Scottish Court of Session Decisions

This petition, at the instance of John Adam, proprietor of two shops and a dwelling house in Caudle Street, Alloa, and John Spowart, the tenant thereof, against James Moir, clerk to the Commissioners of Police of the burgh of Alloa, set forth that the Commissioners had erected a public urinal in Candle Street in front of the petitioners' premises, without notice to the petitioners, and contrary to the provision of the General Police and Improvement (Scotland) Act, 1862; that it will be and become a nuisance to the public, and more especially to the petitioners, and an obstruction to the street; and concluded with a prayer for the removal of said urinal. The facts of the case and the contentions of parties are fully set forth in the interlocutor of the Sheriff-Depute, affirming the judgment of the Sheriff-Substitute.

“ Edinburgh, 19 th October 1874.—The Sheriff having heard parties' procurators orally, and made avizandum, and considered the cause, dismisses the defender's appeal against the Sheriff-Substitute's interlocutor of 28th September last, and adheres to the said interlocutor, and decerns.

Note.—The question here raised is an example of the looseness of expression complained of in that otherwise valuable statute, the General Police Act of 1862.

The complaint of the petitioners, the proprietor and tenant respectively of a shop and dwelling-house in Candle Street, Alloa, is that the

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urinal in question is an obstruction to the street, and specially to the access to their own premises, and is and will be, in other respects, a nuisance; and the prayer is that it shall be removed. It is not maintained by the defenders, the Magistrates of Alloa, that at common law this petition is incompetent or irrelevant. The defence is, that the act of the Magistrates in placing the urinal there is within their powers under section 135 of the statute, and cannot be called in question unless by appeal under the statute; and that no appeal having been taken, there is now no remedy open to the petitioners except a claim for compensation. On the other hand, the petitioners deny that the present application is excluded by the statute.

Section 135 of the Act is as follows:—‘The Commissioners may erect such public water closets, privies, and urinals within the burgh, and in such situations as they think fit, and may defray the expense thereof, and of keeping the same in good order, and may make compensation for any injury occasioned to any person by the erection thereof out of the police assessment, but so that such erection shall not become a nuisance, and any householder who thinks himself aggrieved thereby may appeal to the Sheriff in manner after provided.’

Upon this section sundry observations occur:— (1) It does not apply to the petitioner Mr Adam, who is only the proprietor, and resides in Leith, and does not fall within the definition of a householder in sect. 3. (2) The provision that any aggrieved householder may appeal to the Sheriff ‘in manner after provided,’ is of difficult application, for the mode of appeal ‘after provided’ cannot be literally followed in this case. The only section providing an appeal, which can be in the view of said sect. 135, is sect. 396 (sect. 397 being limited to cases of private improvement assessment). Now sect. 396 enacts, that ‘any person liable to pay or to contribute towards the expense of any of the works aforesaid, or otherwise aggrieved by any order of the Commissioners relating thereto, may at any time, within seven days next after the making of any such order, give notice in writing to the Commissioners that he intends to appeal against such order to the Sheriff, and, along with such notice, he shall give a statement in writing of the grounds of the appeal; and if within four days next after giving such notice, the party grant bond to the Sheriff, with two sufficient cautioners, to the satisfaction of the Sheriff, to abide the order of the Sheriff, and pay such costs as shall be awarded by the Sheriff thereupon, the work so appealed against shall not be begun until after the judgment of the Sheriff upon such appeal,’ &c. Upon this section it may be observed, 1st, That the allowance to any person aggrieved by any order of the Commissioners relative to works, cannot override the marked omission of the owner in the 135th section, especially where he is, as here, not aggrieved by any order; but by an act done without either definite order or previous notice. 2 d, That neither the owner nor the householder can be bound to give notice of an intention to appeal against an order where no order has been made (the resolution of the Commissioners being merely to erect urinals in certain streets, and requesting a committee to fix the precise sites), and no notice of the intended work given and 3 d, That the provision that the work, appealed against shall not be begun until the Sheriff gives judgment, is inapplicable to a case where the work is already done, and without notice. If, therefore, the provision for an appeal in the 135th section is to be carried out, that must be either, on the one hand, by holding that such appeal need not comply with the various conditions precedent prescribed in the 396th section, or it must be held that a previous order and notice are by implication requisite before the erection of any privy or urinal; and that where such order and notice are neglected, the Commissioners lose the special protection of the appeal clauses, and become subject to the ordinary administration of justice. In the former view, the present petition may be held as an appeal under the statute, and, if necessary, a slight alteration on its title, so as to make it ‘Petition of Appeal,’ might make it sufficient. In the second view it is open to no objection; and in either view it admits of being maintained that this petition is protected by section 438, which provides, that ‘no jurisdiction conferred by this Act shall be held to exclude the jurisdiction of any Sheriff or Court of Guild, where the case shall, in the first instance, have been brought before or taken up by such Sheriff or Court of Guild.’

Reverting to section 135, it is difficult to suppose that the Legislature, in authorising Commissioners to put down privies and urinals ‘in such situations as they think fit,’ meant that they might do so free from any check or control, or any respect for the rights of others. A substantial power is given, although no such startling construction be adopted; for they are authorised to make such erections out of the public funds in their charge, and thus, if no objection arises ab extra, they are protected against any question as to want of power. The clause surely does not empower them to put down such conveniences within a gentleman's garden or parterre, or in the courtyard of his house against his will. They have no power to appropriate private property, even on compensation, except under the Land Clauses Act (see section 390). If, then, the clause does not give unlimited and despotic power, there must be a limit, and that limit is naturally furnished by the rights of others as protected by law. The withdrawal of that protection of the rights of the lieges which is afforded by the ordinary courts of law is not to be readily implied, and not to be established except by unambiguous legislation. See Colt v. Caledonion Railway Company, 2d July 1859, 21 D. p. 1118, per Lord Justice-Clerk Inglis. It is to be observed that while in this Act the decision of the Sheriff on appeals is declared final and unrenewable (see close of section 397), there is not, except in the case of private improvement assessments under section 397, where careful previous notice is provided, any declaration of finality of an act of the Commissioners in the case where no appeal is taken. An appeal is an appropriate remedy where there is an order or judgment, but not where there is merely a fact or misfeasance of a party complained of; but it may be doubted whether this obvious distinction has been always kept in view by the framers of the statute.”

The respondent appealed.