Scottish Court of Session Decisions

The Waterworks Clauses Act 1847, sec. 28, provides—“The undertakers, under such superintendence as is hereinafter specified, may open and break up the soil and pavement of the several streets and bridges within the limits of the Special Act, and may open and break up any sewers, drains, or tunnels within or under such streets and

bridges, and lay down and place within the same limits pipes, conduits, service-pipes, and other works and engines, and from time to time repair, alter, or remove the same, and for the purposes aforesaid remove and use all earth and materials in and under such streets and bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water to the inhabitants of the district included within the said limits, doing as little damage as can be in the execution of the powers hereby or by the Special Act granted, and making compensation for any damage which may be done in the execution of such powers.” Sec. 29—“Provided always that nothing herein contained shall authorise or empower the undertakers to lay down or place any pipe, conduit, service-pipe or other work in any land not dedicated to public use without the consent of the owners and occupiers thereof,” &c.

In 1885 Helen Street was a public street under the control of the Glasgow burgh authorities. The road was carried over the Paisley Joint Railway line by means of two bridges—one over the main line, and one over a branch line. The bridge over the main line was constructed of longitudinal girders supported at either end on stone abutments, and joined by transverse girders, upon which iron plates were rivetted to form the floor of the bridge. On and above these the roadway was laid to the depth of from 12 to 18 inches. The bridge over the fork line was also constructed of longitudinal girders, but without transverse girders, and between these longitudinal girders are plates were placed to form the floor with a roadway as above. These bridges had been built by the two companies, who owned the joint line, and were still maintained and kept up by them, although the Govan Police Commissioners maintained the public roadways.

The Lord Provost, Magistrates, and Town Council of the City and Royal Burgh of Glasgow, as Commissioners under the Glasgow Waterworks Act, were engaged in laying an 18-inch water-pipe along Helen Street, and desired to carry it over these bridges. On 18th January 1893 the engineer of the Commissioners submitted to the engineers of the railway plans of the mode in which he proposed to carry the pipe over the bridges.

After correspondence the Commissioners conceded (1) that the pipe over the main bridge should be slung from all the cross girders, instead of from every alternate one as at first proposed; (2) that two shutoff valves should be affixed, one to the south and the other to the north of the bridges; but they declined to conclude an agreement upon certain other matters, and proceeded to carry out the work. They pierced the abutments of the bridge, broke up the iron plates, and carried the pipe through the abutments and along the bridge, slinging it from the under side of the transverse girders by iron bars. They did not, however, diminish the headroom of the bridge.

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The railway company brought a note of suspension and interdict to have the Magistrates and Town Council as Water Commissioners interdicted “from interfering in any way with the structure of the bridges (or either of them) … and from laying on or beneath said bridges, or either of them, water-pipes, and that until the respondents shall have obtained the complainers' consent to the laying of said pipes, or otherwise, until the complainers and respondents shall have agreed on plans in accordance with which such water-pipes shall be laid, and failing agreement between the complainers and respondents, until their respective rights in the premises have been determined, in conformity with the provisions of the Waterworks Clauses Act 1847, and to grant interim interdict.” The complainers averred that the bridges were built over old mineral workings, and that great care was necessary in dealing with them. They also averred—“The respondents have, without any plans or agreement being adjusted between them and the complainers, begun to break up the roadway and remove the plates over the girders on the said two bridges. From the bridge over the said fork line they have actually suspended waterpipes, and from the bridge over the main line they have removed the rivets from the plates for about half the length of the bridge. This they have done in a way quite regardless of the safety of the complainers' railway and those upon it. The rivets have been thrown on to the complainers' line, and the loosened plates may at any time become displaced and also fall on the line, thereby endangering life and the complainers' property. The respondents have further cut into the abutments of the bridge over the main line. The place where the respondents are laying or suspending or proposing to lay or suspend the said pipe, is in the space between the under surface of the said bridge and the lines of railway, and is not land dedicated to public use within the meaning of the said Waterworks Clauses Act 1847, but is the property of the complainers. Further, the said bridges are within the control and management of the complainers, nevertheless the said respondents are opening or breaking up the said bridges, and laying or suspending pipes underneath the same, without having obtained the consent of the complainers. The complainers, however, are willing to adjust plans, and allow the respondents to execute the works as proposed by them, on the condition that they enter into an agreement with the complainers for their protection in the premises. The complainers tendered to the respondents a draft agreement for their approval, but they declined to agree thereto.”

The respondents averred—“Admitted that the respondents have commenced to break up the roadway, and to remove the plates; and that they have, from the bridge over the fork line, suspended the pipes. All the pipes referred to in this action have now been laid, and are carrying water to the people of Govan. The whole work was performed in accordance with plans which were submitted to and approved of by two Justices, in terms of section 31 of the Waterworks Clauses Act 1847.”

The complainers pleaded—“(1) The respondents not being within their statutory powers, interdict should be granted as craved. (2) The operations of the respondents being an encroachment on the complainers' property, without the complainers'. consent, interdict should be granted as craved. (3) The respondents' operations being carried on without the consent of the complainers on land not dedicated to public use, of which the complainers are the owners, interdict should be granted as craved. (4) The respondents' operations being dangerous to the public, interdict should be granted as craved. (5) The respondents' operations being dangerous to the complainers' railway, interdict should be granted as craved.”

The respondents pleaded—“(2) The respondents' operations being within their statutory power, the note should be refused with expenses. (3) The said street called Helen Street, and the bridges carrying the same over the complainers' railways having been dedicated to public use, the respondents are not bound to obtain the consent of the complainers before laying their mains or pipes in or over the same, or to enter into any agreement with the complainers before proceeding to lay these mains or pipes. (4) The pipes of the respondents having been laid across the said bridges in accordance with a plan approved of by the Justices in terms of section 31 of the Waterworks Clauses Act 1847, the present action should be dismissed, with expenses. (5) The surface of the roadway over said bridges, and the girder work of these bridges being land dedicated to public use in the sense of the Waterworks Clauses Act 1847, the note should be refused.”

Upon 27th April 1894 the Lord Ordinary ( Low) pronounced this interlocutor:—“Sustains the respondents' pleas-in-law, refuses the prayer of the note, and decerns.

“ Opinion.—The question raised in this case is as to the right of the respondents, as Commissioners under the Glasgow Waterworks Acts, to carry a water-pipe over two bridges by which Helen Street crosses the complainers' lines of railway.

The bridges are constructed of iron, and the roadway is laid upon metal plates, which are supported by iron girders. The respondents have carried the pipe across the bridges by fastening it to the girders underneath the plates. The work was done in accordance with plans approved of by two Justices, in terms of section 31 of the Waterworks Clauses Act 1847, and it seems to be clear that if the respondents are entitled to carry the pipe across the bridges they have adopted an appropriate method of doing so. Indeed, I understand that the pipe could not be carried across the bridge in any other manner, because the roadway, which, as I have said, is laid upon metal plates, is not of sufficient depth to render it possible to lay an 18-inch pipe

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under the surface of the road and above the floor of the bridge.

The respondents maintain that they are entitled to lay the pipe across the bridges by virtue of the powers conferred upon them by the 28th and 29th sections of the Waterworks Clauses Act. The complainers, on the other hand, contend that although these sections authorise Water Commissioners to break up the soil and pavement of streets and bridges, and to lay pipes underneath the surface of the roadway, they do not entitle them to suspend a pipe from the girders underneath the bridge.

The 28th section provides that the undertakers ‘may open and break up the soil and pavement of the several streets and bridges within the limits of the special Act, … and lay down and place within the same limit pipes … and for the purposes foresaid remove and use all earth and material in and under such streets and bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water to the inhabitants of the district.

The 29th section provides ‘that nothing herein contained shall authorise or empower the undertakers to lay down or place any pipe … or other work in any land not dedicated to public use without the consent of the owners and occupier thereof.’

Helen Street is now a public street and dedicated to public use, and the bridges in question are part of Helen Street, because by means of them that street is carried across the railway lines. The respondents, therefore, were entitled to lay a pipe in Helen Street, and I did not understand the complainers to dispute that they would also have been entitled to lay the pipe over the bridges if it had been possible for them to lay the pipes under the surface of the roadway and above the floor of the bridge. But the complainers attempted to draw a distinction between the roadway of the bridge and the girders underneath and supporting the roadway. They argued, that although the roadway might be land dedicated to public use, the girders underneath were private property which the respondents could not interfere with or use.

In my judgment the complainers' contention is not well founded.

The sections of the Act which I have quoted appear to me in effect to provide that Water Commissioners may lay down pipes in streets and bridges within their district, and may perform such operations in the way of opening and breaking up the streets and bridges as are necessary to effect that object. I do not think that it is possible to construe the sections as excluding from the operations a public bridge which is constructed in such a way that there is not room for a pipe between the surface of the roadway and the floor of the bridge. In such a case I think that it is quite competent for the Commissioners to attach the pipe to the girders which support the roadway. Where, as here, a bridge has been built for the purpose of carrying a street over a line of railway, I think that it is impossible to say that the under surface is private property, and that only the upper surface is dedicated to public use. They are both parts of the same bridge, which forms a public way over the railway line.

I am therefore of opinion that the respondents were entitled to lay the pipe across the bridge in question, and the pipe having been laid in accordance with plans approved of by two justices in terms of the 31st section of the Act, the note falls to be refused.”

The complainers reclaimed.

The argument was entirely directed to the operations upon the bridge over the main line.

They argued—The Water Commissioners were not within their statutory rights, and they must come to an agreement with the complainers. (1) It was admitted that the bridges over the railway were dedicated to public use, but that only applied to the roadway, and to the necessary support given to the roadway by the girders. The bridges themselves remained the property of the railway companies, and had to be maintained by them. The public had only a right of passage. The air space below the plates of the bridge and above the railway companies' line had never been dedicated to public use, but the Water Commissioners had slung their pipe from the girders of the bridge, and had even pierced the abutment, so that the railway companies could not alter that form of support to the ends of the bridge if they saw fit to do so, but the abutment had never been dedicated to public use except as a means of support to the road. The Railway Clauses Act 1845, section 39, provided that no one should be upon the property of the railway company without their permission, so that except for their right of passage the Commissioners had no right to be upon the bridge— Lancashire and Yorkshire Railway Company v. Mayor, &c., of Borough of Bury, July 25, 1889, L.R., 14 App. Cas. 417. (2) Assuming that the bridge was dedicated to public use, the Water Commissioners were not within their statutory powers in doing what they had done. The 28th section of the Waterworks Clauses Act 1847 was the only authority they had, but that section allowed them only to “break up the soil and pavement” of the bridges within the limits of their special Act, and these words must be strictly construed, but in this case the Commissioners had not only broken up the soil and pavement of the roadway, but had interfered with the structure of the bridge, and had broken up the plates of which it was composed. In 1847, when the Waterworks Clauses Act was passed, probably no girder bridge existed, but applying the analogy of stone bridges, which the framers of the Act had probably in view, the respondents' operations were equivalent to cutting a groove in the arches of a stone bridge. If the Act was inapplicable to such bridges as the present, the respondents must get powers from the Legislature,

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but the terms of the statute could not be extended to such bridges as the present. But even under this section it was possible for the Commissioners to do what they really wanted and carry the pipe over the bridge, because they could either increase the amount of earth upon the roadway to the necessary depth, and carry the pipe under the pathway, which would necessitate a very slight addition to the height already existing. All Acts of Parliament giving power to public bodies to break up private property, even for the public benefit, are construed strictissimi juris— Morris v. Tottenham, and Forrest Gate Railway Company, January 29, 1892, L.R., 2 Ch. 47; Simpson v. South Staffordshire Waterworks Company, May 6, 1865, 4 De Gex, Jones, & Smith, 679; Lamb v. North London Railway Company, May 3, 1869, L.R., 4 Ch. App. 522. Justices, under section 31 of the general Act, had not the authority which the Lord Ordinary supposed. All that the justices could do was to pass as reasonable, on the representations made to them, the mode of carrying out the work, but they could not give authority to do anything beyond the power of the Water Commissioners.

The respondents argued—These sections of the Waterworks Clauses Act enabled local authorities, for the purpose of water supply, to carry their pipes across any bridges which intervened. In 1847 the only bridges contemplated were stone bridges, with an ample amount of soil upon the top of the arches, and the language of the Act was more strictly applicable to such a case, but when a new style of bridge arose the local authority were entitled to use whatever means seemed best to carry out their purpose so long as they used the materials of the bridge only— Fareham Local Board and Fareham Electric Light Company v. Smith, April 16, 1891, Weekly Notes, 76; Wandsworth Board of Works v. The United Telephone Company, Limited, June 13, 1884, L.R., 13 QBD 904. It was impossible to lay their pipes in the roadway or under the footpaths; they therefore took the only other course, of slinging their pipe beneath the bridge. The case of East London Water Company v. The Vestry of St Matthew, August 4, 1886, L.R., 17 QBD 475, showed that under the sanction of the 28th section certain projections above the pavement of a bridge might be allowed, much more the slinging of a pipe below a bridge, which could inconvenience no one, because the dangers averred by the appellants were baseless, and the Commissioners had done all that the appellants asked towards keeping their railway safe. Even assuming that the words of the Act were to be read strictissimi juris, the respondents were within the statute, because the Act authorised the undertakers, “for the purposes aforesaid, to remove, &c., in and under such bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water,” &c. There were four purposes immediately preceding this direction; these were—laying down, repairing, altering, or removing pipes. It was admitted that the power given by the general words in the clause could only be ejusdem generis as the particular power given before, but in this case the Water Commissioners could use their general powers in support of the particular purpose of laying pipes. Under the 31st section the justices were satisfied with the manner of work proposed.

At advising—