Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Bruce of Kinnaird
v.
Elphinston of Quarrel

Date: 16 February 1709

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Bruce of Kinnaird having a coal adjacent to Elphinston of Quarrel's coal; Quarrel, by an interposed trustee, gets a tack of Kinnaird's coal, and works a level partly through Kinnaird's ground, and partly through his own, to carry off the water from both their coals; but, this tack expiring in October last, Quarrel bigs up and closes the mouth of the said coal-level, by which the water, in speats, does regorge and restagnate on Kinnaird's coal, and is in hazard of drowning it. Kinnaird gives in a summary complaint to the Lords, craving,—That Quarrel may be ordained to remove the said stop, open the level, and let out the dam; and repone all things as they were in statu quo in October last, at the expiring of the tack; there being periculum in mora, and he in damno vitando; whereas Quarrel was in lucro captando, that he, having the sole going coal in that part of the country, might have all the sale, and none to compete with him to keep down the price to a reasonable rate.

Answered,—The coal-level now in controversy is all in Quarrel's ground, and was wholly made and wrought by himself, at his own expense, and for his conveniency, whereof Kinnaird ought not to plead the benefit; for, quilibet potest facere in suo in propriam utilitatem, and for his own advantage, though it consequentially tend to the detriment of his neighbour, providing it be not done in œmulationem vicini. But so it is, if I did not stop the current of this water, it would much prejudge and wrong my own coal; and, in such a competition, where it must either wrong you or me, law and reason permit me to consult my own interest, and prefer myself first. Put the case, I farm a loch or other marshy ground from my neighbour heritor, by a lease of several years' endurance, and, by cutting through my own ground adjacent thereto, I drain the said marsh, and make it good pasture and meadow. When the tack is ended, may not I fill up my ground and ditch I had cast?—And will he pretend to say, You cannot, for it overflows my ground, and turns it to marsh again. He cannot hinder me to improve my own property, seeing I do him no injury, leaving his ground as I got it. If it wronged him, without any advantage resulting to myself, it should not be permitted; for malitiis non est indulgendum: but if I improve my own land thereby, he cannot complain. See the case of Haining draining his loch into Tweed, and thereby prejudging the salmon-ishing, observed both by Sir George M'Kenzie and Stair, in 1661.

Replied,—This attempt of Quarrel's being new, it must be stopped novi operis nuntiatione; and the Roman law introduced, in such cases, where there was appearance of damages, cautionem de damno infecto: and I crave no more but that my coal may continue in the same state and condition it was in when he had it in tack, at the time he left it; and not ruin me, that, cum mea jactura, ipse locupletetur, and get all the sale of the country; for inferior ground owes a natural servitude to the superior for carrying off its water, and can no more be stopped than an inferior mill can make the water regorge to set the upper mill in back water.

The Lords thought, if the level was sufficient to carry off the water coming from both coals, then it should not be dammed up. But, seeing it was strongly alleged, that, in winter, and in time of speats, it could not serve both; therefore they appointed a visitation to be made on the ground of both lands, to see if the level could serve both, and left Quarrel at liberty to remove the stop or not, as he pleased; but, with this certification, if he was found in the wrong when the report should come to be advised, they would modify Kinnaird's damages against him.

Vol. II. Page 493.