Scottish Court of Session Decisions

Subject_1 PART I.

PUBLIC POLICE.

Vary
v.
Thomson and Another

Date: 2 July 1805
Case No. No. 4.

A Smith's shop in a thatched house, and in the neighbourhood of thatched houses in Lanark, found to be a nuisance.

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This was an action brought by Richard Vary, provost of Lanark, and Sheriff-clerk of the county, against Chancellor Thomson, the proprietor, and Mungo Aitken, the occupier, of a tenement in Lanark, which it was proposed to convert into a smithy, and which Vary contended he was entitled to prevent, as being dangerous in the situation in which it was placed, and a nuisance to his house and garden, in the immediate vicinity, besides being attended with some hazard to the public records of the county, which were lodged in his house.

He presented a petition to the Dean of Guild of the burgh, stating, “that Chancellor Thomson, wright in Lanark, who is a proprietor of some houses and a garden, adjoining to the petitioner's property, in the Bloomsgate Street of Lanark, has set a vacant space of ground immediately adjoining to the petitioner's garden, to Mungo Aitken, smith in Lanark, for the purpose of erecting a smithy: That, independent of the nuisance occasioned by the smoke of this intended smithy, whereby every thing in the petitioner's garden will be blackened and rendered useless, the same will be situated adjoining to some low thatched houses, which will be in continual danger of taking fire, from the sparks commonly issuing from a smithy vent. And besides all this, the petitioner's office as Sheriff-clerk, where the public records are deposited, is only at a few yards distance from the intended situation of the smithy, and he must necessarily be exposed to constant alarm from the danger of fire.”

Upon advising this petition, with answers, the Dean of Guild found, “That the erection of a smithy among a number of low thatched houses, and in a confined close, would not only endanger public property, but would also be a nuisance to the public; and that the same would be very dangerous to the petitioner, holding the public records of the county, and, as an individual, would render his garden useless;” and granted an interdict to prevent the defenders from using the house as a smithy.

The defenders complained by advocation of this judgment, but the Lord Ordinary repelled the reasons of advocation, and remitted the cause simpliciter.

A petition was presented to the Court by the defenders, in which it was contended, that a smithy had never hitherto been considered as a nuisance; that nothing was more common all over Scotland, than smithies in the neighbourhood of thatched houses; that no danger ever was found to result from it; and that as it was absolutely necessary that there should be smithies in every town, for the convenience of the inhabitants, no individual was entitled to complain when one happened to be erected in his neighbourhood.

The Court was much divided in opinion, but (26th February 1805,) adhered to the Lord Ordinary's interlocutor; and afterward adhered, upon advising a reclaiming petition, with answers.

Lord Ordinary, Hermand. Act. Colquhoun. Agent, Alex. Young, W. S. Alt. Dickson. Agent, C. Brmner, W. S. Clerk, Mackenzie. Fac. Coll. No. 217. p. 491.