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Cite as: [1899] SLR 37_35, [1899] ScotLR 37_35

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SCOTTISH_SLR_Court_of_Session

Page: 35↓

Court of Session Inner House First Division.

Tuesday, October 26. 1899.

37 SLR 35

Bankier Distillery Company

v.

Young's Collieries, Limited.

Subject_1Process
Subject_2transference Of Action
Subject_3Interdict.
Facts:

Where a party had been found not entitled to pollute a stream by pumping water from his coal mine into it, a motion by the complainer to have an action of interdict against him transferred against his singular successor in the coal mine refused, on the ground that the action was rested upon wrongful acts committed not by that singular successor but by his author.

Headnote:

This was a sequel to the case of The Bankier Distillery Company v. Young & Company, July 20, 1892, 19 R. 1083, aff. July 27, 1893, 20 R. (H.L.) 76. In that case the Court found that the defenders were not entitled to discharge into the Doups Burn water pumped from their coal-workings to the injury of the pursuers, and continued the
Page: 36↓
cause in order to allow the defenders, if so advised, to make arrangements for obviating injury to the pursuers.

On 12th July 1898 Young's Collieries, Limited, was incorporated, and acquired the business of Young & Company, including the lease of the coal mine from which the water had been pumped into the burn.

On 24th June 1899 the Bankier Distillery Company lodged a minute in which they averred that, in spite of the judgment of the Court, neither Young & Company nor Young's Collieries, Limited, had taken the necessary precautions to obviate injury to them, and that consequently water was still finding its way from the coal-workings into the burn in question. They therefore moved the Court, inter alia, to have the cause transferred against Young's Collieries, Limited, and for interdict against Young & Company and Young's Collieries, Limited, as craved in the original action.

Young's Collieries, Limited, lodged answers, submitting that the complainer's averments were irrelevant and unfounded, and that the application for interdict was premature and unnecessary.

Argued for the complainers—The complainer's had an absolute right to interdict, whether the wrongdoers were taking steps to mitigate the injury or not— Seafield v. Kemp, Jan. 20, 1899, 1 F. 402. Unless the action were transferred against Young's Collieries, Limited, and interdict granted, the complainers would be deprived of their remedy, and would have to fight their case through again from the beginning.

The argument for the respondents sufficiently appears from the opinion of the Lord President.—Stair, iv. 34, 3; and Act 1693, cap. 15, referred to.

At advising—

Judgment:

Lord President—The petition in the action in which this present question arises originally contained a conclusion for payment. That conclusion was exhausted by the interlocutor of 20th July 1892; and the action is now solely an action for interdict. The ground upon which interdict was sought in the action was certain acts of pollution committed by the original defenders years before the present defenders acquired or had anything to do with the collieries. The Court, by a finding in the interlocutor of 20th July 1892, negatived the right of the defenders to discharge into the burn in question water pumped from their coal-workings to the injury of the pursuers. Instead, however, of pronouncing interdict, the Court, according to a well—established practice, continued the cause in order to allow the defenders, if so advised, to make arrangements for obviating injury to the pursuers. The pursuers now complain that the arrangements made are not effective; and they in their minute state that Young's Collieries, the new proprietors, who came into possession in 1898, are now polluting the stream. The important point is, that the pursuers' demand is for interdict against the new proprietors, and indeed it could be nothing else if the action is to be transferred against them, and a decree taken under the existing petition.

I am of opinion that the action cannot be transferred against Young's Collieries, the new proprietors. The action is rested not on pollution by them but on pollution by their predecessors, to whom they are singular successors, and according to our law interdict is only granted against any person on the ground of acts done by him constituting an infringement or menace of the rights sought to be protected. The fact that the pollution complained of was done from the property now belonging to Young's Collieries does not subject them to be interdicted—interdict being a purely personal remedy directed against the person who is said in the action to have violated or threatened the pursuers' rights. The new company is not the heir of its predecessors, and did not by acquiring the collieries subject itself to liability for illegal acts done by its authors. Nor can the pursuer now ask the interdict concluded for in the action because of acts done by Young's Collieries years after the record was closed. If they have any case of this kind it must form the ground of a separate action.

I am for refusing the motion to transfer the cause.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court refused the motion to have the cause transferred against Young's Collieries, Limited.

Counsel:

Counsel for the Complainers— Campbell, Q.C.— J. Wilson. Agent— G. Monro Thomson, W.S.

Counsel for the Respondents— Clyde. Agents— Webster, Will, & Co., S.S.C.
1899