Scottish Court of Session Decisions

The following directions were by the defenders, and having been refused, exception was taken against said refusal:—

1. That the law does not regard trifling inconvenience; that, in determining the question raised in the issues, time, locality, and all the circumstances should be taken into consideration by the jury; and that in districts where great works have been erected, which are the means of developing the national wealth, persons are not entitled to stand on extreme rights, or complain of every matter of annoyance.

2. That under the terms of the tack of the carpet manufactory, granted by Lord Milville to Henderson & Widnell in 1847, Lord Melville is responsible in this question with the defenders for the use which has been made of the water by his tenants.

3. That under the terms of the tack of the carpet manufactury, granted by Lord Melville to Whytock & Company in 1834, Lord Melville is responsible in this question with the defenders for the use which has been made of the water by his tenants.

4. That none of the pursuers is entitled to a verdict against any one defender unless the jury shall be of opinion, in point of fact, that the matter discharged by such defender into the river pollutes the river within the property of such pursuer to his nuisance.

5. That if the jury are satisfied that the primary uses of the water are destroyed at Melville and at Dalkeith with the consent, or with the acquiescence of the pursuers, by causes arising below St Leonard's Mill, for which none of the defenders are responsible, they must find for the defenders on all the issues as far as regards the Duke of Buccleuch and Lord Melville.

D. F. Moncreiff and A. Moncrieff in support of the bill of exceptions.

Lord Advocate, Shand, and Johnston for the pursuers.

At advising,

Lord Cowan was of opinion that the direction of the presiding Judge to the jury were sound in law, and further, that he had done rightly in refusing to give all or any of the specific directions asked by the defenders. The distinction drawn between public and private streams, and the statement of law as to the use which riparian proprietors were entitled to make of the water, were unexceptionable in themselves, and had received the sanction of many decisions since they were first defined in the Lochrin case, as decided in this Court in 1791, and in the House of Lords in 1792. The exception to the second part of the charge rested upon this fallacy, that, because a certain act did not of itself amount to a nuisance, though it materially contributed to its production, the act was therefore a matter of legal right. This proposition was opposed both to law and common sense, and would be most dangerous in its consequences. With regard to the first direction asked, so far as it was not idle and unnecessary, it was unsound in itself and inapplicable to the circumstances of the case. It was not true that a nuisance became legal if such nuisance was a public benefit; and further, the manufactures in question were not carried on for the public benefit, but for private profit. There was no definition given as to what was meant by “extreme rights,” and the only effect of making such a vague statement as this part of the direction would have been to distract the mind of the jury from the main question. As to the second and third directions, they were not such as to meet the case, which it was the avowed intention of the defenders to lay before the jury; it could only proceed on the assumption that the carpet manufactories were of themselves a nuisance apart from and irrespective of the paper-works; and, secondly, that the use made by the tenants of the water was authorised by Lord Melville, so as to make him responsible. There was no evidence that these manufactories were such a nuisance. On the contrary, the whole evidence went to show that the esparto grass was the principal if not the sole cause of nuisance; and it was a monstrous thing to say that one nuisance could not be got rid of because of the existence of another. The fourth direction had already been disposed of in the Judge's charge. The fifth direction was objectionable—(1) Because no time was specified as to when the primary purpose of the water was destroyed; (2) because the jury had been already told that, if there had been a prescriptive usage of the water for secondary purposes, this would be sufficient to entitle them to find for the defenders—if it meant any more than this, it ought to have been the subject of a special issue; and (3) because the pursuers were entitled to proceed against all the sources of nuisance. The case would have been different if, as in the case of the Lochrin burn, the river had been allowed to become a common sewer, so that the removed of another nuisance would have been useless and unprofitable. That was not the case here.

The other Judges concurred.

The Lord Justice-Clerk, in so doing, stated that he wished to explain that the directions in law now before them were not all the directions which he had given to the jury, but only such as had been excepted to; that the two portions of his charge had not been delivered in immediate juxtaposition; that the only reason why he had thought it necessary to define the difference between a public and a private stream was that the defenders' counsel had stated to the jury that there was no such distinction. With regard to the directions which he had been asked, and had refused, to give, he was not at liberty to modify or alter them; and as they stood, they appeared to him to be all either unsound or misleading, or both.

Exceptions disallowed.