A lease of a distillery included certain lands and two ponds, ‘together with the right to the water in the said ponds and in the streams leading thereto.’
H
eld (affirming the judgment of the Second Division, the Lord Chancellor dissenting) that water percolating through marshy ground into the ponds was not included in the expression ‘streams leading thereto,’ and that, assuming the lessors to be under an implied obligation not to diminish the supply of water in the ponds, the onus of proving that a diminution had resulted from operations of the lessors lay upon the lessee, and had not been discharged.
Opinions reserved (by Lord Watson and Lord Davey) whether such an implied obligation could be held to exist where certain sources of supply to the pond are specified and let.
Opinion (by Lord Shand) that such an obligation was to be implied.
Judges:
Lord Chancellor (Halsbury), and Lord Watson, Lord Shand, and Lord Davey
Citations:
[1896] UKHL 174, 34 SLR 174
Links:
Jurisdiction:
Scotland
Land
Updated: 27 April 2022; Ref: scu.634027