumping water into the ground, wasting water and electricity. In his opinion, the pursuers were receiving more water than they would have with the ram system, were receiving a more consistent supply and were receiving water every day. He had further arranged to obtain a different supply for his house which guaranteed that there would be sufficient water for the fields from the original supply. After this change the system supplied only the field troughs and the steading where little use was made of water. The pump could be overridden to boost the water supply if necessary and he did this on occasions as also increasing the number of hours set on the timer. He had not activated the new system to prevent the pursuers getting water. He had monitored the situation, checking regularly most days, and was satisfied that if the pursuers were not getting water he would have known. In his opinion the issue was not whether the pursuers' tank was full but if they were receiving water and it was not empty.

 

[34] He had spoken to tenant farmer Andrew Buchan in the first half of the season in 2010 and asked him to keep him advised if there was a water problem. In the second half of the summer he had regularly checked the position himself and was satisfied with the situation. Tenant farmer Buchan had not reported any deficiency to him. He spoke to a number of photographs which he had taken in the period from August 2010, all of which showed the large trough either full or with a significant quantity of water. Many of the photographs were accurately dated. He had not simply put on the pump to supply water immediately prior to his taking the photographs. At this point in his evidence he estimated that cattle would use around 15 gallons per head per day, varying on factors like air temperature, weather and moisture in the grazing. It was his position that the supply being received by the pursuers was sufficient and was more than had previously been supplied under the irregular hydraulic ram supply system.

 

[35] He confirmed that he believed that Andrew Buchan had ruptured the pipe when digging there, although he accepted that it was accidental. He did not accept that when he first met Roland Buchan he had been offered a contribution towards the cost of reinstating the supply. He claimed he had told Mr Buchan that the system now worked on an electric pump. He now recalled that Mr Buchan had told him he was to put stock on to the field now and needed water. Following the meeting he had looked at the troughs and it was his position that he could not see any trouble on his side of the boundary, nor could he see the cause of any problem. He admitted that he had seen that there was no ball-cock and that his trough was broken at the corner. He did not, however, think that these factors would affect the supply to the Buchan trough as he thought the troughs were at a similar level. This, he said, was an educated guess. He did not accept the expert, Mr Henry, was in a better position to comment on the situation as he did not know him nor his qualification. The photographs, particularly production 5.10, showed that his final trough was on a tilt. He did not agree that the gradient favoured his trough. No proper levels had been taken in the report. He remained of the view that the height of delivery to the two troughs was pretty much the same. He did not know why the ball-cock had been removed from his trough. There had been no stock in the adjacent field belonging to the pursuers and he assumed therefore that the trough was not being used. He had not seen stock in those fields and would have done so when he drove past or when on his ground. He had seen winter stock on the fields after 2007 but not before. He did reluctantly concede that stock might have been present on the field at times when he did not see them. As there appeared to be no use of the trough and as no mention of it had been made to him, it had slipped from his consciousness. He was unaware that the pipe had been cut. He knew of no reason for the trough not receiving water.

 

[36] He now recalled that the change to the water supply had been in the 1990s and not in the 1980s. He thought the change had been made in 1991 or 1992. His response in examination in chief had been wrong. He had not mentioned the change to the Buchans as he did not think they were using the water supply. He would, however, have told Roland Buchan of his intention to further upgrade the system either when he met at the shop or in the subsequent telephone conversation. The upgrade was to prevent water overflowing from his troughs. The work had all been completed by the start of 2007. At Spring he had installed a new trough and put a stopcock on his final trough to stop it overflowing. It had been in that situation for about two years before that point but he had not got round to resolving the matter. The stopcock had been placed in a position so as not to prevent water progressing to the Buchans' trough. A pressure switch had been installed in March 2007. He accepted that a pressure switch would require a closed system. He agreed that it would not have worked had the system still been open ended. It had, however, seemed to work. He accepted that the plumber who made the installation would have been fully aware that a closed system was required. The matter had not been discussed. He accepted that the pipe between the two troughs had been severed on his land and that it appeared to be a professional job and not an act of random vandalism. It was suggested to him that the pipe would have required to be severed for the new system to work and that someone had done this on his behalf. He denied this. He commented that the severed pipe did not look as if it had been done recently. He had supervised the plumber for the whole time when he was installing the new system and had followed him around the farm. It had taken less than one day to install. The supply was connected to the existing pipes. It was his position that there was no moment when the plumber was out of his sight and when he could have severed the pipe without his knowledge. He had dealt with the problems with his broken trough in 2007 and then could see no reason why water was not flowing to the Buchan's' trough. In replying to the lawyers' letter, he had made reference to continuing supply meaning that he was not aware that they were using the available supply. He claimed that he was unaware that at an earlier point in the proceedings he had been denying the existence of the servitude. He claimed that he had no doubt that there was a servitude. The issue was to establish its extent and to obtain advice on his obligations. He had accepted that the pursuers had a right of supply in line with what had been operated traditionally. His father had spoken of them getting the overflow, suggesting their right depended on usage. He accepted they had a right to get water and that should be comparable with what they had historically received. He was not aware that the formal pleadings had only been amended to accept the position of the servitude in February 2010. He had always accepted that the Buchans had a right to come on to his ground for inspection and repair. He was not aware that in the present proceedings he had ever formally denied the existence of the servitude.

 

[37] He had found the ram system unreliable for his own purposes and his father had also complained about it. When working fully it was then adequate and did seem to provide sufficient water. He understood it only to supply around 350 gallons per day, which amount would only support a small number of cattle. He now thought that the 15 gallons per day estimate was high. His own farm had concentrated more on sheep than cattle and they had a lesser requirement for water.

 

[38] It was his memory that the Buchan farm had not been used for livestock for a period of over thirty years before the issue arose. Before mid 1970s, the farm had been in stock but not after. He accepted that he could be mistaken about that timescale. He did not consider that the ram system had sufficient capacity, even when working, to supply the level of water which was now being sought by the pursuers. He reiterated that the supply had, at times, been insufficient for their own purposes so no supply would then have been passed on to the Buchans. He confirmed that there had been major difficulties on at least two occasions per year with the ram system. By that he meant difficulties which caused more than one day's disruption. There had been plenty of other minor difficulties. He had to cart water up to his troughs when these difficulties occurred. He accepted he had not mentioned this in evidence in chief.

 

[39] He denied that he had used the phrase "water is a scarce resource" when speaking to Andrew Buchan on the phone. Two new houses were being built on plots on his farm but they each were supplied by separate wells, independent of the disputed water system. He had no plans to develop the steading on his farm into additional houses.

 

[40] At this point in his evidence, it was his position that in August 2007 he had introduced the timer to the electric pump as a result of damage due to vandalism on the supply pipes to certain of his troughs. This was to prevent a wastage of water. He had no reason to tell the Buchans about his taking this step. The decision was in response to a situation that had arisen on his farm. He could not comment on the suggestion that he ought to have advised the Buchans as it would affect their supply. He accepted that the decision was based on his own farm's needs and took no regard to the needs of the Little Gight Farm. As long as they received water the sufficiency requirement was met. It would only be insufficient if the trough was empty. He did check their trough when he checked his own at weekends and on some evenings. He considered it a reasonable assumption that if, when he checked, the troughs were full there was a sufficiency of supply. It was his position that there was an alternative supply of water in the corner of the Buchans' field and that he had seen cattle drinking from it. He was unable to comment on the use of the temporary supply set up by the Buchans, but it was his view that he checked the new trough and that there was a sufficiency of water being supplied to it. He accepted that he did not know how much water was being supplied to the Buchans' trough but was adamant that when he checked it was always sufficiently supplied. It was regularly topped up. If there was water in the Buchans' trough he had done what was required under the servitude. He understood all he had to do to comply was not to interrupt the pipe work. He had no requirement to provide a particular quantity of water. The pursuers' trough was an overflow. He accepted that putting a timer on the pump did affect the supply but that was counteracted by the higher capacity supplied by the electric pump. He had endeavoured to deliver the same quantity by these means. He and his plumber had undertaken the calculation. They had used figures supplied by the manufacturers of the pumps. He could not say with certainty the output of the ram pump. Its output varied. He considered there was no onus on him to check the position with Mr Buchan before deciding to install a timer. It was a matter open to his discretion. He had to maintain the supply which, in his judgement, he had done.

 

[41] Under re-examination he confirmed that the difficulties with his final trough had been in existence for about two years before the meeting with Roland Buchan. The difficulties were obvious to anyone inspecting the trough. He felt that the fields on Little Gight had been in crop since the mid 70s but certainly, in his view, for a period in excess of twenty years. Winter grazing had only commenced in 2007. He had not seen any use of the trough on the Buchans' farm for that period. He was aware of the pipe running to their farm but did not think they were using the water supply. He confirmed that the pressure switch system had been installed in March 2007 and that he was aware that this required a closed system. He accepted that as it was operating satisfactorily he realised that the system was then closed. It had not crossed his mind at the time that this must have meant that the open end on the Buchans' property no longer existed. He said he was not surprised that the system worked and that he had not considered this point. He confirmed again difficulties he had experienced with the ram pump. He confirmed his arrangements for checking the situation following upon the discussions with Mr Buchan. The timer was fixed to operate on two or three occasions per day. Sometimes that was increased to three or four occasions, generally for an hour or one and a half hours at a time. It was set higher during periods of higher usage. It was his position that if he had observed the trough on Little Gight as empty, he would have increased the pump times. He had received no complaint from Andrew Buchan, the tenant farmer, concerning a lack of water. The performance of the ram pump depended upon the amount of water coming in to it. It supplied only about 20% of the sourced water to the fields. It was his understanding that the ram pump's maximum capacity was around 400 gallons per day. He accepted that on an estimate of only 10 gallons per head of cattle that would support only 40 cattle which seemed to him a low figure. He confirmed that he had taken over the farm in 1984, that the electric pump had first been fitted in 1992, which pump was also on a timer, and that in August 2007 he had installed the larger pump with the timer and pressure switch. In respect of the issue of when the timer was fitted this did not accord entirely with his earlier evidence.

 

[42] The defenders' second witness was Mrs Helen Beaton, the second partner in the defenders' firm. She is aged 56 and a civil servant. She confirmed that the farm, Milton of Gight, extended to 60 acres which were now rented to tenant farmers, barring one field which was in crop. There had been no earlier problems with their neighbours at Little Gight Farm. She had not met the pursuers. The fields on Little Gight which were subject to this dispute could be seen from their boundary or the surrounding road. They had, since 2007, been stock but before that had been in crop. She recalled some court dispute in 1985 concerning crops on that farm. She did not accept that there had been any winter grazing on the fields whilst they were in crop. She would have seen cattle had they been grazed there. She was aware of the position concerning the supply of water. When they had moved in 1984 they had constant difficulties with inadequate water supply to their house. As a result of these difficulties they had installed an electric pump in the early 1990s. Before the present dispute had arisen, she could not recall Roland Buchan having spoken to them about the water supply system. She was not aware that he was making use of the water supply. She recalled times when the troughs on her farm had dried up and required to be supplied by tanker load. She commented that Little Gight Farm could have had no water on these occasions. She had not been aware of the right to draw water in favour of Little Gight Farm. From 1984 she had worked on the farm and would have been aware had the trough on Little Gight been used. She accepted there was no consultation with the pursuers when it was decided to change to an electric pump. This was a business decision taken to improve the supply.

 

[43] Her husband reported to her on the meeting with Roland Buchan in the shop and as a result they had gone to look at the trough. Nothing untoward could then be seen. She accepted that the top trough on her farm was overflowing and had been like that for some considerable time. There had been some mention of the ball-cock being taken off the top trough in 2007, but prior to that she had not been aware of it. The tenant farmer who used the field had not complained of lack of water, nor about the trough overflowing. No steps had been taken to stop the water overflowing until a stopcock was installed which would prevent water going into the trough. Water could still enter if the stopcock was opened.

 

[44] She was not aware of the site investigation preceding report, Production 5.61, but did recall finding digging in or around the top trough in June or July of that year. There were only two small areas which had been dug and no apparent digging elsewhere. She was unaware of the severed pipe until that was mentioned, she thought, through their solicitor. She denied the suggestion that she or her husband had deliberately severed the pipe.

 

[44] After the pipe had been reconnected, she had kept a vigilant eye on the trough on the Buchan's farm. They had installed a small rectangular trough which, within ten days, was replaced by a bigger round trough. She believed that the old metal trough was cracked and would leak. Each time she had visited the site, the trough was over two thirds full, although it was clearly larger than the original trough. She confirmed that the pump installed in 2007 was to supply a greater capacity and was installed following advice. She did not think that the first electric pipe had been on a timer but the second had been. The switch had been fixed due to incidents of vandalism when water was being pumped into the field after connecting pipes has been cut. She had discovered this on being told by one of her tenants. The pump was operated to provide sufficient water and would have been increased in time had the water supply been insufficient. There was no reason to prevent the pursuers getting water. Their trough was always full. She confirmed her husband's evidence regarding the photographs which he had taken in support of that proposition. The tenant, Andrew Buchan, on Little Gight had been shown how to override the timer so that if water levels dropped he could increase the supply. He had made no complaint to them. The photographs which had been taken had not been timed simply to coincide with the points when the pump was filling the trough. The tenant, Andrew Buchan, also had fields rented from their farm and had made no complaint about the water supply to those fields. He checked his cattle each night and would have been in a position to complain if there was any difficulty.

 

[45] Under cross-examination, she confirmed her position that the pursuers' trough seemed full and that they had not simply checked when they knew the pump was working. She assumed that any cattle on the field would use the trough if the water was there but could not say that they had actually done so and accepted that there were no photographs of cattle drinking at the trough. The pursuers could have phoned to confirm that they had insufficient water if they wished. She claimed that the tenant, Andrew Buchan, had intimated no difficulty but accepted that if he had said under oath that the water supply was insufficient, he would not have been lying. The onus was on the pursuers to tell them if there was a problem. In absence of that they were entitled to assume the water was sufficient. The tenant, Andrew Buchan, was aware of how to override the system and it was her position that he had done that more than once. She could not say that he had done that with regard to the trough at Little Gight if he said he had not. She did not accept that there was an insufficient supply to the terminal trough on Little Gight. The servitude holders could complain if there was and they had specifically asked the tenant, Andrew Buchan, to let them know if there was a problem. None of their own tenants had experienced problems with the water system.

 

[46] She confirmed that there had been vandalism to troughs on their ground with supply pipes being cut clean. She did not think that the ball-cock removed from the top trough had been an act of vandalism. As a result of the vandalism, the timer had been installed to prevent water running away. She did not think that there had been a timer on the system before that point, in June or July 2007.

 

[47] The third witness for the defenders was William James Clubb, a plumber who had experience in agricultural plumbing since 1974. It had initially comprised around half his work, but now around 15% to 20%. He spoke of the hydraulic ram system, how it operated and how it was very common up to around the year 2000. It was supplied by a header tank and in turn supplied only around 10% of the water available to its intended destination. He confirmed that it would be operated continuously and would only operate if there was an open end. The capacity of the system would depend on the size of the ram pump. He was fully aware of the ram pump situated on the defenders' property and confirmed that it was sized to produce between 450 and 600 gallons per day. He anticipated it would operate at the lower end of this scale during the summer months when less water was available. He had checked this information with the manufacturers of the particular ram pump. He had installed the present electric pump at the defenders' premises and it delivered between 260 to 270 gallons each hour. If it was set to operate for two to three hours per day, it would deliver between 520 and 810 gallons each day. This was far more than the ram pump was delivering in the same period. He confirmed that the ram pump could not have provided 900 gallons per day, revising his uppermost estimate to 700 gallons per day but dependent upon the water supply.

 

[48] Under cross-examination he was pressed on the information which he had obtained concerning the capacity of the ram pump. He had ascertained that the pump had been installed in 1980, replacing an earlier pump. He had no information about the capacity or operation of the earlier pump. He was satisfied that the information he had received was reliable. When the pump was installed, the installer would have calculated the size required. He accepted that would depend upon how many animals were being used and what usage was required for the farmhouse. It remained his position that the ram system installed could provide 600 gallons at a maximum. He could not comment on the actual number of cattle serviced by the system.

 

[49] The final witness for the defenders was Alexander Alan Smith. He is a farmer aged 66. He is related to Mrs Beaton. He is a farm owner and also tenants land from other farms, including the defenders' farm. He has, in the past, assisted the defenders with their farming activities. He is familiar with the farm. It was his position that the water supply had always generally been sufficient for the purposes of that farm. He was familiar with the ram system for pumping water and had inherited such a system when he took over his own main farm. It had been a constant source of work and required attention on average twice per month. He had replaced that with an electric pressure system which was very satisfactory and required little maintenance. Over the past eight to ten years the electric system had required no major maintenance. The electric system was also capable of pumping a far greater capacity of water. He had found that when he started keeping stock on his farm the ram system was not able to cope and a new, more efficient, system was required. The ram system could not cope with modern day farming. He confirmed that modern farming enabled more livestock to be kept per acre.

 

[50] He was aware that the defenders had operated a ram pump until 1990 or so when they had moved to an electric pump. He recalled they had experienced constant problems with the ram pump system. He was aware that the trough on Little Gight connected to the water supply on the defenders' farm. There had been an old iron trough originally but there was now, what he estimated to be, a 250 gallon plastic tank. The fields which he rented from the defenders were ones from which you could see the pursuers' trough. He checked his cattle by vehicle but could still see the top of the trough when he drove round. He saw it regularly. At present he understood there were sheep on the fields at Little Gight. He recalled that it had been in cereal for a substantial number of years prior to this dispute. He saw no sign of their using the trough until the farm changed back to grass. He would have seen that had it happened. He questioned the use of a trough when crops were being grown. He considered this would be against certain regulations. He considered that the trough would not have been large enough to effectively be used for spraying purposes as a sprayer would require between 20 and 40 gallons on each occasion.

 

[51] He was present in April 2010 when the trough on Little Gight was reconnected. The defenders had been concerned about the whole dispute and he had gone to support them. He witnessed the repair to the severed pipe. He also believed that the problem discovered on that day with the supply pipe had resulted from Andrew Buchan's digging in that area. He had witnessed water running into the final trough on the defenders' ground when the connection was turned on.

 

[52] Since this connection, he had seen the trough on Little Gight on perhaps four times per week. When he had cattle on his rented fields he would check them every second day but sheep he checked daily. Each time he witnessed there being water in the trough. He had at no time seen the trough empty. Because he was looking from his vehicle, the trough required to have water close to the top before he could see it. He also noted that it was set in such a way as to tip to one side. He believed that water would have run out of that trough before the ball-cock would have engaged.

 

[53] Mr Smith gave evidence about his involvement in the supply and employment of farm labourers. He considered that a rate of £10.25 per hour was a reasonable one for a farm labourer which was the recommended rate applied through the agency with which he was involved. In 2007 the rate would have been £8.25 per hour. A labourer with expertise in any particular field might command up to £15 per hour.

 

[54] Under cross-examination, he confirmed that he considered the rates he had quoted to be correct. Rates could be negotiated, particularly for highly specialised or skilled operators. He could not comment on the arrangements or requirements for temporary water supply at Little Gight. He could not comment on the specifics but did not consider there to be a high skill element in connecting the water supply to a farm. In general, it was easier to get employees to work on larger farms as the range of work was more interesting. If there was difficulty in obtaining an employee, it might be necessary to vary the rate a little or to provide incentives such as paid travelling time.

 

[55] He accepted that the stopcock would have prevented water entering the final trough on Milton of Gight. He accepted that if the pump was not on, water would not be entering the system. He was aware that the pursuers had installed a temporary supply but did not know if they were still using it. He could not see the part of the field in which that supply had been installed. He could not comment on the water requirements for that farm. He confirmed that he did not consider it permissible to fill crop sprayers from a feeding trough. In any event, he did not consider the old feeding trough at Milton of Gight would have been sufficient for that purpose. He did not know the capacity of the old trough but estimated it at around 50 gallons. He considered that would be insufficient for filling a sprayer as such equipment could not access all of the water in the trough.

 

[56] It was his position that when livestock was being serviced by a ram pump there needed to be a back-up water system for when the pump failed. This might involve water being carried in. There might also be times when the pump was operating but the system was not providing enough water to cover the circumstances. It also had to be considered that these pumps, in his experience, broke down perhaps twice a year.

 

[57] Under re-examination, he confirmed that he considered that 20 to 40 gallons would be necessary to fill a sprayer, that it could not use all of the water, so that a trough would require to contain 60 or 70 gallons to prevent it sucking in air. The new trough on Little Gight was, he thought, around 250 gallons in capacity with the smaller plastic one temporarily installed at around 60 gallons. He believed that the estimate for cattle of 15 gallons each per day was overstated and that 8 to 10 gallons would be appropriate. He thought that dairy cows might drink 15 gallons per day.

 

 

Submissions

[58] Both parties lodged written submissions. I do not propose to repeat these herein. Copies are retained in the process.

 

[59] At the commencement of her submission, the defenders' solicitor confirmed that the amendments to the pursuers' crave number 1 were such that the defenders no longer opposed decree in terms of that crave accepting that in its amended form the declarator sought was appropriate. She reserved her position with regard to the issue of expenses insofar as they applied to that crave.

 

My decision

[60] In assessing the evidence in this case, I did not find any of the parties or their witnesses to be entirely credible and reliable. On each side, there were inconsistencies and omissions. In general terms, I considered that the pursuers and their witnesses were broadly credible and reliable but in two particular respects, firstly their evidence about use of the water in their trough over the period when the fields were used for arable farming and secondly, their evidence about the nature, extent and necessity of the tasks allegedly carried out by Roland Buchan with regard to the alternative water supply, I found their evidence to be unreliable, exaggerated and overstated. The defenders themselves were generally not credible and reliable. Mr Beaton, in his evidence, contradicted himself on occasions was plainly evasive on other occasions and his evidence was at times illogical. He had difficulty in explaining his position on a number of points. Mrs Beaton appeared to be giving evidence to support her husband irrespective of the content required. The defenders' position with regard to the first crave is indicative and consistent with their attitude throughout. Although they were equivocal throughout, it ultimately appears that their defence to the first crave rested on two minor drafting points which, if drawn to the attention of the pursuers at the outset, could easily have been resolved. Their approach with regard to the issue of negative prescription was also one involving a high level of equivocation. Although at no point did they either formally or informally seek to apply negative prescription to the circumstances, at numerous stages they sought to hint or suggest that it might apply for no apparent reason other than to complicate the overall consideration of the issues involved. Accordingly, for these various reasons, and subject to the two points which I have raised above concerning the pursuers, I generally preferred their evidence to that of the defenders in areas where the evidence was in conflict.

 

[61] Although there was a vast amount of peripheral evidence, in my view there are three main areas of relevant dispute. These are firstly, when and by whom was the supply pipe to the pursuers' trough severed. Secondly, the detail, timing and implications flowing from the defenders' alterations to the pumping system. Thirdly, the issue of the extent of loss and damage caused to the pursuers by the defenders actions.

 

[62] In assessing the evidence on the first of these points, neither party's position and evidence makes logical sense. It is clear that before the defenders changed the pumping system from a hydraulic ram pump to an electric pump, the supply to the pursuers was as it always had been. It is clear that when the pursuers checked the trough in preparation for their reverting to grazing there was no supply to the trough. At some stage in between these two points, the supply was restricted and terminated. The pursuers' position, taken at its highest, was that the supply had been delivered to the trough up to a period close to the point at which Roland Buchan checked the trough in September 2006. They led evidence of usage for a number of purposes during the period when the field was in crop. They led evidence of use of the field for occasional winter grazing. It is clear however that, whilst that may or may not have been the case up to a point, there could have been no supply after the point at which the supply pipe was severed so, whatever use might have been made up to that point, their evidence about use beyond that point cannot be correct. It is my view that their evidence on this matter was grossly exaggerated. I am prepared to accept that they made some limited use of water out of the trough during the cropping period but that it did not reach the levels which they chose to suggest and, at least latterly, must have been from accumulated rain water only. I am of the view that had they been making extensive use of water from the trough they would have discovered the problem with supply at a very much earlier point in time.

 

[63] The defenders' position on this issue was even less tenable. Their principal witness, Mr Beaton, gave conflicting and equivocal evidence about his position. At times, in his evidence, he thought there was no supply, he doubted whether there was a right of supply or he thought there to be no problem with the supply. He accepted that he had changed the system to an electric pump in 1992 and that, at that point, a timer had been installed with the pump. He gave a variety of responses on the issue of installation of the timer but that appeared to be his final position. The electric pump had a larger capacity than the ram pump. Accordingly, if at that time the pipe had not been closed off then his new pump would have been constantly pumping water into the end trough which then would have constantly overflowed. He did not seem to think that had been happening. He did not admit to taking steps to prevent that occurring. Mrs Beaton claimed that, at a later point when their system had suffered vandalism, they had installed a timer to prevent water being pumped onto the ground through severed or vandalised pipes, albeit at an early point in the progressive system. She did not accept that the timer had been installed with the first pump. It seems therefore, somewhat unlikely that they would have countenanced that same situation, namely water being pumped onto the ground, arising at the end of the system at an earlier point in time. In any event, they accepted that in 2007 they had installed a new electric pump with a timer and had also installed a pressure valve system. Mr Beaton understood how a pressure system worked. He knew that such a system could not work with an open end. He accordingly knew that at the point of installing a pressure system the end of the pipe was closed. Nevertheless, in evidence, he would not accept that he had that knowledge. He went to great lengths in his evidence to explain that he had followed the plumber who installed the system at all times when that individual was on his farm and at no time had that individual severed the pipe leading to the pursuers' trough. If that part of his evidence is to be believed then the pipe must have been severed at some point earlier and he, Mr Beaton, must have known that. From the evidence available to me I cannot make a finding about the precise point at which the pipe was severed. I accept the pursuers' evidence that they were unaware of the pipe being severed. It would make no sense for them to have known that as, if they had, they would clearly have gone about matters in an entirely different way. It is apparent that Mr Beaton knew full well that the pipe had been severed and that the latest point at which it could have been severed is before the installation of the pressure vessel system in 2007. As there was no evidence of any work being carried out to the system for some considerable time before that, together with the evidence that the severed pipe, discovered in 2010, showed signs of having been severed at a point considerably before that time, I am satisfied on the balance of probabilities that the defender knew about the severed pipe prior to August 2006 when the supply problem was first identified by Roland Buchan. It would be my suspicion that the pipe was severed very much earlier, possibly in 1992 when the electric motor was first installed, but a finding to that effect would be inconsistent with the position of the pursuers. For the purpose of deciding the present action, the knowledge on the part of the defenders by mid-2006 is perfectly adequate and I make no finding beyond that point.

 

[64] The second point concerning the pumping system is more straightforward. It is clear, and not in dispute, that the system was changed by the defenders to an electric pump in 1992. A more powerful pump was installed in 2007 together with a pressure valve system. A the timer was added to the system of the first pump. It is clear that at a point no later than April 2007, a stopcock was fitted to the supply pipe to the defenders' last trough but that, in itself, had no effect on the supply to the pursuers' trough. It is clear that at some point prior to August 2006, the stopcock arrangement on the defenders' trough was dismantled. This, in absence of any other factors, would have had the effect of disconnecting any flow through to the pursuers' higher trough. It is not clear whether the water spillage at the defenders' final trough was due to the removal of the stopcock or a problem with the trough itself having become unlevel and broken at the corner. It is not clear when these factors arose. It is not clear what or who caused this situation. Although it is not of strict relevance to the decision in this action, in my view the failure by the defenders to keep the water system in a proper state of repair resulting in a disruption of supply would in itself constitute a breach of their duties in terms of the servitude.

 

[65] In their evidence, Mr and Mrs Beaton both claimed that following upon the complaint from the pursuers they had inspected their final trough and seen no reason there to explain any lack of water at the pursuers' trough. They accepted that there was no ballcock and that the trough was overflowing. Their position was plainly incredible. Mr Beaton attempted to explain this by suggesting that it was debateable whether the pursuers' trough was at a higher or lower ground level than his final trough. That position is obviously not correct. He had regarded the pursuers' trough as the "overflow trough." He spoke of it not receiving water unless his troughs had water. The evidence from the water expert clearly showed that the pursuers' trough is at a higher level which is also shown on the map produced with his report, which map was not challenged. Also, were the pursuers' trough to be the lower, then under the original system the pumped water would simply have bypassed the defenders' last trough and flowed to the lowest level available. This was an example of the defenders being disingenuous in their approach. They made no real attempt to check the basis of the pursuers' complaint. As stated, I am satisfied that by that time Mr Beaton was fully aware that the pipe had been severed and any check was no more than an empty gesture..

 

[66] I do not think there was any dispute that in general terms a suitable electric pump would be more efficient and supply water at a higher flow rate than a hydraulic ram pump. Both sides in both evidence and submission came somewhat bogged down on the issue of the quantity of water supplied by the old and new systems. The defender sought to justify his position on the basis of his claim that although he was controlling when and how much water should be supplied, what he was supplying was equivalent to a greater quantity than that supplied by the ram pump. The pursuers sought to establish that what was being supplied was of a lesser quantity. In my view, neither party led satisfactory evidence on this point nor is it strictly relevant. For their part, the pursuers seemed to consider that they had a right to a sufficient supply to enable them to make use of the field for whatever purpose they chose. At no point did they satisfactorily quantify the amount of water which had been supplied to them under the original system. They did not quantify the size of the original trough other than to accept that it was considerably smaller than the plastic trough which they had now installed. Their evidence about the time taken to fill the plastic trough had little relevance. Both sides made attempts to assess the pursuers' current water requirements with reference to figures concerning the average daily water consumption of cattle. Their various estimates differed. I have no satisfactory evidence on which to base a finding as to such a requirement. In any event, I do not think it of any relevance as there was no evidence which would justify the view that such a level of supply was available under the original system. The vague proposition that it was sufficient then so it should be sufficient now is neither helpful nor sustainable. In my view, what the pursuers are entitled to is a constant supply of water as was provided by the hydraulic ram system. Given the terms of the evidence which was led I suspect that supply at the level provided by the ram pump system would not be sufficient to sustain the level of cattle presently grazing on the fields, but I am not in a position to make a finding to that effect.

 

[67] The defenders, for their part, sought to lead evidence about the overall capacity of the different systems. Their evidence was not convincing. I have stated in general terms that I accept that a ram system will deliver less water from the same source, than an electric pump, subject to its capacity and if operated for the same time periods. The defenders' witness, who had made investigations into the capacity of the ram system, was basing his evidence on enquiries he had made with the manufacturers but, were that evidence to be correct, there was a clear implication from the evidence of both parties that the amount of water which was said to be capable of being produced by the ram system would have been insufficient even for the needs of the defenders without there being any overflow supply available to the pursuers' trough. This cannot be correct. Accordingly I am not prepared on the basis of the evidence led to make any findings in respect of such quantities.

 

[68] The defenders' obligation as servient tenement proprietor is not to obstruct the pursuers' right to water. The use of any system which restricts the constant flow of water is plainly an obstruction of that right. They do not have the right to substitute a different system for supplying water and to operate it as and when they choose. Even were they able to establish, which they were not, that the level of supply was equivalent, in total, to that under the old system they do not have that right.

 

[69] Parties became embroiled in much evidence and argument about the use by the pursuers of the water once supplied to the trough. I do not consider any of that evidence to be relevant. The right is to draw and receive water to the trough. Once the water is in the trough, it is entirely a matter for the pursuers whether and how they chose to make use of that water. If they chose to make use of that water by allowing it to spill into their field, then so be it. If they chose to make use of that water for cattle to drink or any other purpose, then that is a matter for them. In any event, although the defenders, on occasions, sought to make mention and lead evidence of a perceived lack of use, they did not argue negative prescription rendering all of that evidence irrelevant.

 

[70] The third issue which flows from the second relates to the loss and damage claim by the pursuers. This is principally founded upon the proposition that because the defenders terminated their supply the pursuers required to create a new supply on a temporary basis and are entitled to the costs thereof. Much evidence was led about the sufficiency of the supply to the pursuers. They sought to establish that even after the pipe repair, the supply which they were receiving was inadequate. The difficulty with that approach is that at no time were they able to quantify the level of supply of water they had received in the past. Accordingly, it is impossible for me to make a finding that the requirement to install a temporary alternative supply was necessitated by the pursuers placing restrictions on the supply by use of the timer. I suspect, although the evidence was not satisfactory, that were the system still operating on the original hydraulic ram basis, the level of supply of water to the trough would not be sufficient to sustain the pursuers' current operation and they would, in any event, have required to obtain a second source of water to supplement the supply and sustain that level of utilisation of the field, not to mention use of the second field also serviced by the same trough.

 

[71] Had the position always been as at present, namely with the reconnected supply restricted by a timer mechanism, I would not have found that the pursuers had, on the evidence led, established any loss, other than the cost of reconnection itself. They did require to find and install a separate supply at the point at which they did because at that point the defenders had severed the supply pipe and were declining, despite being requested to do so, to reconnect the system. It is not therefore a question of sufficiency of supply but a question of the supply itself and on that basis, I hold that the pursuers were required to install their new alternative system and are entitled to recover the reasonable costs incurred. Again the evidence was far from focussed and satisfactory. The pursuers sought to include items which they could not properly substantiate including the costs of two new troughs and additional pumps which do not properly relate to the exercise of creating an alternative water supply. The pursuers' claim £ 5169.00 for this exercise. I have excluded from their claim, £ 200 for an additional trough, £ 575 for the hire of a digger, £ 300 for a high head water pump, £ 80 for another such pump and £ 120 for mileage expenses. I am not satisfied from the evidence that these were reasonably and necessarily incurred. This leaves a balance of £ 3894.00, which is the sum which I have awarded and which I consider to be the reasonable costs incurred in this exercise.

 

[72] I am not prepared to find that the pursuers are entitled to recover monies in connection with the theoretical claim from Roland Buchan. The account claims to be payable within 30 days but has not been paid two years after submission. Mr Buchan was not contracted on this basis. His annual remuneration was negotiated and settled at the end of each year. There was no evidence that he had been paid more or less for the relevant years to take this task into account. Given that he was winding down his involvement there was no evidence to place these hours in that context and the context of the payments received for the relevant and earlier years. The hours expended are an estimate based on a vague notion of a daily time requirement. They appear excessive for the actual tasks undertaken. The same rate has been applied to all of the tasks whether skilled or unskilled. It was clear from the evidence that the account will only be paid if recovered from the defenders. It is also impossible to gauge which of the tasks and hours were spent on tasks directly relevant to the defenders' actings particularly as I suspect that the additional supply would have been required in any event and have found that the pursuers approach to the quantity of water supplied is misconceived and was inadequately presented.

 

[73] The claim for payment for reconnection and repair of the pipe is clearly well founded. The pipe was severed by or on behalf of the defenders. The suggestion that Andrew Buchan caused the pin hole in the pipe which was repaired is not established. I preferred his evidence on that point.

 

[74] The pursuers' full claim is for £ 40,000.00. By the process of elimination there is a figure of £ 6330.40 allocated to alleged loss of rental. No satisfactory evidence was led on this point. This part of the claim has not been established.

 

[75] The pursuers' crave for declarator is no longer disputed and I have granted that in its amended form. It is not therefore necessary for me to discuss and decide on the attendant legal issues. I would, as did the defenders, have accepted that the pursuers' legal argument was soundly based.

 

[76] I am satisfied that the defenders have unlawfully obstructed the pursuers' servitude right and that it is appropriate that they be declared to have done so and ordained to reinstate the water supply.

 

[77] The pursuers are entitled to recover loss and damage as a result of their requiring to install an alternative water supply owing to the defenders having disconnected their supply. Their claim is however grossly inflated as articulated above. I have restricted their recovery to those items which I am satisfied are reasonably connected with the installation of the alternative supply.

 

[78] In view of the outcome and the complication of earlier reserved expenses I have set the case out for a hearing thereon.

 

 

Malcolm Garden, Esq.,

Sheriff of Grampian Highland and Islands at Aberdeen.