Scottish Court of Session Decisions

This was a note of suspension and interdict presented by the Caledonian Railway Company against William Baird & Company, iron and coal masters, Glasgow, for the purpose of putting a stop to a system of drainage by which the sewage from the village of Auchinsterry, belonging to the respondents, was conveyed into a burn which flows into the Forth and Clyde Canal. The complainers prayed the Court to “suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondents from carrying or conveying the drainage or sewage of the dwelling-houses and outbuildings connected therewith, recently erected by them at Auchinsterry,

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in the parish of Cumbernauld, into the burn or watercourse immediately on the west of said houses and buildings, and thence into the canal known as the Forth and Clyde Canal, the property of the complainers.”

The Lord Ordinary passed the note, a record was made up, and proof led. The facts of the case, as brought out in the proof, are fully narrated by the Lord Ordinary in the opinion which accompanied the following interlocutor, dated 8d February 1876:—

Having considered the cause and proof, Finds that the respondents, in the erection of the mining village belonging to them on the lands of Auchinsterry, have provided a system of drainage by the use of which, in accordance with the purpose and design of the works, sewage or drainage of a grossly polluting kind has been for some time carried into the burn to the west of these lands, and thence into the Forth and Clyde Canal, to the injury of the complainers, and in violation of their legal rights: Finds that in these circumstances, and unless the evil complained of shall be forthwith remedied, the complainers are entitled to the interdict asked, but supersedes consideration of the cause for one month to allow the respondents an opportunity of stating the means they propose to adopt to prevent further pollution of the water of the burn and canal: Grants leave to reclaim against this interlocutor; and meantime reserves all questions of expenses.

Opinion.—The complainers, the Caledonian Railway Company, in this action complain of the pollution by the respondents of a burn or water-course which flows into the Forth and Clyde Canal at Auchinsterry, in the parish of Cumbernauld, and of the pollution of the canal itself. The respondents, Messrs William Baird & Company, are extensive owners or lessees of minerals in the neighbourhood of Auchinsterry, and for the accommodation of their miners and workmen in that locality they have recently erected about 100 dwelling-houses, which at present contain a population of about 600 persons on the lands of Auchinsterry belonging to them, and which adjoin the property of the complainers, who are the owners of the canal and its banks. The erection of the houses was begun in November 1878, and the houses, and drains or sewers made in connection with them, were finished in August 1875. Immediately to the west of that part of the respondents' property on which the houses have been built, the burn, which is mainly fed by an important stream, flows northward to the canal. The complainers are proprietors of the ground through which this burn flows for a space of upwards of 10 yards, immediately before it joins the canal; and they maintain, as proprietors of this part of the burn, and separately, as proprietors of the canal, that the respondents in carrying the drainage or sewage from the miners' houses and their pertinents into the burn, have polluted the water of the burn and of the canal, to their injury.

The natural slope of the ground from the miners' houses, which are built in several rows or Streets, and the outhouses connected with them, is towards the west and north, that is, directly in the course which the burn takes towards the canal, The burn has from time immemorial emptied itself into the canal, and I see no reason to doubt that the respondents, as proprietors of the lands of Auchinsterry, are entitled to have the natural drainage of these lands conveyed northwards by and in the course of the burn.

The respondents deny that the pollution is of the nature or extent alleged by the complainers. They maintain that they are making a natural and lawful use of the ground belonging to them in erecting houses on it, and that such drainage water as is transmitted into the burn, and thence to the canal, being the result of the natural and lawful use of the subject, the complainers have no valid ground of complaint. Separately, they maintain that even if the pollution complained of be unlawful, they are not the parties responsible or liable to an action like the present, and that the occupants of the houses are the persons against whom alone the remedy of interdict can be asked.

It has been proved beyond question that for time immemorial the stream or burn already referred to, which is of comparatively small extent, and has its origin within a short distance of the canal, in ordinary weather has always been clear and pure water, and was fit for all the primary purposes previous to the erection of the respondents' houses, and the introduction of the drainage from these houses into it. Several witnesses have stated that they frequently drank the water of the stream, and used it for all domestic purposes, and the chemists who were examined on both sides are agreed that down to the point at which the sewage or drainage from the property of the respondents is let into the burn the water is pure and wholesome. It has been further proved that the result of the discharge of the sewage or drainage water coming from the property of the respondents into the burn, at a point a few yards before it enters the complainers' property, is to destroy the water for its primary purposes, and to pollute it to a considerable extent. The witnesses vary in their views as to the amount of pollution. The respondents' servants, and others in charge of the drainage and sanitary arrangements of what may be called the mining village, represent the pollution as comparatively trifling. On the other hand, the complainers' servants, and others who have occasion to be frequently at that part of the canal, or who reside in the neighbourhood, state that not only is the water in the burn much fouled, but that in the canal itself it is quite usual to find a considerable line stretching outwards and on each side of the mouth of the burn, she wing an area of considerable discolouration, and that the discharge from the drain causes the offensive nauseous smell of ordinary town sewage in the burn, and in the canal where the burn flows into it. The chemists examined by the complainers—Dr Aitken and Mr Dittmar—speaking from an analysis of water taken quite recently from the mouth of the drainage pipe, pronounced it to be sewage of a most offensive kind; and on this subject the evidence of Dr Macadam and Dr Wallace, the chemists examined for the respondents, does not really differ very materially. They both stated at the close of their evidence that the water emptied from the pipe which forms the outlet of the drain contained a considerable quantity of organic matter in suspension and solution, so much as to destroy the water of the burn for its primary uses, although not so much as, in their opinion, materially to affect the water of the

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canal, which they say itself contains a considerable amount of impurities. It has been further proved that in that part of the bed of the burn situated between the discharge pipe and the canal there exists to some extent a floculent growth of vegetable matter, which the complainers' witnesses say is never present except where the excreta of ordinary town sewage has been carried along. The evidence as a whole, in my opinion, shows that the result of the discharge from the pipe used in connection with the drainage of the respondents' property is not only to destroy the water of the burn for its primary uses, but also sensibly and prejudicially to injure the water of the burn and of the canal, in consequence of the animal and organic matter which is thereby brought down, including to some extent the worst elements of town sewage.

The respondents have led evidence to show that the system of drainage and arrangements for avoiding, or at least diminishing the pollution of the burn and canal by the inhabitants of their houses are of an unusually careful nature for such a village. Outhouses have been provided for the use of the persons occupying the different houses, containing privies, ash-pits, and washing-houses. Immediately beyond those outhouses, which are to the front of the lines or streets of dwelling-houses, there are open gutters or drains, by which the ordinary surface-water, and water used for cooking or otherwise in the houses, and thrown out of them, is carried away. It is stated that the arrangements are fitted to secure as effectually as can be done that excreta or other solid sewage matter shall not find its way into the drains, and that the only water which takes that course is the surface-water flowing through the drains or gutters just referred to, or water run off directly from the washing-houses. At the lower end of each of the rows of houses there are cesspools in the course of the drains to intercept any solid matter which may find its way through them, and which are cleaned out periodically, as required, and at a short distance above the discharge-pipe already referred to. Still lower down, and which is also emptied from time to time, there is a filter in three compartments, also well suited from its construction to intercept solid material. The proof appears to me to show that an effort has been made to reduce the amount of pollution of the burn to as small an extent as possible under the general system adopted, but I think it is clear that, notwithstanding the respondents' arrangements and regulations, and as the result of the system provided by them, there still exists a discharge of polluting material into the burn of the nature, and having the effects, already stated. The privies erected for the miners are quite unsuitable for use by women or children, and there appears to be no doubt that a considerable amount of excrement deposited on the floors of the outhouses or in the immediate neighbourhood of the open drains finds its way through the drains towards the burn. This is certainly so in wet weather, when the surface-water flows into the drains from the sloping ground above them. In the same way, a large amount of similar polluting matter must find its way through the drains, having been carried out, mostly in the mornings, from the miners' houses, and thrown into the open drains, which are intended to carrying away liquid refuse. The respondents, by means of their servants, check this practice where they can; but, as there are no drains in the houses, it is obvious that the liquid refuse thrown out from the houses must contain much foul and polluting material. The existence of excretal matter in the drains is proved by the evidence given as to the contents of the cesspools and filter already mentioned, spoken to by a number of the witnesses, and it accounts in a great measure for the observations of the chemists as to the noxious nature of the water discharged from the respondents' pipe into the burn. Even if it were the fact, as maintained by the respondents, that the only polluting matter which passes through the drains is from the fouled water used in the houses in cooking and otherwise, for which it is conceded they were and are intended, this would only show that what may be called the legitimate use of the drains, according to the respondents' view and intention,’ is of itself sufficient to produce the pollution complained of.

In this state of the facts, it does not appear to me to admit of serious doubt that the complainers are entitled to the interdict which they ask. It was maintained in argument, on the assumption that the respondents can be regarded as the parties causing the pollution, that they were entitled to run into the burn water polluted to some extent, if the pollution arose from what was called the natural occupation and use of their property. No authority was cited in support of this view, and I see no reason to doubt that the complainers, who have hitherto had a flow of pure wholesome water into and through their lands into the canal, are entitled to resist any material change in the character of the water as a violation of their rights. The erection of a mining village may be a fitting and proper use by the respondents of their property, but in that use they are not entitled to invade the rights of their neighbours by destroying the flow of pure water which has hitherto been enjoyed. They must make their arrangements for disposing of the sewage without invading the rights of the lower heritors, or otherwise discontinue a use of the subjects which involves an invasion of these rights, and which, on that account, is not a proper or lawful use of their property. But again, it is said the respondents are not the parties who have caused the pollution, or who are responsible for it, and that the complainers' remedy is by interdict against the true wrongdoers— the occupants of the houses. On this point it cannot, I think, be disputed that in erecting so many houses to be occupied by hundreds of persons the respondents were bound to make some provision for carrying off the filth and sewage which is necessarily incident to the occupation of the buildings, without violating the rights of others. If no provision had been made, and the tenants of the houses had been left to discharge filth of every kind directly into the burn, which no doubt they might have been interdicted from doing, I cannot doubt that the respondents would also have been liable to interdict against a use of their property which must necessarily result in pollution of the stream. The respondents have recognised their obligation to make proper drainage or sewage arrangements, and the question is whether the works executed are of a nature sufficient to relieve them from responsibility. If it

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could be shown that pollution would not occur from the natural and ordinary use of these works, which are in all respects sufficient to provide the means of drainage without causing pollution, but has arisen entirely from the wilful acts of the occupants of the houses, in declining to avail themselves of the provisions made by the respondents to prevent pollution, the complainers' complaint and remedy might not be against the respondents. But this is not the true state of the facts. The respondents have no doubt made arrangements which will secure that the houses and outhouses and surrounding ground shall be kept free from any permanent accumulation of filth, and so far as regards the sanitary arrangements for the houses, these arrangements may be entitled to the commendation bestowed on them by some of the witnesses. But the drainage works provided for the use of the village are not only of a kind which will admit of pollution being caused by their misuse, but are such that, if used as it may naturally and reasonably be expected they will be, will and do cause pollution. The respondents' case is that no excretal matter finds its way into the drains, which are used only, as intended, for the liquid refuse from the houses and the draining of the wash-houses. It is clear there is pollution in fact, and if this be as the respondents allege, then the pollution is the direct and inevitable result of their draining scheme, used quite in the way they intended and designed it should be by their tenants. I am of opinion, however, from the evidence, that the drains do carry off to some extent sewage material of a more noxious character than the respondents admit; and, in particular, convey excreta carried out from the houses and thrown into the open gutter, and washed into the gutters in wet weather from the outhouses and surrounding ground. That the drains and gutters are used and act in this way is, I think, the natural result of the situation in which they are placed, for they form the only means of carrying away filth which has accumulated in their neighbourhood in wet weather, and the most likely and convenient means to be used by the inhabitants for getting rid of much of the filth and refuse from their houses. On these grounds, I am of opinion that the pollution complained of is the result of the use by the inhabitants of the drainage system provided by the respondents which might naturally and reasonably be expected. This being so, the pollution is to be traced to the respondents' works, and for the result of these works the respondents are responsible.

It does not appear to me that any separate or difficult case arises in reference to the canal as distinguished from the burn. The complainers are entitled to resist the discharge of sewage or polluted drainage water into the canal as effectually as into the burn, but, on the other hand, their rights are no higher in regard to the canal than in reference to the burn. They have an obvious interest to prevent the water of the canal being made a receptacle for gross impurities, for the water being, comparatively speaking, stagnant, such impurities are calculated to make it most offensive, and so to injure the canal seriously for the purposes of navigation. It is surprising to find from the evidence that at some points considerable quantities of sewage are permitted to run into the canal. The fact that this is so does not, however, give the respondents a right to use the canal in this way for a new village, and it may be found that other parties so using the canal have no better right to do so than the respondents.

“As the result of my judgment, the complainers are entitled to put a stop to the present use of the drains leading to the burn and canal. But before granting interdict I think it is reasonable in the circumstances that the respondents should be allowed some time to make other arrangements; and while I shall find that the respondents have caused the pollution complained of in violation of the rights of the complainers, I shall in the meantime supersede consideration of the case for one month, to allow the respondents an opportunity of stating what they propose to do to put a stop to the existing evil.”

The respondents reclaimed, and argued—A person cannot be interdicted from doing a thing which is done against his will. The fact of contamination is not sufficient unless it be shown that something nimious and improper has been done by the party whom it is sought to interdict. Nothing was done in the present case except to provide artificial channels for taking in its natural direction surface-water, which the inferior proprietor was bound to receive.

Authorities cited— Campbell v. Bryson, 3 Macph. 254; Montgomerie and Fleming v. Findlay, 15 D. 853; Young v. Colt's Trustees, 10 Shaw 666; Collins v. Hamilton, 15 Shaw 895; Weston v. Incorporation of Tailors, 1 D. 1218; Attorney-General v. Richmond Commissioners, May 1866, 14 L. T. 398.

Authorities cited for suspenders— Attomey-Ceneral v. Birmingham Commissioners, 4 Kay and Johnson, 528; Attorney-Ceneral v. Colney Hatch Lunatic Asylum, 4 L. R., Chan. App. 153; Duke of Buccleuch v. Cowan, 5 Macph. 214; Egremont, Moody and Malkin, 404; Tennant v. Golding, 1 Salkell 21; Cockwell v. Russell, 26 L. J., Com. Law Excheq. 34.

At advising—