Earl of Kintore and Others v. Alexander Pirie & Sons, Ltd

But, in the first place, I do not see how the Don Fishery Board could in this matter bind the pursuers—that is to say, bind them by way of agreement. The Board's powers are defined by statute, and they have no power except what the statutes confer. And I do not find in any of the statutes the power to make agreements or grant concessions on behalf of the proprietors. On this point I may refer to the case of the Tay Fishery Board v. Robertson and Others , 15 R. 40.

In the next place, the Board, it appears, acted on the report of their engineer Mr Willet, and he acted on information supplied by the defenders, to whom his report was in fact submitted. And without going into particulars or imputing blame to anyone, it is, I think, quite clear that Mr Willet did not know the full extent of the defenders' proposed alterations, nor did he know the true measure of their prescriptive rights, nor did he know, as we know now, the whole facts bearing on those rights and their true measure. He was not, for example, informed that the defenders' existing sluices were only thirty years old, or that up to 1865 their capacity had been limited by the orifices of the old sluices, or that it was proposed to widen and deepen the lade, or to widen and deepen the intake, or that turbines were contemplated requiring or probably requiring 33,557 cubic feet per minute. As to all these matters the Board were in error, and an error for which they were not responsible; and it may perhaps be added that when, having ascertained in July 1882 that the lade was being widened and deepened, and again in 1884 that the intake was being widened and deepened, they complained to the defenders, they were met in the first place by an excuse, and in the next place by a reference to legal rights.

I am, on the whole, therefore of opinion that the plea of acquiescence fails; and I think that exhausts the questions at issue, with the exception of two minor matters, namely (1) the abstraction of water on Sundays contrary, it is said, to prescriptive use, and (2) the operations of 1894 in or at the foot of the dam dyke.” [ His Lordship then proceeded to deal with these questions .]

The defenders reclaimed.

Argued for the reclaimers—It might be assumed for the purposes of the case that they were proprietors of both banks. Their right to take water was one of their rights as riparian proprietors, an inherent part of their right of property. It was not a servitude exercised by a dominant owner over the river as servient property— Magistrates of Linlithgow v. Elphingstone , Kames' Select Decisions, p. 331; Cunningham v. Kennedy , 1713, M. 8903, 12,778; Orr Ewing v. Colquhoun's Trustee , July 30, 1877, 4 R. (H.L.) 116, at 127–8. This was not a case of opposite proprietors, where the rule was “ melior est conditio prohibentis ”— Bicket v. Morris , July 13, 1866, 4 Macph. (H.L.) 44; Robertson v. Foote & Co ., July 16, 1874, 6 R. 1290, 16 S.L.R. 794. The case of Baillie v. Lord Saltoun , December 21, 1821, 1 S. 227, referred to by the Lord Ordinary was one of damage to the opposite proprietors by regurgitation. This was also the case in Fairly v. Earl of Eglinton , 1744, M. 12,780; Burgess v. Brown , 1790, Hume 504. By the law of England also there was an absolute right in a proprietor to use water in this way provided there was no regurgitation or injury to the flow of water below— Miner v. Gilmour , 1858, 12 Moore, P. C. 156. The reclaimers did not question that each proprietor of salmon-fishing had a certain interest in the water from mouth to source. The question was, what was the nature of that interest? It was to be observed that this was not a water case but a fishing case, and accordingly the point at issue was whether there was an illegal obstruction to fish. The proprietor of salmon-fishings was no doubt entitled to interfere with such illegal obstruction, but he must first show that it was illegal. For example, he could prohibit pollution as injuring his fishing, even though the pollution was effected below his property— Seafield v. Kemp , January 20, 1899, 1 F. 402, 30 S.L.R. 363; Moncreiffe v. Perth Police Commissioners , June 4, 1886, 13 R. 921. Or he could prevent an obstruction by one not having a title to obstruct— Paton v. Brebner , 1819, 1 Bligh 42; Forbes v. Leys, Masson, & Co ., September 7, 1831, 5 W. & S. 384. But there was no law apart from fishing statutes to the effect that all obstructions, such as cruives and salmon-weirs, were illegal. Had there been a common law right to object to all obstructions there would have been no necessity for the restrictions imposed by fishing statutes. Accordingly apart from statute there was no restriction on the reclaimers' exercise of their legal right to use the water for mill purposes—Rankine on Landownership, 286; Duke of Sutherland v. Ross , April 15, 1878, 5 R. (H.L.) 137, 14 S.L.R. 552; Munro v. Munro , 1845, 7 D. 358, and 1846, 8 D. 1029. The statutes were based

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Argued for the respondents—(1) The defenders had by their operations in the last twenty years made it possible to withdraw the whole river except when in flood. This of course amounted to an absolute prohibition of the passage of salmon up and down the river. The legal proposition of the pursuers was that every salmon proprietor had a right to object to any recent obstruction to the passage of the fish which was such as to damage his property. The right to protect salmon fishing was necessarily inferred in the title to it. It was clear that if the water was removed so as to prohibit the passage of fish there must be injury to the fishing, and the salmon proprietor was not bound to show more than this. The right of such proprietor was analogous to that of any other riparian proprietor. He had an interest in the water, and was entitled to the advantage of the flow of the river in its natural state. If a millowner could not exercise his right of abstracting water without interfering with the right of fishing, and thus invading another legal right, he was liable under an action at common law as well as by statute— Forbes v. Leys, Masson, & Co ., supra ; Baillie v. Lady Saltoun , supra ; West v. Aberdeen Harbour Commissioners , December 8, 1876, 4 R. 207, 14 S.L.R. 147; Hay v. Magistrates of Perth , May 12, 1863, 4 Macq. 535. All obstructions were in themselves illegal and it was not necessary to prove any special illegality— Duke of Sutherland v. Ross , May 26, 1877, 4 R. 765, 14 S.L.R. 552, April 15, 1878, 5 R. (H.L.) 137; Wedderburn v. Duke of Atholl , May 28, 1900, 2 F. (H.L.) 57, 37 S.L.R. 686; Earl of Seafield v. Kemp , supra ; Robertson v. Foote & Co ., July 16, 1879, 6 R. 1290 at 1298, 16 S.L.R. 794: Stair, ii. 7, 12; Arbuthnott v. Scott , supra ; Bell's Principles, sec. 1100; Erskine, ii. 9, 13. The pollution cases were clearly in point. There had been an attempt to differentiate them on the ground that pollution was always illegal. But it was only so when someone had an interest to oppose it. In the case of Lyon v. Fishmongers Co ., 1876, 1 App. Ca. 662, pollution and diversion were treated by Lord Cairns as being in the same category. There was nothing in the fishing statutes to indicate that they were intended as a code setting out all the law applicable to the rights of salmon proprietors. The functions of the Fishery Boards thereby created were limited, and existing rights were reserved. Accordingly if the defenders were to use their own rights to injure those of their neighbours they must bar their challenge by prescription— Young & Co. v. Bankier Distillery Co ., July 27, 1893, 20 R. (H.L.) 76, 30 S.L.R. 964. On the facts, it was clear that they had not prescribed this right. It was clear that what they had done at Stoneywood would not justify the present works. The right alleged to have been prescribed must be exercised only as it had been possessed— M'Intyre Brothers v. M'Gavin , June 16, 1893, 20 R. (H.L.) 49, 30 S.L.R. 941. (2) Acquiescence —The plea was not relevant. There were no facts to support it. The respondents were not the Don Fishery Board, which could not have raised the present action— Tay District Fishery Board v. Robertson , November 16, 1887, 15 R. 40, 25 S.L.R. 54. The proposals as to intended alterations, &c., had very properly been submitted to the Board to show that no bye-laws were being violated, but the acquiescence of the Board could not bar proprietors whose rights were impaired. Besides, there was no full disclosure of the facts, as was pointed out by the Lord Ordinary. To bar the pursuers' action the defenders would have required to show that their works in 1882 had been executed under some agreement with the pursuers.

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At advising—

Lord President —The question in this case is whether the pursuers, who are proprietors of salmon-fishings in the upper waters of the river Don, are entitled to have the defenders, who are the owners and occupiers of extensive paper mills at Stoneywood and Waterton, on the right bank of that river, restrained from abstracting from it for the purposes of their business the quantity of water which they now are and have for nearly twenty years been in use to take from it for these purposes.

It is not disputed that the defenders and their predecessors in the mills now belonging to them have been, for a period greatly in excess of the years of prescription, in use to withdraw some water from the river for the purposes of their mills. Until about the year 1882 they did so chiefly by means of two dam dykes, one at Stoneywood and the other at Waterton, which is between six and seven hundred yards lower down the river than Stoneywood. Formerly the Stoneywood tailrace discharged into the river above Waterton, but it now discharges only to a small extent above Waterton, and as to the rest it discharges into the Waterton tailrace, which discharges into the river about 1330 yards below the Stoneywood dam dyke. The fall from Stoneywood to Waterton is about 12 feet, and the fall from Waterton to site of the lower mill which formerly existed is about 11 feet, making the total fall between the points in question about 23 feet. The flow of water in the Don varies from about 13,000 to about 100,000 cubic feet per minute, and to enable salmon to ascend it is necessary that about 4 inches of water shall be flowing over the crest of the dam dyke.

The pursuers do not dispute that in so far as the defenders and their predecessors in the mills now owned by them have withdrawn the water and used it for the purposes of these mills, continuously throughout the prescriptive period, they (the pursuers) are not now entitled to complain of the like withdrawal and use of the water being continued, but they allege that in and since the year 1882 the defenders have, by alterations on their intake, lade, and other equipments, made between 1879 and 1882 and subsequently, largely increased their abstraction of water at Stoneywood, and also that they return the water to the river, not, as formerly, above Waterton, except to the small extent already mentioned, but at the lower end of the Waterton tailrace. It appears that what the defenders did to the lade at and below Stoneywood in or about 1882 was greatly to increase its depth and width, to straighten it, and largely to augment its capacity for carrying water. The main complaint of the pursuers is, that by what the defenders have done and are still doing with respect to the Stoneywood dam dyke and the lade at and below Stoneywood, they have left, and still leave, the portion of the river bed between Stoneywood and the lower end of the Waterton tailrace for long periods either without water or with so little water that salmon cannot run in it. The pursuers maintain that they have proved that the result of these changes has been and is, at some times and places, to prevent, and at others materially to impede, the passage of salmon up the river, and thereby seriously to injure the salmon-fishings belonging to the pursuers.

It is not disputed by the defenders that between 1879 and 1882 they made alterations and executed works upon the bed and banks of the river by which they have been enabled to withdraw at Stoneywood a much larger quantity of water than was formerly withdrawn there, and indeed to withdraw and pass through their works the whole, or nearly the whole, water of the river unless it is running very full, nor do they, as I understand, dispute that they can and do withdraw the water from the bed of the river between Stoneywood and the lower end of the Waterton tailrace to such an extent that it is not infrequently left dry, or nearly dry, so that salmon cannot run in it. It appears that from 1866 to 1878 the total withdrawal of water from the river, both for the purposes of the defenders' upper mill and of the Grandhome meal mill on the opposite side of the river, was about 12,000 cubic feet per minute, and that between 1878 and 1882, after the Grandhome mill stopped, the abstraction by the defenders was about 7000 cubic feet per minute. The defenders allege that the actual abstraction since 1882 has been 25,0 cubic feet per minute when the water has been lipping at the Stoneywood dyke, and 33,000 when the water has been 9 inches over that dyke, but I think that the true result of the evidence is to establish that the defenders can and do abstract not less than 33,000 cubic feet per minute when the turbines are working and the water is lipping the crest of the dyke, and not less than 36,500 when it is 9 inches over. It is not immaterial in this connection to observe that the defenders' turbines are constructed to pass 33,500, and their upper wheel, &c., 4500, making together 38,000 cubic feet per minute. This seems to raise a probability that in normal working their abstraction of water will not be greatly below the capacity of the mechanism which it serves.

In answer to the complaints made by the pursuers, the defenders maintain, in the first place, that the pursuers not being riparian proprietors, but merely owners of salmon-fishings in the river, have no right or title to complain of what the defenders have done and are doing in the matter of the abstraction of the water, in respect that it is done with the assent of, or at all events without objection by, any riparian proprietors who would have a title to interfere.

The defenders also maintain that the pursuers have no right to complain, because the alterations in question were carried out with the knowledge and approval of the Fishery Board of the river Don, and without any timeous objection on the part of the pursuers; and they further submit

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The defenders further contend that the mode in which they have been and are dealing with the water and the bed of the river has been fortified by the positive prescription, and that anyright which the pursuers might otherwise have had to object to it is excluded by the negative prescription. They also maintain that although the quantity of water abstracted is greater now than it was prior to 1882 they could, by the appliances they then had, have withdrawn as large a quantity of water as they withdraw now. They further submit that the pursuers are not entitled now to complain because they (the defenders) formerly took and temporarily retained from the river below Waterton as much water as they now take and temporarily retain from the river between Stoneywood and Waterton, and that although the main retention of water, and the drying or partial drying of the river bed, is now between Stoneywood and Waterton instead of below Waterton, the result is not substantially to increase the interference with the salmon-fishings. They say that although the bed of the river between Stoneywood and Waterton is now drier than it was prior to 1882, it is not drier between Waterton and the Green Burn than it was then.

I do not think that the questions in the case can be considered in a more clear or better order than that adopted by the Lord Ordinary, and he first deals with the question—What quantity of water do the defenders now withdraw from the river when their turbines and water-wheels are working at full power? It appears to be common ground that for the purposes of the present inquiry the best measure of the defenders' abstraction is the quantity of water withdrawn from the river and sent down through their sluices and lades, turbines and wheels, when the river stands level or nearly level with the crest of the Stoneywood dam dyke, or, as it has been termed, when the water is “lipping” that dyke. This seems to be a convenient standard, because if practically no water is allowed to pass over the crest of the dyke, the bed of the river below the dyke will be dry or nearly so, and an interference would, in my judgment, be established which would found a complaint at the instance of the pursuers, unless what the defenders are doing is justified by prescription or some other bar.

The pursuers allege that the defenders can with their present appliances and arrangements abstract, and do abstract, at Stoneywood about 40,000 cubic feet of water per minute, while the defenders allege that they abstract less than 33,000 cubic feet per minute. The Lord Ordinary has carefully examined the evidence bearing upon this point, and has arrived at the conclusion that it may safely be held that the defenders normally abstract at Stoneywood about 36,000 cubic feet per minute, and so diminish the flow of the river below to that extent, and practically dry its bed when no larger quantity comes over the dam dyke. Upon a careful consideration of the evidence I see no reason to differ from the conclusion at which his Lordship has arrived on this point.

The next question is, What is the effect of the defenders' normal abstraction of water upon the river between Stoneywood Dyke and the foot of the Waterton tailrace, and I consider it to be established that the river is, as regards running water, absolutely dried throughout the greater part of that reach unless a flow in excess of 36,000 cubic feet per minute reaches the Stoneywood dam dyke. In other words, no water can enter the bed of the river below the dyke until the defenders' abstraction of 36,000 cubic feet per minute has been provided for, and it is also, I understand (as I have already stated) not in controversy that there is not sufficient water to enable salmon to ascend the river unless a depth of at least 4 inches of water is flowing over the dyke. The result of the whole evidence is in my judgment to establish that the withdrawal of water by the defenders is carried to such an extent as generally in summer, and frequently at other times, to bar the progress of salmon to the upper waters, and thereby materially to injure the fishing rights of the pursuers.

In this state of the facts it may be convenient to consider, first, what the rights of the defenders in dealing with the water of the river would be apart from prescription, and, in the second place, what rights, if any, have they acquired by prescription to interpose obstructions to the passage of the salmon to the upper waters which would, unless supported by prescription, be illegal. Upon this question the defenders maintain the large proposition that, apart from statutory enactment, the right to challenge any such interferences with the water of the river as they have admittedly made rests only with the riparian proprietors, and to no extent with the owners of salmon-fishings in the river as such. If this contention was well founded the result would be that a feudal estate, viz., the estate of salmon-fishing, whether in the hands of the Crown or of a subject who has derived it immediately or mediately from the Crown, would receive no protection from the common law, and I understand the defenders also to maintain that there is nothing in the statutes to warrant the pursuers in complaining of what the defenders have done and are doing in this matter. These are large propositions, and I am not aware that they have previously been maintained in so broad a form. The general rule is that rights lawfully created or acquired are protected by the law, and that if different lawful rights come into collision each must be enjoyed in such a way as to leave a reasonable measure of enjoyment of the

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From a very early period statutes have been passed both by the Scots and by the British Parliament for the protection of salmon fishings in Scotland, and I agree with the Lord Ordinary in thinking that it is not now possible to draw a sharp line of demarcation between the common and the statute law on the subject, because the old Scots Statutes were in most cases very brief, and as interpreted by usage and decisions they have now in some cases a larger comprehension than would appear to arise from their terms. Further, it seems probable that these statutes not infrequently embodied an expression of the common law and practice existing at the time when they were enacted.

In the case of Hay v. Magistrates of Perth , 4 Macq. 535, the Lord Chancellor (Lord Westbury) said that it was a just remark of Lord Eldon sixty years previously that the decisions of the Courts of Justice in Scotland on the subject of salmon had gone far beyond any principles embodied in the statute law, and that he was unable to find any rule or principle of common law that is not embodied in the statutes themselves upon the subject, which in truth, especially the earlier ones, may be considered as declaratory of the common law, and then he stated the three principles which these Acts embody, and the objects which the Legislature sought by them to attain, the first “to ensure to the salmon a free and unimpeded access to the upper fresh waters, which are the natural spawning grounds of the fish; the second to secure the unimpeded return to the sea of the smolt or the young fry of the salmon; the third was to prohibit the killing of unclean fish during the fence months, as we call them in England—that is, when the fish are out of season.” I concur with the Lord Ordinary in thinking that whether structures in alveo are illegal by statute alone or also by common law, it is now well established that any opus manufactum not protected by prescription which is erected in or about a river so as to create a barrier or material impediment to the passage of the salmon in it is by the law of Scotland illegal, This in my judgment holds good whether the structure itself bars the passage of the fish by presenting to them an obstacle which they cannot surmount, or whether it makes access to the upper waters impossible or difficult by wholly or partially drying up a portion of the bed of the river, of greater or less length below it, and that, whether the object of the construction is to enable the fish to be caught in a pool below a dam or to withdraw water for the purposes of driving machinery, is immaterial if the effect is to prevent the run of the fish up the river.

Reference may be made to the cases of Forbes v. Leys, Masson, & Co ., 2 S. 603, 9 S. 933, and 5 W. & S. 384—which related to a dyke still on the river Don near Grandholme— Baillie v. Lady Saltoun , 1 S. 227, and to West v. Aberdeen Harbour Commissioners , 4 R. 207, as well as to the cases in which the owners of salmon-fishings have been held to have a title to challenge pollution of the water of the river as being injurious to their fishing rights— Moncrieffe v. Magistrates of Perth , 13 R. 921; and Seafield v. Kemp , 1 F. 402. From these and other cases the general doctrine is in my judgment to be derived that the estate of salmon-fishing is entitled to receive the protection of the law against injurious interference with it, just as any other legal estate or right is. The counsel for the defenders did not, as I understood, dispute the authority of these cases, but they said that they only affected the question of title, and did not determine that the things complained of were illegal. It appears to me, however, that the cases do establish that salmon fishing is an estate of such a character that it will receive the protection of the law against injurious interference just as any other estate created or recognised by the law will. In expressing this view I do not dissent from what the defenders say as to the right of a riparian proprietor to draw water from a river by a lade or otherwise, being a right incidental to his property in both banks or in one bank as the case may be, but taking this to be so, it does not in my view lead to the conclusion that this right can (apart from prescription) be so exercised as to destroy or materially injure the right to salmon-fishings in the same river. The Act of 1696, cap. 33, provided that there shall be a constant slop in the mid-stream of each mill dam dyke, and that the said slop “be as big as conveniently can be allowed,” providing “always the said slop prejudice not the going of the mills.” This enactment is expressed in very general terms, and it seems to apply to all dam dykes, whether new or old. But I do not think that it would be reasonable to assume from the terms of the Act that prior to and apart from it an owner of salmon-fishings could not have insisted that a dam dyke (unless supported by prescription) should not be of such a size and construction, and should not be so used as totally to bar the access of the salmon to the waters above it. The mills referred to in the Act were no doubt, primarily at all events, the small old meal mills used for grinding the then somewhat meagre produce of the country, not works of the magnitude and character of those now belonging to the defenders. It does not seem

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It is, however, true, that according to the law of Scotland an interference with the feudal estate (in this case the estate of salmon fishing), or other proprietary right, which was in its inception illegal, and could have been stopped at any time within the period of prescription, may become legal if it has been submitted to or acquiesced in, continuously and without interruption, during that period. For the purposes of the present question it is not, in my judgment, material whether, what is in effect the acquisition of a right injuriously to interfere with a feudal estate is to be attributed to the positive or to the negative prescription, or to the concurrent operation of both. The present action was raised in January 1900, and consequently (if the views above expressed are correct) the defenders require to prove that the interference with the flow of the river complained of had continued without challenge throughout the prescriptive period prior to January 1900, and they have not, in my judgment, established this. They have withdrawn about the same quantity of water as is now taken since the completion of their new works in 1882, but I understand that it is not disputed that between 1865 and 1882 they did not abstract more than about 7000 cubic feet of water per minute at Stoneywood, and it therefore (if the views above expressed are correct) becomes necessary for them to make good the proposition that they had acquired by prescription the rights which they now claim forty years prior to 1865 or 1866, so that the prescriptive period must have begun to run about 1825 or 1826. The defenders' point, as I understand, is that although, as far back as the evidence goes, not more than 7000 cubic feet per minute of water required to be, or were, withdrawn at the Stoneywood dyke for use in connection with the wheels or machinery in their works prior to 1882, they were before 1865, when it was made imperative that mill lades should be sluiced, in use to keep their sluice at Stoneywood nearly always open to withdraw all the water which it and the mill lade could pass, and that they discharged all the water which was not required in the mills into the river by spills or bye-passes. It may be a question how far a prescription founded not upon the use but upon the waste of water would avail to acquire an active right, even assuming that it would be sufficient to cut off a right of challenge, but it appears to me unnecessary to consider this question here. The first answer made by the pursuers to this contention is that it is not proved that the Stoneywood lade existed prior to 1829, and it is difficult to assume in the absence of evidence that a similar state of things in connection with that lade existed retro before 1829. These and other reasons are, in my judgment, adverse to the view that the structures which existed in 1865 can be held to have existed and been used for withdrawing water for forty years prior to that year.

There is, however, a question between the parties as to the capacity of the lade prior to 1882, and it appears to me that in such a case the measure of the prescriptive right claimed is not the capacity of the channel or channels for conveying water, but the use which has been made of that channel or these channels for the actual conveyance of water. A person can make on his own property as large a channel as he pleases without his neighbour having any right to interfere, so long as that channel is not used for the abstraction of water from a river or other watercourse in which his neighbour has an interest, and I understood that the counsel for the defenders did not dispute that the measure or extent of the actual use, and not of the capacity, of the channel is the material point in such a case. I agree with the Lord Ordinary in thinking, for the reasons which he has given, that neither the capacity of the lade at Stoneywood, nor the use which was made of that lade prior to 1865, at all approached the capacity and use of the defenders' arrangements for withdrawing water since 1882.

The defenders further contend that in this question they are entitled to take into account the abstraction of water by the lade of the Grandhome mill on the opposite side of the river. I understand that the Grandhome mill (originally a meal or barley mill), was worked by the defenders or their predecessors in business as tenants from 1856 to 1878 or 1879; that, in terms of an order made in 1865, it was sluiced in 1866; that further sluicing was done in 1878 under the Salmon Fishery Act of 1868; and that the intake was built up and closed in 1891. It appears that the Grandhome mill only required and used about 4000 or 5000 cubic feet of water per minute till it stopped working in 1878 or 1879, and at that time the upper mill at Stoneywood took only 7000 feet per minute, making altogether 11,000 or 12,000 feet per minute. It appears to me that the defenders have failed to prove that the Grandhome mill abstracted nearly so much water as they allege, and in any view it only withdrew water or excluded it from the river for a distance of about 250 yards. The evidence seems to

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But apart from the question as to the capacity and use of the Grandhome lade, a question of law arises as to whether the defenders are, in the present question, in titulo to plead that use, and I am of opinion that they are not. The Lord Ordinary examines the agreement of 13th November 1797 between the proprietors of Grandhome and Stoneywood, and another agreement, dated 5th March 1891, between themselves and the present proprietor of Grandhome, and I agree with his Lordship, for the reasons he assigns, in thinking the defenders have not by these agreements obtained the command of the Grandhome water rights, as also that they are not in a position to exercise the rights which formerly pertained to the Grandhome mill, and that consequently the capacity of the Grandhome mill lade cannot be taken into account in considering whether the defenders'are or are not exceeding their legal rights in withdrawing what is, throughout a large part of the year, practically the whole water of the river, into their mills at the Stoneywood intake. There is no transfer of any right of property, or other feudal or active right, in Grandhome to the defenders, but merely a payment to a competitor for the water as a consideration for his ceasing to withdraw it. I may add that, even if Stoneywood, Waterton, and Grandhome had all been held under the same titles, and water had been taken from the river at Grandhome by the owner of the three properties, as it was by the proprietor of Grandhome, or persons deriving right from him, I do not think that the owner of the three properties could have begun to exercise at Stoneywood, or elsewhere on the combined estates, the right to abstract at Stoneywood the quantity of water which he had formerly abstracted at Grandhome, in addition to the quantity which he had formerly abstracted at Stoneywood. The right prescribed is the right possessed— tantum prescriptum quantum possessum ,—and although a proprietor of salmon-fishings may have acquiesced in water being taken at one place throughout the prescriptive period, it does not follow that he would have acquiesced in this being done at another place during that period. The right alleged to have been acquired by prescriptive possession must be exercised modo et forma as it has been possessed. I may refer to the case of M'Gavin v. M'Intyres , 17 R. 818, 20 R. (H.L.) 49, in which it was held that a riparian proprietor who had acquired a prescriptive right to take, in a particular way and in a particular place, pure water from a river, and to restore it to the river in a polluted state, was not entitled to take it in any other way or at any other place with the effect of increasing the pullution of the river.

The next question is, Have the defenders, by prescription or otherwise, acquired a right so to deal with the water of the river at Waterton as to entitle them to leave the bed of the river practically dry for a large part of the year below the dam dyke there? Such a right could not, in my judgment, be acquired as against anyone having an interest in the natural flow of the river without either an express grant or renunciation, or evidence that the whole, or nearly the whole, water had been abstracted or prevented from passing down to the lower reaches of the river and its bed left dry, or so nearly dry as not to be passable by salmon, for the prescriptive period prior to the raising of the action. The case of the defenders on this point I understand to be—(1) that their sluices and lades at Waterton were, back to 1860, capable of receiving and passing about 34,000 cubic feet of water per minute; (2) that their make of paper in 1860 required 31,850 cubic feet per minute; and (3) that in 1879 the quantity taken was about 29,000 cubic feet per minute when the water was lipping the crest of the dyke. The pursuers reply that the figure of 29,000 cubic feet per minute is not sustained by the evidence; that the inferences drawn from the capacity of the sluices and lades cannot be relied upon, as the capacity might exist without its being used nearly to the full; and further, that the calculations of horsepower and water-power required for the manufacture of certain quantities of paper are exaggerated. There is opposing evidence of experts, especially of Mr Ironside and Mr Carter, on these points, the former putting the maximum capacity of the sluice and lade to pass water at 27,921 cubic feet per minute when the water was lipping the upper part of the dyke, and 25,320 when the water was lipping the lower part, while according to Mr Carter, proceeding upon measurements taken in 1878, the quantity then withdrawn amounted to only 23,230 cubic feet per minute. The Lord Ordinary, while feeling the difficulty of deciding between the opinions of experts, expresses himself as satisfied that he will do full justice to the defenders if he assumes a withdrawal of 28,000 cubic feet per minute when the water of the river was nearly level with the average crest of the dyke, and this appears to me to be a reasonable assumption. But if this be so, it follows that there is no good ground for the contention that the Lord Ordinary has erred in holding that the defenders now exclude from the river below Stoneywood 29,000 cubic feet more than they excluded prior to 1882, and that they exclude below Waterton 8000 cubic feet per minute more than they excluded prior to that year. I concur with his Lordship in thinking that the defenders have failed by reference to any rights which they have acquired by prescription, to prove either (1) that these rights justify what they are doing now or (2) that they displace, for want of interest, the pursuers' title to sue. But if this view is correct, it does not appear to me that the pursuers are bound to prove affirmatively that their salmon-fishings have in fact suffered from the alterations made by the

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The defenders also plead acquiescence by the pursuers in their increased abstraction of water from the river. Two things are necessary to support this plea—(1) that the person who is alleged to have acquiesced shall have had power to stop the things complained of; and (2) that he shall have had full knowledge of what was being done. The pursuers could not object to the defenders making any excavations or erections they pleased on their own ground so long as they did not use them to the prejudice of the pursuers, and if a case of acquiescence is established at all, it must, in my judgment, be in the use of the works and equipments of the defenders for withdrawing water from the river, not in the excavation or erection of these works, which they had no power to stop. If the pursuers had been maintaining a claim of damages, or other claim founded upon what had been done in time past, I could better have understood the argument of the defenders, but I do not see how (apart from prescription) it would confer upon them any permanent right for the future. The defenders, no doubt, in and about 1882 executed important enlargements and improvements upon their works, which cost large sums, the turbines and their equipments alone having apparently cost about £15,000, but the pursuers had no power to stop or interfere with what the defenders were thus doing within their own property, and the pursuers were not bound or indeed entitled to assume that the defenders would put their property and works to any unlawful use, as, for example, by withdrawing from the river more water than they were legally entitled to withdraw. The plea of acquiescence to avail the defenders would, as already stated, require to be, not in the erection or construction, but in the use of the works, and it is not in my judgment established that they ever acquiesced in that use. Further, in order to sustain the plea of acquiescence, knowledge on the part of the pursuers of what the defenders were doing or intended to do would require to be proved. The pursuers deny such knowledge, and I see no reason to doubt the truth of their denial.

An important point was, however, raised by the defenders in regard to the Don Fishery Board. I understood them to contend that the Don Fishery Board had power to decide and to decide finally the legality and the propriety of such works as those executed by the defenders at and below Stoneywood, and that as what they (the defenders) did was sanctioned by the Board, it cannot be challenged in this Court. It appears to me that in order to make this point good as a defence to the present action the defenders would require to establish (1) that the Don Fishery Board had power to bind the pursuers by their assent or absence of objection in regard to the matters in question; (2) that the Board had full and accurate knowledge of what the defenders proposed to do as well as of its effects upon the salmon-fishings belonging to the pursuers and other proprietors of salmon-fishings in the river, and of all other material facts, and that in such full and accurate knowledge they passed the minute of 16th September 1879, and caused the letter of the same day to be written by their clerk.

In considering this view it is material to keep in view that the Don Fishery Board is the creature of the Salmon Fisheries Acts of 1862 (25 and 26 Vict. c. 97) and 1868 (31 and 32 Vic. c. 123), that its powers are conferred and defined by these Acts, and that it has no powers except such as are so conferred and defined. If the communications between the Board and the defenders were to bind the pursuers to what was in effect a concession, or to make an agreement obligatory on the pursuers, the power to make and enforce such a concession or agreement must be found in the statutes, and I am unable to discover anything of the kind in them. This view receives support from the decision in the case of Tay Fishery Board v. Robertson and Others , 15 R. 40, in which, while it was held that such Boards have power under the Acts to sue for statutory penalties and offences, it was also decided that they being merely statutory boards with statutory powers and remedies have no title at common law to sue for interdict against persons fishing in a manner alleged to be illegal, or doing something else forbidden by statute or common law. It is also to be kept in view that in what they did the Board proceeded upon the statements of their clerk, and that he acted upon information furnished to him by the defenders. The clerk's letter to the defenders' law-agents dated 18th August 1879 bears that the Board received favourably the proposal to make alterations in the water supply of the works, and will agree to it “on the assumption that the Board is satisfied by the report of a qualified engineer that by the intended operations the withdrawal of water from the river shall not be greater than Messrs Pirie are now entitled to use, and that no damage is likely to arise to the fishings.” And the minute of the Board of 16th September 1879 assenting to the proposed works of the defenders bears “as from that report” (Mr Willet's) “it appeared that the intended operations would not in any way detrimentally affect the fishings, the Board assented to the works being carried through by Messrs Pirie.”

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So far as I see from the papers no question was submitted to the Board which they were asked to decide as between disputant parties, nor does it appear that the pursuers were apprised of what was passing between the defenders and the Board. The defenders communicated only with the Board, not so far as appears with the pursuers or any other proprietor of salmon-fishings interested, and I think that the patrimonial rights of the pursuers could not be prejudiced or affected by such an ex parte proceeding in the absence of any statutory declaration that it should be binding upon them. The assent given by the Board could only be for any interest which they had or with which they were charged, and such assent as they gave seems to have been in effect conditional upon the proposed works not being constructed or used so as to prejudice the salmon-fishing interests in the river. The Board seems to have assented (for such power as it had) to the withdrawal of 28,000 cubic feet per minute, while the capacity of the old lade was only to take 14,000 cubic feet per minute; in other words, to the quantity of water withdrawn, or, at all events, to the capacity of the lade and other works for withdrawing water being doubled. If they gave such an assent it seems to be plain from the letter and minute above quoted, as well as from the other documents produced, that they did so under essential error.

[ His Lordship then proceeded to dispose of the minor points dealt with by the Lord Ordinary .]

For these reasons I am of opinion that the Lord Ordinary's interlocutor should be adhered to.

Lord M'Laren —I concur with the Lord President and the Lord Ordinary in their review of the facts of the case, and also as to the questions of law as to which the parties are at issue. I shall only state in a few sentences the points which I hold to be established.

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Lord Adam and Lord Kinnear concurred.

The Court adhered.

Counsel for the Pursuers—Dean of Faculty ( Asher, K.C.)— W. Campbell, K.C.— Balfour. Agents— Alex. Morison & Co., W.S.

Counsel for the Defenders— Salvesen, K.C.— Clyde, K.C.— Nicolson. Agents— Morton, Smart, & Macdonald, W.S.