Scottish Court of Session Decisions

In the year 1885 the local authority of Culross being desirous of procuring a suitable supply of water for the district, entered into an agreement with Archibald Vincent Smith-Sligo of Blair and Inzievar, and other proprietors in the district, who were anxious to obtain a supply of water for their respective properties. The local authority agreed to proceed forthwith to obtain the formation of a special water supply district, and the other parties agreed to bear certain proportions of the expense of securing the requisite supply of water. It was part of the agreement that the main pipe of supply should be so laid as to give a constant supply of water to Mr Smith-Sligo's estates of Blair and Inzievar, and it was provided that he should have liberty to lay branch pipes to connect the main pipe with these properties, and should pay at a fixed rate for the water drawn off by him. After the agreement was concluded the special supply district was formed, and the works were constructed.

In May 1891 the Committee of Management of the Special Water Supply District of Culross, appointed under the Local Government (Scotland) Act 1889, brought an action in the Sheriff Court at Dunfermline against Archibald Dominic Smith—Sligo and others, the testamentary trustees of the said Archibald Vincent Smith-Sligo, and as such trustees proprietors of, inter alia, the estate of Comrie, in the parish of Culross, praying the Court to interdict the defenders “from taking for the

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supply of the estate of Comrie, in the parish of culross, belonging to the defenders, or for any part thereof, or for the supply of any property whatever other than the estate of Blair and Inzievar, belonging to them as trustees foresaid, any of the water which is conveyed by pipes forming part of the waterworks” constructed under the agreement already mentioned, and further “to ordain the defenders instantly to disconnect a pipe which they have recently laid for the purpose of supplying with said water certain portions of the said estate of Comrie, and which pipe they have connected with a pipe forming part of said waterworks, … and through which pipe recently laid as aforesaid they have, illegally and without the consent of the pursuers, for some time past been drawing a supply of water for portions of the said estate of Comrie.”

The pursuers averred that the defenders had laid a pipe from certain parts of the estate of Comrie, for which they wanted to get a supply of water, and had without the pursuers' knowledge or consent connected the same on or about 1st June 1890 with the branch pipe connected with the property of Inzievar, and since then had, notwithstanding the repeated objections of the pursuers, drawn a supply of water through the pipe so laid for the said portions of the estate of Comrie.

The defenders admitted having laid and connected the pipe, but averred that they had a right to do so, in respect that the lands of Comrie were part of the estate of Blair and Inzievar.

They further in separate statement of facts averred that none of the defenders were resident or carried on business within the sheriffdom of Fife and Kinross, and that they had not been personally cited within the sheriffdom. The pursuers admitted the truth of this averment, but explained in answer that the defenders were proprietors of large heritable properties within the sheriffdom, and that the subject-matter in dispute was situated within the sheriffdom.

The defenders, inter alia, pleaded—“No jurisdiction.”

On 27th June the Sheriff-Substitute ( Gillespie) pronounced an interlocutor repelling, inter alia, the first plea-in-law for the defenders, and before answer as to the relevancy of the defenders' averments, allowing parties a proof of their averments.

“ Note.—Notwithstanding the able argument for the defenders, the Sheriff-Substitute is humbly of opinion that the jurisdiction of this Court is undoubtedly ratione rei sitœ, and that personal service within its territory is not necessary, as was contended.

The defenders' counsel built an ingenious argument on such cases as Pirie v. Warden, February 20, 1867, 5 Macph. 597; and Kermick v. Watson, July 7, 1871, 9 Macph. 984; but these cases belong to a different chapter of the Sheriff's jurisdiction. If the question were open, good reason could be given why personal service within the territory should be required in the one class of cases and not in the other. But the Sheriff-Substitute cannot regard the question as open. It appears to him to be settled by authority and uniform practice.

“‘Civil jurisdiction,’ says Erskine, i. 2, 17, ‘is founded, secondly, rationœ rei sitœ, if the subject claimed by the pursuer lies within the territory, whether the defender resides within it or not— Durie, November 28, 1635, Williamson (Dict.) p. 4815. And, indeed, if the subject in question be immoveable, the judge of the territory where it is situated is the sole judge competent, in so far as he has the cognisance of heritable rights; for things that are immoveable are incapable of shifting places, and must therefore be restored in that place where they lie, and by the warrant of that judge whose jurisdiction reacheth over them.’

This is an action to regulate the possession of a heritable subject—a class of action of which the Sheriff Court has undoubted cognisance. Even if it can be said that the action involves a question of heritable right and title, there is no allegation that the value of the subject in dispute exceeds the limit of the jurisdiction conferred on the Sheriff by the Sheriff Courts Act 1877. Section 8, which contains an express provision that ‘actions relating to questions of heritable right or title raised in a Sheriff Court shall be raised in the Sheriff Court of the county in which the property forming the subject in dispute is situated, and all parties against whom any such action may be brought shall be subject in such action to the jusirdiction of the Sheriff and Sheriff-Substitute of such county.’ Nothing is said here as to personal service within the county being necessary.

Turning back to the passage in Erskine, he goes on to point out how the difficulty arising from the doctrine that a judge cannot grant a warrant to cite beyond his own territory is got over. He says—‘No suit can proceed against a defender till he be lawfully summoned to appear in judgment; neither can a judge issue a warrant to cite one who resides in another territory. Where, therefore, one whose domicile is not within the territory is to be sued before an inferior court, ratione rei sitœ, the pursuer must apply to the Court of Session, whose jurisdiction extends over the whole kingdom, for letters of supplement, which are granted of course, containing a warrant to cite the defender to appear before the judge of the territory where the controverted subject lies—November 28, 1635, Williamson ( supra cit.).’ Therefore, according to Erskine, the only condition necessary for a Sheriff Court exercising its jurisdiction, ratione rei sitœ, is not that the defender shall be personally cited in the sheriffdom, but that letters of supplement from the Court of Session be obtained.

It is not necessary to examine the changes made by section 24 of the Sheriff Courts Act 1838 (1 and 2 Vict. c. 119), and by section 12 (1) of the Sheriff Courts Act 1876, for whatever forms may be necessary the acceptance of service by the defenders'

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agent amounts at least to an agreement to hold the petition as duly served at their dwelling-houses in Edinburgh—for this much the pursuers could have done in spite of the defenders.

It is instructive to notice that when he comes to deal with jurisdiction ratione contractus (Inst. i. 2. 20), Erskine points out the necessity of personal service within the territory (or its equivalent in certain cases).”

The defenders appealed, and argued—The defenders were not resident nor did they occupy premises within the sheriffdom for the purposes of trade, and the ground of action was nothing more nor less than delict. In such a case it was necessary, if the defender did not reside within the territory of the judge before whom the action was brought, that it should be served upon him within that territory— Kermick v. Watson, July 7, 1871, 9 Macph. 984 ( per Lord President, 985); Bird v. Brown, Aug. 30, 1887, 25 S.L.R. 1. The action not having been served within his territory the Sheriff had no jurisdiction.

The pursuers argued—The Sheriff must have power to restrain by interdict injury to property within his territory. The lack of authority on the point was to be attributed to the fact that the Sheriff's power to interfere in such a case had never before been questioned.

At advising—