J. & M. White and Others v. John White & Sons and Others [1905] ScotLR 42_330 (20 January 1905)

J. & M. White and Others v. John White & Sons and Others [1905] ScotLR 42_330 (20 January 1905)

The pursuers' right to the first water from the dam is not limited by the quantity historically used; it is a right of property (res meræ facultatis) not lost by non-use or prescription. The defenders have no title to restrict the pursuers' right, and any prescriptive right acquired by the defenders cannot prejudice the pursuers' legitimate use. The pursuers are entitled to declarator and interdict as restricted to 6000 cubic feet per minute.

Citation
[1905] ScotLR 42_330
Parties
Pursuers / Reclaimers: J. & M. White and Others; Defenders / Respondents: John White & Sons and Others
Jurisdiction
Scotland
Judgment Date
20 January 1905
Procedural Posture
Civil (declarator and Interdict) / Inner House, Second Division, on Reclaiming Note (appeal)
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; decree of declarator and interdict granted in favour of pursuers as restricted; expenses to pursuers subject to modification.
Legal Topics
Water Rights, Mill Dam Rights, Prescription, Res Meræ Facultatis, Riparian Rights, Declarator, Interdict
Property Law Water Law Scots Law Water Rights Mill Dam Rights Prescription Res Meræ Facultatis Riparian Rights +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 15 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

J. & M. White and Others

Pursuers / Reclaimers

John White & Sons and Others

Defenders / Respondents

Procedural Posture

Civil (declarator and Interdict) / Inner House, Second Division, on Reclaiming Note (appeal)

Legal Issues

  1. 1 Whether the pursuers' right to water from the mill-dam is limited by prescriptive usage or may be increased as required by the mill's needs.
  2. 2 Whether the defenders have acquired by prescription a right to a fixed quantity of water from the dam.
  3. 3 Whether the pursuers' right is lost or restricted by non-use (res meræ facultatis).

Ratio Decidendi

The pursuers' right to the first water from the dam is not limited by the quantity historically used; it is a right of property (res meræ facultatis) not lost by non-use or prescription. The defenders have no title to restrict the pursuers' right, and any prescriptive right acquired by the defenders cannot prejudice the pursuers' legitimate use. The pursuers are entitled to declarator and interdict as restricted to 6000 cubic feet per minute.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; decree of declarator and interdict granted in favour of pursuers as restricted; expenses to pursuers subject to modification.

Orders

  • Declarator that pursuers are entitled to the first water from the dam for their mill up to 6000 cubic feet per minute.
  • Interdict against defenders from withdrawing water except when the dam is full and then only up to 2077 cubic feet per minute.