of the Fisher}/ Board for Scotland. 



construed. It is a right to take water from the burn, and that is 

 expressed certainly in very general terms, and I do not at all doubt 

 in terms wide enough to cover all the right to take water from the 

 burn for that purpose which the granter possessed. But in any fair 

 construction of the words of grant it cannot mean more than that. It 

 is a grant of a special right along with a conveyance of land, and it is 

 covered just as much as the grant of the land by the warrandice clause, 

 and therefore ^ady Seafield stives right and warrants it to the grantee 

 in general terms to take water from this burn. Now, there can be no 

 question at all as to the nature and extent of the right she herself 

 possessed, and which alone she could give to anybody else. She was 

 not the sole riparian proprietor, and therefore though she was entitled 

 to divert water from the stream for the purpose of any manufacture if 

 she chose to do so, she could only do it upon the condition and obliga- 

 tion of returning all the water which she did not consume for primary 

 purposes to its channel within her own ground, undiminished in quantity 

 and undeteriorated in quality. She had no right whatever, as against 

 the lower heritors, to pollute either the Ringorm Burn or the River 

 Spey, and therefore the grant of all the right she had or could pretend to 

 have would not enable her grantee to pollute this stream either. I think 

 it the more difficult to put a wider construction on the terms of the 

 contract so as to make them cover rights which she did not possess and 

 could not dispone, because the warrandice must be equally comprehen- 

 sive, and the defender's argument, if it were carried to its logical con- 

 clusion, would mean that Lady Seafield is not only precluded from 

 complaining of pollution herself, but is bound to protect him against 

 complaints of lower heritors, and to make good to him any loss that 

 may be occasioned by their interference with the right which she has 

 conferred. I cannot put that construction on the clause, and cannot read 

 into it words which are not there, so as to make it mean that the 

 superior grants to the vassal the right to take and use the water of the 

 burn free from any condition or obligation affecting the superior herself 

 to restore it unpolluted lower down the stream. Lady Seafield could 

 not grant that right, and I do not think that, if it had been expressed 

 in clear terms, any superior would have signed the feu- contract, and 

 therefore I am unable to import by implication words which would have 

 so serious an effect on the rights of parties when they are not expressed. 

 But then it is said that this is implied by the specification of the use for 

 which the water may be taken. It is to be taken for the use of the 

 distillery, but that appears to me to add nothing to the meaning, fairly 

 read, of the words of grant, unless it could be maintained that 

 as matter of fact the distillery could not be carried on in the 

 ordinary course of business without polluting the stream in the 

 manner complained of. Now that is not alleged, and it certainly 

 is not proved, and it therefore appears to me that these words 

 add nothing to the fair meaning of the words of grant taken 

 apart from them. Another view was suggested — that at all events 

 the feu-contract must be read with reference to the condition of 

 the burn at the time it was executed, and therefore that the vassal must 

 have right to continue the same kind of pollution to the same effect as 

 existed in 1886 — the doctrine invoked being that the contract must be 

 construed with reference to the facts to which it relates. Now I think 

 it would be extremely difficult to apply that method of construction to 

 such a title as this, because it is a grant of land in perpetuity, and a 

 special heritable right is granted along with the land, and as a pertinent 

 of it ; and I think it would be extremely difficult to hold that the 

 character and measure of that grant, into whose hands soever the lands 

 may come at any distance of time, has to be determined, not by refer- 



