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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Inglis v. The Shotts Iron Co. [1882] UKHL 902 (26 July 1882)
URL: http://www.bailii.org/uk/cases/UKHL/1882/19SLR0902.html
Cite as: [1882] UKHL 902, 19 ScotLR 902
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SCOTTISH_SLR_House_of_Lords
Page: 902↓
House of Lords.
(Before
v.
( Ante, vol. xviii. p. 653, and 8 R. 1006.)
Subject_Nuisance — Property — Interdict — Nuisance from Sulphurous Fumes.
Facts:
The calcining operations of a mining company were found to have damaged the plantations belonging to a proprietor whose estate adjoined their works. It was held (aff. the judgment of the Court of Session) that the proprietor was entitled to protect himself by interdict, and that, in the whole circumstances of the case, the operations complained of should not be allowed to take place within one mile of the complainer's
Page: 903↓
lands; but ( varying the judgment of the Court of Session) that the interdict should not absolutely prohibit calcining, but should prohibit the company from calcining in the manner hitherto practised by them, or in any other way that might damage the plantations or estate of the complainer by noxious vapour.
This case was decided by a judgment of the Second Division of the Court of Session on July 20, 1881, reported ante, vol. xviii. p. 653, and 8 R. 1006.
The Shotts Company now appealed, arguing, in the first place, that the state of the plantations attributed to the effect of their workings was in truth due to natural causes and neglect on the part of the complainer; and, in the second place, that the terms of the interdict were too wide, both in respect that all kinds of calcination were absolutely prohibited, and that the distance within which the prohibition was to take effect, viz., one mile, was excessive.
At delivering judgment—
The question of fact, whether the operations of the appellants have been attended with damage to the plantations of the respondent, is one on which none of your Lordships entertain any doubt after the conclusion of the arguments in support of the appeal, in the course of which the whole evidence in the case was fully read. I agree generally with the estimate of the effect of that evidence formed by the Lord Ordinary and by the Second Division of the Court of Session, and it is therefore unnecessary to observe upon it in detail. The conflict, which at first sight seems considerable, is as to matters of opinion rather than matters of fact, and I think the direct evidence relative to the facts of the actual case is entitled to much more weight than any inferences drawn from what is represented as the effect of operations more or less similar in other places.
It is unfortunately much too common in cases of this kind for scientific witnesses to differ from each other on points as to which it might have been expected a priori that there would be no room for such controversy, and when these differences do exist, judges or juries must, as in all other cases, decide as well as they can between them. Here it is not, and it cannot be denied, that by the operations in question large quantities of sulphurous acid have been during considerable periods of time continually discharged into the air in the form of vapours, noxious in that state, and which, unless neutralised by mixture with ammoniacal vapours converting them into sulphate of ammonia, must soon have become changed into sulphuric acid, a substance very much more noxious.
[His Lordship then referred to the evidence of scientific witnesses as to the presence of sulphuric acid, and its destructive effect on trees.]
There is much and trustworthy evidence to the effect that the plantations presented generally a healthy and thriving appearance until the operations in question began in 1877, and that from that time forwards their appearance began to change, that a large number of trees which had previously been or seemed healthy became more or less blasted and diseased, and many died, and that this mischief was progressive, especially in the lines of those winds which most frequently blew the smoke from the bings over the estate.
It was attempted by the appellants to account for all this mischief by natural causes, and to meet the difficulty arising from the coincidence of time by suggesting that the effects of those causes may have been aggravated by the prevalence at that time of unusually wet and cold seasons, and that the trees only then attained that stage of their growth at which such effects would be likely to be developed. I have no doubt that to some extent the natural causes suggested by the appellants' witnesses, or some of them, were really in operation in these, as they would probably be in most, plantations similarly situated, and planted or managed on a similar system. It is also highly probable that when to the ordinary operation of such natural causes was superadded the deleterious influence of sulphurous vapours, those trees which from wet or bad soil, from overcrowding, from want of light and air, or from any other source of disease or decay, were weaker than the rest, might suffer most or soonest. Whatever might be the causes at work, it is perfectly consistent with experience that strong plants would resist them longer and better than weak, and that a noxious vapour or fluid descending more or less intermittently in a diluted state might operate upon the stronger plants only as a slow poison requiring continuance during a considerable space of time before its effects would become fully manifest. This might well account for much difference in the appearance of neighbouring trees even of the same kind.
And the fact also relied upon by the appellants, that some of the trees and plants which withered and died were more distant from the bings than others which did not in like manner suffer (including some hedges and low shrubs very near the Incline No. 1), is of much less weight than at first sight it might seem to be when the variations of atmospheric influences, on which the incidence of the deleterious vapours must always depend, are taken into account. The vapour might not be converted from sulphurous into sulphurio acid until it had travelled some distance, and as Mr Dupre, the appellants' witness, said in cross-examination, “the places at which the fumes would alight would no doubt vary according to the aerial conditions at the time, within limits. Primarily the fumes start upwards. They may or may not be earlier or later brought to the ground according to lateral winds and other conditions, and in certain conditions portions comparatively near the bing may be less affected than portions further away.”
Without dwelling further on the general case, I content myself with adding that the natural causes alleged by the appellants appear to me to be inadequate to account for the appearances and facts in and subsequent to 1877, described in the evidence of the pursuer and those of his witnesses who were best acquainted with the woods, and in the tabulated statements which are printed in the appendix to the case.
It being therefore clear to my mind that the
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The first of these objections appears to me to be well founded in principle. The evidence, according to the view which your Lordships take of it, proves that the operations of the appellants, as hitherto carried on by them, have been, and if continued to be carried on in the same manner will continue to be, injurious to the respondent's estate. The interdict, therefore, may probably prohibit the continuance of those operations in that manner, but I am of opinion that so far as it goes beyond this it ought to be qualified, so as only to prohibit any other manner of calcining which may cause noxious vapours to pass over and occasion damage to the respondent's plantations or estate. The order appealed against ought therefore to be varied in that way, but I do not think that such a variation only ought to affect the costs of the appeal.
The more important question is that as to the limitation of distance. There is, I think, no valid objection to fixing a specified distance for the purpose of such an interdict if it is justified by the evidence. If so justified, it is practically convenient, and may usefully narrow the field of any future controversy between the parties. By the conclusion of the summons it was asked that a limit of two miles should be fixed. The Court below has thought one mile proper, and your Lordships ought not, I think, to reverse the order in that respect unless you see reason, after fully considering the evidence, to think that it does or may unduly restrict the rights of the appellants.
After full consideration of the arguments of the Lord Advocate for the respondent, and of the Attorney-General in reply, I have myself come to the conclusion that there is sufficient proof of sulphurous fumes likely to cause damage to the respondent's plantations having been carried by certain winds to several parts of the respondent's estate, and other places, distant not less than one mile from the bings from which those fumes proceeded, and consequently that the limit of one mile fixed by the Court of Session is justified by the evidence in this case
I am therefore unable to say that the Court of Session has done wrong in prohibiting the continuance of the calcining operations, so far as relates to the manner in which they have hitherto been carried on, within the distance of one mile from the respondent's estate.
I propose to move your Lordships to vary the interlocutor granting the interdict by adding after the words “within one mile of the pursuer's lands” the following words, “in the manner hitherto pursued by them, or in any other manner whereby noxious vapour may be caused to pass over the pursuer's lands, or any part thereof, to the damage or injury of the pursuer's plantations or estate;” and subject to that variation to affirm the interlocutor appealed from, and to order the appellants to pay the costs of this appeal.
The real question is one of fact. The conflict of proof is as great as the issue is important, but we have the judgment of the Lord Ordinary, sustained by those of the Lords of the Second Division, pronouncing in favour of the respondent as to the existence of an injury to his property, produced more or less by the works of the appellants. I say more or less, because Lord Young, who differed in the result from his colleagues, admitted that damage was done to the respondent's plantations by Incline No. 1, though he held that there was a failure of proof of such damage by Incline No. 2 and New Hearths. I think that the evidence preponderates strongly in support of the respondent's case, and that the appeal cannot be allowed. As to the existence of an injury to the plantations on the estate, the proofs on both sides combine to establish it. They concur in showing that in the year 1877, and in subsequent years, substantial damage was done. The controversy is as to the cause of that damage. The appellants say it had its origin in overcrowding and overshading, bad drainage and wet soil, the evil effects of the roots of old trees and the injudicious planting of new ones, the influence of weather, and other things. The respondent asserts that it was produced by the process of calcination, instituted by the appellants at three several places in the neighbourhood of his property, and blighting his trees to a considerable distance with sulphur fumes, which were fatal, wherever they were present, to the health and verdure of the woods. We have to determine to which of these causes the mischief, which was admittedly accomplished somehow, may justly be ascribed.
To me the proof as to the comparative condition of things before 1877 and afterwards appears on this issue very persuasive for the respondent. Up to that time it exhibits the trees as having been in a flourishing condition. Till then there had been no complaint, and no ground for any. But in that year the calcination commenced; contemporaneously with it the condition of the woods was altered for the worse, and from that time forth, at all events, the state of the trees was perceptibly and increasingly deteriorated. The leaves were scorched, the tissues were destroyed, the growth was stunted, and fungi seized upon the roots.
The witnesses to the change are beyond impeachment either as to their means of knowledge or their intentional veracity. The respondent himself, and several persons skilled in forestry
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Although the evidence, as in cases like this is usual, is very conflicting, it seems clear enough that the process of calcination at the open bings necessarily diffused large quantities of sulphurous acid, which were borne to considerable distances, in various directions, and at various altitudes, through the respondent's estate from 1877 till 1881.....
And finally, by the observation of witnesses seemingly quite faithworthy, and as to this of witnesses on both sides, the injured trees are shown to have exhibited largely the “distinctive marks” described by the scientific testimony as belonging to the action of sulphurons acid. In addition we have the results of the tests applied for the respondent, proving the presence of such acid upon the leaves and various parts of the plantation, and at various distances from the bings, to which the smoke from them had brought it in varying quantities. And further, in corroboration of this part of the respondent's case, he produced several persons who had smelt the sulphur diffused by the calcinator, and tested it in many places, some of them a mile away …..
It seems to me that the various classes of evidence to which I have shortly adverted fully sustain the view suggested by the state of things which arose in 1877. Soon after the commencement of the calcination noxious matter is largely cast abroad, with probable injury of a kind definitely described to the trees it might affect; its actual presence upon them is shown by chemical tests and careful examination; and their new condition, contrasted with that in which they had been before, is exactly such as it was calculated to produce. I think that in these circumstances the respondent has established his contention, and that he is entitled to the interdict pronounced by the Lord Ordinary and the Court of Session, as well because of the injury he has already sustained as for the prevention of future and perhaps more serious mischief. It does not seem to me that the evidence of the appellants is at all sufficient to encounter the case so made against them. I see no reason, however, to impeach it as in any way inconsistent with the truth. The natural causes of deterioration to the woods, on which I have already observed, may have existed to a large extent; there may have been wetness of soil and injudicious planting under deciduous trees, and interruption of growth by roots which should have been removed. But these and the other matters on which the appellants rely do not appear to me to account sufficiently for the proved condition of the woods and the changes accomplished in 1877. It is necessary to the argument derived from them that we should eliminate all the proof as to the action of the bings, the discharge from them of the sulphurous fumes, and the presence of destructive acid upon the trees. If we attribute any evil influence to these things, the respondent is not disentitled to the intervention of the law for his protection from it, even though the condition of the grounds, or his own neglect or error, may have aggravated its injurious consequences.
If there were question of the amount of his damages and his right to compensation, it might be important to show that only to a certain extent he had suffered from the calcining operation, so as to relieve the appellants from responsibility for results produced by other causes. But it is enough for the maintenance of the interdict that they have been proved to some substantial extent to have given ground for complaint heretofore and for apprehension hereafter, and this being established, the appellants' proof, even if assumed to be true, fails to warrant their conclusion.
I do not go into further detail as to that proof. It has been very ably dealt with in the judgment of the Lord Justice-Clerk, with which in all its parts I fully concur. Neither do I feel at liberty to speak at any length as to the distances to which the sulphur fumes are proved to have been carried.
The entire evidence bearing upon that important matter, on which I had meant to comment, has been so minutely discussed by my noble and learned friend, that it is impossible to add anything usefully to his exhaustive observations. I shall only say that they convey the view which I was led to adopt on a careful consideration of the very able arguments of the Lord Advocate and the Attorney-General. I have no doubt that the Court of Session had abundant ground for holding that the fumes emitted by the bings were carried with the smoke at least a mile through the respondent's woods, and I have heard no sufficient reason for doubting that according to Scots practice or any other it was quite within its competence to select that limit for the operation of its interdict. It is important, however that your Lordships should not be misunderstood as to your affirmation in this respect of the decision of the Court of Session. You do not, as I apprehend, mean to fix any absolute rule settling the distance within which in such cases an interdict should be allowed to operate. The special circumstances must determine in every instance the action of the Court, and according to them, e.g., the lie of the ground, the mode of calcination,
Page: 906↓
In another particular I agree with my noble and learned friend the terms of the interdict should properly be altered. As it stands it forbids all calcining in any circumstances and under any conditions or modifications within a mile of the bings. The prohibition is too large and stringent. It is conceivable that the process of calcination may, now or hereafter, be capable of being conducted in such a way as to make it possible so to deal with the fumes that they may be innocuous to a neighbourhood. We have before us incidentally, and without any view to this special point, evidence as to variance in the character of that process. In Durham and in Dairy it is carried on, not in open bings scattering broadcast without check or stay the noxious vapours, but in kilns, which may possibly render it less injurious. We cannot say how far industrial invention may go in discovering the means of making it more consistent with the health of vegetable life; and your Lordships would not desire, if this could be accomplished, to forbid or to restrict such operations as those of the appellants. I am quite of opinion that in this regard the interlocutor should be varied according to the view of the Lord Chancellor. In other respects I think it should be affirmed with costs, with the variation proposed by my noble and learned friend.
I have listened very attentively to the comments on the evidence made by the Attorney-General and Mr Davey for the appellants, but they failed to convince me that the finding in fact of the Lord Ordinary was wrong on this question of fact, and I agreed with the rest of your Lordships who heard the case in relieving the counsel for the respondents from arguing on the question whether there was sufficient damage shown to entitle the pursuer to an interdict to some extent.
I think that the disease which it is shown prevailed in the pursuer's plantation was not distinguishable by any certain marks from disease which might be caused by other causes. Bad drainage, insufficient thinning, and injudicious planting will all produce disease; and as plantations are managed roughly, I do not suppose there are many plantations in which some disease is not occasioned which would have been avoided if the trees in the plantation had been as carefully attended to as the trees in an orchard are; and this, I do not doubt, was to some extent the case in the pursuer's plantations. And independently of these causes, trees may become diseased sometimes from their having attained such a growth that their roots get into a stratum of bad soil, and sometimes from causes which cannot be pointed out, though there is no work throwing off fumes in the vicinity. But I think that the evidence here shows that there was a great and marked change in the health of the trees contemporaneously with the beginning of those works, and that it was such as in other localities does arise from sulphuric fumes, which do produce disease, and after time death, in plantations elsewhere; and though it is by no means shown by the evidence what is the minimum quantity of sulphurous fumes which will cause these results, it is shown that a very large quantity of sulphur was sent off from the different bings, which when the wind blew towards the pursuer's plantations would drift and did drift across them in quite sufficient quantities to account for the disease which did occur contemporaneously with the using of those works. This, I think, fully justified the finding of fact that real substantial damage had already deen done, and that if the works continued, that which was now disease would become death. I do not think it necessary, after what has been already said, to enter into details of the evidence. It was not suggested in the Court below that there was any mode by which these works could be carried on so as not to emit sulphur fumes so as to produce a nuisance, and no inquiry was made as to whether this could be practically done; but it is impossible to say that there may not at some future time be a mode discovered by which this may practically be done. I think, therefore, that the interdict should be altered in the mode proposed, and I agree that this alteration should not affect the costs.
I think that on the evidence produced in this case it is established that if the works are removed to some distance from their present position, but not so far as to prevent their being a nuisance to the pursuer, his plantations will not only be injured but destroyed during the time which would necessarily be occupied in proving that the works in their new position are injurious; and I think, that being so, it is necessary for the pursuer's protection to grant an interdict forbidding the carrying them on within a specified distance. What that distance should be is a much more difficult question. I come, however, on the evidence produced in this case, to the conclusion
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Notwithstanding the minute and exhaustive criticism to which the evidence was subjected by the learned counsel for the appellants, I see no reason to doubt that it is sufficient to establish what the Court below have found, that the calcining operations of which the respondent complains have already caused appreciable damage to his property, and will, if permitted to continue, be productive of further and more serious damage.
The respondent is therefore entitled to decree of interdict; but I agree with your Lordships that the fact that injury has arisen from the ordinary process of calcining ironstone in open bings does not warrant an absolute prohibition against calcining by any process whatever at any future time. The interlocutor of the Court of Session, varied in the manner proposed by your Lordship, will in my opinion meet the justice of the case. It will give the respondent the measure of protection to which he is entitled, and will not prevent the appellants from availing themselves of the resources of science, and resorting to some method of calcination by which the noxious fumes which have hitherto been allowed to escape into the air may be recovered or destroyed. I had an opportunity of considering in print the judgment delivered by the noble and learned Lord on the woolsack, and I so entirely concur in the observations therein made with respect to the leading features of the proof, that it is unnecessary for me to make any comment upon it.
Interlocutor of 18th March 1881, granting the interdict, varied by adding after the words “within one mile of the pursuer's lands” the following words—“in the manner hitherto practised by them, or in any other manner whereby noxious vapour may be caused to pass over the pursuer's lands, or any part thereof, to the damage or injury of the pursuer's plantations or estate”—subject to that variation the interlocutors appealed from affirmed. Appellants to pay the costs of the appeal.
Counsel for Pursuer—Lord Advocate Balfour—Solicitor-General Herschell. Agents— Inglis & Allan, W.S., and Connell, Hope, & Spens.
Counsel for Defenders—Attorney-General Sir Henry James— Davey, Q.C.— Young. Agents— Hope, Mann, & Kirk, W.S., and W. A. Loch.