Scottish Court of Session Decisions

Subject_1 SERVITUDE.

Bruce
v.
Colonel Dalrymple

1741, Dec. 11.
Case No. No. 2.

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The Colonel had a gathered dam for draining his coal, whereof a part, as well as of the dike that kept up the water, was on Mr Bruce's grounds, and had been so more than 40 years, only the dike was then but three feet high, and covered little of his ground; but as the caul to the dip required a greater force of water, the Colonel at different times within the 40 years, brought in water from different grounds, and raised the dike, so that it is now three ells high, and stretches much further on Bruce's ground, as the dam also covers much more of it, but I believe he does not yet lose an acre, and the ground I suppose not very valuable. Mutual declarators of immunity and servitude being pursued, the proof was now advised. There was little question that a servitude was constituted by prescription. The question was only as to the modus, Whether the dike ought to be reduced to the height it was of 40 years ago, or if the raising it higher from time to time, though within the 40 years (at one of which Mr Bruce's tenants assisted) was sufficient evidence that he had a right to raise it to any height necessary for draining his coal, though there was no other constitution of the servitude than prescription, and though these heightenings were occasioned by bringing in more water? The Lords found that Colonel Dalrymple has right to have a reservoir of water sufficient for draining his colliery, and therefore to continue his dam-dike of the height it now is of. The interlocutor seemed pretty unanimous. I observed none against it but Royston and myself,—4th November. 11th December, Adhere.