Scottish Court of Session Decisions

Lord President—I don't think it is necessary to call for any answer, because, although I am not sure that I agree with all the findings by the Lord Ordinary, I have no doubt that his judgment is in substance right. The Act of Parliament under which the course of the water works was made through the complainer's lands is the Act 18 and 19 Vict., and the 53d and 54th sections confer on the water works commissioners a power to make works according to deposited plans, and also give them certain powers of deviation in a vertical direction within limits not exceeding five feet. The 68th section, which is the material one for consideration, gives the commissioners power from time to time to alter, enlarge, or increase the number of pipes. Under this Act of 1855 the works were constructed, and were constructed through the complainer's grounds in such a way as, he says, to operate a greater vertical operation than that permitted by the 54th section. In short, the level of the works as constructed comes nearer the surface than was justified. But of that the reclaimer did not complain, being, as he says, unaware that the provisions of the statute had been violated. Ten years have passed, and he does not yet complain, nor does he even complain in this process, for he says his complaint is limited entirely to the new three-foot pipe, so that he has not yet complained of the level at which the water-works were made through his lands under the Act of 1855. But this is the existing work of the Company, which is in constant use for the important purpose of supplying the city of Glasgow with water, and it appears to me that, if Mr Buchanan ever intends to make a complaint against these existing works, he cannot do so in the form of a suspension and interdict. But in the meantime there stand the existing water-works of the commissioners at a distance below the surface which no doubt is not justified by the statute, but uncomplained of by him. Although the deviation is unauthorised, the work does not on that account cease to be the existing work of the Corporation. Taking that in connection with the 68th section, the commissioners are authorised to alter, enlarge, and increase the number of the pipes from time to time. Now, while this is the existing statutory work of the Corporation, can the reclaimer be allowed to say that, because the original deviation was beyond the powers in the statute, they are not entitled to make any alteration? Are they not entitled to repair the works, or to make them more efficient for the statutory purpose, or to enlarge the four-foot pipe, or add another? I must say that, while these continue to be the existing works of the commissioners, they are entitled to do all the operations authorised by the 68th section, operations which they were engaged in when this suspension and interdict was presented.

The case has been complicated, because a new operation was going on at the same time and in the same locality under the authority of a different Act of Parliament. But Mr Hall properly pointed out that the crossing of the Endrick by a bridge instead of a syphon has no necessary or natural connection with the addition of the three-foot pipe. There may be some remedy, which may result in alteration of the original works; but so long as this does not take place, it is extravagant to say that while the original pipe remains you cannot add to it. I think it is impossible to accomplish that by a suspension. It may be observed, that the interdict was refused as an interim interdict, and that refusal was acquiesced in. The complainer then went on, not through any hope of stopping the work, but in order to try the question of right in the suspension. I think it was not a competent process for that purpose, and that nothing but a declarator of removal would raise the question attempted to be raised here. I am, therefore, clear that our judgment must be for the complainer.

The other Judges concurred.