Scottish Court of Session Decisions

Mrs Agnes Gillespie, Ardmay Cottage, Arrochar, brought an action in the Sheriff Court at Dumbarton against Messrs Lucas & Aird, contractors for the West Highland Railway Company, who under the sanction of the West Highland Railway Act 1889 were constructing a line passing along the hillside above Loch Long, praying the Court “to interdict the defenders (1) from carrying on blasting operations in the neighbourhood of Ardmay Cottage, in the parish of Arrochar and county of Dumbarton, and the grounds attached thereto; or (2) at least from carrying on said operations in such a manner as to injure the said cottage and ground, endanger the persons of people therein, or cause inconvenience or annoyance to the pursuer in her occupancy thereof, and to grant interim interdict.”

The pursuer averred that “the said blasting has been and is being conducted in such a manner as to cause damage to the cottage and ground attached thereto, to endanger the persons of the pursuer and others therein, and to inconvenience and annoy the pursuer in her occupancy thereof. The pursuer has repeatedly, on the warning of the defenders, or of their servants, had to temporarily leave the cottage to avoid accident from the blasting complained of.”

The defenders explained that the cottage was 510 feet from the railway line and 290 feet below it at the foot of an exceedingly precipitous slope. They stated that the blasting operations complained of were necessary for the execution of the said works, and had been and were being conducted by the defenders in the usual and proper manner in which such operations are conducted. The operations had been within the limits of deviation of the said railway, and in the necessary course of

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execution of the railway authorised by the said Act of Parliament.

The pursuer pleaded—“(1) The blasting complained of being an abuse and in excess of the defenders' rights, and the pursuer being prejudiced thereby, she is entitled to the protection of the Court against their continuance. (2) The defenders' said acts being a nuisance, their repetition ought to be forbidden by the Court.”

The defenders pleaded—“(1) The application is incompetent. (2) The operations complained of being legal, and conducted in the usual and proper way, and in the necessary course of execution of the works authorised by the said Act of Parliament, cannot be stopped by way of interdict. (3) The action ought to have been directed against the said West Highland Railway Company, and not against these defenders.”

The Railway Clauses Consolidation Act 1845 (8 Vict. c. 20) by section 16 provides that “Subject to the provisions and restrictions in this and the special Act, and any Act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway or the accommodation works connected therewith hereinafter mentioned, to execute any of the following works… . They may do all other acts necessary for making, maintaining, altering or repairing, and using the railway, provided always that in the exercise of the powers by this or the special Act granted the company shall do as little damage as can be, and shall make full satisfaction in manner herein and in the special Act and any Act incorporated therewith, provided, to all parties interested, for all damage by them sustained by reason of the exercise of such powers.”

The Sheriff-Substitute ( Gebbie) allowed a proof before answer, from which it appeared that serious damage had been done to the cottage by showers of stones falling upon and penetrating the roof, that one large rock about a ton in weight had rolled into the garden, and that the house was almost uninhabitable when shots were being fired. The pursuer called as one of her witnesses a quarrymaster, who spoke to covering blasts by means of chains, planks, and brushwood.

For the defenders Kenneth M'Donald, engineer on Inverarnan and Arrochar sections, deponed—“I have the superintendence of the sections at Ardmay… The workmen were nearly all hung by ropes from the top when working at this place. It was not practicable to fence the blasts at this place. We could not fence them by stones or brushwood. I doubt if we could prevent the stones from being flung into the air. We could not prevent them rolling down. (Q) Is there any other way you could fence blasts except by chains or brushwood?—(A) No; not practically. (Q) You could not fence it so as to be sufficient to prevent stones going over?—(A) No; I do not think it is possible. It would increase the length of time necessary to do the work by ten times to quarry the rock instead of blasting it. It would also cost ten times more, and even then it would not be safe. Cross.—I cannot tell whether the blasting is done in the vicinity of the pursuer's house or not. (Q) What are your future intentions?—(A) The engineer has got to decide how much rock is necessary to take away. We do not know how much he will take off. He may take a great deal or very little. I cannot say that there will not be another shot. The engineer will require to decide what is to be done, and my opinion is a different story. My opinion is that a lot of rock requires to come off yet, but that is not the engineer's. I cannot say what the engineer may consider necessary… There may be, in my opinion, a shot or two required yet. It would take ten times longer and ten times more expense to quarry through the rock than to blast it. Of course that is a mere guess, and I would not be surprised if it took fifty times more money and fifty times the length of time. I am also of opinion that even although it was quarried the stones would still roll down the steep ground. I do not think we could have prevented stones from rolling down at a reasonable cost. It would have taken nearer £500 than £50 to have helped to prevent stones coming down… I say it is not practicable to cover blasts at all in a place such as this. I never attempted to cover a part of it, because it is not practicable. It could be covered, but at great cost of money and time. Boards might be hung out and the shots partly protected, but that would mean more time.”

Andrew Morrison, another engineer in the defenders' service, gave similar evidence.

Upon 15th May 1893 the Sheriff-Substitute found that the pursuer had failed to establish a case entitling her to interdict and assoilzied the defenders.

“ Note.—… From the position of the cottage and the railway line above, it is obvious it would be difficult, if not impossible, to conduct the operations complained of so as to prevent detached pieces of the rock from tumbling down upon the cottage and ground. It can hardly be questioned that the work that is being carried on is under the sanction of an Act of Parliament for a public benefit, and it is almost inconceivable that a public work of magnitude can be executed without inflicting some injury and inconvenience to the rights of private persons. It may be seriously doubted, however, whether in such a case the remedy is by interdict. It rather appears to me that the proper remedy is to be sought under the 16th section of the Railway Clauses Consolidation Act, which provides that in the exercise of the powers granted, the company shall make full satisfaction to all parties interested for all damage by them sustained by reason of the exercise of such powers.

I could understand a possible case being made for interdict where it was alleged the work was carried on in a negligent, reckless, or some other illegitimate way. But this is not the nature of the case the pursuer alleges. She simply states that

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the ‘said blasting is being conducted in such a manner as to cause damage to the cottage and ground attached thereto, to endanger the persons of the pursuer and others therein, and to inconvenience and annoy the pursuer in the occupancy thereof.’ As already pointed out, no large public work can possibly be executed without inflicting injury and inconvenience to neighbours; but the remedy for that is not an interdict, but by way of damages. In short, before an interdict can be granted, the company must be doing something that is illegitimate, and outwith the powers conferred by their Act.

It is true the pursuer has endeavoured to lead evidence to show that by covering the blast with chains and brushwood, or planking, the operations could be carried on with little risk of injury to herself or her property. Such evidence is inconclusive and unsatisfactory. The localities where such a mode is said to have been adopted may be essentially different from the one here in question. It may be comparatively easy to apply it on a flat surface, and it may be absolutely necessary in a populous place like Bowling or Greenock to use extra and unusual precautions, but it is a totally different thing where blasting must be applied in a quiet rural district to the face of a precipice extending to about 100 yards. One witness suggests a screen might be used. I am not satisfied a screen would be practicable or feasible, at all events its cost would be excessive, and quite incommensurable with the value of the pursuer's property, the yearly rental of which is £14. I have no doubt the defenders have been carrying on their operations in the usual and recognised manner, and have used all ordinary precautions for the safety of the pursuer and her property by specially warning her before blasting took place. It is indeed their own interest to prevent unnecessary injury, for the defenders are well aware that they must give ample satisfaction for all damage that is done.

On considering the Railway Statutes and the judicial opinions expressed regarding their construction, and the powers thereby conferred upon railway companies, I have become convinced that the pursuer's position is untenable.”

The pursuer appealed to the Sheriff ( Lees), who upon 13th June 1893 pronounced the following interlocutor:—“Finds that the defenders have failed to take due precautions for the safety of the pursuer and her household, and any precautions whatever for the safety of her property: Finds that in consequence of such failure the lives of the pursuer and her household have been endangered and her property has been injured by the blasting operations of the defenders: Finds that the defenders refuse to alter the mode in which their blasting operations are carried on, or to compensate the pursuer for the injury caused to her thereby: Finds in law that the sanction given by Parliament to construct the railway does not imply that the operations for its construction may be carried on without regard to the safety of the lieges in their person and property, and without due precautions being taken for the preservation thereof. Therefore recalls the interlocutor of the Sheriff-Substitute of 15th May 1893, interdicts the defenders as from 25th June current from carrying on any blasting operations which may cause pieces of rock to reach Ardmay Cottage, until either they satisfy the Court that the mode in which thereafter their blasting operations will be carried on will be in conformity with law, or until they lodge in Court an obligation to the satisfaction of the pursuer binding themselves to compensate her for the injury they have caused and may yet cause her, and decerns, and continues the cause.

Note.—The defenders began their blasting operations in July last, and in spite of remonstrance have persisted in carrying them on without any precautions to keep the pieces of rock from being projected far and wide over the locality. As a result, a piece of rock upwards of a ton in weight lies in the pursuer's garden. The roof has been riddled, and has at present twelve or fifteen holes in it, damp and drafts have come in and caused rheumatism, and the pursuer's husband has died of heart disease. The defenders have neither weighted the rock, as is usual, or fastened it with chains, or erected any screen. Their only precaution for the safety of the lieges has been to blow a horn to warn people to fly from the vicinity. The defenders intend that when the horn is heard the pursuer and her family are to fly from the house to such a distance as to be in safety. It would appear that on one occasion the family had to fly from the breakfast-table three times. Whether the weather was wet or dry, or the ground covered with snow, whether the pursuer's household was well or ill, they were to fly for such safety as they could find when the horn blew. Such safety was difficult to find, for the showers of stones fell even in the loch.

It is a matter of familiar experience that this can be nearly, if not altogether, obviated by the erection of screens to prevent stones rolling down the hillside, and by weighting and chaining the rock to prevent it being blown over the screen.

But the defenders contend that as Parliament authorised the railway to be made, it impliedly gave them power to construct the railway in the manner most convenient for them. I do not doubt that a railway company in constructing their line have immunity given to them under circumstances which would entail responsibility on a private individual under the maxim sic utere tuo ut alienum non lœdas. A railway is presumably made in the public interest, and therefore the gain of the community may require the particular member injured by its construction not only to bear the inconvenience or loss its proximity may cause him, but also the temporary annoyance he may suffer during its construction, and even the loss that may then accrue. But it is trite law that a railway

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company in constructing their line are not entitled to refrain from taking precautions to prevent the lieges being injured in their person or property; and the defenders, as English contractors, might at least have known of the decisions of their own courts.

I understand that the defenders are willing to repair the pursuer's cottage after their blasting operations are over. But I know of no obligation on the part of the pursuer to live in a house till then which is dangerous to health and life. She has even offered to make no opposition to their continuing their operations if the defenders will undertake to compensate her for the loss and inconvenience she has suffered; but this they refuse to do. They say her remedy is to arbitrate with their employers, the railway company. But if she sued the company at common law they would plead they had independent contractors. If she claimed under the Land Clauses Act they would say she could not claim for injury as none of her land had been taken. While if she claimed under the Railway Clauses Consolidation Act they would say that if the damage was necessary she had no claim against them, and that if it was unnecessary her remedy was against the wrongdoers.

I am of opinion therefore that her claim is against the defenders, and that if she has a claim against them for unnecessary damage, the circumstances of the danger are such that she is entitled to protection by interdict.

What form the interdict should take has been a matter of much difficulty to me. To interdict all blasting operations would be going too far. Some may be carried on at such a distance, others with so little explosive material that risk may not be caused to the pursuer. Probably many small blasts would not cause the danger that a few large blasts do. The latter are of course more convenient to the company, but it is against them that protection is needed.

As the pursuer has borne so long with the blasting, to endure it a short time longer will not matter much. For that reason, and to enable the defenders to prepare a plan for conducting their blasting in safety, I have given a short interval before the interdict takes effect. On a minute being lodged stating the plan they propose I shall remit it to a competent engineer to report on quam primum. If, on the other hand, the defenders wish to submit my judgment to the review of the Supreme Court, on their putting in a minute that they so desire, I will at once issue a final judgment so as to allow them the opportunity of applying to get the case heard before the Court rises on 20th July.

I would only add that the precautions I have named, and which I understand are the usual precautions, are not necessarily the only possible precautions. That I leave to the defenders' ingenuity. All I can say at this stage is, that they are bound, in the words of the judgment in Paterson v. Lindsay, 13 R. 261, to take ‘due precautions.’”

A minute having been lodged by the defenders stating that they were desirous of appealing to the Court of Session, the Sheriff on 26th June 1893 pronounced the following interlocutor:—“Recals the interdict granted on 13th June, and in lieu thereof interdicts the defenders from carrying on any blasting operations in the neighbourhood of Ardmay Cottage, in the parish of Arrochar, for the purpose of construction of the West Highland Railway, which may cause pieces of rock to reach said cottage, and decerns: Finds the defenders liable to the pursuer in expenses,” &c.

The defenders appealed to the Court of Session, and argued—They were bound and willing to pay compensation for any damage they might do, but they were protected from interdict by the Railway Clauses Act 1845, under which the West Highland Railway Company—whose hand they were—were carrying out this undertaking. A proof had been led, which showed that the ordinary precaution of screens was impracticable. The Sheriff was in error in referring to “familiar experience.” The locality here was very peculiar, quite unlike a quarry-face to which the evidence for the complainer applied. The complainer had failed to discharge the onus resting upon her of showing that they had failed to take reasonable and feasible precautions. Even if serious damage to this cottage was unfortunately inevitable, that was not to put a stop to the company's undertaking, although it would make them liable for compensation. There was “necessity” here in the sense of the 16th section of the Act.

Argued for respondent—The appellants were only protected from interdict if they were under the Act, and even if under the Act, only if they did as little damage as possible. The company would be interdicted if they acted negligently— Biscoe v. Great Eastern Railway Company, 1873, L.R., 16 Eq. 636. The damage here was not disputed, and it was for the appellants to show they had taken reasonable precautions— Port-Glasgow and Newark Sailcloth Company v. Caledonian Railway Company, March 15, 1892, 19 R. 608. She had proved that not only were no precautions taken, but that apparently the question of taking precautions had never been considered by those responsible for these dangerous operations. The appellants were not entitled to use operations necessarily dangerous to life and limb under cover of the Railway Acts. This was apparent from criminal indictments against railway contractors for culpable neglect of duty having been found relevant—Arkley, pp. 432 and 440. The appellants' witnesses did not say precautions were impossible, but only too expensive to be adopted. This was no answer. Saving of expense did not constitute “necessity” under the 16th section of the Railway Clauses Act— Fenwick v. East London Railway Company, 1875, L.R., 20 Eq. 544, Jessel, M.R., p. 549; Pugh v. Golden Valley Railway Company, 1879, 48 L.J. Chan. 666. She could not go on living in her house in danger of her life merely

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because the railway company would pay compensation when the operations were over. She must have interdict, or means to enable her to live elsewhere.

At advising—