Minerals whatosoever, whoseWaters are of all other the most pestilentious, because after he had bestow’d a great deal of Expence, he might be forc’d to desist, for satisfying the Jealousy, or Imagination of melancholy or avaritious Neighbours. And if this Pursuit find a favourable Hearing,Malice and Envy will make use of it, as a fair Occasion whereby to disturb all successful and thriving Undertakers. But your Lordships may see, that theWorld, both learn’d and unlearn’d, have hitherto believ’d, that such a Pursuit as this would not be sustain’d, in that tho’ Interest and Malice did prompt Men to such Pursuits, yet no one such as this has every been intented, for ought I could ever read, save once at Grenoble,where anAdvocate did pursue a Smith to transport his Forge from the chief Street, because it did by its Noise disturb not only him, but the People who frequented that Street; from which Pursuit the Smith was absolved, as Expilly observes in his Pleading. Yet, my Lords, the Fishers uponTweed want not some apparent Reasons which give Colour to the Pursuit; and it is urg’d for them,“That no Man is so Master of his own, but that the Commonwealth has still an Interest with him in it; and Law being invented to protect the Interest of Societies, as well as to secure the Property of private Persons: Therefore tho’ every private Man inclines to satisfy his own Humour and Advantage, in the Use of what is his own; yet it is the Interest of the Commonwealth, that he do not abuse his own Property; and therefore it is, that the Law doth interdict Prodigals; nor will the Law suffer that a Man use his own in emulationem alterius, 1.3. ff. de oper. pub. And a Man is said to do anyThing in emulationem alterius, when others lose more by what is done, than the Proprietar can gain:As in this Case, tho’ quilibet potest facere in suo, yet non potest immittere in alienum, which is their Case; and all the Arguments brought for Haining do not meet, seeing they only prove, that a Man may use what is his own as he pleases, ubi nihil immittit in alienum; as is clear by the Instances given, of throwing down his ownWall, or the digging up aWell in his own Land, which differs very much from our Case, where Haining doth pour in his poisonousWater into the River of Tweed. That Men are restrain’d for the Good of the Commonweath in the Use of their own Property, is very clear from many Instances in our Law, as Men are discharg’d by Acts of Parliament to burn Moors, to kill Smolts; the Way and Manner of Fishing upon Lochleven is prescribed to the Heritors by Act of Parliament, and Men are forbidden to steep Lint by public Acts likewise. Likeas, the common Law will not suffer re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 342
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