Scottish Court of Session Decisions

This action was raised in the Sheriff Court of Argyleshire by John Filshill, proprietor of certain subjects at Innellan, against Mrs Bouverie-Campbell of Dunoon and her husband as her administrator-at-law, to recover £100 as damages for injury done to his property, alleged to be caused by the fault of the pursuers. The facts so far as not in dispute were as follows—The defender Mrs Campbell was the heritable proprietrix of the entailed estate of Dunoon, and the pursuer was proprietor of two feus on that estate situated in Innellan, bounded on the northwest by the Campbell Road. The ground on the north-west of that road was occupied as a farm by a tenant of the defender, and the field on that farm which lay north-west of Campbell Road, sloped steeply down towards the pursuer's ground. Along the top of this field, and parallel to Campbell Road, ran a farm road, which was crossed by a burn which ran down from the hills above. This burn ran across the surface of the farm road. Where the burn crossed it a small breastwork or retaining wall was built on the lower side of it, the space behind being filled up so as to make an almost level road. This breastwork was several feet high, and the stream after flowing across the road fell over it in a small cascade. A wire fence was erected along

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the top of the breastwork. Previous to 1884 the breastwork had on several occasions been swept away by floods, but in that year it was made more substantial, and slightly higher than before. In 1884 the defender also sheep-drained the hill grounds adjacent to the burn, and the water from these drains flowed into it, according to the natural fall of the ground. On Saturday 12th September 1885, after an exceptionally heavy fall of rain, the burn overflowed its banks, and the water, in consequence of an obstruction, the nature of which was in dispute between the pursuer and defender, came across the field on to the Campbell Road, and so reached the wall of the pursuer's property, causing it to give way, and so causing the damage to the pursuer's grounds in respect of which the pursuer brought this action. He attributed the flooding to the water coming down faster owing to the draining and to the breastwork, by reason of the recent repairs upon it, altering the level of the bed of the burn, and causing it on even a slight obstruction to overflow, and to the wire fence increasing this risk by catching twigs and debris which were carried down and so damming back the water.

He averred—“(Cond. 11) If the said opus manufactum had not been constructed by the principal defender, or with her knowledge and authority, in the bed of the burn in question, the said water would have flowed in safety down its natural bed, and would have done no damage to the property of the pursuer.”

The defenders stated that the breastwork and road had existed in much the same condition for more than forty years, that the drains were led according to the natural fall of the water, and that the only obstruction to the stream which really occurred was higher up the burn than the breastwork, where, at a bend in the burn, there had been a choking up of its course, owing to certain bushes and debris being caught in the flood.

The pursuer pleaded—“(1) An opus manufactum having been constructed by the principal defender, or with her knowledge and authority, in the bed or course of the burn in question, she is liable for any damage that may have been occasioned through its presence to the pursuer as a neighbouring proprietor. (2) The pursuer's property having been damaged by the diversion of the water caused by the opus manufactum in question, the principal defender is bound to make good the said damage to the pursuer.”

The defenders pleaded—“(3) The overflow complained of having resulted from natural causes at a point removed from the said embankment, the defenders cannot be made responsible to the pursuer for any damage that may have resulted therefrom. (4) Even assuming that the said damage was connected with the existence and construction of the breastwork, the defenders are not liable in damages, in respect, first, the flood on the occasion in question was unprecedented, and such as could not have been anticipated, and second, the breastwork has existed in its present position, and of its present construction, from time immemorial or at all events anterior to 1880 when the pursuer acquired his property, or otherwise any changes effected on the breastwork since the pursuer acquired his feu have been executed in the full knowledge and with the acquiescence of the pursuer.”

On 2d November 1886 the Sheriff-Substitute ( Campion) pronounced an interlocutor finding—[ After findings as to the lie of the ground to the effect above given]—“(3) That said hills were sheep drained by the defenders in 1884. (4) That at the point where the said farm road crosses the burn the road was repaired in 1884 in such a manner as to form a solid structure or breastwork. (5) That the effect of these operations was to cause a silting up of mud or sand in the bed of the burn above this structure or breastwork. (6) That on 12th September 1885 there was an exceptionally heavy fall of rain, causing a flood in the burn. (7) That this silting up of the bed of the burn and the stones which, brought down by the flood, collected there, had the effect of damming back the water coming down the burn, so as to cause it to overflow a little distance above where said obstruction occurred. (8) That the flood thus created ran south on to the farm road till it met with a rise, when it turned down across the field and Campbell Road till it reached the walls of pursuer's property. (9) That the body of water, pressing against the wall, overturned it, and rushing over pursuer's property, caused considerable damage: Finds that said damage was the result of the operations conducted by defenders or by persons for whom they are responsible, and that they are accordingly liable in the same; assesses the amount at the sum of £70 sterling.

“ Note.—… As to the plea of prescription, even if the opus manufactum were shown to have existed for forty years, that could be no defence to a question of damages arising from an altered state of the same— e.g., a raising or altering of the breastwork following upon the sheep draining operations.

“The plea of the unprecedented nature of the flood amounting to damnum fatale is disposed of by various decisions and dicta of judges which may be briefly summed up in the words of Lord Gifford's interlocutor in Pirie & Sons v. Town Council of Aberdeen, 18th January 1871, 9 Macph. 412—‘He who meddles with the ordinary course of a stream is bound to provide not only for ordinary but for extraordinary floods, even for those which are so rare that they may only happen once or twice in a century.’”

The defenders appealed to the Court of Session, and argued—All the operations which the defenders had executed on this burn, the sheep draining of the hills, the erection of the breastwork and railing, were ordinary circumstances in estate management, and were quite lawful in themselves. The only person who would be entitled to complain of any operations on the stream would be one of the riparian proprietors lower down the stream. But if the pursuer, who was not a lower riparian proprietor, but a proprietor of ground a mile away, desired to make the riparian proprietor liable for damage, he must prove culpa on the part of the latter— Mackintosh v. Mackintosh, 15th July 1854, 2 Macph. 1357; Murdoch v. Wallace, 28th June 1881, 8 R. 855; Jackson v. Marshall, 4th July 1872, 10 Macph. 913; Pirie & Sons v. Magistrates of Aberdeen 18th January 1871, 9 Macph. 412. This case was not ruled by Rylands v. Fletcher, L.R., 3 E. and I. App. 330. It also differed from that of Kerr v. Earl of Orkney, 17th December 1857,

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20 D. 298. The proof showed that the overflow had been caused not by the breastwork but by stoppage by gravel, furze, &c., in a narrow part of the stream twenty yards above the breastwork.

The pursuer argued—The defender was liable in damages, because the breastwork across the stream created an obstacle at which debris and gravel would accumulate. The accumulation would be all the greater from the second fault alleged by the pursuer, viz., that the defender had led all the sheep drains into this stream without making proper provision for carrying off the extra flow of water. The principle of Rylands v. Fletcher ( supra) regulated this case, and the Court would infer liability from the fact that the breastwork was there, and from the damage done by the overflow of the stream. The erection of the breastwork, &c., might be quite legal acts in themselves, but the proprietor who performed them did so under an obligation that no damage was done to his neighbour's property. This was also supported by the decision in Tennent v. The Earl of Glasgow, March 3, 1864-, 2 Macph. (H. of L.) 22, per Lord Chancellor, p. 26, and in Ker v. The Earl of Orkney ( supra). In the first of these cases the damage was held to be due to a damnum fatale, but no such plea could be put forward here. If it was proved that the erection of the breastwork contributed in any degree to the damage, that was enough to make the defender liable— Chalmers v. William Dixon (Limited), February 18, 1876, 3 R. 461.

At advising—