Scottish Court of Session Decisions

In December 1885 a petition was presented in the Dean of Guild Court, Edinburgh, by James Forrest, heritable proprietor of a house, stable, and other property at No. 11 Jordan Lane, Morningside, Edinburgh, praying for authority to make certain alterations and erections on his property. The alterations proposed consisted, inter alia, of the erection of a byre and outhouses for the accommodation of twelve cows. The ground upon which the erections were to be made extended to about a quarter of an acre. Plans were lodged showing the character and design of the proposed buildings. The petition was served upon the conterminous proprietors, who lodged answers and objected to the proposed erections on the following grounds:—(1) That the locality was unsuited for carrying on the business of cow-keeping without destroying the amenity of the neighbourhood; (2) that byres and cow-keeping within burgh were nuisances within the meaning of the Public Health (Scotland) Act 1867; and (3) that the construction of the proposed byres and the carrying on of the trade of cowkeeping would be, as nuisances, a contravention of the feu-charter of the lands on which it was proposed to erect the buildings. The petitioner had, previous to 1885, a licence from the Magistrates to keep six cows. In August 1885 he applied for a licence for twelve cows, which was refused.

By interlocutor of 11th February 1886 the Dean of Guild found, inter alia, that by keeping cows the petitioner had caused a nuisance to the residents in the villas in the neighbourhood; that the proposed buildings would continue the nuisance; and that the petitioner's house and garden were held by him under a real burden which prohibited the erection on the ground of any house for the carrying on of any trade or manufacture which might operate as a nuisance to the neighbourhood; and he therefore refused the petition.

The petitioner appealed to the First Division of the Court of Session. After hearing counsel, the Court, on the motion of the respondents, sisted process to enable them to bring an action of interdict in the Sheriff Court upon the ground of nuisance.

An action of interdict was accordingly brought, in which the petitioners (the respondents in the preceding action) prayed the Court “to interdict, prohibit, and discharge the defender from erecting, or allowing to be erected, on any part of the ground belonging to and occupied by him, at No. 11 Jordan Lane, Edinburgh, any house or houses, or other buildings or erections, for the purpose of carrying on the trade or business of a cow-feeder or cowkeeper on said ground, and in particular, from making the following or similar alterations and erections on the house, stable, and property belonging to and occupied by him there, viz., taking down and removing present byre and erecting new byre of brick and wood in its stead, to accommodate twelve cows.” The petitioners averred that Jordan Lane, where the proposed byre was to be erected, was a cul-de-sac, and contained a number of houses and villas; that the keeping of a number of cows, with the necessary removal of manure, would be a nuisance; that the preparing of hot food for the cows would cause an unpleasant odour, while the continuous driving of the cattle to and from the pasture would destroy the amenity of the district; that the nuisance was one which was injurious to health; and that the erection of the proposed byre was in contravention of the Public Health (Scotland) Act 1867, which declared the following among others to be a nuisance:—“Section 16, sub-section ( c)—Any stable, byre, pigstye, or other building in which any animal or animals are kept in such a manner as to be injurious to health. Sub-section ( d)—Any accumulation or deposit of manure or offensive matter within fifty yards of any dwelling-house within the limits of any burgh, or wherever situated, if injurious to health. Sub-section ( e)—Any work, manufactory, trade, or business injurious to the health of the neighbourhood, or so conducted as to be offensive or injurious to health.” They further averred that the feu-charter of the lands of Canaan, of which Jordan Lane formed part, contained the following condition, which was declared to be a real burden, and was binding on the respondent “not to erect or allow to be erected, on any part of the ground thereby feued, any house or houses for the carrying on anytrade or manufacture which

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may operate as a nuisance to the neighbouring feuars.”

The respondent averred that in the proposed new buildings every precaution would be adopted to secure that the sanitary arrangements were as perfect as possible; that the cattle previously kept had only passed along Jordan Lane twice in the year, once in the spring when going out to pasture, and once in winter when returning to the byres, and that in the event of the proposed new buildings being erected and occupied they would only be so occupied during the winter and a portion of the spring; that the Cattle Sheds Act 1866 (29 Vict. cap. 17) gave the magistrates ample powers to enforce the keeping in good order of all byres within burgh, and that the interests of the pursuers were thus sufficiently protected. Section 3 of the said Act provides “that the magistrates of royal burghs, and also of parliamentary burghs in Scotland, shall have power to require, and shall require, all cattle-sheds and cowhouses and byres within their burghs to be inspected by an officer appointed by them, and if found to be suitable for such purpose, to be licensed by them for the period of one year; and the magistrates shall likewise have power from time to time to make rules and regulations for the proper sanitary condition of the same, and to fix and determine in each licence the number of cattle which may be kept in each such cattle-shed, or cowhouse, or byre; and if any person shall keep any cattle within any burgh without such inspection and licence, or shall violate any of the conditions of such licence, or any of the rules and regulations made by the magistrates, he shall, on conviction before any two of them, be subject to a penalty not exceeding £5 for each such offence, and a like penalty for every day after the conviction for such offence upon which such offence is continued.”

The respondent also averred that in pronouncing the said interlocutor the Dean of Guild did so without warrant or authority, and under an erroneous conception of his jurisdiction.

The pursuers pleaded, inter alia—“(1) The subjects belonging to the defender being unsuitable for keeping cows, or for the erection of byres for that purpose, and the situation being unsuitable for carrying on the business of cow-keeping, without destroying the amenity of the district, creating a nuisance, and injuriously affecting the health of the neighbourhood, the pursuers are entitled to interdict as craved. (3) The construction of the proposed byres, and the carrying on of the said trade or business, will be, as nuisances, contraventions of the feu-right of the ground on which it is proposed to erect the byre, and the pursuers are entitled to object to the same.”

The defender pleaded, inter alia—“(2) … The action is premature. (4) The action ought to be dismissed, in respect (1) that the erection of the said proposed buildings is within the defender's rights of property; and (2) that they can be used and enjoyed by the defender without creating a nuisance.”

The Sheriff-Substitute allowed a proof, the import of which is as follows:—

It was proved that the respondent had been twice convicted of nuisance in connection with the place, in consequence of the cows he had previously kept on the premises. There was also medical evidence as to the probability of nuisance in the future.

Dr Thomas Rutherford Ronaldson, deponed—“(Q) Do you think that the erection of a byre in that garden ground which you saw, and the keeping of cows, including the supplying them with food, the taking away of their manure, and so on, would be a nuisance?—(A) I do, most distinctly. In my opinion such a state of matters would certainly destroy the amenity of the place. The manure from ten or twelve cows would accumulate very fast.… By the preparation of food for the cows, such as boiling turnips and the keeping of straw, a bad smell is generated—what is called a ‘byre smell,’ which is certainly offensive.”

Dr Littlejohn, Medical Officer of Health for the City of Edinburgh, deponed—“I don't think the ground in question is a proper place on which to erect such a byre. I am certain such an erection would become a nuisance. There would be a bad odour generated from the cows themselves, and also from keeping turnips and straw, and preparing the cows' food. That would be prejudicial to the amenity of the district.”

Dr James Alexander Russell, who visited the premises along with Dr Littlejohn, deponed—“I do not think it would be a proper thing to erect such premises. I think they would constitute a nuisance. The keeping of straw and turnips, and the boiling of the food for the animals, will always generate a bad smell. The accumulation of manure from twelve cows will be very considerable.… Cross-examined—(Q) Assuming that the manure from the cows was removed every day, or twice a day, would it be injurious to health?—(A) Not very appreciably, I think, if removed twice a day, and taken away altogether from the place, but it is difficult to say exactly how far it might be injurious to health.”

John Cooper, Burgh Engineer, deponed—“I don't think the place proposed is a proper one on which to erect a byre. I think it would deteriorate the value of the property on each side. It is my opinion that a nuisance would be constituted by the keeping of straw and turnips for the animals, the preparation of their food, and the removal of the manure.”

William Hamilton Beattie also deponed—“I think the byre would be a nuisance, both to the proprietors in Nile Grove and to certain conterminous properties in Jordan Lane. Then there is the driving of the cows along Jordan Lane, the conveyance of straw, hay, and turnips, and the continual passing of milk-carts, which will certainly not be convenient things for the neighbouring properties.”

For the defence, evidence was led as to the nature of the proposed new buildings. The byre was to be built of brick, and cemented to the height of 7 feet inside; the floors and water-channels were to be of concrete, and the troughs of fireclay. The space per cubic foot was to be in excess of what was required by the Local Authority.

The defender deponed—“I have no intention of taking the cows along Jordan Lane every day. I would only take them that way twice a-year. My cows are put into the byre in the autumn, and they are not taken out again till spring. Cross-examined—I propose to remove the manure once a-day, except Sunday.”

Dr Stevenson Macadam, City Analyst, examined for the defender, deponed—“Taking into

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consideration the nature of the proposed buildings and the situation, I think it is a suitable place for keeping cows.… I believe it would not be a nuisance to keep cows there. Cross-examined—(Q) You would not choose a residence yourself next door to a byre?—(A) Not if I could help it.”

Professor Walley, Principal of the Royal Veterinary College, Edinburgh, deponed—“(Q) You don't think that twelve cows being kept there would be a nuisance if they were properly attended to?—(A) Certainly not, in the proper acceptation of the word nuisance, if the manure was to be removed frequently. Cross-examined—There is always a little smell connected with the conducting of a byre, but if the place is properly attended to, the smell is not harmful.”

Professor Williams, Principal of the Veterinary College, Leith Walk, deponed—“I think the place is a very good one for such a byre. I don't think there is any chance of a nuisance being created by the keeping of twelve cows there, if the byre is properly constructed and well kept.”

William Scoular, Inspector of Markets and Byres, deponed—“Assuming that the byre was well conducted, and the manure regularly removed, it would not creat a nuisance in my opinion.”

The Sheriff-Substitute ( Hamilton) pronounced this interlocutor on 25th November 1886:—“Binds that the business of cow-keeping which the defender proposes to carry on at his property in Jordan Lane cannot be conducted without being a nuisance to the neighbouring feuars: Finds, therefore, that said business falls within the prohibition in the defender's titles, which is quoted on record: Repels the defences: Interdicts, prohibits, and discharges the defender from erecting, or allowing to be erected, on any part of the ground belonging to and occupied by him at No. 11 Jordan Lane, Edinburgh, any house or houses or other buildings or erections for the purpose of carrying on the trade or business of cowfeeder or cowkeeper in said ground, and decerns: Finds the pursuers entitled to expenses, &c.

“ Note.—… Upon the question of fact raised, which is the material question in the case, the Sheriff-Substitute is of opinion that the weight of evidence is very much in favour of the pursuers' contention that the business which the defender proposes to carry on would, however well-conducted, be a nuisance, and injurious to the health of the neighbouring feuars.”

The defender appealed to the Sheriff, who by interlocutor of 31st December 1886 dismissed the appeal.

“ Note.—… The pursuers and defender hold the subjects respectively belonging to them under titles which contain an obligation not to erect on the ground belonging to them ‘any house or houses for the carrying on any trade or manufacture which may operate as a nuisance to the neighbouring feuars.’ It appears to the Sheriff that the question to be decided in this case is, Has it been proved that the business of cowkeeping which the defender proposes to carry on in Jordan Lane could not be conducted without being a nuisance to the neighbouring feuars? The Sheriff is of opinion that this has been proved. In the first place, there is evidence as to the way in which the defender conducted his business while he had only a licence for six cows; and that evidence shows that the byre was not well kept, and that the defender had been twice convicted of nuisance in connection with the place. In the second place, there is evidence to show that the business of cowkeeping, no matter how well conducted, would, in the locality in question, be a nuisance to the neighbouring feuars. No doubt there is a good deal of conflicting testimony on this point, but the Sheriff concurs with the Sheriff-Substitute in thinking that the weight of the evidence is in favour of the pursuers. Dr Stevenson Macadam, who is the leading witness for the defender, when asked if he himself would choose a residence next door to a byre, says, ‘Not if I could help it;’ and Professor Walley, another witness for the defender, has to admit, on cross-examination, ‘that there is always a little smell connected with the conducting of a byre.’

“In the circumstances, the Sheriff thinks that the pursuers are entitled to the interdict which has been granted.”

The defender appealed to the Court of Session, and argued—The present action of interdict was premature; the defender should be allowed to erect the byre he proposed, and if it was found that he did not carry on his business in a proper manner he could be stopped by interdict at any time. The petitioner's witnesses all spoke at the proof of the state of matters as they existed in the past, which the defender was prepared to admit was not satisfactory. It was not to be presumed that in the new buildings a nuisance would be caused. Cowfeeding, and byres within burgh, were not within the category of declared nuisances, like soap-boiling, blubber-works, and slaughterhouses. These were declared nuisances, but there were some trades which were intermediate, and might be nuisances or not according to the mode in which they were carried on. In such cases the Court would hesitate to interdict the industry ab ante. Byres were not necessarily nuisances. This idea was negatived by the Cattle Sheds Act (29 Vict. cap. 17) and the Public Health (Scotland) Act (30 and 31 Vict. cap. 101). This was the first time it had ever been proposed to interdict the erection of a building because the trade to be carried on in it might be a nuisance. The remedy was only granted when it was clear that a nuisance was inevitable. The titles here gave the pursuers very little more than they had at common law.

Authorities— Scott v. Police Commissioners of Leith, May 29, 1830, and March 7, 1835, 8 S. 845, and 13 S. 646; Swinton v. Peddie, March S, 1837, 15 S. 775, and ( remitted) M'L. &Rob. 1018; Pattison v. Guildford, L.R., 18 Eq. 262.

A minute was lodged by the appellant, which was in these terms—“In the event of the said appellant being found entitled to erect a byre, as proposed, upon bis property in Jordan Lane, and to keep cows therein, he undertakes that he will not boil or steam turnips to feed his cows upon the premises in Jordan Lane; that he will remove the manure from the said premises once every day, except on Sundays, and that before eight o'clock a.m., and that the carts which remove the manure shall be loaded within his own property. The appellant further undertakes that the cows belonging to him shall not, unless in

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exceptional circumstances, pass along Jordan Lane oftener than twice in the year, viz., once in spring, when they go out to pasture, and again towards the beginning of winter, on their return from pasture.”

Replied for respondents—They objected to the proposed byre, first, because cow-keeping within burgh was a nuisance at common law, and second, because the erection of a byre upon the ground in question was a contravention of the feu-charter. The evidence showed that cow-keeping was almost certain to cause a nuisance to adjoining proprietors, who were not called upon to subject themselves to this risk, especially with such a clause as there was in this feu-charter. A trade which required Parliamentary regulation and control was just such a nuisance as the feuars were entitled to be protected from, and this was the time (before the buildings were erected) when they were entitled to interfere and have them stopped. In a question as to what was or was not a nuisance, locality was a consideration which had to be kept clearly in view, for what might be deemed a nuisance in the country might not be so considered in town, and vice versa. This was a residential neighbourhood, and even if the defender did all he proposed, his trade would still be a nuisance to the neighbourhood. The term “nuisance” had been defined— Hislop v. Fleming and Others, December 22, 1882, 10 R. 426, and ( alt.) 13 R. (H. of L.) 33; Porteous v. Grieve, February 23, 1839, 1 D. 561; Pentland v. Henderson, March 2, 1855, 17 D. 542; Trotter v. Farnie, December 7, 9 S. 144; Fraser's Trustees v. Craw, December 1, 1877, 5 R. 290, and 6 R. 451; Anderson v. Aberdeen Agricultural Hall, May 13, 1879, 6 R. 901. The prohibition in the feu-charter was intended to strike at all buildings in which the trade which was to be carried on might turn out to be a nuisance. The Public Health Act of 1867 did not sanction the erection of byres within burgh, but finding them there it tried to regulate and control them as far as possible.

At advising—