Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION I.

Nature of Jurisdiction.
Subject_3 SECT. IV.

What cases must be tried by an Inquest.

Marquis of Abercorn
v.
The Magistrates of Edinburgh

Date: 17 May 1793
Case No. No 14.

The jury named by a statute for determining the value of property to be taken for a public purpose, are not competent to determine cases of consequential damage.

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William Laing had possessed the Duddingston mills, on a lease from the Marquis of Abercorn, since Whitsunday 1786.

The water which supplies these mills is chiefly drawn from Braidsburn, of which the magistrates of Edinburgh, acting under the statute 25 Geo. III. c. 28, for supplying that city with water, had appropriated some of the most considerable sources.

Laing in consequence brought an action of damages against the Marquis of Abercorn, the competency of which a final interlocutor of the Lord Ordinary had sustained.

The Marquis of Abercorn had by this time brought an action of relief against the Magistrates of Edinburgh, who objected to its competency, and

Pleaded; By 25th Geo. III. c. 28. § 43. the Magistrates are authorised to enter into agreement “with the owners or proprietors of all springs or fountains, within four statute miles from the fountain-head or reservoir where the springs now brought into the city are collected,” for the privilege of bringing water by pipes into the city. And by § 44. it is provided, that wherever the matter cannot be amicably settled with the “owners, proprietors, or occupiers of such springs, or of the lands through which it may be necessary to lay the said pipes,” the indemnification to be given them shall be settled by a jury named in terms of the act, whose verdict shall be final and conclusive. The Marquis, if not an owner or proprietor of the springs, is at least an occupier of the water intercepted, and his claim must be determined by the jury.

Answered; Any statute which alters the ordinary course of law, must be strictly interpreted. This statute applies only to the direct damage sustained by the owners, proprietors, or occupiers of springs, or by those through whose grounds the pipes are carried, and not to the consequential loss which may arise to inferior heritors. This claim is therefore cognizable in the ordinary courts, and in course of the ordinary process of law; and if the pursuer's action of relief were sent to a jury, and a different court from his tenant's action of damages, that court and jury might not give him relief equal to the damages awarded against him in this Court.

The Lord Ordinary reported the cause on informations.

The Court differed in opinion on this question. Some Judges thought this case came under the act; but a majority were of opinion, that whatever the purpose of the Legislature might have been, yet the words of the statute were not such as clearly reached the present case of consequential damage, and that the jurisdiction of the ordinary courts of law was not to be excluded by implication.

The Lords 'repelled the objection to the competency of the action.'

Lord Reporter, Henderland. Act. Elphinston. Alt. M'Cormick. Clerk, Gordon. Fac. Col. No 54. p. 113.