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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Gavin and Others v. M'Intyre Brothers [1890] ScotLR 27_678 (30 May 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0678.html Cite as: [1890] SLR 27_678, [1890] ScotLR 27_678 |
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River — Medium Filum.
The proprietors of bleachfields bounded by the medium filum of the Dighty, a sluggish polluted stream, used from time immemorial for manufacturing purposes, sunk a tank into the bed of that stream at its junction with the Fithie, a quickly flowing stream of pure water, in order to obtain for their works some of the pure water of the Fithie. After being impounded and used in the works the water was returned to the Dighty undiminished in quantity. Before the water was abstracted in this way the riparian proprietors below the junction of the two rivers were able to use the water for agricultural and bleaching purposes, but the result of the operations was that the flow became more irregular, and the water was sometimes so polluted as to be unfit for these uses.
On the application of the lower heritors the Court ordained the proprietors of the bleachfields to remove the tank, pipes, &c., and to restore the alveus to its former condition, and interdicted them from entering on any similar operations in the future.
Observations by Lord Trayner as to the proper mode of ascertaining the medium filum of a river where it is joined by a tributary.
The Dighty water rises in the Lochs of Lundie, to the north-west of Dundee, and flows in an easterly direction till it falls into the sea a little west of Monifieth. The Fithie burn, rising in the Sidlaw Hills, pursues a southerly course and falls into the Dighty at an angle of about 60 degs., a few feet west of the Brechin or Pitkerro Road Bridge. Messrs M'Intyre Brothers were proprietors of lands to the south of the Dighty and to the west of the Brechin Road called the lands of Ballunie, and used by them as bleaching fields, the northern boundary of these lands being the medium filum of the Dighty. The Dighty above the junction had for more than 40 years prior to 1889 been used for manufacturing purposes, especially for bleaching, there being several works above that point, and had been much polluted. The Fithie, which is a much more rapidly flowing stream than the Dighty, and whose volume at the junction is equal to from one-third to one-half the volume of the Dighty, had remained comparatively pure and did much towards purifying the Dighty below that point. For some yards below the bridge the two
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streams can be distinguished by their different colours. In August 1888 Messrs M'Intyre Brothers placed a box or tank in the bed of the stream a few feet to the west of the bridge. This box was covered with an iron grating and was sunk 4 or 5 inches below the gravel which formed the bed of the stream. By means of it the combined water of the Fithie and Dighty in an almost pure condition was obtained by the Messrs M'Intyre Brothers for their works. The water was led by a trough from the box into a tank, and thence by a pipe running westwards or up stream for 1150 feet, where it was discharged into a sunk well from which it was pumped up into reservoirs for use in the works. The difficulty of the gradient, which was not steep, was thus overcome. After being used in the works the water was returned to the Dighty by outlets situated about two-thirds of a mile above the point from which it had been drawn undiminished in quantity but considerably polluted.
In the beginning of 1889 Robert M'Gavin of Ballumbie, whose lands of Baldovie were bounded on the south by the Dighty and on the east by the Fithie, and Douglas Drummond Dick of Pitkerro, and others, riparian proprietors on the Dighty below its junction with the Fithie, brought a note of suspension and interdict against the Messrs M'Intyre Brothers to have them interdicted and prohibited “(1) from altering or otherwise interfering in any way with the bed or alveus of the Dighty water and of the Fithie burn, or either of them, either above or below their junction: and (2) in particular from removing stones, shingle, or gravel from the bed or alveus of said stream or streams, and also from removing stones. shingle, or gravel from any one part of the bed or alveus of said stream or streams to any other part of said bed or alveus; and (3) from placing in or upon the bed or alveus of the said stream or streams any tank, box, pipe, drain, or other opus manufactum; or at least (4) from placing in or upon the bed or alveus of the said stream or streams any such tank, box, pipe, drain, or other opus manufactum except at such part or parts of said bed or alveus as shall be entirely within their own property, as bounded by their titles, or by the medium filum of the said Dighty water; and (5) from abstracting the water of said streams, or either of them; and (6) from detaining and arresting the water of said streams, or either of them, and preventing the same running uninterruptedly and continuously in its natural course through or past the complainers' lands; and (7) from using any conduit, aqueduct, or other opus manufactum, whereby the water of the said stream or streams may be made to regorge into tanks or reservoirs at the respondents' works at Ballunie bleachfield, and there be detained or arrested for use in their processes of bleaching, or otherwise, and may be prevented from continually running in the said bed or alveus, through or past the complainers' lands; and (8) from discharging any refuse from their bleach works, or other deleterious and noxious or impure stuff of any kind into said stream or streams, whereby the said stream or streams may be polluted or rendered unfit for agricultural and manufacturing uses and purposes, or its amenity diminished, or the property of the complainers in any way injured; and further, to ordain the respondents to remove all tanks, boxes, pipes, drains, or other opera manufacta, erected or placed by them in or upon the alveus or bed of said stream or streams, and to fill up all excavations made by them in the said alveus or bed, and to restore the said alveus or bed to the state in which it was prior to the operations of the respondents thereon.”
The complainers averred (Stat. 15) that the respondents, by the operations explained above, “have most injuriously affected the property of the complainers. They have caused erections to be made in alveo of the said Dighty water and Fithie burn, and have disturbed the alveus of the said streams ex adverso of the property of the said Robert M'Gavin and Douglas Drummond Dick, and have altered the course of the said streams. They have by their said operations encroached upon the property of the said Robert M'Gavin and Douglas Drummond Dick. They have, by abstracting and storing the water of the Fithie before it has joined the Dighty, interrupted the accustomed and continuous flow of said stream or streams. By returning to the Dighty said abstracted water, polluted by the refuse of their bleachwork, they have materially increased the pollution of the Dighty below its confluence with the Fithie to such an extent that whereas prior to the year 1887 the combined water of the Dighty and Fithie was, below the junction of the said streams, available for the secondary purposes of agriculture and manufactures as it passed through the complainers' lands, it is now rendered deleterious to animal life, and noxious and offensive to sight and smell, and unsuitable for manufacturing purposes. The amenity of the complainers' properties, and particularly the policies of Linlathen House, through which it passes within a short distance of the mansion-house, has been thereby injuriously affected, and the value of the complainers' properties has been thereby deteriorated.”
The respondents answered—“Denied. Explained that the operations complained of were conducted entirely to the south of the medium filum of the Dighty. They could not possibly alter the bed of the river or affect the flow of the water. The water drawn by the respondents was insignificant in amount, and was all returned to the river before it left the respondents' property. The said operations did not and could not produce any greater pollution in the water flowing past the complainers' properties or works than had previously existed.”
The complainers pleaded—“(1) The respondents not being entitled to erect or place any opus manufactum in or upon the alveus of the Dighty ex adverso of their
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lands, interdict should be pronounced as craved. (2) Separatim—The respondents not being entitled to erect or place any opus manufactum in or upon the alveus of the Dighty or Fithie beyond the boundary of their own property, whether that be an artificial line or the medium filum of the stream of the Dighty, or of the conjoined stream of the Dighty and Fithie, as it passes their property, interdict should be pronounced as craved. (3) The respondents not being entitled to abstract the water of the Fithie, or of the combined stream of the Dighty and Fithie, or to retain and store the same, and interfere with the accustomed and continuous flow of the said stream or streams, interdict should be pronounced as craved. (4) The respondents having, by their operations complained of, materially increased the pollution of the combined stream of the Dighty and Fithie, to the loss and injury of the complainers, interdict should be pronounced as craved.” The respondents pleaded—“(5) The respondents' operations in alveo having been confined to their own side of the medium filum, and having been of such a nature as could not by possibility affect either the bed of the river or the flow of the water, the complainers are not entitled to complain of the same. (6) The whole water drawn by the respondents being returned by them to the stream at a point higher up than where it is drawn, and before the river leaves the respondents' property, the respondents are entitled to continue the use of the water as presently possessed by them. (7) The respondents operations having no effect whatever in increasing the pollution of the water passing the complainers' properties or works, the Note of Suspension ought to be refused. (8) The complainers are not entitled to complain of the polluted state of the Dighty, in respect that it has been polluted by public works for more than forty years, and it is now polluted by complainers and others along its entire course from below the Lochs of Lundie to the sea.”
Upon 19th March 1889 a remit was made to Mr William Allan Carter, C.E., to examine the works complained of, to prepare plans of the locus, and to report, and upon 21st May 1889 the Lord Ordinary pronounced the following interlocutor:—“On caution, passes the note, and meantime interdicts, prohibits, and discharges the respondents, and all others acting with their authority, from using the conduits, aqueducts, or opera manufacta mentioned in Mr Carter's report, or any of them, for the purpose of withdrawing water from the stream or streams mentioned in the note of suspension, and conducting the same into the tanks or reservoirs at the respondents' works, or from erecting or using any similar conduit, aqueduct, or opus manufactum for the said purpose.
Upon 14th June 1889 the record in the note of suspension and interdict was closed and a proof allowed.
The import of the evidence as to the quantity of water withdrawn, the additional pollution, and the effect of the respondents' operations upon the flow and quality of the Dighty, sufficiently appears from the Lord Ordinary's note, and from the opinion of the Lord Justice-Clerk.
The evidence as to whether the box was an encroachment upon the lands of the complainers, Robert M'Gavin and Douglas Drummond Dick, or either of them, as being beyond the medium filum of the Dighty, was conflicting, the skilled witnesses differing as to the method to be employed in determining the line of the medium filum at that point.
For the complainers Mr George G. M'Laren, surveyor, Dundee, deponed—“In judging of the medium filum of the stream, I find that it passes through the existing box, in my opinion. In ascertaining the medium filum, I would take the average centre between the two banks for a considerable distance up-stream and downstream, drawing a line through those points until they joined. In the present case you have an artificial interference with the natural condition of the stream—in the shape of the pier of the bridge. … In taking the medium filum where there is such an obstruction as that, you may either eliminate the artificial obstruction and take what the course of the stream would have been but for it, or you may take it as it is there. I have shown the medium filum here on the assumption that the pier was not there, which in my opinion is the fair way to take it… . In order to ascertain the point where the media fila of the two streams join, assuming the pier of the bridge is to be entirely eliminated, I should think the medium filum of the Fithie would pass through and join the Dighty at a point to the eastward of the bridge altogether… . Again, supposing the bridge is there, I should take the medium filum of the Fithie through the north arch entirely, it is the natural flow of the Fithie. In the same way I adhere to the medium filum of the Dighty as I have shown it on the plan. They would not join till the two streams were quite united below the bridge, and then I would start a new medium filum for the combined streams.”
Mr James M'Laren, surveyor, Dundee, deponed—“In point of fact I ascertain the medium filum above and below, and unite them as if there had been no such thing as the pier of the bridge there. I would consider that to be the correct way of ascertaining the medium filum. That being so, the proper medium filum passes through the existing box… . The line representing the medium filum of the Fithie goes quite straight. If you straighten the medium filum of the Dighty it will meet that of the Fithie very near the centre of the box. I can conceive no reason for making the medium filum of the Dighty trend northwards except some idea of the cut-water of the bridge being somehow to be taken as the centre of the stream, which I think is erroneous, because practically the Dighty flows all through the one arch.”
Mr G. Miller Cunningham, C.E., deponed—“I understand the medium filum is to be determined by taking the average width of
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the waterway for some distance up and down the stream in its ordinary flow. In doing so I do not take artificial encroachments into consideration, such as watering-places for cattle, or jetties projecting out into the stream. In fact, it is just an average taken in sections of the stream, and the longer stretch you can get the better. I should not consider a bridge as interfering with the medium filum, but would take the flow of the water on the assumption that the bridge was not there. In my opinion the red line upon plan No. 67 correctly indicates the medium filum of the Dighty. It strikes through the existing box at A. Where there is a junction of two streams as here, each stream has a medium filum. (Q) How would you deal with the part of the water after you have passed the angle of land between the two streams?—(A) I would lay down a medium filum for the Fithie in the same way as that for the Dighty until it meets the medium filum of the Dighty. Until the two have met I consider there could not be a single medium filum for the stream. I think the only way when you have two streams joining is to take their media fila, and prolong them till the one meets the other.” For the respondents Mr W. Allan Carter, C.E., deponed—“I prepared a plan on which I laid down what in my opinion is the correct line of the medium filum. I show the box, marked A, with its connections, to the south of the medium filum. I arrived at the medium filum in this way—Going a certain distance up the Dighty westward, I divided what appeared to me to be the natural and normal bed of the stream, putting the medium filum in the centre of it. I took a central point a short distance before I came to the spit of land at the south-east corner of Mr M'Gavin's property, and took a central point there again, running right across to the southern bank, and I drew in my line between those two points. Then, going further east, having no bank to measure from opposite the mouth of the Fithie, the next fixed point I was able to obtain was the centre of the pier of the bridge—that is, the centre of the available waterway between the abutments of the bridge. I carried my line through the centre of that pier, dividing the bridge into two equal parts. I have carried my medium filum no further eastwards. It would have made no difference if the bridge had had a single span. It is a mere accident that my line happens to come to the point there.”
The Lord Ordinary ( Trayner) pronounced the following interlocutor:—“Declares the interdict formerly granted perpetual: Ordains the respondents forthwith to remove the tanks, boxes, pipes, drains, or other opera manufacta specified in the eighth head of the prayer of the note, and to restore the alveus of the stream to the condition in which it was prior to the respondents' operations, and that at the sight and to the satisfaction of Mr William Allan Carter, C.E., Edinburgh: Quoad ultra refuses the note, and decerns: Finds the complainer entitled to expenses, subject to modification, &c.
“ Opinion.—It is necessary in disposing of this case to distinguish between the complainers; their legal rights in the water in question are different, as also to some extent are their grounds of complaint.
The complainer Mr M'Gavin is the proprietor of land on the Dighty and Fithie waters ex adverso of the respondents' land. He complains of the respondents' operations, on the ground that they are (1) operations in alveo, and therefore illegal; but at all events (2) that they are operations on his side of the medium filum, and amount to a trespass on his property.
The first of these grounds appears to me to be too broadly stated. I cannot hold that every operation in alveo is illegal simply because it is an operation in alveo. The authority chiefly relied on by the complainers— Morris v. Bicket, 2 Macph. 1082, appd. H.L. 4 Macph. 44—does not support the complainers' contention as put. It was decided in that case that no riparian proprietor is entitled to make any erection in alveo which affects prejudicially the common interest in the flowing water, or from which such a result might reasonably be apprehended. But it was distinctly recognised both in the Court of Session and in the House of Lords that there might be operations in alveo to which a riparian proprietor could not successfully object. Thus the Lord Justice-Clerk said ( 2 Macph, 1089)—‘If it could be shown that the party complaining of a very slight encroachment upon the alveus was doing so for the mere purpose of annoyance — in emulationem vicini — not under any apprehension of danger to himself or of damage to his property, but merely for the purpose of asserting his legal right up to a definite line, … I am not prepared to say that I could hold such a work to be illegal;” and in this view Lord Neaves concurred. The Lord Chancellor observed ( 4 Macph. (H.L.) 49)—‘It seems to me to be clear that neither proprietor can have any right to abridge the width of the stream, or to interfere with its regular course, but anything done in alveo which produces no sensible effect upon the stream is allowable.’ These several opinions, which were quoted and approved of by the House of Lords in the case of Colquhoun's Trustees v. Orr Ewing & Company, 4 R. (H.L.) 116, are quite applicable to the present case so far as I am now dealing with it. The respondents' operations do no injury and threaten no injury to Mr M'Gavin's rights. The flow of the water ex adverso of his lands is not interfered with to his detriment, the alveus is to all practical effects the same as if the respondents' operations had never been performed, and nothing is taken from the river which (in a question with Mr M'Gavin) the respondents may not legally take.
The second question of complaint by Mr M'Gavin is of a different kind. He alleges that the respondents have in their operations crossed the medium filum which is his boundary, and trespassed upon his property. If this is established, then it does not matter whether the respondents' operations are innocuce utilitatis or not;
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After a good deal of hesitation, and contrary to my first impression, I have come to be of opinion that Mr Carter's line of the medium filum of the Dighty west of the bridge is the right one. I think he errs to some extent in carrying his line straight through the pier of the bridge instead of making it trend somewhat south from that point. But it is of no importance to this case what is the medium filum when the bridge is reached, the site of the respondents' operations being west of that point.
I am of opinion, therefore, that the complainer Mr M'Gavin has failed to establish either of the grounds on which he complains of the respondents' operations.
The other complainers are riparian proprietors on the Dighty below the respondents. So far as the proof goes, they are not all equally interested to complain of the respondents' proceedings. The tenants and proprietor of the Panmure Bleachfield seem to have most interest, and in fact their complaint really constitutes the case I have to try so far as the lower proprietors are concerned. To appreciate the complaint made by the lower proprietors it is necessary to advert to some facts not yet noticed. The Dighty, which forms the northern boundary of the respondents' land, has been used from time immemorial, and is now used, for the purposes of public works, chiefly bleachfields, of which there are several above the respondents'. The water of the Dighty consequently, as it reaches and passes the respondents' works, is very impure. On the north side of the Dighty, and opposite the eastern extremity of the respondents' land, the Fithie, a pure natural stream, joins the Dighty, the volume of the Fithie being equal to from one-third to one-half the volume of the Dighty. With the view of obtaining some of the pure water of the Fithie for the purposes of their works the respondents executed the works now complained of, and which are described in the complainers' fourteenth statement. By means of these operations the respondents carry back to their works (about quarter of a mile distant) the pure water of the Fithie, or perhaps it would be more accurate to say the combined water of the Dighty and the Fithie in an almost pure condition. This water is used by the respondents in the several processes of their bleachfield, and is ultimately returned to the Dighty at a point considerably higher than that at which it is abstracted from the stream. In these circumstances the complainers aver (1) that the respondents intercept the natural flow of the Fithie, and impound its waters in their storage ponds; (2) that but for the respondents' operations the whole water of the Fithie would in its natural flow, and at a point far below the respondents' works, mingle with the Dighty, and thus reduce by dilution and oxygenation its impurity; and (3) that these operations are injurious to the works at Panmurefield.
The respondents' answers to these complaints are (1) that they take the water in question at a point ex adverso of their lands, and restore it to the stream at a point also within their lands; (2) that the quantity so taken is not a material part of the volume of the Fithie; (3) that although the water is not restored in as pure a condition as that in which it is taken, yet, as restored, it does not add to the pollution of the Dighty; and (4) that its oxygenating influence as restored is not decreased.
On a careful consideration of the proof, I am satisfied that the respondents do by their operations interfere with and divert the natural flow of the Fithie water, and that what would in natural course pass down the stream is intercepted, and carried back to the respondents' works and there impounded, although the impounding is not maintained for any lengthened period. The second and third of the complainers' averments, as I have stated them above, are, I think, clearly established.
I am quite satisfied that the water abstracted by the respondents and carried back to their works is a large and material portion of the volume of the Fithie, and on this matter, both as to the quantity actually taken and the quantity which might be taken by means of additional pumping, I have had no difficulty in accepting the evidence of the complainers' witnesses in preference to that of the respondents' witnesses. Indeed, the respondents' principal witness on this subject—Mr Blackadder—appears to me to have gone quite wrong in his mode of estimating the flow and volume of the Fithie. Then as to the question of additional pollution, it may be—and appears to be—the case that the aggregate quantity or weight of chemicals now used by the respondents and discharged into the river does not exceed what they have been in the habit of so using and discharging for several years. But it is the fact nevertheless
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I cannot grant interdict in terms of the first and second heads of the prayer of the note, because that might be interdicting the respondents from performing acts competent to them either in respect of common law right or prescriptive right, such as the restoring of the alveus altered by an extraordinary flood to its previous condition, or by removing banks silted up which had the effect of making the water regorge on their wheel. The respondents do not maintain any right to put down a tank or drain to the north of the medium filum of the Dighty, and therefore interdict under the third head of the prayer is not called for. Interdict under the fifth head I cannot give as craved, because the respondents are entitled to take the water of the Dighty as it passes their works for the purposes thereof, although they are under obligation to restore it; and interdict under the eighth head is plainly what the complainers have no right to, looking to the admitted use of the Dighty for more than the prescriptive period. Quoad ultra I shall grant the prayer of the note.
The complainers will be found entitled to expenses, but subject to some modification on account of the expense incurred relative to the question with Mr M'Gavin on which the respondents have been found to be right.”
The respondents reclaimed, and argued—A man was entitled to do anything he liked with a stream passing his property provided he did not alter the flow or the quantity or the quality of the water to the detriment of the lower heritors. It was virtually admitted here that the same quantity of water was returned as was withdrawn, but it was said the flow was interfered with by the opera manufacta and by the system of impounding. The former were below the bed of the stream, and could have no effect; the latter merely regulated the return of the water. The cases of Morris v. Bicket, Colquhoun's Trustees, and the Duke of Roxburghe, relied on by the other side, were all cases of erections in the alveus, which was not the case here. The flow always had been intermittent, because the practice of impounding had been practised in the Dighty for more than the prescriptive period by all the bleachers. They had made no change. As to pollution, the Dighty was given up to bleaching, and was so thoroughly polluted that their small additional pollution could make no appreciable difference on its quality. Besides, they had not discharged more polluting matter since the box was put in than they had done previously. The line of the medium filum was correctly laid down by Mr Carter, and they had drawn Dighty water from their side of that line.
Argued for the complainers—The box was an illegal opus manufactum. It was also an encroachment, because it was beyond the medium filum as correctly laid down by their witnesses. The water was only nominally drawn from the Dighty; it was really drawn from the Fithie, which had hitherto been a pure stream. It was not therefore returned undeteriorated in quality. Further, the flow was affected both by the opera manufacta and by the system of impounding. Although the same quantity might be returned within twenty-four hours as was withdrawn during that time; the withdrawing, owing to the system of pumping, might be confined to less than half that time, the discharging spread over the whole time— Lord Blantyre v. Dunn, January 28, 1848, 10 D. 509; Morris v. Bicket, May 20, 1864, 2 Macph. 1082, and July 13, 1866, 4 Macph. (H. of L.) 44; Earl of Zetland v. Glover Incorporation of Perth, January 31, 1868, 6 Macph. 292; Laird v. Reid, March 14, 1877, 9 Macph. 699; Colquhoun's Trustees v. Orr Ewing & Company, January 26, 1877, 4 R. 344, and July 30, 1877, 4 R. (H. of L.) 116; Duke of Roxburghe v. Waldie's Trustees, February 18, 1879, 6 R. 663 (Lord Justice-Clerk's opinion); Bobert—son v. Foote & Company, July 16, 1879, 6 R. 1290 (Lord Justice-Clerk's opinion).
At advising—
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Now, upon a full consideration of the proof, I have come to the conclusion that the respondents were not entitled to place that box and apparatus in the stream and to intercept the clear water and to deal with it as they have done. In coming to that opinion I do not allow anything to turn upon the question of where the exact medium filum of the Dighty at the junction between it and the Fithie really is. I think that is a very delicate and a very difficult question. I think that though we had the evidence of fifty skilled engineers upon each side it might still be very difficult indeed to decide where that medium filum was. But the opinion which I have formed upon the case does not depend at all upon the question whether the box is placed on the side of the medium filum to which the respondents have right, or beyond that medium filium; because the view I take of the case is this—While it is quite true as matter of law that the respondents cannot be interfered with in carrying on their works, as long as nothing is done by them to the stream, except what has been borne without complaint and without any process of law by the lower proprietors in time past, it does not at all follow that that entitles them to start a new mode of dealing with the stream, nor does it follow that even if that mode does not add to the pollution of the river in quantity, therefore it is legal. It is quite clear that, in the first place, this new mode of dealing with the stream amounts to the setting up of a regular work—an opus manufactum—in the bed of the stream, by which the respondents succeed in abstracting the water from the stream at a considerable distance below their works, and therefore interfere with the flow of the stream at that point as it had not been interfered with before. I think it is also quite plain that to do that, so as to give themselves any beneficial result, it is absolutely necessary that they should more or less impound the water that they have so checked and abstracted. And it is the fact that they keep the impounded water for a certain time and discharge it into the stream when they please, but in a polluted state. Now they had no right to do that at the time at which they began these operations; and even if it were a fact that by doing it they did not at the time pollute the stream more than it had been polluted before, I should hold that they were not within any right they had in performing that operation.
But although that, in my judgment, would be quite sufficient for the disposal of the case, I think there is another point in the case which is conclusive against the respondents in the interdict. I think it is quite clear upon the proof, whether it be the fact or not that no more work is done at the respondent's bleaching works than used to be done, that the effect of their operations upon the bed of the stream is that at certain times the Dighty where it passes the respondents' works is rendered more filthy than it was before, and one can perfectly understand that that should be the case. There may not be more work done in the respondents' works than used to be done, and therefore it may be a reasonable assumption that the quantity of polluting matter which in a given time will pass down the stream may not be one whit greater than it used to be. But it may also be true, and in my opinion it is the effect of the evidence, that the change of mode which they have adopted in dealing with the water and abstracting the water which they require for their works has resulted in this, that the quantity of polluting matter which passes down that stream is at times much larger than it used to be, and at times renders the flow of water past the complainers' works so filthy that they are unable to use it for the purposes of their manufacture as in past times they had always been able to use it.
Therefore both upon the general question as to whether the works which the respondents executed here some time ago are works which they are legally entitled to execute, and upon the question of the actual effect of these works upon their neighbours further down the stream, I am of opinion that the Lord Ordinary's conclusion is right, and that his interlocutor ought to be adhered to.
The Court adhered.
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Counsel for the Complainers and Respondents— H. Johnston— Gillespie. Agents— Mackenzie & Kermack, W.S.
Counsel for the Respondents and Reclaimers— D.-F. Balfour, Q.C.— Guthrie. Agents— Henderson & Clark, W.S.
