Scottish Court of Session Decisions

This was a petition presented to the Sheriff of Dumfries and Galloway by the Local Authority of Dumfries, acting under the Public Health (Scotland) Act 1867, against Hugh Murphy, tanner, Dumfries, the prayer of which was “to decern for the removal, or remedy, or discontinuance of the nuisance hereinafter condescended on, and to grant interdict against the recurrence of it, all in terms of the Public Health (Scotland) Act 1867, and particularly sections 16, 18, 19, and 105 thereof.”

By section 16, sub-section H, of the Public Health (Scotland) Act 1867, the word “nuisance” under said Act is declared to include, inter alia, “any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible matter used in such fireplace or furnace, and is used within any burgh for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gaswork, or in any manufactory or trade process whatsoever.”

The petitioners averred that the respondent carried on a currying and tanning business in Shakespeare Street, Dumfries, and that within these premises on or about 17th, 18th, 19th, 20th, 24th, 25th, 26th and 27th July 1883 he “used, and still uses, a fireplace or furnace which did, and. does not, as far as practicable, consume the smoke arising from the combustible matter used therein for working one or more engines by steam in said premises, or in the manufacture of leather or other trade process carried on by him therein, whereby a nuisance within the meaning of said section 16, sub-section H, existed, and still exists.”

They further averred “that the said nuisance is caused by the burning in said fireplace or furnace of refuse bark or other similar material, instead of having the same removed to a suitable place, and to save the expense of such removal.”

Section 17 of the Public Health (Scotland) Act 1867 provides that “If the local authority or sanitary inspector have reasonable grounds for believing that nuisance exists in any premises, such local authority or inspector may demand admission for themselves …. or any other person or persons whom the local authority may desire to inspect such premises, or for any or all

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of them, to inspect the same … at any hour when the operations suspected to cause the nuisance are in progress or are usually carried on.”

A proof was taken before the Sheriff-Substitute, the import of which was as follows:—The smoke of three furnaces used in connection with the respondent's trade was carried away by one chimney stalk, and on the nights of the 18th, 19th, 20th 24th, 25th and 26th of July, 15th, 30th and 31st of August, and 13th October 1883, dense volume, of black smoke issued from this chimney. It was proved that the furnaces were well constructed for consuming the smoke, and not proved that the burning of bark was the cause of the discharge of smoke. There was no evidence that the system of working the furnace was bad.

The Sheriff-Substitute ( Hope) on 7th December 1883 pronounced an interlocutor finding in law that on the occasions in July above mentioned there existed a nuisance within the meaning of the Act: “Therefore repels the defences, ordains the respondent forthwith to discontinue said nuisance, grants interdict against its continuance in terms of the prayer of the petition, and decerns,” &c.

On appeal the Sheriff ( Macpherson) adhered, except in so far as interdict was granted, and gave the respondent an opportunity of stating by minute what steps he proposed for the abatement of the nuisance.

In a note to this interlocutor his Lordship expressed his opinion that the nuisance found to exist arose from no defect in the respondent's furnaces, and that if they were properly stoked and attended to none would be caused, but that in point of fact the furnaces were not used so as to consume their own smoke.

The respondent stated that he had no proposal to make for the alteration of the furnace, and submitted that the only nuisance alleged was the furnace itself. Thereafter the Sheriff granted interdict in terms of the prayer of the petition, and ordained the respondent forthwith to discontinue the nuisance.

The respondent then appealed, under sec. 107 of the statute, to the Lord Ordinary on the Bills ( Kinnear), who on 29th January 1884 sustained the appeal, recalled the deliverance of the Sheriff, and dismissed the petition.

“ Opinion.—This petition is presented under section 16, sub-section H, of the Public Health Act 1867, by which it is enacted that the word ‘nuisance’ under the Act shall include …any fire-place or furnace which does not, as far as practicable, consume the smoke arising from the combustible matter used in such fire-place or furnace, and is used within any burgh for working engines by steam, or in any mill, factory, dye-house, brewery, bakehouse, or gas-work, or in any manufactory or trade process whatsoever.'

The averment upon which the petition is supported, and which is undoubtedly relevant, is (art. 4) that the ‘defender, within the said premises, on or about 18th, 19th, and 20th days of July 1883, used and still uses a fire-place or furnace which did and does not as far as practicable consume the smoke arising from the combustible matter used therein for working one or more engines by steam in said premises, or in the manufacture of leather or other trade process, carried on by him therein, whereby a nuisance within the meaning of said section 16, subsection H, existed and still exists.’

It is further averred that at ‘certain times large quantities of dense smoke proceed from the chimney-stalk connected with the fire-place or furnace, from which there proceeds an offensive smell,’ and that this occurred on the dates already mentioned. But this is not brought forward as the nuisance of which the Local Authority complain, the discharge of smoke from a chimney not being in itself a nuisance under the Act, unless it be injurious to health, but is stated, I understand, as the effect of the nuisance relevantly alleged in the fourth article of the statement.

The Sheriff-Substitute allowed a proof; and by his interlocutor of 7th December he finds, inter alia—‘3. That on various occasions during the summer and autumn of this year, and more particularly on the 13th, 14th, 18th, 19th, and 20th of July and the 13th of October, there issued from the chimney-stalk of respondent's works volumes of smoke which overhung the neighbourhood, and penetrated the houses, and caused an offensive smell; 4. That the chimney-stalk in question carries away the smoke from two furnaces used in connection with the respondent's said trade; 5. That said furnaces, or one or other of them, did not on said occasions, as far as practicable, consume the smoke arising from the combustible matter used therein; and thereupon he finds in law that on the occasions before-mentioned there existed a nuisance within the meaning of the said Act, and therefore ‘ordains the respondent forthwith to discontinue said nuisance’ and ‘grants interdict against its continuance, in terms of the prayer of the petitioner.’

The Sheriff upon appeal adhered to this interlocutor, except in so far as it granted interdict, thinking it proper to give the respondent an opportunity of stating what steps, if any, he proposed to take for the abatement of the nuisance; but ultimately, by his interlocutor of 7th January, he repeated the judgment of the Sheriff-Substitute, and granted interdict in the terms already quoted.

The judgment is, in my opinion, open to objection, inasmuch as it does not define the nuisance against which it is directed. I assent to the observation of the respondent's counsel that no objection can be taken to the generality of the prayer, both for the reasons he urged and also because the Sheriff is not restricted to any special remedy which may be prayed for in the petition, but may pronounce such competent order as the case may in his judgment require. But this does not dispense the Court, if it grants interdict, from defining the acts or operations which it prohibits with sufficient clearness to leave no room for reasonable doubt in the mind of the party as to what it is that he is forbidden to do under the penalties applicable to a breach of interdict. Now, the judgment appealed against interdicts the ‘said nuisanee in terms of the prayer of the petition.’ But it does not define the nuisance; and the natural construction of it therefore is that it interdicts in terms of the prayer the continuance of the nuisance complained of in the petition. But the only nuisance complained of is the use of a certain fire-place or furnace which does not, so far as practicable, consume the smoke arising from combustible matter, and an interdict against the continuance of the nuisance so described

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would appear to me to be an interdict against the use of the furnace. But I do not think this is what the learned Sheriffs intended. For they appear to be satisfied by the evidence that there is no defect in the construction of the furnace, but, on the contrary, that it is well adapted for the consumption, so far as practicable, of the smoke which it generates, and the Sheriff-Substitute points out that, in his view, the judgment will not involve the appellant in the expense of any structural alteration.

I concur with the Sheriffs in the view taken by them of the facts, and I am therefore of opinion that if the interdict means what from its terms it would appear to mean it is not warranted by the evidence. On the other hand, if without interfering with the use of the furnace, it is intended to interdict the discharge of smoke from the appellant's chimney, that would in my opinion be an interdict which is not authorised by the statute, for the discharge of smoke from a chimney is not in itself a nuisance under the Act, unless (under sub-section 1) it is injurious to health, which is not alleged by the Local Authority. If, again, it was intended that the discharge of smoke should be prohibited not absolutely, but under certain conditions, I think it was indispensable to express these conditions distinctly, not only because the party against whom an interdict is directed should never be left in doubt as to the act or operations which will constitute a breach of interdict, but because otherwise it cannot be clear that the remedy which has been granted is within the statute.

It appears to me, therefore, that the decree cannot stand. But farther, I am of opinion that the enactment founded on, as applied to the facts of the case, does not warrant an interdict. I cannot agree with the learned Sheriffs in their construction of sub-section H. It appears to me that what constitutes the nuisance defined in sub-section H is a quality or defect in a furnace, and not the occasional negligence of a workman. I think this is the natural construction of the words, and it is borne out by the special provisions of section 20 for the remedy of this particular kind of nuisance. It may be possible, as was suggested by the respondent's counsel, that a furnace originally well constructed for consuming smoke may be rendered useless for that purpose in consequence of some defect in the system of working adopted by the manufacturer; and it may be, as he maintained, that such a case would be within the scope of the enactment, because the furnace when in operation would not, in a reasonable sense of the words, be a furnace that consumed its own smoke. But nothing of the kind is proved in the present case. It is proved that the furnaces in themselves are perfectly well fitted for consuming their smoke; it is not suggested that they could be improved, and there is no evidence that the method of working adopted or authorised by the appellant is in any way objectionable. Accordingly the Sheriff does not find that these furnaces are ineffectual to consume their smoke, or that, in general, they fail to do so; but that, on certain specified occasions in July, and on one occasion in October, the appellant's chimney sent forth volumes of smoke. That is certainly very strong evidence that on these occasions the furnaces were not fairly or properly worked. Various suggestions have been made to account for these occasional discharges of smoke, but I agree with the Sheriffs in thinking that they may very probably be ascribed to the negligence of a workman in the appellant's employment. And if that be so, I am of opinion that the furnaces being properly constructed, and the method of using them adopted by the appellant being perfectly proper and such as to take due advantage of their construction, the occasional carelessness of a workman stoking does not constitute an offence under sub-section H. Nor does it appear to me that this construction is open to the objection which has been urged—that it renders the enactment nugatory. It must be remembered that section 16 of the Public Health Act does not profess to embody the whole law of nuisance. It defines certain specific nuisances, and sub-section H in particular creates a statutory nuisance for which the Act provides summary and very stringent remedies. To bring sub-section H into operation it is not necessary to prove anything approaching to nuisance at common law; for the mere use within a burgh of a furnace of the kind described, is a nuisance under the Act, even although it cannot be shown to produce what would be a nuisance at common law or under sub-section I. And any infringement or failure to comply with a decree of the Sheriff for the removal or remedy of such a nuisance is an offence which may be punished by severe penalties. The purpose of the enactment, therefore, is to secure that no furnaces shall be used in manufactories within a burgh excepting such as are properly constructed for consuming their own smoke; and that is a purpose which may be very effectually secured, even if the Act does not provide any new remedy against the occasional negligence of workmen. It appears to me that for such negligence an interdict against the manufacturer would be a very inappropriate and unworkable remedy. A manufacturer may be responsible in other ways for the negligence of his servants;but I can see no ground in principle, and no authority under the statute, for directing an interdict against the master in order to prohibit the recurrence of a negligence, or, it may be, of direct disobedience to his orders, on the part of his servants.

The respondent's counsel referred to the Smoke Nuisance Acts of 1857 and 1865. There can be no question that the negligent use of a furnace is an offence under these statutes, and if an offence under these statutes has been committed the respondent may have his remedy against the actual offender, whether it be the owner or occupier of the premises or a ‘foreman, or other person employed by him in connection with the furnaces.’ But I think he has failed to establish his case under the enactment upon which he founds, and that the appeal must therefore be sustained.”

The respondents reclaimed, and argued—Under sub-section H a nuisance might be created either by a furnace of bad construction or by systematic negligence in working it. The latter cause was here to be inferred from the fact that quantities of smoke issued from this chimney, and the respondents' inability to assign any other reason. It was not necessary for the Local Authority to show what substance caused the nuisance. The respondents might be interdicted from working the furnaces in such a way as

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to create a nuisance— Fraser's Trustees v. Cran, June 1, 1877, 4 R. 794, December 1, 1877, 5 R. 290.

The respondent (appellant) replied—It was admitted that the furnaces were well constructed, and if the cause of the nuisance was negligence, then the complaint could not be brought under this subsection, but should have been brought under subsections E or I, or under the Smoke Nuisance Acts of 1857 and 1865. The particular nuisance averred had not been proved.

At advising—