Scottish Court of Session Decisions

The Kelvinside Estate Company were proprietors of a large area of land lying to the west and north-west of the city of Glasgow. For many years previously to 1881 the Kelvinside estate had been treated principally as a mineral property for the working of coal and ironstone. About the end of that year the mineral workings were finally abandoned. Some years previously the trustees of the company had commenced to feu out the lands in lots for the erection of selfcontained houses and villas of a superior class; and streets had been laid out and houses erected to the extent of forming a new residential suburb of considerable size. But the greater part of the lands still remained unfeued. In consequence of the mining operations the surface of the ground became encumbered with large heaps or bings of mineral refuse, consisting of a kind of clayey shale called technically “blaes.” These bings or heaps were of various dimensions. The largest of all contained 102,500 tons of blaes, and the smallest 5100. The combined amount was 263,800 tons, occupying upwards of 9 acres of land. The largest heap was of a maximum height from the ground of 55 feet. The material composing them was for the most part combustible. On 14th December 1881 the smallest heap—that of 5100, situated on the farm of John Semple, an agricultural tenant of the trustees, and known as No. 6 pit—was set fire to, with consent of the trustees, by their mineral tenants, who were under an obligation to remove them at the expiry of their lease.

The present action was raised in the Sheriff Court of Lanarkshire at Glasgow by certain proprietors of houses built on ground feued from the Kelvinside estate, along with some other proprietors in the same neighbourhood who were not feuars of the Kelvinside trustees, to interdict the trustees from continuing to burn or calcine the blaes heap to which they had already set fire, and from again setting fire to it or to any other heap in the lands of Kelvinside.

The pursuers pleaded—“(1) The burning and calcining of the said heap being a nuisance, and injurious to the health and comfort of the pursuers and inhabitants of the neighbourhood, the pursuers are entitled to decree and interdict as craved. (2) The procedure of the defenders being in violation of the rights of the pursuers, both at common law and under their titles,

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decree ought to be granted as craved. (3) The defenders having refused to remove said nuisance or to adopt any means to remedy or abate the same, the pursuers are entitled to decree, both interim and final, as craved.”

The defenders pleaded—“(2) The burning of the blaes heap being a perfectly legitimate exercise of the defenders' rights of property, and not being in any way a nuisance, the defenders are entitled to absolvitor, with expenses. (3) The fire complained of having attained such strength that it cannot now be extinguished except at enormous expense, it must be regarded as a completed act against which interdict cannot be competently granted. Separatim, no sufficient cause having been shown for granting interim interdict, interim interdict should be refused.”

It appeared from the evidence that the material composing these heaps, was entirely useless in its natural state, and could not be removed without great expense. The only way in which it could be utilised was to set fire to it, when what remained after the combustible matter was burned off had a certain commercial value as a roadmaking material. If left as they were and levelled or spread over the ground, the heaps of blaes would be liable to accidental ignition at any time, to the serious danger of the property built over it. The heaps of blaes were situated to the north-west of the pursuers' houses. The heap which was burning at the date of the action was the nearest one to the houses. It was within 185 yards of one of them, 270 yards from another, and 160 yards of the Great Western Road. Another bing of 36,700 tons was 200 yards from the second of these houses, but none of the others were nearer than 300 yards, and the largest 500 yards from any of the houses.

Much scientific evidence of engineers, chemists, and physicians was led on both sides. It appeared from this evidence that though on analysis of specimens it was impossible to predicate from one specimen the precise proportional constituents of another, taken either from the same heap or a different one, the material of all the bings contained the same component parts, and that among these were gas, tar, and crude paraffin, which in the process of combustion would give off a considerable amount of fumes and a very distinct smell. The vapour given off was increased in volume by wet weather. The fumes were heavy, and did not rise like ordinary smoke and became dissipated in the air, but crept along the ground. Mr Clark, one of the City Analysts, and Dr Andrew Fergus, witnesses for the pursuer, deponed to having traced the fumes over a ridge of ground, in a dip of the road, at a distance of 650 yards from the bing, while according to the defender's evidence the fumes were not traceable beyond 50 or 60 yards. The result of the whole evidence was to the effect, that the fumes were such as were disagreeable, and would cause discomfort to the inhabitants of the houses, some of the pursuers' scientific witnesses going the length of saying that if the largest bing were burning the houses would be rendered “uninhabitable,” and the roads “unpassable” in certain directions of the wind. The fumes would prove more or less a nuisance according to the amount of blaes on fire at once, the proximity of the burning masses to the houses, and the direction and strength of the wind. Dr Grant, Professor of Astronomy, deponed from notes of several years' observations, that the least prevalent winds were (with the exception of the south-east) the north and north-west, and that the prevailing wind throughout the year was the south-west. The medical evidence on the point of injuriousness to health did not go beyond the opinion, in the part of the pursuers' witnesses, that the fumes might be dangerous to persons in a delicate state of health.

It appears that once the larger masses were set on fire there was no way either of extinguishing them or regulating the consumption. Were they to be consumed in detail, the time of consumption might extend to ten years, and could not be less than five.

The Sheriff-Substitute ( Spens) found, inter alia, “that the defenders, or persons with their authority, set fire to the heap of blaes at No. 6 Pit on or about 14th December last, said heap consisting of about 5,100 tons: Finds that at the last diet of debate said heap was admittedly still burning: Finds, for the reasons in note subjoined, that it is unnecessary to make any order with reference to said heap of blaes. Quoad ultra: Finds it is avowedly the intention of the defenders to set fire to the other heaps of blaes above specified unless interpelled by legal authority: Finds that petitioners are entitled to interdict as craved against the defenders setting fire to all or any of said heaps of blaes, in respect that a nuisance would be caused thereby: Therefore, so far as not given effect to by the preceding findings, repels the defences, and grants interdict against the defenders burning or calcining said heaps of blaes….

“ Note.—This case has been conducted and debated on both sides as one of great importance. On the one hand, it appears that the pursuers consider that if fire were allowed to be set successively to the heaps of blaes marked on the plan, as at the worked-out pits 8, 7, 5, and 4 respectively, a nuisance would result, and would exist for a period of not less than ten years; while, if the whole of these heaps of blaes were set fire to at once, the nuisance that would emerge would be so bad (although it might last only for a couple of years) as to render every house in the neighbourhood utterly uninhabitable. On the other hand, the defenders say that there is no intention whatever to set fire to the said heaps of blaes at one and the same time; while it is frankly admitted that it is the intention to set them on fire successively unless they are interdicted from so doing: that these heaps of blaes are the residue of the mining operations which have gone on in the district, and that, in the interests of all parties, at the cost of some trifling inconvenience not amounting to a nuisance, it is advisable they should be disposed of, and practically the only way in which they can be disposed of is by burning. It was stated in evidence by one of the witnesses for the defenders, and remains uncontradicted, that the expense of removing these heaps could not be less than 2s. 6d. per ton; and as the four heaps in question amount altogether to close upon 260,000 tons, the expense of removal would come to over £30,000; and this, the defenders say, makes it impracticable for them to remove them. Defenders further say, in their present unburned state the blaes heaps are unmerchantable and unuseable; and except that they might perhaps be used in connection with brick-burning

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(which would be equally bad, if not worse, for the petitioners), the evidence is to the effect stated; whereas, whenever these heaps of blaes are burned, the residue becomes available to be spread on footways and for other purposes; and not only that, but a price is obtainable for it.

A large amount of conflicting evidence has been led on either side respectively with reference to the fumes of the burning heap at No. 6 pit, and to the effect of setting fire to the heaps in question other than the burning heap.

It is not my intention to make a minute analysis of the evidence led on either side. On the one hand petitioners adduced, of what may be called scientific witnesses, Mr Rankine, Civil Engineer, and Drs Clark, Tatlock, Beath, Fergus, and Christie, to prove that a nuisance, and one dangerous to health, would result by the firing of the heaps of blaes in question. On the other hand, defenders adduced Mr Robertson, C. E., Professors Ferguson, Leishman, Mills, and M'Kendrick, and Drs Hay and Craig, to give evidence to a contrary effect, as well as Professor Grant, to speak, however, solely to the prevailing direction of the wind in the locality. Much of the evidence of these witnesses is purely speculative; and, of course, I lay greater stress upon facts positively deponed to than on any amount of speculative evidence. Thus, for instance, when Dr Clark (who is corroborated by Dr Fergus on this point) speaks to tracing the fumes of the burning bing at No. 6 pit a distance of 650 yards, unless I were to believe that he is giving false evidence—which is out of the question—I necessarily arrive at the conclusion that Mr Robertson is certainly wrong when he says that the fumes of the large bing at No. 8 (being twenty times the size of the one at No. 6), if set fire to would not be perceptible at a distance of 400 yards.

I have in this case to deal with five different heaps. One of these heaps is the heap at No. 6 pit as shown in the plan. It was admittedly fired by defenders on 14th December. With regard to it, petitioners crave that the defenders be interdicted from continuing to burn it, and they further crave that the defenders be ordained instantly to extinguish it, and on its being extinguished they crave interdict against its being again set fire to. These cravings proceed alternatively upon an allegation that in setting fire to this heap defenders have violated an express or implied agreement with the petitioner Hislop, who is one of their feuars, and otherwise on the ground that it is at common law a nuisance. This heap consists only of 5100 tons. I use the word “only” because comparatively with the other heaps it is a mere trifle in respect of size and quantity of material. There seems to be no doubt whatever on the evidence that Mr Fleming avowedly set fire to this heap as a test of what the effect of setting fire to the other heaps would be. I have found in the preceding interlocutor that it is unnecessary to make any order with regard to this heap. I made the finding for the following reasons:—(1) I incline to think on the evidence that it would be a matter of very great difficulty, if not of impossibility, to extinguish this heap at the present time. In the second place, it does not appear to admit of dispute that the heap which has now been burning for about four months is very nearly burned out, and as it is very certain, from the statements at the bar, that whatever judgment I gave would be appealed, it seems clear on the evidence that before this case is finally disposed of the heap in question will be wholly burned out. Therefore it appears to me that it is not necessary in this case that I should determine what in these circumstances is merely a speculative question, viz.—Whether defenders were or were not entitled to set fire to this heap of blaes? The question, whether under the contract between the proprietors of Kelvinside and Mr Hislop, apart from the common law question of nuisance, the defenders were barred by express or implied agreement from setting fire to a heap of blaes within 200 yards of Mr Hislop's feu, is a difficult one; and as regards the question of nuisance at common law, I merely propose to use in the present case the evidence as to this matter as bearing upon the only important question, viz.—Whether the setting fire to the other heaps would constitute nuisances at common law? There is no claim of damages in the present action, and there is nothing whatever in the present case to prevent the petitioners, or any of them, instructing damages in another action if they have a valid claim against the defenders.

In connection with the word nuisance, it may be well at once to clear away any possible misconception which might arise from portions of the evidence which have to do with the terms of the Public Health Act of 1867. A nuisance in the sense of the 16th section of the Public Health Act must be something which is ‘injurious to health.’ A good deal of evidence was led on the part of the petitioners to prove that the smoke and emanations arising from burning heaps of blaes of the kind in question would be injurious to health; and on the other hand a considerable amount of rebutting evidence on this point was adduced by defenders. All the medical men examined were specially questioned as to this matter, with the result of bringing out a not uncommon divergence of medical opinion. I intend to say no more on this point here, except that on the evidence I think petitioners have failed to establish that the burning of the heaps in succession would be injurious to health. Therefore, if it were to be held that petitioners were not entitled to their interdict unless their allegation on this head were proved, I would have had no hesitation whatever in deciding against them. But the question of whether a certain thing does does not constitute a nuisance at common law, does not depend necessarily by any means on its being something which is injurious to health. Of course anything may be made illegal or a nuisance as by paction between two parties; but when there is no paction the question is entirely one of circumstances; that which is a nuisance in one particular locality would not be a nuisance in another, and a person who came and sat down in a locality where some work was going on which he would have been entitled to interdict had it been set up after his arrival, would be held to have no good title to insist on its removal when he himself had come to the alleged nuisance. Then, again, that which might be held to amount to nuisance in what is known as a residential locality, might be held in a manufacturing locality to be no nuisance. Generally speaking, however, a nuisance may be defined to be anything noxious or offensive or

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dangerous to life or health, or rendering the neighbourhood uncomfortable. This general proposition appears to me to be so well fixed as to render it unnecessary to quote authority with reference to it

In conclusion, it seems to me tolerably clear that if the defenders were allowed successively to fire the heaps of blaes I have been dealing with, it could not safely be predicted that the fires would be extinguished within a period of ten years. I cannot doubt that the result of this would be to some extent to diminish the present value of houses in the vicinity. As the feus in Montgomerie Crescent were given off by defenders as feus for residential purposes, I am of opinion that defenders cannot be allowed to proceed with the operation contemplated, which would, I think, have the effect of diminishing not only their residential value but also their actual present pecuniary value. But the defenders say their bings are interfering with the feuing operations contemplated in the neighbourhood, they must be got quit of somehow, and the only practicable method of disposal is to burn them. It seems to me that if the preceding observations as to the firing of these bings constituting a nuisance to the feuars on the Kelvinside estate are well founded, this is no valid argument. The answer simply is—‘It is no matter to us how you dispose of these heaps, or whether you dispose of them at all; but you are not entitled to cause a nuisance to us because you propose to feu more ground.’”

The defenders appealed to the Sheriff, who recalled the Sheriff-Substitute's interlocutor, found that no case had as yet been made out for the intervention of the Court, and therefore refused the interdict and dismissed the petition for reasons thus summarised in his note:—

1. The operations sought to be interdicted are those usual in the circumstances, and must therefore be held to have been in contemplation of all concerned from the beginning.

2. If these operations were to be interdicted the heaps in question would remain to encumber the ground, to disfigure the locality, and to become a probable source of danger in the future.

3. In so far as at present appears on the proof, these operations, if properly conducted, will not be attended with any injury to health, or with any serious inconvenience or discomfort—certainly not with more than the pursuers are bound to submit to for the common benefit, including their own.

4. It is highly improbable that the defenders will conduct their operations in such a manner as to be injurious to the pursuers or others in the locality, because to do so would be to defeat their own interests. None can have a greater interest in maintaining the salubrity and amenity of the district than the defenders.

5. No case has as yet been made out for the interference of the Court; but if in the course of the contemplated operations the defenders are found to be exceeding their powers, and causing injury to the neighbourhood, the remedies of interdict or damages, or both combined, will always be available.”

The pursuers appealed to the Court of Session, and argued—The burning of these heaps was a nuisance, and this could not be met by the plea that the pursuers came to the nuisance, for they did so at the invitation of the defenders, and when they took their feus they had no notice that the bings were to be set on fire. When they came to them they were innocuous, and had been rendered noxious by ignition since. The pursuers could not be held to have looked forward to their removal by burning, which was a mode of cheaply making the blaes into a marketable commodity for the defenders' profit. Besides, the old dictum about coming to the nuisance barring the right to complain was now exploded, and it was not now enough for the creator of the nuisance to show merely that the complainer came to him after he had begun to commit it; he must show a prescriptive title to do so—Rankine on Land Ownership, p. 305–7; Ker on Injunctions, p. 208; Bliss v. Hall, 4 Bingham (New Cases) 183; Tipping v. St Helens Smelting Company, L.R., 1 Chan. 66, 11 Clark (H. of L.) 642; Crump v. Lambert, L.R., 3 Eq. 409; Carey v. Leadbitter, 13 C.B. (N.S.) 470. Nuisance was always a question of circumstances. It is not necessary to show that it is directly injurious to health; it is enough to them to show substantial discomfort. They could be removed without burning, and it was no answer to say that burning was the cheapest way, and that any other would cause great expense. The question of expense was the defenders' business.

The defender replied—There was no nuisance here, only a little personal discomfort, and that only on the few occasions when the wind was in a certain quarter. The pursuers had failed to show that the fumes were injurious to health, and till they could show actual injury to health or property they were not entitled to interfere with a lawful and profitable operation of trade. But even assuming there was a nuisance, the pursuers having come to it were precluded from complaining. Though this doctrine has lately suffered some modification in England it has never been overruled in Scotland, and is applicable to the circumstances of this case, for when the defenders took their feus they must have anticipated the removal of the blae by burning, since that was the mode everywhere adopted— Tipping, supra cit.; Rankine on Land Ownership, p. 315; Dewar v. Fraser, M. 12,803; Bell's Prin. 974–8.

At advising—