Men so to useWater running thro’ their own Land, as that they may thereby prejudge Mills belonging to their Neighbours, which use to go by thatWater:And whatever may be alledged in favour of any Innovation in runningWaters; yet Lakes being appointed by Nature, seem to have from Nature a fix’d Being; nor should they be open’d to the Prejudice of others, contrary to their Nature.” These Objections may (my Lords) be thus satisfied.To the First, it is answered,That the only Two Restrictions put upon Men in the free Exercise of ther own, are, ne in alterius emulationem fiat, vel materiam seditionis praebeat, as is clear by the foresaid 1.3. ff. de oper. pub. neither of which can be subsumed in this Case. And when the Law considers what is done in emulationem alterius, it acknowledges, illud non factum esse in emulationem alterius, quod factum est principaliter ut agenti profit. et non ut alteri noceat,1.fluminum§fin. ff. de dam. infect. and the Gloss formerly cited upon that Law determines, that Animus nocendi is not presum’d, if any other Cause can be assigned:And in this Case, Haining can ascribe his opening this Lake to the Prejudice it did to his Land, and to his Health; whereas it cannot be alledged, that he ever express’d any Malice against the Fishers upon Tweed, many of whom are his own Relations. As to the Instances given, wherein the Law doth restrict the free Use of Property, the Principle is not deny’d but is misapply’d. For the Law only bounds the Proprietar’s Power in some Cases, wherein his Loss may be otherwise supply’d; as in Moor-burn, and killing of Smolts at such a Season of theYear, and in steeping Lint in runningWaters, which may be as commodiously done in standing Pools; but these Pursuers crave this Lake to be stopt at all Times. Nor is there any apparent Reason here as there, this Pursuit being founded only upon a conjectural Prejudice; and in these Cases, the Prohibition is made necessary by the Generality and Frequency of Occurences, and yet tho’ so circumstantiated, there is still a public Law necessary.And when a public Law discharges the free Exercise of Property, it ordains him in whose Favours the Prohibition is, to refound his Expences who is prohibited. Nor is the Commondwealth here prejudg’d so much by this, as it would be by the contrary; for thereby all Coal-heughs, Lead-mines, and the winning of other Minerals would be dischar’d:Whereas it is uncertain if thisWater chaseth away the Salmon, which are at best but a Casuality, and which will go but fromTweed to other Rivers in Scotland; for they cannot stay in the Sea. Salmon-fishing is but anAccident to Rivers, but alan wat s on 343
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