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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Waddell of Papperthills v. John Russell of Bentfoot [1781] UKHL 2_Paton_579 (10 December 1781) URL: http://www.bailii.org/uk/cases/UKHL/1781/2_Paton_579.html Cite as: [1781] UKHL 2_Paton_579 |
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Page: 579↓
(1781) 2 Paton 579
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
No. 132.
House of Lords,
Subject_Servitude of Mineral Well — Possessory Judgment.—
A party claimed a servitude over a mineral well in his neighbour's field, near the mutual fence dividing their properties, and alleged the use and possession thereof for time immemorial. The Sheriff sustained his claim as a servitude. On advocation the interlocutor was varied, so as to leave out any finding as to a servitude. Held in the Court of Session and House of Lords, that he was entitled to the possessory judgment, as to his use of the well, and to have access thereto by a stile over the stone wall.
The appellant and respondent were conterminous proprietors, having estates marching with each other. Near to the march, and almost in a line with it, there was a mineral well, on the appellant's side of the march, claimed by him as his exclusive property. In the several proceedings as to the repair and straightening of the marches, this right had never been disputed by the respondent. But afterwards, when a stone dyke was, by order of the Sheriff, ordered to be built at their mutual expense, as a march wall between the two properties, the respondent laid claim to a right of servitude in the well, and accordingly presented a petition to the Sheriff, praying that he had such a servitude; and that he ought to have access to it by a stile, made in the proposed new wall. This petition was amended by another praying to allow him to make a proper entry to the well, through the march dyke, at their mutual expense, or at his own. In answer, it was pleaded, that there could be no servitude of a medicinal well, as, from the nature and quality of the thing, it was quite inconsistent with a servitude—that the respondent had plenty of water within his own property, and that he had no more right to such a servitude, by merely resorting to this well, than the people from all quarters of the adjacent country had, who resorted to it in the same manner, because if he had, every person far and near would be entitled to a servitude over it on the same ground. The water, by its mineral quality, is not adapted to the uses of a dominant tenement. There can therefore be no real servitude over it, and the law of Scotland does not recognize a personal servitude. The well is exclusively within the property
Page: 580↓
Mar. 24, 1778.
Feb. 4, 1780.
The Sheriff-substitute found “it averred by the pursuer, and not denied by the defender, that he and his family have been in the constant uninterrupted practice of taking water from the mineral well in the defender's property, mentioned in the pleadings: Therefore finds, that the pursuer has a servitude of taking water from the said well; and allows him, at his own charges, to put up a proper foot style across the march dyke, to be upheld by him at his own expense in time coming, so as he and his family may have a foot passage to the said well; and prohibits and discharges the said defender from troubling or molesting the pursuer and his foresaids, in the use of said servitude.” In an advocation, the Lord Ordinary pronounced this interlocutor, “Remit the cause to the Sheriff, with this instruction, to vary his interlocutor of date 24th March 1778, by leaving out these words, “Therefore finds, that the pursuer has a servitude of taking water from the well.”
Feb. 24,1780.
July 12, 1780.
Feb. 7 and 10, 1781.
Feb. 23, 1781.
On representation his Lordship adhered, explaining that the pursuer (respondent) was entitled to a possessory judgment, and that neither party have brought a declarator relating to the well.” On reclaiming petition to the Court, their Lordships adhered to the Lord Ordinary's interlocutor, after a proof adduced by both parties as to the use and possession.
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—It being admitted that the property of the well belongs to the appellant, it is incumbent on the respondent claiming a servitude over it, not only to establish that a medicinal well is a proper subject of servitude, but also that the usage and possession had by him constitutes such; and that he still holds and enjoys that possession, in order to support a possessory judgment. Here nothing of all this can be established. A servitude of water from a well is clearly a rural servitude, servitus aquœhaustus, which, according to Erskine “is a right competent to a landholder of watering his cattle at any river, brook, well, or pond, that runs through or stands in his neighbour's grounds.” The basis of such servitude is its use to the neighbour claiming it, but law will not authorize him to break into his neighbour's grounds, when he has abundance
Page: 581↓
Pleaded for the Respondent.—It is proved, and otherwise admitted, that the respondent's family has been in the uninterrupted possession of the well in question, from time immemorial, and this was enough to establish the right claimed, be the qualities of the water what they may. No apparent prejudice could possibly arise by the respondent's family continuing to use it. And the argument resorted to, from the peculiar quality of the water, as unfit for family use, but only useful as a medicine, and therefore not a subject on which a servitude could be constituted, ought to be disregarded, because the proof and admissions as to actual use by his family, was sufficient to confute this supposition.
After hearing counsel, it was
Ordered and adjudged that the interlocutors be affirmed, with the following variation, (viz. 1st, that in the interlocutor of the Sheriff-substitute, of the 24th March 1778, the words (of said servitude) be left out: And the words (thereof) inserted instead thereof; And it is further ordered that the Court of Session in Scotland, do give direction to the said Sheriff-substitute to vary the said interlocutor accordingly.
Counsel: For Appellant.
Henry. Dundas,
Thomas Erskine.
For Respondent,
Alex. Murray,
Dav. Rae,
Will. Baillie.
Note.—This case not reported in the Court of Session. The decision seems only to go the length of giving a possessory judgment, leaving the question of servitude open; which had not been regularly brought before the Court.