Seafield v Kemp

JurisdictionScotland
Judgment Date20 January 1899
Date20 January 1899
Docket NumberNo. 131.,No. 68.
CourtCourt of Session
Court of Session
1st Division

Ld. Kyllachy, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 131.
The Countess Dowager of Seafield
and
Kemp.

Process Reclaiming Note Reclaiming note with leave against interlocutor signed in vacation Time for lodging Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 94 Act of Sederunt, 14th March 1894.

Where a Lord Ordinary during the spring vacation signed an interlocutor disposing of part of a cause and granting leave to reclaim, held that a reclaiming note against the interlocutor was timeously lodged on the second box-day in the vacation, although the reclaiming days had expired prior to the first box-day.

The Countess Dowager of Seafield and Others, proprietors of lands on the banks of the River Spey, brought an action of declarator and interdict against Roderick Kemp, distiller, to have him prevented from polluting that river by discharges from his distillery. The case was heard before the Lord Ordinary in the winter session.

On 25th March 1898 the Lord Ordinary (Kyllachy) pronounced an interlocutor disposing of the declaratory conclusions of the case, superseding in the meantime consideration of the conclusion for interdict, and granting leave to reclaim.

The defender lodge a reclaiming note on 28th April, the second box-day in the spring vacation.

In Single Bills the pursuers objected to the reclaiming note as incompetent, on the ground that it should have been boxed on the first box-day, viz., 7th April, the reclaiming days having expired on the 5th. They argued that section 94* of the Court of Session

Act was intended to apply to final interlocutors, and that reclaiming notes with leave fell under the provisions of the Act of Sederunt of 14th March 1894. (In answer to a question from the Court, counsel for the defender stated that the Act of Sederunt had been passed in consequence of the decision in Mackenzie v. Lucas & Aird, February 15, 1894, 21 R. 544.)

Counsel for the defender was not called on.

Lord President.It is quite clear that this reclaiming note was presented under the section of the Act of Parliament, and I think it is impossible to get over its provisions.

Lord Adam.I am of the same opinion. I have never been able to see why this reclaiming note was said to be incompetent.

Lord M'Laren.I am also of the same opinion. There may be cases where the Act of Sederunt might have a beneficial effect in regard to reclaiming notes by extending the time allowed for reclaiming, but it is not intended to take away from the latitude in time allowed by the statute.

Lord Kinnear.I am entirely of the same opinion. It is admitted, and the admission could not have been withheld, that the interlocutor reclaimed against was competently pronounced under section 94 of the Court of Session Act. But if the interlocutor falls under the main provision of the section, why is the proviso inapplicable to this reclaiming note? If there were any doubt on the point, it is completely removed by the later proviso, because the effect of the statute, when the two provisos are taken into consideration, is simply this, that, where the Lord Ordinary pronounces an interlocutor in vacation in a case heard during session, a reclaiming note may be lodged on specified dates, but then, as certain interlocutors can only be reclaimed against with leave of the Lord Ordinary, and the Lord Ordinary may not have thought fit to embody leave to reclaim in the interlocutor, the further proviso is added that in that case leave to reclaim may be granted by the Lord Ordinary on the Bills.

The Court sent the case to the roll.

* The Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 94, enacts, It shall be lawful for the Lords Ordinary at any time in vacation or recess to sign interlocutors pronounced in causes heard in time of session, or at any extended sittings, or at the trial of causes by jury or by proof, before the Lord Ordinary, provided that where any such interlocutor is dated at or prior to the first box-day in vacation, the same may be reclaimed against on the second box-day; and where the interlocutor is dated after the first box-day, then on the first sederunt-day ensuing, or within such number of days from the date of such interlocutor as may be competent in the case of a reclaiming note against such interlocutor, dated and signed during session Provided that in the case of interlocutors which cannot be reclaimed against without the leave of the Lord Ordinary, such leave may be given by such Lord Ordinary, or in his absence by the Lord Ordinary sitting on the Bills during vacation.

The Act of Sederunt of 14th March 1894 enacts,That in all cases where the days allowed for presenting a reclaiming note against an interlocutor pronounced by a Lord Ordinary in the Outer-House expire during any vacation, recess, or adjournment of the Court, such reclaiming note may be presented on the first box-day occurring in said vacation, recess, or adjournment after the reclaiming days have expired; and if there be no such box-day, then on the first ensuing sederunt day.

Court of Session
1st Division

Ld. Kyllachy, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 68.
Seafield
and
Kemp.

RiverPollutionSuperior and VassalRight of Proprietor who has granted a feu for a distillery to complain of it polluting a riverBar.

In 1886 a proprietor entered into a feu-contract, whereby she disponed in feu-farm to the vassal All and Whole the distillery of M., with the right to take water for the use thereof from the burn of R. by pipes. It was also declared that it shall not be lawful to nor in the power of the said vassal to erect or carry on upon the piece of ground hereby disponed any manufactures or operations which may legally be deemed a nuisance or be dangerous or injurious to the amenity of the neighbourhood, but which declaration shall not apply to the carrying on of the said distillery.

In an action raised in 1897 by the superior along with other riparian proprietors to have it declared that the vassal had no right to pollute the burn and a river into which it flowed, by discharges from the distillery, the defender denied the pollution, and further pleaded that the superior was barred by the clauses of the feu-contract above quoted from insisting in the action.

After a proof, by which the pollution was established, held (1) that although the first clause above quoted conferred upon the vassal every right to use the water which the superior had, as the latter was not entitled in a question with lower riparian proprietors to pollute the water, the clause could not be read as meaning that the vassal was to be entitled to do so; (2) that the second clause did no more than disable the superior from objecting to the distillery as such, as a nuisance; and (3) that the superior was not barred by the terms of either clause of the feu-contract from complaining of the pollution of the burn unless the vassal was able to shew that it was impossible in the ordinary course of business to carry on the distillery without polluting the burn, and that he had failed to do so.

Question, whether the construction of a feu-contract may be affected by the circumstances in which it is granted.

RiverPollutionSalmon-fishingsInjury to spawning bedsRight of proprietor of fishings ex adverso of whose lands pollution not proved.

In an action at the instance of a proprietor on the banks of a salmon river for declarator that the defender was not entitled to discharge from a distillery any impure matter or liquid whereby the water of the river in its progress along the property of the pursuer might be polluted or rendered unfit for primary and domestic uses, or hurtful to salmon, or prejudicial to the pursuer's salmon-fishings, it was proved that, while the water and bed of the river ex adverso of the pursuer's property was to no extent affected by the discharges, the spawning beds in a part of the river considerably above the pursuer's fishings were rendered by the pollution unfit for their purpose, and had been deserted by salmon. Held that the pursuer had proved sufficient injury to entitle him to a declarator that the defender had no right to discharge into the river any impure matter or liquid prejudicial to the salmon-fishings of the pursuer.

InterdictNuisanceRiverPollutionExecution of remedial works.

Opinion (per Lord Kyllachy, Ordinary) (1) that when in an action for interdict to prevent pollution of a stream it is once established that the defender has at a period reasonably recent in fact polluted it, that is itself prima facie ground for granting interdict; and (2) that even when the defender has put in operation with apparent success a method of preventing future pollution, that will not be a sufficient ground for refusing to the pursuerif he claims itthe security of an interdict, and that unless the defender is prepared to submit to an interdict, the remedial works must be tested over a lengthened period by a neutral authority.

On 7th July 1897 the Countess Dowager of Seafield, proprietrix of Easter Elchies, in the county of Elgin, Mrs Kinloch Grant of Arndilly, James W. H. Grant of Wester Elchies, and John Ritchie Findlay* of Aberlour, all in the county of Banff, raised an action against Roderick Kemp, proprietor of the Macallan Distillery, in the county of Elgin, for declarator, in the first place, that the pursuers Lady Seafield and Mr Grant had good and undoubted right to have the water of the Ringorm Burn, and the whole pursuers to have the water of the River Spey, so far as it flowed through or by their respective properties, transmitted in a state fit for all primary purposes; in the second place, that the defender had no right or title to pollute or adulterate the water of the Ringorm Burn, or of the River Spey, or to put into the water of the burn any substances or liquids such as to render it or the water of the River Spey noxious, or unwholesome, or unfit for all primary purposes, or in any...

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2 cases
  • Cowie & Son v Commissioners of Dufftown
    • United Kingdom
    • Court of Session
    • 11 Diciembre 1900
    ...and they point to the state of matters disclosed in the evidence taken in the recent case of Seafield and Others v. KempSC, reported in 1 Fraser, 402. To that last argument I fear the true answer is, that the whole point in this case is to ascertain on whose shoulders that burden is to fall......
  • Earl of Kintore v Pirie & Sons, Ltd
    • United Kingdom
    • Court of Session
    • 7 Julio 1906
    ...4 R. 207. And perhaps not less applicable are the pollution cases.Moncreiffe v. Magistrates of Perth, 13 R. 921, and Seafield v. KempSC, 1 F. 402. All these cases recognise, in my opinion, the principle that owners of salmon-fishings have the same title to complain of obstructions or of pol......

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