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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Magistrates of Leith v. Field [1878] ScotLR 16_101 (15 November 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0101.html
Cite as: [1878] SLR 16_101, [1878] ScotLR 16_101
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SCOTTISH_SLR_Court_of_Session
Page: 101↓
Court of Session Inner House First Division.
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v.
Facts:
Claims against Police Commissioners under the 186th section of the General Police and Improvement (Scotland) Act 1862, and the 36th section of the Lands Clauses Consolidation (Scotland) Act 1845, by the proprietor of the solum for ground taken to be permanently occupied by sewer and other drainage works underneath a street where it was not alleged that any cellars or vaults were interfered with, and for permanent way-leave and surface and other damage caused by the execution of the works in question— held to be irrelevant.
Observed ( per Lord President) that it was doubtful whether a claim for compensation under the above Acts could competently be amended, and that in that case it would be necessary to lodge a new claim.
The complainers in this case were the Magistrates and Council of Leith, as Commissioners for the purposes of the General Police and Improvement (Scotland) Act within that burgh. The respondent was proprietor of the lands of Bowling Green and Redhall, Leith, through which two streets, named Bangor Road and Burlington Street, were being constructed.
By section 186 of the General Police and Improvement (Scotland) Act 1862, it is provided that the Police Commissioners of a burgh shall “from time to time, subject to the restrictions herein contained as to the notice to be given, and the plans and estimates to be prepared, cause to be made under the streets, public or private, or elsewhere, such main and other sewers as shall be necessary for the effectual draining of the burgh, and also if necessary for such drainage to deepen, divert, or cover over any burn or any ditch made use of as a common sewer or any ditch into which sewage flows, and shall also cause to be made all such reservoirs, sluices, engines, and other works as shall be necessary for cleansing such sewers; and if needful they may carry such sewers through and across all underground cellars and vaults under any such streets, doing as little damage as may be, and making full compensation for any damage done; and if for completing any of the foresaid works it be found necessary to carry them into or through any inclosed or other lands the Commissioners may carry the same into or through such lands accordingly, making full compensation to the owners or occupiers thereof, and they may cause the refuse from such sewers to be conveyed by a proper channel to the most convenient site for its collection and sale for agricultural or other purposes as may be deemed most expedient, but so that the same shall in no case become a nuisance: Provided always that if in making any such main and other sewers, or in repairing, constructing, or enlarging the same or existing drains or sewers, the contents at present carried into any existing
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outlet shall be diverted therefrom to the prejudice of any actual existing legal right, the Commissioners shall be bound to make compensation therefor, which compensation shall be settled in the same manner as compensation for land to be taken under the provisions of the Lands Clauses Consolidation (Scotland) Act 1845 is directed to be settled.” The following narrative of the statements upon record is taken from the Lord President's opinion:—“The averments of the complainers are that they resolved to proceed with the drainage of No. 4 of the districts into which the burgh had been divided, and on 15th October 1875 they gave the statutory notice of their intention so to do, and to receive and consider objections thereto, in terms of the Act. The plans of the scheme showed that the sewers were to pass through the streets known as Bangor Road and Burlington Street. The Commissioners having met and considered the objections, resolved that the work should be proceeded with, and the respondent Mr Field appealed against this resolution to the Sheriff. After hearing parties, and considering the report of Mr Stevenson, civil engineer, the Sheriff repelled the objections, and affirmed the order of the Commissioners. Now, this is not precisely admitted, but it is not disputed that the plans for the construction of these sewers were approved of by the Sheriff acting under the statute. The Commissioners then proceeded with the works, and in the month of June 1877 the respondent presented a petition to the Sheriff to have them interdicted from entering upon his lands of Redhall and Bowling Green, but the Sheriff refused interim interdict, and the petition was not proceeded with. The complainers accordingly proceeded with the construction of the sewersin question, and they aver that the whole work was completed and the surface restored to its former condition in or about the month of August 1877. Now the respondent admits that the works were completed about the time here mentioned, so that we are dealing now with the sewers that have been actually constructed. But the respondent maintains that in saying that these sewers have been constructed under existing streets the complainers are mis-stating the facts of the case, and that in point of fact these streets are not so completed as to be ‘private streets’ within the meaning of the statute. He says, in the first article of his statement of facts—‘The line along which the sewer has been carried coincides to a considerable extent with the line of two projected streets which the respondent has laid down upon his feuing-plan under the names of Bangor Road and Burlington Street. These projected streets lie at about right angles to one another. They are planned so as to run into each other, but they do not lead to any public place. They are not thoroughfares. The march wall between said properties ran across Bangor Road. A part of it has been temporarily removed, but the respondent has full power to rebuild it. The said streets were projected and delineated on the plan of 1862 merely for the use of feus the greater part of which have not yet been taken, and of buildings the greater part of which nave not yet been built. Bangor Road, which is of the length of about 350 yards, has been feued to the extent of about 230 yards. Burlington Street has not been feued or built on at all except to the extent of 65 feet. The frontage of both sides of Burlington Street belongs to the respondent.’”
Under the above quoted 186th section of the Police Improvement Act 1862, the respondent lodged the following claim with the complainers, stating at the same time that he desired that the amount of compensation to be paid to him should be fixed by a jury:—
Claim for compensation for Thomas Field of Hawkhill, Leith, against the Provost, Magistrates, and Council of Leith, as Police Commissioners of Leith.
To compensation for loss, damage, and injury caused or to be caused to my properties of Bowling-Green and Redhall, Leith, in consequence of the execution of drainage works through said properties in virtue of the General Police and Improvement (Scotland) Act 1862, viz.:—
1. For ground taken or to be taken to be permanently occupied by the sewer and other drainage works.
2. Surface, underground, and other damage, loss, and inconvenience caused by and during the execution of the works through my said grounds.
3. For right-of-way for the sewer and other drainage works and operations through my said grounds, including access through said grounds to and use of the same for inspections, repairs, and other operations on the works after execution, and in all time coming.
In all, twelve hundred and fifty pounds sterling.”
The complainers accordingly petitioned the Sheriff of Edinburgh to summon a jury under the Lands Clauses Consolidation Act 1845, but under protest, and immediately thereafter this note of suspension and interdict of the respondent's claim was lodged.
The complainers pleaded, inter alia—“(1) The respondent has no title to claim compensation. (2) The claim served on the complainers not being in its terms relevant or sufficient to entitle the respondent to compensation under the statutes founded on, the trial appointed by the Sheriff ought to be discharged. (3) Bangor Road and Burlington Street being private streets within the meaning of the General Police Act, the complainers were entitled to carry their sewers under the same without purchasing the ground or paying way-leave. (5) The procedure of the Lands Clauses Act being inapplicable save in the case of prejudice to an actual existing legal right by diversion of the sewage, and none such being averred, the proposed trial is incompetent, and ought to be interdicted as craved.”
The respondent pleaded, inter alia—“(1) The grounds of suspension being irrelevant, the suspension ought to be refused. (2) The complainers' statements being unfounded in fact, the suspension ought to be refused. (4) Even if the streets in question were private streets, section 186 of the General Police Act does not cut off the respondent's right to compensation if he has actually sustained injury.
The Lord Ordinary on the Bills ( Adam) granted interim interdict as craved, and thereafter, on a record being made up, the Lord Ordinary ( Young) held that the first and third grounds of claim were irrelevant, but that under the second the respondent was entitled to prove whether he had sustained any damage, and that in the manner prescribed in the Lands Clauses Act of 1845.
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The respondents reclaimed, and argued—The ground in question was not as yet converted into streets, but was still private property; it therefore fell under the latter portions of section 186 of the Act, which plainly entitled the owner of the property to compensation. Farther, even if they were streets, compensation was not excluded if damage could be proved.
Authorities— Campbell v Leith Commissioners, June 21, 1866, and February 28, 1870, 4 M. 853, 8 M. (H. of L.) 31; Forth and Clyde Junction Railway v Crum Ewing, February 24, 1861, 2 M. 684; Falconer v Aberdeen Railway Company, January 29, 1853, 15 D. 352; Fife and Kinross Railway Company, v Deas, July 12, 1859, 21 D. 1205.
Argued for the complainers—The ground in question had now become a street, and therefore no compensation was exigible under section 186 unless there was interference with vaults and cellars, which was not alleged in this claim. If the work had been negligently performed, that might be a ground of claim at common law—not under the statute; no such avernment however was here made. There had been no deviation from the plans which the Sheriff laid down.
Authorities— Leith Police Commissoiners v Campbell, December 31, 1866, 5 M. 247; Lord Advocate v Perth Police Commissioners, December 7, 1869, 8 M. 244; Millar's Trustees v. Leith Police Commissioners, July 19, 1873, 11 M. 932; Pettiward v. The Metropolitan Board of Works, 34 L.J. (C.P.) 301.
The Court before giving judgment made a remit to Mr Blyth, C.E., in order that it might be determined whether the ground in question had become a street, and whether the plans laid down by the Sheriff had been followed. The nature of this report will be found in the opinion of the Lord President.
At advising—
On the face of the claim, it would appear that the sewers to be constructed are to be made through private property, and if that were literally true there would perhaps not be much doubt that the respondent would have a claim for compensation, whether precisely in the form or under the heads specified by him it is needless to inquire, but he would have a claim of some sort. But the complainers submit that in the circumstances the respondent has no claim whatever, and their leading reason for saying so is, that the sewers that have been constructed by them have not been constructed through his “private property” in the proper sense of that term, but have been made under a line of private streets within the burgh of Leith; and they appeal to the 186th section of the Act for the purpose of showing that a person whose property has been converted into private streets has no claim for compensation for sewers constructed under these private streets.
[After stating the averments of parties on record]—Now, in that state of the averments of parties it seemed impossible to extricate the question, whether the respondent could be allowed to any extent to proceed with the claim of which he had given notice to the complainers, and we found it necessary to ascertain some matters of fact before we could decide that question. Accordingly we made a remit to Mr Blyth, civil engineer, to visit and inspect the subjects, and report “(1) whether Burlington Street and Bangor Road, or either of them, are roads, streets, or places within the burgh of Leith used by carts, and either are accessible to the public from a public street, or form a common access to lands or premises separately occupied; and (2) whether the sewers constructed under the surface of Burlington Street and Bangor Road have been constructed in conformity with the plan previously approved of by the Sheriff.” The first of these queries was for the purpose of enabling us to judge whether the sewers had been made in what the statute regards as streets, or in what the complainer calls private property; and the second, to enable us to dispose of the statement made by the respondent, that the sewers had not been properly constructed, and not according to the plan approved of by the Sheriff. We have now Mr Blyth's report before us, and the result of it may be very shortly stated. There is no doubt that to a very considerable extent Bangor Road is in the condition of a street, but there
Page: 104↓
Now, as I read this section, compensation has to be paid in certain specified cases only, viz., in going through underground cellars or vaults under the streets, in carrying the sewers through lands other than streets, and in diverting sewage to the prejudice of somebody who was previously using it. But as regards the construction of sewers under streets, whether public or private, I apprehend that this section gives no compensation whatever to the owner of the adjacent land, or, if he prefers to be called so, the owner of the solum on which these streets are constructed. Now, applying that view of the statute to the present case, it appears to me that it may be a question of some difficulty whether Mr Field, the respondent, is not entitled to claim compensation for carrying the sewers through that portion of Bangor Road and Burlington Street which is not in the condition of a street as yet—the small portion near the centre of Bangor Road, and the smaller portion in the centre of Burlington Street. But as regards the rest of these streets, there can be no claim whatever, because the result of Mr Blyth's report seems to show that to the extent of these portions of the streets that have been formed they are within the meaning of the statute “private streets.”
Now then, to return to the claim, is it possible as that claim stands to try that question, or to enable Mr Field, even if we should be with him on that question, to go to a jury for the purpose of assessing the compensation to which he is entitled for the passage of the sewers through these small portions of the lines of the streets in question? I asked the Dean of Faculty at the conclusion of the argument whether he proposed to alter the claim in any respect, but he declined, and stated that that would have been impracticable. I am not very sure if it would have been very regular to permit such an alteration, because a claim of this kind is presented under the special provisions of the Lands Clauses Act, and it takes its statutory course, and I doubt very much if it could be altered after it has once been served, because it is upon that claim that the petition is presented by the promoters to the Sheriff. It is upon that claim that the Sheriff summons a jury to sit and judge, and I doubt if the statutory machinery could be made applicable to any other
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But whether that be so or not, the only claim before us, unaltered and unrestricted, is this, that the respondent Mr Field shall have compensation for the taking of the land under the streets, which I apprehend the 186th section of the Act does not give him. And in addition to that, of a claim for way-leave under these streets, which likewise that section of the statute does not give him; and again for surface, underground, and other damage, loss, and inconvenience caused by and during the execution of the works. Now, I do not think he can possibly claim under any of these heads. I think the statute has not given him such a claim, and if the statute has given him any claim, upon which I will give no opinion, it must be a claim for the taking of the land under these small portions of the streets that have not yet been formed—a very different claim indeed from the present. It is made, no doubt, under three different heads, each one of which appears to be clearly objectionable under the statute, and for which three heads taken together he claims a slump sum of £1250. I am of opinion that we cannot allow that claim to go to a jury, because it is clearly unauthorised by the statute.
I cannot agree with the course that has been adopted by the Lord Ordinary in endeavouring to spell out of this claim some infinitesimal portion which in the course of the trial might be eliminated by the jury, so as to be free from all the objections belonging to the great bulk of the claim, and made subject to a verdict for which he might obtain a sum for that small, and as it appears to me, undiscoverable portion of his claim; I think that the Lord Ordinary was wrong, and that we must hold that the claim in this action must stand or fall as made. The question is, whether this claim as it stands can go to a jury? and I unhesitatingly say that it cannot. I am therefore for altering the interlocutor of the Lord Ordinary and decerning in favour of the complainers.
The Court pronounced the following interlocutor:—
“Recal the interlocutor reclaimed against: Sustain the reasons of suspension: Suspend the proceedings complaimed of: Declare the interdict formerly granted perpetual, and decern: Find the complainers entitled to expenses, and remit to the Auditor to tax the account thereof and report.
Counsel for Complainers—Lord Advocate ( Watson)— J. G. Smith—Harper. Agent— J. Campbell Irons, S.S.C.
Counsel for Respondent (Reclaimer)— Dean of Faculty (Fraser)— J. C. Smith. Agent— William Paterson, solicitor.