Scottish Court of Session Decisions

In this case the pursuer, who was proprietor of a portion of the lands of Wester Daldowie or Boghall, on the south side of the turnpike road leading from Glasgow to Hamilton, raised an action against Mrs Agnes Scott, who was the proprietrix of portions of these lands on the north and south sides of the same turnpike road, to interdict her from discharging or transmitting, or causing to be discharged or transmitted, the sewage from any houses erected or to be erected on any part of the lands of Wester Daldowie or Boghall belonging to her into or through any drain situated wholly or partly on any part of the estates of his lands.

It appeared that the defender had feued certain portions of her lands on the north side of the turnpike road, and contemplated also feuing her lands on the south side thereof. Several houses had been erected on the north side, and the feu-contracts contained a system of drainage to carry a drain across the turnpike road into a field belonging to her, and thence to carry it along the north and west ends of this field and to discharge the sewage into a drain running along the north side of a field belonging to the pursuer, and thereafter into a ditch on his lands.

The pursuer pleaded—“(1) The defender is not entitled, without the pursuer's consent, to use any drains, situated wholly or partly on pursuer's property, for the purpose of transmitting and discharging the said sewage, and interdict should therefore be granted as craved, with expenses. (2) As the said intended transmission and discharge of said sewage will create a nuisance on pursuer's property, and be injurious and damaging thereto, he is entitled to interdict as craved, with expenses.”

The defender, on the other hand, pleaded—“(1) The pursuer is not the proprietor of any part of the land through which said ditch passes. (2) Said ditch, which is the natural receptacle and vehicle of the defender's sewage, has from time immemorial being used by the pursuer and others as a common sewer. (3) Any sewage from the defender's lands would not appreciably affect the ditch or change its character; and (4) No nuisance would be created by the sewage from the defender's lands.”

The Sheriff-Substitute ( Mair) found “(1) That the pursuer is proprietor of a portion of the lands of Wester Daldowie or Boghall, situated on the south side of the turnpike road leading from Glasgow to Hamilton, and that the defender is proprietrix of a portion of these lands on the north and south sides of the said road: (2) That at the the date of the present action the defender was in course of constructing a drain from her lands for the purpose of transmitting sewage from the houses erected and to be erected thereon, and contemplated that the sewage should be transmitted and discharged into a drain or ditch running along the north side of a field belonging to the pursuer, and thereafter into a drain or ditch on the pursuer's lands: (3) That since the present action was raised the defender has completed her drain, whereby the sewage from the houses erected on her lands is now discharged into the drain running along the north side of the said field, and thence into the ditch or drain on the pursuer's lands. (4) That previous to the said sewage matter being led into the said last-mentioned drains the water therein was suitable and had been used for domestic purposes, and for the use of cattle drinking; but that since the transmission of the said sewage the water has

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become so polluted as to render it unfit for domestic purposes or for cattle, and is a nuisance: (5) That the defender is not entitled to discharge, or cause to be discharged, into the said drains on the pursuer's lands the sewage from the houses erected or to be erected on her property: Therefore declares the interim interdict formerly granted perpetual against the defender discharging or transmitting, or causing to be discharged or transmitted, into the drains on the pursuer's lands the sewage from any houses erected or to be erected by her on her lands of Wester Daldowie or Boghall: Finds the defender liable in expenses.”

The following note was appended to his interlocutor:—“The question arises whether the defender is entitled to discharge the sewage from the houses erected or to be erected on her lands into or through any drain wholly or partly on the pursuer's lands? I have no difficulty in answering this question in the negative, and in doing so I may state at once that I can see no distinction in principle between this case and the cases of Montgomerie and Fleming v. Findlay, July 9, 1853, 15 D. 853; and The Caledonian Railway Company v. Baird, June 14, 1876, 3 R. 839. The rubric of the first of these cases is as follows:—‘A proprietor erected upon his lands dwelling-houses, into which he introduced water by pipes from a water company's works, and by means of drains conveyed the sewage water into a streamlet which passed through a subjacent property. Held that whatever right the proprietor might have to lead into the streamlet the ordinary surface water arising from his lands, he had no right to discharge therein sewage water, and interdict granted against his discharging or permitting to be discharged such sewage or waste water upon the lands of the subjacent proprietor.’

“It is not and cannot be disputed in the present case that the sewage from the houses erected and to be erected on the defender's lands will be discharged into drains wholly or partly on the pursuer's lands, but it was attempted to be proved by the defender that these drains were in themselves common sewers, and that the pursuer would not suffer in any way by the sewage from her lands being discharged into them; and it was contended for her that she was so entitled to discharge the sewage, she being in the position of an upper and the defender being in the position of a lower heritor. So far as the drain for the transmission of the sewage is on the defender's own property, the pursuer of course has no objection to it. But it is to be kept in view that it was only by means of a deep artificial cutting on the north side of the field belonging to the defender, situated on the south of the turnpike road, that a channel or drain could be made for the transmission of the sewage towards the pursuer's lands.

The natural fall from the houses already erected on the defender's lands was in a different direction, namely, towards Broomhouse, and in this direction it was originally intended it should go. I am not satisfied, therefore, that the pursuer is in the position of a lower heritor to the defender, at least as far as the houses already erected on the defender's lands are concerned. If the pursuer is not in that position, the defender has no rights whatever affecting the pursuer's lands.

But even assuming that the pursuer is in the position of a lower heritor to the defender, he is only bound to receive the surface water from the lands of the latter; if, however, it had been proved that the drains, wholly or partly on the pursuer's lands, were in fact common sewers, he would probably not have been entitled to complain of the defender making use of them in the same way. So far, however, from that being proved, I am of opinion that the contrary has been established. The only evidence led by the defender was that the water in the drains on the pursuer's lands was occasionally polluted in consequence of soap suds and dirty water having been sent into them from some miners’ houses and the Boghall farm-house, all situated on the north side of the turnpike road. No water-closet sewage, however, was discharged into them. The evidence for the pursuer, on the other hand, shows clearly that the water in these drains or ditches on his lands was used by man and beast for drinking purposes till a period within the last ten years. Even although the water in these ditches or drains was occasionally dirty or polluted, the defender was not entitled to make it worse, and there can be no doubt that the discharge of sewage from inhabited houses would have this effect. That the water in these ditches or drains is now unfit for primary purposes, and is a nuisance in consequence of the defender's operations, has in my opinion been established.”

The defender reclaimed, and argued that the cases relied on by the pursuer, viz., Montgomerie and Fleming v. Findlay, July 9, 1853, 15 D. 853; and The Caledonian Railway Company v. Baird, June 14, 1876, 3 R. 839, did not apply here, because to take advantage of them the pursuer must show what he cannot show here—(1) that primary uses having a substantial value had been destroyed by the defender's operations; and (2) that the water had been from time immemorial dedicated to primary purposes.

The pursuer in addition to these cases quoted the cases of Rigby and Beardmore v. Downie, March 8, 1872, 10 Macph. 568, and Coldsmid v. The Tunbridge Wells Improvement Commissioners, Feb. 24, 1866, L.R. 1 Ch. App. Cases, 349.