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Private Water Rights STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton Volumes in the series 1. Ross Gilbert Anderson, Assignation (2008) 2. Andrew J M Steven, Pledge and Lien (2008) 3. Craig Anderson, Possession of Corporeal Moveables (2015) 4. Jill Robbie, Private Water Rights (2015) STUDIES IN SCOTS LAW VOLUME 4 Private Water Rights Jill Robbie Lecturer in Private Law, University of Glasgow Lecturer in Law, Robert Gordon University EDINBURGH LEGAL EDUCATION TRUST 2015 Published by Edinburgh Legal Education Trust School of Law University of Edinburgh Old College South Bridge Edinburgh EH8 9YL http://www.centreforprivatelaw.ed.ac.uk/monograph_series First published 2015 © Jill Robbie, 2015 The author asserts her moral rights. ISBN 978-0-9556332-8-7 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the copyright owner. Applications for the copyright owner’s permission to reproduce any part of this publication should be addressed to the publisher. Typeset by Etica Press Ltd, Malvern Printed and bound by Martins the Printers, Berwick-upon-Tweed Contents Preface vii Table of Cases ix Table of Statutes xvii Table of Statutory Instruments xviii Abbreviations xix 1 Introduction 1 2 The Division of Things 9 3 The Ownership of Land Beneath Water 45 4 Alluvion and Avulsion 85 5 Common Interest: The Search for a Doctrine 115 6 Common Interest: The Establishment of a Special Regime 145 7 Common Interest: Modern Law 174 Index 219 v Preface This book is a revised version of my thesis entitled ‘Private Water Rights in Scots Law’ submitted for the degree of Doctor of Philosophy in August 2012. I have attempted to state the law as at 1 October 2014 but it has been possible to take account of some later developments, notably the coming into force of the Land Registration etc (Scotland) Act 2012 on 8 December 2014, the publication of the Smith Commission Report in November 2014, the response of the UK Government to that report in January 2015 and the Scotland Bill. I wish to acknowledge several people who have helped me over the years. I am incredibly grateful for the excellent supervision of my PhD provided by Professor Kenneth Reid as well as his assistance and encouragement in the production of this book. I have benefited greatly from the time and effort he has spent as well as the intellectual rigour he has consistently shown. My second supervisor, Scott Wortley, also made valuable comments at various stages of my progress. I also wish to thank: Professor George Gretton and Dr Andrew Steven for their help with various issues of property law; Dr Paul du Plessis for assistance with Latin and Roman law sources; Professor Elspeth Reid and Dr Eric Descheemaeker for guiding me through delictual difficulties; as well as Professor Roderick Paisley and the late Professor William Gordon for aiding investigation into historical matters. Professors Gretton and Paisley were also my examiners and allowed my viva to be an extremely enjoyable experience. Their corrections and comments undoubtedly enriched this book. To Professor Niall Whitty I owe a particular debt both for his chapter ‘Water Law Regimes’ in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) and for the inspiration which he provided at the early stages of my PhD when he handed me, with extraordinary foresight, a copy of the index of the session papers on water rights cases in the Signet Library and his volume of E Chadwick, Report on the Sanitary Conditions of the Labouring Population of Great Britain (1842). Several academics beyond the foreshore of Scotland are worthy of mention. I made many memorable trips as part of the Ius Commune training programme in the first year of my PhD. Through this programme I met, among many others, Dr Bram Akkermans, Dr Koen Swinnen and Dr Eveline Ramaekers who have remained faithful property law companions. Professor Reinhard Zimmermann facilitated a research trip to the Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg in the second year of my PhD. Residence at the South African Research Chair in Property Law in Stellenbosch in my third year reminded me of the significance of my subject vii Preface viii and stimulated my intellectual imagination at a crucial time. My thanks go to Professor Andre van der Walt for the kind invitation to South Africa and to Dr Ernst Marais for his friendship and infectious enthusiasm. Lastly, Professor John Lovett of Loyola University, New Orleans caught me at an important moment and ensured I stayed on the right academic path. The Edinburgh Legal Education Trust provided generous funding without which my PhD would have been impossible. Recognition should also go to the Max-Planck-Institut, Clark Foundation for Legal Education, Cross Trust and South African Research Chair in Property Law for monetary assistance regarding my foreign travels. Libraries are essential to research and the librarians of the Law Library of the University of Edinburgh, Signet Library, National Library of Scotland and Advocates Library have all helped me enormously. In particular, Andrea Longson, Senior Librarian of the Advocates Library, and Felicity Cross, Information Manager of the Signet Library, put up with my relentless requests for session papers. Nick Dyson of the University of Edinburgh also provided much technical advice. I am indebted to my friends Dr Thomas Horsley, Dr Findlay Stark, Dr Karen Baston, Katarzyna Chalaczkiewicz, Stephen Bogle and Christopher George. Each has been important throughout the research and writing of this book in different ways that have all been meaningful to me. I hugely appreciate the encouragement that my Mum has provided to me at every stage of my academic development. Finally, I am truly thankful to Marius Røe Nåvik for sacrificing our evenings and weekends for ‘Project Book’ as well as the infinite kindness and patience he has shown towards me during the past two years. This book is dedicated to Henry Home, Lord Kames, whose worth as a great scholar of Scots law deserves to be better appreciated. Jill Robbie Glasgow October 2015 Table of Cases References are to paragraph numbers Abercorn (Marquis of) v Jamieson (1791) Hume 510 . 6-02, 6-03, 6-21, 6-22, 6-23, 6-24, 6-29, 6-32, 6-33, 6-34, 6-46, 6-49, 6-50, 6-63, 7-15, 7-16, 7-43, 7-47, 7-89 Aberdeen (Magistrates of) v Menzies (1748) Mor 12787 . 6-46, 7-62, 7-84 Ailsa (Marquess of) v Monteforte 1937 SC 805 . 3-41 Aitchison v Magistrates of Glasgow (1823) 2 S 377 . 7-64, 7-80 Aitchison v Magistrates of Glasgow (1825) 1 W & S 153 . 7-80 Aitken’s Trs v Caledonian Railway Co (1904) 6 F 465 . 3-21 Aitkenhead of Jaw (Thomas) v Russell of Elrig (Unreported) . 5-20 Agnew v Lord Advocate (1873) 11 M 309 . 3-09, 3-10, 3-26, 3-39 Aldred’s Case (1610) 9 Co Rep 57b, 77 ER 816 . 5-72 Anderson v Anderson (1867) 5 Irvine 499 . 6-40 Ardrossan (Magistrates of) v Dickie (1906) 14 SLT 349 . 7-20, 7-21, 7-27, 7-29 Argyll (Duke of) v Robertson (1859) 22 D 261 . 2-92, 2-97 Argyll and Bute District Council v Secretary of State for Scotland 1977 SLT 33 . 3-09 Armstrong v Sproat (1988) Unreported Property Cases from the Sheriff Courts (eds R R M Paisley and D J Cusine) 482 . 7-62 Arthur v Aird 1907 SC 1170 . 7-73 Attorney-General of Southern Nigeria v Holt [1915] AC 599 . 4-55 Aytoun v Douglas (1800) Mor App 7 . 6-02, 7-100 Aytoun v Meville (1801) Mor App 8 . 7-88, 7-100 Baillie v Hay (1866) 4 M 625 . 3-37 Baird v Robertson (1836) 14 S 396, (1839) 1 D 1051 . 3-85, 3-86, 4-29–4-30 Bairdie v Scartsonse (1624) Mor 14529 . 5-11, 5-15, 5-26, 5-28, 6-46 Bannatyne v Cranston (1624) Mor 12769 . 5-11, 5-15, 5-25, 5-28, 5-41, 5-51, 5-54, 5-70, 6-23, 6-35, 6-46, 6-48, 7-69 Barr v Bass Ltd 1972 SLT (Lands Tribunal) 5 . 4-60 Bass (Lady) v Laird of Balgowan (1616) Hope, Practicks III.16.28 . 5-20 Bealey v Shaw (1805) 6 East 208, 102 ER 1266 . 5-76 Beaton v Ogilvie (1670) Mor 10912 . 5-19, 6-46, 6-49, 7-44 Berry v Holden (1840) 3 D 205 . 3-25, 3-40, 4-33, 4-55 Berwick (Mayor of) v Laird of Haining (1661) Mor 12772, 2 Brown’s Supp 292 . 5-27, 5-37 Blair v Hunter Finlay & Co (1870) 9 M 204 . 7-49, 7-51 Blantyre (Lord) v Dunn (1848) 10 D 509 . 6-32, 7-18, 7-21, 7-49, 7-51, 7-52 Blantyre (Lord) v Waterworks Commissioners of Dumbarton (1886) 15 R (HL) 56 . 7-23 Blyth’s Trs v Shaw (1883) 11 R 99 . 3-32, 4-33 Bonthrone v Downie (1878) 6 R 324 . 7-37, 7-38, 7-78 ix Table of Cases x Borthwick v Laird of Kirkland (1677) Mor Supp (Stair) 66 . 5-19, 5-20, 5-21 Borthwick v Strang (1799) Hume 513 . 6-62 Boucher v Crawford 30 Nov 1814 FC .
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