60 Appendices to Seventeenth Annual Report 



matter or liquid prejudicial to the salmon -fishings of the said pursuer 

 Mrs. Kinloch Grant, and decern ; quoad ultra adhere to the said inter- 

 locutor as regards all pursuers. 



Lord Adam and Lord MvLarex concurred. 



Lord Kixxear — I also concur with your Lordships. 1 think the 

 main questions to be considered in this case are pure questions of fact, 

 and upon these I agree entirely with your Lordship and with the Lord 

 Ordinary, and therefore I think it would be an idle encroachment on 

 the time of the Court if I were to add anything to what your Lordship 

 has said. 



But there is a separate point which raises a different kind of ques- 

 tion altogether — the defence that is rested on the defender's construction 

 of the feu-contract of 1886 — and upon that I may state the reasons for 

 which I have come to the same conclusion as your Lordship has. I 

 think the defender's construction of that feu-contract cannot be main- 

 tained. This raises quite a different question from that which has been 

 considered in various cases where it has been proposed to make a 

 landlord responsible for the nuisance created by his tenant because of 

 his having let this land for a special purpose, which in ordinary course of 

 business would probably create a nuisance. In these cases it has been 

 maintained that a heritor complaining of nuisance is entitled to the same 

 remedy against the landlord as against the tenant, because the landlord 

 must be responsible for the direct consequences of his own act which he 

 could not lawfully do by another; that is, by the tenant, if he could not 

 lawfully do it himself. But the relation between Lady Seafield and the 

 other parties to the feu-contract of 1886 is not that of landlord and 

 tenant, but of vendor and purchaser, and the purchaser who becomes 

 the vassal acquires under that title an absolute right of property in the 

 use of which he cannot be controlled by the superior so long as he 

 performs the conditions on which he holds the land, so as to give the 

 superior no right to put an end to the feu. It would be quite impossible 

 to interdict Lady Seafield (which the argument implies would be the 

 right of the other pursuers) from polluting the Bingorm Burn or the 

 river Spey by discharges from the defender's distillery, because she could 

 do nothing whatever to carry out the order of the Court except by 

 obtaining an interdict herself against the defender, which, ex hypothesi 

 of the argument, she is not entitled to do. But then it is said, at least 

 so I understand the argument, that treating the case as one of superior 

 and vassal, by the terms of the deed Lady Seafield expressly confers on 

 her vassal the right to use the water of the Bingorm Burn so as to 

 pollute both that stream and the river Spey in the manner complained 

 of, or at all events, that she expressly surrenders her own right to com- 

 plain if the stream should be so polluted. That is rested on two clauses 

 of the feu-contract — first, the dispositive clause, by which the superior 

 " sells and in feu- farm dispones . . . to James Stuart . . . the 

 distillery of Macallan, with the right to take water for the use thereof 

 from the Burn of Bingorm by pipes laid or to be laid from the said burn 

 through the farm of Overton ; " and the clause by which it is declared 

 " that it shall not be lawful to nor in the power of the said James Stuart 

 or his foresaids to erect or carry on upon the piece of ground hereby 

 disponed any manufactures or operations which may be legally deemed 

 a nuisance, or be dangerous or injurious to the amenity of the neigh- 

 bourhood, but which declaration shall not apply to the carrying on of 

 the said distillery." Now, I think that those two clauses must be con- 

 sidered separately, because they raise different questions, both as regards 

 construction and legal effect. The first is said to be an express grant of 

 the right to use the water of the Bingorm Burn in the very manner 

 of which the pursuer now complains. I do not think it can be so 



