JOHN WHITE & SONS v. J. & M. WHITE, H.L. human memory the magistrates possessed the dam with the mill house and certain ground, "being parts of the barony of Glasgow," as kindly tenants and rentallers. The charter then proceeded to dispone to the magistrates and their successors heritably and irredeemably the mill of Partick, on the water of Kelvin, with thirlage and multures and the services at the mill all in the ordinary terms сит stagnis lie damms inlairs et aquæductis aliisque integris privilegiis et pertinentiis ejusdem." Prior to that date it does not clearly appear that any one except the magistrates made use of the dam. But about that time a company called the Smithfield Co. built what is called a slit mill-namely, a mill for splitting ironand they applied to the magistrates for leave to carry an aqueduct from the Partick Mill dain to a dam to be erected on their own ground for their slit mill. This petition was granted by the magistrates, and the aqueduct and dam were constructed, but the minute bears that the operation is to be conducted "in such manner that the said mill of Partick shall receive no detriment or prejudice, and shall be kept in the same order and condition as it is now."

This minute bears date May 30, 1738, before the Crown charter, but it was confirmed by another minute dated January 3, 1740.

The owners of the Scotstoun Mills were not mentioned in these proceedings.

A deed dated 1780 by the Smithfield Co. bears to sell and dispone to one John Craig, Scotstoun Mill, with certain other subjects mentioned. First, the Scotstoun Mill was a waulk mill or fuller's cloth mill, for which, it was said, a mill dam was not essential. But that was not of importance, as the deed bears that "it was now" (that is in 1780) "made use of as a corn mill." This disposition by the Smithfield Co. (Slit Mills) to Craig bears the following clause: "But alwise with and under this condition and provision as it is hereby expressly conditioned and provided that the said John Craig and his foresaids and the miln before disponed, shall have no right to the water of Kelvin until the Old Miln of Partick is first served, she having the first water, and

untill our works at our Slit Miln on the water of Kelvin for rolling and slitting of iron and grinding of tools is next served, they being declared to have the second water, the same being hereby limited to three wheels the foresaid Waulk Miln of Partick hereby disponed being only to have the third water and for one wheel only. But in case at any future period we or our foresaids shall find it convenient or necessary to discontinue the manufactory of rolling and slitting of iron and grinding of tools and shall instead thereof erect any other milns or machinery which may require a greater quantity of water than is now used by us, then and in that case the second water so now reserved for our present works shall in all times thereafter during the scarcity of water be applied for the driving the new machinery so to be erected in the proportions stated, namely, three-fourths of said water shall be applied for the use of the machinery so to be erected by us and our foresaids, and one-fourth thereof shall be applied for the use of the Scotstoun Miln aforesaid, or our said works so to be erected shall go eighteen hours of the twenty-four, and Scotstoun Mill shall go the remaining six hours. But in case that we or our foresaids shall have occasion in future to erect upon our works any waterwheels beside the foresaid three, all such wheels above three shall have no privilege of water (until the Scotstoun Miln is fully served) whether used as a corn miln or for other purpose, and shall only be used at such times when there is a surplus quantity of water in the river Kelvin running over the dam head after serving the Miln of Scotstoun as aforesaid."

The owners of the Bishop Mill were not parties to this deed, although their right to the first water is affirmed or acknowledged in it. Then it is also said that the Slit Mill is to have the second water limited to three wheels, and the Waulk Mill of Partick-namely, Scotstoun-is to have the third water and for one wheel only.

Owing to the American Revolution and the loss of that market for split iron, &c., the Slit Mill was closed a considerable number of years ago, and no water has

JOHN WHITE & SONS v. J. & M. WHITE, H.L. since been drawn from the dam on its account.

The Bishop Mill, after passing through intermediate owners, was sold and disponed to the pursuers in 1897. Scotstoun Mill appears to have remained in the possession of John Craig and his successors until 1839, when it was sold to John Blackwood, and by him in 1854 to John White, father of the appellants, from whom it passed in 1897 to the present appellants. With regard to the possession and use of the dam by the Bishop Mill and Scotstoun Mill, it appears that the parties are agreed-first, that Bishop Mill was entitled to draw, and did draw, the first water; and secondly, that from 1780 to 1865 the owners of Bishop Mill drew no more than 1,200 cubic feet per minute. Further, the parties are agreed that about that time the Scotstoun Mill was in use to draw 2,077 cubic feet per minute, but that only after the Bishop Mill's right to the first water was satisfied.

Frequent litigation took place between the parties, the most important of which was before Lord Neaves in 1854.

In 1900 the pursuers (respondents) put up a turbine wheel and maintained that they were entitled so to use their "first water." They also alleged that the Scotstoun Mill had on various occasions drawn water when the dam was so low as not to be sufficient for their preferable uses, and various other occasions of complaint and difference have arisen and questions as to their relative rights have been raised, to settle which this action was brought.

As to the meaning of "first water," the Scotstoun owners admit that the Bishop Mill owners are entitled to a certain preference which they call "first water." But they maintain that the amount of first water must be determined by the previous usage-that is, to the extent of 1,200 cubic feet per minute. On the other hand, the Bishop Mill owners claim the right to the water absolutely without any restriction, unless it be only that they are bound to use the water for the mill. They maintain that the deed of 1738 gave them an absolute right just as if the dam was a rood of agricultural land. There is no question about the

property of the alveus; it has not been suggested that any one is proprietor of the alveus except the respondents under their Crown grant. But this question is about the water, not the alveus. For more than forty years the respondents drew a comparatively small part (1,200 cubic feet) of the water from the dam and left the rest to others. The appellants maintain that, as riparian proprietors, though they were nothing else, they could object to the respondents' summons. They said that, conceding the respondents' right of property in the dam, still the respondents could not abstract more water from it than their prescriptive use warranted, because it was flowing water. The appellants further maintained that no property in the water could be acquired without appropriation.

The respondents maintained that their case was not affected by the negative prescription because, although they did not make full use of their property, their abstention was res mere facultatis, and could not affect their right. For much more than forty years (perhaps a hundred) the proprietors of Scotstoun supplied their mill with water from the dam. They and the pursuers were using the dam together. But now it was objected that they (the respondents) had no title on which their plea of prescription could be rested.

The Second Division of the Court of Session (Lord Young dissenting), by interlocutor dated January 20, 1905, recalled the Lord Ordinary's interlocutor, and found in terms of the declaratory conclusions of the action.

The Solicitor-General for Scotland (Avon Clyde, K.C.) and W. J. Cullen, K.Č. (of the Scottish Bar), for the appellants.The preferential right claimed by the respondents is limited to 1,200 cubic feet a minute, and subject to that the appellants are entitled to 2,077 cubic feet. In Scotland each riparian owner is entitled to the natural flow of the stream passing his ground, and apart from agreement or prescription he can prevent the withdrawal of water by an ex adverso proprietor. Any prescriptive right must be restricted to the extent of the prescriptive user, which in this case does not

JOHN WHITE & SONS v. J. & M. WHITE, H.L. warrant the respondents' claim. That claim is virtually unlimited, and would extend to the abstraction of the whole river.

The Lord Advocate (Scott Dickson, K.C.) and Younger, K.C. (of the Scottish Bar), for the respondents.-The respondents are entitled by their charter to withdraw water to such an extent as may be required for their mill, and are not limited to 1,200 cubic feet a minute. The appellants are only entitled to 2,077 cubic feet, and then only subject to the conditions of the dam being full or overflowing. The appellants have no documentary rights, whereas the respondents are owners of the solum at this point, and owners by grant of the running

extent than is in accordance with prescriptive usage.

JOHN WHITE & SONS v. J. & M. WHITE, H.L. the comparatively new mills which had been erected in 1787. An action was brought before Baron Graham, and in dealing with the rights to which I have referred that learned Judge said this to the jury: "The important period for them to attend to was 1791, when it was clear that an increased quantity had been drawn by the defendants from the river by means of the then newly enlarged and deepened sluice; before which time the plaintiff's works had been erected; and he was in the enjoyment of so much of the water as had not been before appropriated by those under whom the defendants claimed." As a matter of law, I tell you "that persons possessing lands on the banks of rivers have a right to the flow of the water in its natural stream, unless there existed before a right in others to enjoy or to divert any part of it to their own use. That every such exclusive right was to be measured by the extent of its enjoyment."

This direction was objected to, and it was urged that the enjoyment by the defendants from 1724 downwards was evidence to be left to the jury of the defendants' right to the whole of the water. The Court of Queen's Bench, with Lord Ellenborough, C.J., presiding, held unanimously that Baron Graham's direction was accurate, and some of them added that if the verdict had been the other way they would not have allowed it to stand. The case to which I refer is Bealey v. Shaw [1805].2

It appears to me that this principle, which has thus been laid down and has been well recognised and acted upon as law for one hundred years, is decisive of the present case. According to that principle there is no ground for the contention of the pursuers that they have a right of property in the dam and the water, and that consequently they are entitled to increase the extent of the use thereof as occasion requires. That is a proposition for which it appears to me there is no legal foundation whatever, and I think that the pursuers are not entitled to any preferable right to the use of the waters of the dam to a greater

(2) 6 East, 208, 211.

This is sufficient for the decision of this case; we are not trying the exact proportion in which each mill may be entitled to draw water. That which the pursuers claim is an absolute and exclusive right to withdraw all the water. I think that claim is unfounded. I am unable to understand what one of the learned Judges-Lord Moncreiff-says at the end of his judgment: "It is not necessary to say how matters would have stood if the pursuers had proposed to add so materially to the machinery of the mill as really to alter its character and deprive the defenders of any water for their mill." I do not understand this proposition as a matter of fact, because that is what I understand the evidence to prove that the pursuers have actually done; nor do I understand it as a matter of law, since if the ground of judgment is right the pursuers here have a right to take all the

water.

I think the Lord Ordinary's judgment is perfectly right and ought to be restored; and I move that the judgment of the Court below be reversed and the judgment of the Lord Ordinary restored, with the usual consequences as to costs.

LORD ROBERTSON.-I cannot say that I think this a doubtful case; and it is permissible to believe that less difficulty would have been found in the Court of Session if it had been remembered that this is a question between riparian proprietors as to the water of a river.

The claim of the respondents is to withdraw from the river Kelvin, in preference to everybody else, 6,000 cubic feet of water per minute, for the use of their mill. They fix on this figure because that is the requirement of their existing machinery, but they avow that if in the future their requirements increased so would their claim. Now the 6,000 cubic feet per minute only began to be abstracted in 1900, when they obtained some new machinery, and before that they used very much less water. Their claim, therefore, is not supported by prescriptive use.

Now the theory of the respondents' case is that the water from which they