Scottish Court of Session Decisions

This was a note of suspension and interdict presented by the Duke of Buccleuch and others, complainers, against James Brown & Company, paper-makers, Esk Mill, near Penicuik; and Edward Sambourne M'Dougal and Thomas M'Dougal, the partners of that Company.

The complainers sought interdict against the respondents discharging into the water of the North Esk from their works at Esk Mill any impure stuff whereby it might be polluted or rendered unfit for domestic use or for the use of cattle.

The complainers are proprietors of lands below Esk Mill, through which the North Esk flows; and in their statement they set forth that their residences were situated within a very short distance of the stream, their sites having been selected from the natural beauty of the water. The pleasure grounds attached to those residences were formed with reference to the same circumstances, and at great expense; and, besides its amenity and the amusement of fishing which the stream afforded, it was well suited for domestic and other primary purposes, and it yielded a constant and convenient supply of water for cattle pasturing in its vicinity, until it was polluted and rendered unfit for all such purposes by the respondents' predecessors, paper-makers at Esk Mill, and other paper-makers on its banks, as after explained. There are at present, and have been for many years, a number of paper mills situated upon the banks of the said stream, and the water of the stream has been polluted and rendered unfit for domestic and other primary purposes by the proprietors of these mills discharging therefrom into the stream the dirty and noxious refuse of the materials employed at their works. Three of these mills, called respectively Bank Mill, Valleyfield Mill, and Low Mill, all belonging to Messrs Alexander Cowan & Sons, are situated at Valleyfield, near Penicuik, higher up the stream than Esk Mill. The others are situated lower down. At the whole of these different mills the water of the North Esk is used in the process of manufacturing paper, and after being so used, the said water, or at least a portion thereof, along with other water in a polluted state, was and still is returned to the stream. The works at Esk Mill have been carried on as paper works for a great number of years; and in consequence of the water used being returned to the stream in a polluted state, the Duke of Buccleuch and certain other proprietors in September 1841 raised an action of declarator and interdict against the proprietors of the whole of the paper mills then existing upon the banks of the Esk. These paper mills were the following:—First, three mills at Valleyfield; second, Esk Mill, now belonging to the respondents, but then belonging to James Brown; third, Auchendinny Mill; fourth, Dalmore Mill; fifth, Springfield Paper Mill; sixth, Polton Paper Mill; and seventh, St Leonards Paper Mill. And the summons in the action concluded, inter alia, that “it should be found and declared that the pursuers have good and undoubted right to have the water of the Nork Esk, so far as it flows through or by their properties, transmitted in a state fit for the use and enjoyment of man and beast, and that the said 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 all its natural primary purposes to the pursuers, or in any way to destroy the amenity of the said stream;” and for interdict. To this action defences were given in for all the parties called as defenders therein, including James Brown of Esk Mill, and thereafter an attempt was made by all the parties to mitigate the nuisance complained of; but by the continued and increasing discharges into the stream of the washings and other noxious matters used at their respective works, the water of the stream became so polluted as to be a nuisance of the most intolerable description, and the pursuers of the said action were compelled to resume judicial proceedings, and to apply to the Court for a remedy. They accordingly took the usual steps, and the process was wakened on 27th June 1863, and thereafter

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amended defences for some of the defenders were given in. By this time certain of the firms called as defenders in the action had been dissolved in consequence of the death of some of the partners, and the proprietors of other paper mills had been changed; and in consequence thereof, and of the continued pollution of the river, the complainers, on 20th May 1864, instituted other two actions of declarator and interdict against the then proprietors or occupants of the said paper mills, and, amongst others, against “Messrs James Brown & Company, paper-makersat Esk Mill, near Penicuik, and Thomas M'Dougal, residing at Esk Vale, near Penicuik, the only known partner of that company.” These two actions contained conclusions of declarator and interdict similar to those of the action raised in 1841. Records were thereafter made up and closed in said actions, and the actions conjoined and issues adjusted to try the cause,—the seventh of these issues, that relating to Esk Mill, being in these terms:—“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?” The cause was tried upon said issues before the Lord Justice-Clerk and a jury in the months of July and August 1866, when a verdict was returned in favour of the pursuers on all the issues; and thereafter, on 7th March 1867, the verdict was applied by the Court. Subsequently an agreement was entered into between the pursuers and the defenders in said conjoined actions, narrating that the defenders had completed, or were in the course of completing, certain improvements and remedial measures at their respective mills, and that they were anxious that these should be fairly tried, and their effectiveness determined, and that they were willing to carry out such further improvements or alterations as might be suggested to them, all at the sight of Dr Penny of Glasgow, since deceased, and that for this purpose they had requested the pursuers not to proceed further at present in the said conjoined actions; to which the pursuers had agreed, but that only on the terms and conditions underwritten:—“Therefore the parties hereto have agreed as follows, First, That the whole pleas stated for the pursuers in said conjoined actions are hereby expressly reserved full and entire, and that by entering into these presents they shall not be held to have abandoned any plea competent to them, or any powers they at present possess or did possess in virtue of said verdict in said actions: Second, That the delay which has taken place in following up the verdict obtained by the pursuers in said conjoined actions, and the further delay granted by the pursuers under the present agreement, shall not at any time be pleaded against them by the second parties in the mills respectively occupied by them, the said delay having been granted by the pursuers solely for the benefit and at the request of the second parties.” This agreement bears to be between the pursuers of said action and, amongst others, “James Brown & Company, paper-makers at Esk Mill, near Penicuik, and Thomas M'Dougal, residing at Esk Vale, near Penicuik, the only partner of that Company.” and to be signed “by the said James Brown & Company and Thomas M'Dougal” on 30th November 1868. On the death of Dr Penny, a new agreement, in similar terms, substituting Mr William Arnott for Dr Penny, was entered into by the parties, and was signed “James Brown & Co.,” “E. S. M'Dougal;” the testing clause bearing that it was so signed “by James Brown & Company and Edward Sambourne M'Dougal, on behalf of Thomas M'Dougal, the sole partner of that Company,” on 2d February 1870. This second agreement came to an end on 1st January 1871, and was again renewed in similar terms by a third deed, which bears to be signed “by James Brown & Company and Edward Sambourne M'Dougal, partner thereof, the Company's signature being adhibited by him” on 10th May 1871. This last agreement came to an end on 1st March 1873. These conjoined actions were thereafter enrolled, and finally disposed of by the Second Division of the Court, when the following decree of declarator was pronounced:—“ Edinburgh, 3 d June 1873.—The Lords having, on the motion of the pursuers, heard counsel in the conjoined actions of declarator, find and declare, in terms of the leading declaratory conclusions in each of the three summonses at the instance of the respective pursuers, against the respective defenders thereof, that the pursuers have good and undoubted right to have the water of the North Esk, as it flows through or by their properties, transmitted in a state fit for the use and enjoyment of man and beast, and that the said 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 all its natural primary purposes to the pursuers, or in any way to destroy the amenity of said stream. Quoad ultra continue the cause.”

And thereafter the following interdict was granted:—

“ Edinburgh 10 th June 1873.—The Lords having resumed consideration of the cause, allow the pursuers to amend the conclusions of their respective summonses in the conjoined actions by striking out the words ‘or the rights of the pursuers therein in any way injured or affected;’ and the defenders having stated that they had no proposal to make for abating the nuisance complained of, and did not move for any further inquiry. Prohibit and interdict the defenders from discharging into the water of the stream or river of 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 properties of the pursuers, or any of them, may be polluted or rendered unfit for domestic use, or for the use of cattle, and decern: Find the defenders liable in expenses since the 14th March 1867, and remit to the Auditor to tax the same and to report.”

When the interdict was granted it was stated to the Court by the counsel for the defenders that Thomas M'Dougal had died in October 1871 and therefore that any interdict to be granted would not apply to the present proprietors of Esk Mill, Since October 1871 the respondents (sons of Thomas M'Dougal) have carried on the same works at Esk Mill foresaid, and under the same name or firm of James Brown & Company, as their father, but they did not choose to sist themselves, as they ought to have done, as defenders to the action in room and place of the said Thomas M'Dougal. Notwithstanding the terms of the agreements, the

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complainers have since discovered that the respondents were partners along with their father of the firm of James Brown & Company from 1st May 1865 until their father's death in 1871. They succeeded to the mill under the directions contained in their father's trust-deed to his trustees, to hand over the mill to them at the price of £50,000, they receiving back their share of this sum as beneficiaries under said deed. It was averred that during the time they were partners they polluted, and since October 1871 they have continued to pollute, the stream, by discharging into it from their said mill, regularly every day of the week (except Sundays) nearly one and a quarter tons of solid polluting matter, whereby the water of the stream, in its progress through or along the properties of the complainers, is rendered unfit for domestic use or for the use of cattle. Besides this daily pollution, the respondents have at occasional intervals greatly exceeded the quantity of noxious and polluting matter usually discharged by them into the water. In particular, on 27th February 1872 and 6th October 1872 they discharged, an immense quantity of refuse from the boilings of esparto or Spanish grass, used by them in the manufacture of paper, which ley is of an extremely noxious and offensive nature, and the water of the stream, in its progress through the properties of the complainers, was rendered quite unfit for domestic use, or for the use of cattle, or other primary purposes. Even since the present note of suspension and interdict was presented, and interim interdict granted, the respondents have continued to pollute or materially to contribute to the pollution of the stream; and, in particular, during the months of August and October 1873, and January and February 1874, they did so by discharging into it a vast quantity of impure water, possessing a muddy appearance, frothy, and emitting a foul and putrifying odour.

On the 29th of October 1873, the Lords of the Second Division remitted to Mr John Pattinson, F.C.S., “to examine the respondent's works and the stream as affected by the manufacture carried on by them.” Mr Pattinson thereafter inspected the mill, and reported to the Court; but the complainers stated that, during and immediately prior to his inspections, extra precautions were taken by the respondents to prevent as far as possible the pollution of the stream, with the view of procuring a favourable report, and that on these days the water was not polluted to nearly the extent to which it was before and has been since. Further, that they have, since the present note was presented, attempted to avoid detection by enclosing with locked covers their discharges into the river, and carrying their outlet pipe into the bed of the stream at its deepest part, so as to prevent the obtaining of samples.

The respondents in answer stated that they purchased the works there from their late father's trustees in November 1872, with entry as at the previous Whitsunday. Their father died on 12th October 1871. Since 1866 the respondents' predecessors at Esk Mill, and the respondents themselves, under the directions and with the approval of the late Dr Penny and Mr Arnott, have made numerous experiments, and from time to time have erected and constructed a large number of costly works, apparatus, and appliances, with a view to prevent the pollution of the river, which were described in detail. These remedial measures are all so arranged and perfected that no polluting matter can or does reach the river, except in case of an accident, such as the leakage or bursting of a pipe. And in order to keep all their remedial measures in the highest state of efficiency, the respondents have a special manager, whose primary duty is to attend to these matters, with a foreman under him constantly cleaning and examining hourly every possible point of danger. In the course of the last summer (1873) a new process was discovered for cleansing the esparto fibre of the ley retained in it, by means of a machine called the esparto squeezing machine, whereby the quantity of water polluted in the process of manufacturing paper from esparto is greatly reduced both in volume and intensity. The ley retained in the esparto fibre, after the boilings and coolings were drained from it, was formerly washed out of the fibre in the washing engine. By the esparto squeezing machines, two of which are now in operation, it is squeezed out before it is put into the engine, so that the process of washing is now simply reduced to that of “rinsing,” which is amply sufficient to cleanse the esparto fibre for the qualities of paper principally manufactured by the respondents, and for the finest quality of their manufacture one-fifth of the time formerly required for washing is all that is requisite. Further improvements are in the course of being made in connection with this part of the process. The reduction of time in washing necessarily saves fibre which formerly passed away with the water as organic impurities, and reduces to the extent of four-fifths the quantity of water used in washing the ley out of the esparto fibre. By the introduction of this process, about 70,000 gallons of washings are daily kept out of the settling-ponds at the respondents' mills, and by this reduction in the quantity of washings to be operated on the process of purifying is greatly facilitated. The liquid resulting from the squeezing is evaporated in the incinerators. The process of manufacture has further been recently much improved by the introduction of a system of intermittent filtration. The improvements and alterations introduced have entirely obviated the pollution of the River Esk, which was found by the verdict of the jury to have existed prior to 20th May 1864. Finally, in general terms, they denied the pollution as alleged against them.

The complainers pleaded—(1) Under and in terms of the decree of declarator foresaid, the complainers are entitled to have interdict against the respondents, as craved. (2) The water of the said stream being, by and through the operations of the respondents, polluted and rendered unfit for domestic use, the watering of cattle, or any of the primary purposes of a stream, the complainers are entitled to the interdict craved. (3) The water of the said stream being polluted to the nuisance of the complainers, and the respondents having materially contributed to the production of that nuisance, the complainers are entitled to interdict against them as craved.”

The respondents pleaded—(1) The statements of the complainers are not relevant or sufficient to support the prayer of the note. (2) The decree of declarator founded on cannot form any ground for granting the interdict craved, in respect the respondents were not parties to any of the proceedings under which the said decree was obtained, and do not represent any of the parties thereto. (3)

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The statements of the complainers being unfounded in fact, the suspension ought to be refused, with expenses. (4) The complainers' averments in regard to pollution by the respondents prior to October 1871 cannot be founded on in support of the interdict craved—1st. In respect they apply to a period too remote to be the basis of an application for interdict: 2d. In respect the system of manufacture has been entirely changed since the period referred to: 3d. In respect the application for interdict when presented was not based on the alleged pollution during the said period.

The following interlocutors were pronounced by Lord Shand in the cause:—

“ 1st August 1873.—Having heard parties' procurators, passes the note of suspension, and grants interim interdict as craved.

Note.—The only ground on which it has been maintained that interim interdict should be refused is, that the respondents, as proprietors and occupants of Esk Mill, are singular successors, who have derived their title by purchase and arrangement with their late father's trustees, and that they are consequently not bound by the legal proceedings referred to in the note. It appears from the interlocutor of the Second Division of the Court, of 10th June 1873, that the defenders in the action at the instance of the present complainers against the various paper-makers on the Esk, when interdict was granted against them, stated that they had no proposal to ‘make for abating the nuisance complained of, and did not move for any farther inquiry.’ So far as the respondents are concerned their position is the same.

But it was maintained that the respondents are in no way affected by what has taken place in the former litigation. The Lord Ordinary cannot adopt this view. The operations carried on at the respondents' mill were the subject of a special inquiry and verdict in that litigation. The same manufacture has been taken up by the respondents, and is now carried on by them in the same premises. It is not said that they have adopted an entirely new system, or that they have any proposal to make for abating the nuisance, which it has been found was caused by the operations at the mill; and, in these circumstances, notwithstanding the general denial by the respondents of any pollution of the stream by them, which is just a repetition of the defence of their predecessor in the mill, the Lord Ordinary is of opinion that the complainers are entitled to the interim interdict which they ask.”

“ Edinburgh, 7th August 1873.—The Lord Ordinary having considered the incidental note and answers, Nos. 6 and 7 of process, Refuses the desire of the note, and allows the certificate to be issued in the usual form.

Note.—The Lord Ordinary cannot doubt that the respondents were quite aware of the position taken up by the various defenders in the former action when the Second Division of the Court granted interdict against them, and, indeed, the interlocutor containing a record of the statements made on their behalf is quoted in the note. In these circumstances, it appears to the Lord Ordinary that, in order to warrant him in taking the course of refusing the interim interdict asked in this case, it was necessary that the present respondents should distinguish their case from that of the other manufacturers, and state definitely what they had done and yet proposed to do in order to abate the nuisance; for, as already stated, the Lord Ordinary cannot regard a mere change in the occupancy of the mills as giving the respondents right to be treated as entire strangers to all that has occurred. In the absence of any such statement, which is not even made in the note for the respondents, the complainers are, in the circumstances, in the opinion of the Lord Ordinary, entitled to interim interdict.”

Against these interlocutors the respondents reclaimed, and the Second Division pronounced this interlocutor:—

“ Edinburgh, 29 th October 1878.—The Lords having heard counsel on the reclaiming note for James Brown & Company against Lord Shand's interlocutor, of date 1st August 1873, with the minute, No. 9 of process, Before answer, remit to Mr John Pattinson, F.C.S., analytical and consulting chemist, Newcastle, with power to him to take the assistance of Mr George Robertson, civil-engineer, Edinburgh, to examine the respondents' works, and the stream as affected by the manufacture carried on by them, and the statement in this record and minute; and to report whether the injury complained of is now removed, in whole, or to any and what extent: Meanwhile continue the interdict.”

On 23th January 1874, Mr Pattinson reported as follows:—

“In accordance with the instructions given in the above-quoted interlocutor, the undersigned has examined the respondents' works, and the water of the river North Esk as affected by the manufacture carried on by them, and now has the honour of presenting to your Lordships the following report:—

The respondents' works and the river North Esk were visited and inspected by your reporter on the 25th and 26th of November and on the 6th of December last, and he was accompanied on each occasion by the representatives of the complainers and respondents.

From 40 to 50 tons of paper are manufactured weekly at these works. The chief raw materials used are Esparto grass, rags, and china clay, and it is in the chemical and mechanical treatment of these, in the various stages of the manufacture, that the polluting liquids are produced which endanger the purity of the stream.

The following is a brief outline of the processes carried on at the respondents' works:—The Esparto grass and rags are boiled with a solution of caustic soda. In this process the caustic soda solution extracts much of the organic matters of the grass and rags, forming a dark brown coloured liquid, technically known as ‘boilings.’ This liquid is highly polluting, and has the property of causing water to froth even when added to the latter in very small quantities. After the ‘boilings’ are drained off, water is added to the fibrous materials in the boiler, partly to cool and partly to wash them. A liquid is thus formed, known as ‘coolings,’ containing impurities of the same kind as the ‘boilings,’ but much diluted. After this is drained away, the Esparto grass is removed and taken to the ‘squeezing machine.’ This machine contains a couple of rollers covered by cocoa-nut matting, through which the Esparto grass is gradually passed under considerable pressure. The liquid matters which were held in the fibre, as a sponge holds water, are thus squeezed out. The effect of the use of this machine in preventing the

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pollution of the stream will be shown afterwards. The next process consists of the washing and ‘breaking-in’ of the fibrous materials. The ‘breaking-in’ engine consists of revolving knives, mounted on rollers working in water, by means of which the fibrous materials are reduced to the condition of pulp. When the water used in this machine (technically called ‘washings’) is drawn off, it carries with it a considerable quantity of fibrous matter in suspension, and also a small quantity of the soda and soluble organic matter still adhering to the Esparto grass when it leaves the squeezing machine. The next process is that of bleaching, which is accomplished in machines similar to the last, into which has been run water containing a solution of chloride of lime (bleaching powder). After the spent bleach liquor is removed, the pulp is then placed in the ‘beating engines,’ where it is mixed with water, china clay, colouring matters, and ‘size,’ and made ready for the ‘making machine,’ at which the last operation producing polluted water is performed.

During these processes many polluting liquids are formed, and in such quantities that if they were allowed to enter the stream direct very serious pollution would be caused. But this is not the case, and it is evident to your reporter that very great care has been bestowed and much expense incurred by the respondents to prevent polluting matters reaching the river. The works are so arranged that the ‘boilings,’ ‘coolings,’ and the liquid separated by the squeezing machine, can all be evaporated to dryness, and altogether kept out of the stream, and the best guarantee that this will be done as completely as practicable is the fact that the soda recovered by the process amply repays the cost of recovery. The ‘washings,’ the waste bleach liquor after re-use, and some portions of the water separated at the making machine, all containing more or less fibrous matter in suspension, and various organic and mineral matters in solution, together with nearly the whole of the waste liquids formed in the works, are conveyed through a trough and pipes to a series of six settling ponds, situate by the side of the river, about half-a-mile below the works. Some of these liquids, before entering the trough, are passed through an apparatus called a ‘save-all,’ whereby some portion of fibre is separated. A considerable portion of the fibrous and other suspended matters is deposited at the bottom of the settling ponds as the water passes from one to the other. The water coming from the last pond is run on to a large filter-bed, made chiefly of ashes, having an area of about 1000 square yards, and 4 feet deep, through which it passes, and from whence it is conveyed into the bed of the river North Esk.

The respondents' works are built closely adjoining the river. The mill-lade, where it passes the works, is arched over with masonry, and a considerable part of the works is built immediately over the lade. An inspection was made of the arched tunnel of the lade on the 26th of November. There were a great number of openings, and provisions for openings, in the roof and sides, many of which had been built up; others appeared to be out of use, and some few were discharging water of an inoffensive character. Impure liquids were oozing out from between the crevices of the stones in two or three places, but the quantity was not large, and would not appreciably affect the purity of the stream.

Other sources of possible pollution of the stream are the deposits of waste lime arising from the preparation of the caustic soda and bleaching powder solutions. These deposits are at some distance from the lade, but in all probability the liquids draining from them will percolate through the soil, and ultimately mix with the water of the lade. The effect of these drainings on the stream is, however, probably inappreciable, owing to the small quantity which will enter at once.

Nearly the whole, then, of the waste and impure liquids formed in the respondents' works, which enter the river North Esk, are carried from the works to the ponds, through which they slowly pass, and then through the filter-bed of ashes, into the stream. Much of the fibrous and other matters in suspension, and probably some portions of the organic matters in solution, are thus removed from the water.

The water as it issued was very frothy and turbid. It had a fetid and very offensive odour.

Before entering the river the effluent water of the filter is joined by a quanity of pure water flowing from the borehole made in the neighbourhood. A sample of the mixed waters, taken on the 25th of November, had the following composition per gallon:—

Inorganic matters in solution,	46.00 grs.
Organic do.	13.65 „
Inorganic matters in suspension,	2.00 „
Organic do.	0.92 „
	62.57 „

This water, though improved by the admixture of bore-water, was still very frothy and turbid, and had an offensive odour.

“The filtering bed has only been recently formed, having been first used in the middle of August last. Since then it has been occasionally out of use, during which time the water flowed into the river direct from the last settling pond. Another large filter is in process of construction, and will shortly be in use, by means of which it is hoped the quality of the effluent water will be improved.

The Esparto grass squeezing machine mentioned above, and referred to in the minute for the respondents, dated October 25,1873, has undoubtedly the effect of reducing the quantity of polluting matters passing through the ponds and filter into the river.

As about 174 cwts. of Esparto grass are treated per day in the respondents' works, it follows that, reckoning the matters in solution only of the liquid squeezed out, about 971 lbs. of solid polluting matters are prevented from entering the river per day by the use of this machine. Moreover, as much less washing water is used in ‘breaking-in,’ less fibre is carried away to be mixed with the waste water.

One of these machines has been in use since the 27th of September last, and two since the 30th of October.

Both the samples of the North Esk water taken in the grounds of Penicuik House, and that of the Black Burn, taken above all paper mills, have a brownish tint of colour, arising from peaty matters, but they are tolerably bright and clear. The samples taken from below the filter outflow were in both cases of a somewhat darker yellow-brown colour, and more turbid than the samples taken immediately above Esk Mill outflow. Those taken

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below the outflow had, moreover, a peculiar fusty organic taste, less perceptible in the samples taken from above the filter outflow.

It will be seen on reference to the above analyses that the amounts of impurity both in solution and in suspension are increased after passing the filter outflow. The sample taken at Auchendinny station is reduced in organic matter. This may probably be partly owing to the natural purifying power of running water, but it may also be partly due to the admixture of the water of the Loan Burn, a considerable stream of water, containing less colouring matter in solution than the Esk, which enters the North Esk a little way below the filter discharge.

On no occasion on which your reporter has seen the river has there been any tendency to froth in any part of the river, even so far down as Dalkeith Palace. In fact, on the 6th of December there was more froth seen on the water above all the paper mills than there was seen below them. The polluting effect on the stream of the effluent water of the filter was on no occasion, when your reporter visited the works and stream, very perceptible to the eye, nor probably was it such as to destroy fish; but on examination it was found that the water of the stream was darkened in colour to a slight extent, made slightly more turbid, and somewhat injured in taste, by the admixture of the discharge from the respondents' filter-bed. In all probability these effects will be intensified in summer, when the water in the river is relatively smaller than the filter outflow, and when the higher temperature favours decomposition.

The quantity of effluent water from the filter has been carefully gauged by Mr Robertson. He finds that about 277,536 gallons are discharged per 24 hours. The accuracy of this measurement is confirmed by the measurements of the respondents themselves. There are thus, after making allowance for the solid matters already in the water before entering Esk Mill, by deducting 10.77 grains per gallon, 3344 lbs. of solid matter discharged into the North Esk from the respondents' works per day, 795 lbs. of which (the organic matters in solution and suspension, and the inorganic matters in suspension) are of a highly polluting nature.

Besides this amount of polluting matter entering daily under what may probably be considered the most favourable circumstances, there is the liability to further pollution arising from the carelessness of workmen and the accidental derangement of the machinery and other plant, whereby increased quantities of polluting matters are allowed to get into the ponds, or directly into the stream. It is proper to state that this danger is guarded against in the respondents' works by having two men appointed whose duty it is to see the remedial measures carefully carried out, and by having printed instructions to the work-people posted throughout the works, directing what is to be done in case of accident.

The settling ponds are in communication with the river by means of valves and pipes, so that there is the power to empty the whole contents of these into the river and thereby cause serious pollution. The valves for opening a communication between the ponds and the river are, however, secured with padlocks, the key of which is in the possession of an official in the employ of the papermakers of the Esk jointly. Your reporter was informed that the ponds had not been emptied into the river during the years 1872 and 1873.”

On 29th January 1874 the question was taken up on the report; and after hearing counsel was advised as follows:—