One difference there is, namely, that a canal occupies the surface of the ground, while in this case the pipes are beneath the surface. This, however, seems to me to make no difference in the application of the principle which establishes the right of support (see the cases of Normanton Gas Co ., where the subject was a gas-pipe, and Dudley Corporation , where it was a sewer) though it may make some difference in the precise nature of the right which the undertakers have to the ground occupied by their works. I do not think the obligation of support is affected according as that right to the ground is truly property in the
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But then it is said all this has been changed by subsequent legislation. The Act of 1819 was referred to and continued by later statutes before it was repealed with saving clauses in 1847. In particular, the Edinburgh Water Company's Act of 1843 (6 and 7 Vict. c. lxxxix), contains in sections 111–116 a set of mineral clauses which, the defenders contend, must be taken along with the Act of 1819 as furnishing a code applicable to the subjects now in question. It seems to me, however, extremely difficult to adopt that conclusion if the view I have expressed as to the rights of parties under the earlier statute be sound. If, indeed, minerals could be regarded as having been excluded hinc inde under the earlier statute, it would be quite reasonable to introduce later a code to regulate the respective rights and obligations in that particular, and to apply it to the existing works as well as to new works. But then I do not regard the earlier statute as having excluded mineral rights from consideration, and I think that so serious an alteration in the rights of parties as to the existing works is not to be imposed unless the construction contended for is a necessary one. As I read the Act of 1843, its mineral clauses do not apply except to the new works thereby authorised, which, it is to be observed, are almost entirely situated in the parishes of Penicuik, Colinton, and Currie, and not at all in the parish of Lasswade, in which Straiton and Pent—land lie. It is quite true that the previously existing works are not altogether unaffected by the Act of 1843. Thus by section 124 the company are taken bound within five years to complete the necessary works for introducing the whole of the water which they were authorised to take ‘by the said recited Acts and this Act.’ By section 125 it imposes on them the duty of providing and maintaining a meter on the main Crawley pipe; and by section 141 they are bound to erect and maintain an additional gauge on the Glencorse Burn, below the works at Crawley. These and other enactments show that the Act of 1843 had the existing works distinctly in view; but I cannot hold that the expression ‘the works of the Company,’ contained in the mineral clauses, applies to the works then in existence, the rights in which had been acquired more than twenty years before.
The pursuers present an alternative case on this head. They allege a right of servitude, founded on the ownership of the reservoir on the Castlehill, which has been vested in them and their predecessors since before the middle of the last century, and which ever since the Crawley pipe was opened in 1823 has been receiving by it a continuous supply of Crawley water. The proof clearly establishes these facts. In the view I take, however, of the pursuers' rights, it is unnecessary to follow out this topic. The plea rests, as I understand the pursuers' case, upon implied grant, importing an obligation not to derogate from that grant by letting down the pipe. It seems to me it would be difficult to affirm an implied grant in a case where the origin of the right of aqueduct is perfectly well known, seeing it rests on the statute of 1819. I could understand the contention that the Act of Parliament itself imports a statutory grant of servitude; but there seems to be no room for grafting a common-law servitude upon the statutory enactments.
The next question is, whether, assuming the right of support to exist, the defenders' operations, if continued, will substantially interfere with that right. By the right of support, I mean the right to have the pipe supported as it lies, and at its present level, whether by the natural strata being left undisturbed, or by means of some substituted structure which will ensure the same result ab ante . I put the question thus because I think that must necessarily be the extent of the right of support, if it exists, and because the parties are not really so far apart on the questions of fact as they appear to be on the proof. The conclusions of the summons do not expressly put the pursuers' case so high as to demand support by the natural strata, and to exclude substituted support. On the other hand, it is, I think, clearly established that a continuance of the defenders' threatened operations will result in substantial lowering of the pipe and imminent risk to the water supply. Further, the pursuers' criticism of the position taken up by the defenders as to substituted support seems to me perfectly sound, namely, that it contemplates not the prevention of subsidences, but their cure. The sits or draws which are assumed by all the witnesses to be practically inevitable as the result of the defenders' operations are to be watched for, and a massive structure of beams or girders is to be applied, from which the pipe is to be slung with chains, with appliances for screwing up the pipe from time to time as the level alters. It appears to me that, even apart from the pursuers' evidence, which is weighty, the defenders' own witnesses (Mr Rankine, Mr Dixon, Mr Scoular, and Mr Armour) show that the pipe would from time to time over a considerable part of its course be in a condition of peril, would need careful watching, and would be liable at least to ‘drawn joints’ and consequent leakage, if not also to breaks and stoppage of the supply. Add to this, that the pipe in place of being underground, as it is now, would be exposed in considerable sections to atmospheric influences, and might be damaged by frost if the flow were sluggish; and it becomes plain, in my opinion, that the defenders' proposed substituted support is not support at all in the sense in which the pursuers are entitled to it. What they are entitled
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The result is, that in my view recourse must be had to the only possible alternative, to leave a certain area of the minerals unworked for the support of the pipe. The question is, how is that area to be defined? In their summons the pursuers conclude that the Court should, ‘by remit to a person or persons of skill or otherwise,’ fix and determine the limits within which the defenders should be bound to abstain from working, or otherwise the manner and conditions in and under which the workings may go on adjacent to the feu, and under and adjacent to the pipe. The defenders maintain that the words ‘or otherwise’ are not sufficient to include the determination of the area by a decree following on a parole proof, but this, I think, would be too critical a construction. It might be inexpedient and possibly unfair so to fix it, if the proof showed serious divergence in point of principle between witnesses of equal skill. But the weight of the evidence seems to me to be all in one direction, possibly because the defenders' purpose on this head is not so much to minimise the area to be left unworked, but rather to show that none (except a little at the outcrop) need be left unworked if their proposal for mechanical substituted support is adopted. All agree that some of the mineral near the outcrop should remain as it is, the limit being variously stated at from 100 to 200 yards. As to the area traversed by the pipe between that limit and the east end of the feu, the defenders' witnesses, Mr Rankine, Mr Miller, and Mr Armour, practically concede that this could not be worked out without affecting the level and stability of the pipe to the extent at least of causing drawn joints, and their suggestions go to remedy rather than prevention. But on the assumption that these suggestions are in adequate to satisfy their obligation of support, the defenders' witnesses do not really suggest any practical alternative to the rule formulated by the witnesses for the pursuers. All agree that to the rise of the strata the line of safety is to be found by dropping a ‘normal’ or perpendicular line to the strata from the surface point to be protected. But to the dip, the defenders' witnesses have really no practical suggestion to make as to how the limit of safety is to be ascertained, and their theory, such as it is, does not appear to have ever been adopted in practice—certainly not by the defenders in their plans—and it is contradicted by the evidence of how far actual subsidences extended as noted on the defenders' working plans from time to time. The pursuers' witnesses, indeed, are not at one either upon this point, but they are substantially so. The evidence discloses a variance between the practice in England and Scotland. In Scotland the slope or batter left to the dip in the ordinary case is one in four; in England it appears to be a little less, namely, one in five. I see no reason to doubt that the English rule will furnish a sufficient margin of safety, and there being no special circumstances here to suggest that the situation is specially risky, I am prepared to apply that rule in this case.
Then as to the feu, it is not disputed that the defenders cannot work any further minerals under it, as these belong in property to the pursuers. The controversy, therefore, turns upon whether the pursuers are entitled in present circumstances to have the limits of safety applied to the boundaries of the feu itself, irrespective of the pipe lying in it; in other words, whether the right to lateral support of land to land entitles them to interdict adjacent workings ab ante on proof of danger reasonably apprehended. That there is such reasonable apprehension of subsidence in the surface of the feu if the defenders work out the adjacent minerals in their own ground, is, I think, clearly proved, not merely by the subsidence which occurred there some years ago (for that followed on an encroachment made by the defenders' workings within the fen), but by applying the ‘limit of safety’ to the feu boundary all round. There is practically the same reason for apprehending subsidence of the feu when that limit is overpast as for apprehending subsidence of the pipe. But the difficulty I have felt on this part of the case is caused by certain English authorities, of which Smith v. Thackerah (1866, L.R., 1 C.P. 564) is one and perhaps the strongest. They appear to lay down that the owner must wait till actual damage arises, and that even when the surface has in fact been lowered by the withdrawal of lateral support, no action will lie unless substantial damage has accrued. There may be a distinction between the case where the two adjoining subjects have never been united in one ownership, and the case where (as here) the complainer derives his grant from his neighbour, or his neighbour's predecessor. Smith v. Thackerah has been doubted in more recent cases, on the ground that if the right of support of land to land has been actually infringed, an action ought to lie at least for nominal damages, even if the damage is not substantial. But if that point is reached, I do not see how in Scotland the remedy of interdict is not appropriate and competent to safeguard the right, on proof of reasonable apprehension of imminent risk of subsidence if the workings are continued past the limit of safety, and in my opinion that is established here by the proof.
It remains to consider the defenders third plea-in-law that the pursuers are barred by their actings from insisting in this action. It is said that the defenders have in the knowledge of the pursuers spent a large sum of money—upwards of £5000—in developing and working their mineral field in such a way that a large part of the expenditure will be rendered useless if the pursuers succeed. This is a plea which depends largely on facts, and on the facts here I do not see my way to
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In the result my opinion is that the pursuers are entitled to decree substantially as concluded for.”
The defenders reclaimed, and argued—(1) It was clear that under the Act of 1819 the defenders were not specifically given any right of support for their pipe, and accordingly they must show that such a right was implied in the statute. In considering the statute with regard to this point, three questions must be kept in view, viz., ( a ) What was the nature of the work, was it compulsory and of a public nature? In that case it must be admitted there would be a presumption that a right to support was implied. ( b ) Was the authority to construct given by the statute such a one as put upon the proprietor the duty of claiming compensation, his right to it being lost if he failed to do so? ( c ) Did
the statute contain any provisions which, if the body authorised had chosen to put them in force, would have given it a right of support? Looking to the terms of the statute, all these questions would be answered in the negative, and it followed that the pursuers had not this implied right. The doctrine of the case of the London and North—Western Railway Co. v. Evans , [1893], 1 Ch. 16, on which
the pursuers relied, did not apply, because in that case the purpose of the undertaking was a public one, and the proprietors' right to compensation had been partly satisfied, the Court holding that the claim for compensation must be made once and for all, and that no new element could be taken into account. Here the purpose of the undertaking was not public, and no claim for compensation had been made— Roderick v. Aston Local Board , (1877) 5 Ch. Div. 328; Metropolitan Board of Works V. Metropolitan Railway Company , L.R. (1869), 4 C.P. 192; in re Corporation of Dudley , L.R. (1881), 8 QBD 86 , at p. 93. Moreover, the cases on which the pursuers founded turned upon the construction of different statutes, and it was not competent to argue that there was an implied right in one statute by analogy from another— Knowles & Sons v. Lancashire and Yorkshire Railway Co ., 1889, 14 App. Cas. 248, at p. 253. As regards the pursuers' claim of lateral support for the strip held in feu by them, and the pipe in it, the defenders did not dispute that the pursuers were entitled to support for the land itself in its natural state, but it by no means followed they were entitled to such support for the pipe, a thing which had been inserted in the ground by themselves, and which increased the burden upon adjacent lands— Dalton v. Angus , (1881), 6 App Cas 740 . (2) There was no record of any payment having “been made, or contract entered into with reference to the laying of the pipe, and accordingly the rights of the pursuers must be determined, not by the Act of 1819, but by that of 1843. The mineral clauses in the later Act, secs. 111–116, must be taken as giving a code for regulating the rights of parties. “The works of the Company” to which these clauses referred must apply to works already existing and not only to those authorised by the Act. Accordingly, even if the pursuers had their alleged right of support under the Act of 1819, it must be held to have been modified and regulated by the Act of 1843. (3) Asto the pursuers' contention that they had a common law right of servitude of aqueduct, in respect of which they were entitled to support, there was no relevant averment of such a right. It was not enough to say they had laid a pipe and carried water through it for more than forty years. They must show that they had done so as of right. Mere possession was not enough, there was nothing to show anything but tolerance on the part of the proprietors— Macnab v. Munro-Ferguson , January 31, 1891, 17 R. 397; Duke of Athole v. M'Inroy's Trustees , February 8, 1890, 17 R. 456; Waddell v. Earl of Buchan , March 26, 1868, 6 Macph. 690. Accordingly, all the right possessed by the pursuers was to open up the ground and put in a pipe, and it was impossible apart from an implication drawn from their authorising statute—which it had been shown that statute did not bear—to predicate a right of support. (4) But assuming such right to exist, interdict was not an appropriate remedy to prevent a contingent injury which might never arise. The ground of action did not arise until the pursuers had sustained some injury to their pipes, when they could raise an action— Backhouse v. Bonomy , 1861, 9 Clarke's H. of L. Ca. 503; Darley Main Colliery Company v. Mitchell . [1886], 11 App. Ca. 127; Normanton Cas Company v. Pope & Pearson , 1883, 52 L.J.Q.B. 629, at 634; Stevenson v. Pontifex & Wood , December 7, 1887. 15 R. 125; Hood v. Traill , December 18, 1884, 12 R. 362.
Argued for the respondents—(1) The Crawley pipe was laid by the respondents' predecessors under the statute of 1819, and in respect of the terms of that statute, and in particular of sections 38 and 73, they were entitled to an absolute unqualified support for the pipe. Where a right was given by statute to do a certain thing, such as to lay a pipe, and there was also a right of compensation given to the proprietors, there was a strong presumption that a right to
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to a declarator of their right but to interdict in the form proposed by them— Trinidad Asphalt Company v. Ambard [1899], A.C. 594; Elliott v. North—Eastern Railway Company , 1863, 10 Clarke's H. of L. Ca. 333.
At advising—
Lord President —The first question is, whether the pursuers have a right of support for their pipe which conveys water from the Crawley Springs to Edinburgh, where it passes through the part of the lands of Pentland in which the pursuers have acquired no right of property, and the lands of Straiton; and the second question is, whether the pursuers have a right of lateral support for a narrow strip of the lands of Pentland, about 1083 yards long and about 25 yards broad, which they hold in feu, and for the pipe which conveys water to Edinburgh from the Crawley Springs where it is laid in that strip of ground. The pursuers, as I understand, base their claim to the support mentioned in the first question upon two grounds—(1) upon the Act of 1819, and (2) alternatively upon their having, as they allege, acquired a servitude of support for their pipe at common law. I shall deal with these two grounds of claim in their order—taking first that which depends upon the construction and effect of certain sections of the Act of 1819, especially section 38, and what followed upon it. The Act of 1819 is entitled “An Act for more effectually supplying the City of Edinburgh and places adjacent with water,” and it provided for the establishment of a company to carry out that object. By section 38 of the Act the company—in whose right the pursuers nowstand—were empowered to take and use grounds and premises for the purpose of forming a reservoir or reservoirs at the places therein particularly described, provided that the consent in writing of the owners and occupiers of the lands whereon the same were to be formed should be previously obtained, “to compensate” (which I understand the parties are agreed means “for the purpose of compensating”) owners and occupiers of mills and landowners for the water taken for the purposes of the Act as thereinafter directed. Then follows a power “to make the necessary cuts, trenches, mounds, or other works for connecting the springs and water hereinbefore mentioned to be taken, and also the necessary cuts, trenches, conduits, mounds, or other works for conducting the water thereof to the said city in the line or lines pointed out in the said map or plan, and to construct the necessary aqueduct or aqueducts, and to lay the necessary pipe or pipes for that purpose, giving one month's notice of such their intention to the owner or owners or occupier or occupiers of such grounds and premises, and making satisfaction to such owner or owners and occupier or occupiers in manner hereinafter directed.” There is in this section a sharp distinction between the power to take and use land for the purpose of forming reservoirs and the power to construct the necessary aqueducts and lay the necessary pipes for
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The work was begun in the autumn of 1819, and water was brought to Edinburgh in August 1823 by the pipes laid under the authority of the Act. It is not proved that any payment or other satisfaction was made by the Water Company to the owners of the lands of Pentland or Straiton through which the pipe was laid in respect of its being laid, though it does appear that the company was in communication with the proprietors of these lands or their law-agents at the time, and made considerable payments to them in respect of matters arising out of the execution of the works. Thus, on 14th February 1820, the company intimated to the law-agent for Straiton that they proposed, by virtue of the powers conferred by the Act of 1819, to quarry stones from Straiton Quarry “for the use of the works now carried on by the company for the purpose of conveying Crawley Springs and other water to Edinburgh,” as they were entitled to do under the Act, and it appears that stones were taken for this purpose from Straiton Quarry, and duly paid for by the company. Again, on 14th July 1820 the company intimated to Mrs Gibsone of Pentland that “they intend soon to take steps with a view to conduct the water-pipe from the Crawley Spring, &c., through your estate to Edinburgh,” and mentioned that the company's engineer would be ready to point out the track of the pipe, “most of which is already on the ground;” that the damage done by the operation, and the value of the ground occupied, were to be settled by a jury in terms of the Act if not adjusted privately; and that the directors would be well pleased to agree to a reference, and ready to consider any proposal which Mrs Gibsone might think fit to make with a view to a settlement. There was also correspondence between the company and Mrs Gibsone's agent regarding the acquisition from her of the strip of the lands of Pentland which she afterwards disponed in feu to the company, and to which the second question above mentioned relates. A minute of the Committee of Management of the company, dated 3rd August 1820, bears that “the meeting having been informed of the communications from Mrs Gibsone of Pentland respecting the value of her property through which the aqueduct is to run, are quite satisfied with her proposal to have a report of the value of the damages to her property from Mr George Brown, and that she should not be bound by the report unless she thinks fit to accept of his valuation.” Another minute of the committee, dated 18th May 1821, bears that “Mr Jardine having laid before the meeting Mrs Gibsone of Pentland's letter specifying the terms on which the stone from the quarry lately discovered on her ground may be had, the meeting authorised Mr Jardine to accept of it, taking care to make the terms of the agreement more precise.” Another minute, dated 7th June 1821, directs that in answer to a letter from Mr Train he should be informed that they were ready to have the damage done to his farm of New Pentland ascertained by Mr George Brown, as already agreed upon by “Mrs Gibsone of Pentland and her tenants.” There is also contemporaneous documentary evidence that surface damages were paid to the agricultural tenants on the estates of Pentland and Straiton, while certain payments were made to the proprietors, as to the precise nature of which the parties are not agreed. Thus the defenders maintain that a payment of £166, 1s. 11d. made to the proprietor of Pentland “for ground occupied by aqueduct” was in respect of the feu, and it is quite possible that this may be so. The probability seems to me to be that none of the parties were aware that any minerals workable to profit existed in the lands, and that the payments made by the company to the proprietors and their tenants were made and accepted as being in full of all the claims which the proprietors had under the Act against the company. But, however, this may be, it is clear that the proprietors of Pentland and Straiton were well aware that the company was making an
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But it appears to me, separatim , that if the company would have acquired an effective and permanent right to support for their pipe upon “making satisfaction” by way of payment or otherwise to the proprietors of the lands, it must be held to have acquired a not less effective or less permanent right if with the assent of tnese proprietors it cut its aqueduct and laid its pipe without payment. It must have been manifest to the proprietors that the right which the company acquired was intended to be permanent, and if the proprietors elected (with or without consideration) to abstain from making a separate claim for “satisfaction” in respect of it, I am unable to see that the rights of the company—or the pursuers as now standing in its place—can be less than if “satisfaction” in the statutory sense had been made.
The defenders maintained that as section 22 of the Act of 1819 requires the Committee of Management of the company to enter in a book all contracts which they might enter into, and all payments which they might make, and as no contract relative to the acquisition of a wayleave for the pipe, and no payment in respect of it is entered in any book kept by the company, it cannot now be assumed that the pipe was laid under the authority of the Act, or that “satisfaction” in the sense of the Act was made. It appears to me, however, that even if the requirements of section 22 were not literally complied with, this would not have the effect of preventing the company from acquiring a permanent right in the nature of a wayleave for their pipe, or of precluding the proper inferences from being drawn from the proved facts, as to whether “satisfaction” in the statutory sense had or had not been made. I therefore think that, for the purposes of the present question, it must now be taken that the company acquired a permanent right to maintain their pipe in the part of the lands of Pentland which they did not acquire in feu, and also the lands of Straiton, and further, that it must now be assumed that the claim of the proprietors for “satisfaction” was either met or waived. With reference to the alternative claim of the pursuers to a common law servitude aquæductus , with respect to which the pursuers' reservoir on the Castle Hill was the dominant tenement, it is sufficient to say that as the foundation of their right to lay the pipe was clearly the Act of 1819, any inference of a common law servitude aquæductus is in my judgment excluded. The next question is, Did the exercise of the statutory power to lay and maintain a pipe through the lands infer any, and if any, what right to support for that pipe? It is plain that if no such right of support was acquired, the grant by Parliament of the power to lay and maintain it would have been nugatory, and there is every presumption against this having been intended. I think, however, that, both upon principle and authority, the effect of the grant of such a power is to confer upon the grantees a right to such support as may be necessary for making the purpose of the grant effectual. The case of the London and North-Western Railway Company v. Evans , 1893, 1 Ch. 16, is one of the most recent and most apposite authorities to this effect. It was maintained by the defenders that the doctrine of that case does not apply to the present, because the Water Company which was established under the Act of 1819 was not a public company—inasmuch as it was not directed to accomplish a public object in the sense of the decisions, and there was no security that it would be permanent. It is true that the company was not strictly a municipal undertaking, although it was promoted by leading citizens, and the municipality as then constituted had an important interest in it. The Act of 1819 also came in place of two prior statutes, under which the management of the water supply appears to have been vested in the Town Council, and an important restriction was imposed by the Act in the public interest upon the amount of profits which the company might make and divide. It is also true that the company was not bound by the statute to give a full supply of water to all the citizens, nor were there under it limits of compulsory supply as that expression is now understood, but important obligations relative to the supply of water were imposed upon the company in the public interest. Thus by section 34 it was, inter alia , provided that the company should supply water to the then existing public wells of the city, and perform all lawful contracts previously entered into by the Lord Provost, Magistrates, and Council under the recited Acts, and by section 85 it was declared that all persons who at the time of the passing of the Act had water convened to their houses or other premises in pipes already laid, should continue to possess and enjoy the same privilege upon making payment to the company of the then present rates and duties until Whitsunday 1821, and of such rates and duties as might after that term be fixed in the manner thereinafter specified. Section 86 conferred upon the inhabitants power after notice, and with the consent of the company, to lay service pipes to their houses from the company's pipes; and by sections 96, 97, 98, and 99 powers of rating were conferred upon the company. I am of opinion that under these circumstances the statutory power to lay and maintain a pipe in specified lands for conveying such a supply of water must be held to have carried with it a right to have that pipe supported whether the claim of the proprietors of the lands for “satisfaction” was met or waived.
The pursuers' claim of lateral support for the strip of land feued by the company from
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What I have now said proceeds upon the assumption that the question as to the right of support claimed by the pursuers depends upon the Act of 1819 and what was done under it, but the defenders maintained that this is not so, and that the rights and obligations of the parties hinc inde with respect to minerals, even in the case of lands acquired or powers originally exercised under the Act of 1819, must now be governed, not by that Act, but by the Act of 1843, 6 and 7 Vict c. 89, entitled “An Act to enable the Edinburgh Water Company to bring in an additional supply of water, and to alter and amend the Acts relating to the said company.” They contended, that inasmuch as no contract or payment is recorded with reference to the laying of the pipe, it must be presumed that when the Act of 1843 passed, the matter was still open for settlement, and that it must now be settled under the provisions of that Act. They maintained that in so far as that Act relates to works, it applies to all works both past and future, and that as the question relative to mines was not settled under the Act of 1819, it must now be settled under the Act of 1843. They referred especially to sections 17, 70, 73, 111 to 116, 122, and 148 of the latter Act, maintaining that section 17 applies to any claim still remaining unsettled in respect of powers already exercised under the Act of 1819. I think, however, that that section, if or in so far as it relates to claims arising out of the exercise of powers conferred by the Act of 1819, can apply only to powers still unexercised in 1843, and all the powers to which this action relates were exercised at least twenty years before that Act passed. The defenders further argued that this is a case of an omitted interest under section 70, and that section 73 applies to works or property acquired at any time, whether prior or subsequent to the passing of the Act. It appears to me, however, that there is in this action no question of an omitted interest under section 70 that; section 73 has no application (1) because it relates to lands purchased by the company—not to the case where they had acquired a right to lay a pipe in lands not purchased, and (2) that even if or in so far as it applies to lands purchased, it does not alter any rights already acquired to this date. The defenders also maintained that sections 111 to 116 effected a reservation of mines under the pipe track previously acquired, but I consider that this contention is not well founded, and that the Act of 1843 cannot be held to have taken away or impaired a right of support which, if the views above expressed are sound, had already been acquired by the exercise of the powers conferred by the Act of 1819. In respect of similar considerations I am unable to accept the arguments maintained by the defenders as to sections 124 and 125 of the Act of 1843.
For the reasons now given I think that the pursuers are entitled to have declarator substantially in the terms concluded for in the summons, and that the interlocutor of the Lord Ordinary should be adhered to in so far as it finds to that effect. But in the remainder of the interlocutor his Lordship finds that within the limit therein mentioned, the shale, limestone, and other minerals adjacent to the pursuers' strip of ground, and adjacent to or under their pipe or aqueduct described
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Lord Adam —I have had an opportunity of reading the opinion of the Lord President, and entirely concur in it.
Lord M'Laren —I have also had an opportunity of reading the opinion of the Lord President, and concur in it unreservedly. If I add anything, it is only to make an observation regarding the kind of support which, according to my understanding of the law, the Water Trustees are entitled to have for their pipe. One difficulty in considering cases of this kind is the necessity of giving some weight to certain very unqualified judicial opinions regarding the right which the proprietor of the surface has to claim support from the owner of the strata of minerals beneath. In one of the cases cited to us it was even asserted that in the case of land in its natural condition it might be that the owner of the surface was entitled to have the surface maintained in the same plane, or, as it was put by counsel, at the same distance from the centre of the earth as it was in its natural formation. As I have always considered that in such matters the common law is nothing but the generalised common-sense of mankind, and as no owner of hill or moorland ever supposed that he had such a right or ever made such a claim against a mineowner, I think we might fairly put the weight and authority due to universal custom against the somewhat unqualified opinions of individual Judges, however eminent, on a matter of that kind. But we are not now considering the right of support which belongs to the owner of the surface as distinguished from the owner of the minerals. The support claimed is the consequence of a statutory privilege to lay a pipe in the land of another person upon making adequate compensation. I agree with the Lord President that under the statute the Water Trustees are entitled to such support for their pipe as is necessary to make the statutory privilege effective, and it is quite possible that such support might be given consistently with some slight variation of the level of the surface. The nature of the support that would be given, for example, to an open aqueduct carried on arches across a valley is very different from the support which is given to a closed pipe where the water by hydrostatic pressure always rises to the same level notwithstanding deflections in the pipe. Of course I am keeping in view what was strongly argued to us, that even moderate deflections of the surface might be injurious to the pipe by causing it to open at the joints, but I think it is not impossible that the resources of engineering science might be able to cope with that either by making allowance for deflection or by giving artificial support. It is perfectly possible that the Water Trustees might obtain the full measure of their right under the statute without subjecting the owners of the mines to the enormous loss which they would undoubtedly incur if the law as laid down in the Lord Ordinary's judgment were to receive unqualified effect.
Lord Kinnear —I have had an opportunity of reading and considering the opinion of the Lord President, and entirely agree with it.
The Court pronounced this interlocutor—“Recal the said interlocutor [of 28th June 1900]: Find and declare in terms of the first declaratory conclusion of the summons: Further find and declare
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Counsel for the Pursuers—Dean of Faculty ( Asher, Q.C.)— Guthrie, Q.C.— Cooper. Agents— Millar, Robson, & M'Lean, W.S.
Counsel for the Defenders—Solicitor—General ( Dickson, Q.C.)— Clyde— T. B. Morison. Agent— J. Gordon Mason, S.S.C.