(D.) In an engineering sense the water falling on the roof is that which is admitted to the house drain, and the term "surface water" would apply to that which falls on surfaces other than the roof, &c. (E.) H. ROBINSON, Fellow. I should certainly consider roof water to be surface water. WM. WEAVER, Fellow. Replies to Query CCV. (Vol. VI., p. 473). AGRICULTURAL HOLDINGS ACT, 1883-NOTICE OF CLAIM. (A.) Certainly, unless the agreement specially provides otherwise. Indeed, the provision above quoted is superfluous unless there are other covenants which affect compensation. Surely the words "rate of " are unnecessary. (B.) F. PUNCHARD, Fellow. In all cases of compensation to be claimed by an outgoing tenant the two months' notice should be given, with the necessary particulars of the claim, together with an estimate of the further consumption during the last two months of the tenancy. (c.) E. HIPPISLEY, Fellow. Whether notice is given or not, so far as regards compensation for the unexhausted value of manures and feeding stuffs used on the holding during the last two years of the tenancy, the case would come under the Agricultural Holdings Act, 1883. It depends on the general clauses of the agreement as to whether it would be desirable to serve a detailed notice of claim as set forth in the Act. GILBERT MURRAY, Fellow. Replies to Query CCVI. (Vol. VI., p. 473). HIGHWAY BOARD-CONTRACTORS' CARTING-EXTRA REPAIRS-CLAIM. (A.) After the decision in Hill v. Thomas (L. R. 1893, 2 Q. B., p. 333),* and the decision in The Etherley Grange Coal Company, Ltd. v. The Auckland District Highway Board (L.T., Q.B.D., vol. Ixix., N.S., p. 286),† there can be no doubt that the claim in this case is legal. ROBT. GODFREY, Fellow. "Professional Notes," vol. vi., pp. 178, 278. (B.) Compared with the case, Williams v. Davies (Q.B., March 1880), before Justice Lush, the contractor would be held liable. But, in Hill and Others v. Thomas, May 1893, reported in "Professional Notes," p. 178; and in Etherley Grange Coal Co. (Apps.) v. Auckland District Highway Board (Resps.), November 1893, reported in "Professional Notes," pp. 254 and 383, the contractor would not be held liable. The principle ruling these latter cases being that, to substantiate a claim against a contractor using a public road, there must be not only extraordinary traffic, but also excessive weight carried. In this Query there is extraordinary traffic cited, caused by building a £15,000 house; but nobody can pretend that a one-horse load of bricks upon a public road is excessive weight. Therefore, the claim is not legal. R. R. ROWE, Fellow. (c.) It has been held that the ordinary nature of the traffic over the road is to be taken as the standard, hence the answer to this query must depend on the view one takes of the relationship of the special traffic to that usually traversing the road. From the tenor of the query it would appear that the usual traffic is small and of a light nature; coupling this with the fact that the claim is for the cost of extra repairs beyond the average, I consider that (although only one-horse carts were employed) the traffic must have been "excessive" and "extra-ordinary," and that the claim is, therefore, legal. CHAS. H. LOWE, Fellow. Replies to Query CCVII. (Vol. VI., p. 473). REPAIR OF ACCOMMODATION ROAD. (A.) A has no claim to compel B and C to repair the road either at their own cost or jointly with A. A must make the road good at his own expense. If there be an inclosure award it should be consulted. There is not much probability that the Parish Councils Act will assist A. (B.) R. R. ROWE, Fellow. Prima facie there is no obligation upon either B or C to maintain or contribute towards the maintenance of the road to A's farm. If A's right of user of the road is by grant, or the road is set out under an inclosure award, there will probably be a specific direction as to its maintenance. J. WILLMOT, Fellow. (c.) By the old rule that "The Benefit and the Burden run together," A must repair the road, unless he can shew that, either by express contract or prescription, B and C can be compelled to contribute. R. GODFREY, Fellow. (D.) Unless by inclosure award or deed, or otherwise under obligation to repair the road referred to, and assuming that it is not in an urban sanitary district, it would appear that A has no power to compel B and C to repair the road at their own cost or jointly with him, and that if A repair same at his own cost B and C will still have the same rights to pass and repass as before. (E.) A. VERNON, Fellow. A has no power to compel B and C to repair the road. If he wishes to improve its condition, he must perform the work at his own expense; taking care to do no unnecessary damage. It follows as a matter of course that B and C will have the advantage of the outlay of A. S. B. SAUNDERS, Professional Associate. SECTION IV. LAW CASES.* (578.) [HOUSE OF LORDS.] YOUNG AND CO. v. THE BANKIER DISTILLERY COMPANY. ON APPEAL FROM THE FIRST DIVISION OF THE COURT OF SESSION IN SCOTLAND. [JUNE 12TH, 13TH, AND JULY 27TH, 1893.] Stream—Riparian proprietors—Right to pump water from mine—Water rendered unfit for special purposes. The lower proprietor must submit to the flow of water which comes down upon his lands by the natural force of gravitation from higher lands, whether flowing in a defined channel or not, or above or below the surface; but he is not bound to receive water pumped from below the surface by artificial means, which would never have reached his land by the ordinary force of gravitation. The respondents were owners of a distillery situated on the banks of a stream, the water of which they used for the purposes of their business. The appellants were the owners of coal mines higher up the stream. In the course of working their mines the appellants pumped large quantities of water from the lower strata into the stream. The water so pumped in was pure water, and did not affect the water in the stream for ordinary purposes, but rendered it much less suitable for distilling purposes. Held (affirming the judgment of the court below), that the respondents were entitled to restrain the appellants from continuing to pump water into the stream. This was an appeal from a judgment of the First Division of the Court of Session in Scotland, consisting of the Lord President (Robertson), Lords McLaren, Adam, and Kinnear, in favour of the respondents, the plaintiffs below. The case is reported in 19 Ct. Sess. Cas., 4th series, 1083. The action was brought to have the appellants interdicted from discharging the water from their coal workings into a stream called the Doups Burn, under circumstances which appear in the head-note above, and from the judgments of their Lordships. The plaintiffs also claimed £250 damages. * This Section is intended primarily as a clue only to reported cases. Lord WATSON.-My Lords: The facts of this case, which may be stated shortly, give rise to a question of general importance. The respondents are owners, under a feu right which excepts minerals, of a parcel of land in the county of Stirling, bounded on the west by a small stream, known as the Doups Burn, which has its course from north to south. A distillery was erected by their predecessors in the feu, and has been in use ever since. The appellants are tenants of the reserved coal below the feu, and of a considerable tract of the adjoining coal seams. In the course of their mineral workings they raise water by pumping from a pit on the north, which they discharge into the Doups Burn before it reaches the respondents' land. So far the facts do not appear to have been disputed in the Court below. Upon the evidence the learned Judges of the First Division have unanimously held, and I see no reason to differ from their conclusions: (1) That the water added by means of the appellants' pumping operations could never reach the burn, either before or whilst it flows along the respondents' feu, if it were left to the law of gravitation; (2) That the water of the burn is pure and soft in quality; (3) That the added water, though pure, is hard in quality; (4) That the addition is of volume sufficient to make the water of the burn, as it passes the respondents' land, hard instead of soft; and (5) That the hard water so produced is much less suitable for distilling than the naturally soft water of the burn. From the judgment delivered by the Lord President it appears that the respondents in maintaining their right to have the appellants interdicted from discharging the pit water into the Doups Burn, presented their case in two different aspects. In the first place, they complained of the quality of the pit water on the same footing as if it had been water taken from the burn, used by the appellants for some secondary purpose, and then returned to the stream in a pure but hard condition. In the second place, they complained that the pit water, which could not find its way to the burn in the natural course of events, had been introduced by artificial means to their prejudice. Upon the first hypothesis their Lordships' decision was in favour of the appellants. They appear to have affirmed that it is the right of a riparian proprietor not only to use water for secondary purposes, but in so using it to alter its chemical properties to any extent, so long as he does not render it impure in the sense of being unfit for primary uses. To that view of the law I am not prepared to It was not necessary to decide the point, and its decision is unnecessary for the disposal of this appeal. But seeing that it was decided, I think it right to say that I am not satisfied that a riparian owner is entitled to use water for secondary purposes, except upon the condition that he shall return it to the stream practically undiminished in volume, and with its natural qualities unimpaired. I am not satisfied that, in returning the water in a state fit for primary uses, he has any right to alter its natural character, and so make it unfit for uses to which it had been put, or might be put, by a riparian proprietor below. Upon the second contention their Lordships decided against the appellants, and granted interdict accordingly. The ratio of their assent. |