ROBERT WEIR v GAVIN GLENNIE, and J & W M'ROBBIE (Court of Session)

Weir was proprietor of the lands of Tamaree, on the banks of the Carron, on which there was a mill. He was also tenant of the paper-mill of Stoneywood, a little farther down the river Carron, which belonged in property to Mr Morehead. On the intervening lands between Tamaree and Stoneywood there were also mills, the property of J. and W. M'Robbie, and of which Glennie was the tenant.

Napier and Reid, (the proprietors of the lands farthest up the river,) were farther taken bound not to ‘suffer or allow any ashes, rubbish or other nuisances to be thrown into the said canal, which may be hurtful to the washing of paper or other operations in the said paper-mill of Stoneywood. Neither shall the said Archibald Napier nor John Reid, at any time, or for any space, be at liberty to interrupt the course of the water in the said canal, so as to stop or injure the operations in the said paper-mill.’

The dam-dike was accordingly erected, and the canal cut, which was connected with the dam by a sluice on the lands of Tamaree, by which the quantity of water admitted into the canal was regulated.

The Lord President concurred. Even if there had been an express right of access reserved by the agreement, still that right would have been controlled if an improper use had been attempted to be made of it. The lower heritors were entitled to a sufficient supply of water; if they did not get this, they were entitled to go along the banks to see what was the cause of this; and, in the same way, if any thing went wrong at the lower part of the canal, and the water thrown back, the upper heritors were entitled to go through the lower grounds to ascertain the cause of this.

Lord Craigie thought the interlocutor of the Lord Ordinary right. There was no doubt as to the defenders' right and obligation to maintain the canal, and to do what was necessary for that purpose. The question was as to the opening or shutting the sluice, which could not be admitted to all the parties, but properly and regularly left, in the first instance, with the pursuer and his authors, as having the chief and immediate interest in it.