Proprietors of Kelvin Mills v Incorporation of Bakers
| Jurisdiction | Scotland |
| Judge | Lord Pitmilly. F. |
| Judgment Date | 16 June 1821 |
| Date | 16 June 1821 |
| Court | Court of Session (Inner House - Second Division) |
| Docket Number | No. 88. |
Lord Pitmilly. F.
River—Exclusive Privilege.—
This was an action of declarator by the proprietors of mills on the river Kelvin against the Incorporation of Bakers in Glasgow, also proprietors of mills on that river, to have it found that they had no exclusive right to regulate the supply of water from a reservoir at Kilmannan, which, in terms of an act of parliament, the Forth and Clyde Canal Company had formed, for the mills on the Kelvin; but that the right was vested in the majority of the proprietors or tacksmen. The ground on which the bakers rested their exclusive privilege was, that, from 1776, when the reservoir was completed, the key of the sluice was delivered to a person paid by them, and subject to their orders; and that until 1816 they had uninterruptedly exercised the right of supplying the Kelvin with water. This person was also the servant of the canal proprietors, who were under an obligation to keep the reservoir in repair. The Lord Ordinary found, ‘That the alleged acquiescence of the other proprietors in the management of the sluice by the servant of the canal proprietors, under the orders of the defenders, from 1776 until about autumn 1816, when meetings were held on the subject by the pursuers, was not of itself, and in absence of any express acknowledgment of the defenders' right, or express abandonment by the pursuers of their own powers, and the pursuers not having had occasion, in the mean while, to find fault with the management of the water, sufficient to establish an exclusive right of control in the defenders over the reservoir in all time coming, or to cut off the right which belonged to the pursuers, as proprietors of the mills on the Kelvin: that the pursuers have a right, along with the defenders, to the reservoir at Kilmannan; and that the defenders are not entitled, against the will of the pursuers, to give directions about opening and shutting the sluice; and that those matters must be regulated by a majority of proprietors of mills on the Kelvin, according to their interest in the river, or by a committee of their appointment.’
A reservoir was formed, in terms of a statute, by canal...
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