Scottish Court of Session Decisions

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Cite as: [1835] CA 13_646

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SCOTTISH_Shaw_Court_of_Session

Page: 646↓

Scott

v.

Leith Commissioners of Police No. 204.

Court of Session

2d Division

Bill-Chamber

March 7 1835

Ld. Cockburn, Lord Justice-Clerk, Lord Meadowbank, Lord Medwyn

Thomas Scott (Gray's Trustee) and B. F. Gray, Complainers.— Rutherfurd— G. Napier. Leith Commissioners of Police, Respondents.— D. F. Hope— Marshall.

Subject_Nuisance—Interdict.—

The Court having formerly refused a bill of interdict against the intended use of a piece of ground for depositing the police dung of a town, rested on the assumption that it would prove a nuisance, now passed a bill by the same parties, setting forth, that it had, in point of fact, proved a great nuisance, and granted interdict in the mean while against depositing dung for any longer period than 24 hours, and against a public privy.

In the beginning of 1830, the Commissioners of Police of Leith having acquired a piece of ground adjoining the property of the late John Gray, on which a dwellinghouse was erected, for the purpose of depositing the dung and fulzie of the town, the suspender, Scott, trustee for Gray's creditors, presented a bill of suspension and interdict. In their answers to this bill, the Commissioners of Police alleged, that they had no intention of making use of the ground in question as a proper depôt for dung, but simply as a place for laying it down for a short time, and that it would be removed daily, and would create no nuisance.

The Court (May 29, 1830), by a majority, adhered to the following interlocutor, pronounced by the Lord Ordinary: ¹—“Finds that the proposed use of the property, as explained and limited in the answers, does not necessarily infer the creation of nuisance, or any permanent injury to the adjoining grounds, beyond what all proprietors are bound to submit to, in the immediate precincts of such a town and seaport as Leith: Therefore, recalls the interdict, and refuses the bill, reserving to the complainer, in case the declared limits of the intended depositation of manure shall not be observed, according to the true spirit and substance of the declarations of the respondents, or that an actual nuisance, destructive of the ordinary uses of the adjoining property,

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¹ Ante, VIII, 845,

shall be introduced, to make any other application as he may be advised.”

Scott now of new, alongst with the son of the late Mr Gray, who occupied, as tenant, the premises which had belonged to his father, presented a bill of suspension and interdict, setting forth that so far from the dung being daily removed, the piece of ground had been used as a permanent depôt, where large quantities of dung and filth were accumulated, and allowed to decompose; and that, in addition, a public privy had been established, and a great quantity of swine were kept; and that, de facto, it had proved an intolerable nuisance.

The Lord Ordinary reported the bill with answers, issuing at the same time, the subjoined note. ^*

Lord Justice-Clerk.—When the case was before us formerly, I differed from the majority, and thought it not a fit place for a temporary depôt. But the Court were led to believe that it was only for a very temporary deposit; and, under that impression, adhered to the Lord Ordinary's interlocutor. Now, there is practical experience, showing that it is on annoyance, and that it must be so, however willing the Commissioners of Police may be to regulate it. It is a fit case for a jury, and we have the statement of the Lord Ordinary that it is an egregious nuisance, and I am therefore for granting the interdict.

Lord Meadowbank.—I am decidedly of the same opinion, I should have been with the minority formerly, as I would not have required any evidence to satisfy me that a dung depôt in an inhabited part of a town is a nuisance, for however short a time the dung may be laid down.

Lord Medwyn.—I cannot go quite so far. Had I been on the bench when the case was formerly before the Court, I would have concurred in the judgment, because I would not have thought it must necessarily be a nuisance. But it is now proved that it is; and, as weather must prevent vessels carrying it off regularly, it must generally be so. Still I cannot say that it is de jure a nuisance; or that the Commissioners are not anxious to regulate it properly. But I am for passing the bill. There is one thing, however, as to this complainer, and that is, he should first of all have gone to the Commissioners of Police, before coming here.

The Court pronounced the following interlocutor:—“Pass the bill, and grant the interdict craved, under this explanation, that the interdict shall not be understood to apply to the using of the piece of ground in question as a shipping wharf for dung; and that the respondents in the mean time be entitled to make any necessary depositation of dung thereon

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* “The Lord Ordinary reports this case, in consequence of the reference made by both parties to the views of the Court, when the former application for an interdict was advised. He has only to state, that, on the day on which the bill was presented, he visited the premises, in the absence of both parties; and that, if he had disposed of the case himself, that visit would have made him grant the interdict. On that day there was a very considerable quantity of dung—no want of swine—and a public privy, as close as possible to the public road—all in a very offensive condition, and all in a south-westerly direction to the premises of the complainers.”

for that purpose, provided the said depositation shall not remain at any one time for longer than twenty-four hours; and reserving power to the complainers to apply to the Judge Ordinary of the bounds, in case of any violation of this interdict.”

Solicitors: G. and W. Napier, W.S.— John Harvey.—Agents.

SS 13 SS 646 1835