J. & M. White v White & Sons
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1906 |
| Docket Number | No. 173. |
| Date | 20 July 1906 |
| Court | Court of Session |
Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Moncreiff.
RiverMill DamRight to abstract water.
By Crown charter, dated in 1738, on the narrative that past human memory the Magistrates of Glasgow had possessed the Mill of Partick, and certain ground, being parts of the barony of Glasgow, as kindly tenants and rentallers, there was disponed to the Magistrates and their successors in office, heritably and irredeemably, the Mill of Partick, on the Water of Kelvin, with thirlage, multures, and services of the Mill cum stagnis lie Damms inlairs et aqueductis aliisque integris privilegiis et pertinentiis ejusdem. The Mill was on the south side of the Kelvin at Partick, above a weir, partly natural and partly artificial,
which lay across the river. The portion of the river immediately above the weir was generally spoken of as the Partick Mill Dam.
In 1903 A. & Co. (the singular successors of the Magistrates under the Crown charter), who, or whose immediate authors, had for the prescriptive period drawn 1200 cubic feet of water per minute from the Dam for the use of the Mill, brought an action against the proprietors of another Mill which also drew water from the Dam, concluding for declarator that the pursuers were entitled to draw 6000 cubic feet of water per minute from the Dam for the use of the Mill, and that the defenders were not entitled to draw water from the Dam except when the Dam was full and the water therein either running over or standing level with the dam-head, and for interdict.
The pursuers pleaded that their right being a right of property in the Dam and water therein they were entitled to increase their use thereof as occasion required.
The defenders pleaded that the pursuers, not being entitled to any preferable right to the use of the water to a greater extent than was in accordance with prescriptive usage, were not entitled to decree.
Held (rev. judgment of Lord Kincairney, diss. Lord Young) that the pursuers were entitled to decree of declarator and interdict as concluded for.
This was an action of declarator relative to the rights of the pursuers and of the defenders in the part of the River Kelvin, near Glasgow, known as Partick Mill Dam. The pursuers, Messrs J. & M. White, grain millers, were the owners of the Old Mill of Partick, otherwise the Bishop Mill, and the defenders, Messrs John White & Sons, grain millers, were the owners of the Scotstoun Mill. These mills were on opposite sides of the Partick Mill Dam, which was of very ancient date. It was formed by a weir, partly natural and partly artificial, across the Kelvin, which at this point flowed from east to west. The mills were nearly ex adverso of each other, the Bishop Mill being on the south side of the dam, and the Scotstoun Mill on the north side, and each mill drew water for driving its wheels by sluices from the dam. Originally there was another set of defenders, the owners of the Slit Mill, another mill on the Kelvin, but the Slit Mill had been closed for many years, and its owners retired from the litigation under an arrangement with the pursuers.
In 1900 the pursuers erected a new turbine wheel for their mill, and they in consequence drew off from the dam a quantity of water largely in excess of the quantity they had previously been in use to take, and on the defenders objecting, the pursuers brought the present action.
The summons, which was signeted on 5th June 1903, concluded for declarator that the pursuers, as proprietors of the Old Mill of Partick, now more commonly known as the Bishop Mill, are entitled to the first water of the River Kelvin for the use of their said mill, as the same now exists as regards its capacity to draw waterthat is to say, to the extent 0f 6000 cubic feet per minute (without prejudice to the rights and pleas of parties in the event of any future extension of said mill),* and that in preference to the Scotstoun Mill belonging to the defenders, the said John White & Sons, and that the defenders, the said John White & Sons, are not entitled to withdraw any water from the dam of the River Kelvin immediately above pursuers' and said defenders' said mills, and which dam is generally known as the Mill of Partick Dam, or to allow any water to pass therefrom through their sluice at any time save and except only when the said dam is
full, and the water therein either standing level with the dam-head or running over, and then only to the extent of 2077 cubic feet per minute, and for decree interdicting the defenders, John White & Sons, from withdrawing any water from said dam, or allowing any water to pass therefrom through their said sluice at any time save and except only when the said dam is full, and the water therein either standing level with the dam-head or running over, and from at any time withdrawing water from the said dam to a greater extent than 2077 cubic feet per minute.
The following narrative is taken from the opinion of the Lord Ordinary:
The Bishop Mill (the pursuers') is of very ancient date. The pursuers have produced a charter by King David I., which is said to refer to it. I understand that a large part of Glasgow is within its thirl. The Magistrates of Glasgow possessed it for a long time as kindly tenants, and it was not until 1738 that they obtained a Crown charter.* That charter proceeds on the narrative that past human memory the magistrates had possessed the mill-house and certain ground, being parts of the barony of Glasgow, as kindly tenants and rentallers; and, on the further grounds stated, the charter disponed to the magistrates and their successors in office, heritably and irredeemably, the Mill of Partick on the water of Kelvin, with thirlage and multures and the services at the mill, all in the ordinary terms, cum stagnis lie Damms inlairs et aquductis aliisque integris privilegiis et pertinentiis ejusdem. There follows a precept of sasine in similar terms.
Prior to that date it does not clearly appear that anyone except the magistrates made use of the dam. But about that time a company called the Smithfield Company built what is called a Slit Mill, and they applied to the magistrates for leave to carry an aqueduct from the Partick Mill Dam to a dam to be erected on their own ground for their Slit Mill. This petition was granted by the magistrates, and the aqueduct and dam were constructed, but the minute bears that the operation was to be conducted in such manner that the said Mill of Partick shall receive no detriment or prejudice, and shall be kept in the same order and condition as it is now; that is, that the magistrates' mill should not suffer prejudice. This minute bears date 30th May 1738, before the Crown charter; but it was confirmed by another minute 3d January 1740.
It is to be observed that the owners of the Scotstoun Mills are not mentioned in these proceedings, and do not seem to have been consulted, and it does not clearly appear whether at that precise time the Scotstoun millers drew water from the dam.
A deed has been produced, of great importance in this case, which
was granted in 1780. It is by the Smithfield Company, and it bears to sell and dispone to one John Craig Scotstoun Mill with certain other subjects mentioned. How the Slit Mill Company acquired the Scotstoun Mill does not appear. But it appears that at first the Scotstoun Mill was a waulk mill or fuller's mill, for which, it was said, a mill dam was not essential. But that does not signify much, because this deed bears that it was now (that is in 1780) made use of as a corn mill.
This disposition by the Smithfield Company (Slit Mills) to Craig bears the following clause:But alwise with and under this condition and provision, as it is hereby expressly conditioned and provided, that the said John Craig and his foresaids, and the miln before disponed, shall have no right to the water of Kelvin until the old Miln of Partick is first served, she having the first water, and untill our works at our slit miln on the water of Kelvin for rolling and slitting of iron and grinding of tools is next served; they being declared to have the second water, the same being hereby limited to three wheels, the foresaid waulk miln of Partick hereby disponed being only to have the third water, and for one wheel only. But in case at any future period we or our foresaids shall find it convenient or necessary to discontinue the manufactory of rolling and slitting of iron and grinding of tools, and shall instead thereof erect any other milns or machinery which may require a greater quantity of water than is now used by us, then and in that case the second water so now reserved for our present works shall in all times thereafter, during the scarcity of water, be applied for driving the new machinery so to be erected in the proportions stated, viz.:Three-fourths of said water shall be applied for the use of the machinery so to be erected by us and our foresaids, and one-fourth thereof shall be applied for the use of the Scotstoun Miln aforesaid, or our said works so to be erected shall go eighteen hours of the twenty-four and Scotstoun Miln shall go the remaining six hours. But in case that we or our foresaids shall have occasion in future to erect upon our works any water wheels besides the foresaid three, all such wheels above three shall have no privilege of water (until the Scotstoun Mill is fully served), whether used as a corn miln or for any other purpose, and shall only be used at such times when there is a superplus quantity of water in the River Kelvin running over the dam-head after serving the Miln of Scotstoun as aforesaid.
The owners of the Bishop Mill were not parties to this deed, although their right to the first water is affirmed or acknowledged in it. Then it is also said that the Slit Mills are to have the second water limited to three wheels, and the Waulk Mill of Partick (i.e., Scotstoun) is to have the third...
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