Scottish Court of Session Decisions

The pursuers were proprietors of a block of ground and buildings in Aberdeen on the side of a small stream, the Denburn. On 16th October 1869, the Denburn overflowed and caused considerable damages to the pursuers' property, and they now sued the Magistrates and Town Council of Aberdeen, as representing the community, for £1350 as damages. The whole circumstances of the case are fully set out in the note appended to the following interlocutor and note of the Lord Ordinary ( Gifford).

Finds that the pursuers have failed to instruct that the loss and damage which the pursuers’ property sustained by the flood or overflow of water on or about 16th October 1869 was occasioned, directly or indirectly, by the negligence or fault of the defenders, or by any causes for which the defenders are responsible; assolizies the defenders from the conclusions of the libel: Finds the pursuers liable in expenses, and remits.

Note.—The Lord Ordinary has felt this case to be one of great nicety, and it is not without a good deal of hesitation that he has come to be of opinion that the pursuers have failed to instruct that the loss and damage which their property sustained by the flood or overflow of water on or about 16th October 1869 was caused, directly or indirectly, by the negligence or fault of the defenders. He does not think that the defenders are chargeable with any act, either of omission or commission, which can be said to have caused the injury complained of; and he is unable to find any other ground on which responsibility for the pursuers’ losses can be fixed upon the defenders. In the Lord Ordinary's view the foundation of all actions like the present is fault or negligence—no responsibility arises against a proprietor from the mere fact that his property has caused injury to a neighbour if no fault or negligence is alleged or proved, mere dominium per se is not a ground on which damages can be awarded against a proprietor. No doubt, the possession of property involves various duties, and the neglect of these duties, or of any of them, may give rise to a claim of damages. Damages may also be due where the actual use of property occasions injury under the maxim Sic utere tuo ut ulienum non Icedas; but in all cases, as it appears to the Lord Ordinary, there must be some fault, either of omission or commission, to found a claim of damages against a proprietor.

This point was considered in the case of Campbell v. Kennedy, 25th November 1864, 3 Macph. 121; and the observations of the judges upon the case of Cleghorn v. Taylor, 27th February 1866, are extremely important. See also the various authorities quoted in Campbell's case, and in Addison on Wrongs, p. 346.

While, however, in order to subject the defenders in damages, fault or negligence of some kind must be proved, such fault or negligence may in certain circumstances be very easily inferred. In particular, if it be shown that an injury by flooding has been sustained by a lower heritor, by reason of some structure erected, or operation performed on a stream by an upper heritor, there will be almost a presumption of fault against such upper heritor; and, at all events, the onus will lie upon him to show that the loss was occasioned by a damnum fatale. Proof of care in the construction or management of the works will not be sufficient to relieve the upper proprietor from responsibility. See this principle applied in the case of Kerr v. Earl of Orkney, 17th December 1857, 20 D. 298.

The circumstances of the present case are very special, both in regard to the position and structure of the grating which caused the overflow, and in regard to the manner in which the grating and the channel of the Denburn above it was attended to and kept clear. The Lord Ordinary will very shortly notice the various points upon which the pursuers relied as establishing liability against the defenders.

(1.) First, the pursuers maintained that the grating, the obstruction of which caused the overflow, was on the property of the defenders, and that this, per se, was sufficient to make the defenders in every way responsible therefor in reference to its structure, its maintenance, and its management.

The whole of the grating, excepting about a foot on the left hand looking down the stream, is upon the property of the defenders. The mouth of the tunnel or culvert is also, with the exception of about a foot, on the defenders' property, but the tunnel then immediately enters the property of the Caledonian Railway, which is marked pink on the plan, and for a long way down the Denburn flows in the tunnel under the property of the railway company. It is apparent that the tunnel has been made, not for the use and benefit of the defenders, the town of Aberdeen, but for the use and benefit of the railway company, whose line and other works are constructed above the tunnel or culvert, and who at that place occupy the whole solum of the Denburn.

Now, the eye or mouth of the tunnel or culvert, and the grating, which is a pertinent or accessory thereof, can hardly be separated in this question from the tunnel or culvert itself: and, although the strict boundary line cuts the grating and mouth of the tunnel obliquely, so as to leave an angle upon the property of the town, the Lord Ordinary has great difficulty in treating the town as an upper heritor, with the tunnel and its gratin on their ground.

The history of the construction of the tunnel and grating has been distinctly proved. The tunnel and grating were constructed, not by the town, but by the railway company. Originally it was intended that the solum above the culvert, or part thereof, should remain the property of the town; and it is shown by the towns-minutes that they exercised some control in reference to the structure and dimensions of the culvert. They were interested therein, not only as proprietors of the ground through which the culvert was to run, but in reference also to certain sluices and water

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rights held by parties farther down the stream. Under the original bargain, therefore, which is embodied in the disposition of 12th and 14th June 1865, the railway company were bound, for behoof of the town, and to the satisfaction of Mr Smith, the town's superintendent, inter alia, ‘to cover over the Denburn from the present tunnel at Union Bridge northward, along the whole line of the burn to the point where the proposed railway will leave the burn;’ and the railway company bound themselves ‘to uphold and maintain the coverings or tunnels of the said burn, in so far as constructed by them, in all time coming;’ but the town, provided the work was done to the satisfaction of their superintendent, was to relieve the railway company of farther responsibility. This arrangement, however, was altered by the contract of excambion of 3d and 9th January 1867, by which the ground forming the solum of the Denburn, which had been covered over by the tunnel or culvert, was conveyed by the burgh to the railway company. In this way the railway company not only originally made the tunnel or culvert over the Denburn, but became proprietors of the solum or ground on which the culvert was made, with the exception only of the angle where the opening of the tunnel and its grating projected beyond the railway wall.

In these circumstances, the Lord Ordinary cannot hold that the tunnel and its grating are on the ground of the town, so as to make the town responsible therefor in the same way as an upper heritor would be responsible who constructed a bridge or culvert over a stream for his own advantage or benefit. It rather appears to the Lord Ordinary that the railway company must be held to be the true proprietors of the tunnel; and, although its mouth and grating do project a few feet beyond the line of the railway company's property, this is rather of the nature of a servitude against the town than a transference to the town of the eye and grating of the culvert.

The grating of the culvert is really merely a pertinent or accessory thereof. It is necessary for its protection to prevent the culvert from being choked or obstructed by rubbish and debris brought down by the stream. If the mouth of the culvert or the grating were to fall into disrepair, the Lord Ordinary thinks that the railway company, and not the town, would be compelled to repair them; for, though the greater part of them is on the town's land, they are really a pertinent of the culvert, which is exclusively the railway's property. At all events, the present is not a case where the town, as an upper heritor, has constructed a novum opus on a stream for its own behoof, and so as to be in every way responsible therefor.

The next question is, were the tunnel and grating of safe and proper construction? The Lord Ordinary thinks that it is sufficiently proved that they were.

There is no difference or conflict in the evidence as to the dimensions of the tunnel or calvert. It seems to be admitted on all hands that it was of quite sufficient size to receive and carry away all the water which could possibly come down the Denburn. Even the flood of 16tli October 1869, if the grating had not become obstructed, would all have passed away by the culvert.

There is a conflict of evidence, however, as to whether the grating was or was not of a proper and safe construction. The Lord Ordinary thinks that the great preponderance of evidence is in favour of the defenders. The two first skilled witnesses, called by the pursuers themselves, Mr Willet and Mr Smith, distinctly say that, if kept clean, the grating was a perfectly safe structure; and although Mr Anderson would have preferred a different construction, this was merely to facilitate the cleaning, and would not have dispensed with cleaning altogether. It seems also proved that the grating, at least the perpendicular part of it, is the identical grating which was formerly at the mouth of the old tunnel further down the stream, and it never seems to have occurred to anybody that there was any fault or defect in the construction of the grating, or that it was such as to occasion the slightest danger. As already explained, it was put up by and at the expense of the railway company, as an integral part of their tunnel. The necessity of a grating of some kind was admitted by everybody; and there is really no reliable evidence at all which would entitle the Lord Ordinary to find that this grating was of unsafe and improper construction.

(3) It is next said by the pursuers that the banks of the Denburn, immediately above the grating or tunnel mouth, were not raised high enough, so as to confine the flood and send it down the culvert. In particular, it is said that the right bank, or bank next the bleaching-green, was too low.

On this point also there is conflict of evidence, but, weighing the whole, the Lord Ordinary thinks the result is, that the right bank, being the bank in question, was within a few inches of being as high as the top of the arch of the culvert, and that it was as high as was necessary in such circumstances. It is plain that the only use of elevating the banks is to keep the water as high as the highest point of the arch, so as to secure that the whole area or section of the arch shall be available for the reception of water. This, the Lord Ordinary thinks, was substantially the case. To make the banks higher than the arch would only have the effect, as was explained by some of the witnesses, of retarding the flood for a few minutes till the water accumulated, and this would not in any appreciable degree have affected the result.

In the Lord Ordinary's opinion, therefore, no defect in point of height of the banks has been sufficiently established. On the contrary, it seems made out that the overflow would have happened just as it did though the banks had been as high as the pursuers demanded. There is, of course, the farther question whether the town would be liable for the state of the banks, or whether, if the tunnel and its mouth were solely the railway company's, the railway company would not also be bound to put the banks at the tunnel mouth in a proper condition?

(4) The point next in order is, whether the grating was kept properly clear? This point is of great importance, for the proximate cause of the overflow which damaged the pursuer's property was the grating having been choked up by rubbish and debris brought down by the stream.

In considering the evidence as to the cleaning of the grating, the ulterior question must be kept in view, who was the party bound to keep it clean, and responsible for doing so? But it will contribute to distinctness to take first the simple question of fact—was the grating in fact kept clear, and attended to with reasonable care? This point is the more important, as, besides the alleged insufficiency

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of the banks, the allowing the grating to become obstructed is the only fault alleged upon record. Defect in construction, although raised in evidence, is not stated on record.

There is much conflict in the evidence as to whether the grating was kept properly clear, and was or was not properly attended to. The Lord Orninary, however, thinks that the mass of testimony which has been adduced by the defenders seems sufficiently to instruct that the Denburn and its gratings, particularly the grating in question, were not only regularly cleaned and kept perfectly clear, but were, in point of fact, perfectly clean and open during the whole week on which the flood occurred, and down to the very time when the flood happened.

Now, if this be so as to the cleaning, and if the banks were sufficiently high, as the Lord Ordinary thinks they were, it goes far to put an end to the pursuers' case, for the insufficiency of the banks and the neglect of cleaning are the two things mainly relied on by the pursuers on record.

There remains the question, who was bound to clear out the Denburn and gratings? In point of fact this duty seems to have been undertaken and, as the Lord Ordinary thinks, was fairly discharged, by the Police Commissioners of Aberdeen —a different statutory body from the defenders, who are the Magistrates and Council of the city.

It is not for the Lord Ordinary to decide in this process, whether, under the police statutes, the commissioners are bound to clean the Denburn and its gratings, or whether the Town Council or the railway company are thereby relieved. Neither the Police Commissioners nor the railway are parties to the present process, and no decision therein could affect them. It seems sufficient, however, for the present purpose to find that the cleaning, on whomsoever incumbent, was, in point of fact, efficiently done. It was a very reasonable arrangement that the Denburn, which partakes much of the nature of a sewer, should be looked after by the police, who accordingly seem to have paved or causewayed its whole bed, and taken care that offensive or obstructing matters should not be allowed to accumulate. The mere fact that the solum of the alveus is the property of the town does not, as the Lord Ordinary has already explained, make the town liable either for its condition or its management. Practically, it is part of the sewage or drainage system of Aberdeen.

(5) The only other point requiring special notice is the plea of the defenders, that the flood which injured the pursuers’ property was of such an extraordinary kind and character, both in the quantity of water and the suddenness with which the water fell, or rather rose, as to make the damage resulting a damnum fatale, for which no one can be held responsible.

There is a great deal of evidence that the flood was a very uncommon one. The rise in the water seems to have been unprecedentedly sudden, and no witness says that he can remember any preceding flood so great and so sudden.

If, however, the case had been the ordinary case of an upper heritor having made an artificial structure for his own use, which on the occasion of the flood in question caused the damage, the Lord Ordinary would have had great difficulty in holding that the flood was a damnum fatale. He thinks a very strong case is required to establish this. He who meddles with the ordinary course of a stream is bound to provide not only for ordinary, but for extraordinary floods, even for those which are so rare that they may only happen once or twice in a century.

But the present, as has been seen, is not the common case between an upper and a lower heritor, in which the upper heritor had diverted, dammed up, or controlled a stream for his own advantage. The Denburn, for a long distance above the point in question and down to the harbour into which it falls, is really an artificial stream. It is included in the city of Aberdeen, paved by the Police Commissioners, cleaned by them, arched and bridged in various ways, as the exigencies of the city require. It appears to the Lord Ordinary that the strict rules applicable to upper and lower heritors, which govern what may be called rural streams, cannot safely be applied to what has become, like the Fleet Ditch of London, a city sewer; and if all concerned have taken reasonable precautions, an accidental flooding is one of the contingencies which those who purchase property in the neighbourhood must be held to contemplate and to take the risk of. It is in this view that the Lord Ordinary thinks that the uncommon nature and unexpected result of the flood of 16tli October is material, and aids the defence which has been set up. It is proved that the stream was carefully watched by the cleaning force, and that every available means were used to prevent and to remove the obstruction of the grating. The unprecedented amount of material brought down by the sudden flood got beyond the command of the men in charge, but the Lord Ordinary cannot help regarding the occurrence as a misfortune, and not a fault.

In the whole circumstances, the Lord Ordinary rests his judgment upon this, that the pursuers have not proved that the defenders' fault or negligence caused the damage.”

The pursuers reclaimed.

The Solicitor-General ( Clark) and Marshall for them.

Shand and Maclean in answer.

At advising—