Scottish Court of Session Decisions

This was an action raised by William Sommerville & Son, Limited, carrying on business as papermakers at Dalmore Mills, Milton Bridge, Midlothian, against the Edinburgh and District Water Trustees, (1) to have it declared, inter alia, that the pursuers were entitled to have the compensation water provided to the pursuers by the defenders' Acts of Parliament sent down the Glencorse Burn, on which the pursuers' mills were situated, in a fit state for all primary purposes, or otherwise in a state not inferior in quality and purity

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to the state of the water before it entered the defenders' reservoirs of Glencorse and Loganlee; (2) for interdict against the defenders allowing the compensation water to be discharged from these reservoirs otherwise than in the state of purity above mentioned; and (3) for damages for injury suffered by the pursuers in consequence of the defenders' failure to implement the aforesaid obligation.

The pursuers had since the establishment of their mill in 1835 used the water of the Glencorse Burn for the manufacture of high-class paper, in which it is essential that a certain purity in the water vised should be maintained. Except in times of spate, when the burn water was temporarily in a turbid condition, it had always been suitable for the pursuers' purposes, with the exception of a short period in 1901 when the Glencorse Reservoir was somewhat depleted. In December 1902, however, the water of the burn became so turbid that it could not be used for the manufacture of the class of paper which the pursuers make, and it remained in that condition until May 1903. It was admitted that this condition of the water was due to the Glencorse Reservoir being drawn down by the defenders to a very low level. The present action was consequently raised by the pursuers.

Glencorse Reservoir was originally formed under powers conferred by 59 Geo. III, cap. 116 (1819), on the predecessors of the defenders, who were a Water Company formed for the purpose of supplying water to the city of Edinburgh. Under this Act the reservoir was formed to provide compensation water to the millowners and others on the Glencorse Burn for the water abstracted by the defenders' predecessors for the supply of Edinburgh. By a subsequent Act the defenders' predecessors were further empowered to use the reservoir for purposes of supply as well as compensation.

The defenders were incorporated by the Edinburgh and District Water Works Act 1869, and were vested with all the powers previously vested in the Water Company by various Acts of Parliament from 1819 onwards.

The powers of the defenders and their predecessors were from time to time altered and enlarged by various Acts subsequent to that of 1819, but the measure of the pursuers' rights to compensation water therefor was definitely settled by the Water Company's Act of 1847 (10 and 11 Vict. cap. 202), and had not been altered or modified by any of the defenders' subsequent Acts. Section 70 of the above-mentioned Act is in the following terms:—“And in order to make compensation to the owners of lands, mills, and other works upon Logan Burn and the North Esk River, for the right conferred on the company to stop, dam up, store, and use the whole waters thereof above the Crawley Cistern, and for the damage they might sustain by the company being authorised to conduct the waters of the said Black Springs to the conduit leading from the cistern at Robinsrig to the Clubbiedean Reservoir instead of to the Crawley Cistern or Fountain Head, be it enacted, that from and immediately after the completion of the said intended reservoir at Loganlea, but not later than five years from the passing of this Act, the company shall allow to flow through the gauge presently placed near the said Crawley cistern 40 cubic feet of water per minute during the six months of May, June, July, August, September, and October, and 20 cubic feet of water per minute during the other six months of November, December, January, February, March, and April, in addition to the quantity of water stipulated to flow through the said gauge by the last recited Act hereby repealed, making the total quantity to flow through the said gauge at Crawley 220 cubic feet per minute for ever thereafter, as a full compensation for the right hereby conferred on the company to stop, dam up, store, and use the whole of the waters draining by the said Glencorse Burn and its tributaries above the said Crawley Cistern: Provided always, that in the event of the compensation reservoir already constructed and the reservoir to be constructed at Loganlea proving inadequate to afford the quantities of water provided to the owners of lands, mills, and other works on the course of Logan Burn and river North Esk by the aforesaid Act passed in the sixth and seventh years of the reign of Her present Majesty, and this Act, the said owners or any of them shall be entitled to apply to the Sheriff, who shall ordain, in terms of the Act first before recited, the said burn and Crawley Spring to be turned into their original channel, and to continue to flow therein, and through the aforesaid gauge for the use of the said lands and mills, so long as a deficient supply shall continue to exist, and that in lieu of the aforesaid quantities of water provided as aforesaid to the said owners of lands, mills, and other works.”

The pursuers pleaded—“(1) The defenders being bound by their said Acts to discharge into Glencorse Burn 220 cubic feet of water per minute, in compensation to the pursuers and others for the water impounded and diverted by them, decree to that effect should be pronounced in terms of the conclusions of the summons. (2) The compensation water supplied to the pursuers being in lieu of the water impounded and diverted by the defenders, they are entitled to have the same transmitted to them by the defenders in the state of purity concluded for in the summons, and decree of declarator and interdict should be pronounced as concluded for. (3) The pursuers having suffered loss and damage to the extent concluded for by the wrongful and illegal actings and neglect of the defenders, they are entitled to decree for damages as concluded for. (4) The defenders not having supplied compensation water of the quality required by the statutes condescended on, and the pursuers having in consequence suffered loss, they are entitled to decree. (5) The pursuers having been wrongfully deprived by the actings and operations of the defenders of the compensation water to which the pursuers

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were entitled under the statutes, they are entitled to decree as concluded for.”

The defenders pleaded—“(3) The pursuers' averments, so far as material, being unfounded in fact, the defenders should be assoilzied. (4) The defenders should be assoilzied in respect that they have all along fulfilled their whole obligations under the statutes with regard to compensation water. (5) The defenders should be assoilzied in respect that ( a) the statutes do not impose any obligation on the defenders to maintain the compensation water at any standard of purity; ( b) the pursuers' mill was erected after the compensation reservoir was authorised; and ( c) the pursuers have no right under the statutes to require that the compensation water from the reservoir should be adapted to the processes of their manufacture. (6) The defenders are entitled to be assoilzied from the conclusion for damages in respect that ( a) they have all along fulfilled their obligations under the statutes with regard to compensation water, and ( b) during the period of which the pursuers complain the water going down Glencorse Burn would, owing to the heavy weather then prevalent, and but for the compensation reservoir, have been much more muddy than it actually was.”

The Lord Ordinary (Low) allowed a proof, the import of which sufficiently appears from the facts set forth above, and from his Lordship's opinion and the opinions of their Lordships of the Second Division.

Upon 13th July 1904 the Lord Ordinary assoilzied the defenders from the conclusions of the summons, and decerned.

Opinion.—“The first question which I shall consider in this case is—what are the rights of millowners and other riparian proprietors on the Glencorse Burn in regard to compensation water?

“1. In regard to quantity The amount of the compensation water is fixed by the 85th section of the Act of 1856 (19 and 20 Vict. c. 91) at 220 cubic feet per minute. That amount is passed through a gauge at Crawley which is about a mile and a-half below the Glencorse Reservoir. That is the only statutory enactment in force in regard to the quantity of the water, with this exception, that it is provided that in the event of the reservoirs ‘proving inadequate to afford the quantities of water provided to the owners of lands, mills, and other works,’ any of the owners shall be entitled to apply to the Sheriff, who is given power to ordain that the burn and springs which the Water Trustees were authorised to impound and divert shall be turned into their original course, and continue to flow therein, and through the gauge, so long as a deficient supply shall continue to exist.

“That provision appears to me to have an important bearing upon this case. The Glencorse Reservoir, and its supplementary reservoir of Logan lea, were supply as well as compensation reservoirs. If they had only been compensation reservoirs, I think that it is plain, considering their capacity, that it would not have been necessary to provide for the contingency of the reservoirs becoming empty, and not being able to furnish the amount of the compensation water. It was because the reservoirs were supply as well as compensation reservoirs that it was provided that if they became so depleted as not to be able to furnish the full amount of compensation water the riparian owners should have the whole water contained in the burn and springs.

“I think that that shows that there was no definite proportion of the water contained in the reservoirs which was specially appropriated to the purposes of compensation, and that there was no stage in the process of drawing upon the reservoirs when the riparian owners were entitled to call upon the Water Trustees to cease taking water for supply purposes in order that a sufficient amount might be left to secure the continuance of the compensation water. I think that the right of the Water Trustees to take water for supply, and the right of the riparian owners to compensation water, were concurrent rights, and that the Trustees were entitled to draw upon the reservoirs for both purposes to their full capacity.

“2. In the next place, in regard to the quality of the compensation water. There is nothing said in the statutes as to quality, and the only enactment which in any way touches the question of quality is the provision that the filters which were to be erected for the purpose of filtering water going to Edinburgh were not to be cleaned out in the Glencorse Burn. I suppose that that provision was inserted because the filters were placed near the burn, and it might have been very convenient to cleanse them by flushing them into the burn.

“The reasons why the quality of the compensation was not specified I take to have been (1) that it was impossible to do so, because the compensation water was to be measured and given off about a mile and a-half below the reservoir, and was liable to pollution between the reservoir and the gauges from causes over which the Water Trustees had no control, and (2) that it was thought that if the riparian owners got a sufficient quantity of the water impounded in the reservoirs there would be nothing to complain of as regards quality, because the water given off from a reservoir in which a stream is impounded is upon the average certainly not worse, and probably somewhat better, than the water of the stream in its natural state. As matter of fact there have been no complaints in regard to the quality of the water until the incident which gave rise to the present action, with the exception of an occasion in 1901, when the water was for a short time in a position which led to a complaint by the pursuers.

“The circumstances under which the present action was raised were as follows—The pursuers are papermakers who deal in a high class of paper, for the manufacture of which water of a comparatively high standard of purity is required. The mills now owned by the pursuers were established in 1835, and from that date until the end of 1902 the water of the burn (that is, the compensation water) was fit to be made use of in the manufacture of paper. The pursuers have not used the water of the

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burn alone for manufacturing purposes, but they have mixed it with a considerable quantity of spring water, and the water composed of that mixture has been found satisfactory and sufficiently pure for the manufacture of high-class paper. Further, the pursuers have not been able to use the burn water continuously, because when it is turbid after heavy rains it is not fit for use. They have, however, means of storing a sufficient quantity of water to keep the mills going for two or three days, and they have found such storage to be an ample provision to meet the case of natural floods.

“About the 12th December 1902 the water of the burn became so turbid that it could not be used for the class of paper which the pursuers make, even when mixed with the spring wafer at their command, and that state of matters continued without interruption until 7th May 1903. The condition of the water during that period was different from that caused by spates. It was highly impregnated with very fine matter of a whitish colour, which took a long time to settle. That the water during the period referred to was entirely unfit for the pursuers' purposes seems to me to be proved without any doubt. There is one fact which I may mention because it illustrates in a somewhat striking way the difference between the quality of the water during the period complained of and at other times, and that is that the flannel bags which are put upon the ends of the pipes which discharge the water into the machines, in order to catch up any solid matter, require to be changed in ordinary times only about once a week, while during the period in question they required to he changed every ten minutes or quarter of an hour. That fact appears to me to demonstrate that the water was in a highly contaminated condition, and it is plain that if such a condition was to become constant or of frequent occurrence and long continuance, the pursuers would either have to manufacture paper of an inferior quality or obtain a new supply of water from another source, or establish a system of filtration for the burn water. The second of these alternatives is very likely impossible, and the seriousness of either of the other two is sufficiently obvious.

“As to the cause of the pollution there is really no dispute. During the summer and autumn of 1902 there was a long continued drought—indeed, so severe a drought had not been experienced since 1842. The result was that the defenders had, in order to furnish the necessary supply of water to Edinburgh, to draw largely upon all their reservoirs including Glencorse. The latter was accordingly run down to an unusually low level. During the long period which has elapsed since the reservoir was constructed there has necessarily been a considerable deposit of sand, mud, and other material upon the bottom of the reservoir, and when the water in the reservoir falls to a low level a greater or less extent of the deposited silt becomes exposed. The effect of that is to create some turbidity in the water, and the lower the level to which the water falls the greater the danger of turbidity. That arises from various causes. The most powerful agents are rain, wind, and frost. The effect of frost is to raise up the surface particles from those beneath them, so that when thaw comes they are loose. If, when that condition of matters exists, there is heavy rain or high winds, that detached matter is very readily washed into the water. Another cause of turbidity is the action of the streams which feed the reservoir, and which, when the water is low, require to cut channels for themselves through the silt, and in doing so they necessarily carry away a portion of the silt. If, however, the level of the water is lowered gradually, that process is also gradual, and is not, I think, likely of itself to cause serious turbidity. The sides of the channels cut by the streams are, however, steep, and are liable to be undercut, when a considerable quantity of material may fall from them into the water. The same result may be caused by frost and thaw.

“Further, one of the streams which feed the reservoir appears to bring down material which is very fine and light, and which accordingly takes a long time to settle. That material may be carried further down the reservoir than heavier material, and be deposited nearer the lower end. Therefore, turbidity which is set up when the water is very low is likely to be more serious than when a less extent of the silt is uncovered, partly, of course, because there is less water in which to distribute any silt washed into it, but also because there may be a larger amount of the lighter material, which remains a long time in suspension. I think that there can be no doubt that upon the occasion complained of a large quantity of the lighter silt was washed into the water.

“Now the pollution complained of could only have been avoided by the adoption of one or other of three courses. The defenders might have cleaned out the reservoir so as to make the bottom practically free from silt; or they might have filtered the compensation water; or they might have ceased to draw upon Glencorse for supply purposes when the water got to so low a level that to reduce it further would have been to run the risk of its becoming polluted to such an extent as to be unfit for use by the millowners.

“No one says that the first of these alternatives ought to have been adopted or was practicable. In regard to the suggestion that the compensation water ought to have been filtered, the answer is that the defenders are compelled by statute to filter the water going to Edinburgh, and that the filter accommodation is not more than sufficient to filter the amount of water which it is necessary to draw from Glencorse for supply purposes. The third alternative however requires more consideration, and it is the one upon which the pursuers ultimately insisted.

“Before dealing with the evidence on that point, however, I think that it is well to consider what duty, if any, lies upon the defenders in regard to the quality of the compensation water.

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“I have already pointed out that no express duty is laid upon the defenders in that respect; and that apparently what was contemplated by the Legislature was that if a sufficient quantity of the water impounded in the reservoir was sent down the channel of the burn, it was unnecesary to make any provision, or to lay any express obligation upon the Water Trustees, in regard to quality. I do not think that it can be assumed that those who were responsible for framing the statutes were ignorant of or ignored the fact that silt is inevitably deposited in the bed of a reservoir, and that such silt is likely to be stirred up when the water falls to a low level. Yet the statutes seem to me to authorise the reservoirs to be drawn for supply as well as compensation to their full capacity.

“It does not, however, follow that the defenders are under no obligation whatever in regard to the quality of the compensation water. It is well settled that where the Legislature has empowered a certain thing to be done, no action will lie for injury caused thereby, provided that all reasonable precautions have been taken to prevent injury. If, however, the injury has been caused by negligence it is no answer to a claim of damages that what was done was authorised by statute. I think that that rule applies here, and that if the long continued pollution of the water of which the pursuers complain was caused by the defenders' negligence, they are liable to make good the loss thereby occasioned. If, upon the other hand, there was no negligence on the defenders' part, then the pursuers have no ground of action.

“The question therefore seems to me to be, whether, in the circumstances which happened, the defenders have been convicted of negligence.

“The pursuer's case is that the defenders in 1902 entirely ignored the interests of the millowners, and drew upon Glencorse reservoir for supply purposes unnecessarily and unjustifiably, until it was reduced to so low a level that the water remaining was, by the operation of the causes to which I have referred, rendered for a long period totally unfit for the manufacture of paper.

“The men of skill who gave evidence for the pursuers said that what occurred in 1901 shewed that there was a level below which the water in the reservoir could not be reduced without causing abnormal turbidity by the fine silt being stirred up. In the early winter of that year the level of the water was reduced until it was thirty-eight feet below the sill of the weir. While the reservoir was in that condition the compensation water became turbid and unfit for use for some time. That occurrence, it was said, was sufficient to warn the defenders that there was a level below which it was not safe to reduce the water; and that level the pursuers' witnesses fix at thirty-six feet below the sill of the weir. Their contention is that the defenders ought not to reduce the water below that level, because if they do so there is the risk of the water being rendered so turbid as to be unfit for the purposes of compensation.

“Now when the water stands at thirty-six feet below the weir there are still some fifty-seven millions of gallons of water in the reservoir, and it is rather a startling proposition that the defenders are not entitled to draw upon that large volume of water, whatever the exigencies of supply may be, although their statutory right is to use all the water which the reservoir contains.

“Further, it seems to me that it is impossible to fix any precise limit of safety. Whether the drawing off of a certain amount of water will or will not result in that which remains being impregnated with silt, depends not so much upon the level which the water has reached as upon the accompanying climatic conditions, and the conclusions at which I have arrived upon the evidence are (1) that if the lowering of the level of the water is gradual (as it has always been) the fouling of the water by the feeders cutting channels through the silt alone will not be very great, and (2) that if the weather is dry, calm, and without frost, the level of the water may be reduced to an indefinite extent without serious pollution; while on the other hand if there is frost, followed by heavy rains and high winds, there may be serious pollution although the level of the water is considerably higher than thirty-six feet below the weir.

“When, however, the pollution of the water in the end of 1902 commenced, the level of the water had undoubtedly fallen to an exceptionally low point. The maximum reached was 43 feet 9 inches below the weir. That is a very unusual degree of depletion, because although the water has on previous occasions been as low and lower, such a thing has not occurred since 1870.

“Now 1902 was an unusually dry season. There had been nothing like it since 1870, and then the drought was not so severe, and prior to that there had been no year of equal drought since 1842. The result was that there was a great strain on the defenders' resources, and they had considerable difficulty in furnishing the supply which was necessary for Edinburgh. Mr Tait, the defenders' engineer, however, recognised the desirability, if possible, of preventing Glencorse being unduly depleted, and so early as June 1902 he largely restricted the draught upon that reservoir. In August, however, he was compelled again to increase the draught to the ordinary amount, but he was again able to restrict it in November and December, and he says that in the middle of December it was reduced to an almost unprecedently low draught. It was said that there was plenty of water at Gladhouse, which ought to have been drawn upon to a larger extent. It is true that as regards the reservoir at Gladhouse there was a sufficient quantity of water to afford a larger draught than was taken from it, but the Gladhouse water cannot be used without filtration, and as much was passed through the filters

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(which are at Alnwickhill) as they were capable of carrying.

“But then it was said that there was a simple means available by which all the water which was actually supplied from Glencorse could have been given off without depleting the reservoir to a dangerous extent. It appears that when Glencorse was at its lowest there were thirty-six millions of gallons in Loganlea—a reservoir which was constructed for the very purpose of supplementing Glencorse. In these circumstances the pursuers' witnesses say that all that the defenders required to do to avoid pollution of the Glencorse water was, when the water of the latter became dangerously low—thirty-six feet below the sill—to let down ten or fifteen millions of gallons from Loganlea, which would have been sufficient to allow the defenders to continue their draughts from Glencorse without bringing the level of the water down to danger point.

“That is a very plausible suggestion, and my first impression was that the course suggested was one which ought to have been followed. It is, however, easy to be wise after the event, and it is necessary to consider the matter from the point of view of Mr Tait at the time.

“Loganlea Reservoir, when full, contains in round numbers one hundred and twenty-two millions of gallons. It was full in the beginning of 1902 and continued full until the end of July, but in the months of August and September the water was drawn off, and in October it was for some time practically empty. The reason for that being done was that the pitching of the embankment required to be repaired.

“When the repairs were completed Mr Tait considered it to be his duty to have Loganlea filled again as soon as possible. The sluices were accordingly shut and the water gathered until, as I have said, when Glencorse was at its lowest, there were some thirty-six millions of gallons in Loganlea, which represents less than one-third of its full capacity. Mr Tait's reason for wishing to fill up Loganlea was this: Where there are upper and lower reservoirs—the one feeding the other—the general rule is that the water should be so managed that the upper reservoir fills first. That is in order to avoid waste. If, for example, the upper reservoir was empty, while the lower was half full, then when rain came the result might be that the lower reservoir would be overflowing and running to waste while the upper reservoir would not yet be full.

“Now I do not not think that the course adopted by Mr Tait was open to criticism until the beginning of December, because it was only on the 1st of December that the level of the water in Glencorse fell so low as thirty-six feet below the weir, which the pursuers' witnesses regard as the limit of safety, and so long as he could safely draw from Glencorse I think that the evidence shews that it was proper management for Mr Tait to do his best to fill up Loganlea in order to avoid the risk of waste.

“The question, however, is, whether when it became apparent that Glencorse would be reduced to a lower level than 36 feet below the weir unless it was supplemented, it was not Mr Tait's duty to utilise for that purpose the water which was stored in Loganlea. Whether that was or was not the proper course to follow seems to me to have been a question of opinion upon which men of equal skill might very well have differed.

“Probably if Mr Tait could have foreseen that an abundant rainfall would commence (as it did) upon the 15th of December, he would have drawn upon Loganlea, but in the beginning of December he had to contemplate the possibility of the deficiency of rainfall continuing for an indefinite period. That was the most serious contingency for which Mr Tait (whose duty was to supply water to a great city) had to provide. He therefore deemed it to be prudent so to manage the reservoirs as to secure that whatever rainfall there was should be impounded and should not run to waste. It appears, however, that the gathering ground for Loganlea is larger in comparison to the size of the reservoir than the gathering ground of Glencorse, and it was suggested that there was therefore really no risk of Glencorse becoming full and overflowing before Loganlea was also filled. But that has not been proved, and Mr Tait, who has had practical experience of the reservoirs, thought otherwise. He also referred to an actual instance in which Glencorse was overflowing before Loganlea was filled up.

“Further, I am not satisfied upon the one hand that even the probable result of allowing the water in Glencorse to fall considerably lower than 36 feet was to cause serious and long continued pollution of the compensation water, nor, upon the other hand, that the pollution which actually occurred would have been prevented to any material extent by letting down ten or fifteen millions of gallons from Loganlea. It all depended upon the climatic conditions, and the conditions which actually occurred were as unfavourable as could well be imagined, because there was hard frost followed by heavy rain, 1 inch falling in the first twenty-four hours, and there were also very high winds. Even if Glencorse had contained ten or fifteen million of gallons more than it did contain there would still have been a very considerable expanse of silt uncovered, upon which the frost, the rain, and the wind would have taken effect, with the result, so far as I can judge, that turbidity would inevitably have been caused. It may be that the turbidity would not have been of so serious a character as that which actually occurred, because so much of the fine matter might not have been stirred up. But it is impossible to estimate what the extent of the turbidity would have been or how long it would have continued, seeing that during the remainder of the winter constant gales and frequent heavy rains prevailed which prevented the water from settling.

“The case appears to me to be one of

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great difficulty, and I fully recognise the hardship to the pursuers, but after the most careful consideration I am unable to affirm that there was negligence on Mr Tait's part. He was placed in a position of great difficulty, and while to have utilised the water which was stored in Loganlea might have to some extent mitigated the pollution, I do not think that it could have prevented serious pollution, and further, the course which he followed of gathering water in Loganlea was in accordance with what is generally recognised as prudent management when water is scarce and it is important to avoid waste.

“I am therefore of opinion that the defenders must be assoilzied.”

The pursuers reclaimed, and argued—The defenders were not entitled or justified in discharging silt into the burn, and so polluting it. Apart from any question of fault or negligence they had no power under their statutes to pollute. The onus is on the defenders to show that they are under no obligation as to the quality of the water sent down. The common law presumption is that a lower heritor has right to water in its natural state as to quantity and quality, and when Parliament interferes and gives compensation water to lower heritors without any express stipulation as to quality, the common law presumption as to quality remains the same as before. Common law rights remain unless'expressly taken away— Clowes v. Staffordshire Pottery Co., November 4, 1872, L.R., 8 Ch. App. 125; Metropolitan Asylum v. Hill, January 14, 1881, L.R., 6 App. Cas. 193. The reservoir was originally made for compensation purposes only under the Act of 1819, and it was a condition precedent that lower heritors should get water of the same purity as before the works were constructed. The defenders were under no statutory obligation to give a constant supply to Edinburgh. The defenders' statutes gave them no power to pollute or cause a nuisance—at the highest their power was only to take a certain amount of water— Canadian Pacific Railway Co. v. Park, March 7, 1899, L.R., App. Cas. 535; Rapier v. London Tramway Co., May 12,1893, L.R., 2 Ch. 588. The defenders were guilty of negligence, the test of which in a case of this kind is not the question whether reasonable precautions were taken to prevent damage, but whether that damage could have been avoided, and was not the inevitable result of the statutory powers given by Parliament— Geddes v. Bann Reservoir Co., February 12, 1878, L.R., 3 App Cas 430. The facts showed that the damage could have been avoided by proper management on the part of the defenders— Shelfer v. City of London Electric Light Co., L.R. [1895], 1 Ch. 287; Queen v. Bradford Canal Co., June 10, 1875, 6 Best & Smith 631.

Argued for the defenders and respondents—The pursuers must define the standard of quality of water they claim. The standard must be either natural or artificial. Here it is artificial. There is nothing expressed in the statutes as to quality, and the standard must therefore be the state of the water as it comes from the reservoir. The pursuers are not entitled to the common law right of lower heritors as defined in Young v. Bankier Distillery Co., July 27, 1893, 20 R. (H.L.) 76, 30 S.L.R. 964—but to a certain quantity of such quality of water as the reservoir may contain, whether made better or worse by the works sanctioned by Parliament. The pursuers' rights as lower heritors were destroyed by statute, especially as the existence of a reservoir necessitates silt, and the use of a reservoir is to empty it when required. The obligation of the defenders is to act within their statutory powers, not to act as superior heritors. The fact that the water supplied was compensation water did not infer any obligation as to quality. Compensation in water in this case takes the place of compensation in money in other cases, and no further compensation is due for the use of works authorised by Parliament than that for the land taken. It must be assumed that when the compensation was fixed the question of quality either for better or for worse was in contemplation— Brand v. Hammersmith Railway Co., February 1, 1867, 22 B. 223. The cases of Clowes v. Staffordshire Pottery, supra, and Metropolitan Asylum v. Hill, supra, were distinguished from the present case, as here there was a statutory duty imposed on the defenders to make the reservoir and compulsory powers granted to take land for it— London, Brighton, and South Coast Railway Co. v. Truman, December 17, 1885, L.R., 11 App. Cas. 45; Mersey Docks Trustees v. Gibbs, 1866, L.R., 1 Eng. & Irish Apps. 93; River Ribble Joint-Committee v. Halliwell, October 27, 1898, L.R. (1899) 1 QB 27; Cracknell v. Corporation of Thetford, May 28, 1869, 4 Common Pleas 629; Parret Navigation Co. v. Robins, 1842, 10 Meeson & Welsby 593. It was admitted that the defenders were bound to use the best practicable means of preventing pollution, but they were entitled to the use of their works to the exhaustion of their powers if such use was reasonable. There was here no evidence of unreasonable administration. What happened was due to exceptional drought and climatic conditions. In any event, the pursuers' objections to the management of the reservoirs were irrelevant and their criticism was unfounded.

At advising—