Scottish Court of Session Decisions

On the 11th June 1875 an action was raised by Mrs Jean Milne Home and David Milne Home junior, the liferentrix and fiar respectively of the entailed lands and barony of Wedderburn, in the county of Berwick, against the Chief-Magistrate and Police Commissioners of the burgh of Dunse. The action concluded that the pursuers were entitled to have the water of a natural stream which passes near the town of Dunse, and subsequently flows ex adverso of certain parts of the lands of Wedderburn, transmitted in a state fit for the primary uses of running water, and that the defenders were not entitled to, and should be interdicted and prohibited from allowing any sewage or impure matter to flow into said stream, or from doing anything to render its water, in so far as it flowed ex adverso of the said

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lands, unfit for the use of man and beast, and for the primary uses already referred to.

The defenders pleaded—1st, That they did not pollute the water-course in question; and 2d, That the said water-course had been for the prescriptive period unfit for primary uses, and had been dedicated to the reception of the the defenders' sewage.

On the 17th June the following issue was adjusted between the parties:—“Whether between the 5th May 1872 and 5th May 1875 the Commissioners of Police for the burgh of Dunse did by discharging sewage or other impure matter, or permitting sewage or other impure matter to be discharged, from the sewers or drains under their charge, at or near the burgh of Dunse, pollute the water of the stream …. which flows through and ex adverso of certain parts of the lands and barony of Wedderburn, belonging to the pursuers—to the nuisance of the pursuers?”

The case was tried before the Lord President and a jury, and the following special verdict was returned:—“(3) That for more than forty years continuously, prior to the 5th May 1875, the water of the said stream was, as it flowed through the estate of Wedderburn, polluted by the sewage of the town of Dunse to such an extent as to render it unfit for some of its primary uses; and (4) That within the said period of forty years, and particularly within the period embraced in the issue, the water of the said stream has, from the same causes, become polluted to a materially greater extent than it was previously.”

It appeared that the primary uses for which the water still continued to be fit, and which had not for the prescriptive period been destroyed by the defenders' use of the stream, were the coarser kinds of primary uses, such as are enumerated in the interlocutor infra, viz., washing, bleaching, and watering cattle. The jury were held to have negatived the contention of the pursuers that the water had within that period been fit for cooking or drinking, or other primary purposes of the highest rank.

Following upon this verdict a remit was made to Mr Thomas Stevenson, C.E., Edinburgh, and at a later stage also to Professor Dewar of Cambridge, in the first place to visit the ground and to report what could be done to remove the nuisance, and subsequently to report whether the works erected upon their recommendations were effectual. Objections as to the unsatisfactory character of the works were at various times taken by the pursuers, and especially on the 3d February 1879, when it was maintained by them that owing to the flocculent nature of the organic matter held in suspension in the sewage a great part of it passed through the concrete tank and could not be retained without having recourse to chemical means for causing precipitation.

On the 7th June the defenders stated that the works erected on the recommendation of the reporters were completed, and that it was unnecessary to resort to chemical agency to assist the mechanical arrangements.

Messrs Stevenson and Dewar reported on 30th June 1880, inter alia—That chemical treatment of the sewage was not required, and would do no good, and suggested various ways in which the water might be purified; their methods would require to be properly attended to and skilfully worked.

These opinions were substantially adhered to in their various subsequent reports, and especially in that of 22d May 1882, the last, in which it was pointed out as essential that there should be a systematic inspection of the management of the works, “a distribution of the sewage, and a proper cropping and removal of the crop at regular intervals.” If these recommendations were given effect to, the reporters believed that the purification works at Dunse would be permanently efficient.

The defenders put in a minute undertaking to comply with the recommendations of the reporters.

The Court pronounced the following special interlocutor:—

“Find and declare that the pursuers have good and undoubted right to have the water of the stream, which after the confluence of its several sources or upper tributaries near to the town of Dunse flows eastwards through the lands and farm of Crumstane, and other lands belonging to William Hay, Esq., of Drummelzier, and thereafter enters and flows through and ex adverso of certain parts of the lands and barony of Wedderburn, lying in the county of Berwick, transmitted to and allowed to flow through and ex adverso of the said lands and barony of Wedderburn in a state fit for the primary uses and purposes of washing, bleaching, and watering of cattle; and that the defenders have no right to pollute the said water or to use it or the bed of the said stream, or of its sources or tributaries, in any way or for any purpose so as to render the said water unfit for any of the primary uses or purposes foresaid, when and so far as it flows through or ex adverso of the said lands or barony of Wedderburn: And in respect of the said report and minute for the defender, find it unnecessary to dispose further of the conclusions of the summons, and dismiss the same, and decern,” &c.