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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Caledonian Railway Co. v. Perth District Committee of County Council of Perth [1901] ScotLR 38_748 (04 July 1901)
URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0748.html
Cite as: [1901] ScotLR 38_748, [1901] SLR 38_748
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SCOTTISH_SLR_Court_of_Session
Page: 748↓
Court of Session Inner House First Division.
[
v.
Under the provisions of the Public Health (Scotland) Act 1897 a local authority is entitled to lay a sewer through lands on condition of paying compensation to the owner for any damage he may have thereby sustained, and is not obliged to purchase the land in which the sewer is laid, or a servitude right in it.
The Perth District Committee of the County Council of Perthshire, in order to construct a sewer for the special drainage district of Tulloch and Hillyland, presented a petition to the Sheriff Under Section 107 of the Public Health (Scotland) Act 1897 praying for the appointment of an engineer to report on the mode of carrying out the laying of the sewer under the railway of the Caledonian Company near crieff. They had previously given notice to the company, and lodged with them a copy of the specification of the work proposed to be done under the company's line.
The Caledonian Railway Company maintained that the petitioners were bound to purchase the land required for the laying of the sewer, and pleaded that as they had not done so, or taken any steps towards doing so, the petition was premature and incompetent.
The Sheriff-Substitute ( Sym) appointed an engineer to report as craved, and thereafter, upon said report being presented, on 11th January 1901 pronounced an interlocutor authorising the District Committee to commence operations. The Caledonian Railway Company presented a note of suspension and interdict, in which they asked for interdict against the District Committee following and acting upon the said interlocutor of the Sheriff-Substitute.
The complainers pleaded—“(1) The statements of the respondents are irrelevant. (2) The respondents not having entered into an agreement with the complainers for the purchase and taking of land for the works in question, or otherwise not having observed the regulations prescribed by section 145 of the Public Health (Scotland) Act 1897 with respect to the purchase and taking of said land otherwise than by agreement, the complainers are entitled to decree as craved. (3) The respondents not having paid compensation to the complainers in terms of the Lands Clauses Acts, as provided by sections 144 and 145 of the Public Health (Scotland) Act 1897, are not entitled to enter upon, take, use, or interfere with the complainers' property, and interdict should therefore be granted as craved. (4) The Sheriff-Substitute having no jurisdiction to make the remit or grant the warrant complained of, interdict should be granted as craved.”
Answers were lodged for the District Committee, in which they stated the following pleas:—“(1) The statements of the complainers are irrelevant. (2) The actings of the respondents having proceeded regularly in terms of the provisions of the Public Health (Scotland) Act 1897 relative to the construction of sewers below railways, the reasons of the suspension should be repelled, and interdict should be refused with expenses.”
The sections of the Public Health (Scotland) Act 1897, on which the question between the parties turned, are quoted in the opinions of the Lord Ordinary and of the Lord President, infra.
On 15th March 1901 the Lord Ordinary (Low) pronounced an interlocutor whereby he refused the prayer of the note.
Opinion.—“The respondents are the Perth District Committee of the County Council of Perthshire, and are the local authority within their district. For the purposes of a special drainage district which has been formed the respondents propose to lay a sewer under the complainers' railway between Perth and Crieff, and the question which is raised by the note is whether the respondents are bound to purchase from the complainers the land which is required for constructing the sewer under the powers of compulsory purchase given to them by the 144th section of the Public Health (Scotland) Act 1897, or whether they are entitled to construct the
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sewer upon condition only of making compensation to the complainers for any damage which they may sustain thereby in terms of the 164th section of the Act. The respondents have proceeded under the 103rd and 107th sections of the Act.
By the former section it is provided that ‘the local authority shall have power to construct within their district’ (and in certain cases without their district) ‘such sewers as they may think necessary … through, across, or under any public or other road, or any street or place, … and after reasonable notice in writing (if upon the report of a surveyor it should appear to be necessary) into, through, or under any lands whatsoever.’
I may say here that it seems to me that the words in brackets, ‘if upon the report of a surveyor it should appear to be necessary,‘refer to the necessity of constructing a sewer through the lands, and not to the necessity of giving written notice.
The 107th section is for the protection of railways and canals, and provides that where any sewer shall pass under or across or in any way affect, inter alia, any railway, (1) the works shall be executed to the satisfaction of the engineer of the railway and according to plans approved by him; (2) the work may be executed either by the railway company or the local authority at the option of the engineer of the railway company; and (3) in the event of the local authority and the engineer of the railway company differing in opinion in regard to the works or the mode of carrying them out, ‘such difference shall, on the application of the local authority or of the railway company, be referred to an engineer to be appointed by the Sheriff, and shall be decided by the Sheriff upon the report of such engineer, and such decision shall be final.’
In this case the complainers, on the ground that the respondents were bound to purchase the land required for the sewer under the 144th and 145th sections of the Act, refused to come to any arrangement with the respondents in regard to the manner in which the work should be carried out, and accordingly the respondents applied to the Sheriff under the 107th section, and the Sheriff, after receiving a report from an engineer, authorised the respondents to commence operations, and to carry them out in a particular way.
The present note prays that the respondents should be interdicted from following out and acting upon the Sheriff's interlocutor, upon the ground that they are not entitled to lay a sewer under the railway lines unless they acquire the land necessary for that purpose under the purchase clauses.
The 144th section provides that ‘a local authority may, for any of the purposes of Part II., Part III., and Part VI. of the Act in terms of the Lands Clauses Acts, and whether by agreement or otherwise, purchase any lands within or without their district.’
Part VI. of the Act deals with sewers, drains, and water supply, and begins with section 101 and ends with section 132. It therefore includes section 103.
The 145th section contains the regulations to be observed with respect to the purchase of land otherwise than by agreement. The local authority must in the first place publish advertisements describing the purpose for which they propose to acquire lands, lodge plans, and give notice to the owners of the lands proposed to be taken. They must then present a petition to the Board of Trade praying for authority to put in force the Lands Clauses Act, and if after inquiry the Board of Trade consider that the powers asked should be given, they confer these powers by Provisional Order. If no objection is taken in the manner and within the time provided the Order becomes final and has the effect of an Act of Parliament. There is also provision made for the appointment of an arbiter in cases of disputed compensation, and it is declared that the arbiter so appointed shall be deemed to be sole arbiter within the meaning of the Lands Clauses Acts.
The complainers also founded upon the meaning given to the word ‘land’ in the third section. It is there defined as including ‘water, and any right or servitude to or over land or water.’ The complainers founded upon that definition as showing that in such a case as the present the local authority did not require to purchase the lands out and out, but only such a servitude as might enable them to lay the sewer.
The complainers' argument is, that seeing that in section 103, which is included in Part VI. of the Act, power is given to the local authority to construct sewers in or through any lands whatsoever, and that by section 144 they are given powers of compulsory purchase for any of the purposes of Part VI., the necessary conclusion is that in order to construct the sewer they must purchase the lands or the necessary servitude.
Now, in looking through Part VI. of the Act I find there are some cases in which the local authority is empowered to do certain things which involve the taking possession of land, where nothing is said in regard to their acquiring the land, while in other cases the authority to do something involving the taking possession of land is coupled with express power to acquire the land compulsorily.
The 103rd section is an example of the first of these classes, and by section 126 (4) the local authority are given the same powers for carrying water mains within their district as they have for carrying sewers within their district—that is to say (according to my understanding of the enactment) the powers conferred upon the local authority by the 103rd section, of constructing sewers within their districts, are made applicable to water mains.
As examples of the second class of case I may refer to the 108th section, which refers to the disposal of sewage, and the 126th section, sub-section 1, which refers to water supply.
By the 108th section it is provided that the local authority may, ‘in terms of sections
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144 and 145 of this Act, contract for, purchase, or take on lease any lands … for the purpose of receiving, storing, or disposing of or treating sewage.’ By section 126 (1) the local authority is empowered, for the purpose of providing a supply of water for domestic use, to acquire and conduct water from any lake, river, or spring, to make and maintain reservoirs, and to purchase premises, ‘and for the purposes foresaid the local authority shall be held to have all the powers and rights given to … promoters of undertakings by the Lands Clauses Acts as amended by this Act.’
Corresponding to these two different classes of powers which are given to the local authority, there are two separate provisions in regard to compensation. In the first place, in the 145th section provision is made for compensation in the event of lands being acquired compulsorily; and in the second place, it is provided by the 164th section that ‘full compensation shall be made out of any fund or assessment applicable to the purposes of this Act to all persons sustaining any damage by reason of the exercise of any of the powers of this Act except when otherwise specially provided.’
I therefore come to the conclusion that it is impossible to read the 103rd section as meaning anything else than that the local authority are to have power to take a sewer through any lands without purchasing them. The complainers argued that that view involved the possession by the local authority of unprecedented powers, which might result in very great hardship to the owners of lands. If I am right in thinking that the language of the Act admits of only one interpretation, it is unnecessary to consider what the intention of the Legislature was, but I think that it may be surmised that these large powers in the way of laying down necessary sewers were given to the local authority because if before they could run a sewer through their district they required as regarded every holding through which the sewer was to pass to carry through the elaborate and expensive procedure provided by the 145th section, the result might be that in many cases the sewer (which ex hypothesi is a necessary sewer) could not be constructed at all. In regard to the owners of lands through which the sewer may run, I cannot think that they have much to complain of if they receive full compensation for any damage which they may sustain.
I may add that I am confirmed in the view which I have taken by the interpretation which was put upon almost identical provisions in the English Public Health Act 1875 by the Chancery Division of the High Court of Justice in the case of Roderick v. Aston Local Board, 5 Ch D 328.
I shall therefore refuse the prayer of the note.”
The complainers reclaimed, and argued—The District Committee were not entitled to lay the sewer under the line without acquiring the land required. This they had power to do under section 144 of the Act. It was not necessary for them to purchase the line, which it was admitted the reclaimers had no power to sell: all they required was to purchase a right of servitude. The value of such a right could be ascertained by arbitration in the ordinary way. Section 164, under which the respondents proposed to pay surface damage only, was intended only to relate to the case of owners of lands through which the sewer did not pass, but which might suffer incidental damage through its construction.
Counsel for the respondent were not called upon.
At advising—
The proceedings of the respondents have been taken under sections 103 and 107 of the Act of 1897. By section 103 it is declared that the Local Authority shall have power to construct within their district such sewers as they may think necessary through across or under any public road or any street or place, and after reasonable notice in writing (if, upon the report of a surveyor it should appear to be necessary) in, through, or under any lands whatsoever. The Lord Ordinary has held that the words “if upon the report of a surveyor it should appear to be necessary” refer to the necessity of constructing a sewer through the lands, not to the necessity of giving written notice, and I think that in this he is right. It would be difficult to conceive larger language than that which is used in section 103, though it is not surprising that it was employed by the legislature when regard is had to the importance of the public object which it was directed to accomplish. It is nowhere declared that a Local Authority shall purchase or acquire the land through which a sewer will pass as a condition of their power to construct it.
Section 107 makes provision for alternative modes of carrying out the work where any sewer passes under or across or in any way affects railways and canals, but its provisions do not appear to me to bear directly upon the present question.
The complainers maintain that the respondents are bound to purchase the land required for the construction of the sewer under sections 144 and 145 of the Act, and they therefore decline to come to any arrangement with the respondents as to the mode of executing the works,
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The question whether the contention of the complainers is or is not well founded depends chiefly upon the terms of sections 144 and 145 of the Act. Section 144 declares that “a Local Authority may, for any of the purposes of part II, part III, and part IV. of this Act in terms of the Lands Clauses Acts, and whether by agreement or otherwise, purchase any lands within or without their district, and may by agreement take on lease, sell or exchange any lands within or without their district.” Part IV relates to, inter alia, sewers, and includes section 103, by which the power to construct sewers is conferred. It is to be observed that section 144 is expressed as conferring a power, not as imposing an obligation, and it may be that under it a Local Authority might be entitled to acquire land for the construction of a sewer if they considered this requisite, though not bound to do so. Section 145 contains elaborate provisions for the compulsory purchase of land, and the complainers point out that by section 3 (the interpretation clause) the term “land” is declared to include “water, and any right or servitude to or over land or water,” and upon this they argue that in the present case the complainers do not require to purchase the land out and out, but only to purchase such a servitude as would enable them to lay the sewer. What kind of servitude this would be they do not explain, and it is not easy to see what servitude or minor interest in land it could be, as the construction of the sewer would involve the removal of the soil in place of which it would be laid.
In some of the cases provided for in part IV of the Act the Local Authority is authorised to do things inferring the occupation of land, without any provision that they shall be bound to acquire it, while in other cases the power of occupying land is associated with the power and, if the power is exercised, with the obligation to acquire it compulsorily. Section 103affordsan example of the first class of powers, and sections 108 and 126, sub-section (1), are examples of the second class. The exercise of such a power as that of making sewers involves no occupation of the surface after the sewers are laid, and it is not surprising that in such a case Parliament should not have required the Local Authority to acquire any proprietory right in the part of the subsoil which required to be removed to admit of the laying of the sewers. In cases of the latter class, e.g., the powers of utilizing sewage under section 108, and of making reservoirs, and other provisions for a supply of water, a much fuller occupation of the land is necessary than in such a case as the present, which merely relates to the laying of a sewer under land, leaving all the surface uses of it unimpaired. It is quite reasonable that separate provisions should be made for compensation in the two cases, i.e., by section 145 where the lands are taken compulsorily, and by section 164 where the lands are not taken but damage is sustained by reason of the exercise of the statutory powers.
Upon a consideration of the whole statutory provisions bearing upon the question, I concur with the Lord Ordinary in thinking that under section 103 the respondents have power to carry a sewer through the complainers' lands upon payment of damage, without purchasing the land, and I am therefore of opinion that his Lordship's interlocutor should be adhered to.
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The Court adhered.
Counsel for the Complainers and Reclaimers— Dundas, K.C.— Deas. Agents— Hope, Todd, & Kirk, W.S.
Counsel for the Respondents— W. Campbell, K.C.— Sandeman. Agent— A. Elliot Keay, Solicitor.