Scottish Court of Session Decisions

This case has been in various forms before the Court of Session since 1841. The pursuers are the Duke of Buccleuch, Lord Melville, and Sir W. Drummond, riparian proprietors on the North Esk, and the defenders are proprietors of mills on the banks of that stream. A jury trial of eleven days' duration commenced on July 30, 1866, and the issues sent to the special jury then empannelled were as follows:—

1. “1. Whether, between 1st January 1835 and 1st October 1853, the defenders, the first-mentioned firm of Alexander Cowan & Sons, did, by discharging refuse or impure matter at or near their mills of Bank Mill, Valley field Mill,‘and Low Mill, or any of them, pollute the water of the stream or river called the North Esk, to the nuisance of the pursuers or their authors, as proprietors of their respective lands aforesaid, or of one or more of them?

2. 2. Whether, between 1st October 1853 and 20th May 1864, the defenders Alexander Cowan & Sons, the present occupants of said mills, did. by discharging refuse or impure matter at or near their said mills, or any of them, pollute the water of the said stream or river, to the nuisance of the pursuers or their authors, as proprietors of their respective lands aforesaid, or of one or more of them?

3. 3. Whether, between 1st January 1835 and 15th May 1856, the defenders, the first-mentioned firm of William Somerville & Son, did, by discharging refuse or impure matter at or near their mill called Dalmore Mill, pollute the water of the said stream or river, to the nuisance of the pursuers or their authors, as proprietors of their respective lands aforesaid, or of one or more of them?

4. 4. Whether, between 15th May 1856 and 20th May 1864, the defenders William Somerville & Son, the present occupants of said Dalmore Mill, did, by discharging refuse or impure matter at or near their said mill, pollute the water of the said stream or river, to the nuisance of the pursuers or their authors, as proprietors of their respective lands aforesaid, or of one or more of them?

5. 5. Whether, between 1st January 1835 and 1st July 1856, the defenders, the first-mentioned firm of Alexander Annandale & Son, did, by discharging refuse or impure matter at or near their mills called Polton Papermills, pollute the water of the said stream or river, to the nuisance of the pursuers the Duke of Buccleuch and Lord Melville, or their authors, as proprietors of their respective lands aforesaid, or of either of them?

6. 6. Whether, between 1st July 1856 and 20th May 1864, the defenders Alexander Annandale & Son, the present occupants of said Polton Papermills, did, by discharging refuse or impure matter at or near their said mills, pollute the water of the said stream or river, to the nuisance of the pursuers the Duke of Buccleuch and Lord Melville, or their authors, as proprietors of their respective lands aforesaid, or of either of them?

7. 7. Whether, between 15th May 1856 and 20th May 1864, the defenders James Brown & Company did, by discharging refuse or impure matter at or near their mill called Esk Mill, pollute the water of the said stream or river, to the nuisance of the pursuers or their authors, as proprietors of their respective lands aforesaid, or of one or more of them?

8. 8. Whether, between 1st May 1848 and 20th May 1864, the defender Archibald Fullerton Somerville did, by discharging refuse or impure matter at or near his mill called Kevock Mill, pollute the water of the said stream or river, to the nuisance of the pursuers the Duke of Buccleuch and Lord Melville, or their authors, as proprietors of their respective lands aforesaid, or of either of them?

9. 9. Whether, between 1st January 1843 and 20th May 1864, the defenders William Tod & Son

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   did, by discharging refuse or impure matter at or near their mill called St Leonard's Mill, pollute the water of the said stream or river, to the nuisance of the pursuers the Duke of Buccleuch and Lord Melville, or their authors, as proprietors of their respective lands aforesaid, or of either of them.”

The general evidence of the case consisted of the testimony of parties who had resided from infancy on the banks of the stream, and who spoke to its present state of pollution, whereas previously it had been pure, and had been used for watering cattle, for domestic purposes, as a trouting stream, and otherwise. A number of witnesses were examined as to the quality and amount of the materials used in the mills at different periods; and also the evidence of several experts was taken.

The general evidence of the defenders was with the view of showing that the regulations referred to in the evidence of Professor Christison had been complied with; that everything that could be reasonably expected had been done by the defenders to purify the water as it issued from their mills; and that the pollution of the river was in great measure caused by other manufactories, and more particularly by the sewage of the town of Dalkeith.

The following are the more important portions of the Lord Justice-Clerk's charge:—“The nature of the action, which was brought by the pursuers into Court so far back as 1841—and the subsequent actions are precisely of the same character, and are merely intended to bring into the field different sets of defenders—is this—In their summons they demand, in the first place, that the Court shall interdict the defenders from polluting the stream; and, in the second place, they ask, in the event of interdict not being granted in these terms, that the defenders shall be put under some reasonable regulations, whereby the effect of their operations shall not be to pollute the stream. Now, what I have to tell you in regard to an action of this kind is, that it is an appeal to what is properly called the equitable jurisdiction of the Court; and that when an issue is sent to a jury to try a case of this kind, it is not at all like an issue in most cases, where the verdict of the jury is immediately followed by a judgment out and out in favour of the one party or the other. On the contrary, in the present case the question of fact is sent to be tried by you in the first instance—whether there is in point of fact a pollution of this river by the defenders; and if that fact shall be ascertained to the effect of your finding that there is a pollution of the river by the defenders, the legal effect comes to be judged of afterwards, and the remedy to prevent the pollution for the future is a matter entirely in the discretion of the Court, and is not at present a subject for your consideration at all. But it does not in the least degree follow, nor is it for one moment to be contemplated as a possible result, that merely because you return a verdict affirming that the river has been polluted by the defenders, there is therefore at once to be a judgment of the court putting a stop to the future operations of these mills. The precise words of the issues and the exact questions of fact on which you are to return an answer I will explain to you immediately; but before doing so there is another matter of law in regard to which I must give you certain explanations and directions, and that is in regard to the relative rights of proprietors of a stream of this kind, who may be classed as upper and lower proprietors. The mutual obligations of parties so situated are very clearly and distinctly defined and fixed in our law, and the principles of the law regulating such rights are founded on such obvious considerations of justice as well as public policy that you will at once appreciate and understand them when I state them to you, and you will find them of the utmost value in the consideration of the evidence in this case. But, in the first place, it is necessary to state to you a distinction which has been greatly lost sight of in the course of the argument from the bar, and that is the distinction between public and private waters. A public river—that is, a river which is fit for navigation—navigation of any kind, not merely by vessels of large burthen but by boats, whether it be fresh water or salt water, whether it be a tidal river or a river in which the tide does not ebb and flow—is public property. It is vested in the Crown for public uses, and chiefly for the uses of navigation; and to such public uses all private rights are subordinate. No man who has a property on the banks of such a stream as that can set up any title or interest in himself which shall for one moment be allowed to compete with the public uses to which that river is dedicated. The property of the river is in the Crown, not in the proprietors of the banks. It is vested in the Crown for the protection and promotion of public rights and uses. But in regard to a private stream—that is to say, a stream which is not navigable—precisely the reverse is the case; because, when a proprietor has both the banks of a stream of that kind, he is also absolute proprietor of the bed of the river. It is part of his estate; and there can be no better illustration of that than to consider for a moment how some of the defenders have treated this stream as it passes through their properties. They carry off the entire water out of the bed of the river into a mill-lade, sometimes of very great length, and serving in one case no less than four different paper-mills before it is returned to the stream. That could not be done with a public river, and the reason why it can be done with a stream like this is simply because the bed of the river is the property of those millowners who so use it; and they are entitled to use the water in any way they like as it passes through their property, subject to certain conditions; and these conditions are, that they shall send down the water to their neighbours below, undiminished in quantity, and unimpaired in quality. Now, these are plain simple rules, applicable to the correlative rights and obligations of upper and lower proprietors in a private river. No doubt it may be said, and truly said, that the conditions which I have mentioned must suffer certain limitations. There is a certain diminution in the quantity of the water as it is used by every person in passing through his property. There is a certain consumption of water for domestic uses, and there is an evaporation going on constantly in the stream, which will diminish the quantity by natural causes, and therefore it cannot be said absolutely that the water is sent down from the upper to the lower proprietor quite undiminished. The meaning of the condition is this, that it shall be sent down undiminished by anything except the natural and primary use of it by the people on its banks. And as regards the matter of purity, it is impossible in the nature of things that a running stream should

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not receive in its course certain impurities as it passes along. The action of nature is inconsistent with such a condition as that; but the meaning of the condition is this, that no unnecessary or artificial impurity shall be put into the stream, so as thereby to affect the purity of the water as it passes to the proprietors or inhabitants below. You can see. therefore, gentlemen, that in dealing with a case of this kind, it is quite in vain to appeal to the condition of such rivers as the Forth or Clyde, or any of our public rivers used for public purposes. You will at once see that no question like the present could by possibility arise in regard to these rivers; that it is only on a private stream, such as the North Esk, that a question of pollution of this kind could possibly be raised. …. It was said—and a great deal of the case turns on the view that may be taken of this—that to entitle any one of the pursuers to obtain a verdict against the particular defender, he must prove that that defender has polluted the stream within his property. Now, that means that it is incumbent on the pursuers to prove that one of these mills—say the furthest up—would be sufficient of itself to pollute the river on his property, although all the other mills were stopped—I must tell you that that is not good law, and not the true construction of these issues. The law which I give to you on that matter is this, and I beg your particular attention to it—‘It is not indispensable for each of the pursuers to prove that any one of the mills would of itself, if all the other mills were stopped, be sufficient to pollute the river to the effect of creating a nuisance to him. It is sufficient to entitle each of the pursuers to a verdict on any one of the issues to prove that the river is polluted by the mills belonging to the defenders generally, to the effect of producing a nuisance to him, and that the defenders on that particular issue materially contribute to the production of the nuisance to him. But it is indispensable for each pursuer to prove that the river is polluted by the mills of the defenders so as to produce a nuisance to him, independently of any nuisance to the other pursuers, or any of them, and that each of the defenders against whom he asks a verdict materially contributes to the production of such nuisance to him.’

“I have (continued his Lordship) put this in the shape in which I have now read it for the convenience of my friends at the bar, but I will explain it a little more, lest you should not have followed the concise language in which it is put. What is meant is just this; It may be alleged that if there were only one paper-mill on this stream, say one of the mills of the Messrs Cowan, the action of that mill alone would not be sufficient to create a nuisance by itself at Melville and Dalkeith. That is very possible, and it may even be possible that any one of these mills, no matter where situated, would not be of itself sufficient to pollute this stream so as to create a nuisance, because you will at once see that pollution is a matter of degree. In one sense of the word, every running stream is polluted to a certain extent, as I said before, by natural causes, or by the carelessness of the inhabitants on its banks in allowing small impure matters to pass into the stream. But then the stream has a restorative power in itself which very soon gets the better of these, and so it may be that the river has so much restorative power in itself that the erection of one manufactory of a particular kind on it will not pollute it to such an extent as to make a nuisance, and yet that the erection if several will pollute it, so as to render it quite unfit for the primary use of water. Now, it must be obvious to you, and that is the meaning of the direction in point of law that I have to give to you, that it would put an end altogether to any possibility of the proprietors on the banks of a stream like this complaining of a manufacturing nuisance, if they were not entitled to complain when the extent of manufacture has reached to that point that it produces pollution. So long as no pollution is produced they cannot complain of the existence of a manufactory. They have no title to complain. Their single title to complain is that they are hurt when the water on their property is polluted by that means, and until they are so injured they cannot complain; but when the extent of the manufacture has become such as to produce pollution, then the title to complain arises. Now, gentlemen, I think that will enable you to understand without much difficulty the question which is to be tried under these issues, and also the case you have to determine as between each pursuer and each separate defender. And now I proceed to give you some general views as to the application of the evidence which you have heard. The case of the pursuers is this—that before 1835, or thereabouts, this river was in such a state of purity as to be fit for all the ordinary and primary uses of running water. Now, the primary uses of running water, as the water is actually used and enjoyed, will vary a good deal according to the size and nature of the stream. A very small rill close to its fountain-head will be the purest of all running streams probably (unless it happens to come from a polluted source), and there it will be the best adapted and most used for primary purposes. But after the stream has run through a peaty district, or a coaly district, or any other district, it is likely to communicate some impurities to it and it will no longer be so elegible for drinking purposes, but still it is not a river thereby unfitted for primary uses generally. River water—that is to say, the water of a considerable stream—is never by any one thought good drinking water, though there is no particular source of pollution in it. Its long exposure to the air is of itself sufficient to make it less agreeable as drinking water, and the various small pollutions it receives in its course all contribute to the same result. But still that is not a river which has changed its character. It is in its natural condition, and is still suitable for the primary purposes of water generally—for washing, bleaching, cooking, (it may be under certain limits), for watering cattle, and the like. Now, that is the condition in which the pursuers say this river was before 1835, or thereabouts, and their case was that from that time it began to be polluted in such a way by the operations of the papermakers as to convert it from a water fit for primary uses into a water unfit for primary uses. Now, that is what is called pollution, and if the pursuers make out their case to that effect, then they are entitled to ask you to affirm that these defenders have polluted the river, because pollution just consists in rendering water so impure that whereas before it was fit for the primary uses of water it is now unfit. But the Dean of Faculty said to you, and said very properly and very soundly, except in regard to a particular turn of expression which I shall endeavour to correct, that if from time immemorial

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before 1835, it could be shown that on this river the primary uses had been superseded by other and secondary uses, then the pursuers cannot prevail, because the thing that they are complaining of is the pollution by these defenders after 1835—that is to say, the conversion of that water after 1835 from one state to another state—not a mere deterioration of it, but a conversion of it from one intelligible and distinct condition to another and different condition, constituting pollution. The Dean of Faculty said that if the primary uses had from time immemorial been subordinated to other uses, that would sufficiently bar the pursuers from claiming a verdict. Now, that is a little ambiguous. It may mean that this river had been used before 1835 for manufacturing purposes but it may have been used for manufacturing purposes, and many rivers have been so used, without polluting the stream in the legal sense of the term—that is to say, without superseding and putting an end to the primary uses of the water—and if that were the meaning of the phrase, then it would not be sound in point of law. It is quite sound to say, and that is the most material point for your consideration, that if it be shown that from time immemorial this river has been devoted to such purposes as to render it unfit for the primary uses, then the pursuers cannot prevail. But if, on the other hand, they have satisfied you on the evidence that before 1835 this water was fit for the primary uses of water, and was so used, and and that after 1835 it has, by the operations of the defenders, been rendered unfit to be used for these purposes, then they are entitled to prevail, unless there be some other ground on which their case can be met and their rights voided.

After referring to the evidence, his Lordship proceeded:—“Now, gentlemen, it is necessary to be very careful in dealing with this part of the case. I must beg your particular attention to one or two observations here as to the bearing of that part of the evidence. A river may be polluted from a variety of causes, and by a variety of persons. It may either be polluted by a number of different persons doing the same thing, putting in the same kind of impurity, or it may be polluted by a number of different persons putting in different kinds of impurities. Now, when the lower proprietors and inhabitants upon a stream find themselves injured by such pollution, they are, of course, entitled to complain, but it must be obvious to you at once that if the pollution is very various, and a great many persons are engaged in different kinds of pollution, it is not possible to put them all down at once without difficulty; and, therefore, as a general rule, when pursuers in such an action as this complain that a particular manufactory or set of manufactories is polluting the water, it is no answer to them, and no defence in such an action to say—‘Well, but other people are polluting it too.’ It is a different thing, and I will consider it immediately, if they can say the pursuers are doing the very same thing; but if all they can say is, ‘Other people are polluting the stream as well as we’, that is no justification of their proceedings, because the plain answer to them is—‘Very well, if other people are polluting it, we shall challenge them too, and put an end to their pollution as well as yours; but in the meantime stop your pollution, and then we will deal with the others.’ Therefore, gentlemen, it appears to me that a great deal of the evidence you have heard about sewage which is thrown into this river has not much to do with the case. If the village of Lasswade discharges its sewage into this river it is doing what is illegal, and may be stopped if it has the effect of polluting the river. But the village of Lasswade is not represented by any of the pursuers of this action. Something was said about Lord Melville being superior of the ground at Lasswade. I am sure I do not know whether that is the case or not, but though it were the case, it would not affect the question in the slightest degree, because nobody can know better than you that a feuar is just as much the independent lord of his estate as the biggest nobleman in this land, and nobody can interfere with him in the exercise of his rights of property. Therefore, to say that the superior of land is answerable for impurities thrown into a river by persons who happen to hold from him a feu, would be the most unreasonable thing in the world. So, in regard to the town of Dalkeith, it is quite in vain to say that the town of Dalkeith throwing sewage into this river is the same thing as the Duke of Buccleuch throwing sewage into it. Do you imagine that the town of Dalkeith is under the control of the Duke of Buccleuch, or can he by his own orders and direction prevent pollution from going on? The remedy he has against the town of Dalkeith is the same as against these defenders—to convene them in an action of law, and get the nuisance abated by that means. Therefore, as far as that is concerned, it has really little to do with the case. But there is another point in connection with this part of the defence which also requires separate attention. It is said that Lord Melville is himself the cause of the pollution in the river. That, if it be made out, is a much more important defence, as far as that part of the river is concerned. Now, how does this matter stand? In the first place, it is said he was himself at one time the owner of a paper-mill. Now, that is quite true, but that paper-mill existed only when paper mills did not pollute the river, if you are satisfied about the condition of the river before 1835. It came to an end in 1828, and it is not said that any of the paper-mills on the Esk, or all of them put together, polluted the river so early as 1828. The amount of manufacture was not so large as to produce that effect. The water still remained, according to the evidence of the pursuers, in a condition to be used for primary purposes. Therefore, so far as that paper-mill is concerned, it does not appear to me that it affects the position of Lord Melville as pursuer. But, then, he has got a carpet factory. They say that is a source of pollution of the river, and so it undoubtedly is. I do not think it is possible to have listened to the evidence without coming to the conclusion that that carpet manufactory pollutes the water; and, gentlemen, it comes to be a question of law how far Lord Melville is answerable for that. He is not the manufacturer. He is only the landlord and owner of the mill. Now, we have not had attention particularly called to the terms of the lease which he has granted to the tenants, and it depends entirely upon the terms of that lease whether he is answerable for the pollution that has taken place. If the lease authorises the pollution, then the landlord is responsible. If the lease does not authorise pollution, and the tenant, without any authority from the landlord, commits

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the pollution, then the tenant only is answerable, not the landlord. That is a question which has been decided upon various occasions, and rests obviously upon very clear and sound principles. So that unless it could be shown by the defenders that the tenant of the carpet manufactory was authorised by his lease to pollute the water and carry on such operations as would pollute the water, Lord Melville cannot be made answerable for that. Now, gentlemen, there are just one or two other special matters that I think it necessary to say a word upon before concluding. In the first place, to revert for a few moments to the question as to the condition of the water before this alleged pollution began. You will, of course, understand that in order to prove pollution and entitle the proprietors and inhabitants upon the banks of the river to complain, it is not indispensable that the water previously should have been of the highest possible character. The character of water as drinking water, or as water for watering cattle and for washing and other domestic purposes, varies much; and what is called fair river water—an expression used by some of the witnesses—is water that is applicable generally to these primary purposes, without being of the highest possible quality, without being equal to the spring water found in the same neighbourhood. If it be good river water, then it must be protected from pollution; and the question, therefore, in that early period, is not whether there were any works upon this stream, or any discharges into the stream, that might possibly deteriorate its quality. That may be, and yet the water may be fit for primary purposes; and, if it be fit for primary purposes, it will still be a water that the inhabitants on the banks are entitled to have protected against pollution. Now, there are discharges of iron from the coal mines, there is a peaty admixture, and there are waulk mills, and other little works on the river, from which there no doubt proceeds a certain amount of impurities, but these are very small in quantity, and have little effect on the river. So it was with the paper-mills as they existed in the early part of this century; they were innocuous, and did not convert the water into water not fit for the primary purposes. That really concludes all that I think necessary to say for your guidance in considering the evidence. Let me just, in conclusion, once more say this—you will require to consider the case of each pursuer against each defender. For example, beginning with the proprietor of Hawthornden as pursuer, you will require to consider his complaint as against each separate mill—first the Messrs Cowan's; second, Mr Brown's, or Esk Mill; and third, Mr Sommerville's or Dalmore Mill. If you find the water at Hawthornden polluted with this slimy mud, or other causes, and conclude that it comes from the paper-mills, it does not necessarily follow that any of it comes from the Valleyfield Mill. That is the question for your consideration. It may all come from Dalmore, or it may come partly from Dalmore and partly from Esk Mill, and none from Valleyfield Mill; or it may come from all three. You have heard the evidence—I need not go back on it again; but it seems to me a most important part of the evidence—as to the effect of floods on the river in carrying down this deposit, however near it may have been originally deposited to the mills that produce it. You will consider whether the existence of the Messrs Cowan's mill and their production of this matter, even supposing it to be deposited close to their own mills, does or does not materially contribute to the pollution at Hawthornden. If you think it does not, you will of course find a verdict in favour of the Messrs Cowan. If you think Esk Mill does not contribute to it, you will find a verdict in favour of that mill; and if you think there is no pollution at all from any mill, you will find for the whole of the defenders in regard to the proprietor at Hawthornden. When you come to the other two pursuers, at Lasswade and Dalkeith, you have exactly the same process to go through. Take Lord Melville, in the first place, and say whether the water in his estate is polluted, and then say whether all of the mills above it—that is to say, the whole of these mills represented by the defenders—do each and all of them materially contribute to the production of that pollution, or whether you trace it to the lower mills only, and find that it is not contributed to by the mills higher up. Then take the case of the Duke of Buccleuch, and deal with it in exactly the same way. I think, gentlemen, you will find, if you consider the issues in that way, that although this is a case which has naturally led to the collection of a great mass of evidence, it is not in itself the complicated case that it was represented. The questions which I have thus endeavoured to present to you are, I think, plain questions in themselves. They may be difficult to solve, because of the great mass of evidence and contrariety of the evidence. Quite true, but the questions in themselves are perfectly plain and distinct, and I am quite sure, from the great attention you have given to this case—the unwearied and assiduous attention you have given to it—you will in the end come to a perfectly sound and just conclusion on the whole matter.”

The jury found for the pursuers the Duke of Buccleuch and Lord Melville on all the issues, and for Sir W. Drummond on the 1st, 2d, 3d, 4th, and 7th issues.

The defenders excepted to the charge; and the reported rubric is as follows:—

“In an action at the instance of proprietors of lands on the banks of a private stream against paper manufacturers whose works were situated at different places on the banks of the stream, to have the defenders interdicted from polluting the stream, separate issues as against each of the defenders were sent to trial before the same jury. The issues were, whether the defenders (in the particular issue) ‘did, by discharging refuse or impure matter at or near their mills, pollute the water of the stream to the nuisance of the pursuers or their authors, or of one or more of them.’— Held, on a bill of exceptions, that the presiding Judge had properly directed the jury (1) ‘That an upper pro prietor is not entitled to throw impurities, and especially artificial impurities, into the stream, so as to pollute the water as it passes through the estate of a lower proprietor; that the lower proprietor is entitled to complain of such pollution as renders the water unfit for primary purposes; but that it will be a good defence against such a complaint that the stream has been for time immemorial devoted to secondary purposes, such as manufactories, so as to supersede and abrogate the primary purposes: (2) That it is sufficient to entitle a pursuer to a verdict on any one of the issues to prove that the river is polluted by the mills belonging

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to the defenders generally, to the effect of producing a nuisance to him, and that the defenders in that issue materially contribute to the production of the nuisance to him.’ Observations on the rights of proprietors on the banks of a private stream.”

After hearing Counsel for both parties, the Court on 21st Dec. 1866 pronounced an interlocutor disallowing the exceptions, and finding the defenders liable to the pursuers in the expenses incurred in the discussion on the bill. Subsequently on 17th July 1867, the case came before the Court on the question of expenses in carrying out an interim arrangement under an interlocutor pronounced of consent, with a view to supersede further litigation. It was then held that these were not expenses in causa.

Nothing further occurred in the cause until the present motion of the pursuers for decree in terms of the conclusions of the summons of declarator and interdict.

Argued for pursuers—The motion is for decree in terms of the conclusions of the summons of declarator, and for interdict as craved. The pursuers are riparian proprietors on the Esk, and the defenders paper-makers on that stream. After remit to certain skilled persons in 1841, a set of regulations were framed with consent of both parties, so as to mitigate the nuisance, and under these the works were carried on till about 1860, when the nuisance complained of was much increased by the introduction of esparto grass. On 20th May 1864 new actions by the same parties were brought, concluding in the same terms (1), for declarator that they were entitled to have the water of the stream transmitted to them in a state fit for primary purposes, and (2), for interdict against the pollution. The Court conjoined all these actions, and repelled a plea of acquiescence, there being no relevant averment on record to sustain it. Further, counter issues of acquiescence and prescription as proposed by the defenders were disallowed. The issues as finally adjusted asked generally whether from 1835 downwards the defenders had polluted the stream to the nuisance of the pursuers; and the verdict (on all the issues favourable to the pursuers) was applied by the Court by interlo—cutor of 7th March 1867. A motion for a new trial and a bill of exceptions were subsequently disposed of, and a minute of agreement was entered into between the parties, which provided that the pursuers had been requested,” not to proceed further at present in the said conjoined actions, to which the pursuers have agreed, but that only on the terms and conditions underwritten;” and the first of these is,” that the whole pleas stated for the pursuers in the conjoined actions are hereby expressly reserved full and entire,” and that by entering into the agreement they should not be held to have abandoned any plea competent to them. The second is, that the delay which had taken place in following up the verdict, and the further delay granted by the pursuers under the agreement, should not at any time be pleaded against them by the defenders, said delay having been granted by the pursuers solely for the benefit and at the request of the defenders.” The pursuers' position, consequently, is the same as if they had come to the Court immediately on the disposal of the bill of exceptions, with all the defenders' pleas repelled, and with a verdict in their favour. The issues all askthe same general question—that referred to—and the verdict answers it in the affirmative, and the conclusion of the summons is for declarator,” that the pursuers have good and undoubted right to have the water of the North Esk, so far as it flows by or through their properties, transmitted in a state fit for the enjoyment and use of man and beast, and that the defenders have no right to pollute or adulterate the said water, nor to use it or the channel of the stream in any way or for any purpose such as to render the said water noxious or unwholesome, or unfit for its natural primary purposes to the pursuers, or in any way to destroy the amenity of the stream; and the defenders ought and should be prohibited and interdicted from discharging into the said water of the North Esk from their respective paper works any impure stuff or matter of any kind, whereby the said water in its progress through or along the property of the pursuers, or any of them, may be polluted or rendered unfit for domestic use, or for the use of cattle, or its amenity in any way diminished, or the rights of the pursuers therein in any way injured or affected.” The Court can only find the riparian proprietors entitled to have the water transmitted to them unpolluted. The law is clearly on the pursuer's side in that, and the jury, as to the facts, have found that it is not so transmitted.