Scottish Court of Session Decisions

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Cite as: [1867] SLR 4_163, [1867] ScotLR 4_163

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SCOTTISH_SLR_Court_of_Session

Page: 163↓

Court of Session Outer House

Thursday, July 4 1867.

Lord President

4 SLR 163

Dixon's Trustees

v.

Stewart's Trustees and Others.

Subject_1Issued
Subject_2Reparation
Subject_3Upper and Lower Heritors.

Facts:

Issue adjusted in an action by a lower heritor against an upper, for alleged wrongful interference with the course of a stream. Counter issues of prescription and acquiescence disallowed, there being no foundation for them in averment.

Headnote:

The pursuers, trustees of the late William Dixon of Govan, proprietor of the estate of Carfin, which he purchased in 1846, brought this action against Robert Stewart of Murdostown, and the Earl of Stair, asking damages for alleged injury done to the lands of Carfin through the wrongful act of the defenders. The action was now insisted in against the trustees of the defenders, the defenders having died since the raising of the action. The ground of action was, that during the period subsequent to 1839 (the date when Mr Stewart entered on the
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iron works), Mr Stewart deposited quantities of slag or other refuse from the Omoa Iron Works on ground belonging to Lord Stair, on the banks of the Tillon or Cleland Burn. The Tillon flows into the Calder Water, which, 1300 yards below the junction, begins to form the boundary of the estate of Carfin, and at a point farther down intersects these lands. By the action of the water of the Tillon, particularly when the burn is in flood, quantities of slag had been carried down into that burn, and afterwards by the Gilder, to the lands of Carfin. By the accumulation of the slag the natural flow of the Calder had been interfered with, its channel altered, soil and trees carried away from the lands of Carfin, and these lands otherwise injured. The pursuer proposed this issue:—

“Whether, by the wrongful depositation of slag or other refuse from the Omoa Iron Works upon or near the banks of the Tillon Burn, during the period subsequent to the year 1839, the deceased Robert Stewart, proprietor of said works, interfered with the natural flow of the water of the said Burn and of the River Calder, to the loss, injury, and damage of the pursuers, as proprietors in trust of the estate of Carfin.”

The defenders, Stewart's trustees, contended that the action was irrelevant; that, it all events, except as regards slag deposited in the Tillon after Whitsunday 1846, when Mr Dixon purchased the estate of Carfin, there could be no action at the instance of the pursuers: that the pursuers could not complain of the condition of the bed or banks of the Tillon or Calder as existing at the time when Mr Dixon purchased the estate, or sue for damages in respect of injury arising from slag or other material then in the bed or on the banks of these streams. They pleaded farther, the pursuers’ claims were excluded, in respect, (1) that no exception was taken by the proprietors of Carfin to the operations complained of at the time when the same were executed; (2) that such operations were carried on by Mr Stewart's predecessors in the iron works, without interference or complaint, for upwards of fifty years prior to 1840.

The Lord Ordinary ( Kinloch) reported the case, indicating an opinion against the relevancy. The case against Lord Stair's trustees his Lordship held to be clearly irrelevant, and accordingly, quoad these defenders, dismissed the action.

Young and W. M. Thomson for pursuers.

Clark and Watson for defenders.

After discussion tire following issue was proposed for the pursuers:—

“It being admitted that the now deceased William Dixon of Govan purchased the estate of Carfin, situated on the Calder water, with entry there-to at Whitsunday 1846, and that the pursuers, as his trustees, are now proprietors of the said estate: it being farther admitted that in the year 1839 the vow deceased Robert Stewart became proprietor and occupant of the Omoa Iron Works, situated on or near the banks of the Tillon Burn, which falls into the Calder Water at a point above the said estate of Carfin.

“Whether the said Robert Stewart wrongfully deposited slag and other refuse from his mid works upon and near to the banks of the said Tillon Burn, in consequence of which the sail1 slag and other refuse, subsequent to the term of Whitsunday 1846, fell into the Tillon Burn, and interfered with the natural flow of the said Burn and of the Calder Water, to the loss, injury, and damage of the said William Dixon, and of the pursuers, as proprietors of the estate of Carfin.”

The defenders proposed counter-issue of prescription and acquiescence.

Judgment:

Lord President—In so far as regards the pursuer's issue, what he insists upon is this, that for all injury lone to his property since his acquisition of property in 1846 he is entitled to sue for damages from the defenders, if he can show that it is in respect of operations by the defenders or their predecessors at any time after Mr Stewart became proprietor of the works in 1839. On the other hand, the defenders contended that the pursuer is entitled to recover such damages only for injury caused after the pursuer became proprietor of the estate of Carfin in 1846; and accordingly they put their issue in such a form ns to lay it on the Pursuer to prove that slag fell into the burn subsequent to Whitsunday 1846. I am not prepared to hold that an inferior heritor may not in certain circumstances be entitled to recover damages for injury done to his estate through the influence of operations that may have been performed by a superior heritor before he became proprietor. All I will say in reference to such a case is that it would require to be very precisely averred in order to show that the claim of damage by the inferior heritor was not a claim that belonged to 11is predecessor in the estate, and not to himself. The question we have to determine here is whether such a case has been averred.

Now, as I read the condescendence of the pursuer, there is not a single averment from beginning to end that has any natural reference to a period anterior to 1846. There is no mention of any other date. In particular, there is no mention of 1839. For anything that appears on the face of the pursuer's condescendence, Mr Stewart might have become proprietor of the Omoa Iron Works after Mr Dixon became proprietor of Carfin. In the 1st article of the condescendence Mr Dixon is said to have become proprietor of Carfin at Whitsunday 1846. The 2d article states “that the late Robert Stewart was the proprietor of the Omoa Iron Works, which are erected on ground which belonged to him, and situated to the eastward of the estate of Carfin. There are several furnaces in operation at these works, and for a considerable number of years past the said Robert Stewart was in the practice of depositing, in a reckless and illegal manner, and with a total disregard to the consequences afterwards condescended on, large quantities of slag, or refuse from furnaces, on ground which formerly belonged to the late North Hamilton Dalrymple, Earl of Stair, but which now belongs to the defenders, the trustees of the said Earl, close to the banks of the Tillon or Cleland Bum. Mr Stewart died on 12th September 1866. This speaks of operations which have been going on for a considerable time, to the injury of the pursuer's estate, which he acquired twenty years before. The natural construction of these statements is, that the injury was done since he acquired the estate. But that is not left to mere inference. The 3d article merely describes the position of the burn. The 4th and 5th describe the action of the slag when it finds its way into the burn but have nothing to do with the matter of date. But the 6th commences thus:—“For some time, the damage done to the pursuer's lands of Carfir1 by the slag carried down, as represented, was not very marked, but latterly the slag has come down in such increased quantities as to,

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cause serious damage thereto,” &c. Here again there is no specification of dates-nothing to suggest that the operations complained of were anterior to the pursuer's acquisition of the estate, for the estate is described as the pursuer's lands. The terms of the article do not carry back beyond twenty years. If there were any doubt as to the reasonable construction of this, it would be entirely removed by the pursuer's answer to the 3d statement of the defenders, in which he says:—“It is only within the last ten years, and chiefly within the last five years, that the damage done to the pursuer's land commenced to be serious.” This may be taken as a construction of the words in the 6th article of the condescendence “for some time,” and “latterly.” And there is therefore not the slightest foundation in the record for the kind of case the pursuer has been trying to bring within the issue proposed. I therefore think the contention of the defenders should be given effect to; and the only suggestion I wish to make is, to omit the words “the said” in the issue. It is not necessary to say much as to the issue proposed by the defenders. The essential objection to them both is, that there is no foundation for them in averment. The pursuer claims for damages during the last twenty years, and there is nothing in the defenders’ statement against this. On the contrary, there are averments putting acquiescence out of the case. For it is said that there were no injurious operations to acquiesce in; it is said that after Mr Stewart acquired the iron works, the practice of depositing slag in the burn was discontinued, only on two occasions there was an accidental slip of slag into the burn. How the pursuer could acquiesce in the despositation of slag in these circumstances the defenders have failed to explain.

The other Judges concurred.

The pursuer's issue, as amended, was approved of, and the defenders’ counter issues were disallowed.

Counsel:

Agents for Pursuers— Melville & Lindesay, W. S.

Agents for Defenders— James Webster, S.S.C.
1867