Legal Action Regarding Provision of Water from Kinghorn Loch, Burntisland Oil Co. Ltd.,1882

type: Companies - litigation

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Source date:
01/07/1882 (approximate)
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Proof was led on Thursday before Lord in the Court of Session in the action at the instance of the Kinghorn Town Council, seeking to have the Burntisland Oil Company interdicted from “diverting the water of burn or stream flowing through the farm of Binnend and the lands of Galla-Hill to their works at Whinnyhall, or connecting the said burn or stream with the pipe or drain formed, or to be formed, by them from the said stream to their said works.” In the condescendence the suspenders22jul1882 state that they are the proprietors of the Kinghorn Loch, which supplies the Kinghorn mill with water, but this the respondents deny. The Town Council further says that from “the twelfth to the seventeenth century various royal charters were granted in favour of the burgh. In particular, by crown precept of sasine, dated 12lh December 1611, King James VI. of new created and incorporated the town and burgh of Kinghorn into a free royal burgh, and of new gave, granted, assigned, disposed, and incorporated to the burgh, provost, bailees, council, and freemen, burgesses and their successors in property and heritage, ‘all and sundry houses, buildings, tenements, yards, acres, roods, wastes, tofts, crofts, and others lying within the said burgh roods and territory thereof, together with the mill lying within the said burgh called the Lower Mill, mill lands, multures, and sucken thereof, with the Loch Kinghorn and water gang thereof from the said loch to the said Nether Mill of Kinghorn and also all and sundry the lands called the Gallowhill, with the pertinents, &c., &c;’” to which the respondents reply that “the solum of the loch and the lands of Lochlauds and Gallahill do not now belong to the burgh.” The Council further says that in “former times the water from the loch was used to drive the two meal mills belonging to the burgh, and the Town Council in letting these mills on lease in the year 1790, granted to their tenants the liberty of drawing water from the Loch of Kinghorn all occasions and though the grinding of meal in the Kinghorn Mills has been discontinued for the greater part of the present century, there has been carried on in mills situated along the banks of the stream as it passes through the burgh the business of flax and tow spinning.” They further assert that when in 1824 they feued the Loch and loch lands, they reserved the water to the town and for the mills ; that “ the Nether Mill is the property of the burgh, together with the ‘ watergang" of the loch from the said loch to the said Nether Mill, and also of the loning and passage leading from the said burgh to the said loch,’ in terms of the royal charter already quoted. It is let under lease to Messrs Swan, Brothers. The lands of Lochflatt (otherwise called Little Dam), the mill dam adjoining the lauds of Little Dam, and property in the burgh along the course of the burn, belong to the suspenders. Under the reserved right contained in the feu contract above quoted, the suspenders are proprietors of the water in Kinghorn Loch, and they have since that feu contract was granted exercised the same unlimited control over the water, and the regulation of the sluice, which they did before feuiug the loch, and they now and from time immemorial have let these rights to tenants.” To this the respondents reply, that though the complainers have a reserved right to take water from the loch, they are not proprietors of any part of the lands surrounding it. These lands with the solum of the loch and the greater part of the catchment area from which the water supply is derived, belong to the respondents. The complainers do not own any land through which the streamlet in question runs.” The Council goes on to say that the Loch is a considerable extent supplied with water by a small stream which rises in the high ground Binn Hill, and after flowing along the back the Binn Hill for a mile, flows through the farm of Binnend by a covered course, until it reaches the turnpike road at the lands of Gallahill, through which it flows by an open course into the loch of Kinghorn.” The respondents explain that this streamlet, which is conveyed by a 3/4-inch pipe through a wall at Binnend steading, falls into a covered drain near the public road there. By the drain it is taken to Kethymire, about half mile to the west of Kinghorn Loch. At Kethymire it runs into a much larger stream, which has its source in the respondents’ lands, and flows through them into the loch.” The complainers further state “the respondents recently constructed a four-inch pipe drain from their works at Whinnyhall up to the high ground at the east of Binnend steading that on remonstrance from the Town Clerk they stopped it, but that they began it again in February last; that the water so diverted, after passing into the respondents’ oil-works, is not, and cannot lie, restored to the said stream or loch, but will be thrown either into a burn leading past the said works to Burntisland, or into a pipe-drain leading direct from the said works to the Firth of Forth that “ in consequence of the diversion of the water the said stream, the water supply of the loch will be considerably diminished, and the interests of the suspenders, who derive a large rent from the mill-owners at Kinghorn, in respect of the water supply from the loch, will seriously prejudiced.” To this the respondents reply that they only take a small quantity of water for drinking purposes for their three hundred workmen, but that even if the said streamlet were entirely cut off, it would not cause any material diminution of the ordinary water supply in the loch, and could not in any way be injurious to the rights of the complainers.” The respondents state that the Loch forms a natural reservoir which, when in its normal state and within its proper bounds, is capable of holding about 65 million gallons;” that “ the supply of water given by the said streamlet is but small. At the place where it finds its way into the drain aforesaid, from which point the respondents’ 4-inch pipe has been laid, the flow at best amounts to about 5 gallons a minute, or 7200 gallons in twenty-four hours, that being about l-64th of the outflow from the loch, or l-70th of the supply taken by the complainers from the loch and its feeders that “the loch present covers an area of about 29 acres. Its proper and legitimate area is 25 acres, 1 rood, and 27 poles or thereby. By operations which have raised the level of the loch, the complainers have caused the water to regorge so that the loch has gone beyond its natural limits, and has overflowed a large portion of ground belonging to the respondents. More than 3 acres have been thus encroached upon, and serious injury has been and being done to the respondents’ property that in its present condition, with the respondents’ lands flooded, the loch is capable of holding at least 80 million gallons, and there is therefore a surplus of 15 million gallons, if not more, beyond what it ought to hold within its ordinary limits that “ the water is thus now too high over 2 feet;” that “the respondents’ operations cannot result in any prejudice to the complainers, but the existing interim interdict is a hardship to the respondents, being thereby excluded from the use of water to supply even a locomotive engine.” The first witness was Mr Menzies, C.E., Edinburgh, who said be examined the whole gathering ground ; the natural drainage area into the loch was 317 acres, by the ordnance survey map. He saw the place where the defenders proposed to take the water from. It extended to 82 acres. That was in the highest part of the drainage area, and as rain fell most in the highest latitudes that would naturally be the most valuable part of the gathering area for the loch. There was a waste weir the loch four feet wide. He and Mr Boothby, C.K., Kirkcaldy, made a survey of the loch. On the 9th the surface of the water was level with the weir, and on the 22nd nine inches below but it covered part of trees and a paling at the west end of the loch. On the 22nd he went to Rodanbraes Cottages, between the loch and the defenders’ works, and found the flow of the burn there 3-1/2 cubic feet a minute. The Gallowhill stream, the main stream into the loch, and also the stream at Craigencalt, ran the former 14-1/2 cubic feet, and the latter 13-1/2 feet per minute. At the Binnend steading there was flow of nearly 1-1/2 cubic feet. He saw the storage pond to the east of Binncnd farm-steading. The manager of the Oil Company told him that they required nearly 3-1/2 cubic feet per minute day and night, and that the pond would contain two million gallons. There was a 4-inch pipe from the Binnend steading to a tank at the Oil Work. It would carry about 60 cubic feet a minute. That was carrying the water quite into another valley. In summer that pipe would abstract all the water from the 82 acres. Crossexamined by Mr Trayner—Witness said that there were two main feeders—the Craigencalt and Gallowhill streams. There might be some others, and probably were. The former would not have been a feeder of the loch had it not been artificially diverted into it. It is diverted at Glass-mount farm, otherwise it would have flowed east to the Banchory burn. The Gallowhill burn at Kethymire was joined by the Rodenbraes burn—if it could be said a large stream that it went to join a small one. lie could not say if the position of the trees and the paling showed that the loch had extended for the past ten years—lakes did work out sometimes in that way. There was an old stone wall on the north side of the loch submerged, being 20 feet into the loch, but he could not say what that indicated. A hedge at the south side of the loch also some trees —firs alders —were in the water. The storage tank at Binnend was also supplied by pumping from the mine and the overflow would naturally flow into the Binnend stream and so into the Kinghorn Loch.

Re-examined—The Roddanbraes stream ran 3-1/2 cub. feet minute, and the combined Roddanbraes and Binnend streams near the lake 14-1/2 feet, so that 11 feet was left for the Binnend stream. Alex. Cunningham Boothby. E., Kirkcaldy, authenticated the plans which he had made for the use of the Court. He was with Mr Menzies when he made his survey and concurred in the results. He could not say if the loch had extended in recent years, but in summer it was sometimes down to half its winter area. He had seen the trees at the west end left dry in summer. Re-examined—The 4 inch pipe to the Binnend tank from the burn would carry 58 cubic feet minute. There was not always so much water as that in the burn at that point. On the 6th of March he found 5.928 cubic feet per minute running in the burn. Robert Buist, engineer, Burntisland, examined by Mr Keir, worked in Kinghorn in 1825 with the predecessors of the Messrs Swan, Kinghorn, and in 1834 went to be the sluice-keeper and engineer for Messr Swan. The weir is always the same since it was put in in 1827. There bad been complaints by Mr Young, farmer, of the height of the loch, and he kept the sluice open night and day to let the water off. He had in 1827 seen the water on the turnpike road. He used to visit his father-in-law, Mr Robertson, in 1833 and 1834, and he married in 1835. Mr Robertson had a farm to the west of the loch, and complained of the water coming over the land. It came up 30 yards’ beyond the trees. Cross-examined by Mr Young—Witness remembered of tress being planted on the south west of the loch—outside the water. The engines at Swan Brothers’ upper mill were respectively 120, 40, and 30 horse-power, and that at the lower mill 30 horse-power. They were steam engines. Mr Fraser, mill manager to Messrs Swan Brothers, Kinghorn, and who was in their employment for 36 years, said they required about 400,000 gallons a day for the two flax mills, and of course if the supply ran short it would have a very serious result. Bailie Swan, Kinghorn, of the firm of Swan Brothers, also gave evidence as to the amount of water required for the mills. He also spoke the variations in the level of the loch, and stated the other uses in the town for which the water is required. Provost Swan, Kirkcaldy, senior partner of the firm of Swan Brothers, corroborated the other witnesses as to the water required for the mills. He also deponed that a sum of money had been obtained from the railway company as compensation for being allowed to take some of the water. Mrs Condie stated that she remembered of the water the loch being so high that it overflowed a good distance west of the trees at the west end of the loch. She had seen, in harvest, sheaves of corn stocked at that place, and the water was up to the bands. Peter Heigh, who had been in Kinghorn all his days, remembered of the water that ran into the loch. When the Kethymire was drained the burn was covered in. The loch, sluices, and banks were the same now he ever remembered them. had seen the loch frequently overflowing the road and land near it. Forty or fifty years ago carters passing on the road could water their horses in the loch. The height of the loch varies very much according to the state of the weather. Cross-examined —Is the loch not if anything larger now than it used to be ?—No ; I think it’s smaller. Mr Young—Does this burn take its rise at Craigkelly ?—No, not at Craigkelly. Where, then ? Isn’t Craigkelly at the top of the hill?—Yes, and that’s why the burn does not rise there? (Laughter.) Isn’t it at the top it rises ?—No, no; the water could not rise ; it Hows gently down. (Laughter.) Water won’t flow up a hill. (Laughter.) But the burn has its origin there ?—Oh, it’s not burn—just a tricklet that flows down a way of its own. (More laughter.) Robert Minorgan, carting contractor, Kinghorn, knew the loch well, and remembered that it used to overflow and fill a hollow beyond the road. Andrew Martin (86) was the next witness, and on account of deafness could scarcely be got to repeat the oath. He lived at Craigencalt, and remembered of the dyke being built to the north of the loch, and the height of the water was the same then as now. Provost Smith, Kinghorn, said the loch was at one time the principal source of the Kinghorn water supply, though latterly water was got from the burn that came down by Craigencalt. The water of the loch was good enough, and was used for cooking purposes. Since the interdict was granted in this case they had allowed the Oil Company take the water, and there had been no complaint of scarcity, but the loch fell foot below the overflow. Mrs Gourlay said her father was a ploughman in Craigencalt, and she remembered that when her father went to Craigencalt in 1807 the west side of the loch was just a bog. Mr Young drained the bog. The Court then rose for the day.

The case was resumed yesterday, when a considerable number of witnesses were examined. Mr Thomas Hepburn, examined, said that when he came Kinghorn first, Mr Fergus had the mills, as well as the meal mills. knew the bye-wash of the loch since remembered. Mr Charles Robertson had charge of the sluice, and drove his carts over the embankment without hindrance. At one time there was no other supply of water for the inhabitants, at least for washing purposes, except what came from the sluices. James Knox, Town Officer, Kinghorn, said-I am Town Officer of Kinghorn. I reported in January 1882 to the Town Council that there were operations in progress for taking water from the loch. On the Saturday went there and found the operations stopped. 1 did not know the reason. Mr John Sang. C.E., Kirkcaldy, stated that he had a plan of Kinghorn Loch (produced.) This a survey made the ground in 1825. He remembered of diversion Banchory Burn being made, but did not remember the date. This plan was made by his brother in 1825, and the black lines indicated the boundaries of the loch. The purpose of making the plan was that a gentleman named Barclay wished a plan of the whole district, and that plan only formed part of the others. It was done for the purpose of excambion between Mr Ferguson and Mr Stewart. This closed the evidence for the pursuers.

Robert Cairstairs Reid, C.E., Edinburgh—Had good deal of experience In water-works.* On the 17th of this month he visited the loch for the purpose of examining it. The Binnend Oil Company were making a compensation pond, capable of holding a million gallons. The inlet to it was drain, yielding a supply of 1300 gallons per day. There were cottages being put up for the workmen, and considered this would supply about 180 people at the rate of about 20 gallons per day per head He considered that the whole of the Binnend Barn, which is a tributary of the great feeder of this loch, ran through the pipes. The Banchory Bum was another feeder of the loch, but the larger is called the Roddan Braes Born. The catchment area of the loch was about 236 acres, and the proportion of Intercepted water about 1/17th of the whole supply. The loch was capable holding about 78,000,000 gallons and this was a sufficient supply for all purposes, including the mills of Kinghorn. It appeared that the loch had gone out considerably, and must have at one time many acres of ground less than at present. In June, the driest season of the year, the water was flowing over the respondents’ ground to the extent of a quarter of acre, there was no doubt that the area was considerably greater than was shown on the ordnance map. There was a stone wall there which was submerged about two feet on his visit. There were trees in the water, which were not, properly speaking, trees which require such a situation, and certainly no one would build a wall with the top two feet under water, or plant his firs in It. The water which flows from the loch to Swan Brothers’ mills at Kinghorn runs on from there to Tyrie bleach-field. When the Messrs Swan’s mill stopped at night, the water flowed to the sea at the rate of 320 gallons per minute, and counting this from Saturday two o'clock to Monday morning at six o’clock, the quantity of water run waste would lie 26,880,000 gallons. There was a pond in connection with the loch which was silted up, but if cleaned out would give a large additional supply to the town. The quantity of water run to waste from Saturday to Monday morning was equal to 212 days’ flow of the water intercepted, and he did not believe the supply was affected in the least by the quantity thus taken. The pipe laid down by the respondents was a 4-inch pipe, and would run about 80 gallons per minute. The quantity required, however, by the works was about 20,000 gallons per day. He was of the opinion that the supply for the new cottages would be taken from the same pipe. When the loch was quite full the dyke was covered, and the trees spoken of were under water. He did not think the wall was high enough to prevent the water flowing over the road. His opinion was that the wall was put up to prevent cattle wading into the water. It was not a stone and lime wall, but a dry-stone dyke. He did not think it had been built as a retaining wall to prevent the water overflowing.

James Spencer, manager of the Burntisland Oil Co., stated that there was a large supply of water from the mines for the purpose of purifying the oil, which was pumped up by the engine. Nearly 4,000 gallons per day was used tor domestic purposes, as there were nearly 400 men employed. The 4-inch pipe laid down was for the purpose of bringing down the water from the new tank, there was very little water coming from the Binnend Burn-about 3or 4 gallons per minute. Another pond or tank was being made capable of holding 2,000,000 gallons. The water coming from the Binnend Burn was at present nearly exhausted, and the engine had to supplemented by water from the mine. He never saw a flow of water from the Bum to the works sufficient to make any impression on the loch, and the 4-inch pipe was only put down temporarily ; to-day a connection has been with the mine, and it would not be required longer.

There was plenty of water in the loch for the supply of Kinghorn, and they could utilise the dam if required. But at present the water was flowing over the ground of the Oil Co. some 15 or 20 feet, and the ground at the public road had been overflowed well. The works at Binnend only required a certain amount of water, and care had to be taken not to allow too much to come. He could see the water flowing away to the sea at Kinghorn from the overflow, showing that the supply was not interfered with.
Cross-examined by the Dean of Faculty—There was no water coming from the mine at present, nor had been for a fortnight. It was an important matter to get a supply of clean water for the machines, and this could only be got from the loch. He thought the cottages then being built would requite at least 30 gallons per head, and the 4-inch pipe was intended to supply these. He considered there was too much water in the loch, and it should be lowered, on most the occasions the water was running over the bye-wash. He bad opened the drain running from Binnend and measured the flow by inches, but could not tell what number of gallons per hour this gave. He admitted having made a mistake in saying that he made the calculation, he only opened the drain, while the engineer made the calculation, which thought would be about 4 gallons per minute. All the water coming through the 4-inch pipe would be (required for the people, and not for the works, and any surplus over would fall back Into the drain.

The Court then rose for lunch. On the Court re assembling, Mr Davidson, farmer, Banchory, said the loch had been raised since he entered on the farm in 1876 to a considerable extent, and flowed nearly 12 yards further up the slope than it did at that time. There were a number of Scotch firs growing there, which were now surrounded by the water. The people living in Craigencalt Mill had to leave the house in consequence of the encroachment of the water. He had applied to the town to reduce the level of the loch, and had raised the bottom of the cattle shed to prevent its being overflowed. Since 1872 the seasons had been very wet.
David Aitken. farm-servant, Craigencalt. had lived all his life in the district, and had been 40 years in the farm. He used to feed the cattle in the reeds up till about 5 or 6 years ago. when the water rose till it came into the steading. Mr Davidson bad raised the bottom of the reeds about 18 inches, but the water came in still. There used to be a cart road leading the sheds, but it was now covered. There was a fence, and sauch trees growing to the west of the loch, and he used to sow and reap the crops grown on the land there. Cattle also grazed on the south side of the loch, where the bank was about 18 feet broad. He had never seen the loch so high as it had been during the last 4 years.
By Mr Kinnear—The water was never allowed to get above the bye-wash, as the sluices were opened, and the embankment was broken down to allow the water to get away.
His Lordship—What is the date of the diversion of the Banchory Burn ?
Mr Trayner - Is lost In antiquity, but Mr Sang has sworn it must have been been before 1830.

Robert Anderson (76). roads man, Kinghorn. has been 57 years on the roads, and the people grazed cattle at the side of the road, when the ground was about 30 feet broad. He remembered of the trees and hedge being planted by Mr Stewart about 45 years ago. These were all away now. having been washed down during the last 7 or 8 years. Both the footpath and the fences had been destroyed by the loch rising. He bad seen people working the bye-wash, but did not know what they were doing. Banchory Burn was diverted in its course, and made to run into the loch nearly 100 years ago. James Lochtie. blacksmith, Kinghorn—Had driven his carts between the hedge and the loch on the south side. In winter however, the rains raised the loch till it overflowed the banks. It was higher now than formerly.

This closed the proof, and after the case had been argued at considerable length by the Dean of Faculty and Mr Trayner, his Lordship took it to avizandum. Counsel for complainers—The Dean of Faculty and Mr Keir. Agents—Watt & Anderson, S.S.C. Counsel for respondents—Mr Trayner and Mr Young. Agent—J. Hill Bairnsfather,

Fifeshire Advertiser, Saturday 01 July 1882


BURGH OF KINGHORN V. BURNTISLAND OIL COMPANY. On Tuesday in the Court of Session, judgment was given in this action, in which the Provost and Magistrates of Kinghorn, in the interest of the burgh, sought to interdict the respondents from taking a supply of water from a burn flowing through the farm of Binneud and the lands of Gallahill to their works Whinnyhall. It was maintained by the respondents that they are entitled to use the water taken from the streamlet, and they denied that was prejudicial or injurious to the complainers. Lord Kinnear said the question was whether the respondents were entitled to divert for other than primary purposes the water of this streamlet running through their lands without returning it to the stream. The result of the evidence was clearly this, that if the respondents’ operations were carried out, and they were allowed to use the water for the purpose of their works without returning it, a distinct and recognisable feeder of the loch, although of very inconsiderable magnitude, would be permanently cut off. A skilled witness had given the supply to the loch at 7200 gallons day in the average condition of the water. It was clear enough that the proportion that would be abstracted by the 2-inch pipe proposed by the respondents would be exceedingly small, and the question, therefore, was whether the complainers were entitled to object to the diversion of feeder of the loch? That depended upon their right to the loch and the streams issuing from it. So far the loch was concerned, the respondents had no higher right in it than a mere right of servitude, because they had conveyed it to the respondents, reserving only to themselves the dams and sluices in connection with it. But then they were in the position of riparian proprietors on the water issuing from the loch, and as lower heritors they had a right to the transmission the water by the upper heritors. No proprietor on the banks of any stream was entitled to divert any part of the water without returning it to the stream. The respondents were entitled to use the water for all primary purposes. The complainers sought to interdict the respondents from diverting the water of the burn to their works at Whinnyhall.” That would cover a restriction against taking the water to serve the domestic purposes of their workmen, and therefore the interdict, which he proposed to grant, must be made clear not to include that. An interlocutor was adjusted, interdicting the respondents abstracting water from the Binnend stream for other than primary purposes without returning it to the said stream. Expenses were given to the complainers. Counsel for the Complainers—The Dean of Faculty, Q.C., and Mr Keir. Agents—Watt & Anderson, B.S.C. Counsel for the Respondents—Mr Trayner and Mr Young. Agent —J. H. Bairnsfather.

Fifeshire Advertiser, Saturday 22 July 1882