Earl of Kintore and Others v. Alexander Pirie & Sons, Ltd. (Ante, December 18, 1902, 40 S.L.R. 210.) [1905] ScotLR 42_607 (06 June 1905)

Earl of Kintore and Others v. Alexander Pirie & Sons, Ltd. (Ante, December 18, 1902, 40 S.L.R. 210.) [1905] ScotLR 42_607 (06 June 1905)

The abstraction of water by the defenders was actionable as it impeded the free passage of salmon and injured the pursuers' fishings, except to the extent supported by prescriptive right. The remit to men of skill was competent to assist the Court in regulation, but the regulation requiring at least half the river flow to be sent down the natural course was not proved by evidence and should not be accepted as an incontrovertible scientific fact. The Court adhered to the interlocutor, with regulation based on established facts and prescriptive rights.

Citation
[1905] ScotLR 42_607
Parties
Pursuers/respondents: Earl of Kintore and Others; Defenders/reclaimers: Alexander Pirie & Sons, Limited
Jurisdiction
Scotland
Judgment Date
06 June 1905
Procedural Posture
Civil / Appeal/reclaiming Note After Proof and Judgment
Outcome
Court adhered to the Lord Ordinary's interlocutor; appeal dismissed.
Legal Topics
Abstraction of Water, Prescriptive Rights, Regulation of Salmon Fishing, Interdict, Remit to Men of Skill
Property Law Environmental Law Water Rights Abstraction of Water Prescriptive Rights Regulation of Salmon Fishing Interdict Remit to Men of Skill

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 3 Authorities cited 4 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Earl of Kintore and Others

Pursuers/respondents

Alexander Pirie & Sons, Limited

Defenders/reclaimers

Procedural Posture

Civil / Appeal/reclaiming Note After Proof and Judgment

Legal Issues

  1. 1 Whether abstraction of water by millowners unlawfully impedes salmon passage and injures fishings
  2. 2 Extent of prescriptive rights to abstract water
  3. 3 Competency and scope of remit to men of skill for regulation

Ratio Decidendi

The abstraction of water by the defenders was actionable as it impeded the free passage of salmon and injured the pursuers' fishings, except to the extent supported by prescriptive right. The remit to men of skill was competent to assist the Court in regulation, but the regulation requiring at least half the river flow to be sent down the natural course was not proved by evidence and should not be accepted as an incontrovertible scientific fact. The Court adhered to the interlocutor, with regulation based on established facts and prescriptive rights.

Court Disposition

Court adhered to the Lord Ordinary's interlocutor; appeal dismissed.

Orders

  • Defenders not entitled to abstract water at Stoneywood Dyke in excess of 7000 cubic feet per minute except when nine inches of water are flowing over the crest.
  • Even on excepted occasions, defenders not entitled to withdraw more than 31,850 cubic feet per minute unless at least half the river flow is left to flow over the dyke.