Scottish Court of Session Decisions

This was an action at the instance of the Edinburgh Railway Access and Property Company, the proprietors of certain property on the north side of Cockburn Street, Edinburgh, bounded on the east by Fleshmarket Close, against John Ritchie & Company, proprietors of the Scotsman newspaper, who in 1899 acquired a large piece of ground lying to the north and east of the pursuers' property, and separated therefrom by Fleshmarket Close. The pursuers sued for £1000 damages for injuries done to their property by certain operations of the defenders in connection with the erection of buildings on the ground acquired by them.

The pursuers' property consisted of the Adelphi Hotel and certain saloons and stock-rooms at Nos. 51, 53, 55, and 59 Cockburn Street.

The pursuers averred—“(Cond. 4) In connection with the erection of the buildings on the ground acquired by the defenders, very extensive excavations were made in order to lower the site to about the level of the North British Railway. These excavations abutted on or were in very close proximity to the property of the pursuers, and were conducted, wherever rock or hard substance was encountered, by blasting with dynamite or some similar explosive. These excavations were of an excessive and most unusual character, and at the deepest part were about 50 feet deep. The said blasting operations commenced in or about the month of March 1899, and continued till about December 1901 with slight interruptions. The shocks from the blastings were very serious and shook the whole of the pursuers' said property, causing many and serious cracks and rents therein… . The defenders could have removed the said rock or hard substance without blasting, or at anyrate in such a way as not to injure the pursuers' property, but this they culpably failed to do. They took no precautions to prevent damage to the pursuers' property.” (Cond. 5) The effect of the said operations has been most injurious to the pursuers' property.

The defenders admitted that they had made excavations and had used explosives, but only in the lower strata, and explained that the excavations, including the blasting by the defenders, did not in any way injure the pursuers' property, and were conducted with all proper care and precaution and in such a manner as to do no harm to the Adelphi Hotel. They also averred that in 1890 the pursuers carried out certain operations on their property which had caused subsidence and cracks; that the buildings on the pursuers' property had not been erected forty years, that they imposed a great weight upon the ground, and that the defenders' excavations would have caused no subsidence to the buildings previously on the site.

With reference to these latter averments the pursuers averred in reply that their operations had caused no damage to their property, and that the buildings previously on the site were higher and heavier than the present ones.

The pursuers pleaded—“(1) The pursuers having suffered loss and damage through the defenders' operations to the extent sued for, are entitled to decree as concluded for with expenses. (2) The pursuers having suffered loss and damage through the fault of the defenders to the extent sued for, are entitled to decree as concluded for with expenses.”

The defenders pleaded—“(1) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons. (2) The pursuers' averments so far as material being unfounded in fact the defenders should be assoilzied. (3) The defenders should be assoilzied, in respect that ( a) the injuries complained of were not caused by the operations on the defenders' property; ( b) the injuries complained of were caused by the operations of the pursuers themselves. (4) On the footing that the injuries complained of were caused by the operations on the defenders' property, the defenders should be assoilzied in respect that the injuries arise from the weight of the pursuers' buildings, and those buildings have no right of support from the defenders' property.”

On 20th November 1902 the Lord Ordinary ( Low) approved of the following issue for the trial of the cause:—“Whether the operations of the defenders on the ground belonging to them, and abutting on or near the Fleshmarket Close, carried on in or about the period from March 1899 to Decemer 1901, damaged the heritable subjects belonging to the pursuers situated at Nos. 51, 53, 55, and 59 Cockburn Street, Edinburgh, to the loss, injury, and damage of the pursuers?”

Opinion.—“The pursuers and the defenders are owners of properties which are separated by a close 8 fr. in width. For the purpose of erecting new buildings upon their property the defenders made extensive excavations, and when rock was encountered it was removed by blasting with dynamite. The pursuers aver that the concussions caused by the blasting were so severe that the buildings upon their property sustained serious structural injury, in respect of which they now seek damages. They further aver that the rock could have been removed without blasting, or at any rate in such a way as not to injure the adjoining buildings.

The first question is whether the case should be tried by jury or by way of proof.

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So far as the case presented by the pursuers is concerned, it is a simple claim of damages for injury caused by the defenders' operations, and is appropriate for trial by jury. The defenders however contend that their defences raise questions of law which render the case unsuited for trial by jury.

The first defence is that the injury to the pursuers' buildings was caused by alterations which they themselves made upon the buildings whereby the structure was weakened and cracks and subsidences resulted. That raises a pure question of fact, with which a jury is a proper tribunal to deal.

The second defence is that the buildings upon pursuers' ground have been erected within forty years, that they are of much greater weight than the buildings previously upon the ground, and that defenders' operations would not have caused subsidence to the old buildings. That defence assumes that the injury to the pursuers' buildings was due to subsidence caused by the excavations, and not, as the pursuers aver, to concussion caused by the blasting. Now, assuming that that defence would raise a question of law in regard to the extent of the pursuers' right to support for their buildings, that does not seem to me to raise any obstacle to the case being tried by a jury. The judge who presides at the trial will direct the jury what the law applicable to the circumstances is. I cannot, however, see why any such question of law should arise. As I have pointed out, the pursuers' averment is that the injury was caused by concussion, and not by subsidence. If therefore the defenders can prove that the injury was caused by subsidence only, then I take it they will be entitled to a verdict.

I am therefore of opinion that the pursuers are entitled to have the case tried by a jury.

There remains a question as to the form of issue. The issue proposed by the pursuers is whether the heritable subjects belonging to them were injured by the defenders' operations. The defenders maintain that fault on their part should also be put in issue.

The question whether operations in themselves lawful, conducted by a proprietor within his own property, which resulted in injury to his neighbour's property, render him liable in damages unless there has been fault or negligence on his part, is one upon which there has been considerable difference of opinion. The general rule I take to be, that there must be fault or delinquency, but in this case I do not think that the question arises, or at all events is of importance. If the necessary or natural result of the blasting was to cause structural damage to the pursuers' property, although there was no want of care and skill in the conduct of the operations, then the defenders were not, in my judgment, entitled to carry on the operations at all, because no man is entitled to cause an explosion in his property, the necessary or natural result of which is to blow down or injure his neighbour's house. On the other hand, if injury to the pursuers' buildings was not a necessary or natural result of the blasting, but injury in fact resulted, the inference is that the operation was negligently or unskilfully conducted.

I therefore think that the simple issue proposed by the pursuers is suitable for the trial of the case.”

The defenders reclaimed, and argued—The pursuers' averments were irrelevant and wanting in specification as to the cause of the damage complained of. If relevant, the record raised questions as to the defenders' obligation to afford support for buildings which had existed on the pursuers' ground for less than forty years, and a case involving such questions was not suitable for jury trial. See Rankine on Land Ownership, 434 and 435. If the case was to go to a jury, fault must be put in issue.

Argued for the pursuers.—The Lord Ordinary was right in allowing an issue, and the Court would not interfere with what his Lordship had done in the exercise of his discretion with regard to the mode of inquiry— Fearn v. Cowpar, March 14, 1899, 1 F. 751, 36 S.L.R. 593. The defenders might be held liable though no fault was found on their part— Cameron v. Fraser, October 21, 1881, 9 R. 26, 19 S.L.R. 9; Laurent v. The Lord Advocate, March 6, 1869, 7 Macph. 607, 6 S.L.R. 411; Cleghorn v. Taylor, February 27, 1856, 18 D. 664. The issue allowed was therefore unobjectionable.

At advising—