Scottish Court of Session Decisions

This was an action by the trustees of the late Robert Jackson of Bardykes, against John Marshall of Caldergrove. The following were the conclusions of the summons:—“Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session, that the retaining walls and embankments erected by the defender in the course of the Summer or Autumn of 1809, or about that time, in or upon the alveus of the stream or river called the Calder, opposite to the pursuers' said lands of Bardykes, and which retaining walls and embankments are shown on the plan or sketch herewith produced and referred to, have been so erected or constructed wrongfully and illegally, and to the injury of the pursuers' said lands; and it ought and should be found and declared by decree foresaid, that during the Summer or Autumn of 1869, or about that time, the defender wrongfully and illegally, and to the injury of the pursuers' said lands, quarried or excavated a quantity of rock at three points in the alveus of the said stream ex adverso of the pursuers' said lands, and situated on that part of the alveus belonging to them lying between their said lands and the centre of the said stream, and which points are shown on the said plan or sketch; and further, it ought and should be found and declared, that during the said Summer or Autumn of 1869, or about that time, the defender wrongfully and illegally, and to the injury of the pursuers' said lands, removed a number of large masses of rock, lying on the pursuers' property, on the north-east bank of the said stream, nearly opposite the said embankment, and which pieces of rock belonged to the pursuers, and formed, in the situation where they were, a useful protection against the encroachment of the said river upon the pursuers' property; and the defender ought and should be decerned and ordained by decree foresaid, forthwith to remove the said retaining walls, embankments, and works connected therewith, and also forthwith to replace the rock quarried or excavated from the alveus of the stream, as above mentioned, or otherwise to excavate the rock on the half of the alveus adjoining the defender's lands at or near the said points, in such a way and to such an extent as to neutralise the effect upon the said stream of the said excavations upon the pursuer's half of the said alveus, and also forthwith to replace, in the same position as they formerly occupied, the masses of rock removed by the defender from the bank of the pursuers' lands adjoining the said stream, as above mentioned, or otherwise to erect such an embankment along the pursuers' lands at the portion thereof from which the said masses of rock were removed, as will protect the pursuers' lands from the encroachment of the said stream to the same extent as the said masses of rock, if not removed, would have done; as also forthwith to restore the said stream,” &c.

The defender pleaded, —“The action cannot be maintained, in respect that the only operations executed by the defender, with the exception of the removal of the three small pieces of rock above referred to, were not in the alveus of the stream, but upon the defender's own lands, for the protection of which they were necessary.

After a proof the Lord Ordinary ( Mure) pronounced this interlocutor, from which the whole facts of the case appear:—

10 th April 1872.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, finds, 1 st, that upon the defender entering into possession of the estate of Caldergrove in the year 1869, the water of the river Calder passed in time of flood in a considerable body across the lower part of the road leading down to the river, between the point H and J upon the plan No. 100 of process, and from thence through an opening on the Caldergrove side of the point marked I upon the plan into a rut or channel which ran along the Caldergrove side of the alder tree marked K upon the plan, and through which the water flowed into the main stream below the alder tree, after passing over the ledge of rock shown upon the plan: finds, 2 d, that this ledge of rock extended at that time across the river to the Bardykes side, and consisted of solid rock, with the exception of a place about 4 feet wide, near the point marked O in the centre of the stream, at which the water passed over one or more large blocks of stone, which were detached from the rest of the rock: finds, 3 d, that there was at this time a considerable quantity of detached rock and boulder stones lying along the main bed of the river, from the letter C to the letter R upon the plan, which had the effect of breaking the force of the stream; and that there were also large stones lying along the greater part of the Bardykes Bank, which had the effect of protecting that bank from the action of the river: finds, 4 th, that on the right-hand side of the road leading down to the river there were the remains of a rough wall or dyke which had extended into the river; and that there were also on the left hand side of that road some loose rough stones laid along the ground on which the retaining wall is now built, but that neither this old wall nor the rough stones had the effect of preventing the river in time of flood from finding its way across the road into the rut or channel on the Caldergrove side of the alder tree, and thereafter discharging itself into the stream below: finds, 5 th, that shortly after the defender acquired the property he rebuilt the wall on the right side of the road, and raised it at the part where it entered the bed of the river higher than it had originally stood; and that he also built upon the left side of that road what is marked ‘retaining wall’ upon the plan, and raised that wall from 1 to 2 feet higher than any of the loose stones that lay along the road; and that he thereafter, in the course of the year 1869–70, filled up the above mentioned rut or channel, which had previously formed a portion of the ordinary water way of the river in time of flood: finds, 6 th, that during the same period the defender removed, in considerable quantities, the loose rock and boulder stones from the bed of the

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river, and used them in making the artificial banks of stone and stone-pitching shown upon the plan; and that he also removed the large block of stone from between the ledges of rock near the point O upon the plan, and quarried out a considerable quantity of solid rock on either side of the place where that block of stone had lain, and so deepened the river at that place, and caused the main body of water to discharge itself through the opening thereby made, instead of diffusing itself across the river, and passing over the ledge of rock as it had formerly done: finds, 7 th, that there was also, during the same period, a quantity of rock quarried out by the defender at or near the centre of the stream at the point marked R upon the plan; but that the pursuers have failed to prove that there was any rock quarried by the defender at the point marked M upon the plan: finds, 8th, that the effect of the operations thus carried on by the defender has been to prevent a considerable portion of the water of the river from passing as formerly in time of flood through the rut or channel on the Caldergrove side of the alder tree; and to divert it from the points marked H and I upon the plan, into the ordinary Summer channel of the river, and thereby direct it against the banks of the pursuers' property in a greater body and with a greater force than it was in use to run before the said operations were performed, and in a manner which is injurious, or calculated to be injurious, to the property of the pursuers: finds, 9 th, that a considerable portion of these operations, and in particular a portion of the wall at H, where it enters the bed of the river, and of the retaining wall at I; the filling up of the rut or channel on the Caldergrove side; the excavation of the rock at or near the point O; the place marked ‘artificial bank of stones;’ and a portion of the stone-pitching shown between the places marked ‘rock’ and K, upon the plan, were operations upon the bed of the river, which, as a whole, the defender was not entitled to make without the consent of the pursuers; and that it is not proved that these operations were carried on with the knowledge and acquiescence of the pursuers: finds, 10 th, that the draining operations in the field in which the well, referred to in the record, is situated, have had the effect of cutting off the water from the well; but that it is not proved that the defender had recourse to these operations with the view of producing that effect; and that it is not proved that the farm-steading of Bardykes has been injured through the defender's operations; and, before farther answer, remits to Mr James Leslie, civil-engineer in Edinburgh, to examine the localities in question, and to report (1) What portion of the retaining wall between the points marked J and I upon the plan, and of the bank marked artificially raised,” and of the stone-pitching between the points marked K L O, it will be necessary to remove, in order to allow the water of the river, in times of flood, to pass down through the old rut or channel on the Caldergrove side of the point marked K upon the plan, to the ledge of the rock below: (2) Whether, upon that rut or channel being opened up, it will also be necessary to remove any portion of the wall marked H upon the plan, and of the stone-pitching between the end of that wall and the point I, and of the bank marked “artificial bank of stones,” in order to prevent the river from being confined and driven over to the Bardykes side in time of flood: (8) What measure he would recommend for replacing the rock which has been taken out at O, so as to fill up the passage which has been made in the ledge of rock at that place; and Whether, if that rock cannot be replaced, he would recommend any farther, and if so, what farther, removal of rock on either side of this passage, so as to allow the main body of water to spread over the river, instead of being carried through the opening as at present: (4) Whether, when the artificial bank and other obstructions to the free course of the river in time of flood down the Caldergrove side of the point K are removed, it will be necessary to lay down any large stones, or raise any embankment upon the banks on the Bardykes side, in order to protect those banks from the action of the river; and reserves, in the meantime, all questions of expenses.

“ Note.—The evidence in this case is, in several respects, very contradictory; but it appears to the Lord Ordinary to be clear, even from the defender's own account of the condition in which he found the river when he acquired the property, that there was a well-defined rut or channel which ran from the road leading down to the river at H, along the Caldergrove side of the point marked K upon the plan, and extending to a considerable width at that point, by which a large portion of the water of the river passed down in time of flood, and joined the main body below the ledge of rock on the plan; and that the effect of the defender's operations has been to prevent this portion of the water from passing down on the Caldergrove side, as formerly, is very clearly established. The witnesses are not at one as to the precise width or depth of this rut or channel; but they seem to be almost all agreed that, so far back as they can recollect, a considerable portion of the water of the river—according to the defender's witnesses, in all extraordinary,—and according to the pursuer's witnesses, in all ordinary—floods passed through this channel to the depth of several feet, instead of going down the main channel on the Bardykes side; and that this was no mere occasional spreading of flood-water over a piece of low-lying land is, in the opinion of the Lord Ordinary, pretty clear from the description given by most of the witnesses of the gravelly and stoney character of the bed of the rut; and, in particular, from the fact spoken to by two of the witnesses for the defender, M'Lellan and Maine, who state that the soil and gravel lying along the rut had in places been scoured away and cut down to the rock.

The fact that there was a passage for the river at this place is also shown by the Ordnance Survey, which all the men of skill are agreed in stating indicates the bed of the river as extending from about the point I on the plan across the bank artificially raised, and very much in the direction and to the same extent as the rut or channel as it existed before the defender commenced his operations, and thus making the river from 45 to 50 feet wide at that place instead of about 30 feet, as shown by the defender's plan.

In these circumstances, the misapprehension under which the defender appears to have acted, is in supposing that a passage of this sort, which forms the ordinary waterway or channel by which a river is relieved in time of flood, is not subject to the same restrictions, in a question with the opposite proprietor, as the alveus in which the river runs in its ordinary state. The contrary has, however, been decided by the House of Lords, in the case of Menzies, July 4, 1828, 3 W. and S., p. 235; and having regard to the rule laid down in that

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case, it appears to the Lord Ordinary that the filling up of the rut or passage, and consequent diversion of the water which used to run through it in time of floods from its accustomed course, was an operation which the defender was not warranted in having recourse to, at the risk of injury to the opposite proprietors, and that he is now bound to restore that passage to its former state.

The same observation applies to the removal of the rock at O, which was beyond question an operation in the bed of the stream; while, as regards the other operations, the proof is, in the opinion of the Lord Ordinary, sufficient to instruct that a few feet of the wall next the river, on the right side of the road at H, and of the pitching between it and the retaining wall, as also a portion of the ‘retaining wall’ itself, and the artificial bank of stones and pitching reaching down to and round below the alder tree, are operations on the bed of the river tending to contract the waterway, and to force the water over to the opposite side. But whether these operations are of a description which will require to be altogether or partially removed when the old rut or channel is opened up, cannot, in the view the Lord Ordinary takes of the case, be disposed of until a report is obtained from a man of skill upon the subject. Nor can the passage on which the artificial bank has been raised be itself restored except at the sight of some one appointed by the Court. The Lord Ordinary has therefore made a remit to Mr Leslie to report upon the several points which appear to him to require to be cleared up before any operative decree can be pronounced.

With reference to the injury to the pursuers' property, it may be that no serious injury has as yet been actually sustained. But it is in evidence that several parts of the banks on the Bardykes side have been to some extent affected since the defender's operations were begun; and this at the places where, in the opinion of the pursuers' engineers, they would expect the river to run with greater force in consequence of these operations. And although the men of skill examined on the part of the defender do not appear to be apprehensive of much injury, there is, in the opinion of the Lord Ordinary, sufficient in their evidence, particularly in that of Mr Gale, to show that it is not improbable that the blocking up of the passage on the Caldergrove side may seriously increase the risk of the river cutting into the Bardykes side, and this, having regard to the law as laid down in the case of Bicket v. Morris, July 10, 1866 ( 4 Macph. 44), seems sufficient to entitle the pursuers to the remedy they ask.

In disposing of this case the Lord Ordinary has not considered it necessary to decide whether the original bank of the river, on the Caldergrove side, was in the precise line shown upon the pursuer's plan. But he has dealt with the case upon the broad fact, deponed to by most of the witnesses, that, so far back as they remember, the accustomed course of a considerable portion of the water in the river in time of flood was upon the Caldergrove side of the alder tree, after the water had crossed the road, a few feet above the point marked I upon the plan. As regards the original bank, he thinks it not improbable that Mr Cunningham may be correct in his opinion that the line claimed by the pursuers, at least between B and J upon the plan, has not been the river boundary for many years; but he thinks it pretty clear, on the other hand, upon the evidence, that the river, as contracted by the defender's operations, is not now in all respects in its original bed. And as the width of river shown upon the Ordnance Survey Map corresponds pretty nearly with the line in which the water is proved to have passed for many years in time of flood, the Lord Ordinary has come to the conclusion that the safest way to deal with this part of the case upon the evidence may be to take that line to be the boundary of the river on the Caldergrove side.”

Mr Marshall reclaimed.

Solicitor-General ( Clark) and Balfour for him.

Watson and Asher, for respondent, were not called for.

At advising—