Duke of Buccleuch, &c. v Cowan, &c. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1866 |
| Date | 23 February 1866 |
| Docket Number | No. 95 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. R.
Process—Conjunction—Statute 48 Geo. III. c. 151, sect. 9.—
Nuisance—River—Issues.—
Acquiescence.—
Process—Proof—Diligence.—
Appeal to the House of Lords.—
SEEante, vol. ii. p. 653.
In 1841 an action of declarator and interdict was raised at the instance of the Duke of Buccleuch, Robert Viscount Melville, Sir Francis Walker Drummond,∗ proprietors respectively of the lands of Dalkeith, Melville,
and Hawthornden (and of two other pursuers who subsequently with-drew from the action), for the purpose of preventing the pollution of the river North Esk, which flows through the lands of Hawthornden, Melville, and Dalkeith, by the paper-mills erected on its banks. The action was directed against Alexander Cowan and Sons, paper-makers at Bank Mill, Valleyfield Mill, and Low Mill; James Brown, paper-maker at Esk Mill; William Cadell and Company, paper-makers at Auchendinny Mill; William Somerville and Son, paper-makers at Dalmore Mill (the above mills being on the North Esk, above the properties of all the pursuers); Cameron and Company, paper-makers at Springfield Mill; Alexander Annandale and Son, paper-makers at Polton Mill; and William Brooks, paper-maker at St Leonard's Mill (the three last mills being situated on the river above the properties of the Duke of Buccleuch and Lord Melville, but below those of the other pursuers),—alleging ‘that not only have the pursuers been deprived of the benefit which they formerly enjoyed in the use of the said water, and of the amenity and beauty which it added to their properties, but it has been converted into a nuisance of an intolerable description by certain proprietors of paper-mills, or their tenants, who carry on their works on the banks of the stream, and who pollute the water by discharging into it the dirty and noxious refuse of the materials employed at their works,’ and concluding for declarator ‘that the pursuers have good and undoubted right to have the water of the North Esk, so far as it flows through or by their properties, transmitted in a state fit for the use and enjoyment of man and beast, and that the said defenders have no right to pollute or adulterate the said water, nor to use it or the channel of the stream in any way, or for any purpose, such as to render the said water noxious or unwholesome, or unfit for all its natural primary purposes to the pursuers, or in any way to destroy the amenity of the said stream;’ and that the defenders should he interdicted ‘from discharging into the said water of Esk, from their respective paper-works, any impure stuff or matter of any kind, whereby the said water in its progress through or along the property of the pursuers, or any of them, may be polluted or rendered unfit for domestic use, or for the use of cattle, or its amenity in any way diminished, or the rights of the pursuers therein in any way injured or affected.’ There was also an alternative conclusion, that, in the event of the defenders being found entitled to continue the use of the water for their works, they were bound to make use of it in the manner least injurious to the pursuers, and to use all necessary and proper precautions to restore the water to the stream, after having been used, in as pure a state as possible.The action having fallen asleep, was wakened in 1863, and insisted in against Messrs Cowan and Company of Valleyfield Mills, Somerville and Son of Dalmore Mill, and Annadale and Son of Polton Mill, but not against the other defenders, as being no longer proprietors of their respective mills. Amended defences were lodged, in which it was stated that these three firms had been dissolved during the dependence of the action, and consequently were no longer proprietors of the mills.
In May 1864 two new actions were raised, one at the instance of the Duke of Buccleuch, Lord Melville, and Sir James Williams Drummond, against Alexander Cowan and Sons (the new firm), paper-makers at Bank Mill, Valleyfield Mill, and Low Mill, James Brown and Company at Esk Mill, and William Somerville and Son at Dalmore Mill; and the other at the instance of the Duke of Buccleuch and Lord Melville against Alexander Annandale and Son, paper-makers at Polton Mill, A. F. Somerville at Kevock Mill, and William Tod and...
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