Alan Cameron | Senior Associate

Take that (Scottish Ministers): The Flood

Lord Mulholland issued a Judgment on 15 September 2017 in respect of a claim raised by a farmer against the Scottish Ministers following the construction of the M74. The farmer stated that he had a natural right of drainage from his land over another property which comprised of the boundary section of the M74 and that the construction of the M74 interfered with that right.

The basis for this claim is that in Scots Law, the natural right of drainage exists when one party has land higher than a third party’s property and therefore the third party is obliged to receive the water falling from this land. This is the exercise of the natural right of servitude which is imprescriptible and res merae facultatis.

In this particular case the farmer was of the view that the old drainage system on the defenders’ land was acting as a barrier to the pursuer’s natural right of drainage and the defenders were accordingly liable to restore the old drainage system on their land to full working capacity. The Defender did not accept this nor indeed did they admit that the natural line of drainage followed the lie of the land and tried to persuade the court that there were alternative reasons for the damage to the Pursuer’s land. During the course of this case, there were multiple witnesses, including expert witnesses to comment on the factual matrix of the disputed area and the likely cause of damage to the client’s property.

Of particular interest in this case was the court’s role as not only did it have to consider whether the Pursuer had a natural right of drainage and if satisfied was it being interfered with but it also had to consider whether it should exercise its equitable power to regulate the matter if it was satisfied the Pursuer was unduly pressing his right and making the situation intolerable for the defender.

The court decided on the balance of probabilities that the farmer did so have this right and was acting reasonable in seeking to enforce it.

The question of natural drainage is complex but what can be taken from this case is that if you are of the view that somebody has interfered with your natural right to discharge water from your property to a lower land then then you must be able to evidence your position if challenged. Equally if you are the party in which it is alleged that interference has occurred then a detailed assessment of the situation is required.

On either scenario we at Jackson Boyd Lawyers would be happy to help. We are able to offer you advice on how best to investigate matters and given our property law experience can provide practical assistance when focusing on your investigation along with necessary experts. For more information please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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