Scottish Court of Session Decisions

Subject_1 PROPERTY.

Russell
v.
Haig

1791. November.
Case No. No 36.

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Russell of Roseburn brought an action against Haig, distiller at Lochrin, in the suburbs of Edinburgh, on the ground, that the refuse-water from that distillery running into a rivulet, which in its course passes through the pursuer's grounds, brought down a mass of filth, which rendered the water formerly used for domestic purposes, and by cattle, totally unfit for these uses, and tainted even the air in its vicinity. Urged in defence, It is not alleged that the water itself, issuing from this distillery, was a nuisance. The fact was, That the rivulet in question was nothing else than the draining of the common sewers from the south suburbs of Edinburgh, of which the filth had formerly stagnated in the outskirts of the town; but now a large quantity of water, raised by a fire engine, being thrown from the distillery, that filth was of course washed down to the sea, and in its way might perhaps prove somewhat offensive, but was of no noxious quality. The defender certainly cannot be said to have occasioned a nuisance, by throwing into a common sewer water of a much purer quality than it before contained. The opening of new wells in the city would have produced the same effect. The Lords were of opinion, That however pure might be the water issuing from this distillery, it was enough that it was provod, that a stream, formerly fit for the necessary purposes of life, had thereby been rendered unfit for those purposes; and therefore they decerned in terms of the libel.—The cause was appealed, and the House of Lords remitted to the Court of Session to investigate, whether the the water had been pure or contaminated prior to erection of the distillery.

This was never done. See Appendix.

Fol. Dic. v. 4. p. 173.