Scottish Court of Session Decisions

John Milton, dairyman, Norriston, near Elgin, raised an action against the Glen-Moray Glenlivet Distillery Company, Limited, in which he sought to have it declared “that the constructing by the defenders of the well or reservoir in or about the year 1897 or thereby, in or on the lands of Gallowcrook, belonging to the defenders, whereby a large portion of the water of the stream of water mown as the river Lossie, which flows past the said lands of Norriston, belonging to the pursuer, was diverted from its natural channel, and prevented from forming part of the waters of the said river Lossie, and thereby from flowing past the pursuer's said lands of Norriston, and also that the constructing by the defenders of the dams, embankments, or other obstructions, and the drains, water-courses, or water-pipes or other works, in or about the year 1897, in or on the said lands of Gallowcrook, belonging to the defenders, whereby a largo portion of the water of the said river Lossie was diverted from its natural channel, and was thereby conveyed away from the said lands of Norriston, belonging to the pursuer, to the Glen-Moray Glenlivet Distillery, belonging to the defenders, were illegal and unwarrantable and to the prejudice of the pursuer, and in violation of his right and interest in the said water.” He concluded further to have the defenders ordained to remove the well, water-pipes, &c., and to have the defenders interdicted from thenceforth interrupting or diverting the water of the Lossie towards or through their lands.

The defenders pleaded, inter alia—“(3) The defenders not having diverted or interfered with the natural flow of water in the said river, to the prejudice of the pursuer's rights therein, should be assoilzied.”

A proof was taken. The facts brought out were fully set forth in the Lord Ordinary's opinion.

On 5th May 1898 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor—“Finds that the pursuer has failed to prove that the defenders' operations have exceeded their legal rights, and are to his injury: Therefore dismisses the action, and decerns.”

Note.—“The defenders in this case are the owners of a distillery in the neighbourhood of Elgin. The distillery (which was formerly a brewery) is situated on a kind of peninsula, formed by a somewhat extensive bend of the river Lossie, and lying wholly or for the most part below the level of the river. Like the previous brewery, the distillery derives its supply of water from a well sunk near to the buildings, but the water of this well, although suitable for washing and cooling, and perhaps also for domestic use, is not, it appears, suitable for mashing and steeping. Accordingly, a new well has been lately sunk in close proximity to the river, at a point about 200 yards from the buildings and immediately opposite to certain fields belonging to the pursuer on the other side of the river bend. The question now is, whether the defender's have acted legally in sinking this second well, and in pumping its water to a reservoir within the distillery, whence it is taken to the malt-steeps and mash-tuns.

I do not know that there is much controversy, or at all events much room for controversy, as to the facts—that is to say, the facts which do not depend on inference and opinion. The position of the well, its distance from the river bank, its size, its depth and mode of construction, are all sufficiently indicated on the plan and section Nos. 17 and 18 of process. It may be well, however, to note certain points which, if not admitted, I hold to be proved.

“The well is 7 feet wide and 14 feet deep. It is 12 feet from the river, and its bottom is 9 feet below the level of the river bed. Between it and the river the ground is, for a depth of about 6 feet from the surface, hard and impervious to water, but lower down, and below the level of the river bed, it is composed of sand and gravel, which are of a porous character. This description, it may be taken, applies also to the ground on the other side of the well and round about it, and indeed more or less to the whole ground within the peninsula. The well is lined below with an iron cylinder, and above with brick and cement, and its

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sides, from the top downwards, are thus practically impervious to water. Its bottom, however, consists of a stratum of very fine sand, and through this sand the water rises by which it is fed. When full it contains about 2000 gallons, and the water then stands in it at a level about 6 inches below the level of the stream. The pump used by the defenders is said to be capable of pumping about 42 gallons per minute, but I incline to think that its capacity is rather more. The quantity at present pumped, and under present arrangements required, is about 24,000 gallons per week, which is brought up weekly in four instalments by pumping continued for about two hours on two days of each week. The flow into the well during the process of pumping is, speaking roundly, about 25 gallons per minute. While the well is filling, between the spells of pumping, the flow will be somewhat less. The flow of the Lossie has not, as it happens, been gauged in summer, but on 1st November of last year, after six weeks of dry weather, the flow close to the well was 10,270 gallons per minute, and on the 17th November, when the river was fairly full, it was 181,680 per minute. A good deal was said about a catch-water drain running parallel to the river, by which it was at one time intended to feed the well, but this drain, it is sufficiently proved, was closed up almost as soon as made; and, as I have already said, it may, I think, be taken that, as constructed, the well in question is fed entirely by water rising through the sand at its bottom.

“Now, prima facie, it appears to be a strong proposition that a landowner may not, by himself or others to whom he may grant right, sink and use for such purposes as he pleases a well on his own ground fed by percolating water making its way underground in no known or definite channel, There may be limitations upon the right I shall consider that presently—but undoubtedly the general rule is as expressed in the leading case of Chasemore v. Richards (1859), 7 H.L. Cases 349, the rubric of which is—‘The principles which regulate the rights of owners of land in respect of water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to underground water which merely percolates through the strata in no known channels.’ In that case a well, or rather reservoir, had been constructed for the supply of the township of Croydon. It was fed, as here, by percolating water, which, until intercepted, found its way into a stream which had for the prescriptive period turned a mill. The decision, which was by the House of Lords, following the opinion of seven Judges called in, was to the effect that prescription in this matter is inapplicable, that as matter of natural right percolating water is the property of the landowner in whose land it is found, and that his right to use it is not affected either by the fact that it helps to feed a running stream, or by the other fact that the benefit of wells or reservoirs which he (the landowner) constructs are communicated by him under arrangement to the whole inhabitants of a district.

The pursuer, however, seeks to distinguish the present case (which he says is special) on two grounds.

In the first place, he says that the defenders' well is so close to the river, and is otherwise so arranged, as to be really a mere device for drawing water from the river itself. He says, in short, that the 12 feet barrier between the well and the river is merely colourable, and that the case is really the same as if the well was a reservoir into which a pipe was led direct from the stream. And the case being thus assimilated to the withdrawal of water from a running stream, he goes on to contend that by the law of Scotland such withdrawal—at least for manufacturing purposes—is entirely illegal, or at all events is so when the water appropriated bears an appreciable proportion to the total flow of the stream.

“I am of opinion that this argument fails in its first premiss. It is not, I think, possible to represent this case as one of direct interference with the water of a running stream. The defenders' well is, in my opinion, a bona fide well; and although only 12 feet from the river, the water of the river, if it finds its way into it, does so, not by reason of the closeness of its proximity, but by reason mainly of the porous nature of the river bed and the surrounding ground. The 12 feet barrier is, as I have already said, composed, down to a' level below that of the river bed, of impervious material. The well also is so lined as to be substantially impervious from top to bottom; and altogether—although the percolation into it may possibly be more rapid than if it had been, say, 100 feet from the stream—I see no reason to doubt that, so far as quantity is concerned, the defenders might with equal advantage have placed it at that or even a greater distance. In short, I do not consider that the question in its legal aspect is different from what it would have been if the defenders had sunk their well, say, 100 feet from the river bank; and in that connection I may add (in case the fact may be thought of importance) that I do not hold it proved, but rather the contrary, that the ridge of sand and gravel which runs across the peninsula between the bend of the river and the distillery is, except towards the surface, less porous and pervious to water than the surrounding ground.

“The pursuer's second point, however, is this. He takes the case simply as one of a well sunk in the neighbourhood of a stream, and fed by percolating water from the surrounding ground; and so taking it, he admits that, according to the doctrine of the case of Chasemore, such well may lawfully intercept water which has hitherto passed into the stream and helped to feed

it. But he contends that if it be proved that the well is fed in whole or in part by water which has once flowed in the stream, the withdrawal of that water (even by percolation through the bed of the stream, and thence through the intervening strata) is outside the principle of the case of Chasemore, and falls under the general rules

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which regulate the rights of riparian owners in rivers and streams. In short, he contends that the defenders, in so far as their well is fed even indirectly from the Lossie, are as much disabled from using the water for manufacturing purposes as if they had pumped it direct from the river. He relies for this proposition upon an English case reported in 6 Chancery Appeals, p. 483, viz., the case of the Grand Junction Canal Company v. Shugar, in which case Lord Chancellor Hatherley, overruling a contrary decision by the Master of the Rolls, is said to have held that if drainage operations, however proper in themselves, affect the level of a neighbouring watercourse, and do so not by interception of water percolating into it, but by the withdrawal through the neighbouring strata of water percolating out of it, such drainage constitutes an illegal encroachment on the rights of those interested in the stream.

Now, I am not of course bound by the judgment in question, the more especially as it was pronounced by a single judge, reversing an opposite judgment by another judge of perhaps equal eminence. At the same time one must always be diffident in questioning any judgment by Lord Hatherley. It does, however, appear to me that if his Lordship's decision went the length suggested (as from the report I would infer it did), it is extremely difficult to support its doctrine, or to reconcile it with the principles laid down so authoritatively in the case of Chasemore v. Richards, &.

In the first place, the doctrine is not, in my judgment, a workable doctrine. Not to mention extreme cases (as for instance the artesian well mentioned by Lord Brougham in Chasemore's case, which drew its supplies from a distance of forty miles), there is hardly, I should think, a coal or iron pit in this country which does not to some extent drain from the neighbouring strata and pump to the surface water which has at some time flowed in some neighbouring stream. Indeed, I should think that the instances must be numerous in which mining operations quite sensibly affect the level of neighbouring watercourses. Similarly there are, I should think, few systems of agricultural drainage, especially in low ground and in gravelly soil, which do not, more or less, have a like result. In point of fact the doctrine in question, if sound, would, as far as I can see, render unlawful the drainage (according to the natural fall of the strata) of the whole or most of the ground within the peninsula with which we are here concerned. It would even, I apprehend, render unlawful the pumping of water from the original distillery well. The proof might of course be more difficult, but that would depend on circumstances; and a principle cannot, it appears to me, depend for its soundness on its application being limited by the mere difficulty of proof. In truth, I am not myself able to accept as substantial the distinction suggested between the interception of underground water percolating into a stream, and the abstraction from the strata of similar water which has passed through the stream. The effect on the stream is of course the same; and altogether it would seem to be a better and sounder principle that a river or other watercourse must take its chance, on the one hand, of what it may gain by percolation into it through its banks or bed, and, on the other hand, of what it may lose by percolation out of it in the same way. If it flows over and through rock or clay, it will of course gain less and .also lose less. If, on the other hand, it flows over and through sand and gravel, it will gain more and also lose more; and, putting aside extreme cases, justice will thus be done.

I prefer therefore, if I must choose between them, the view of the Master of the Rolls to that of Lord Hatherley, but I must say further, that even assuming Lord Hatherley's principle, I am not satisfied that the proof in the present case has been brought up to the point required for its application.

In the first place, looking to the fact that the water which passes into the defenders' well does so at a level of 9 feet below the river bed, and to the further fact that, so far as appears, the whole ground on both sides of the Lossie is of the same porous character, it seems to me impossible to affirm with certainty that the water in question ever formed part of the flowing stream. There is here, it has to be noted, no evidence—at all events no reliable evidence—of any difference of level induced in the stream itself; and although no one can speak with confidence as to the source or course of water percolating underground, it appears to be as likely as not that, so far as water percolates into this well from the side next the Lossie, it percolates (perhaps from some distance) at a level well under the river bed.

In the next place, there is another element of uncertainty. The fall of the ground within the peninsula (so far as there is a fall) appears to be downwards from the river bend towards the distillery and the lower reaches of the river. Assuming therefore that water does percolate from the Lossie into the well, it is quite possibly, and indeed not improbably, water which but for the well would have percolated across the peninsula and found its way into the the river below the pursuer's ground. In this view the well might be described as in a sense fed from the Lossie, but it would be so by water which had already left for good the part of the Lossie in which the pursuer is interested.

Lastly, what I have just said suggests a further difficulty. In the case of The Grand Junction Canal Co. v. Shugar there had been a material and indeed serious diminution of the flow of the stream which was there in question—a diminution which involved a direct pecuniary loss to the Canal Company. To bring himself therefore within the decision in that case the pursuer would, it would seem, require to show that a similar effect has been or is likely to be produced on the flow of the Lossie. Now, on the evidence I cannot

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hold that that is proved. Looking to the result of the guages (which, whether or not conclusive as to the flow of the river in the driest weather, are the best evidence which we have), it is not, I think, possible to say that an abstraction from the river of 24,000 gallons per week materially affects its flow, or causes appreciable prejudice to the pursuer. It is said, no doubt, that the defenders will, when they make the whole of their own malt, require for steeping and mashing at least 40,000 gallons per week. That may perhaps be so, but I cannot affirm that even that quantity, if distributed over the week, would necessarily constitute a material abstraction. And in any case it seems to me that if the distillery is enlarged and its output greatly increased, it will be time enough to deal with that state of matters when it exists. All I at present observe is, that in so far as the pursuer relies on the case of The Grand Junction Canal Co. v. Shugar, he has not, in my opinion, shown that the facts of the two cases are similar.

“On the whole, therefore, I am of opinion that the operations of the defenders, so far as they have yet gone, are within their rights. I think that the case is within the principle of the case of Chasemore, and that it is so, even on the assumption that the whole or a material part of the water which feeds this well comes by percolation from the Lossie. I do not, however, hold it proved that under present conditions such is the fact.

Taking this view of the case I do not think it necessary to decide, but reserve my opinion on several points of interest which were the subject of argument.

I do not, for example, decide whether it would be lawful for the defenders to take direct (say by a pipe or conduit) from the Lossie water to be used for manufacturing purposes. It is said to be the law of Scotland that no water can be taken from a running stream except for primary purposes. It is said, on the other hand, that the law of Scotland, while not perhaps going so far as the law of America, permits, like the law of England, abstraction for manufacturing uses to a reasonable extent, the question of reasonableness being one of degree, and the test being whether the domestic or other primary uses are materially abridged. I reserve my opinion on that question until it arises, as is some day must.

Neither do I decide that the principle of the case of Chasemore is subject to no limitations. Extreme cases may be figured, which must be dealt with as they arise. The defenders will be well advised if they are careful to avoid such questions, and to confine their operations substantially within their present limits. As yet it seems enough that no extreme case is, as I think, presented.

Finally, I do not decide anything as to the effect of the defenders' offer to pump back into the Lossie from their distillery well a quantity of water fitted for primary uses equal to that which they are alleged to abstract. All I need say is that I am not satisfied that that question is, irrespective of circumstances, foreclosed by the authorities.”

The pursuer reclaimed, and argued—It was proved that the water in the well was the water of the Lossie. If that was proved, the Lord Ordinary's judgment was wrong. The Lord Ordinary based his judgment on the case of Chasemore v. Richards, 1859, 7 H.L. Cas. 349. But here the pursuer did not dispute the general legal proposition laid down in that case that a proprietor was entitled by sinking a well to stop water flowing in no defined channel before it reaches a river. But that was not the case here. The present case was governed by the decision in The Grand Junction Canal Co. v. Shugar, 1871, L.R., 6 Ch. App. 483, where it was held that operations which drew off water flowing in a definite surface channel were illegal. The case of Dickinson v. Grand Junction Canal Co., 1852, 7 Ex. 282, also supported this view. This case, as far as it dealt with water before it reached a river, was overruled by Chasemore, but as regards water which had formed part of the stream the case was still a good authority. Where water was drawn off from a stream, not for primary purposes, but to supply a manufactory or a distillery, the operations were illegal, unless the consents of the lower heritors on the stream were obtained. Such operations were calculated to form a claim which might deepen into an adverse right. They constituted an infringement of the pursuers' right to have the river uninterrupted in flow and undiminished in quantity— Ogilvie v. Kincaid, Nov. 24,1791, M. 12,824, Hume's Cases, 508; Stirling v. Haldane, Nov. 26, 1829, 8 S. 131; Morris v. Becket, May 20, 1801, 2 Macph., opinion of Lord Neaves 1092; Marquis of Breadal Itane v. West Highland Railway Company, January 25, 1895, 22 R. 307, opinion of Lord President Robertson 312; Commissioners of Peterhead v. Forbes, July 4, 1875, 22 R. 852; Young & Co. v. Bankier Distillery Co., July 27, 1893, 20 R. (H.L), opinion of Lord Macnaghten, 78. The quantum of injury did not matter. The pursuer was not under the necessity of proving that he suffered material injury by reason of the defenders' operations— Lord Melville v. Dennistoun, May 21, 1842, 4 I). 1231, opinion of Lord Justice-Clerk Boyle, 1240; Stevenson v. Hogganfield Bleaching Company, Nov. 18, 1892, 30 S.L.R. 86; Medway Co. v. Earl of Romney, 18(51, 9 C.B. (N.S.)595; Wilts and Berks Canal Navigation Co. v. Swindon Waterworks Company, 1874, L.R., 9 Ch. 451. Even if it was held that material injury to the pursuer must be proved in judging of the prejudicial effect, the capacity of the pipe must be taken into account, and its capacity was such as to enable the defender at his pleasure to materially diminish the flow of the river.

Argued for defender—The pursuer had failed to show that the water in the well was Lossie water. Even if it had been shown to come from the Lossie, it was percolating under the ground when it was abstracted, and the case of Chasemore had

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decided that a man was entitled to abstract water percolating through his property. This point was also settled in Acton v. Blundell, 1843, 12 M. & W. 324; and the Mayor of Bradford v. Pickles [1895], App. Cas. 587. Even if the cases of the Grand Junction Canal Co. and Dickinson were held to decide that water which had flowed in a defined surface channel could not he abstracted by the operations of one to the prejudice of another, these cases did not apply, as no prejudice of any kind to the pursuer had been proved. There had been no material abstraction of water from the river. It was not relevant to say that it was possible for the defender to abstract so much water by means of his pipe; the Court must deal with facts and not with possibilities.

At advising—