Lieutenant-Colonel Hercules Scott of Brotherton, and James Scott, Writer to the Signet, Proprietor of the Mills of Morphy, situated on the river Northesk v. Thomas Gillies of Balmakenan, David Lyal of Galry, David Carnegie of Craigo, John Taylor of Kirkton Hill, and the Representatives of Patrick Cruikshank of Stracathro [1813] UKHL 5_Paton_750

UKHL

Lieutenant-Colonel Hercules Scott of Brotherton, and James Scott, Writer to the Signet, Proprietor of the Mills of Morphy, situated on the river Northesk v. Thomas Gillies of Balmakenan, David Lyal of Galry, David Carnegie of Craigo, John Taylor of Kirkton Hill, and the Representatives of Patrick Cruikshank of Stracathro

[1813] UKHL 5_Paton_750 · 1813-07-20

Lieutenant-Colonel Hercules Scott of Brotherton, and James Scott , Writer to the Signet, Proprietor of the Mills of Morphy, situated on the river Northesk, Appellants v. Thomas Gillies of Balmakenan, David Lyal of Galry, David Carnegie of Craigo, John Taylor of Kirkton Hill, and the Representatives of Patrick Cruikshank of Stracathro, Respondents

House of Lords, 20th July 1813 .

Subject_ Dam Dyke — Injury to Fishings. —

injurious to the salmon fishing of the superior heritors: Circumstances in which it was held, that this dyke must be rebuilt and restored to its original state, at the expense of the proprietors of these mills. Affirmed in the House of Lords.

The proprietors of certain mills had, in process of time, altered their check dyke so as to prove

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This is the sequel of the appeal reported at p. 337, vol. iv., in which the House of Lords pronounced a judgment, containing special findings in regard to the dam dyke complained of, as injurious to the respondents' fishings, and remitted back the cause to the Court of Session.

The respondents having presented a petition to the Court to apply the judgment of the House of Lords, this petition was remitted to the Lord Ordinary (Lord Woodhouselee). The Lord Ordinary pronounced an interlocutor, applying the judgment of the House of Lords. It also found, “And before answer, ordains the pursuers (respondents) to give in a condescendence of what they require the defenders (appellants) to do, in compliance with the above judgments, and of the grounds on which they insist for the defenders so doing the same, and that against next calling.”

Nov. 12,1803.

A condescendence having been given in, the Lord Ordinary pronounced the following interlocutor:—

the cruive dyke in the same situation as formerly, and according to its ancient construction, and exercise the cruive fishing under all legal limitations, it is incumbent on them to rebuild the check dyke, making its construction so close as to prevent percolation, and likewise to leave an opening in terms of and under the qualifications contained in the act 1696, of its allowing sufficient water to the defenders' mills; and having considered the plans and report of the surveyors in process, and particularly the plan exhibited by Captain George Taylor, and delineated on the engraved survey in process, signed by Colin Innes, before answer remits to to examine the present state of the check dyke and mill leads of Morphie and Kinnaber, and to report his opinion, whether the plan proposed by the said George Taylor is fitted to fulfil the purposes which he has stated in the conclusion of his signed additional report, and which appears to answer the ends pointed out in the judgment of the House of Lords, which the said Mr. is hereby directed to have under his view; or if Mr. shall be of opinion that the said plan proposed by Captain Taylor is not sufficient to answer the requsite ends, he is hereby authorized and required to make out a plan and report relative hereto, which shall, to the best of his judgment, fulfil the foresaid purposes, at the least possible expense, and this quam primum .”

“Having considered the condescendence and answers, and resumed consideration of the whole process, finds that the judgment of the House of Lords establishes three different propositions, 1st. That the pursuers are entitled to have as free access of salmon to their fisheries as can be had, consistently with the necessary supply of water from the river to the mills belonging to the defenders. 2d. That the present structure of the check dyke built by the defenders is such, that while there is no cruive dyke below it, as formerly, which created a restagnation, the salmon cannot easily pass beyond the said check dyke; and thus the pursuers have not as free access of salmon to their fisheries as they had formerly, while, at the same time, the mills belonging to the defenders had a sufficient supply of water. 3d. That unless the cruive dyke is replaced in its ancient form, and the former mode of fishing under the statutory regulations therewith restored, the structure of the check dyke must be so altered, and other operations so made, as that both the above objects, viz. the free access of salmon to the superior fishings, and the sufficient supply of water to the defenders' mills, may be obtained. The Lord Ordinary, in conformity with the import and meaning of the above judgment, finds, that unless the defenders shall rebuild

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Dec. 6, 1803.

The respondents represented against this interlocutor, praying for an alteration or explanation in so far as regards the rebuilding of the check dyke, in the event of the cruive dyke being replaced. The Lord Ordinary pronounced this interlocutor:—

incumbent, &c., and adheres to the said interlocutor quoad ultra .”

“Being satisfied that the alteration suggested by the respondents is necessary towards the more effectual carrying into execution the object of the interlocutor of the 12th November 1803; and to the complete fulfilment of the judgment of the House of Lords, which it was the purpose of the Lord Ordinary by that interlocutor to give effect to, in such a manner as to bar evasion or frustration of the ends thereby meant to be accomplished, therefore, alters the said interlocutor, in the first part of the said decerniture, in the following manner, viz. “Finds that, unless the defenders shall rebuild the cruive dyke and check dyke in the same situation as formerly, according to their ancient construction and dimensions, in such a manner as to occasion the same restagnation as formerly, and exercise the cruive fishings under all the legal limitations, it is

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Dec. 14, 1804.

At this stage Mr. Scott of Brotherton died, and the action was transferred against his heir, Lieut.-Col. Scott, who petitioned against the above interlocutor, but the Lord Ordinary adhered. On reclaiming petition to the Court, the Court pronounced this interlocutor:—

“The Lords appoint the petitioner within ten days to state in a minute, whether or not he intends to restore the cruive dyke below the check dam, as it stood before the year 1772; appoint this petition to be answered, the answers to be in the boxes before the 20th current.”

Mar. 5, 1807.

The minute ordered by the above interlocutor was given in and answered; whereupon the Court pronounced an interlocutor, which led to further discussion, and after other interlocutors the Court pronounced this interlocutor:—

“The Lords having resumed consideration of this cause, and advised the same, with the mutual memorials for the parties, and whole proceedings and productions, approve of the report made up and given in by Thomas Telford, engineer, of date 15th October 1805, and find that the dam dyke in question must be of new constructed, in conformity thereto, by and at the expense of the defender Lieutenant Colonel Hercules Scott, and be thereafter maintained and supported by him, and decern, reserving to him any claim competent against the other mill owners, but supersede extract till the second box day; and, with regard to the claim of damages at the pursuers' instance, remit the same to the Lord Ordinary to hear parties procurators thereon, and to proceed and determine therein as he shall see cause: Find that the memorial for the pursuers contains expressions highly injurious, derogatory to the established character of Mr. Charles Abercromby, engineer, respecting the report made and deposition emitted by him; and remit to the Lord Ordinary to cause the said injurious expressions to be expunged from the record.”

Jan. 26, 1808.

Another reclaiming petition was given in, and the Court further pronounced this interlocutor:—

through the dam dyke, and, without prejudice to insist and determine in the other points of the cause, allow this decreet of declarator to go out, and be extracted by the pursuers in the meantime, and that at the expense of the defender, and decern.”

“The Lords having resumed consideration of this petition, with the answers, they refuse the prayer thereof, and adhere to the interlocutor reclaimed against, with this explanation, that the dam dyke recommended by the report of Mr. Telford must be constructed and maintained by Colonel Hercules Scott, so long as he does not reconstruct and maintain the former cruive dam, in such manner as to prevent percolation

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Against these interlocutors the present appeal was brought.

Pleaded for the Appellants .—1. The change of circumstances which has laid the foundation of the present action, at the instance of the respondents, was not brought about by any act, deed, or accidental event, for the consequences of which the appellants, or their predecessors, were responsible to the respondents. It is indisputable, in point of fact, that the appellant, Mr. Scott, is the proprietor of ancient and valuable mills, which are supplied with water from the river Northesk; and that, for the purpose of securing this supply, a dyke or weir was erected by his predecessors, to which, by original grants, as well as by prescription, longissimi temporis , he has acquired an unchallenged right. Within the memory of man, this dyke has undergone no species of alteration; certainly no alteration which any person could have challenged as an innovation on the state of the servitude; and, in the former state of the river, from the earliest tradition down to the year 1773, this dyke was not obnoxious to legal challenge of any sort. At that period, an accidental change took place in the state of the river, in consequence of the cruive dyke being swept away by the floods. It is certain that there was then no addition made to the height, or change on the structure of the checkdyke, as it had been for ages before; but there was a change produced on the level of the river, and in its consequent relation to the height of the dyke. For this alteration, can it be alleged that the appellants were in any way responsible? It was, in effect, brought about vi majori , by a power beyond human control. Tracing the matter back to its remoter causes, it may be said to have been occasioned by the superior heritors themselves, who insisted that certain alterations should be made upon the construction of a cruive dyke situated below, which were completely incompatible with its stability. That the appellant's predecessors happened to be the proprietors of this cruive dyke, as well as of the check dyke, situated above, is a circumstance from which no legal inference of obligation or liability can be deduced. The cruive dyke might have been the separate property of another individual; and it would be a palpable fallacy to

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Pleaded for the Respondents .—It is proved by the reports of the engineers, and the evidence adduced in the Court below, that a check dyke may be so constructed that the water may flow over, instead of percolating the same; that it may be constructed at a moderate expense, and that it will be more permanent and equally serviceable with the present check dyke. 2d. It is proved by the same evidence, that a slap may be left in the dyke to be so constructed, in terms of the act 1696, which will give the salmon free access up the river without prejudice to the mills of Kinnaber or Morphie. 3d. The expense of erecting, and risk of maintaining this dyke, must be upon the appellants, because it is a quality inherent in their right, that it must be exercised so as not to prejudice the rights of the respondents more than is necessary to its fair enjoyment, as appears from the statute 1696, cap. 33, and the judgment of the House of Lords, already pronounced in this cause. By that same judgment it was established that the present dyke has, since the year 1772, been altered greatly to the prejudice of the fishings of the respondents; and also by the terms of the judgment, it is optional to the appellants either to reconstruct the cruive dyke, or to alter the form and structure of the present check dyke, so as not to injure the rights of the respondents.

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After hearing counsel,

Lord Chancellor Eldon said,

“My Lords,

This appeal arises out of a former judgment of your Lordships, pronounced in 1802.

The appellant, Colonel Scott, is the proprietor of certain salmon fishings in the river North Esk. He is also the proprietor of a mill situated on one side of this river; on the other side of the river is a mill belonging to a family of the name of Fullerton of Kinnaber; and to these mills there is a mutual dam dyke.

The appellant's family appear to have had various disputes with the superior heritors, on the subject of their respective rights of salmon fishing. In 1773, in consequence, as is stated, of openings made in the cruive dyke belonging to the appellant's family, in terms of a former judgment of your Lordships, that cruive dyke was destroyed. The consequence of this was, that the mill dam, by the water not being pent back as before, stood so high out of the water that the salmon could not pass up the river.

The upper heritors complained of this, but the Court of Session having decided against them, the matter was brought here by appeal. On the 23d of May 1802, your Lordships pronounced this judgment (Here his Lordship read the same at large). The matter having returned to the Court of Session, there has been a good deal of litigation in that Court; and at length the Lord Ordinary pronounced the first interlocutor appealed from, on 12th Nov. 1803. (Here his Lordship read the same.)

This interlocutor, as well as the judgment of the House of Lords, applied both to the Scotts and Fullertons as defenders. They were mutual proprietors of the check dyke; and Mr. Scott was the sole proprietor of the cruive dyke. Then another interlocutor of the 6th of December 1803, was pronounced, which also had respect to both.

On these, various other interlocutors were founded; and the great question between the parties at last came to be, Whether the things to be done would destroy the mill dam or not?

Mr. Fullerton, the original party, having died, his daughter, Mrs. Fullerton Carnegie, was made a party; but she also died before the action was ended, and it was not revived against her representatives.

It appeared that the defender, Mr. Scott, had originally undertaken to free Mr. Fullerton from all the costs of the cause, but he had not gone further. It was stated, as matter of objection to the proceedings in the Court below, that Mrs. Fullerton Carnegie's representatives ought to have been made parties, but the Court thought otherwise.

In a case of this kind, it does not appear that more could be done by the Court than was done in this case. They referred the matter to the consideration of persons of skill, and though there was a difference of opinion among the surveyors, they considered that the greatest weight was due to the opinion of Mr. Telford. In my own view

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I should therefore move an affirmance of the interlocutors, but for this one difficulty, that, when the ultimate judgment was pronounced, Mrs. Carnegie's heirs were not before the Court.

Mr. Scott is not only subjected by the judgment to all the expenses to be incurred, but he is directed to do certain acts upon the mill dam, which he could not be justified in doing, unless the Kinnaber family had been parties to the judgment. If, by these operations, the mills should be stopped, I conceive that, as matters stand, Mr. Scott might be liable in damages.

There is, I think, no other objection to the judgment but this. The Court has imposed upon Scott the burden of the expense of making the necessary alterations on the dam-dyke, reserving to him any claim competent against the other mill owners. I think the Court acted properly as to this, because the injury to be redressed arose from his not maintaining his cruive dyke. I therefore move judgment as below.”

(The judgment, after remitting to consider whether Mrs. Carnegie Fullerton's representatives ought to be made parties to the cause, proceeded thus):

“And, subject to such directions, it is ordered and adjudged that the interlocutors be, and the same are hereby affirmed. And it is further ordered that the cause be generally remitted back to the said Court of Session, to proceed accordingly.”

Counsel: For the Appellants. — Wm. Adam, Tho. Thomson. For the Respondents.— Sir Samuel Romilly, John Clerk.