No. 97. between the sluice and the point D1. When the sluice was put in the object was to dam back the water for the use of the mill. It was not unnatural that the water should run over the dam. And what became of it then? It ran into Mar. 20, 1873. the field beside the dam, and of course ultimately fell into the nearest ditch and Bridges v. Lord Saltoun. then into the burn. This was the fault of the miller, but it was not his object to do so. He had no interest to do so, and it was not his common practice to do so. The defender states that the sluice at the head of the new cut, which he has substituted for the old water-course, will be kept open to its full extent or removed altogether, the effect of which is to throw the whole water into the cut, and so remove all ground of complaint in regard to regorging of the water above that point. But then the effect of the water being returned to the burn at D1 is to cause it to regorge or come back upon the lands of Ardlaw at the point D. If this cut had been carried down to E or F that would not have been the case, and that would have been in accordance with the real state of possession for the prescriptive period. There is a peculiarity in regard to the levels of the ground at the point D. There is a fall below D1, and very little fall at D. The hardship complained of by the pursuer, viz., the regorging of the water upon his lands at D, could easily have been removed by deepening the channel of the burn at that point. But there are other ways of removing the regorging; one of these is to carry the cut down to F. It is much to be regretted that this cut should have been made by the defender at his own hand without having got an assurance from the pursuer that he would be satisfied with it. It was that taking the matter into his own hands that really prevented this difficulty from being removed by agreement of parties. During the whole correspondence that passed between the agents for the parties before the case came into Court, and even after the summons had been prepared, the pursuer offered to bear a portion of expense of making the alterations proposed by him to remedy the evil complained of, viz., to deepen the burn below the point D, as is shewn by his letters. That was a most reasonable proposal, and if the parties had come to an agreement upon that the whole expense of this litigation would have been avoided. We are now in a position to make this proposal be carried out by finding that the right of the defender to shut up the lade can only be exercised on condition of his keeping the pursuer free from any damage. It has been argued by the defender that the pursuer has not suffered any loss, but that is a very weak argument. The defender is bound so to conduct his works as not to expose the pursuer to any disadvantage to which he was not exposed before the alterations." I therefore cannot concur with the Lord Ordinary. His findings are,-" Finds in point of law that the defender is entitled to discontinue, if he pleases, the use of the said mill-lade, and is not bound to uphold or keep up the same for the purpose of diverting from the burn the water which for the last forty years the lade has been in use to receive." I think that finding is bad law. The defender is bound to construct his works so as not to hurt the pursuer. But the Lord Ordinary finds further, "that the defender, without prejudice to his legal pleas, has made through his own lands a new cut commencing at the said burn at the intake where the defender's said original lade commenced, and ending at the said burn at a point considerably below the lowest point of the Ardlaw march, and that for the purpose of receiving from the burn and carrying past the pursuer's lands the same quantity of water as was formerly in use to be taken by the said mill-lade, and finds that, although the old sluice of the said mill-lade has been placed upon the said new cut, yet, before the raising of the present action, the defender offered to remove the said sluice and to receive into the said new cut as much or as little water as the pursuer might desire: Finds in point of law, and without prejudice to the finding in law above written, that the defender cannot be required to do more than he has done and offered to do before the present action was raised." I think, on the contrary, that he can be required to do more than he has done or offered to do, and that is to continue the cut to No. 97. the point F, or to deepen the burn between D and E. the sluice at B. Mar. 20, 1873. Lord Saltoun. He must also remove LORD DEAS.-In so far as your Lordship has stated the import of the proof and the substance of the correspondence I concur, and will not go over the same ground. Upon the question of law involved I also concur. I think that Lord Saltoun was quite entitled at any time to do away with the mill-lade, and to discontinue using the water; but although he was so entitled, I agree with your Lordship that, after the years of prescription had run, he could not legally return the water to the burn without making sure that no injury should ensue to the lands of Ardlaw. That, the proof shews, he has not sufficiently done. I do not think it necessary in such a case as this for the proprietor of Ardlaw to prove clearly and absolutely that real damage has been sustained. I think he is entitled to be protected against any greater risk of future damage by floods and overflows than he was formerly exposed to. The pursuer seems prepared to be satisfied if either the new cut be continued to E, or the burn between D1 and E deepened, and I think Lord Saltoun is bound to do one or other of these two things. LORD ARDMILLAN.-I concur in the observations made by your Lordships on the proof in this case, and on the law applicable to that proof. The water here was taken off from the stream and used for far more than the prescriptive period for Lord Saltoun's mill, and during that time there was growing a prescriptive right on the part of the proprietor or the estate of Ardlaw-a right to continue to be relieved of that water if the relief was a benefit to the estate. I agree with your Lordships that Lord Saltoun is entitled to give up the use of this water, which he no longer requires, but he is not entitled to do so absolutely. Assuming that he is entitled to give it up and return it to the stream, still he must not injure his neighbour by so returning the water, as to flood or otherwise injure the lands of Ardlaw. It is clear to my mind that the defender's operations throw on the lands of Ardlaw a burden and disadvantage from which they have been free for upwards of forty years. This is an injury which the defender is not entitled to inflict. LORD JERVISWOODE concurred. THE following interlocutor was pronounced:-"Recall the interlocutor: Find that the mill-lade which has been recently shut up by the defender has existed for time immemorial, and had the effect of diverting the greater part of the water of the Tyrie Burn at a point where that burn forms the boundary between the lands of the pursuer and those of the defender, and returning the said diverted water to the main channel of the burn at a point where it runs through the estate of the defender: Find that the defender is entitled to shut up the said lade, but only on the condition that the operations executed for that purpose shall not in any way injuriously affect the lands of the pursuer, or expose them to greater risk of flooding than they were exposed to while the milllade existed: Find that the manner in which the water is now conducted and returned to the burn is calculated to expose, and does expose, the pursuer to flooding of his lands, to which he was not exposed while the said mill-lade existed: Find that the defender is bound, as the condition of his being allowed to keep the said mill-lade closed, to protect the pursuer against such flooding of his lands, and that by keeping the mouth of the additional channel constructed by the defender open and without a sluice at the point marked B on the plan No. 61 of process, and also either by extending the said additional channel down to the points marked E on the said plan, or by deepening the main channel of the Tyrie Burn between the points marked D and F on the said plan, No. 97. STUART & CHEYNE, W.S.-W. & J. Cook, W.S.-Agents. THE LEITH, HULL, AND HAMBURG STEAM-PACKET COMPANY, Pursuers. Watson-Lancaster. THE LORD ADVOCATE (for the Board of Trade and Commissioners and No. 98. Mar. 20, 1873. Ship-Measurement-Merchant Shipping Act, 1854 (17 and 18 Vict. c. 104), Co. v. Lord sec. 21, subsec. 4—Hurricane Deck-Permanent closed-in space.—A steamship Advocate. was constructed with a bridge extending across the vessel and connected with the bulwarks on either side, and below the bridge at its centre there was a small round house. A hurricane deck or covering was subsequently added, extending from the forecastle to the bridge. The space below this covering was not entirely closed in, there being a passage on either side of the round house, and no means for closing these passages in. It being proved that this hurricane deck did not prevent the shipment of seas, and that the working of the ship was almost entirely conducted on the main deck, held (by Lord Gifford) that the space below the hurricane deck was not "a closed-in space on the upper deck available for cargo or stores, or for the berthing or accommodation of passengers or crew," within the meaning of subsection 4 of section 21 of the Merchant Shipping Act, 1854, and therefore did not fall to be included in the measurement of the ship. THIS action was brought by the Leith, Hull, and Hamburg Steam-Outer-House. Packet Company against the Lord Advocate, as representing the Board Lord Gifford. of Trade and the Commissioners and Board of Customs. The summons concluded that it "should be found and declared, by decree of the Lords. of our Council and Session, as to the said steamship 'Danzig,' belonging to the pursuers, that the space measuring or equivalent to 84-78 tons, contained between the ordinary upper deck and the hurricane deck or covering extending over part of the said upper deck, and which extends from the after-end of the forecastle to the after-end of the bridge, does not form a break, or a poop, or permanent closed-in space available for cargo or stores, or for the berthing or accommodation of passengers or crew, or space which can be lawfully included in the ship's register tonnage within the meaning of the Merchant Shipping Act, 1854; and it ought and should be found and declared that, under the Merchant Shipping Act, 1854, no part of such space can be lawfully included in the register tonnage of the ship," and to have the defenders ordained to remeasure the ship. The pursuers pleaded;-(1) The pursuers are entitled to have the steamship "Danzig" remeasured, in conformity with the provisions of the Merchant Shipping Act, 1854. (2) The defenders having insisted on measuring the said ship in violation of section 26, and on a principle not sanctioned by the said Act, the pursuers are entitled to decree as concluded for. The defenders pleaded;-The declaratory conclusions of the summons Co. v. Lord No. 98. being inconsistent with the provisions of the Merchant Shipping Act, 1854, and in particular with the rules provided by that Act for measureMar. 20, 1873. ment of tonnage, the defenders are entitled to absolvitor, with expenses. Leith, Hull, and Hamburg By interlocutor, dated the 14th November 1871, the Lord Ordinary, Steam-Packet before answer, remitted to Mr Thomas H. Eastlake, Lloyd's surveyor, Leith, to examine the steamship "Danzig," and to report as to the state and condition of her main deck, and of the erections, structures, and coverings thereon, so far as the same related to the question as to the measurement for the registered tonnage of the said steamship. This interlocutor being reclaimed against, was affirmed on 2d December 1871. Mr Eastlake reported, inter alia, that the working of the ship was conducted on the main deck, the fittings thereof being the same as prior to the erection of the structure above, with the exceptions that a hand and a steam winch had been removed to the top of the covering. The covering did not prevent the shipment of beam seas abaft its after-end, and although it was thick enough for an awning deck it was too thin for a spar deck. The Lord Ordinary, on 30th January 1872, pronounced this interlocutor, adding the subjoined note:-"Having heard parties' procurators, and having considered the closed record, the report by Thomas H. Eastlake, Esq., the objections thereto, and whole process, repels the objections stated by the defenders to Mr Eastlake's report, in so far as said objections are directed to specific statements contained in said report upon matters of fact relating to the structure of the ship in question, or of erections or coverings thereon: Quoad ultra finds that the said objections do not render necessary or expedient any further remit to Mr Eastlake or to any other reporter, and refuses the defenders' motion for such further remit: Finds and declares in favour of the pursuers in terms of the whole declaratory conclusions of the summons, and decerns: And in reference to the petitory conclusion of the action, finds that the pursuers' steamship Danzig' ought to be remeasured in terms of the preceding declaratory judgment, and in terms of the Merchant Shipping Act, 1854, and Acts and Regulations relative thereto, and, if necessary, appoints the case to be enrolled for further procedure in reference to said remeasurement: Finds the pursuers entitled to expenses, and remits the account thereof, when lodged, to the Auditor to tax and report." "NOTE. The Lord Ordinary is fully sensible of the very wide and general importance of the question raised in the present action. He feels that the decision will not only affect the pursuers and the particular ship now in question, largely diminishing the dues and burdens payable on said ship and the expense of trading with the vessel, but will also govern the cases of other ships similarly constructed, and not only so, but will affect the plan and structure of steamships which may hereafter be built. The question may even influence beneficially or injuriously the safety and sea-going qualities of steam vessels, and thus indirectly it touches the highest interests of life and property. "The Lord Ordinary feels bound, however, to a great extent to disregard these considerations, and to confine himself to the fair and sound construction of the statutory provisions contained in the Merchant Shipping Act of 1854, with the relative Acts and Regulations. If these statutory provisions, fairly read and applied, are injurious to shipping interests, and, still more, if they produce or encourage a dangerous or unseaworthy construction of vessel, the remedy is with the Legislature and not with the Court. "At the same time it gives the Lord Ordinary satisfaction to think that, so far as he can understand the matter, the judgment now pronounced, while undoubtedly favourable to ships constructed like the 'Danzig,' will not lead to danger either to passengers or to cargo. It appears to the Lord Ordinary that a ship with deck coverings like those with which the 'Danzig' is fitted is not thereby rendered unsafe, but that the coverings contribute to its safety in heavy No. 98. seas; provided always (and this is a proviso which applies to all ships whatever) that it be not overloaded, and that its cargo is not improperly distributed. Mar. 20, 1873. "The leading provision which is made the subject of construction in the pre- and Hamburg Leith, Hull, sent action is the 4th subsection of the 21st clause of the Merchant Shipping Steam-Packet Act, 1854 (17 and 18 Vict. cap. 104). The opening words of the subsection Co. v. Lord provide for the measurement of certain spaces on or above the upper deck of the Advocate. vessel. In the present action there is no question relating to spaces below the upper or weather deck. The words of the Act are,-If there be a break, a poop, or any other permanent closed-in space on the upper deck available for cargo or stores, or for the berthing or accommodation of passengers or crew, the tonnage of such space shall be ascertained as follows.' The rules for measurement are then given. "The words above quoted do not seem to be affected by any regulations made or issued under the authority of the Act. It appears that such regulations exist, though they are not mentioned on record. "The steamship 'Danzig' has a poop or closed-in space on the after part of the upper deck. It has also a forecastle or closed-in space for the crew constructed on the upper deck at the bow of the vessel. There are also certain deck-houses amidships for the accommodation of the officers, and for other purposes. Regarding all these there is no question. They are all measured in the tonnage, or, as it might with more accuracy be called, the roomage of the ship, each hundred cubic feet of space being called a ton. "As the ship was originally constructed, there were, and there are still, a bridge and a hurricane deck, both of which constitute partial coverings of the upper or weather deck of the vessel; but the spaces under the bridge and under the hurricane deck, so far as not enclosed into deck-houses, was not measured, and, as the ship was originally made, it was admitted would not be measurable under the statute. So stood the ship when finally measured in 1866, her tonnage then being at 466-65 tons. "In 1870 a round house was built for steerage passengers, and this being measured added about 20 tons, making the whole tonnage 480 48 tons, but still no attempt was made to measure the covered spaces under the bridge and hurricane deck. In the beginning of 1871 the pursuers constructed an additional covering over the upper deck of the vessel, extending from the after-end of the forecastle, and joining with the front edge of the bridge. The Custom-house authorities immediately claimed that this made the whole space so covered a closed-in space in the sense of the statute, and that it fell to be measured and added to the tonnage. After some communings this was ultimately done, and the added tonnage came to no less than 84.78 tons. It is of this addition that the pursuers complain, and to try the question the present action has been brought. "In the Lord Ordinary's view the question depends on the words of the statute, and on a comparison of the statutory words with the actual condition and structure of the vessel. He found it necessary to make a remit to Lloyd's surveyor to ascertain some disputed matters of fact relating to structure; but he declined to allow a proof at large, which would have embraced a great many matters. The interlocutor of remit was affirmed of this date (2d December 1871). "The reporter, Mr Eastlake, has made a very clear and distinct report, which, with the model in process and with the admissions on record, seem to embrace all the elements necessary for judgment. The defenders have objected to Mr Eastlake's report, and they asked a new remit to him or to some one else. The Lord Ordinary has refused this motion. The objections resolve themselves into two classes. First, Those which allege that Mr Eastlake has reported wrongly on matters of fact within his own observation as to the structure of the vessel. The Lord Ordinary sees no ground for this class of objections, and he repels them. The second class of objections is that Mr Eastlake has omitted to report upon a great variety of matters specified. The Lord Ordinary has carefully gone over all these matters, and he thinks that they may either be assumed as fairly |