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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> M'Nab v. Robertson and Others (Campbell's Trustees) [1896] UKHL 174 (15 December 1896)
URL: http://www.bailii.org/uk/cases/UKHL/1896/34SLR0174.html
Cite as: 34 ScotLR 174, [1896] UKHL 174
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SCOTTISH_SLR_House_of_Lords
Page: 174↓
House of Lords.
Before the
v.
(Ante March 11, 1896, vol. xxxiii. p. 497, and 23 R. 1098).
Subject_River — Lease — Grant of Ponds and “Streams leading thereto” — Water Percolating through Soil — Implied Obligation not to Divert Water.
Facts:
A lease of a distillery included certain lands and two ponds, “together with the right to the water in the said ponds and in the streams leading thereto.”
Held ( affirming the judgment of the Second Division, the Lord Chancellor dissenting) that water percolating
Page: 175↓
through marshy ground into the ponds was not included in the expression “streams leading thereto,” and that, assuming the lessors to be under an implied obligation not to diminish the supply of water in the ponds, the onus of proving that a diminution had resulted from operations of the lessors lay upon the lessee, and had not been discharged. Opinions reserved (by Lord Watson and Lord Davey) whether such an implied obligation could be held to exist where certain sources of supply to the pond are specified and let.
Opinion (by Lord Shand) that such an obligation was to be implied.
The case is reported ante ut supra.
The complainers appealed.
At delivering judgment—
According to my apprehension the word “stream,” in its primary and natural sense, denotes a body of water having as such body a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid, as distinguished from its sluggish current in other places. I see no reason to doubt that a subterraneous flow of water may in some circumstances possess the very same characteristics as a body of water running on the surface, but in my opinion water, whether falling from the sky or escaping from a spring which does not flow onward with any continuity of parts, but becomes dissipated in the earth's strata, and simply perlocates through or along those strata until it issues from them at a lower level through dislocation of the strata or otherwise, cannot with any propriety be described as a stream. And I may add that the insertion of a common rubble or other agricultural drain in these strata, while it tends to accelerate percolation does not constitute a stream as I understand that expression.
The spring in question, which is a very small one, is situated at a short distance from and above the level of the lower pond. There is little evidence, and that neither explicit nor altogether satisfactory, in regard to the condition of the spring and its effluents at and before the granting of the lease in September 1889. Most of the witnesses speak to their condition after the operations of the agricultural tenant, which were subsequent to that date, and before the year 1892. But I am satisfied, upon the proof, that whilst a small proportion of the water escaping from the spring may have gone in another direction, the bulk of its water must have gravitated towards the pond, and that a considerable proportion of it must ultimately have found its way into the pond.
Galbraith, the agricultural tenant, describes the land between the spring and the pond before he commenced his operations, as a marsh which did not come quite close up to the side of the pond. He, in order to dry the soil, put a drain into the marshy part, which he continued, by means of an iron pipe three furlongs, to a tub sunk on the edge of the pond, from which he drew water for domestic use, and the overflow from which went into the pond. Lawson, who was assistant factor for the estate of Garscube at the date of the lease, describes the intervening land as “soft spongy ground,” and there are other witnesses who describe the water as “seeping” from the adjacent land into the pond—a Scotch expression equivalent too “oozing—which is an accurate description if applied to the escape of percolating water from the strata through which it has passed, and is to my mind altogether inconsistent with its running in a stream. Boyne, one of the appellant's witnesses, no doubt says that there was a sort of channel formed by the water from the spring, but he is the only person who appears to have detected it, and the bulk of the evidence upon the point, as well as the natural inference to be derived from facts established aliunde alike lead me to the conclusion that until the time of Galbraith's operation the water of the spring reached the pond by the natural process of percolation, and that no part of the supply derived from the spring flowed in a body which could with any degree of accuracy be described as a stream.
I therefore differ in opinion from the Lord Ordinary, who came to the Conclusion that the spring in question was one of the subjects specifically let to the appellant. Had I been able to arrive at that result, I should not have thought it necessary to consider whether by interfering with the spring the respondents had injured the appellant's water supply. In that case every drop of water which they took from the spring otherwise than in the due exercise of their reserved right in connection with farm purposes would have been an illegal diminution of the supply secured to the appellant by the terms of his lease.
The result of my opinion, so far as hitherto expressed, is, that the waters of the spring in question were not demised to the appellant subject to a reservation permitting a certain user of them to agricultural tenants, but remained with the respondents under their title as proprietors. The appellant, upon that view of the case, maintained alternatively that the respondents are under a contractual obligation to allow as much of the water of the unlet sources from which the pond is fed to continue to enter it as may be equivalent to the average of the water supply derived from these sources at the date of the lease; and in aid of that contention he relied upon the general principle of law that the grantor of a right cannot himself do anything in derogation of his own grant. The application
Page: 176↓
I think the necessary effect of Galbraith, the agricultural tenant's, operations, which were subsequent to the granting of the lease, was to convey the water of the spring more rapidly and more directly to the pond, and to prevent its dissipation in the soil or its evaporation. If so, their tendency would necessarily be to increase and not to lessen the quantity of water reaching the pond from the spring. The immediate effect of the respondent's operation which followed, was to collect, as soon as they came to the surface, the whole waters issuing from the spring, including a proportion of them which had not previously gravitated towards the pond, and to make them available for transmission in undiminished volume. The water collected in the tank serves, in the first place, to supply a pipe, which is not used for agricultural purposes, and the remainder is directly conveyed by another pipe to the tub sunk by Galbraith, through which the water of the spring previously entered the pond. A comparison between the quantity of water which now runs over the tub and that which previously escaped from it must therefore afford the means of ascertaining whether there has been a diminution of the supply since the arrangement made by Galbraith was superseded.
The whole evidence which bears on the alleged diminution in the amount of the spring water which now enters the pond, as well as on the amount which entered it before the lease was granted, is, it may be necessarily, somewhat vague. In considering that evidence, it is, in my opinion, not immaterial to keep in view the fact that in the time of his predecessors the weekly output of the distillery never exceeded 1300 gallons of whisky, whereas during the tenancy of the appellant it was increased to about 1700 gallons, which represents an addition of about 30 per cent, to the quantity of water used for distillery purposes at the date of the lease. I have also to observe that the scarcity of water in such an exceptional season as that of the year 1894 cannot throw much, if any, light upon the average quantity derived from the spring at and before the date of the lease, a question which, in the absence of more reliable data, can, in my opinion, best be solved by ascertaining whether or not the overflow from the tub has been sensibly diminished since and by reason of the respondent's operations. Upon that point there is conflicting evidence, but, on the whole, I prefer the testimony which is favourable to the respondents, and, in any view, I have no difficulty in holding that the appellant has failed to prove diminution.
For these reasons I am of opinion that the interlocutor appealed from ought to be affirmed and the appeal dismissed with costs.
There remains, however, the question whether, although the water is not included
Page: 177↓
But assuming such an obligation to exist, this differs very materially in its legal effect from a lease in which the water itself is let. I agree in thinking, as the Lord Ordinary (Lord Low) says, that “if the water of the spring was part of the subjects let to the complainer prima facie, the respondents were not entitled to interfere with it in spite of the complainer's remonstrances, and the onus lies with them to show that the complainer has not been prejudiced by their operations.” But if the water is not so let, the position of the parties is different. It then follows that the tenant is only entitled to complain, and to have a remedy if he is able to prove that the landlords have diminished the water supply. This raises a question of fact for the consideration of the House, and in that question it appears to me that while the onus would have been upon the landlords if the case would have been one in which they had demised the water, the onus is on the tenant in the case in which he has to found on an obligation not to diminish the water supply. It lies on the tenant to prove that the water supply has been diminished. On that question I agree with my noble and learned friend that the tenant has failed to establish this averment.
I observe that the Lord Ordinary, in the elaborate judgment which he has delivered, has examined with great care, and even minuteness, the evidence upon this subject, and in the result he is unable to say that there was any decrease of the supply of water to the distillery. His Lordship, after going in detail over the statements made by the different witnesses, and expressing his views as to the weight to be attached to them, concludes in these terms—“The question upon the evidence is very narrow, but I have come to the conclusion that the respondents have failed to prove that by interfering with the spring they have not injured the complainers' water supply.” He was then looking at the question with the onus lying upon the landlords according to his view, and all that he is able to say in the result is, not that there has been any diminution of the water, but that the landlords have failed to prove that by interfering with the spring they had not injured the water supply.
There are several considerations which are material upon the question of fact which I am now considering. In the first place, I think it is to be kept in view that by the recent operations of the landlord which formed the occasion for interdict being applied for, there was a material addition made to the water that was turned towards the pond. From one spring which was close to the pond the water, in so far as it did not remain in the intervening marshy ground, found its way to the pond, but there were smaller springs surrounding it, the water from which certainly did not find its way in that direction, but in a totally different direction—in the direction of the blacksmith's house, which is referred to in the proceedings. I am satisfied upon the evidence that there was a material addition made to the water sent towards the pond by the landlord's operations, for he included the springs to which I now refer. These were caught and enclosed with puddle so as to send the water towards the pond.
There is no doubt a conflict of evidence as to the effect which the tank or cistern and pipe put in by the landlord had, but it appears to me that the weight of this evidence is with the landlords rather than with the tenant; at all events, I am satisfied that there is not proof on the part of the tenant sufficient to show that there was a diminution of the water supply as the effect of the tank and pipe.
I agree with my noble and learned friend in thinking that it is also not unimportant to observe that the operations of the distillery have been largely growing in recent years, requiring therefore a greater supply of water than was previously necessary. That circumstance may have induced some of those who were connected with the distillery to think that the water supply was somewhat diminished, when the truth rather was that it was the distillery demands which were increased. I also agree in thinking that one cannot judge with any safety of the result of these operations from taking a very dry season such as that of 1894, as a test for examination, and on the whole I agree in thinking that the appellant has failed to prove that his water supply, as it was at the date of the lease, has been diminished by the landlord's operations.
The subjects demised are the distillery of Tambowie, together with certain cottages and lands, and with the two ponds numbered 140 and 134 on the Ordnance map, “together with rights to the water in the said ponds and in the stream leading thereto.” The first question is the construction of the lease. It appears that the land between the spring in question in this appeal and the lower pond was land demised to the distillery, and at the date of the lease it was just a marsh through which
Page: 178↓
But the lease contains a clause of warrandice against the facts and deeds of the lessors, and the appellant also relies on the well-known maxim, that a grantor may not derogate from his own grant. Like my noble friend opposite, I have a difficulty in holding that when certain feeders or sources of supply are expressly granted, the operation of the lease can be extended so as to impose an additional burden or servitude on the grantor. But I will assume without deciding that there is in the present case an implied covenant that the lessors will not by their facts and deeds diminish the quantities of water in the streams or ponds, which I think is the most favourable way of stating the case for the appellant. Of course if the spring and the water from it is in the demise it is no defence to say, “We give you other water in compensation and have not on the whole diminished your supply.” The lessors in that hypothesis have no right to touch the spring at all. But if the rights of the appellant are in contract or implied covenant the situation is entirely different. The burden is in that case upon him to prove breach of the covenant, or, in other words, to prove that he has suffered a material loss of water by the operations of the respondents. If the Lord Ordinary had thought that the burden of proof was on the appellant I am not sure that he would have found in his favour on this point. But however that may be, I agree with Lord Young in the Court below, and with your Lordships who have already addressed the House, that on the evidence it is not proved that the respondents by their operations have diminished the water in the streams or ponds; and I agree with the interlocutor pronounced in the Inner House, and think the appeal should be dismissed with costs.
The
I confess I think that the pollution by the grantee of the other sources of supply i irrelevant. I think the greater flow of water procured by the granter at other times is irrelevant; and I regret to some extent the decision at which your Lordship have arrived, because I think it will tend to multiply words in every conveyance by the parties in future. If, however, the true construction of the grant be what you Lordships have considered it to be, I should not differ or disagree from what in that case would be the rights of the parties.
Their Lordships dismissed the appeal with costs.
Counsel for the Appellant—The Lord
Page: 179↓
Counsel for the Respondents— Cripps, Q.C.— Macfarlane—C. K. Mackenzie. Agents— Nicholson & Paterson, for Tait & Crichton, W.S.