MCNAB v. ROBERTSON, H.L.

nor altogether satisfactory, in regard to the condition of the spring at its effluents at and before the granting of the lease in September, 1889. Most of the witnesses speak to their condition after the operations of the agricultural tenant, which were subsequent to that date, and before the year 1892. But I am satisfied upon the proof that, whilst a small proportion of the water escaping from the spring may have gone in another direction, the bulk of its waters must have gravitated towards the pond, and that a considerable proportion of it must ultimately have found its way into the pond. Galbraith, the agricultural tenant, describes the land between the spring and the pond, before he commenced his operations, as a marsh which did not come quite close up to the side of the pond. He, in order to dry the soil, put a drain into the marshy part, which he continued by means of an iron pipe three feet long to a tub sunk on the edge of the pond, from which he drew water for domestic use, and the overflow from which went into the pond. Lawson, who was assistant factor for the estate of Garscube, at the date of the lease, describes the intervening land as "soft, spongy ground;" and there are other witnesses who describe the water as "seeping" from the adjacent land into the pond-a Scottish expression equivalent to oozing "—which is an accurate description if applied to the escape of percolating water from the strata through which it has passed, and is to my mind altogether inconsistent with its running in a stream. Boyne, one of the appellant's witnesses, no doubt says that there was a sort of channel formed by the water from the spring; but he is the only person who appears to have detected it, and the bulk of the evidence on the point, as well as the natural inference to be derived from facts established aliunde, alike lead me to the conclusion that, until the time of Galbraith's operation, the water of the spring reached the pond by the natural process of percolation, and that no part of the supply derived from the spring flowed in a body which could with any degree of accuracy be described as a stream.

66

I therefore differ in opinion from the

Lord Ordinary, who came to the conclusion that the water of the spring in question was one of the streams specifically let to the appellant. Had I been able to arrive at that result, I should not have thought it necessary to consider whether by interfering with the spring the respondents had injured the appellant's water supply. In that case every drop of water which they took from the spring, otherwise than in the due exercise of their reserved right in connection with farm purposes, would have been an illegal diminution of the supply secured to the appellant by the terms of his lease. The result of my opinion, so far as hitherto expressed, is that the waters of the spring in question were not demised to the appellant, subject to a reservation permitting a certain user of them to agricultural tenants, but remained with the respondents under their title as proprietors. The appellant, upon that view of the case, maintained alternatively that the respondents are under a contractual obligation to allow as much of the water of the unlet sources from which the pond is fed to continue to enter it as may be equivalent to the average of the water supply derived from these sources at the date of the lease; and in aid of that contention he relied upon the general principle of lawthat the grantor of a right cannot himself do anything in derogation of his own grant. The application of that principle must depend upon the extent of the right which the tenant got under his lease, whether by demise or by contract. I see no reason to doubt that such a contract right as the appellant alternatively claims, seeing it may be the subject of express stipulation, may also be derived by reasonable implication from the terms of the lease. But any such implication is attended with difficulty in cases like the present, where certain sources of supply are specified and let. I am not prepared to affirm that a contract to the effect pleaded is implied in the stipulations of the lease of 1889; but I am willing for the purposes of this appeal to assume its existence. Upon that assumption, it is incumbent upon the appellant to establish that the result of the respondents' operations has been to diminish the supply of

MCNAB v. ROBERTSON, H.L.

water now finding its way from the spring into the pond, as compared with the supply which came from the same source at and before the date of the lease.

I think the necessary effect of the operations of Galbraith, the agricultural tenant, which were subsequent to the granting of the lease, was to convey the water of the spring more rapidly and more directly to the pond, and to prevent its dissipation in the soil or its evaporation. If so, their tendency would necessarily be to increase and not to lessen the quantity of water reaching the pond from the spring. The immediate effect of the respondents' operation which followed was to collect, as soon as they came to the surface, the whole waters issuing from the spring, including a proportion of them which had not previously gravitated towards the pond, and to make them available for transmission in undiminished volume. The water collected in the tank serves, in the first place, to supply a pipe, which is not used for agricultural purposes, and the remainder is directly conveyed by another pipe to the tub sunk by Galbraith, through which the water of the spring previously entered the pond. A comparison between the quantity of water which now runs over the tub and that which previously escaped from it must therefore afford the means of ascertaining whether there has been a diminution of the supply since the arrangement made by Galbraith was superseded.

The whole evidence which bears on the alleged diminution in the amount of the spring water which now enters the pond, as well as on the amount which entered it before the lease was granted, is, it may be necessarily, somewhat vague. In considering that evidence, it is in my opinion not immaterial to keep in view the fact that, in the time of his predecessors, the weekly output of the distillery never exceeded thirteen hundred gallons of whisky, whereas during the tenancy of the appellant it was increased to about seventeen hundred gallons, which represents an addition of about thirty per cent. to the quantity of water used for distillery purposes at the date of the lease. I have also to observe that the scarcity of water in such an exceptional season as that of

the year 1894 cannot throw much, if any, light upon the average quantity derived from the spring at and before the date of the lease a question which, in the absence of more reliable data, can in my opinion best be solved by ascertaining whether or not the overflow from the tub has been sensibly diminished since, and by reason of the respondents' operations. Upon that point there is conflicting evidence, but, on the whole, I prefer the testimony which is favourable to the respondents; and, in any view, I have no difficulty in holding that the appellant has failed to prove diminution. For these reasons I am of opinion that the interlocutor appealed from ought to be affirmed and the appeal dismissed with costs, and I move your Lordships accordingly.

LORD SHAND.-I am also of opinion that this appeal fails and should be disallowed; and I agree with my noble and learned friend who has just spoken in thinking that the water of the spring in question, which rises at a comparatively short distance from the pond to which the tenant has a right, was not within the subjects which were let or demised by the lease. At the date of the lease, and before the operations either of the tenant in making a short drain through the ground, or of the landlord at a later period, that water oozed or trickled from the spring into the ground between it and the pond, and lay in that marshy and spongy ground which was afterwards by drainage made of some use for agricultural purposes. It did not, I think, flow in any proper sense of the term toward the pond. The witnesses, speaking in Scottish terms, talk of it as water which "siped" or "seeped" down towards the pond; and in Jameson's Dictionary these words are thus described: "Siping or seeping means to ooze or distil very gently, as liquids do through a cask which is not quite tight." It being the fact that the water merely oozed or percolated towards the pond through the ground of that character, I turn to the lease to see whether such water was demised or let. The only words which are used in the lease are to be found on p. 39 of the printed Case. What is there demised is the distillery as de

the water is not so let the position of the parties is different. It then follows that the tenant is only entitled to complain, and to have a remedy if he is able to prove the landlords have diminished the water supply. This raises a question of fact for the consideration of the House; and in that question it appears to me that the onus is on the tenant who founds on an obligation not to diminish the water supply. It lies on the tenant to prove that the water supply has been diminished. On that question I agree with my noble and learned friend that the tenant has failed to establish this averment.

MCNAB v. ROBERTSON, H.L. scribed and the two ponds specially mentioned, together with "right to the water in the said ponds and in the streams leading thereto." The subjects of the lease appear to me, therefore, to be distinctly defined as being the water in the ponds and the water in the streams leading thereto. I am of opinion that water of the character which has been thus described cannot be regarded as water in any stream leading to the pond; I think that the term "streams" necessarily means flowing water, and not water which oozes from a piece of marshy ground, and that unless water flows more or less in a channel, and continuously, it cannot be described as water that flows in "streams" leading to the ponds.

There remains, however, the question whether, although the water is not included in the grant, there is not from the whole terms of the lease an implied obligation on the landlords that they shall not withdraw water which would naturally find its way into the ponds or streams to an extent which would diminish the supply as it was at the time when the lease was granted, and I am disposed to hold that there is such an obligation implied. The purpose of the lease is the working of a distillery, which, of course, without a proper supply of water could not be carried on. The ponds and streams are themselves directly leased; and, in addition, we find on p. 40 of the print there is an obligation on the landlord to "maintain the subjects hereby let, with the sluices, water supply, roads, and fences." It appears to me that, although the water in question is not directly conveyed, there is an obligation here on the part of the landlords that they will not in any way diminish the water supply.

But assuming such an obligation to exist, this differs very materially in its legal effect from a lease in which the water itself is let. I agree in thinking, as the Lord Ordinary says, that "if the water of the spring was part of the subjects let to the complainer, prima facie the respondents were not entitled to interfere with it in spite of the complainer's remonstrances, and the onus lies with them to shew that the complainer has not been prejudiced by their operations." But if

The Lord Ordinary in the elaborate judgment which he has delivered has examined with great care and minuteness the evidence upon this subject. His Lordship, after going in detail over the statements made by the different witnesses, and expressing his views as to the weight to be attached to them, concludes in these terms: "The question upon the evidence is very narrow, but I have come to the conclusion that the respondents have failed to prove that by interfering with the spring they have not injured the complainer's water supply." He was then looking at the question with the onus lying upon the landlord according to his view, and all that he is able to say in the result is not that there has been any diminution of the water, but that the landlords have failed to prove that by interfering with the spring they had not injured the water supply.

It

There are several considerations which are material upon the question of fact. is to be kept in view that by the recent operations of the landlord which formed the occasion for interdict being applied for, there was a material addition made in the water that was turned towards the pond. From one spring which was close to the pond the water, in so far as it did not remain in the intervening marshy ground, found its way to the pond; but there were smaller springs surrounding it, the water from which did not find its way to the pond, but in a totally different direction-in the direction of the blacksmith's house which is referred to in the proceedings. I am satisfied upon the evidence that there was a material addition

MCNAB v. ROBERTSON, H.L. made to the water sent towards the pond by the landlord's operations, for he included the springs to which I now refer. These were caught and enclosed with puddle so as to send the water to the pond.

There is no doubt a conflict of evidence as to the effect which the tank or cistern and pipe put in by the landlord had; but it appears to me that the weight of the

evidence is with the landlord rather than with the tenant; at all events, I am satisfied that there is no proof on the part of the tenant sufficient to shew that there was a diminution of the water supply as the effect of the tank and pipe.

I agree with my noble and learned friend in thinking that it is also not unimportant to observe that the operations of the distillery have been largely growing in recent years, requiring therefore a greater supply of water than was previously necessary. That circumstance may have induced some of those who were connected with the distillery to think that the water supply was somewhat diminished, when the truth was that it was rather the distillery's demands which were increased. I also agree in thinking that one cannot judge with any safety of the result of these operations from taking a very dry season such as that of 1894 as a test for examination; and on the whole I agree that the appellant has failed to prove that his water supply, as it was at the date of the lease, has been diminished by the landlord's operations.

LORD DAVEY.-I am also of opinion that the interlocutor of the Inner House should be affirmed.

The subjects demised are the distillery of Tambowie, with certain cottages and lands, and with two ponds numbered 140 and 134 on the Ordnance map, "together with right to the water in the said ponds and in the streams leading thereto." The first question is the construction of the lease. It appears that the land between the spring in question in this appeal and the lower pond was not included in the land demised to the distillery, and at the date of the lease it was just a marsh through which the water from the spring soaked and percolated, and some of it no

doubt ultimately found its way into the pond. But the water did not flow from the spring in any defined or visible channel. The appellant contended that all the sources of supply to the pond, and, if I understood his counsel rightly, all the water which if left to itself would by gravitation find its way into the pond, were within the subjects demised. And the Lord Ordinary by his interlocutor found that the water of the spring was a stream leading into the pond within the meaning of the lease, although the said water did not flow into the pond by any definite or visible channel, but by percolation through marshy ground. I find myself unable to agree with the construction put upon the words of the lease by the Lord Ordinary. I think that the word "streams" in the lease is used in its ordinary dictionary sense, and means a rivulet or course of running water, and that neither the spring nor the water soaking or percolating through the marshy ground can with propriety be termed a "stream." I find no context in this instrument to induce me to put what I consider an unusual and inaccurate meaning upon that word. I agree with the opinion of Lord Trayner upon this point.

But the lease contains a clause of warrandice against the facts and deeds of the lessors; and the appellant also relies on the well-known maxim-that a grantor may not derogate from his own grant. Like my noble and learned friend opposite, I have a difficulty in holding that, when certain feeders or sources of supply are expressly granted, the operation of the lease can be extended by implication so as to impose an additional burden or servitude on the grantor. But I will assume, without deciding, that there is in the present case an implied covenant that the lessors will not by their facts and deeds diminish the quantity of water in the streams or ponds-which, I think, is the most favourable way of stating the case for the appellant. Of course, if the spring and the water from it is in the demise, it is no defence to say, "We give you other water in compensation, and have not on the whole diminished your supply." The lessors on that hypothesis have no right

MCNAB v. ROBERTSON, H.L.

to touch the spring at all. But if the rights of the appellant are in contract, or an implied covenant, the situation is entirely different. The burden is in that case upon him to prove breach of the covenant, or (in other words) to prove that he has suffered a material loss of water by the operations of the respondents. If the Lord Ordinary had thought that the burden of proof was on the appellant, I am not sure that he would have found in his favour on this point. But, however that may be, I agree with Lord Young in the Court below, and with your Lordships who have already addressed the House, that on the evidence it is not proved that the respondents by their operations have diminished the water in the streams or ponds; and I agree with the interlocutor pronounced in the Inner House, and I think the appeal should be dismissed with costs.

THE LORD CHANCELLOR (LORD HALSBURY). I regret to say I am unable to concur in the opinion which the majority of your Lordships entertain.

I agree

with the Lord Ordinary that "by the lease two ponds are let to the tenant 'together with right to the water in the said ponds and in the streams leading thereto.'' That the learned Judge says, in his opinion, "includes as between lessor and lessee all the sources of supply of the ponds," and I am of that opinion. I think that the demise of the pond and all streams leading thereto was intended to convey, and did convey, all sources of supply. Though it be true that the word "stream" in its more usual application does point to a definite stream within defined banks, I do not think it is confined to that meaning. We speak of a stream of tears flowing from the eyes, and we speak of blood streaming from a vein-I think we may well speak of "streams" in the plural as meaning water passing over the superficies of a plain-we may call such a flow of water a stream. I think that the root idea is water in motion from one place to another as distinguished from stagnant water. Each gush of water from this small spring formed a stream whether big or little, and whether over ground or under ground. I cannot think that VOL. 66.-P.C.

any sound distinction can be made between the smallest rill which passes over ground or under ground, in its being a stream or streamlet, or a rill or other little supply of water coming down as these sources of supply are alleged to have come down into the pond. But in this case, in order to get rid of the plural "streams" one has to make two heads of the same stream mean two streams-it is necessary to read the word "streams" in an unnatural sense. There is but one stream in the ordinary sense, and you must read that stream as being two streams, or at least more than one, by taking different parts of the same stream. So far as one can get any light from the nature of the thing, the subjectmatter with which the parties were dealing, it appears to me that what the grantor intended to convey to the grantee, and what the grantee, who was a distiller, was getting, was every source of supply which it was possible to get by general wordsit was intended that he should get all the water that could be conveyed to him by any general words. I confess I think that the pollution by the grantee of the other sources of supply is irrelevant. I think the greater flow of water procured by the grantor at other times is irrelevant; and I regret to some extent the decision at which your Lordships have arrived, because I think it will tend to multiply words in every conveyance by the parties in future. If, however, the true construction of the grant be what your Lordships have considered it to be, I should not differ or disagree from what in that case would be the rights of the parties.

Appeal dismissed with costs.

Solicitors Flux, Thompson & Flux, agents for Gill & Pringle, W.S., Edinburgh, for appellant; Nicholson & Patterson, agents for Tait & Crichton, W.S., Edinburgh.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.

D