Scottish Court of Session Decisions

John Heggie, residing at Auchtermuchty, presented a petition in the Sheriff Court of Fifeshire against Mrs Catherine Ingram or Nairn and others to have them ordained to cause the stream of water which had for time immemorial issued into the Denburn, near to the East Bridge, Kirkcaldy, and which the defenders had diverted from its ancient channel, to be returned to its ancient channel; to shut up and close the conduit or tunnel formed by them to the conduit of said stream under and across the said burn, so as to secure the flow of the water in the conduit as formerly; and to interdict them in all time coming from again interfering with the said conduit,

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so as to prevent the stream of water running in its ancient bed, and its issuing otherwise than it formerly did into the Denburn. The facts upon which the question depended are taken from the interlocutor of the Sheriff-Substitute, and were as follows:—The pursuer was proprietor of a piece of ground on the south of the road leading from Kirkcaldy to Pathhead, and having for its western boundary the land belonging to Mr Robert Hutchison, and also the natural channel of the Denburn. A short distance above his property there had existed from time immemorial a weir, which diverted the whole water that comes down the Denburn, except in times of spate, along a covered conduit to the westward into the harbour at Kirkcaldy. Below the weir, and just above the pursuer's property, is the outlet of a mine or level which discharges into the natural or dry channel of the Denburn, and which was constructed at some time beyond the memory of man for the drainage of the minerals of the Dunnikier estate. This mine begins near the north-west boundary of that estate, where it is at a great depth below the surface, and comes down without much fall towards the sea in a south-easterly direction, passes under the Denburn at a point a little above the weir, and emerges below the weir at the south-east of the bridge by which the Kirkcaldy and Pathhead road is carried over the Denburn. The mine is wholly artificial, being built with masonry for a considerable distance from the outlet, while the rest is cut out of the solid rock. The water in the mine consists of the drainage of the Dunnikier mineral workings, augmented since 1861 by water sent down from the Raith mineral workings, in terms of an agreement between the proprietors and mineral tenants of the two estates. Some of it finds its way into the mine without pumping, but the greater part is pumped up by the mineral tenants from workings at a lower level. In 1874 or 1875 the defenders, who are manufacturers, enlarged a previously existing hole in the said mine at the place where it passes under the Denburn, and diverted by its means and by underground communications a great part of the said mine to their works, which lie at the west of the Denburn, and to the north of the road leading from Kirkcaldy to Pathhead. These operations were objected to at first by the Messrs Herd, who were the tenants of the minerals on the Dunnikier estate, but by an agreement dated November 1878 the defenders obtained their consent on payment of a sum of £10 a-year. In 1863 the pursuer erected a dye-work on his ground, which was copiously supplied with the water coming from the mine. In consequence of the defenders' operations in enlarging the hole as stated, the pursuer's supply of water fell off and became insufficient.

The present action was brought forward to compel the defenders to restore matters to their former state.

The pursuer pleaded—“(1) The pursuer being proprietor of property on the east bank of the Eastburn or Denburn, is entitled to the use of the water in that burn as it flows past his property. (2) The pursuer and his predecessors having used the water in the Eastburn or Denburn from time immemorial, is entitled to prevent all acts done by others which shall have the effect of injuriously affecting his rights. (3) The defenders having, secretly and without authority, within the last seven years driven a mine underground across their several properties, under the railway embankment, under and partly across, or across, the bed of the Eastburn or Denburn and beyond it, and tapped or opened the conduit conducting the tributary stream of water aforesaid to the burn, and so deprived the pursuer of the water for his works, to which he had a real or prescriptive right, the pursuer is entitled to a decree to ordain the defenders to restore the water so abstracted to its former channel.”

The defenders pleaded—“(4) The pursuer has no title to sue the present action. (5) He has not averred any valid right or title to the water in question which can be admitted to probation. (6) The water in the mine being under the will and control of the proprietor of the estate of Dunnikier, and those in his right, cannot form the subject of a real or predial servitude in favour of the pursuer's tenement. (12) The water in question being the product and property of persons who have sold or otherwise disposed thereof to the male defenders, they cannot be prevented from using the same for any lawful purpose they think proper. (15) The pursuer having no right or title to the water in the mine, or to require that water should be thereby sent or allowed to flow down to him, it is jus tertii to him to object to any operations by the defenders, and he has no title to insist in the prayer of the petition.”

The Sheriff-Substitute ( Gillespie) having considered the proof which was taken in the case, and having found the facts as stated above, found “that the pursuer did not aver any express grant by the proprietor of Dunnikier of the use of the water in the said mine, and that he had failed to show that his predecessors made use of the water prior to the erection of the dyework in 1863: Found in law that the pursuer not having instructed any right to the use of the said water by prescription or otherwise, had no right of action for its diversion; therefore dismissed the petition.”

He added this note:—“While the use of a natural stream is a right incident to the ownership of the land past which it flows, which requires no grant, and is independent of any possession, an artificial water supply, whether by itself or as augmenting the flow of a natural stream, can only be the subject of an acquired right. The right to the use of an artificial stream is, in short, a servitude, the premises which get the benefit of the water supply being the dominant tenement, and the lands through which the water is successively conducted, the servient tenements. Like other servitudes, such a right can only be acquired in one of three ways—(1) by express grant; (2) by implied grant on the division of a property (3) by prescription. In the present case the Artificial character of the water supply in question is established beyond doubt. Not only is every part of the channel constructed by the hand of man, but the water which flow in it is brought to the surface by the operations, past and present, of man. The pursuer does not allege any express grant of this water supply …. It is not suggested that ‘implied grant’ is applicable to the present case. Prescription alone remains for consideration. The defenders contend that as this water supply is under the control of the mineral tenants, no length of possession could give the pursuer a right to insist on its continuance.

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The pursuer concedes that he cannot compel the mineral tenants to continue pumping the water from their workings along this mine for his benefit. But it is another question (and one expressly reserved in the case founded on by the defenders— Irving v. Leadhills & Co., March 11, 1856, 18 D. 833) whether, supposing the pursuer had used this water for valuable purposes, such as a mill or manufactory, for the prescriptive period, the mineral tenants would be entitled, for purposes unconnected with the working of the minerals, to dispose of the water otherwise. The Sheriff-Substitute will assume—else there is an end of the case—that by prescriptive possession the pursuer could acquire a qualified right in the water at this mine sufficient to entitle him to challenge such operations as the defenders.

“The question, then, which remains for decision is, whether the pursuer has established prescriptive possession of the water? He has certainly used the water for eighteen years, but there is no evidence that before 1863 his predecessors appropriated the water in any way. The Sheriff-Substitute may say that he does not attach much importance to the fact that the actual site of the pursuer's dyework was a piece of waste ground. The pursuer's property forms part of what was a larger property, but there is no evidence that the owners of that larger property used the water for manufacturing purposes, or indeed any purposes. The Sheriff-Substitute cannot hold that the mere fact of this artificial water supply having been allowed for time immemorial to flow down the Denburn channel gives the adjoining proprietors a right to demand that it shall continue to do so. Granting that the flow has been more or less continuous, although this is not beyond dispute, he thinks that the view which the pursuer must maintain is contrary to the principle which regulates the acquisition of rights of prescription— tantum præscriptum quantum possessum. In the leading case of Lord Blantyre v. Dunn, January 28, 1848, 10 D. 509, where the pursuer claimed right to the water conveyed into a stream by an artificial cut from another stream, the basis of judgment in favour of the pursuer was the immemorial possession by him of a mill below the outfall of the artificial cut, which thus got the benefit of the united streams, and not the mere fact that the artificial cut had existed for time immemorial. The point was even more distinctly brought out in Mackenzie v. Woddrop, January 24, 1854, 16 D. 381, which was also a case of an artificial cut from one stream to another. The pursuer, who was a riparian proprietor on the second stream below the junction of the artificial cut, claimed right to the water of the stream as augmented by the water conveyed by the cut. In his record the pursuer stated generally that for time immemorial the united water had been used by him and his predecessors for all purposes connected with their property. The Court appointed the pursuer to put in a minute condescending on the specific purposes to which he had applied the water. This having been done, the Court approved of issues. The issue which was adjusted for trying the pursuer's right to the use of the water conveyed by the cut was—‘Whether for forty years and upwards, or for time immemorial, the water of the Medwyn, to the extent of one-half or thereby, has been conducted by means of a dam and separate channel upon the lands of the defender into the Garvald Burn, and whether for the foresaid period the Garvald Burn, so increased by water from the Medwyn, has flowed through or along the lands belonging to the pursuer, and having been used by him and his predecessors and their tenants in the said lands for all ordinary purposes.’ These two cases related to artificial channels above ground, but if there is any difference between the artificial stream above ground and an artificial stream below ground, it is not a difference in favour of the pursuer.

In short, the Sheriff-Substitute thinks that the time during which the pursuer's dyework has existed being much within the prescriptive period, and there being no proof of any prior possession, in the proper sense, by the pursuer and his authors, he has not established his right to the use of the water in question, and therefore he has no right of action against the defenders…. The defenders have got Messrs Herd's permission to take that water, and although the Messrs Herd are not formally parties to this action, the question which is practically involved is whether the pursuer has a title to complain of the Messrs Herd disposing of the water to the defenders. If the Sheriff-Substitute is right in the view which he has taken, the pursuer can only maintain this right on the ground that a servitude has been constituted in favour of his property…. The Sheriff-Substitute need scarcely say that he expresses no opinion as to the absolute legality of the defenders' operations. There may be persons who have a right to challenge them. All that he decides is that the pursuer has not established his right to challenge them.”