Scottish Court of Session Decisions

At Whitsunday 1861 Samuel Wallace became tenant of the farm of Nether Minnybuie and others under a lease for nineteen years from that term. This farm was bounded on the southeast and partly on the south by the lands of Drumwhirn, the property of James Murdoch. On the southern boundary the lands of Drumwhirn slope towards the lands of Samuel Wallace, so that the surface and drainage water from them and from a portion of the farm of Nether Minnybuie, after intersecting a portion of Nether Minnybuie, flow on to a field of meadow and arable land on said farm. The water from Drumwhirn and from a portion of Nether Minnybuie found its way

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from the point at which it entered the said meadow land till it reached the lands of Drumwhirn by a “natural sheugh,” very crooked and narrow, which had little or no channel, and was unfit to contain or carry off the water which flowed into it in times of flood or during a wet season. It consequently overflowed and flooded several acres of valuable meadow land, and rendered the cultivation and profitable use of a large portion of the field impossible. After entering the lands of Drumwhirn it maintained the same character and pursued a similar zig-zag course.

Immediately on entering on his farm Samuel Wallace began to drain a portion of it which sloped towards the field through which the “sheugh” or watercourse ran, and the field itself. In carrying out these operations he found it necessary to form a channel of sufficient size to contain the whole surface and drainage water from that portion of the lands of Drumwhirn which sloped towards Nether Minnybuie, and from a considerable portion of Nether Minnybuie itself. For this purpose he cut a straight channel of an average width of 10 feet, which was carried into the old watercourse on the Minnybuie side a few yards from the point where it entered the lands of Drumwhirn. Here he erected an embankment to prevent the stream from overflowing into his own lower meadow, and to divert it at a slight angle into its old channel on the Drumwhirn side. Eighteen years thereafter the proprietor of Drumwhirn raised this action against Wallace concluding for interdict against interference with the original channel of the burn, for a decree ordaining the defendant to fill up the new channel, remove his embankment, and clear out the old channel, and for damages to the amount of £137 which he averred had been caused by the overflow of water and sand upon the said lands by and in consequence of the said improper and illegal operations of the defender.

The pursuer averred that this new channel, as also the embankment, caused to be carried down and deposited on his lands great quantities of earth, sand, and gravel, in consequence of which two acres or more of good meadow land had been rendered of no value whatever.

He pleaded—“(1) The defender had no right or title to divert or alter the original channel of the said burn or watercourse, or to make an embankment at the place where it enters the pursuer's said lands, so as to flood and spoil his land, or to fill up the said original channel, and interdict as craved should be granted, with expenses. (2) The defender ought to be ordained to restore the channel of the burn or watercourse to what it was before his said improper and illegal operations, and to remove the said embankment, and to clean out the said original channel, and failing his doing so the same should be done at his expense. (3) The defender is liable to the pursuer in damages and loss for his improper and illegal operations, and decree therefor should be granted, with expenses.”

The defender, on the other hand, averred that the pursuer was well aware of the defender's operations, and took no steps to prevent them being carried out. Even in 1862 he had been in communication with the pursuer on the subject, and offered at his own expense to carry a new and deeper channel through the lands of Drumwhirn to prevent any possibility of injury resulting to said lands or to the pursuer. This offer the pursuer had declined. The pursuer had made no provision on his own side for carrying off the water, and the defender's operations had had the effect of improving his farm.

He pleaded—“(3) The pursuer is barred by acquiescence and mora from insisting in the present action. (4) Interdict ought to be refused, in respect that the operations complained of having been completed and in use for seventeen years, an action of interdict is inappropriate and incompetent. (5) The whole prayer of the petition ought to be refused, with expenses, in respect—1st, that the operations complained of have been carried out on lands not belonging to the pursuer; 2d, that the said operations have been carried out by the defender in the legitimate exercise of his own and his landlord's rights, for the agricultural improvement of his farm, and not in æmulalionem vicini; 3d, that the natural outfall of the water on to the pursuer's lands has not been altered, and the defender is entitled to send down to the lands of the pursuer, as inferior proprietor, all natural surface water set free in the course of legitimate agricultural improvements.”

A proof was allowed, the import of which will sufficiently appear in the Sheriff-Substitute's interlocutor and the Judges’ opinions.

The Sheriff-Substitute ( Nicolson) found “That the Minnybuie burn, which flows partly through the defender's and partly through the pursuer's lands, had frequently done damage by overflooding on both sides for want of a sufficient channel and outfall: … . . That the defender altered the course of the burn with-in his own lands by cutting a new and straight channel for it, of sufficient breadth and depth, for about 300 yards, so that instead of winding tortuously in a narrow sheugh through his meadow as it had formerly done, it flowed straight on his own side of the march dyke to that point where it entered the pursuer's land: That at that point the defender erected an embankment to prevent the stream from over-flowing into his own lower meadow, and diverge it at a slight angle into its old channel on the pursuer's side: That the pursuer did nothing to improve the channel of the burn from that point to the bridge; that he made no reply to an offer by the defender to do it for him; and that to a letter on the subject from Mr George Dickson, dated 30th July 1862, he replied that he had had the damage done to his land by the defender valued, and had put the matter into the hands of his man of business: That no proceedings were taken by or for the pursuer to vindicate his claim, and that no further communication on the subject was made by him to the defender till 11th September 1877: In law, that the pursuer is barred by personal exceptions and mora from insisting in his present claim: Sustains the defender's 3d, 4th, 5th, 6th, 7th, and 8th pleas, and assoilzies him from the conclusions of the action.”

The Sheriff-Principal ( Macpherson) having recalled this interlocutor, the defender reclaimed, and argued—(1) The doctrine of Erskine (ii. 9, 2) as to the burdens imposed on the owners of

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inferior tenements was not to be overstretched to their prejudice. This was recognised in the case of Campbell v. Bryson, 16th Dec. 1864, 3 Macph. 254, the test in that case being held to be the necessity for the inferior proprietor proving that the superior proprietor's operations had been conducted in disregard of his convenience or interest. In the present case the pursuer could not show this, and moreover he had, in point of fact, reaped good and not bad results from the defender's operations, which formed a proper and reasonable agricultural improvement on his own lands. (2) The pursuer was barred by mora. During the twenty years which had elapsed, some of the defender's most important witnesses had died.

The pursuer in reply founded on the case of Jackson & Ors. v. Marshall, 4th July 1872, 10 Macph. 913.