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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edin. water Co. v Edin Charity Workhouse [1835] CA 13_584 (28 February 1835)
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Cite as: [1835] CA 13_584
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SCOTTISH_Shaw_Court_of_Session
Page: 584↓
v.
Subject_Obligation—Servitude.—
The town council of Edinburgh, in 1741, made a grant of a gratuitous supply of water towards the support of the Charity Workhouse, then in the course of erection, but subsequently declared that it was only to be enjoyed during pleasure; the gratuitous supply of water was continued till 1819, when a Water Company was formed, which onerously contracted to relieve the magistrates of all obligations incumbent on them for supplying water to the public institutions of the city; and the Water Company, for thirteen years, continued the gratuitous supply to the Workhouse—held that they were not entitled to assess the Charity Workhouse for payment, but were bound to continue the supply gratuitously.
About the year 1740, steps were taken for erecting a Charity Workhouse in Edinburgh. At this time the magistrates were in possession of several aqueducts and cisterns containing a supply of water for the use of
In the mean time, the right to springs of water, vested in the town, was extended by repeated statutes; and at length, in 1819, a Joint Stock Water Company was formed, which entered into an agreement with the magistrates, part of which was expressed in these words in the act incorporating the Water Company:—“And be it enacted, that all and sundry the springs, aqueducts, reservoirs and pipes, with the ground acquired, and buildings thereon, and waste water from the Edinburgh and Glasgow Union Canal, and the whole appurtenances and implements of every description belonging unto them for the supply and distribution of water to the said city of Edinburgh, and places adjacent, heretofore vested in the Lord Provost, Magistrates and Council of the said city, by virtue of the said recited acts, shall be, and the same are hereby vested in the said Company; and the said Company shall, in virtue of the powers and authority hereby committed to them, and out of the rates and duties by this act granted, supply water to the public wells of the city of Edinburgh, and perform all lawful contracts entered into by the said Lord Provost, Magistrates and Council under the before-recited acts, or either of them, and free and relieve them of all obligations incumbent on them for or in respect of supplying water, either to the inhabitants, or to any of the public institutions of the city.”
The Water Company (which obtained another act, 7 G. IV. c. 108) continued to supply the Charity Workhouse gratuitously till 1832, when a demand for payment was made, accompanied with an intimation that the remedy of cutting off the supply of water would be adopted, in case of refusal. The treasurer of the Workhouse offered a bill of suspension and interdict, which was passed; * and the Water Company raised a declarator that the Workhouse was liable in payment of the ordinary rates and duties authorized by the above statutes; or, at least, that if the Company were under any obligation to supply water, they were not bound to supply more than the Magistrates were liable for, and that, as to any surplus beyond that quantity, the Workhouse was bound to pay the ordinary rates. The declarator was conjoined with the suspension, and Cases were ordered.
Pleaded by the Water Company—
1. The Magistrates were, in 1819, under no obligation to continue the supply of water gratuitously, as the terms of the minute of 1745 imported the grant to be during pleasure; and the previous minute of 1741 was not a grant of any kind, but a mere inchoate step towards making one. Besides, as the grant was unilateral and gratuitous, it would require strong and express terms to show that it was a burden undertaken in perpetuity, and no such evidence existed. But if the Magistrates were not under any lawful obligation to give a gratuitous supply, the Water Company were equally free.
_________________ Footnote _________________
* At passing the bill, Lord Moncrieff issued this note. “After considering carefully all that the Water Company have said, the Lord Ordinary still thinks that there is at least a reasonable doubt whether, by the 34th section of the statute, connected with the previous state of the institution of the Charity Workhouse, and the long possession, there is not an exemption from any payment of duty; and the admitted possession since the date of the act, though it may be referred by the Water Company to mere tolerance, is much more like an admission of that as the real meaning of the statute, and the actual understanding in regard to this particular institution. At any rate, the existing state of possession for thirteen years under the acts, makes it incumbent on the Water Company to show a very clear case before that possession shall be inverted. The doubt on the merits does not rest merely on that part of the clause of the statute, in which there is no doubt a reference to the previous acts, but also and specially on the last part of it, by which, independently of any such acts, the Company are taken bound to relieve the Magistrates of all obligations for supplying the public institutions of the said city. And if, on full consideration of the nature and circumstances of the institution of the Charity Workhouse, and the minutes of Council as to the supply of water to it, with the explanation afforded by long practice and possession, it shall be held to have been truly a part and quality of the endowment, that the water should be supplied gratis, under the different arrangements which might be made by the Magistrates from time to time, then it will appear, that the obligation to this effect passed by the statute from them to the Company, as a condition of the transfer of all the existing works, and all the rights of the Magistrates under former acts, as Well as of the whole privileges bestowed on the Company by the statute.”
2. There was no real burden of servitude acquired by the Workhouse,—their whole possession being referable to the grant of the council, during pleasure, and therefore merely on naked tolerance.
3. At least the Company were not bound to supply more water than the Magistrates delivered into the Workhouse in 1819: otherwise the burden imposed on the Company was susceptible of indefinite increase.
Pleaded by the Charity Workhouse—
1. The Magistrates, in 1819, were under a legal obligation to continue the supply of water gratuitously as before. The minute 1741, with eighty years' possession, established this; and the minute 1745 had never been intimated to the Workhouse so as to affect their rights. Such minute was also ultra vires, being an attempt to qualify the unconditional grant of 1741, after such grant had been made of the nature of a perpetual endowment, and, on the faith of it, the citizens and public bodies had been induced to come forward with subscriptions towards erecting the Workhouse so endowed. But if the Magistrates were under a legal obligation to supply the water, the Water Company were equally bound. The understanding of all parties that they were thus bound, appeared from the practice of thirteen years after the Water Act passed, during which the Water Company gave the supply without making any demand of payment.
2. Independently of any written grant from the town, the possession of the use of the water for eighty years prior to 1819 was evidence of a real servitude, and the Water Company, in acquiring the reservoirs affected by such servitude, were bound by it, without reference to any agreement with the Magistrates. 1
3. The obligation on the Magistrates was not limited to any specific quantity of water daily, but to afford a due supply of what was bona fide required for the use of the Workhouse. This quantity might be susceptible of variation from time to time; but, to supply it, was the measure of the Water Company's obligation. 2
The Lord Ordinary “found that the Managers of the Charity Workhouse have not established, on the part of that institution, any exemption from the rates and duties authorized to be levied by the acts of 59 Geo. III., and 7 Geo. IV., incorporating and declaring the rights of the Edinburgh Water Company; and therefore, in the suspension, repelled the reasons of suspension, and found the letters orderly proceeded, and decerned: And in the declarator, decerned in terms of the leading conclusions of the libel, but found no expenses due.” *
_________________ Footnote _________________
1 2 Ersk. 9, 3; Beaton, July 13, 1670 (10,912); Wallace, June 16, 1761 (14511).
2 Bruce, Dec. 11, 1741, 5 Bro. Supp 220; and Elch. v. Servitude, No. 2.
* Note.—“The statutes authorizing the Water Company to levy rates, contain no express exemption of the Edinburgh Charity Workhouse. The 35th clause vests in the Company the whole springs, aqueducts, &c. ‘heretofore vested in the Lord Provost, Magistrates, and Council of the city;’ and enacts, that the said Company shall, ‘in virtue of the powers and authorities hereby committed to them, and out of the rates and duties by this act granted, supply water to the present public wells of the city of Edinburgh, and perform all lawful contracts entered into by the said Lord Provost, Magistrates, and Council, under the before-recited acts or either of them, and free and relieve them of all obligations incumbent on them for or in respect of supplying water either to the inhabitants, or to any of the public institutions of the said city.’ But this is enacted under the following condition, contained in the same clause: ‘Provided always, that from and after the term of Whitsunday 1821, such rates and duties, as shall be fixed in manner herein-after mentioned, shall be payable by all and every person or persons to whose houses or premises water shall be conveyed by a private pipe, or private well or wells, hereby authorized to be made, and that, in the mean time, the rates and duties at present payable to the said Lord Provost, Magistrates, and Council, by virtue of the said recited acts, shall be paid to the said Company.’ It rather appears to the Lord Ordinary that, according to the sound construction of this clause, the Water Company, though bound to perform all lawful contracts entered into by the Magistrates, &c., that is, to continue such supplies of water as the Magistrates may have obliged themselves to afford, are so bound, only under the condition, that the rates and duties leviable under the statute shall be paid by the person or persons to whose premises water shall be conveyed by a private pipe or pipes, so that although a party may be entitled to demand a continuance of the supply, and the mode of supply fixed by any contract with the Magistrates, he is not entitled to make that demand, except on payment of the rates and duties authorized by the statute. And this is confirmed by the 86th section of the statute, providing, ‘That all persons who, at the time of passing this act, shall have water conveyed to their houses or other premises by pipes already laid, shall and may continue to possess and enjoy the same privilege, upon making payment of the present rates and duties until Whitsunday 1821, and of such rates and duties as may after that term be fixed in the manner after specified.’
“But, secondly, and even adopting the argument offered on the part of the Charity Workhouse, that the 35th clause is to be held as binding the Water Company to continue the supply of water, at the rates and on the terms at which the Magistrates in any particular case may have obliged themselves to grant it, it would be incumbent on the Charity Workhouse to establish unequivocally the existence of such an obligation against the Magistrates at the date of the incorporation of the Company. Now, the Lord Ordinary thinks that they have failed in establishing that point. They hold no express grant from the Magistrates. Their whole case rests upon the minute or entry in the Town-Council records of the 15th April, 1741, by which the Council ‘remitted to the present and old Magistrates and Deacon Convener, to consider in what manner the Charity Workhouse can be most conveniently accommodated with a pipe of water, with power to them to cause provide such a pipe as to them shall seem convenient.’ It appeared to the Lord Ordinary, that some light might probably be thrown upon the true import of this entry by the other proceedings of the Magistrates in regard to the supply of water about and subsequently to its date. The explanations afforded in the Cases, so far from strengthening, are, in the opinion of the Lord Ordinary, conclusive against the construction of the minute maintained by the Charity Workhouse. It appears, that neither at the date of that minute, nor indeed at any time prior to the establishment of the Water Company, were there any rates or water-duties fixed by statute or by invariable practice. It also follows, from various other entries of the same kind, that the object of the Town-Council in such cases was, not to fix any thing as to the terms on which they were permanently to supply water, but merely to confer on the public institutions, and, in some cases, on private individuals whom they favoured, the privilege of the conveyance of water to their premises by a private pipe, instead of having recourse to the public wells, which, at that time, and long afterwards, formed the general source of supply to the inhabitants. Accordingly, it appears from an entry in the Council records, that on the 16th January, 1745, a committee was appointed by the Council to enquire ‘how many branches or small water-pipes are given off, and to whom;’ and also to consider how much the parties who have already got, or may hereafter get that privilege, should pay annually for the same. A report was accordingly made on 20th March, 1745, containing a list of the various public institutions, including the Edinburgh Charity Workhouse, which had obtained the privilege. The committee report, ‘that the bye-pipes already granted to the hospitals and other public places above named should be continued with them during the Council's pleasure, without payment or any consideration therefor,' but that the private individuals should pay a certain small sum yearly. And this report is confirmed by the Council.
“In these circumstances, the Lord Ordinary cannot view the minute or entry founded upon by the pursuers as importing a permanent grant of a gratuitous supply of water; but, on the contrary, he considers it as a mere resolution of the Council, explained by their subsequent resolution of 1745, and not affording any title upon which a plea of prescription, arising from the continuance of that gratuitous supply, can be validly founded.”
The Charity Workhouse reclaimed.
Cuninghame, for Water Company.—That rule is only meant to be applied so far as the police rental goes; but a different rule holds as to various public establishments requiring water, which must nevertheless pay for it. There is a separate clause as to “brewhouses, &c., and other public establishments, &c.” Accordingly, the Charity Workhouse have no such plea on the record.
The Court altered the interlocutor of the Lord Ordinary; and, in the suspension, sustained the reasons of suspension, and granted interdict; and in the declarator assoilzied; awarding expenses in favour of the Workhouse.
Solicitors: J. Balfour, W.S.—A. Hutcheson, Agents.