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Appendices to Seventeenth Annua/ Report 



ence to anything expressed in the title, or preserved on record, but 

 by reference to an extrinsic state of facts known ex hypothesi to the 

 granter and grantee at the time, but which their singular successors 

 could not possibly know anything about at a distance of time, because 

 there is no record of evidence to explain it. But if such a method of 

 construction were applicable at all, then I agree with an observation 

 that was made by your Lordship, that it lies with the defender — main- 

 taining that the words of a feu-contract are to carry a wider meaning 

 than that which, if construed alone, they would bear by implication 

 from a specific state of facts — to aver on record that state of facts, and 

 to establish it by evidence. Now there is no such averment on record, 

 and there is no evidence — no specific evidence — of the actual condition 

 of the water in 1886, which would enable us to say what is the measure 

 of the right conferred on the vassal by the feu-contract. There is no 

 attempt to clear up the contract in that way by evidence, if it was 

 possible to clear it up ; and I am of opinion, therefore, that this clause 

 at all events cannot be so construed as to confer on the vassal any higher 

 right than Lady Seafield possessed. 



But then it is said that the second clause, to which I adverted, bars 

 the superior from the present complaint. That is an exception from 

 the clause for the prevention of nuisance. It is declared that the vassal 

 shall not be entitled to carry on manufactures which may be deemed a 

 nuisance — excepting from that declaration the carrying on of the said 

 distillery — and as I understand the argument, it is said that is an 

 express permission to carry on the distillery, and that therefore the 

 pursuer cannot complain on the maxim volenti non jit injwria. I think 

 that would be a very good answer to an action at the pursuer's instance 

 to put down a distillery as a nuisance. I do not think that she would 

 be in a position to maintain that the distillery as such is a nuisance 

 prohibited by this clause. But the only purpose of the exception is to 

 take the distillery out of the scope of the clause prohibiting nuisances, 

 and when it has served that purpose there appears to me to be no other 

 meaning that can be given to it, and therefore on this branch of the 

 contract also, as on the other, it would be indispensable for the defender 

 to show that the distillery could not in fact be carried on without pro- 

 ducing this particular nuisance of which the pursuer complains ; and 

 as your Lordship has pointed out, that has not been proved. Indeed, it 

 is not consistent with the defender's case to maintain it. That there 

 may have been a discharge of impurities into the Ringorm Burn at the 

 time the contract was granted, or that such a discharge may be very 

 probably, if not necessarily, a consequence of carrying on the distillery, 

 is a very different matter, because in all these cases the question is not 

 one of degree. It cannot be alleged of any running stream that it is 

 absolutely free from impurities at any time, and therefore the question 

 always is, whether the person complained of has discharged into the 

 river impurities so much greater in character and degree than what 

 had been discharged within the prescriptive period as to create a 

 nuisance. I think that is the true question in the present case, and 

 that it is proved that the defenders have polluted the stream to a much 

 greater extent than had ever been done before, and therefore if the 

 clause in question were held to contemplate that some degree of impurity 

 may be discharged into the stream, it does not follow that it contem- 

 plates what the defender is now doing. It appears to me that the 

 condition of the contract which is founded on, by which the carrying 

 on of the distillery is excepted from the general prohibition of nuisances, 

 cannot be carried further than to bar the superior from complaining of 

 the distillery as such being necessarily in itself a nuisance. That she 

 does not do in this action, and therefore I think the plea of bar falls. 



