of the Fishery Board for Scotland. 



Ringorm and the polluted part of the Spey, and no exception can be 

 taken to his title. As regards the proprietor of A.berlour, I hold with 

 the Lord Ordinary that it is proved in fact that the Spey ex adverso of 

 his lands has been materially polluted by the defender's discharges. 

 That Lady Seafield's estate has been injured, if there be pollution at all, 

 cannot be disputed as matter of fact, as regards both the Ringorm and 

 the Spey, her lands extending ex adverso of both streams on their left 

 banks. The argument against her Ladyship is founded on a feu contract 

 entered into between her and the defender's predecessor in 188G, and it 

 is said that she is barred from insisting in the present action. I am 

 happy to know that Lord Kinnear will discuss this branch of the case 

 more fully, but 1 may say that although the feu-contract commits Lady 

 Seafield to the use of the ground as a distillery and the use of the 

 Ringorm water for the purposes of the distillery, it confers no license 

 to pollute, unless that is implied in those uses. That a distillery may 

 be carried on at the place in question, and may use the Ringorm water 

 without pollution, is not only credible but is proved in this case — for 

 forty years ago there was a distillery, and the water was not the less fit 

 for primary purposes. Accordingly it was for the defender, if he had 

 a case of that kind, to prove that the distillery could only be carried on 

 and could only use the water on condition of polluting the two streams, 

 and that, in fact, this was being done in 1886. This, however, has not 

 been proved. Indeed, evidence to this effect would have been inconsistent 

 with the defender's general case, and inconsistent also with the salient 

 fact that the enormous increase in the size of the distillery after 1886 

 has been the true origin of the gross pollution which is now complained 

 of. Accordingly I think that Lady Seafield is not barred by the feu- 

 contract. 



The position of Mrs. Kinloch Grant of Arndilly is different from 

 that of any other of the pursuers, for her property is much further 

 down the Spey. Now I find it impossible to affirm anything about 

 the condition of the Spey at Arndilly, either forty years ago or now, for 

 there is no evidence on the subject. For anything I know, the Spey 

 may have rid itself of the defender's pollution before it reaches Arndilly, 

 and be perfectly potable; and on the other hand, the water may have 

 been hopelessly polluted for generations from other quarters. In the 

 potability or the pollution of the water ex adverso of other people's lands 

 this lady cannot acquire an interest merely by joining them as a pursuer, 

 and she can only prevail in the action in so far as she has proved injury 

 to herself. Now I think that Mrs. Kinloch Grant has done so in the 

 single article of salmon fishing. Every proprietor of salmon-fishings is 

 injured if the spawning-beds are spoiled, even in a part of the river 

 away from his fishings. The community of interest among the pro- 

 prietors of salmon-fishings in a river is recognised by law, and it is a 

 fact. Now in the present case there is adequate evidence that these 

 discharges are deleterious to the bed of the river for spawning purposes. 

 The summons contains a conclusion appropriate to the protection of 

 Mrs. Kinloch Grant, and to this extent, and to this extent only, I think 

 she is entitled to declarator. The matter is not of much practical 

 importance, but as it is challenged, I do not think we could allow the 

 general decree of declarator about primary uses to stand in Mrs. Kin- 

 loch Grant's favour, and I propose that our judgment on the whole 

 matter should be to adhere to the findings and decrees of declarator in 

 the two first heads of the interlocutor, in so far as those relate to the 

 pursuers, other than Mrs. Kinloch Grant of Arndilly, and in regard to 

 the said Mrs. Kinloch Grant, in place of the said findings and declarators, 

 find and declare that the defender has no right or title to discharge into 

 the Ringorm Burn, and through it into the river Spey, any impure 



