Scottish Court of Session Decisions

By section 4 of the Glasgow Police Act 1866 (29 and 30 Vict. c. 273) it is enacted—“The following words and expressions in this Act shall have the several meanings hereby assigned to them, unless there is something in the subject or context repugnant to such construction—that is to say,… ‘lands and heritages’ shall mean lands and heritages within the city, and shall have the meaning attached to that expression in the said Acts (the Lands Valuation Acts). ‘Land or heritage’ in the singular number shall mean one of such lands and heritages separately valued or entered in the roll as separately occupied.… ‘Sewers’ shall include any drain, vault, culvert, or water-course, and all cesspools, traps, and other appurtenances thereof. ‘Public sewer’ shall mean a sewer for the drainage of a turnpike road or public street. ‘Common sewer’ shall mean a sewer for the drainage of a private street or court connected with a public sewer. ‘Private sewer’ shall mean a sewer for the drainage of the lands and heritages of one or more proprietors connected with a public or common sewer or with a river or stream, and shall include any house drain.”

By section 328 of the said Act it is, inter alia, enacted—“The Board shall make provisions for draining in a suitable manner the portions of the turnpike roads within the city and the public streets, and may with that object construct or continue in or under any of the said roads or streets one or more ordinary or special public sewers, and may from time to time alter, renew, or add to such sewers as to them shall seem proper, and may carry and continue the said sewers into or through any lands or heritages within the city, and may repair, maintain, and cleanse the said sewers.”

By section 329 of the said Act it is provided that “the proprietor or proprietors of lands and heritages adjoining any part of a turnpike road within the city or public street in which no ordinary public sewer previously existed, shall severally be bound to relieve the Board from the expense of constructing an ordinary public sewer for the drainage thereof in proportion to the frontage thereto of their respective lands and heritages, and such amount may be recovered from them as damages, or may be levied from them by the Board in the same way as a special police assessment, so soon as but not before some building is

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erected on a land or heritage adjoining such road or street: Provided that where the interior sectional area of such sewer exceeds 7 1 2 square feet, the Board shall contribute the extra expense of constructing the same out of the Statute Labour assessment.”

By section 330 of said Act it is further provided that “the Master of Works shall make up and lay before the Board a statement of the expense incurred in constructing any such public sewer, and of the proportions due by the proprietor or several proprietors of lands and heritages, and such statement in so far as approved of or altered by the Board shall be prima facie evidence of the amount of expense so incurred, and of the proportions thereof due by each proprietor.”

In June 1899 the Corporation of the City of Glasgow, as representing the Board of Police constituted under the said Act, raised an action against Mrs Emily Georgina Carter-Campbell of Possil, Glasgow, wife of Colonel Thomas Tupper Carter-Campbell, and her said husband as her curator and administrator-at-law, and also for any interest he might have, for £1051, 15s. 2d., being the female defender's proportion of the expense of constructing a sewer in Inchbelly Road, Glasgow, fixed according to the frontage of her property to that road.

The pursuers pleaded—“(1) The defender Mrs Emily Georgina Carter Campbell, being the proprietor of lands and heritages adjoining a public street in the City of Glasgow, in which no ordinary public sewer previously existed, and the pursuers having constructed an ordinary public sewer for the drainage thereof in terms of the Act founded on, the defenders are bound to relieve the pursuers from the expense of such construction in proportion to the frontage to that street of her lands and heritages. (2) The sum sued for being the said defender's proportion of the expense of the construction of said public sewer, and being now payable, decree should be granted therefor with expenses.”

The defenders pleaded—“(2) The pursuers not having constructed a public sewer within the meaning of section 328 of the said City of Glasgow Act of 1866, the defenders are entitled to be assoilzied. (3) In any event, the defenders are entitled to be assoilzied, in respect that no buildings have been erected on their property ex adverso of said road.”

Proof was led before the Lord Ordinary ( Pearson). The facts of the case sufficiently appear from the note to his interlocutor.

On 18th April 1900 the Lord Ordinary ordained the defender Mrs Emily Georgina Carter-Campbell to make payment to the pursuers of £1051, 15s. 2d. with interest as concluded for.

Opinion.—“In this case the Corporation of Glasgow sue the defender, proprietor of the estate of Possil, for £1051, 15s. 2d., being her proportion of the expense of constructing a sewer in Inchbelly Road, fixed according to her frontage to that road.

The material facts as to which there is really no dispute are these—The Inchbelly Road runs northward from Springburn in Glasgow to Kirkintilloch. It was a turnpike road, and the part of it now in question was included within the extended city boundary in 1891, and was put on the list of public streets in 1892. As described on the list, its south end is at Springburn car terminus.

In its course northwards the road runs through the defender's lands of Possil, near the eastern march of the estate. On leaving Possil it has Huntershill on the east and Milton on the west. The road rises to the north until it crosses the railway line, from which point it slopes downwards to Bishopbriggs. At the part now in question the ground adjoining the road rises to the east and slopes rapidly downwards to the west to the Possil Burn.

The road was previously drained in the usual way by gullies leading in to the adjoining land. These gullies were entirely on the west side, except towards the south end where the ground is more level. There was no sewer or drain in the road except as after mentioned.

The estate of Possil extends on each side of Inchbelly Road, southward to its terminus, and the proprietor had feued off land on both sides of the road. On the west side three streets run off Inchbelly Road, namely (beginning from the south), Elmvale Street, Eastfield Street, and Carlyle Street. North of Carlyle Street the whole of Possil ground on the west side is in agricultural occupation, being the farm of Eastfield, the farmhouse and steading ( a) of which are situated at the south-east corner, and are approached from the Inchbelly Road. On the east side the ground is feued and built on northward to a point in line with Eastfield Street, and there was an additional feu given off extending further north beyond the fine of Carlyle Street, which, however, reverted to Possil on the failure of the feuar. From the line of Eastfield Street northwards there are no buildings on the east side of the road.

As to the sewers in Inchbelly Road before the one now in dispute, there were (1) a public sewer which came down Balgray Road, and turning sharply north along Inchbelly Road, went along Eastfield Street, down Campbell Street, and so to the Possil Burn; and (2) a branch sewer which began at the east end of Carlyle Street and joined the other at the end of Eastfield Street. The dungstead on East-field Farm, situated at the south-east corner of the steading, drained into this branch, but the farmhouse drained in the other direction.

In and prior to 1897 the proprietors of Huntershill pressed the Corporation to undertake a drainage scheme in order that they might develope their feuing. In the end of 1897 the Corporation took up the matter through its Statute-Labour Committee.

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The Master of Works first proposed that instead of building a sewer the whole length of Inchbelly Road, it should be built in the meantime no further south than the line of Huntershill south march, and that from that point a temporary sewer should be made through Possil land westwards to Possil Burn. This involved the acquisition of a wayleave, and the proprietor of Possil objected mainly on the ground that it was inexpedient to introduce sewage into the Possil Burn where it ran through agricultural ground. The authorities betook themselves to the other alternative, a sewer down Inchbelly Road, and seeing that Possil ground there falls abruptly to the west they naturally consulted with the proprietor as to the depth at which the sewer should be laid so as to suit prospective feuing. In the result the sewer was laid at its present depth, but although the pursuers made averments as to the line and depth of it having been adjusted with the defender's engineer, I do not understand them to maintain that the defender is in any way barred by that circumstance from urging any of her pleas, or that their case against her is stronger than if there had been no such adjustment.

The Master of Works having reported that the sewer in question ought to be constructed, and this being approved by the Statute-Labour Committee and afterwards by the Corporation, it was begun in August 1898, and the first section of it, which extended northwards to a point near the Huntershill south march, was completed in February 1899. The second section of it from that point northwards was let under a separate contract, and was finished about six months later. It is the first or southern section which is here in question. The Corporation itself undertake the cost of so much of it (about 180 feet) as lies south of the middle line of Carlyle Street, the new sewer being to that extent a renewal and enlargement of the previously existing branch sewer already mentioned, which ran in an 18-inch pipe. North of that line the cost of this section is charged against the proprietors in proportion to their frontage to the road; and assuming the defender to be otherwise liable, I do not understand that the accuracy of the allocation is disputed, though the defender does not admit that in allocating the charges for what is practically one sewer, the pursuers are warranted in treating the two sections separately.

The sewer as constructed is an egg-shaped brick sewer with manholes, and its sectional area is just under 7 1 4 square feet. It may be taken that in point of fact nothing like that size of sewer would have been constructed for the mere surface drainage of the road, although that drainage, which previously was not quite satisfactory, is now all carried into it. The moving cause for the construction of the sewer was the urgent request of Huntershill for such drainage as would serve their feuing purposes. And further, the sewer as built is calculated to serve not merely such houses as may be built fronting the Inchbelly Road or naturally draining into it, but about 200 acres of prospective building land, some of which (lying on the west of the road) has its natural drainage to the westward, and more than half of which (lying to the north of the railway) is in another watershed and slopes downwards to the north. But on the other hand the sewer is not of excessive size. It is the normal size of an ordinary main sewer; and indeed is about the smallest size that can be usefully furnished with manholes for cleansing and inspection.

The Corporation maintain that the sewer was constructed, and is now charged for, as a public sewer in conformity with the provisions of sections 328, 329, and 330 of the Glasgow Police Act 1866. The defence raises questions of considerable importance as to the construction and scope of these sections.

The defender contends in the first place that this is not a public sewer at all within the meaning of the Glasgow Police Act. This seems on the statement of it a strange proposition; for if it is not a public sewer in the common acceptation of the term, it is difficult to say what it is. Yet the Act is so worded as to give some colour to the argument. The interpretation clause (section 4) defines the expressions sewer, public sewer, common sewer, and private sewer (‘unless there be something in the subject or context repugnant to such construction’) as follows: ‘ Sewer shall include any drain, vault, culvert, or watercourse, and all cesspools, traps, and other ordinary appurtenances thereof. Public Sewer shall mean a sewer for the drainage of a turnpike road or public street. Common Sewer shall mean a sewer for the drainage of a private street or court connected with a public sewer. Private Sewer shall mean a sewer for the drainage of the lands and heritages of one or more proprietors connected with a public or common sewer, or with a river or stream, and shall include any house drain.’ Thus (it is said) each class of sewer is defined by reference to the thing which it is to drain; and a public sewer is one for the drainage of a turnpike road or public street. So by section 328, which deals with public sewers, the Corporation ‘shall make provision for draining in a suitable manner the portions of the turnpike roads within the city, and the public streets, and may with that object construct … one or more ordinary or special public sewers.’ Here again the draining of a turnpike road or public street is assigned as the sole function of a public sewer. And section 329 lays on the proprietors of lands and heritages adjoining any part of a turnpike road or public street, in which no ordinary public sewer previously existed, an obligation to relieve the Corporation from the expense of constructing an ordinary public sewer ‘for the drainage thereof,’ in proportion to the frontage ‘thereto’ of their respective lands and heritages. In other words, a public sewer must be made not for the drainage of lands and heritages (for that would make it a private sewer), but for the drainage of those parts of public

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streets and roads which were not previously drained. Thus the sole function of a public sewer is to carry the surface drainage of streets and roads; and since this sewer, as constructed, was not suggested and not required for that purpose, but for much wider purposes, it is either not a public sewer at all, or a public sewer and a great deal more; and in either case it is not chargeable as such against the adjoining proprietors.

It seems singular that a ‘public sewer’ should be defined by one, and that not the most important, of its functions. But after all, the purpose of section 4 in distinguishing between public, common, and private sewers is not to describe each fully, but to assign to each its differentia—some feature easily recognisable which will enable it at once to be assigned to its proper category. In this view a sewer is a public sewer if it drains a public street, although it may do a great deal more.

If a ‘public sewer’ is one which drains, or is constructed to drain, a public street and nothing else, the result would be that the whole public sewers of Glasgow would serve for nothing but carrying off the rainfall. There would, I suppose, require to be a separate system of private drains, deprived of the advantage of periodical flushing, and made (except under special circumstances) by the proprietors.

‘The Act itself furnishes an answer to the defender's contention. It demonstrates that the systems are not to be mutually exclusive, and that a sewer is none the less a public sewer because it receives, and is constructed to receive, what may be called private sewage. One need not go beyond the interpretation clause to reach this result; for the definition of private sewer (which expressly includes house drains) requires that it shall be connected with a public or common sewer or with a river or stream; and again, a common sewer must (according to its definition) be connected with a public sewer. Clearly therefore it is the duty of the Corporation in constructing a public sewer for the drainage of a street or road to take account of prospective uses, and to adjust its size to the probable requirements of the common and private sewers which according to the Act will have to drain into it when they are made. This view is emphasised by the terms of section 328. That section speaks of ‘ordinary or special public sewers,’ and section 339 shews that a special public sewer means one built to carry off the refuse of a trade or manufactory which would otherwise have caused a nuisance by entering an ordinary public sewer. It is true that the cost of such special public sewer is (by section 340) laid upon those who use it; but the section implies or assumes that an ordinary public sewer has wider functions than merely draining a road. A further indication of the intention of the Act is to be found in section 329, which lays upon frontagers the cost of ordinary public sewers up to a dimension of 7 1 2 square feet of sectional area, which is the normal area of a main drain adapted to carry off all kinds of sewage.

The defender contends, in the second place, that in any view the proportion allocated upon her is not yet payable. By section 329, the obligation laid on the proprietors is to relieve the Corporation from the expense, ‘so soon as but not before some building is erected on a land or heritage adjoining such road or street.’ And in connection with this must be taken the definition given in the interpretation clause (sec. 4) of the somewhat peculiar expression ‘a land or heritage.’ After defining ‘lands and heritages’ by a reference to the Lands Valuation Acts, the clause proceeds:—‘Land or heritage in the singular number shall mean one of such lands and heritages separately valued or entered in the valuation roll as separately occupied’—a definition which seems to have been inserted mainly for convenient use in framing the assessment clauses of the Act (see sections 39, 42, 45, 46, &c.)

The pursuers' case is, that the requirement of section 329, as to a building being erected before the sum is payable, is satisfied by the existence of any building upon any ‘land or heritage’ adjoining the road or street; that the liability of all the frontagers to make payment is brought into operation by the existence of any building upon any such land or heritage belonging to any one of them.

The general view of section 329 presented by the defender is this—that the proportion of cost effeiring to the frontage of each several ‘land or heritage’ adjoining such road or street only becomes exigible as and when each such land or heritage comes to have a building on it, that being in the general case an indication that that particular land or heritage is beginning to use the sewer, even though it may not be doing so in fact. It is pointed out that the section uses distributive language; the proprietor or proprietors of the adjoining lands and heritages being ‘severally’ bound to relieve the Corporation in proportion to the frontage of ‘their respective lands and heritages.’ The contention is that the whole section must be read distributively, as between one proprietor and another; and also as between one ‘land and heritage’ and another, even when they both belong to the same proprietor. A proprietor of a land or heritage adjoining the road is not to be compelled to pay the proportion effeiring to its lineal frontage unless and until some building is erected upon that land or heritage, irrespective of whether another proprietor, or even he himself, has another ‘land or heritage’ adjoining the road, on which a building has been erected.

This is a simple and reasonable view of the situation and might quite fairly have been adopted as determining the liability to pay. If it had been consistent with the prima facie meaning of the language used in the section, I should have adopted it as the test. But, in my opinion, the ordinary and natural meaning of the language used favours the pursuers' view (though, as afterwards explained, I do not adopt that view in its entirety). Although the section opens with the expression ‘the proprietor’ (in the

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singular number), the distributive expressions which follow plainly relate to the case of an allocation falling to be made among a plurality of proprietors; and the proportion of each being ascertained inter se, ‘such amount’ may be recovered from them as soon as, but not before, ‘some building is erected on a land or heritage adjoining such road or street.’ This latter expression is not distributive. It is quite general, subject only to two limitations imposed by the context, to which I shall advert presently. This view gives effect to all the words, and does not require any words to be supplied. But the defender's view does require the addition of certain words; for in place of the words ‘erected on a land or heritage,’ it requires the words ‘erected on the land or heritage in respect of which the proprietor is sought to be charged.’

Even this difficulty might have been got over, according to received principles of interpretation, if the natural meaning of the words led to manifest injustice or absurdity. But though cases of hardship may be figured (and the present may possibly be one), I think the operation of the pursuers' view in the general case can easily be justified as reasonable and fair. If indeed the object of the test were to mark the moment when the land begins to change its character from rural to urban, it might be regarded as absurd that this test should be held to be fulfilled by the existence (say) of a farmhouse and steading a century old. The statute might have distinguished between buildings which do and do not indicate a development of feuing in the locality, or between buildings erected before and after the sewer was constructed, or between the buildings which do and do not use the sewer. But it takes no note of such distinctions. Consequently, if the defender's contention were well founded, it would lead to this—that a separately valued or separately occupied stance in a street, even in a feuing neighbourhood, is not to bear its proportion unless and until it has a building on it. I can well understand that in the interests of the community the Magistrates and the Legislature thought the proprietor of such a stance should be made to pay now for an improvement which enhances the value of his property by making it much more marketable. The alternative is, that the community have meantime to pay interest (to that extent) on the cost of the improvement while the proprietor holds up his land for the rise. That probably is the normal case which would occur of vacant ground opposite a new sewer; and it is possible that the comparatively rare case of a farm with house and steading being included in the city was not specially before the mind of the Legislature. But they use expressions which include it. The Act cannot provide for each case; it can only lay down some general rule or test of the liability to pay. And I see no such general injustice or absurdity in the test suggested by the pursuers' construction as to induce me to go beyond what I think the words naturally mean.

Of course it falls on the pursuers to show that some building exists answering the requirements of the statute. They suggest three alternatives—(1) the houses facing the road between Carlyle Street and Eastfield Street; (2) the colliery offices on Milton ground near the letter B on the plan; and (3) the farmhouse and steading at Eastfield.

The first two illustrate the limitations which I think the context imposes upon the generality of the words of section 329. One limitation has regard to the position of the building relatively to the sewer whose cost is being charged for. The building must be upon a land or heritage ‘adjoining such road or street.’ That expression relates back to the opening words of the clause, where the lands and heritages whose proprietors are to be assessed are described as ‘adjoining any part of a turnpike road within the city or public street, in which no ordinary public sewer previously existed’ and I read it as meaning that the building must be on a land or heritage adjoining that part of the street or road in which no ordinary public sewer previously existed. Now an ordinary public sewer did previously exist adjoining the row of houses between Carlyle Street and Eastfield Street, and accordingly I discard those buildings as not fulfilling the statutory requirement. I think the colliery offices on Milton estate must also be left out of view for a different reason. They are indeed, I assume, built on a ‘land or heritage’ adjoining this road, and at a part of it where no public sewer previously existed. But they are a long way beyond the terminus of the line of sewer now being allocated and assessed for. The Corporation have chosen not only to construct the sewer in two sections (which of itself might have been immaterial), but to treat it as two sewers for the purpose of allocating the expenses—the one here in question being a sewer extending from A to D ( a). If the other section (D to B) had never been made at all, I do not see that the existence of the colliery offices at B would have involved the defender's liability to pay her proportion of the lower section ( b). The pursuers might indeed have treated the two sections as one, and have allocated the total expenses among the frontagers of both. But they have refrained from doing so, possibly because of the different character of the work involved as the ground rose to the summit level and the sewer came to be in tunnel. I therefore hold that in the present case that sewer

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alone must be regarded whose expense is being charged for, and that the building we are in search of must be one erected on a land or heritage adjoining that sewer.

There remains the farmhouse and steading of Eastfield, as to which the defender puts forward these special contentions—(1) that these buildings would in any view not warrant her being charged now for the whole frontage of the farm, seeing that the farm buildings and the agricultural land enter the valuation roll separately as regards both value and occupancy, so that each is a separate ‘land or heritage’ within the meaning of section 329; and (2) that if her liability is not to extend beyond the farm buildings, she is not liable at all, for a reason to which I shall presently advert.

The first of these arguments turns on the terms of section 329 and the definition of the expression ‘land or heritage,’ and is disposed of adversely to the defender by what I have already said on the general question. I do not think that each ‘land or heritage’ is to be treated separately in the matter, so as to be exempt from payment until a building is erected upon it.

I am assuming that the fact of separate entries appearing in the valuation roll is conclusive as showing that each is a separate ‘land or heritage’ within the meaning of the Glasgow Police Act. I may add, however, that I am not satisfied that the two subjects are to be so regarded in the present question. No doubt each formally satisfies the definition contained in the Act. But I am not aware of any warrant in the Valuation Acts for this double entry in the case of a farmhouse and steading with farm land; and there are decisions of the Valuation Appeal Court to the contrary— Henderson, 1871, 11 Macph. 985; Forbes-Irvine, 1897, 24 R. 741—even in cases where the entries were supposed to be justified, as here, by the circumstance that one of the subjects was or might come to be assessable on a lower scale than the other. This matter was not developed in the discussion before me, and there may be provisions in the Glasgow Acts affecting it; but however convenient such entries may sometimes be, I think they would require statutory warrant before they could be regarded as really separate entries. I should have thought that the farm—including land, farmhouse, and steading—was in a question with the proprietor a unum quid so far as the valuation roll is concerned, irrespective of its being split up for some ulterior purpose connected, not with the ownership, but with the rating of the occupier.

In the view I take, the question does not arise whether, if the present liability of the defender is confined to the frontage of the farmhouse and steading as a separate subject, she is not exempt altogether on the ground that the farmbuildings do adjoin a a public road in which there was previously a public sewer. It is proved that a public sewer previously ran down the Inchbelly Road southwards from the end of Carlyle Street, and that the farm dungstead drained into it, though the farmhouse appears to have drained to the westward. Now the statute uses the word ‘adjoining’ in describing the position of the lands and heritages relatively to the ‘part of the road or street in which no ordinary public sewer previously existed.’ If the road from end to end were to be regarded in this matter as indivisible, the previous existence of the small bit of public sewer at the south end would negative the proposition that it was ‘a road in which no public sewer previously existed.’ But a particular subject may perfectly well adjoin a part of the road in which there was a sewer previously, and another part where there was none. And in so far as it does the latter, I think the proprietor is liable in proportion to his frontage.

The result is, that I hold the pursuers to be entitled to decree in terms of the conclusions. I was informed at the proof that Colonel Carter-Campbell had recently died, and decree will therefore go out against the leading defender only.”

The defender reclaimed, and argued—The Act of 1866 was a taxing statute of the most drastic nature, and the body enforcing it must show that the powers which they were attempting to exercise were clearly conferred on them. The presumption was against them. (1) The sewer in question did not fall within the statute. It was not a public sewer for the drainage of the road. The drain had been made for the accommodation of feus to be given out on the Huntershill estate. The section of the statute founded upon did not apply where the drain was constructed on behalf of a large feuing area, in part distant from the road in question. The drain had been constructed not for a street but for a district. The reclaimer did not deny that the Corporation had power to put the sewer along the road, but they ought to have proceeded under the powers conferred on them by the Public Health Acts, and done the work at the expense of the whole district. In this way justice would have been done. But it was inconsistent with justice that the pursuers should be allowed to drain a district of the city at the expense of the proprietor of a land or heritage alongside of which the road containing the drain happened to run, and notwithstanding the fact that the proprietor called upon to pay was not deriving the slightest benefit from the presence of the sewer. The case of Corporation of Glasgow v. Wyllie, July 12, 1899, 1 F. 1142, had by analogy some bearing on the present question, and indicated that where a large sewer like the present was constructed for the benefit not of the frontagers on the street but for the drainage of a district, an assessment on the proprietors of lands and heritages adjoining the street was not the proper course to follow. (2) If the sections of the Act did apply to the sewer in question, the time had not arrived for enforcing them as against the defender. She was only liable under section 329 after she had erected a building on the land or heritage adjoining the road. The farmhouse had been erected before the passing of the Act, and it did

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not drain into the Inchbelly Road. It was not a building erected on land adjoining the sewer in terms of the statute. (3) In any event, if the farmhouse was held to bring the defender within the purview of section 329, she was only liable to pay for the frontage of land ex adverso of the farm buildings, and not for the frontage of the whole farm. The farmbuildings and the agricultural land were entered separately in the valuation roll, and formed separate lands and heritages in terms of the interpretation clause of the statute.

Argued for the pursuers and respondents—(1) The sewer in question fell under the terms of the statute. It was an ordinary public sewer within the meaning of section 4 of the Act— Corporation of Glasgow v. Morton, November 30, 1899, 37 S.L.R. 177. (2) The farm was a building erected on land adjoining the road, and the defender was therefore liable in accordance with the direct terms of section 329. There were no words expressing or implying futurity in that section; if a building stood upon the land adjoining when the sewer was constructed, the proprietor of that building was liable in proportion to his frontage. (3) The defender was not liable merely in proportion to the extent of the frontage of the part of her land ex adverso of the farmhouse. She was liable in proportion to the extent of the frontage of her whole estate adjoining the road. The statute did not contemplate payment by instalments; it provided for a single payment by each proprietor. The Act provided that if the area of the sewer exceeded seven and a-half square feet the Corporation were to contribute the entire extra expense. This showed that all sewers not exceeding that size were to be constructed at the expense of the adjoining proprietors. No injustice as a general rule would be caused thereby, as it was certain that all land within the city boundaries would ultimately be feued out, and the proprietors would thus recoup themselves for any expense to which they had been put in providing drains for these feus.

On 22nd November 1900 their Lordships of the Second Division appointed the cause to be argued before the Judges of the Division, with the assistance of three Judges of the First Division.

On 21st December the cause was argued before their Lordships of the Second Division, and Lord Adam, Lord M'Laren, and Lord Kinnear,

At advising—