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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lord Provost and Magistrates of Glasgow v. The Glasgow & South-Western Railway Co. and Another. (Ante, vol. xxxi. p. 883, and 21 R. 1033.) [1895] ScotLR 32_733 (13 May 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0733.html
Cite as: [1895] ScotLR 32_733, [1895] SLR 32_733
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
Before the
v.
(Ante, vol. xxxi. p. 883, and 21 R. 1033.)
Facts:
Section 28 of the Waterworks Clauses Act of 1847 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 may open and break up any sewers, drains, or tunnels within or under such streets or bridges, and lay down and place within the same limits pipes, … and for the purposes aforesaid 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.” Section 29 provides “that nothing herein contained
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shall authorise or empower the undertakers to lay down or place any pipe … in any land not dedicated to public use without the consent of the owners and occupiers thereof.” A public road within the limits of a Waterworks Act was carried over a railway upon a bridge which was the property of the railway company. The bridge was formed of longitudinal iron girders, supported at either end on stone abutments, and the roadway was laid upon metal plates attached to the girders. The undertakers proposed to pierce the stone abutments, cut through the plates of the bridge, and sling their pipes under the bridge between the girders.
Held ( aff. judgment of the Second Division) (1) that these operations were not within the powers conferred upon the undertakers by section 28, in respect (1) that that section gave no authority to the undertakers to interfere with the structure of the bridge itself; and (2) that the space below the bridge was not “dedicated to public use.”
The defenders appealed.
At delivering judgment—
Lord Chancellor—The question raised in this case is as to whether the appellants, as Water Commissioners of Glasgow, are entitled to carry water-pipes through the bridge which the respondents have erected, to carry a street over their railway. The bridge is constructed of iron, and the roadway is laid upon metal plates, which are supported by iron girders. The water-pipe is carried through holes bored in the stone abutments, and attached and fastened to the girders which support the bridge. They are longitudinal girders, and above them are metal plates upon which the roadway is laid, but there is not sufficient space for an 18-inch pipe to be laid between the top of the road and the plates, so it is proposed to fasten the pipe to the cross girders.
The question is whether this is sanctioned by section 28 of the Waterworks Clauses Act of 1847. If the language clearly authorised this, I should not suppose it to be unreasonable. But, my Lords, the difficulty is that I cannot find any language in the clause which will justify the appellants in laying or fastening a water-pipe in the manner proposed. Section 28, in the first place, says that “the undertakers may open and break up the soil and pavement of the several streets and bridges within the limits” of their special Act. Anything that properly comes within the terms “breaking up the soil and pavement,” giving to these terms the broadest and least technical signification, I should say was within the purview of the Act. The case was put of a good road made from ordinary paving materials—say a macadamised road which rested on a bed of concrete—and the question was asked whether the concrete would be part of the “soil and pavement” within the meaning of the section. I should be quite prepared to say that it would be. I think it was not in tended to limit the powers so strictly by the use of the words “soil and pavement.” But, upon the other hand, it is impossible to say that what is being done in this case comes within the meaning of the words of this section. What the undertakers are doing here is interfering with the structure of the bridge itself—not breaking up the soil and pavement of the bridge, but actually piercing the masonry of the bridge and it seems to me that if it had been intended to give power to do that, the language used by the Legislature would have been entirely different. The authority to break up the soil and pavement given in this section points, in my mind, to an altogether different operation.
My Lords, that would be enough to dispose of this case, but I am unable to see that what has been done with the pipe underneath the bridge comes within any part of the language used in this section. There certainly has been no opening and breaking up of “any sewers, drains, or tunnels within or under such streets and bridges.” That refers to a case where some existing work has already been constructed under the highway, and it provides that, notwithstanding that the land in or under the highway has been taken for that purpose, there is nevertheless still to be power to lay a water-pipe.
Now, so far I confess, I think it was felt by the learned counsel for the appellants that there would be great difficulty in bringing the case within the section, but he relied upon the words which follow—“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.' I do not think it is possible to give to the words I have just read the very wide construction which has been contended for by the learned counsel for the appellants. I think they must be read in connection with the earlier part of the section, and as ancillary to it. It was not intended to give to the undertakers an independent power to do what they pleased with the bridges, the soil and pavement of which, and that alone, they have been authorised to break up; but it was only intended in cases where they were conducting operations authorised by the earlier part of the section to give them power to “remove and use all earth and materials in and under” the streets, which had been disturbed for the purpose of the authorised operations.
I own to my mind the 29th section also presents very serious difficulties. The 29th section is a proviso upon the 28th—that is to say (for such is the true effect of the proviso), notwithstanding that the case may be brought within the words of the 28th section, no act on the part of the undertakers shall be authorised save subject to the provisions of the proviso. The proviso is in these terms—“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
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Therefore, in addition to the difficulty arising upon the 28th section, the 29th section also to my mind presents very considerable difficulty. I am unable to differ from the view taken by the Court below, and therefore I think the judgment appealed from must be affirmed, and I move your Lordships accordingly.
With regard to the later section, which provides that a pipe shall not be placed in any land not dedicated to the public, I am quite aware, and it is obvious, that questions may arise where land is burdened with the support of a public roadway, how far that burden extends, and how far an undertaking incumbent upon the proprietor of the land to give support to the roadway along the surface implies dedication to the public of his land for that purpose to a particular depth. But it is not necessary to consider a speculative question of that kind in this case, because the limits of the public right are here very clearly defined. Of course on the surface of the road there must be a certain extent of air space which is dedicated to the public with the use of the road; but with the lower part of each girder the interest of the public, in my opinion, entirely ceases. Whatever is below the lower part of the archway of the bridge, below the girder, and altogether outside of the bridge, is not, in my opinion, dedicated to the public, and is not a land or hereditament in which the public have the least interest.
Then, with regard to the 28th section, it is unnecessary for me to comment upon it at length after the observations which have been made by my noble and learned friend the Lord Chancellor, in which I entirely concur. But I take leave to observe that all the powers given by that clause appear to me to be very intimately connected, the one with the other. I think the first power given affords the keynote to all the rest, or, in other words, all the powers that follow the first power conferred by the clause are ancillary to it. The first part of the clause gives power “to open and break up the soil and pavement of the several streets and bridges.” That is an operation impracticable in the case of the roadway along the bridge in question, and it is not suggested that the power has been exercised, or can be exercised. Then follows the power to lay down and place pipes. Nothing can be more clear in regard to these powers than this: That the purpose of opening and breaking up the soil under the first of them is simply to form a hole or trench in which the pipe can be laid. Then comes the third power, of which a great deal was said in the very able argument of Sir Richard Webster: “And may open and break up any sewers, drains, or tunnels within or under such streets or bridges,” and so forth. That is not a general power to roam over the streets and break open sewers, drains, and tunnels. It is a power meant to be exercised in cases where the promoters of an undertaking, having opened or broken up a street under the first power given by the clause, meet with an obstruction to their work in the shape of tunnels, drains, or sewers which have been previously constructed. But from beginning to end of the clause there is no power given to go beyond the soil and pavement of the bridge. In this case, as I have said before, there has been no operation attempted upon the soil or pavement of the bridge, but there have been operations conducted involving very serious interference with the structure of the bridge, which are unnoticed and unwarranted by the clause.
Interlocutors appealed from affirmed, and appeal dismissed with costs.
Counsel for the Appellants— Sir Richard Webster, Q.C.— Fletcher Moulton, Q.C. Agents — Martin & Leslie — Campbell & Smith, S.S.C.
Counsel for the Respondents — Balfour, Q.C. — Graham Murray, Q.C. Agents — Grahames, Currey, & Spens— Hope, Todd, & Kirk, W.S.