Scottish Court of Session Decisions

This was an action at the instance of John Chalmers, farmer, against William Dixon & Co. ironmasters in Glasgow, incorporated under the Companies Acts 1862 and 1867. The summons concluded—(1) for £500 damages; (2) for interdict against the defenders “burning and calcining ironstone, or burning blaes or other mineral substances” at their pit, in the immediate neighbourhood of the pursuer's farm, “so as to cause noxious, unwholesome, and offensive vapours, smokes, and fumes,” injuring and incommoding Mr Chalmers in the management and cultivation of his farm at Heads. Subsequently the pursuer departed from his conclusion for interdict, and reduced his claim for damages to £200.

The pursuer leased the farm of Heads from Sir William Baillie, at a rent of £66, for nineteen years from 1857. He averred that he had largely improved his farm, and that it yielded him good profits, but that the defenders, in the course of their operations as ironmasters, had accumulated an immense “bing of blaes” or waste material from the pits covering an area of half an acre, and that “through the carelessness and fault of the defenders, or those for whom they are responsible, it was set on fire in the course of the year 1872, and has since been burning, and will continue to burn for a long time to come.” The distance between the bing and Mr Chalmers' farm was about a mile, and when the wind blew from the south-west the vapours and gases from the burning “bing” spread across the farm and injured the pastures and ryegrass.

In the statement of facts for the defenders they admitted that the bing contained about 200,000 tons of refuse, but said that it “had been formed in the usual course of working the ironstone, and in precisely the same way as all the other bings (their being many of them) of the like material in the district.” Further, the defenders averred that the ignition, which was discovered early in September 1872, had occurred spontaneously from the unusually wet season, and also that they had taken every means to put it out.

The defender pleaded, inter alia—“(2) The igniting of the bing of blaes and refuse foresaid, and the smoke and gase emitted therefrom, and the alleged nuisance and injury to the pursuer caused thereby, not having been caused through the fault of the defenders, they are entitled to absolvitor. (3) The defenders and others in the neighbourhood having, for many years prior to the pursuer coming to his farm, calcined the ironstone obtained from the lands near to their respective pits, and the defenders having for many years continued to calcine ironstone close to their present pits without complaint, the pursuer is not entitled to the interdict craved. (4) It being impossible to extinguish or stop the burning of the bing of blaes foresaid, any interdict granted against it would be inept.”

On 2d June 1875 a proof was led before Lord Craighill, Ordinary, and thereafter his Lordship pronounced the following interlocutor:—

“ Edinburgh, 27 th July 1876.—The Lord Ordinary,” &c.—In the first place, Finds as matter of fact, (1) That the bing referred to in the record and proof was ignited in the beginning of September 1872, and that since then the fire has continued to burn, although, from the progressive exhaustion of inflammable materials, it has not recently been so strong as it was in 1872, 1873, and 1874; (2) That the smoke and sulphurous vapours discharged from the said bing since it became ignited, when the wind was from the south-west, which is the prevailing current in the district, reached the pursuer's farm of Heads, and were the cause of discomfort to all living in the farm-house, as well as the cause of serious injury to the crops of all kinds in these years upon the farm; and (3) That £200 is not more than reasonable solatium for the discomfort and reparation for the loss which in consequence was suffered by the pursuer: In the second place, Finds as matter of fact, (4) That the said bing covered two acres of ground, and was for a considerable portion of its area 42 feet in height, and the materials of which it was composed, being in part rubbish from the workings of the defenders' ironstone pit, No. 8, and in part, though not

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nearly to so great an extent, ashes from the ventilating furnace at the bottom of the shaft, contained matter of an inflammable character, and might be ignited by spontaneous combustion; (5) That the liability of the bing to be ignited through spontaneous combustion was increased by the size of the bing, which was greater both in area and in height than in ordinary bings, and also by the moisture imbibed from the mossy ground upon which it was raised, and into which, for several feet, it subsided; and (6) That the unusual rainfall of the summer and early part of the autumn of 1872 so impregnated the said bing with moisture, and generated such heat in the bing, that the inflammable materials composing the bing were ignited; and the fire thus kindled in September 1872 has since continued to burn: In the third place, Finds, separatim, as matters of fact, (7) That though the said fire, when first discovered by the defenders in September 1872, was burning at only one part of the bing, and might have been extinguished if proper means for the purpose had been immediately employed, nothing was done by the defenders for its extinction till the end of 1872 or beginning of 1873; and (8) That the means which were then put in operation were,1 in consequence of the progress of the fire, ineffectual for its extinction: Lastly, Finds, as matters of fact, that (9) The defenders were in fault in putting down the bing in question upon mossy ground, and in making it of a size unusually great, at an increased risk of fire from spontaneous combustion; and, separatim, in not employing means immediately after the ignition was discovered by which the fire might have been extinguished: Finds, as matter of law, that the facts being as above set forth, the defenders are liable in the damage suffered as aforesaid by the pursuer: Therefore, repels the defences, and decerns the defenders to make payment to the pursuer of the sum of £200 sterling, in terms of the first conclusion of the summons: Quoad ultra, in respect that the conclusion for interdict is not now insisted in by the pursuer, assoilzies the defenders from that conclusion of the summons, and decerns, &c.

Note.—There are two conclusions in this summons. The first is for damages, and the second for interdict. The latter, however, is not now insisted in; partly because the pursuer's lease of his farm is nearly run out, and partly because the inflammable material in the burning bing is already all but consumed. But the first conclusion remains matter of controversy; and the decision of the questions which it involves has been to the Lord Ordinary the cause of some anxiety.

1. The summons sets forth a double ground of complaint. The first relates to the smoke and fumes resulting from calcining operations, and the second to those discharged by a bing of blaes, which has been on fire since the beginning of September 1872. The former may, the Lord Ordinary thinks, be dismissed from consideration, because the pursuer in the course of his evidence admitted that the vapours from the bing are the only vapours by which he is inconvenienced or injured.

2. As to the vapours from the bing, the first inquiry which the Lord Ordinary has disposed of is, whether these produced discomfort or injury to the pursuer. This has been taken first, because if there has been no injury the consideration of any other question is superseded. The Lord Ordinary has come to the conclusion that injury, and substantial injury too, has been sustained. The damages in precise amount are not easily assessed; but as the witnesses examined for the pursuer suggest a much higher amount, and as there is little in the evidence for the defender, especially as to the earlier portion of the period during which the mischief has been in operation, that conflicts with the testimony of the pursuer, the sum at which the damage has been assessed by the foregoing interlocutor cannot be considered more than may reasonably be claimed.

3. The great question in the case is, whether the fire in the bing is due to fault on the part of the defenders. Here, of course, the burden is upon the pursuer; and had there been no evidence adduced for the defenders, the Lord Ordinary thinks that fault could not have been established. The chief ground, if it may not be said to be the only ground, of liability disclosed on the record is, that ‘through the carelessness and fault of the defenders, or of those for whom they are responsible,’ the bing ‘was set on fire in the course of the year 1872.’ This statement is vague enough; but the views entertained by the pursuer, before evidence by the defenders had been adduced, were rendered more precise in the course of the proof led by the pursuer. Then it was made to appear that there were three ways, as the pursuer suggested, in one or other, if not in all, of which the bing was ignited. The first was the tipping of ashes, still hot, from the ventilating fire at the bottom of the shaft upon the bing; the second, the heat communicated by a fire kept burning in a cage during night on the surface of the bing, for the purpose of affording light; and the third, ashes from a fire in a hut or shelter erected upon the bing for the conveniency of the workmen. The Lord Ordinary thinks that each and all of these, singly or in combination, are insufficient to account for the fire. One difficulty is with him insuperable. If the bing had been ignited by the operation of such causes the ignition must have begun at the surface; and if it had there begun, the effects of the fire must have been patent. But after the fire was discovered, nothing on the surface was marked by fire, and consequently another cause than any included within the original suggestions of the pursuer must be assigned.

4. The defenders, in contending against the cause or causes to which the fire was ascribed by the pursuer, have not relied on the insufficiency of the evidence adduced by the pursuer. They have led proof to show that the origin of the fire is to be explained, and can only be adequately explained, by the action of spontaneous combustion; and they have convinced the Lord Ordinary that this is the true explanation. The thing, no doubt, seems improbable for many reasons, and especially because there are other bings in the district which were drenched by the rains of the summer and autumn of 1872, and which, though also containing as inflammable materials, remained unignited; but the defenders' witnesses afford materials by which the discrepancy can be reconciled, and the improbability of spontaneous combustion within the bing in question is removed. The efficient

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causes are, first, the concentration of the heat generated by chemical action among the materials of which the bing was composed, by preventing its radiation; and secondly, the communication of moisture. Both these are required for spontaneous ignition, and if both are in operation, a natural result is spontaneous combustion. In the bing in question the concentration of the necessary heat was produced by the size of the bing, and by its partial subsidence in the mossy ground upon which it was raised. The moisture, again, was supplied partly by this mossy ground, and partly by the rain-fall of the season in which the fire began. These are things which are told us by all the witnesses for the defenders; and believing what has been said, the Lord Ordinary has come to the conclusion that the defenders explanation of the origin of the fire has been established.

5. But, unfortunately for the defenders, the adoption of this opinion involves results which, as the Lord Ordinary thinks, are fatal to the defence. In the first place, the size of the bing was a special source of danger, the outer air being more thoroughly excluded from the interior of the mass than it would be in smaller bings. Radiation was in consequence prevented, and the heat generated there, in place of being dispersed, was there left as a predisposing cause of combustion. In the second place, the ground on which the bing was raised was unsuitable. It was soft; and the mass sinking down for several feet, the lower portion of the bing was covered up, and so far lateral radiation was prevented. Moreover, the ground was wet, and moisture might consequently be imbibed from below. The defenders say that though these sources of danger are now apparent, they were neither detected nor suspected when the formation of the bing was begun. Chemists, they argue, might have surmised that the fire which broke out would some time occur; but such an anticipation was far beyond the range of knowledge possessed by an ordinary mining engineer. The Lord Ordinary doubts whether there is warrant for the disparagement implied in this last suggestion; but the point is really unimportant. The defenders were dealing with materials more or less dangerous. They were bound to know the extent of the danger, and the counteractive precautions which ought to be adopted, as the interest of others were concerned; and having acted in such a way as to aggravate the danger, and by so doing produced the results in which the present action has originated, they, in the opinion of the Lord Ordinary, are answerable for the consequences of the faults which have been committed.

6. Numerous decisions, it may here be mentioned, were cited by counsel at the debate upon this question of fault, among which were Keith v. Keir, 10th June 1812, F. C.; Rankine v. Dixon Company, 19th March 1847, 9 D. 1048; Kerr v. Orkney, 17th December 1857, 20 D. 298; Tennent v. Glasgow (H. of L.), 2 Macph. p. 22; and Mackintosh v. Mackintosh, 15th July 1864, 2 Macph. 1357. All of these, as well as the comments upon them, have been considered by the Lord Ordinary; and the only other explanation which appears to him to be necessary is, that if the faults imputed to the defenders in this action are as have been found, none of the cases referred to is at variance with the conclusion which has been adopted.

“7. These views of the case, if sound, are sufficient; but there is another ground of liability which the Lord Ordinary has introduced as a separate ground of judgment. The fire was discovered by the issue of smoke from the surface of the bing at a single point in September 1872. Nothing, however, was done for the purpose of extinguishing the fire for several months; but an attempt was then made to put it out by water. The fire, however, ere this had spread so far that no effect could be produced. In these circumstances the question is, whether delay in the use of means is a ground on which the defenders may be held liable for the consequences of the fire? They were certainly indifferent, assuming that they were not misled by the idea that the fire, as it appeared only on one spot, would soon burn itself out, without taking hold upon the mass of the bing. But indifference is not enough, if the fact be that the fire when detected could not be extinguished. And a great deal of evidence to this effect has been led for the defenders. But the opinions of the scientific witnesses on whom the defenders rely are for the most part hypothetical. They were not on the spot at the time; and those of them who afterwards visited the place, did so only after the fire had spread through the bing. This consideration renders their evidence, though perfectly honest, somewhat untrustworthy; and the Lord Ordinary, in consequence, has formed his views upon this part of the case on the evidence given by those who were upon the spot when the fire in the bing was discovered. One, and the principal of these, is Frederick Duncan, a mining engineer, and the mineral manager to the defenders. In the course of his cross-examination, being asked—‘When you saw the smoke you came to the conclusion there was fire there?’ He answers, ‘I thought it was very slight. (Q.) What at the time occurred to you as the cause of it?—(A) I did not make it out at the time.’ Again he depones, In the present case I could not say how far down the fire had seized the bing. It did not occur to me that there was any danger whatever. (Q) ‘Supposing the fire was, as you understood it at the time, limited to a very small portion of the bing, do you think anything could have been done for its extinction? — (A) Yes, it might have been dug out. That is my opinion now.’ Proceeding upon this, which is the most reliable evidence on the subject, the Lord Ordinary has come to the conclusion that the defenders must be held to be in fault in not having used means calculated to extinguish the fire, and that the fault is such as renders them answerable for the consequences, so far as these have injured the pursuer.”

The defender reclaimed.

Authorities — Keith v. Keir, 10 June 1812, F.C.; Rankine v. Dixon & Company, 19 March 1847, 9 D. 10481; Kerr v. Earl of Orkney, 17 Dec. 1857, 20 D. 298; Tennent v. Earl of Glasgow, 2 Macph. (H. of L.) 22; Mackintosh v. Mackintosh, 15 July 1864, 2 Macph. 1357; Rylands v. Fletcher, 1868, 3 L. J. (English and Irish Appeals) 330.

At advising—