Scottish Court of Session Decisions

This was a suspension and interdict raised by Adam Smith of Dumbreck, proprietor of the lands of Boghead, in the parish of Denny, against John Archibald, clerk to the Police Commissioners and Local Authority, and also against the Police Commissioners of the burgh of Denny and Dunipace. The complainer sought interdict against the respondents from entering and trespassing upon the lands of Boghead, and from making, sinking, or “cradling” wells, or erecting pumps or other appliances in, upon, or in connection with any well or spring of water in the said lands, or otherwise using, appropriating, or interfering with the said well or spring; and also from occupying or possessing any part of the said lands, or laying down any materials thereon, or interfering with the surface or levels thereof, except in so far as authorised by or in conformity with the provisions of “The Public Health (Scotland) Act 1867;” and also from entering or

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trespassing upon the said lands … for the purpose of using any well or spring of water therein, and taking, drawing, or removing any water therefrom, or in any other way interfering with the complainer's right of private property in the said lands; and further, he sought for an order upon the respondents to remove a pump and gearing or other machinery for raising water erected in connection with a spring of water upon the lands; and to remove all stones, earth, cinders, or other materials placed by them on the lands in question, and to restore the same to the state in which they were prior to the operations complained of. Denny and Dunipace had recently been erected into a burgh under the General Police Improvement (Scotland) Act 1862, of which, however, only the provisions as to lighting, cleaning, and paving had been adopted.

Statements 3 and 4 for the complainers set forth that the property of Boghead consisted of a villa called Duncarron, and of three grass-fields, the entrance to the southmost of which was by an access, maintained by the complainer to be private, passing along the side of the shrubbery which surrounded the subjects from the road to the point at which the field in question was entered, the field being there bounded by a small stream called “Sclander's Burn.” A few yards within this field there was a spring of water at which a circular pool had been formed by Mr Smith and his predecessors for watering cattle and for domestic purposes. The police commissioners had erected a pump at the well, and raised the level of the surrounding area by enclosing and building it up to the extent of 10 feet. The complainer stated that these operations had not been performed in the exercise of any statutory power or authority, and that they were illegal, the spring in question and the lands of Boghead being his exclusive property. He added that the amenity and value as well as the drainage of his lands was affected'; that he had been deprived of the use of the well and of the access, and that he had been thus prejudiced. The police commissioners, on the other hand, alleged that the circular pool or well, as they called it, had been formed by means of a public subscription raised by the inhabitants of the village of Denny, and had been used for greatly more than forty years prior to the operations complained of by the inhabitants in the neighbourhood for domestic purposes; and that there had been during that time a free and uninterrupted access by the road claimed as a private access to his field. They also averred that a public right-of-way past the spring or well and through a portion of the field had been used by the inhabitants from time immemorial. They had built up the well, they said, to prevent its being polluted by an overflow from “Sclander's Burn.” They in their statement of facts quoted the Public Health (Scotland) Act 1867, section 89, subsection 4, which provided that “the local authority may cause all existing public cisterns, pumps, wells, reservoirs, conduits, aqueducts, and works used for the gratuitous supply of water to the inhabitants, to be continued, maintained, and plentifully supplied with water.” They added—“The spring of water or well referred to which had been used from time immemorial for the gratuitous supply of water to the inhabitants of the surrounding neighbourhood within the limits of the respondents' authority, having become polluted through the side of the well or circular pool next the Sclander's Burn having been broken down or lowered by being trodden upon by the parties using the well, the respondents deemed it to be necessary, in the exercise of their duty, and for the protection of the public health, to cause the well to be covered, and to place a pump thereon, and with that view to level the top of the well. The said operations were, in the opinion of the respondents, necessary, or at all events expedient, in the interest of a considerable portion of the inhabitants of Denny, who depend upon the said well for their supply of water for domestic use.”

The complainer pleaded, inter alia—“(1) The spring of water or watering-place referred to, and the lands on which the same is situated, being the exclusive property of the complainer, the respondents had no right or title to place a pump in, upon, or in connection with the said watering-place, or lay down materials on or in any way use, appropriate, interfere or alter the level of the said lands.”

The respondents pleaded, inter alia—“(2) The said spring of water or well having been used for the gratuitous supply of water to the inhabitants of Denny, the respondents were entitled to protect the same from pollution, and the operations complained of having been executed with that object the complainer is not entitled to interfere therewith. (3) The spring of water or well referred to, and the access thereto, having been used by the public from time immemorial, the complainer is not entitled to the interdict sought by him. (4) In any view, the respondents having acted in the bona fide exercise of their duty as the local authority of the district, any conclusion against them as individuals is incompetent.”

The Lord Ordinary ( Adam), after a proof, the result of which sufficiently appears below, pronounced an interlocutor interdicting, prohibiting, and discharging the respondents in terms of the prayer of the note. He added this note—“On the 1st August 1878 the respondents caused an open well in the village of Denny to be covered in, and placed a pump thereon. They professed to do this in their character as local authority of the burgh of Denny, and under authority of the 4th subsection of the 89th section of the Public Health (Scotland) Act, which provides that the local authority may cause all existing public cisterns, pumps, wells, and works used for the gratuitous supply of water to the inhabitants to be continued, maintained, and plentifully supplied with water.

“The question is, whether the well in question is a public well in the sense of the Act? If it is, then the suspender has no right or title to complain of the respondents' operations. If, on the other hand, it is not a public well, but a private well situated in his ground, then the respondents' operations would appear to be unauthorised.

There is no doubt that the well is situated in the complainer's property of Boghead. It is proved, as the Lord Ordinary thinks, beyond doubt that the inhabitants of the adjoining village of Denny have from time immemorial been in use to take water from the well. The well in fact was originally cradled, and has since been cleared out and maintained, at the expense of the inhabitants. But Denny was merely a village;

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it was not a burgh; it had no burghal territory; it was not a corporation. The Lord Ordinary does not think that there was any legal person in whom it can be held that the property of the well was vested for the benefit of the inhabitants. The Lord Ordinary thinks that the right, if any, which the inhabitants have acquired to the well is of the nature of a right of servitude. It was maintained by the complainer that Denny not being a burgh, the inhabitants could not competently acquire a servitude of taking water from the well; but the Lord Ordinary does not think it necessary to determine that question, because, assuming that they could competently acquire, and had acquired, such a right, he does not think that that would make the well a public well in the sense of the Public Health Act. He thinks that the clause founded on applies to wells which are the property of the public, and not to wells which are the private property of other parties, as he thinks this well is. He does not think that it was the intention of the Act to authorise the local authority to interfere with private property, and to make such changes upon it as have been done here.”

The Police Commissioners reclaimed, and argued — The well in question was a public well. The law recognised public rights in water as in other things. Here there was a long-continued use by the public for more than the prescriptive period, and there was evidence of the well having been repaired and kept up by subscription among the inhabitants. No doubt the well was situated on private property, but water was a right which was paramount. The police commissioners were the local authority through whom such rights were vindicated, and accordingly they represented the inhabitants in a proper capacity. The whole operations complained of were protective in their character, and did not interfere with Mr Smith's lands save to prevent pollution of this spring on which the village relied for their water—supply.

Argued for the complainer—The well in question was not a public well in the sense of the statute. It was situated in a field, the property of Mr Smith, and the evidence established the fact that there was no public road-way by which it could be reached. The right to use a well was not publici juris like a right-of-way. It could not be acquired by use alone, nor could it be vindicated by any member of the public, or by the inhabitants of a village, who were nothing more than members of the public. The law of Scotland recognised no such thing as dedication to the public in a question with a private individual. Such a dedication could only be maintained as between the inhabitants of a burgh (whether a royal burgh or burgh of barony or regality)— Home v. Young—Mackenzie—Sanderson — Dyce— Henderson. The only wells which were public in the sense of the Act were those standing at the market cross or in the public street or highway, in which no private right or property existed. The Act required not only that the well should be used for the gratuitous supply of water, but that it should be a public well. Both these characteristics were found in the wells referred to in the above cases. In wells like that in question, where private right of property existed, even though there had been long use by the public, only one of the necessary elements was present. Even assuming the well to have been subject to a servitude, it was still a private well, and did not fall within the Act.

Authorities— Home v. Young ( Eyemouth Case) Dec. 18, 1846, 9 D. 286; MlKenzie v. Learmonth ( Water of Leith Case) Nov. 17, 1849, 12 D. 132; Sanderson v. Lees ( Musselburgh Case) Nov. 25, 1859, 22 D. 24; Dyce v. Hay, July 10, 1849, 11 D. 1266, and May 25, 1852, 15 D. (H. of L.) 14; Henderson v. Earl of Minto, June 1, 1860, 22 D. 1126.

At advising—