Scottish Court of Session Decisions

The Lord Justice-Clerk said—We are now to dispose of the motion made by the pursuers of these three actions for conjunction. It seems necessary to recal the circumstances connected with the raising of the actions, and to understand their position exactly in disposing of the motion. The first action was raised in 1841, at the instance of several noblemen and gentlemen who are proprietors of lands on the banks of the North Esk, and was directed against a number of defenders who were owners or occupants of paper mills along the stream, the object of the action being to stop and put down for the future a certain pollution of the stream, said to be caused by the refuse of the paper mills being thrown into it. That case lay over a long time in consequence of the attempts of parties—I believe sincerely gone about—to make some arrangement. But after many years, the attempts having proved unsuccessful, the allegation was made that the pollution of the stream was continued and increased; and in these circumstances the action of 1841 was revived, and a proposal made to go to trial. The case came before us in 1864, upon a reclaiming note against an interlocutor of Lord Ormidale; and we then held that the pursuers, as proprietors of lands at various portions of the stream, had such a community of interest as entitled them to sue together to protect the stream; and we also held them entitled in one action to call all the defenders who were alleged to be wrongdoers. So that is fixed by the judgment in the action of 1841. Without stating in detail the pursuers of the action of 1841, it is important to observe who were the defenders in that action, and what were the mills represented. There were nine mills represented by the defenders in the first action, and all these defenders were alleged to be polluting the stream by throwing into it impure refuse. (His Lordship enumerated the mills). The first three mills have continued in operation ever since, and the occupants of them are said to have polluted the stream since 1841. The fourth mill (Esk Mill) is no longer occupied by Mr Brown, but by another company; and therefore quoad the first action Esk Mill is not represented by any party responsible for the alleged pollution at the time. The fifth mill has been burnt down, and need not be taken into account. The sixth has passed into other hands; and the seventh has been shut up. The eighth mill is that of Annandale & Son, and it is said that it has been polluting since 1841; but the partners now are different from the partners of that period. The ninth mill is now occupied by Wm. Tod & Son, in place of Mr Brookes, who occupied it at that period. Now, in the first action, as it was revived and came before us, the only defenders that were represented were the representatives, in the first place, of Alexander Cowan & Son, who represented the first three mills; the representatives of William Somerville & Sons, who represented Dalmore Mill; and those who represented Polton Mill, which is now in the occupation of Annandale & Son, There is no doubt of the right of the pursuers, according to the judgment of 1864, to go against any of these defenders who are said to have polluted the stream since 1841. But it is clear enough, in this state of the process, that there were a number of paper-mills on the stream not represented; and the pursuers seem to have thought—and I think naturally—that in order to try the question it was in every way desirable to bring all the parties who polluted in the same manner since 1841; and accordingly they have raised another action. If they had proceeded according to the plan of the action of 1841, it probably would have been necessary to raise only one action; but they have divided the second proceeding into two actions. Of these one relates to the mills which lie above Hawthornden, and consequently above the lands of all the pursuers, and the other relates to the mills lying between Hawthornden and Melville Castle. This, however, does not make much difference in regard to the present question. The pursuers are not the same in the two actions—there being three pursuers in the first and only two in the second. The consequence of raising these two new actions is this, that, with the exception of the mill that was burnt down and the mill that was shut up, all the mills that were originally represented by the defenders in the first action are now again represented in one or other of the second actions; and, in addition, there is another mill represented in the third action—Kevock Mill—occupied by Archibald Fullarton Somerville, one of the defenders. It appears that Mr Somerville's proceedings as a papermaker did not commence till 1848; but it was explained to us at the discussion that although that was the case, the mill was really in existence anterior to 1841; so that it was then, although not actually polluting the stream, yet erected for the purpose of the manufacture of paper, and therefore was likely enough soon to be in the way of causing the alleged pollution. In that state of the actions the proposal is made to conjoin them for the purpose that the question of pollution—the question whether the paper-mills on the Esk, by the manner of their operation and by reason of the refuse which they throw into the stream, pollute the stream to the nuisance of the pursuers. I took the liberty of saying at the time in regard to the first action that it seemed to me in the highest degree expedient that the question as to the pollution of the stream should be tried once for all before one jury, and I thick so still. And I think it is highly expedient that at the trial all parties should be represented. And I think therefore that in point of convenience or expediency the proposal of the pursuers is a reasonable one. The only question is, Is there any objection to it in respect of competency or of practice? As regards competency, it is somewhat important to observe that in the practice of this Court from a very early period actions that were naturally or necessarily connected were always as much as possible brought together under jurisdiction of the same judge or the same part of the Court, and accordingly remits ob contingentiam go back to an early period. But in the Act of 48 Geo. III., c. 151, it is provided that when one action relates to another in respect it has the same subject-matter, or has contingency with it, and it is expedient that they should go side by side before the same judge, then there shall be a remit. It does not follow that because there is a remit to the same judge there must be a conjunction, and therefore one process, because, when the case comes to be considered, it may often appear that, instead of being conjoined, one should be sisted and the other proceeded with. The judge can order that by having both processes before him, and the object of the remit is answered. But if it is not desirable that the one should be tried before the other, and if they have a natural contingency and raise the same question, I think that the leaning of the Court is to conjoin. No doubt conjunction is always a question of discretion. The two actions may be so complicated and raise such nice shades of distinction that perplexity may arise from conjunction, and, if there is any prospect of that, the Court won't

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