Scottish Court of Session Decisions

Major Ronald Kincaid Smith of Polmont House, Stirlingshire, presented a note of suspension and interdict against William Cameron, farmer, Crossgatehead, in the parish of Polmont, the School Board of Polmont Parish, and Mrs Jane Baxter or Grant, Alexander Hunter, and James Baxter, all residing there, in which the complainer prayed the Court “to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondents, and all others acting by their authority, from sending or discharging on, to, or upon the complainer's lands of Polmontside, in the parish of Polmont and county of Stirling, or into the drains or ditches within the complainer's said lands, or into the streams of water passing

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through the complainer's said lands from the lands of Crossgatehead in said parish and county belonging to the said William Cameron, or the feus off said lands of Crossgatehead, and buildings thereon, held or occupied or possessed by the said the School Board of the Parish of Polmont, Mrs Jane Baxter or Grant, Alexander Hunter, and James Baxter respectively, any sewage or any other impure stuff or matter of any kind, or impure liquid or water, whereby the complainer's said lands may be fouled, or the water of the said drains, ditches, and streams in their progress through or along the said lands may be polluted or rendered unfit for domestic use, or for the use of cattle and horses, and to find the respondents jointly and severally liable in expenses.”

The respondent William Cameron and the School Board of Polmont lodged separate defences. The other feuars did not appear to defend the action.

A proof was led. The facts of the case and the contentions of the parties sufficiently appear from the opinion of the Lord Ordinary ( Pearson).

On 24th April 1900 the Lord Ordinary pronounced the following interlocutor:— “Finds that prior to the feuing of part of hisland by the respondent William Cameron to the other respondents, the water in the water-course in the complainer's lands and farm of Polmont side, marked LM on the plan, was and had all along been unpolluted by sewage and fit for drinking by man and beast; and that the ditches on the said farm to the west of said water course were unpolluted by sewage, and fit for watering cattle, and that at and near the said water-course, and to the west thereof, the complainer's said lands were free from contamination by sewage: Finds that by and through the immission of sewage and other impure matter from the said feus into and upon the complainer's said farm, the respondents have fouled the land thereof in various places, and have polluted the water of the said ditches and water-course, and rendered the same unfit for the use of cattle, all to the nuisance and injury of the complainer: And before further answer on the question of interdict, Allows the compearing respondents respectively to state in a minute, to be lodged by the third sederunt-day in May next, what steps, if any, they are willing to take to remedy the said state of matters and to prevent its recurrence: Finds the compearing respondents jointly and severally liable to the complainer in the expenses of the proof, and remits,” &c.

Note.—“The complainer is proprietor of the lands of Polmontside, in the county of Stirling, which are occupied as a dairy farm by his tenant William Carlaw. The respondent William Cameron, dairy farmer, is proprietor of the adjoining lands of Crossgatehead, which slope downwards towards Polmontside, and the other four respondents are feuars on Crossgatehead. The subjects feued have all been given off quite recently, and were previously agricultural ground.

The feus, taking them from west to east, are Baxter's, Polmont School Board's, Hunter's and Grant's. They are bounded on the north by a road about 20 feet wide, and parallel to the road, at a distance of about 30 feet further north, runs the march between Cameron's ground and the complainer's. Thus the ground between the feus and the complainer's march remains the property of Cameron, consisting of the road and the intervening strip of 30 feet.

On three of the feus (Baxter's, Hunter's, and Grant's) there have been built dwelling-houses with offices, nine in number, with a population in all of forty-three. The School Board have built on their feu a public school, which besides five adults, has an average attendance of 344 children. Each feu has a drainage system, the closets being dry earth closets, except on Grant's feu, where an ash-pit serves instead. The feus all drain to the north, according to the lie of the ground. The school drains go under the road in two 6-inch pipes, which then cross the intervening strip belonging to Cameron, and connect with a 9-inch pipe in the complainer's land. This 9-inch pipe, which was specially laid by the School Board under the circumstances aftermentioned, runs eastward, and empties itself into a small water-course which runs through the complainer's dairy farm and falls into the Polmont Burn. The drains from the other three feus are carried in pipes under the road, on the north side of which they debouch into the open on Cameron's ground. Thence their drainage finds its way by various routes to the complainer's land. Grant's goes straight down the aforesaid water-course from the top. Hunter's finds its way to an old grassy ditch almost on the line of the 9-inch pipe, and so eastwards to the water-course, though in part it makes its way to an open farm ditch further north, and through this it reaches the water-course. Baxter's goes into this open ditch with the same result.

The complainer now seeks to have the respondents interdicted from discharging sewage ‘on, to, or upon the complainer's lands of Polmontside, or into the drains or ditches within the complainer's said lands, or into the streams of water passing through the complainer's said lands … whereby the said lands may be fouled or the water of the said drains, ditches, and streams … may be polluted or rendered unfit for domestic use or for the use of cattle and horses.’

This is resisted only by William Cameron and his feuar the School Board. The other three feuars make no appearance, and it may be taken that if there be pollution, they materially contribute to it.

Each of the two compearing respondents denies pollution on record. The first question therefore is, whether the complainer has succeeded in proving pollution, and from what source? There is a question behind, namely, who is responsible in law for it; and on this question each of the compearing respondents pleads that the other is the culprit.

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In my opinion the complainer has proved his averments of pollution both to land and water. The former is more nearly akin to the ordinary case of nuisance, while the latter, the pollution of running water, is usually accompanied by a declarator of the extent of the pursuer's right to have the water maintained at a certain standard of purity. The complainer's case is rested on both grounds, and in the circumstances I do not think the evidence requires to be treated separately as regards the two grounds of complaint. But I observe in passing, that while the prayer seeks for interdict against the ditches and streams being ‘rendered unfit for domestic use, or for the use of cattle and horses,’ there is no averment that the water in the water-course was fit for domestic use, or was so used, though I do not doubt that it was in fact up to that standard. Even the proposition that it was previously fit for the watering of beasts is only stated inferentially in statement 7, in the averment that it is so polluted by the respondents as to be rendered unfit for that purpose.

On this question of pollution I accept the testimony of William Carlaw, and of his sister and nephew. Mr Carlaw has been tenant of the dairy farm of Polmontside for fifty-four years, aided during the whole of that time by his sister, and for the last nineteen years by his nephew Archibald Carlaw. No doubt the very length of their stay in the farm renders it impossible for the complainer to multiply evidence on the matter. But it also renders that unnecessary if their evidence is accepted (as I do accept it) as honest, accurate, and free from exaggeration. These things are clear—(1) that until the feus were given off no house sewage found its way into any of the drains or water-courses (always excepting the Polmont Burn, which had a bad character before it reached Polmont side farm, thereby making pure water the more valuable to the farmer); (2) that the water in the water-course was previously fit for drinking by man and beast—a good potable water, partly spring and partly surface water, and at all events, in point of fact, serving for the ordinary use of the cattle grazing in the adjoining parks during all that long period; (3) that as soon as the feus came to be occupied it gradually became polluted, and that the opening of the school on 1st November 1898 was followed by a considerable increase of pollution, with the result that the cattle now refuse to drink, and show evident signs of distress both in the field and at the byre.

The main source of the water-course seems to be a field drain coming from the higher ground. It runs with a fair stream in winter, though small in volume, but in summer it is often nearly dry, and the tenant has been in the habit of damming it up at two or three places, especially near the top and near the bottom (where its channel is not so deep), to collect water for the cattle. This has not been done latterly since the pollution declared itself, as the cattle refused the water altogether.

The evidence of the Carlaws is strongly supported by the observation of several witnesses, who testify to what they actually saw in the way of house-sewage pollution in and about the exit of the various drains and the grassy ground adjoining. I refer to the evidence of Mr Belfrage, Mr Black, and Mr Wakelin on this matter, and especially to that of Mr Gow. In my opinion, this body of testimony is very far from being overborne or even much affected by the negative evidence adduced against it.

All this coincides with the introduction for the first time of an efficient cause for the deterioration of the water and the fouling of the land. No other source for it is suggested except the four feus given off by Cameron; and what goes on upon these feus is sufficient to account for all that has been observed. Indeed, it is not easy to see how the result could have been avoided considering the drainage arrangements.

It appears that there is no general drainage system in the district, though there has for some time past been an application before the County Council for the formation of a drainage district. Perhaps for this reason the arrangement as to the feus is obviously and admittedly a temporary arrangement—a makeshift. There is not even an attempt at a common system among the feus themselves; and they use the modern appliances of sinks, piping, and the like just up to the point at which their effect is most detrimental to other people, and there they leave it. The result is that instead of spreading and absorption and evaporation, such as took place under the older methods, the sewage is delivered in a concentrated form at definite points, and is then left to take care of itself.

Passing by the other three feus, it is right I should explain briefly at this stage the position of parties as regards the School Board drainage.

The school feu was given off in August 1896. By the title the School Board were taken bound at their own expense to form and maintain good, proper, and sufficient drains for the effectual drainage of the buildings to be erected, it being ‘specially understood that the superior is to be at no expense whatever in connection with drains, drainage, or sewers, except to provide a proper outlet for same.’ The Board proceeded to erect school buildings to accommodate over 300 children. The drainage pipes provided were two 6-inch pipes which were carried under the road northwards, and across the respondent Cameron's intervening strip of ground, to the complainer's march. I entertain no doubt that (as spoken to by Mr Walker and Mr Strang) this was done by the School Board in the knowledge and with the permission of Mr Cameron. Indeed, it seems to have been his way of implementing his obligation to provide an outlet. Of these two 6-inch drains, the westmost carried the sewage from all the school urinals and from the boys' wash-basius; the eastmost served the other wash-basins. Each drained part of the school yard by means of gratings. The school buildings were begun by May 1898, and they were

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completed and the school opened on 1st November. Early in May an encroachment on the complainer's lands, by the deposit of some of the excavated soil, led to a meeting on the ground, held on or about 16th May. There were present Mr Mitchell (chairman of the School Board), Mr Strang (their architect), and Mr Carlaw. At this meeting it was suggested, apparently by Mr Carlaw, that a 9-inch pipe should be laid in the complainer's ground near the march, practically in the line of an old grassy ditch, in order to diminish the chance of flooding by surface water. This proposal was further considered at a meeting on the ground, held on 27th May, attended by Mr Cameron, Mr Carlaw, Mr Wakelin (the complainer's agent), Mr Strang, two members of the School Board, and the clerk of the Board. The result was that the proposal as to the 9-inch pipe was approved, and it was shortly afterwards laid by the School Board. Apparently some members of the Board supposed that this was provided by arrangement for the carriage of the school sewage. I think it clear that this was a mere misapprehension. Mr Wakelin's note made in his attendance book at the time clearly shows that in his view the 9-inch pipe was to carry only surface water, and I find it difficult to understand how the School Board took up the contrary view in spite of the explicit statement in Mr Wakelin's letter of 28th May.

Six weeks later the matter came up again upon a protest by Mr Wakelin. On 12th July he wrote to the School Board, calling attention to the nearly complete arrangements for a system of drainage of the sewage into the 9-mch pipe, and claiming that the sewage drains should at once be disconnected from it. The Board on 18th July resolved so to disconnect the sewage drains, and to call on Cameron to provide an outlet in terms of his obligation. On the following day Mr Strang reported that the disconnection had been made, and this was intimated to Mr Wakelin. In point of fact the disconnection was effected by stopping the pipes within the school urinals and at the washbasins, but as the school was not then open there was no visible change.

The matter rested on this basis until 27th September 1898, when the School Board, who were anxious to open the school as soon as possible, met to consider the failure of Mr Cameron even to reply to their letter of July, requiring him to provide an outlet. They instructed their agents to enforce the demand, and the result was an action in the Sheriff Court, to which the defence stated by Mr Cameron was that he had never been asked to provide an outlet and had not refused to do so. The action being sisted to enable parties to arrange, a meeting was held on the ground on 15th October between Mr Strang, Mr Cameron, and Mr Denholm, the sanitary inspector of the district, which, however well—meaning, had an unfortunate issue. While the three were together the arrangement made was that Cameron should put in a cesspool or tank on the line of each 6-inch pipe within his own ground north of the road, that the cesspool should receive and retain the whole contents of the pipe, and that its cover should be so constructed as to admit a pump, by means of which Cameron was to empty the cesspools from time to time into carts and use the contents for manure. Mr Cameron at first suggested built cesspools, but on Mr Denholm's suggestion it was agreed that sunk water barrels would suffice. That this was the arrangement is plain from the evidence, and from Mr Strang's jottings and letters written at the time. But in his absence it appears that Mr Denholm afterwards advised Mr Cameron to substitute for the cesspool a perforated barrel, with nine to twelve inches of cinders outside, the idea being not to use the barrels as cesspools to be periodically emptied, but as filters in combination with the surrounding ashes. If the surrounding soil had been sufficiently porous to dispose of the fluids by percolation, this might possibly have worked well enough. But the soil is clayey, and although the topmost three feet (or thereabouts) was forced earth, the result in point of fact was that the barrels were water-logged, and that the effluent water had to be provided for by leaving open the end of the 6-inch pipe as it left the barrel. Mr Strang shortly afterwards, being in ignorance of this vital change, and being assured by Cameron that he had carried out the agreement as to cesspools, reopened the connection of the school drainage system with the 6-inch pipes. This (so soon as the school should be opened) involved the transmission of the whole school sewage through the 9-inch pipe; because (as I have said) the barrels filled up, and the sewage that came in at one side simply flowed across the surface and went down the pipe at the other side.

Mr Wakelin, who seems to have been vigilant throughout, warned the School Board by letter of 24th October of this state of matters. The clerk merely replied that Mr Cameron was to find them an outlet, and that he was understood to be executing some operations on his own lands to deal with the school drainage, with which the Board had nothing to do. He added that the Board understood there would be no sewage from the school passing those drains. On 28th October, four days before the school was opened, Mr Wakelin wrote letters in the most explicit terms both to Mr Cameron and to the School Board. By this time, although the school had not been opened, the sewage from the other feus had begun to affect the dairy farm injuriously: and in writing to Mr Cameron, Mr Wakelin demands that the sewage both from the houses and the school should be stopped from coming on the complainer's lands. In his letter to the School Board clerk he points out distinctly the actual state of matters at the cesspools, and the certainty of increased pollution after the opening of the school. The replies are instructive, but I need not

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advert to them. The point is that both had explicit warning of what was likely to happen; and in particular, the School Hoard cannot, after this correspondence, justify the ‘surprise’ with which their officials, Mr Strang and Mr Allen (the solicitor), found a year later, in October and November 1899, that the original arrangement with Cameron had been departed from, and that after all there was an outflow from both barrels into the 6-inch and the 9-inch pipe.

I have dealt with the proof of pollution apart from the evidence of the analytical chemists. It is perhaps fortunate for the complainer that, in my opinion, his case does not depend on that evidence; because if the strict rules observed (and properly observed) by some chemists were applied, some doubt would be thrown upon the results of the analysis by the proceedure in taking the samples. It happens that sample 3, by far the most favourable for the complainer's view, was taken in a bottle obtained for the occasion from a neighbouring shop. Of its previous contents nothing is known; and the best that can be said of it is that ‘it looked all right.’ The other two samples, taken from near the eastmost barrel, were above suspicion, and Dr Macadam pronounces them to be unfit for human consumption, and not of proper quality for the use of cattle. The third sample, with its enormous excess of ammonia, suggests to Dr Macadam the presence of urine in large quantity; and it is worthy of notice that this was obtained from the westmost barrel, into which goes (contrary to the theory of the respondent Cameron's witnesses) the whole drainage from all the school urinals. That is a coincidence which suggests to my mind that after all the third sample bottle was quite clean (and there is no reason for supposing it was not), and that sample 3 is a true sample of that effluent. One other observation certainly falls to be made upon the complainer's samples, namely, that none of them is taken at and below the point or points of exit upon the complainer's land. In the ordinary case this observation would be of considerable weight; but here the sewage is confined in a pipe, and must reach the water-course a few yards down in practically the same condition; and the volume of sewage is so unusually large in proportion to the run of the water-course in dry weather, that a question can hardly arise whether the pollution would he immaterial. As to the respondent's experts, their evidence, besides being largely theoretical and remote from the proved facts of this case, is based on a standard of purity which sounds strangely low when applied to the question whether this little water-course, almost dry in summer, but with an untainted character, is now to receive sewage for the first time. I do not think that the standard of purity required on admitting the effluent of sewage works into rivers has much to do with the present question; and the proprietor of this water-course may well object to be tried by any such test. Upon the whole, on a balance of the expert evidence, I do not think it makes against the complainer's case, and I am the more disposed to say so when Dr Brock backs out of his assertion that this is certainly a polluted stream, with the explanation that there is no pure water in nature; and Dr Aitken, while declaring that all his samples are unfit for primary purposes, and all contain traces of urine, suggests that cattle may prefer polluted water.

As regards the legal question of the liability of the several respondents, this is certainly a case of some peculiarity, owing (1) to the existence of the interposed strip of Cameron's land; (2) to the attempt by him to remedy matters by means of the barrels; and (3) to the position of the School Board in still using for sewage the 9-inch drain pipe which they laid down in the complainer's land, and which, I suppose, remains their property. I am of opinion that the drainage must be regarded as coming on Cameron's ground with his own approval and assent, and that, when he receives it there, he is bound to deal with it in a legal manner; and that this is specially so as regards the school sewage, owing to his obligation to provide an outlet. On the other hand, the School Board were parties to the putting in of the barrels as in implement of an arrangement which they wrongly assumed (after distinct warning to the contrary) was being adhered to by Cameron. And further, they are still transmitting sewage through the 9-inch pipe, which they were allowed to lay in the complainer's ground under an arrangement (as they themselves expressly aver on Record, Answer 5) ‘that the surface water from the school should flow through the complainer's ground, but that no sewage should be discharged there.’ I hold that in these circumstances both Mr Cameron and his feuars are rightly called to answer the complaint, and that all of them are jointly liable for the pollution and the nuisance. I think, however, that the compearing respondents should have an opportunity of remedying the existing state of matters before the question of interdict is disposed of.”

The respondents the School Board of Polmont reclaimed, and argued—If a nuisance existed they were not the wrongdoers. Under their feu-disposition they were entitled to make drains in their own property, and drain their sewage to an outlet to be pointed out by Cameron within his grounds. Under their contract with Cameron the latter was thus bound to dispose of the sewage. He was paid by them to do so. If the sewage had been properly disposed of by Cameron after it reached his ground there would have been no nuisance. But if Cameron dealt with the sewage or failed to dispose of it and allowed it to run down into the complainer's property, he alone was responsible. He got it by contract from them and allowed it to run down into the property of another through a pipe not intended for the purpose. He and he alone was therefore the author of the nuisance. Besides, when a person feued

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out his ground for dwelling-houses, the drainage of which caused a nuisance, the superior was liable therefor, and was the person who ought to be sued. The feuars merely made the use of the lands which the superior authorised them to make. The superior was therefore the real author of the nuisance— Mackay v. Greenhill, July 14, 1858, 20 D. 1251; Caledonian Railway Co. v. Baird & Co., June 14, 1876, 3 R. 839; Scott v. Scott, June 28, 1881, 8 R. 851. Even if they were held to be liable, they should not be found liable jointly and severally in expenses. They had taken no part in the proof as to pollution. The proof on that point had been led by Cameron alone, and they ought only to be found liable in expenses so far as caused by their appearance.

The respondent Cameron took advantage of the School Board's reclaiming-note, and argued—There was no proof of material pollution. Even if there Was, he was not the party responsible. All that he had undertaken was to give the School Board a proper outlet. A proper outlet meant a sufficient outlet, or in other words a way-leave over his lands. But it was not the pipes that caused the pollution, it was what was in them. For that the School Board were alone responsible. They caused the pollution, and were thus clearly the true authors of the nuisance. This was not a case in which the superior formed drains for his feus and allowed the feuars to put their sewage into his drains. This fact distinguished the present case from that of Scott, supra, and similar cases.

Argued for complainer—Material pollution was plainly proved. Both respondents were liable. The polluted matter was produced by the School Board on the ground that Cameron had feued to them, and with Cameron's consent it was run on to his land, and from thence flowed down into the land of the complainer. The School Board and Cameron by their united action thus caused the nuisance. They were joint delinquents, and if two or more people by their joint action caused a nuisance they were both liable— Duke of Buccleuch v. Cowan, December 21, 1866, 5 Macph. 214, charge of Lord Justice-Clerk Inglis, p. 216. As to expenses, the two compearing respondents had been rightly found liable jointly and severally. Both of them denied the existence of pollution on record.