Scottish Court of Session Decisions

This was an action at the instance of the Earl of Kintore and others, the proprietors of the salmon fishings in the river Don, against Alexander Pirie & Sons, Limited, papermakers, Stoneywood Works, Aberdeenshire, which dealt with the abstraction of water from the river by the defenders at Stoneywood, where they had two dam dykes, viz., the Stoneywood dam dyke and, a little lower down the river, the Waterton dam dyke.

After a proof the Lord Ordinary ( Kyllachy) on 21st December 1901 pronounced an interlocutor in the following terms:—“Finds that the defenders have since 1882, and by means of alterations made in that year, or in the years following, on their mill lade and other appliances at Stoneywood, abstracted, and do still abstract, from the river Don at the Stoneywood dam dyke a quantity of water amounting, when the river stands level or about level with the crest of the said dyke, to not less than 36,000 cubic feet per minute: Finds that the said water is to a partial and unimportant extent returned to the said river 663 yards lower down above the Waterton dam dyke, hut that for the rest it is returned only at the foot of the Waterton tailrace, which measuring down the river is about 1330 yards below the Stoneywood Dyke: Finds that by means of the said exclusion from the river of the said water for the said distance the river bed is, as regards running water, practically dried except when the river is flowing in a volume exceeding 36,000 cubic feet per minute: Finds that thereby the passage of salmon up and down the river is to a substantial extent obstructed or impeded, and that by consequence the pursuers' salmon fishings in the upper reaches of the river are substantially injured: Finds that, apart from prescriptive right, the said abstraction of water by the defenders to the injury of the pursuers' salmon fishings is an actionable wrong: Finds with respect to the defenders' prescriptive rights—(1) that they have failed to prove that for forty years or upwards prior to the raising of the action, or for any period prior to 1882, they were in use to draw from the river at the Stoneywood dam dyke, or to exclude from the river between Stoneywood and Waterton, more than 7000 cubic feet per minute; (2) that the defenders have also failed to prove that for forty years or upwards prior to the raising of the

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action they abstracted at Waterton dam dyke, or excluded from the river between Waterton dam dyke and the foot of the Waterton tailrace, a quantity of water amounting, when the river was level with the average crest of the Waterton Dyke, to more than 28,000 cubic feet per minute: Finds that in these circumstances the defenders' said present abstraction of water at Stoneywood, and exclusion of such water from the river for the said distance, is not supported by prescriptive usage; and, separatim, that the defenders have failed to prove that the differences between their present and their former usage (that is to say, the differences above mentioned with respect (1) to the point of abstraction and (2) to the amount of water abstracted) are immaterial as regards injury done or calculated to be done to the pursuers' salmon fishings: Finds further that the defenders have failed to prove that the pursuers' right to complain of their said operations is barred by acquiescence: Finds therefore that the pursuers are entitled to require that the defenders' abstraction of water from the said river shall—as regards both the point of abstraction and the quantity abstracted—be restored to the position existing prior to 1882: Finds, with regard to the pursuers' complaint of the defenders' interference with the structure of the Stoneywood dam dyke and the bed of the river adjacent thereto, that the pursuers have failed to substantiate the said complaint: Finds further, as regards the abstraction of water on Sundays, that the defenders are not entitled in virtue of prescriptive usage or otherwise to abstract on Sundays more water than is necessary for the supply of their reservoir and for filling their lade after cleaning, the quantity so abstracted in no case exceeding 460 cubic feet per minute for three hours, and also in no case exceeding what may pass through one of their the (defenders') sluices kept open to the extent of 12 inches for the said space of three hours: With these findings appoints the cause to be enrolled for further procedure: Finds the pursuers entitled to expenses,” &c.

On the 18th December 1902 a reclaiming note against this interlocutor was refused and the case was remitted to the Lord Ordinary to proceed (reported 40 S.L.R. 210).

On the 20th March 1903 the Lord Ordinary pronounced an interlocutor in the following terms:—“Finds and declares … that the defenders are not entitled between the hours of twelve o'clock midnight of Saturday of each week and twelve o'clock midnight on the Sunday following, to withdraw water from the river Don either at Stoneywood Dyke or at any other point in any quantity exceeding such quantity as will pass through one of the defenders' existing sluices at the Stoneywood intake, kept open to the extent of twelve inches for the space of three hours during the said period from twelve o'clock midnight of Saturday of each week to twelve o'clock midnight on the Sunday following, and interdicts, prohibits, and discharges the defenders from withdrawing any water from the said river during the said periods exceeding such quantity as aforesaid: Further, assoilzies the defenders: … Quoad ultra refuses the pursuers' motion, and in particular their motion for declarator in terms of the sixth conclusion of the summons, that the defenders are not entitled to withdraw from the said river at the said dam-dyke or weir of Stoneywood a quantity of water which shall exceed at any time a flow of 7000 cubic feet per minute, and for interdict in corresponding terms and decree for reconstruction of the defenders' works as expressed in said proposed interlocutor: Finds upon the just construction of the Lord Ordinary's findings as now affirmed by the preceding interlocutor of their Lordships of the First Division that the defenders are not limited to their prescriptive rights as existing prior to 1882 and as defined by the said findings, or bound, as therein expressed, to restore matters to the position prior to 1882, except when and in so far as their (the defenders') abstraction of water at Stoneywood affects or helps to affect the flow of the river between the point of abstraction and the point of return, so as to impede the free passage of salmon between the point of abstraction and the point of return: Finds, however, that when the defenders' operations at Stoneywood do by themselves, or in conjunction with similar operations or other causes, affect the flow of the river between the point of abstraction and the point of return so as to impede the free passage of salmon between the said points, the defenders are limited both with respect to the amount of abstraction and the point of return to the usage existing prior to 1882, and are only entitled to innovate upon that usage when and so long as the river flows and continues to flow over Stoneywood Dyke, and thence downwards to the actual point of return, in such volume as to ensure the free passage of salmon between the point of abstraction and the point of return: Finds therefore that any interdict to be granted against the defenders must be qualified so as to operate to the above effect; but in respect it is undesirable to grant a merely general interdict, and that it is also desirable to ascertain and denote if possible by some visible measure what shall be held to be the minimum flow of the river between the said points sufficient for the free passage of salmon, before further answer remits to David Alan Stevenson, civil engineer, Edinburgh, and Walter E. Archer, chief inspector of fisheries, Board of Trade, London, to visit and examine the river Don between Stoneywood Dyke and the foot of the Waterton tail-race, and the defenders' works and appliances connected with the abstraction of water at Stoneywood and its return to the river at the said last-mentioned point, and to report (1) what depth or volume of water, measured by inches or otherwise, flowing over the Stoneywood Dyke and thence downwards over the Waterton Dyke to the foot of the said Waterton tail-race, would be in their opinion sufficient to secure the free passage of salmon in said part of the river; and (2)

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whether any, and if so what, arrangements are possible which would, automatically or otherwise, insure the observance by the defenders of the limitations attaching, as above expressed, to their right to abstract water from the river at Stoneywood Dyke: Recommends the said reporters to report quam primum, and continues the cause: Grants leave to reclaim.”

Note.—“With reference to the recent discussion on the pursuers' motion, and to the above interlocutor, the Lord Ordinary thinks it as well to make the following explanations—(1) In the first place the Lord Ordinary is fully alive to the perhaps elliptical language of the finding in his previous interlocutor, ‘that the pursuers are entitled to require that the defenders' abstraction of water from the said river shall—as regards both the point of abstraction and the quantity abstracted—be restored to the condition existing prior to 1882.’ But he thinks it is plain that this finding falls to be read with reference to the assumption underlying the whole previous findings, namely, that the defenders' operations are in this case being considered with reference simply to their effect on the passage of salmon between the point where the defenders abstract water from the river and the point at which they return the water abstracted. By the said previous findings the defenders' operations had been found to be illegal, simply as impeding the free passage of salmon, and their prescriptive rights had been defined only so as to fix the extent to which they had right to impede the free passage of salmon. If in any particular finding this limitation is not expressed, it is always, in the Lord Ordinary's opinion, quite plainly implied. (2) It may be true, as the defenders insist, that the present action applies only to the defenders' operations at Stoneywood, but it has to be noted that their operations at that place are impeached not only as affecting the river between Stoneywood and Waterton, but also as affecting the river between Waterton and the existing point of return at the foot of the Waterton tail-race. It is therefore, in the Lord Ordinary's opinion, both competent and necessary to make it clear that if the defenders shall in any way innovate upon their prescriptive rights they shall only do so when, with respect to the whole stretch of the river which their operations affect, those operations are, by reason of the state of the river, innocuous—that is to say, innocuous as regards the passage of salmon. (3) As regards the abstraction on Sunday, which is the subject of the eighth conclusion of the summons, the Lord Ordinary had understood that the declarator as proposed by the pursuers was not objected to by the defenders, but in case there has been any misapprehension on that point he desires to note that, as regards the abstraction of water on Sunday, the question is not, as he understands it, confined to de facto injury to the salmon fishings, but has reference also to the statutory enactments which forbid millowners (whatever may be their rights to withdraw water) to allow such water to run to waste on Sundays, or when their mills are not working.”

The report of Messrs D. A. Stevenson and Walter E. Archer, dated 4th July 1904, was, inter alia, as follows:—.“With regard to the question put to us under the first heading, we are of opinion that it would be impossible to denote any specific volume of water measured by inches flowing over Stoneywood Dyke which would at all times and under all conditions be sufficient for the free passage of salmon in the river. Such volume must necessarily be a varying quantity, depending on the volume abstracted for the use of the mill, and so passing out at the tail race. For it is the habit of salmon in ascending a river to follow the main stream, and if, therefore, a greater quantity of water were flowing from the tail race of the mill than down the channel of the river the free passage of salmon in the river would, in our opinion, be impeded. We consider, therefore, that the only safe rule which we can lay down for the guidance of the Court in this matter is that when free passage for salmon is desired there should always be at least as much water flowing over Stoneywood Dyke, and thence down wards over Waterton Dyke to the foot of the Waterton tail race as is abstracted for the use of the mill. We feel, however, in view of the limitations on the right of the defenders to abstract water, that it would be unsatisfactory to leave the matter there, and that we should not be complying with the term of our remit if we omitted to state what volume of water going over Stoneywood Dyke would ensure the free passage of fish in the river, so long as no more than 7000 cubic feet p. min. were being abstracted for the use of the mill.… It appears to us that, given as great a volume of water floating down the bed of the stream as through the mill-lade, the points which presented the greatest obstruction to ascending fish were the dykes at Stoneywood and Waterton, and that if proper passes for fish were constructed at these two dykes, the present passes being in our opinion useless, we should be able to fix a smaller quantity of water as the minimum flow, and that such smaller quantity of water would better carry out the intention of our remit than a larger volume if the dykes were to remain in their present condition. In answer therefore to the question put to us under the first heading, we are of opinion that in order to ensure the free passage of salmon the defenders should not abstract more than 7000 cubic feet of water, which we understand they are in any circumstances entitled to, until there is an average depth of 7 inches flowing over Stoneywood Dyke and thence to Waterton tail race, provided that effective fish-passes at Stoneywood and Waterton dykes respectively were constructed in accordance with the plans accompanying this report, and that whenever the volume of water coming down the river is more than sufficient to provide 7000 cubic feet to the mill-lade and keep an average depth of 7 inches in depth flowing over the crest of the Stoneywood Dyke, the

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mill shall not take more than half the whole quantity coming down the river. On the other hand, should it be decided for any reason not to construct new fish-passages on these dykes, then it will be necessary, in order to ensure the free passage of salmon, that the defenders shall not abstract more than 7000 cubic feet till there is an average depth of 9 inches flowing over the crest of Stoneywood Dyke, and thence to Waterton tail race, and whenever the volume of water coming down the river is more than sufficient to give 7000 cubic feet to the mill-lade, and 9 inches average depth over the crest of the Stoneywood Dyke, the mill shall not take more than half the whole quantity coming down the river.” …

On the 19th August 1904 the Lord Ordinary ( Kyllachy), giving effect to this report, pronounced an interlocutor in these terms—“The Lord Ordinary having considered the report by Messrs Stevenson and Archer and heard counsel, Approves of said report, and with reference thereto and to the record and proof, and to the Lord Ordinary's previous interlocutors, Finds and declares that the defenders are not entitled to abstract water at the Stoneywood Dyke in excess of 7000 cubic feet per minute, except when 9 inches of water are flowing over the crest of the Stoneywood Dyke, and thence downwards over the Waterton Dyke to the Green Burn: Finds and declares further, that even on said excepted occasions the defenders are not entitled to withdraw a larger quantity of water from the river at the said dyke than 31,850 cubic feet per minute, except when and so long as there shall beleft to flow over the said dyke and thence downwards over the Waterton Dyke to the Green Burn at least one-half of the whole water flowing down the river at the time: Finds and declares further, that even when the defenders' abstraction at Stoneywood Dyke does not exceed 7000 cubic feet per minute, they (the defenders) are, except as after mentioned, bound to return to the river the whole water there abstracted at a point not lower than the point where the existing tail race of the Stoneywood Upper Mill joins the river, providing, however, and declaring that they may continue as at present to carry the said water down to the foot of the tail race at Green Burn, while and so long as and upon the condition that they refrain from exercising their prescriptive rights at Waterton as previously defined, or curtail the exercise of the said rights to an extent at least equal to the extent of the water abstracted by them at Stoneywood, and not returned as aforesaid at the foot of the said Upper Mill tail race: Finds and declares further that it is a condition of the exercise by the defenders of the rights of abstraction and return above expressed that they (the defenders) shall permit the pursuers or the Don Fishery Board (1) to erect and maintain at the sight if necessary of the reporter Mr Stevenson, or failing him of a person to he named by the Judge Ordinary from time to time the gauges mentioned in the report; and (2) to mark their (the defenders') sluices at the sight of said reporter or other person in the manner mentioned in the report, and that they shall also give to the pursuers or the said reporter or other person all necessary facilities for preparing the table mentioned in said report. To said extent and no further declares and decerns in terms of the sixth conclusion of the summons: And with respect to the interdict therein concluded for, interdicts, prohibits, and discharges the defenders (1) from abstracting from the said river at Stoneywood more than 7000 cubic feet of water per minute, except on the occasions and under the conditions and restrictions above expressed; and (2) from carrying any water abstracted by them at Stoneywood to any point of return below the said point where the tail race of the Stoneywood Upper Mill joins the river, except in the circumstances and under the further condition and restriction above expressed: Quoad ultra finds it unnecessary to dispose of the conclusions of the summons otherwise than as already disposed of: Therefore dismisses the same, and decerns,” &c.

The defenders reclaimed, and argued—The remit by the Lord Ordinary was incompetent. It was not made for the purpose of defining an interdict. It was a remit of the whole question at issue between the parties, viz., what water was to be left in the river by the defenders after a proof had been taken and judgment pronounced. Such procedure was not competent— Provost, Magistrates, &c. of Kilmarnock v. Reid, January 22, 1897, 24 R. 388; Clark and Shotts Iron Co. v. Lindsay, Weekly Notes, 1888, p. 52. No interlocutor should therefore proceed upon it. But even if the remit were competent, the report upon it was incompetent, in as much as it brought in a new question into the case, whether more than half the flow of the river might be abstracted. That was a very substantial question, and should have been advanced at the proof. A new standard was set up, viz., damage, and that standard was not followed throughout, for it would have allowed the defenders' abstraction on Sundays, which had not been proved to do damage, and it would have allowed the drying up of the river between Stoneywood and Waterton whenever it was dried up below Waterton, for no further damage was done thereby. This question was also made to depend on the salmon ladders which were to be as required by the Fishery Board, and so beyond the defenders' control. Such a report could in no sense be said to be merely executorial, and the interlocutor so far as proceeding on it should be set aside. The regulation providing for one-half of the whole flow of the river being passed down the natural course whenever the amount prescribed was exceeded should therefore be disallowed.

Argued for the pursuers and respondents—The interlocutor as it stood would be accepted, but if it were to be altered, then

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the pursuers maintained that they were entitled, in terms of the interlocutor of 21st December 1901, to a restoration of matters to the position prior to 1882, and that the findings in that interlocutor were not to be read subject to the limitation now suggested by the Lord Ordinary. The defenders had never suggested such a limitation, and it was for them to have done so. But if the Lord Ordinary were to be held right in putting this construction on that interlocutor, the pursuers then maintained that he was also right in the subsequent procedure of the remit and its terms. Parties had never met on the question of what the remedial measures were to be, and a remit was the proper mode to settle that question. The position of the defenders was that they must either accept the position prior to 1882, or they must show that any change would not be to the injury of the pursuers— M'Intyre Brothers v. M'Gavin, June 16, 1893, 20 R. (H.L.) 49, 30 S.L.R. 941.

At advising—