Scottish Court of Session Decisions

This was a petition presented to the Sheriff of Renfrewshire by three persons, who described themselves as inhabitants, proprietors and ratepayers in Gourock, against the Commissioners of the burgh of Gourock, and Local Authority of said burgh, under the Public Health (Scotland) Act, 1867, for interdict against the respondents carrying out a system of drainage for the burgh on which they had resolved.

The averments of the petitioners were of the following kind:—“That the system of drainage adopted by the respondents, the said Commissioners, and the works proposed to be carried out by them, are defective in many important points, and quite insufficient for the present and prospective wants of the burgh, and, in particular, the same are defective in regard to the fall or inclination of the sewer, the number and position of the proposed outlets, the size or diameter of the sewer, and the means of ventilation. That owing to the very slight fall or inclination in many parts of the proposed sewer, and especially at or near to the property belonging to the petitioner, the said William Steel, the heavy matter contained in the sewage will accumulate in the sewer; that foul air and noxious gases will in consequence generate and find their way by the side drains into the houses of the petitioners and others, and be the means of propagating fever and other pestilential diseases. That the principal outlet for the sewage from the village being at Church Street (as shown on the plan), between the Steamboat Quay and the Quarry Quay, and almost in the centre of a bay, the sewage from this outlet will in a great measure be deprived of the force of the tidal flow, and cannot be properly carried away, but will, especially when the wind is from the east, north-east, or south-east, be driven back upon the shore and into the centre of the bay, and thus injure the bay as a place for mooring yachts and other vessels, and prove a nuisance to the petitioners and other inhabitants of the burgh; and the principal outlet for the sewage from the houses and buildings west of the Steamboat Quay being intended to be at the west end of the property belonging to the petitioner, the said Mrs Caroline Anne Oswald or Gamble, being at the extreme point of convergence or the part of the shore opposite the centre of the bay at Ashton, the sewage from this outlet cannot, for the same reason, be properly carried away, but the same, or portions thereof, will be thrown back upon the shore, opposite the petitioner's property, and prove a nuisance, and injurious to the petitioners and other inhabitants of the burgh. That the said sewer is insufficient to meet the increasing wants of the burgh, and much expense will be incurred in enlarging and altering the same from time to time. That by the said system it is proposed that a certain portion of the foul air from the sewer shall be forced up the rain conductors to the roofs of the houses in the burgh, and there escape. The foul air thus emitted is certain to find its way into the houses through the attic windows, which are to be found in almost every house in the burgh, and the same will be most injurious to the petitioners and other inhabitants foresaid.”

The respondents lodged answers, in which they founded on section 108 of the Public Health Act, as excluding review of their actings.

The Sheriff ( Fraser) dismissed the petition.

“ Note.—In dismissing this petition the Sheriff does not do so upon the ground that he has no jurisdiction to entertain it. A petition asking a Sheriff for interdict against a nuisance is a competent proceeding. The Sheriff rests his judgment upon more general grounds.

The Public Health Act, passed in the year 1867, came in place of the Nuisances Removal Act of 1856, the Sanitary Act of 1866, and certain clauses of the General Police and Improvement (Scotland) Act, 1862. It was found impossible to carry out these Acts into practical working in Scotland, and representations having been made to this effect to the Government of 1867, the Public Health Act of that year was passed. By this Act certain bodies in every parish were charged with the administration of the laws relative to the public health, subject to the control of the Board of Supervision for the relief of the poor in Scotland. There were also certain cases in which the Sheriff was called upon to decide, and his judgment was declared by the 108th section not subject to appeal under certain exceptions. Lastly, there is a power given to the Board of Supervision, with the approval of the Lord Advocate, to apply to a Division of the Court of Session by summary petition for the legal remedy necessary, ‘in case any Local Authority shall refuse or neglect to do what is herein or otherwise by law required of them, or in case any obstructions shall arise in the execution of this Act.’

The Sheriff cannot find in the reports of the decisions of the Supreme Court any case, except one, where the Board of Supervision have been under the necessity of applying to the Court of Session for its aid. The case referred to is Board of Supervision v. Dull, June 9, 1855, 17 D. p. 827. It is understood that the Board has endeavoured to induce Local Authorities, both in the administration of the Poor-laws and of the public health, to do their duty more by persuasion and advice than by legal prosecution, and all the more that to many of these local authorities correct ideas upon the matter of public health are imperfectly known. It is so difficult in many cases to get any motion taken at all in villages that have not known what foul drainage is, and who are using wells polluted with the flow from neighbouring midden-steads, that it is satisfactory to find a body like the Local Authority of Gourock taking up the matter of drainage of that village with energy and determination.

The Sheriff is now called upon to say that this Parliamentary Commission, whose duty it is to provide proper drainage for Gourock, shall be controlled by a court of law from carrying out a scheme which, in their best judgment, and in all good faith, and after taking the aid of skilled intelligence, they have resolved upon. There is no allegation against them farther than this, that they have made an error in judgment. It is not said that they have any corrupt motive in what they have determined to do, nor that they have come to their resolution without due care and consideration; and the petitioners now ask the Sheriff, upon the allegation that the scheme of drainage is a bad one—supported as they will no doubt do it by their own engineers—to determine the relative value of the conflicting opinions of rival engineers. This jurisdiction was not given even to the Board of Supervision, and the Sheriff is of opinion that it was not given to him. If the Local Authority had not proceeded with a system of drainage, they would, no doubt, have been prosecuted for neglect of duty at the instance of the Board of Supervision under the 97th section. But then the petitioners are not without their remedy, for the 73d section

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provides for the case of a nuisance created by the operations of the Local Authority. If such a nuisance be created, then is the time for the petitioners to apply for redress to a court of law. It is a totally different inquiry whether a nuisance exists, from what it is, whether a nuisance will be created. The Sheriff, or any other unskilled layman, could quite fitly determine the former question, and be left at sea in casting the balance of conflicting evidence of engineering witnesses in regard to a mere matter of opinion. If the Local Authority by their operations created a nuisance, the whole work may require to be undone. But in the meantime the drainage operations in Gourock will go on, in place of their being delayed, it may be, while this case is running the course of appeal from court to court.

The petitioners have mistaken their remedy. If they consider that the scheme of drainage for their village, devised by the Local Authority, is a bad one, they must just turn out their representatives at the Local Board at the next election, or wait until a nuisance actually exists, and then compel the Local Authority to remove it.

The Sheriff has disposed of this case without the aid of any direct authority or precedent in the judgments of the Supreme Court. None of the cases which he can find directly rule the present one, and therefore he thinks it unnecessary to analyse those cases where somewhat similar questions have been mooted. They seem to be the following— Lord Advocate v. Police Comrs. of Perth, Dec. 7, 1869, 8 Macph., p. 244; Smeaton v. Police Comrs. of St. Andrews, May 17, 1865, May 30, 1867, and Dec. 10, 1868, and also in House of Lords, March 20, 1871, 9 Macph., p. 24, H.L.; Blantyre v. Trustees of Clyde Navigation. March 3, 1871, 9 Macph., p. 6; Bremner v. Huntly Friendly Society, Dec. 4, 1817, F.C.; Dunbar v. Levack, Feb. 10, 1858, 20 D., p. 538; Guthrie v. Miller, May 25, 1827, 5 Sh., 711; Nicol v. Magistrates of Aberdeen, Dec. 20, 1870, 9 Macph., p. 306; Douglas v. Dundee and Newtyle Railway Company, Dec. 22, 1827, 6 Sh., p. 329.”

The petitioners appealed.

Trayner for them.

Solicitor-General and Burnet, for the respondents, were not called upon.

At advising—