5$ 



Appendices to Seventeenth Animal Report 



NOTE 



I V. 



[From the " Scottish Law Reporter") 



Friday, January 20, 1899. 



COUNTESS-DOWAGER OF SE AFIELD AND 

 OTHERS v. KEMP. 



DECISION. 



Lord President — The main question in this case is a jury question, 

 and my judgment is with the Lord Ordinary. The condition of the 

 Ringorm and of the Spey, immediately below the confluence of the 

 Ringorm, forty years ago, and the condition of those waters now, are 

 matters of plain fact. There is, I think, abundant evidence to establish 

 that those waters were (to use the Lord Ordinary's phrase), until a 

 period well within the prescriptive period, unaffected by artificial 

 impurities and fit for the primary uses. Their present condition, as 

 spoken to by credible witnesses, is one of manifest pollution. That the 

 defender's distillery materially contributes to this pollution is proved 

 by very conclusive evidence. The Ringorm Burn affords the sharpest 

 test of this last fact, for to the artificial pollution of that stream there 

 has never been any other contributor, but the influence of the defender's 

 discharges on the water of the Spey is distinctly traced. These general 

 propositions rest upon evidence which in quality and in amount leaves 

 no reasonable doubt. 



It is necessary, however, to distinguish between the pollution before 

 and the pollution after the execution of the defender's remedial works. 

 These works have apparently made some differences, although it cannot 

 be said that those differences are all for the better. What is quite 

 certain is that the water continues to be polluted from this distillery to 

 a material extent. It matters little whether since those works were 

 executed less stuff goes into the Ringorm and more directly into the 

 Spey, or whether there is now less of one offensive substance and more 

 of another. The scientific evidence, led at enormous length, does not 

 prove, and does not even go towards proving, that the nuisance has 

 been abated. 



Accordingly I hold that the illegal act of polluting these waters is 

 brought home to the defender. There remains, however, the question 

 whether the pursuers have proved that they have been injured, and 

 I agree with the defender that the case of each pursuer must be con- 

 sidered separately. The position of Mr. Grant of Wester Elchies is 

 the narrowest geographically but the strongest argumentatively. He 

 is proprietor of the right bank of the Ringorm, and of so much of the 

 Spey as is ex adverso of the west half of the channel of the Ringorm. 

 He is therefore directly interested both in the polluted part of the 



