Scottish Court of Session Decisions

This was an action of declarator, which sought to have it found and declared (1) that the defenders were not entitled to assess and levy from the inhabitants of Dalkeith any assessment in respect of water supplied by them to such inhabitants, or in respect of permission granted by them to such inhabitants to supply themselves with water by private pipes connected with the defenders' main pipes; or otherwise, that such assessment should be confined within certain limits; (2) That the inhabitants of Dalkeith were entitled, without payment of any water rate or duty, to supply their houses with water by means of private pipes furnished and laid at their own expense, and connected with the main pipes belonging to the defenders, subject always to reasonable control and regulation, and subject also to the condition of not interfering with the due supply of the public wells; or otherwise, that it was ultra vires of the defenders to grant to any inhabitant of the town of Dalkeith, either gratuitously or in consideration of the payment of any rate or duty, the privilege or right of supplying his house or premises with water by means of a private pipe.

It appeared from the statements of parties that the defenders were certain statutory trustees appointed under certain Acts of Parliament passed for the purpose of providing funds for paving, cleaning, and lighting the streets of Dalkeith, and supplying the town with water. The funds provided by the Acts for these purposes consisted of a duty of two pennies Scots upon every Scots pint of ale, porter, or beer brewed or vended in the town from the year 1805. However, the trustees have been in the habit of allowing private parties to supply themselves with water by means of private pipes at certain fixed charges, and latterly this charge has been 9d. in the pound on the rental. This was at first in addition to the beer tax above mentioned, which went to keep up the public supply; but in 1847 the power to levy the beer tax ceased, and since that year the whole revenue of the trustees has been derived from the charges made by them for private pipes.

The present pursuers maintained in this action that the power to levy the tax having ceased, the trustees had no power to raise revenue by any other means, and that they were entitled to a free supply from the public sources which had been already provided, so far as they did not interfere with the supply of the general public.

Solicitor-General and Clark for pursuers.

Lord Advocate and Fraser for defenders.

The Court dismissed the action, so far as regarded the first conclusion of the summons, and assoilzied the defenders from the second. Their Lordships held that what the trustees had done, and were doing, was not of the nature of levying a tax at all, but amounted only to making contracts with certain inhabitants for supplying them with the

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surplus water at a fixed and reasonable charge. That being so, the first conclusion of the summons was inapplicable to the facts, and unnecessary. With regard to the second conclusion, there was nothing to prevent trustees in the position of the defenders entering into such contracts as those complained of, provided they were confined to their surplus water; and that being so, the pursuers, if they chose to have private pipes, were bound to pay for them as they would under any other contract. The second conclusion was therefore bad in law, and from it the defenders were entitled to absolvitor.

A process of suspension pending between the pursuers and defenders relative to the same matter was held to be ruled by the above decision, and the defenders were found entitled to their expenses in both cases.