( Ante, November 27, 1900, 38 S.L.R. 121, and 3 F. 156.)
Subject_Police — Water Supply — Aqueduct — Pipe — Right of Support — Minerals under Pipe — Act of 1819 (59 Geo III. cap. cxvi.), secs.38 and 73 — Act of 1843 (6 and 7 Vict. cap. lxxxix)
By an Act of 1819 “for more effectually supplying the city of Edinburgh and places adjacent with water,” the Edinburgh Joint Stock Water Company were empowered to “lay the necessary pipe or pipes for that purpose … making satisfaction to the owners and occupiers of the ground.” Among the lands scheduled were the lands of Pentland and Straiton, and shortly after the passing of the Act a pipe was laid under the powers thereof which traversed these lands. There was no proof that any compensation had been paid to the owners of these lands for the laying of the pipe. The Act of 1819 made no specific provision with regard to compensation for minerals required as support for the pipes laid. The Water Company in question was a private company, but the Act imposed important obligations upon the company in the public interest.
By an Act passed in 1843 to enable the company to bring in an additional supply of water certain regulations were introduced in regard to the working of or receiving compensation for minerals under and adjacent to “the works of the company.”
In an action of declarator and interdict at the instance of the successors of the Water Company against the proprietors and lessees of minerals in the lands of Pentland and Straiton, held ( aff. judgment of the First Division) that under the Act of 1819 the pursuers were entitled to support for their pipe; that the provisions of the Act of 1843 as to minerals did not apply; and that the defenders were not entitled to work the minerals in the lands of Pentland and Straiton adjacent to or under the pipe in such manner as to injure the said pipe or to interfere with the continuous flow of water through it; and interdict granted against their doing so.
This case is reported ante ut supra. The Clippens Oil Company, Limited, defenders and reclaimers, appealed to the House of Lords.
At delivering judgment—
I agree with those of your Lordships who think that an actual payment is not necessary, even if you have to assume that an actual payment was not made, that the words of the 38th section would be satisfied by the mere acquiescence of the landowner, even if he got nothing by it, but after eighty years' enjoyment I myself should presume whatever was necessary to make the maintenance of the pipe lawful.
To ask for particulars of proof after such a lapse of time, and to act as if it were open to make an objection that something has not been proved which might have been proved eighty years ago if objection had been then raised but which lapse of time has rendered impossible to be proved by living witnesses, would be to unsettle a most valuable principle of law. I might quote Lord Chancellor Napier, who himself was quoting Lord Plunket, when he said—“But how stands the case at present? Witnesses have died; evidence has been lost; possession has been matured into a statutable title. I may here use the exquisite imagery of one of the greatest of my predecessors: ‘Time with its one hand mows down the muniments of our titles; with the other he metes out the portions of duration which render these muniments no longer necessary.” How much to be lamented if it were otherwise. If this preserving hand had not secured the new parliamentary title, what could compensate for the loss of witnesses who could now testify”—( Malone v. O'Connor, Drury, p. 644).
Lord Plunket was speaking of statutes of limitations, but every word applies to even a stronger degree to that principle of presumption in favour of long-continued use or possession, from which the presumption arises that such use or possession was lawful in its origin. Lord Herschell in Phillips v. Halliday, in your Lordships' House (reported in Appeal Cases, 1891), said, I believe with perfect accuracy, … “that when there has been a long-continued possession in assertion of a right, it is a well-settled principle of English law that the right should be presumed to have had a legal origin, if such a legal origin was possible, and that the Courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title” (See also per Pollock, C.B., 2 H. & N. 623).
I hardly understand, and I certainly cannot agree to any suggestion, that a valid title created in 1823 could be affected by anything in the statute passed twenty years afterwards. It appears to me that the judgment given by the Lord President deals satisfactorily with every question whether of fact or law.
I have no doubt that the decision of the Court was right, and I move your Lordships that the appeal be dismissed with costs.
The pipe in dispute was laid in 1823, and has ever since conducted water to the city of Edinburgh. It was laid as in virtue of an Act of Parliament passed in 1819 for the purpose of supplying Edinburgh with water. It seems to me that unless the appellants are entitled to have the pipe removed they are bound to give it support.
Now the 38th section of the Act of 1819 in clear terms authorises the company to make the necessary trenches and lay the necessary pipes for conducting the water to the city. This enactment is side by side with and independent of the power to take grounds for another purpose, viz., forming reservoirs. The undertakers, in exercising the power now in question, viz., to cut trenches and lay pipes, are to first (1) give notice, and (2) make satisfaction. These conditions (about notice and satisfaction) are directly and immediately applied to laying the pipes. The present case is therefore one where compensation is to be made for the rights acquired.
I pause to observe that as expressed in the 38th section the right given is the familiar one of wayleave—a right to keep the pipe there. It is not preceded by or dependent on the formal acquisition in property of the land in which the pipe is laid.
Well, now, the pipe having been there for eighty years, what is to be said against its right to be there? Nothing at all, except that it cannot now be affirmatively proved that money was paid. But then the word in the 38th section is “satisfaction,” and section 73 shows how satisfaction is to be made to owners who refuse to allow the company to use the ground. But this owner did in 1823 allow the company to enter, and it seems to me impossible in 1903 or 1898 to entertain the idea that he was not “satisfied,” any more than that he had not had notice.
If, then, the pipe was duly laid by virtue of statutory authority, its legal position,
While it is true that the enterprise of supplying this city with water was committed to a private company entitled to make profit within certain defined limits, the purpose was public. I am unable, however, to accept the suggested test as in any way conclusive of the question whether support or right to support exists. The true question is whether the grant made to this company under the compulsory powers of the statute of the right to lay pipes carried with it by implication the right to support. I find it impossible to hold that it did not. The question is the same as would have arisen in actual practice supposing that at the time when the pipe was laid this mineral field had been open. Would the owners have been compensated on the footing that they might next day bring down the pipe or that they might not? Yet the right of the undertakers is just the same, whether the existence of the minerals was known or unknown, and whether the right of support was in fact paid for or not.
The appellants' separate argument on the Act of 1843 (if the views now stated are sound) is somewhat daring, for it involves this, that while from 1823 to 1843 the pipe in question had right to support (by virtue of the doctrine of Evans), it was deprived of that right in 1843. I am content to say that the reasoning of the learned Judges in the Court of Session furnishes an adequate defence of the statute against this imputation.
I have only to add that, like the learned Judges, I reject the respondents' alternative theory of common law servitude. Their rights are derived from the Act of 1819 alone.
Appeal dismissed with costs.
Counsel for the Pursuers and Respondents— Dean of Faculty ( Asher, K.C.)— F. T. Cooper. Agents— A. & W. Beveridge, Westminster— Millar, Robson, & M'Lean, W.S., Edinburgh.
Counsel for the Defenders, Reclaimers, and Appellants— Lord Advocate ( Dickson, K.C.)— Clyde, K.C.— T.B. Morison. Agents— John Kennedy, W.S., Westminster— J. Gordon Mason, S.S.C., Edinburgh.