Scottish Court of Session Decisions

In August 1865 Alexander Murray, of Spring-bank Mills, Peterhead; James Greig, Kirk Street, there; and other parties, designing themselves as householders, inhabitants, and payers of police-rates in the burgh of Peterhead, presented a petition in the Sheriff-court of Aberdeenshire against Alexander Robertson, clerk to, and representing, the Commissioners of Police of the burgh of Peterhead, craving interdict against the Commissioners supplying water for other than domestic and ordinary purposes so long as there was not a supply of water greater than was required for such purposes. The petitioners founded upon the General Police and Improvement (Scotland) Act, 1862, (25 and 26 Vict., c. 101), which, with a certain exception, had been adopted by the burgh shortly after it was passed. That Act provides, sec. 216:—“The Commissioners shall cause all existing public cisterns, pumps, wells, conduits, fountains, and other waterworks used for the gratuitous supply of water to the inhabitants within the burgh to be continued, maintained, and supplied with water, or they shall substitute other such works equally convenient, and shall cause them to be maintained and supplied with water; and such public cisterns and other works shall be vested in the Commissioners, and be under their management and control; and the Commissioners may construct and maintain any number of new cisterns, pumps, conduits, fountains, and other waterworks for the gratuitous use of any persons who choose to convey the same away, not for sale, but for their own private use, and may supply with water any public baths or wash-houses.” Section 221 provides:—“Where the Commissioners are able and willing to supply the houses or tenements within the burgh with water for domestic and ordinary purposes, the owners of such houses and tenements shall be entitled to obtain such supply by connecting a service-pipe with the main-pipes to be laid down by the Commissioners, the expense of such service-pipes, and of connecting the same with the main-pipes, being defrayed by such owners; and where the houses and tenements generally in any street, public or private, within the burgh, shall be supplied with water by means of such service-pipes, it shall be competent to the Commissioners to require the owner of any tenement in such streets not so supplied to take a supply of water by connecting a service-pipe with the main-pipe as aforesaid; and, in the event of refusal or delay on the part of such owner to comply with such requisition, it shall be lawful for the Commissioners to enter such house or premises, and proceed to lay down such service-pipe themselves, and to recover the expense thereof from such owner.” Section 222 provides:—“No person within the burgh shall be entitled, without special agreement with the Commissioners, to use the water supplied through the pipes of the Commissioners except for domestic and ordinary purposes; but where there is a supply of water more than is required for such domestic and ordinary purposes within the burgh, it shall be lawful for the Commissioners to contract with any person or persons within the burgh to supply any public baths and wash-houses, works, manufactories, or other premises within the burgh, with water, at such rate and upon such terms and conditions as may be agreed on; or, in the event of disagreement, either as to the ability of the Commissioners to give the supply, or as to the rate, terms, or conditions on or in respect of which the supply is to be given, the same shall be fixed by the Sheriff upon summary application by either of the parties, and the decision of the Sheriff shall be final.” Section 225 provides:—“A supply of water for domestic and ordinary purposes shall not include a supply of water for cattle or for horses, or for washing carriages, where the horses and carriages are kept for hire or are the property of a dealer, or for steam-engines, or for railway purposes, or for warming or ventilating purposes in public buildings, or for working any machine or apparatus, or for any trade, manufacture, or business whatsoever, or for watering gardens by means of any tap, tube, pipe, or other suchlike apparatus, or for fountains, or for flushing sewers or drains, or for public baths or wash-houses, or for any ornamental purpose whatever.” Section 226 provides:—“With respect to the supply of water within burgh, all the clauses and provisions of ‘The Waterworks Clauses Act, 1847, 10 Vict., cap. 17,’ with respect to the following matters, that is to say,” inter alia, “with respect to the communication-pipes to be laid by the inhabitants, shall, so far as the same are not varied by the provisions of this Act, be incorporated with this Act.” This provision incorporates in the General Police Act, inter alia, the whole clauses of the said Waterworks Clauses Act, 1847, 10 Vict., cap. 17, from section 48 to section 53 inclusive. By section 53 of the said Waterworks Clauses Act, 1847, it is enacted as follows:—“Every owner and occupier of any dwelling-house, or part of a dwelling-house, within the limits of the special Act, shall, when he has laid such communication-pipes as aforesaid, and paid or tendered the water-rate payable in respect thereof, according to the provisions of this and the special Act, be entitled to demand and receive from the undertakers a sufficient supply of water for his domestic purposes.”

The petitioners alleged that the commissioners were in use to supply water for works and manufactories while there was not a sufficient supply for the domestic and ordinary purposes of the inhabitants of the burgh; and, in particular, that on certain specified occasions a supply of water was afforded to all the breweries and tanneries within the burgh, and to certain herring-curing works, while the petitioners had not a sufficient supply for domestic purposes. Condescendence and defences were ordered, and thereafter the Sheriff-substitute

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at Peterhead refused the petition; and, on appeal, the Sheriff ( Jameson) adhered. The grounds upon which the Sheriff proceeded were—(1) That it was not expedient to grant such an interdict under an application to which the owners of breweries and other such establishments, who had a material interest in the supply of water, had not been made parties; (2) that the prayer of the petition was not sufficiently specific. The petitioners brought an advocation, and at the same time raised an action of declarator in the Court of Session. In the declarator they called, as defenders, Alexander Robertson, clerk to and representing the Commissioners of Police of the burgh of Peterhead; Bailie John Napier, fish-curer, Peterhead; Scott and Leslie, fish-curers, there; Gilbert Alexander, tanner there; and various other parties, brewers, manufacturers, &c., at Peterhead. The conclusions of the action were “that the Commissioners for the purpose of The General Police and Improvement (Scotland) Act, 1862, acting in and for the burgh of Peterhead, are not entitled to supply any public baths and wash-houses, works, manufactories, or other premises within the said burgh, with water, unless and until they have supplied to the owners, occupiers, and inhabitants of Peterhead a supply of water sufficient for domestic and ordinary purposes,—or, at all events, unless and until they have supplied to the pursuers a supply of water sufficient for the pursuers' domestic and ordinary purposes: And farther, it ought and should be found and declared, by decree foresaid, that the said Commissioners are not entitled to supply any public baths and wash-houses, works, manufactories, or other premises within the burgh with water, unless and until they have entered into special agreements with the owners, occupiers, or tenants of such public baths, wash-houses, works, manufactories, or other premises within said burgh, for such supply: And it ought and should be found and declared, by decree foresaid, that the said owners, occupiers, or tenants of such public baths, wash-houses, works, manufactories, or other premises within the said burgh, are not entitled to use and take any supply of water from said Commissioners, unless the said Commissioners have supplied to the pursuers and other ratepayers, owners, occupiers, and inhabitants of the burgh of Peterhead, or, at all events, to the pursuers, a sufficient supply of water for domestic and ordinary purposes, or unless and until they have entered into special agreements with the said Commissioners for the use of the water supplied to them through the pipes of the Commissioners: And the said Commissioners ought and should be interdicted and prohibited from supplying to the other defenders, or to any owner of public baths and wash-houses, works, manufactories, or other premises within said burgh, water, unless and until they have supplied a sufficient supply of water for ordinary and domestic purposes to the persons aforesaid within the said burgh: And the said defenders, other than the said Alexander Robertson, clerk to the said Commissioners, ought and should be prohibited and interdicted from receiving and taking any water from the said Commissioners, unless and until such supply be given for such domestic and ordinary purposes within the said burgh,—at least unless and until the said other defenders shall enter into special agreements for such supply with said Commissioners.”

The allegations in the declarator were similar to those in the Sheriff-court petition.

The defenders objected to the title of the pursuers, and the relevancy of the action; they maintained that the pursuers received a full and sufficient supply of water, and that, the supply of water being ample for all purposes, the Commissioners were entitled to give it to works and manufactories.

The Lord Ordinary ( Kinloch) repelled the objections to title, and found “That the Commissioners for the purposes of the General Police and Improvement (Scotland) Act, 1862, acting in and for the burgh of Peterhead, are not entitled to supply any public bath-houses or wash-houses, works or manufactories, within the said burgh with water, unless and until they have furnished the inhabitants of the said burgh with a supply of water sufficient for domestic and ordinary purposes: Further, finds and declares that the said Commissioners are not entitled to supply water to such bath-houses, wash-houses, works, and manufactories on any general rate of assessment applicable indiscrimately to all, but only on special agreement with the owners or occupiers of the same respectively, and at such rate, and on such terms and conditions as may be agreed on, or as, in case of difference, may be fixed by the Sheriff in terms of the said Act, and decerns: And appoints the cause to be enrolled, that any other necessary judgment may be pronounced therein.”

His Lordship added this note:—“The pursuers, or one or more of them, are admittedly occupiers of houses in Peterhead, entitled to a supply of water, and assessed for such supply. This affords, in the view of the Lord Ordinary, a sufficient title to apply to the Court for a declaratory judgment on the construction of the statute, if a fair reason can be shewn why this judgment is requisite for the regulation of existing interests. The Lord Ordinary does not consider it a necessary precedent to such a judgment to enter on a proof of the conflicting statements as to the conduct of the Commissioners regarding the supply of water in time past. But he must see sufficient circumstances in the case to make a judgment necessary or proper for the regulation of the rights of the parties, before he can interfere. A declaratory judgment, which is of no use towards settling a practical controversy, cannot be asked of the Court.

“With regard to the first declaratory finding contained in the prefixed interlocutor, the defenders intimated at the debate that they did not differ from the pursuers in their construction of the statute, viz.:—That bath-houses, wash-houses, manufactories, and premises of the like nature, could not be supplied with water until after a full supply had been afforded for domestic and ordinary purposes. Had it been made clear to the Lord Ordinary that the defenders had always avowed this to be their view, he would have thought that, on this point at least, there was no room for judicial intervention. But he gathers from the statements on record, which import a past supply having been afforded to manufactories, as unvarying and indiscriminate as to dwelling-houses, that their conduct has at least raised a reasonable doubt on the subject. And on this very record the defenders maintain, in their last plea, “that a reasonable discretion in regard to the arrangements for supplying water is vested by the Act in the Commissioners.” The Lord Ordinary is of opinion that the Commissioners have no discretion whatever in regard to the point in question; and he thinks it right that the matter should be set at rest

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by a declaratory judgment to the intrinsic soundness of which the defenders, on their own shewing, have no objection to state.

“In regard to the second finding of the interlocutor (which is the subject of an undoubted controversy) the meaning of the Act seems to the Lord Ordinary unambiguous. It declares that ‘where there is a supply of water more than is required for such domestic and ordinary purposes within the burgh, it shall be lawful for the Commissioners to contract with any person or persons within the burgh, to supply any public baths and wash-houses, works, manufactories, or other premises within the burgh, with water, at such rate, and upon such terms and conditions, as may be agreed upon; or, in the event of disagreement either as to the ability of the Commissioners to give the supply or as to the rate, terms, or conditions on or in respect of which the supply is to be given, the same shall be fixed by the Sheriff upon summary application by either of the parties, and the decision of the Sheriff shall be final.’ It appears to the Lord Ordinary that what is here intended (and to which the power of the Commissioners is limited) is that a special agreement should be made in the case of every work, manufactory, &c., by which water is required, and this not merely as to the money price, but as to the other terms and conditions on which the supply is to be given. These latter may be of all the most important, as only then it may be possible to secure against an injurious waste. It is admitted by the defenders (statements 5 and 7) that they do not enter into a special agreement in each case, but assess all works, &c. for police purposes, including the supply of water, at an indiscriminate rate, being the same with that imposed on dwelling-houses, and charged like them on the full rent (not the fourth or half, as under other arrangements), with the same privileges, as the Lord Ordinary understood, of an uncontrolled use of the water. It appears to the Lord Ordinary that this mode of proceeding is at variance with the provisions of the statute, and calls for the check of the Court, by means of a declaratory judgment.”

The defenders reclaimed.

The Court, after hearing parties, of consent, and before farther answer, allowed a proof to both parties of the averments set forth by them in the closed record, and to either party a conjunct probation, and remitted to the Lord Ordinary, in terms of the 3d section of the Evidence (Scotland) Act, 1806, to take proof as prescribed by the first section of the statute, and to report the same to the Court. The proof was taken and reported, and parties again heard.