Scottish Court of Session Decisions

J. J. Armistead, a pisciculturist, obtained in 1881 a lease for fifteen years from Lord Herries of about five acres of ground at Kinharvie, in the Stewartry of Kirkcudbright, for the purposes of his business. The lease provided—“( First) The said ground is let to the said Joseph John Armistead for the sole purpose of breeding fish, … and for this purpose he shall be at liberty to excavate the ground for the formation of ponds to the satisfaction of and under the superintendence of the proprietor's factor, or a person to be appointed by him. ( Second) The tenant shall have right, so far as the proprietor can give him such right, to divert water from the Newabbey and Tannox Burns where they pass through or adjoin the ground hereby let, for the purpose of supplying the ponds to be constructed as aforesaid; and he shall construct to the satisfaction of the proprietor an outlet for the water so diverted after passing through the said ponds..… ( Ninth) The proprietor reserves the right to remove through the land hereby let the timber cut on the lands adjoining without being liable to the said Joseph John Armistead in any damage caused by the removal of such timber.” After obtaining this lease Armistead excavated the ground, formed ponds for the rearing of fish, and led a supply of fresh water into them. He also erected a large hatchery, built of stone and lime, for the purpose of hatching eggs or ova in boxes, and fixed all the necessary machinery and filters for breeding fish.

The storm of 1883 caused, a great deal of damage to the trees on Lord Herries' property, and the timber which was blown down was sold to Messrs Moxham & Company, who in turn sold it to James Bowerman, a timber merchant. The contract of sale contained the following conditions—“1. The wood to be removed by 31st of December 1886, and if any is left it shall be in Lord Herries' option to remove the same at the buyer's expense, or to dispose of it as he may think fit, without payment or compensation.… 4. The buyer shall remove the wood by such roads or tracks as may be pointed out by the forester across the lands occupied by Lord Herries or his tenants, without liability for surface damage, but shall be bound to repair all gaps made in the fences in removing the wood.… 6. The buyer may erect a sawmill at such convenient place as may be pointed out by the factor, Mr W. J. Maxwell.”

Bowerman proceeded to remove the trees by the drag roads, and in doing so required to cross a small burn or ditch known as the “Hatchery Burn,” and also the feeders of another known as the “Tannock Burn,” both of which supplied Armistead's batching establishment with water. When the timber was dragged across these burns or ditches the mud was stirred up, the water became fouled, and the result was serious damage to Armistead's hatchery and fish ponds.

This was an action of damages at the instance of Armistead against Bowerman in respect of these operations.

The averments of the pursuer were to the effect that the defender had wrongfully and in disregard of the pursuer's interests dragged the timber by means of horses and otherwise through the streams, and so fouled them to a serious extent, which would not have occurred if the defender had adopted the simple precaution suggested by the pursuer of laying across them temporary log bridges. The pursuer further averred that the defender had conducted his operations recklessly and maliciously, but it was held in the Inner House that there was no evidence to support this averment.

The defender, besides maintaining that the pursuer was not a party to the contract between Messrs Moxham & Company, pleaded—“(3) The defender having acted within his rights in the removal of the said timber through the streams in question, is entitled to be assoilzied, with expenses.”

The Lord Ordinary ( M'Laren), after a proof, pronounced this interlocutor on 6th March 1888:—“Finds that the pursuer had right as tenant to a supply of pure water for his fish hatchery from the streams flowing through Lord Herries' plantation: Finds that the defender had right to remove the fallen timber in said plantation, and that it was his duty in doing so to take reasonable precautions against fouling the streams supplying said hatchery: Finds that the defender was negligent in the performance of this duty, and that through such negligence the pursuer has lost the greater part of the fry or young fish hatched in the season of 1887, and has sustained damage to the extent of £300: Decerns in favour of the pursuer for this sum, and quoad ultra assoilzies the defender from the conclusions of the action: Finds the pursuer entitled to expenses.

“ Opinion.—The pursuer Mr Armistead is lessee of a house and land, with certain water rights, which he rents from Lord Herries, for the purpose of carrying on the business of fish hatching and fish culture. According to the evidence this comparatively new branch of industry has already attained a considerable development in Great Britain. One of the essentials of its successful prosecution is the supply of a constant flow of perfectly pure water, and the right to such a supply was the subject of special stipulation in the lease which Mr Armistead obtained. At the same time Lord Herries stipulated for the right to remove fallen timber through the land which was given in lease to Mr Armistead. Since the commencement of the lease a large number of trees on Lord Herries' property were blown down by a gale of wind, and as Mr Armistead's enclosure is situated at the foot of the slope of the plantation, and was the most convenient access to the plantation, it became necessary that Lord Herries should exercise his reserved right under the lease. Instead of employing his own foresters or workmen to remove the fallen timber, Lord Herries sold the timber in 1884 to an English firm, who re-sold it to the defender Mr Bowerman with the right of removing it, which Lord Herries had reserved. In removing the timber the defender on various occasions fouled the water which supplies the pursuer's fish hatchery and breeding ponds. The young fry in the hatchery were completely destroyed as the natural and inevitable result of the pollution of the water, and there was also a considerable destruction of the fish in the breeding ponds,

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which the pursuer attributes to the same cause. For this loss the pursuer claims compensation from the defender.

I may here observe that the removal of the timber on the occasions complained of was subsequent in point of time to the period within which the defender was bound by his contract to complete the clearance of the fallen timber. On this circumstance the pursuer has founded a separate argument, to the effect that the defender must be regarded as a trespasser, or as a person interfering without a title. In considering the case I have not felt at liberty to give any weight to this contention, because I conceive that the circumstance of the defender having exceeded the limits in time within which he was to complete the removal of the timber only raised a question between him and Lord Herries. Lord Herries might have granted an extension of time without consulting the pursuer, or he might, without granting an express extension, acquiesce in the defender removing the timber after the expiration of the agreed-on time. It appears to me that as the defender had undoubtedly acquired the timber by purchase he must be taken to be in the lawful exercise of his rights in removing it, so long as he was allowed to do so without objection on the part of Lord Herries.

The next and only other general question is one which is raised in the interest of the defender. It is contended on his behalf that the acts of pollution averred and proved do not constitute an infringement of the law of neighbourhood. If the defender is not a trespasser, he is only responsible, as it seems, for the observance of the law of neighbourhood; hence it is urged that the acts complained of do not give rise to an action unless they amount to a nuisance. It must be admitted that the fouling of a stream by dragging fallen timber across it would not amount to a nuisance; but I cannot accept the defender's view that an injury done to a neighbour is not actionable unless it amounts to a nuisance. The obligation of neighbourhood is expressed in the maxim sic utere tuo ut alienum non lædas. A supply of pure water is essential to the pursuer's business; the pollution of the streams which feed his hatcheries was calculated to destroy the whole produce of his undertaking for the year. Assuming (but only for the purpose of testing the argument) that this was known to the defender, I conceive that the obligation of neighbourhood required the defender to use a reasonable degree of care and trouble to avoid injurious pollution.

“There are then three points for consideration with reference to the alleged injuries:—

(1) Was the defender made aware of the injury which the temporary fouling of the water would cause to the hatcheries?

(2) Was it possible by the use of reasonable and inexpensive expedients to avoid the fouling of the water?

(3) Was the defender negligent in the performance of the duty of taking reasonable care to avoid fouling the water?

These questions will be considered with reference to the facts as proved.

I may here observe that I do not hold it proved that the defender had been made aware, before 30th December 1886 of the necessity of using means to avoid the pollution of the streams which fed the pursuer's establisment.

There is evidence that the defender and his son (who was in charge of the timber) had separately visited the pursuer and seen the fish hatchery. But these were visits of a friendly character, and the hatchery was most probably shown to the defender and his son, just as it might have been shown to any member of the public attracted by curiosity or scientific interest. If the attention of the defender and his son had been drawn to the subject, they might no doubt have inferred that pure water was necessary. But they were not naturalists, nor were they persons conversant with fishing or fish culture. Therefore it is not to be assumed that they ever thought of the quality of the water. They probably saw the filters, but these might only suggest that the pursuer had the means of protecting his hatchery from the effects of pollution. In point of fact the filters are only efficacious against such pollution as results from natural causes—a heavy shower, for example, washing a certain amount of turbid water into the stream. But if the water is mixed with any considerable amount of soil or mud, the filters become choked, and the water flows over the frames instead of passing through them. The pursuer states that when he showed the defender the hatchery he spoke of the necessity of having pure water, and requested the defender to use means of avoiding pollution. The defender denies that such communications were made to him. As the evidence on this point is conflicting I think it is best to assume it as unproved that the defender and his son were originally made aware of the requirements of the hatchery, or of the injurious effects which would follow from the temporary pollution of the water.

On the morning of the 30th December 1886 the pursuer on proceeding to inspect his hatchery found that the water flowing into it was fouled with mud, that the filters were choked and the muddy water flowing over the frames into the hatchery, forming a muddy deposit on the fish ova. The pursuer did what was possible to clean the ova; but notwithstanding his endeavours they were to a large extent lost, their vitality being destroyed by the muddy deposit which prevented the access of fresh rerated water which is necessary to their development. The pursuer immediately saw the defender's son, and informed him of the mischief that had been done. The pursuer says that it was eventually arranged that during the ensuing week, the weather being frosty, the defender should proceed with the removal of the timber, as it was considered that when the ground was hard there would be little disturbance of the soil by dragging the timber across or in the neighbourhood of the stream. Assuming that this was so, the defender did not keep to the arrangement, but on the 3rd January 1887, during a heavy fall of rain, he continued the work at the same place, with the result that the filters were again choked, and what remained of the ova and the young fry were completely destroyed. The pursuer purchased a fresh supply of ova, for which he paid £58, 10s. I am of opinion that the defender is excusable for the injury done on the 30th December, but not for

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what was done on 3rd January. He ought either to have suspended the work during the thaw, or have laid down a bridge of logs over the watercourse, for which materials lay ready to hand, or at the least he ought to have consulted the pursuer, and given him the opportunity of making a log bridge, or doing what was necessary to preserve the water from contamination.

On the occurrence of this second injury the pursuer again remonstrated, and this time he indicated that he would apply to Lord Herries or his factor to have the removal of the timber stopped unless some arrangement was made. Lord Herries had the means of putting pressure on the defender, because the latter had exceeded the time allowed by his contract. But it was not necessary to refer to Lord Herries or the factor, because the defender's son agreed to defer the removal of the timber from this part of the plantation until the middle of March, when it was understood that the fish would be fully hatched, and the risk of injury much lessened.

I may here explain that the pursuer makes use of two small streams coming from the plantation. The stream already referred to flows direct into the hatchery, and thence into one of the fish ponds. It is referred to in the evidence and argument by the name of the ‘hatchery’ stream. The remaining fish ponds are supplied by the other small stream known as Tannock's Burn. The arrangement of the ponds and their feeders is shown in a plan which the pursuer gave in at the proof.

Before the next pollution complained of the pursuer had made a change in his arrangements, and his whole establishment, including the hatchery, was then supplied from the second stream. What was the reason for this change does not clearly appear, but I understand it was done to enable the defender to remove what remained of the timber without taking precautions against polluting the hatchery stream. All the timber had to be taken across the hatchery stream, and it would have been difficult, even if bridges had been constructed, to avoid causing some pollution. It was necessary, however, that part of the timber should be taken across the small rills which flow into the Tannock's Burn, and it was supposed that by forming log bridges across these the amount of pollution would be so small that when mixed with the larger volume of water in the Tannock's Burn it would be rendered insensible. I think that counsel on both sides are agreed that this would be so.

I now come to the 7th of March, when, according to what I hold was the arrangement between the parties, the removal of the timber was to be recommenced. On the 8th March the pursuer observed that the water coming into the hatchery and pond was discoloured. This was found to be caused by the dragging of timber across one of the rills that flow into the Tannock's Burn. At the pursuer's request the defender, who happened to be on the spot, at once agreed to place planks or logs across the rill; and over such an extemporised bridge the rest of the timber in that part of the plantation was drawn, and damage avoided. No serious damage resulted from the slight disturbance to the water in the morning; partly because the disturbance was stopped before it had time to take effect upon the inhabitants of the hatchery and pond, and also because the fry were so far advanced that they could be cleaned by washing in pure water.

Matters went smoothly with one exception, which I do not stop to narrate, until 1st April, when a further pollution of the Tannock's Burn took place, alleged by the pursuer to be the most serious of all, and according to his evidence it destroyed the whole of the fish of that year's hatchery. On 1st April the defender's work-people had cleared the timber so far up the bank that it now became necessary to cross two other rills feeding the Tannock's Burn. They formed no log bridges, took no precautions of any kind, and gave no notice to the pursuer to protect himself. They commenced at an early hour in the morning to drag the timber across the two tributary rills, the banks of which were trodden into mud by the men and horses engaged in the work. The mud of course went down the Tannock's Burn into the hatchery. The pollution was not discovered by the pursuer until its effects were irremediable. All the young fry died, with the exception of about 2000, which were chiefly from the lot of ova which had been bought in January to replace those that were first destroyed. According to the pursuer's evidence, which on this point is not open to criticism, he and his men spent weeks in tending and cleaning the ova and young fry in the hope of removing the effects of the flooding of 8th March and 1st April, but their efforts were unavailing. The pursuer evidently thinks the flooding which took place on the 1st April was the more injurious of the two, and has no doubt that the destruction of the ova is attributable to the inflow of muddy water. I think that his conclusion is in entire accordance with the facts of the case.

Besides the destruction of the young fry the pursuer also claims damages for the destruction of fish in certain of the ponds into which water runs from the hatchery. The fish in these ponds were attacked by fungus disease, which the pursuer attributes to organic impurities coming from the hatchery, which of course contained a certain amount of putrescent matter coming from the dead fry or ova. The fish in ponds which are not supplied with water through the hatchery were not affected by the disease. It is therefore probable that the mortality amongst the grown fish is in some way attributable to the water connection between the hatchery and the ponds in which these fish were contained. But assuming the correctness of the pursuer's explanation, and the soundness of the corroborative evidence given by Mr Chambers on this subject, it only proves to my mind that it was a bad arrangement ever to allow the ponds to be supplied with water passing through the hatchery. It is agreed that the mortality among the young fry is always considerable, and therefore the risk of disease spreading to the fish exists independently of the exceptional mortality among the fry which occurred in the 1887 season. I suppose that the pursuer's men would remove the dead fry from time to time as they were observed, and if this was done regularly it would not follow that there was more organic contamination of the ponds in this than in other seasons. Therefore, while accepting the evidence that the fish were attacked by disease consequent on impurity in the water, I am disposed to hold that the damage

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is not proved to be the result of the defender's pollution, but is rather attributable to defective arrangement for which the pursuer is himself responsible.

Another head of damage is for injury done to the pursuer's garden by flooding, which is attributed to the acts of the defender in having broken down the bank of one of the small streams, whence the water escaped during the night and washed away the pursuer's vegetable beds and manure heap.

There is some evidence that the defender's men took pains to keep this bank in repair as the work was going on, and it is quite possible that notwithstanding their having taken care of the bank a heavy fall of rain may have washed it away. There being no direct evidence of negligence, I hold that this head of damage is not proved. As to the minor matters referred to in the record, I shall only say that in my opinion they are excluded by known rules of law.

I have now to estimate the damage done to the pursuer's business through the destruction of what is virtually the whole produce of the year. It would not be fair to the pursuer to limit the damage to the sum for which the fry could be replaced in April 1887. The pursuer had already made an endeavour to replace his stock, and in this endeavour he was foiled by the continued carelessness of the defender's work-people. In April he found that the hatchery and adjacent ponds were thoroughly contaminated by decaying matter, and that the place must be cleaned out and allowed to rest to eliminate the organic impurities. In this view I think he was well founded, and I cannot accept the suggestion that in a question with the defender the pursuer was bound immediately to re-stock his ponds, and risk the chance of further loss from, the cause referred to. I consider that in April he was in the position of one who has lost the profits of the season through the defender's fault. I am speaking of course of the young fry, which were the chief subject of sale from his establishment. At the same time it is to be observed that the pursuer's statements in regard to the profits of his business are somewhat vague, and he has not produced a balance-sheet. In such cases, where injury is not the result of personal negligence or misconduct, it is usual to estimate damages on a moderate scale. Without entering minutely into the values of the young fish, or professing to base my estimate on numerical calculation, I shall award as damages for the injuries I have held proved the sum of £300.”

The defender reclaimed, and argued—Lord Herries had the right to sell the wood to the defender, and the defender had conducted his operations in the ordinary way used for taking away fallen timber. The defender had to take it the way he did, as under his contract he was obliged to take it over the drag roads shown to him. The removal of the timber was an operation incidental to the property of the upper heritor, and if carried on in a proper manner could not be held to be a nuisance to the lower heritor even if some damage was done to him. The fact of the pursuer's hatchery having been placed where it was did not impose upon the defender any extra duty to see that he did not do damage. The defender had shown his desire to do all he could to avoid doing damage, as he had put up a log bridge upon the only occasion that he was asked to do so. As a matter of fact, if the pursuer had taken proper precautions to save his hatchery, and had seen that the filters were kept in good working order during the time that the trees were being removed, no damage would have resulted. He failed, however, to do this, and consequently he sustained this loss.

Argued for the respondent—The pollution might have been avoided if the defender had taken ordinary and simple means of prevention. The pursuer had established his fish hatchery, and got it into full working order long before the defender came upon the scene at all. The defender ought to have put a log bridge across the burns at each of the drag roads, and that would have prevented any fouling of the water such as undoubtedly caused the damage here. The question of whether there was a nuisance depended largely upon the circumstances of the case, but where work was conducted in such a careless and negligent manner as to cause damage to the neighbours, then that was a nuisance entitling the person damaged to legal redress— M'Intosh v. M'Intosh, July 15, 1864, 2 Macph. 1357; Cameron v. Fraser, October 21, 1881, 9 R. 26; Laurent v. The Lord Advocate, March 6, 1869, 7 Macph. 607; Hislop v. Fleming, December 22, 1882, 10 R. 427; Dumfries Waterworks Commissioners v. M'Culloch, June 4, 1874, 1 R. 975. Chalmers v. Dixon, February 18, 1876, 3 R. 461.

At advising—