Scottish Court of Session Decisions

The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), section 73 is quoted supra in rubric.

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 215, enacts—“All sewers and drains within the burgh, whether existing at the time when this Act comes into force or made at any time thereafter (except private branch drains, drains made and used for the purpose of draining, preserving, or improving land, and sewers made under any local or private Act of Parliament) shall vest in and belong to and be entirely under the management and control of the commissioners.”

On 5th May 1908 J. G. Campbell Scott, physician, Burnbank, Auchamore Road, Dunoon, brought in the Sheriff Court there an action against the Provost, Magistrates, and Councillors of the Burgh of Dunoon. In it his claim was—“For declarator that the pursuer's said property known as Burn—bank, Auchamore Road, Dunoon, in the burgh of Dunoon and county of Argyll, is free of any servitude, wayleave, or right of passage for a common sewer or drain running through said property or any part thereof: For interdict against the defenders using any drain or sewer passing through the pursuer's said property as a public drain or sewer under the pretence of such servitude or otherwise.”

The pursuer pleaded—“(1) The defenders have not, either by virtue of any written title or by virtue of the necessary prescriptive possession, or by statute, any valid right to the servitude or wayleave claimed by them, and the pursuer is therefore entitled to declarator as craved. (2) In respect that the defenders, on the pretext of an alleged title or right of servitude, or statutory right, which has no valid existence, are using the said pipe running through the pursuer's said lands as a public sewer, and that they have refused to discontinue said use, the pursuer is entitled to interdict as craved.”

The defenders pleaded—“(2) The defenders' predecessors having laid the sewer in question through the grounds of the pursuer in virtue of the powers conferred upon them by section 73 of the Public Health (Scotland) Act 1867, the declarator and interdict craved should not be granted. (3) The sewer in question being now vested in the defenders in virtue of the Burgh Police (Scotland) Act 1892, and the Town Councils (Scotland) Act 1900, the action should be dismissed, with expenses.”

After various procedure, including a proof, the Sheriff-Substitute ( Scott Moncrieff Penney) on 6th November 1908 granted the declarator and interdict, and upon 30th December 1908 the Sheriff ( M'Clure) on appeal adhered.

It appeared from the proof that the pursuer had purchased his property on 22nd May 1907 from the trustees of the late James Bruce, and had shortly thereafter, the titles not disclosing the fact, discovered that a 9-inch sewer, used for carrying the drainage of several houses and forming an integral part of the drainage system of the burgh, ran through his ground. He called upon the defenders to desist from using the sewer in question, and they refused. The sewer had been constructed in 1875. At that time the Commissioners of Police of the burgh of Dunoon were carrying out a scheme of drainage. They employed as engineers Messrs Storrie & Smith, C.E., Glasgow. There was no burgh surveyor appointed till May 1875, and the scheme of drainage was prepared and carried out by the engineers, the burgh surveyor after appointment merely inspecting. There was no evidence that any notice in writing had been given to Mr James Bruce, the proprietor of the ground in 1875, before the sewer was begun to be constructed. He, however, knew about it and took a great interest in its construction, and had never taken any objection. The drain from his own house ran into this sewer. The evidence as to whether any report by a surveyor had been submitted before this sewer was constructed was meagre. The minutes did not disclose any, there was no burgh surveyor to make one, and what report exactly the engineers had submitted was doubtful, but one witness stated that they had submitted a report. There was evidence that as matter of fact this sewer was the only way to take the drainage so as to avoid heavy cutting.

The defenders appealed, and argued—The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 215, was conclusive of the matter. Even if up to the date of that statute coming into force the sewer in question had not belonged to the burgh, that statute gave it to the burgh. Further, persons who have seen their rights invaded

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and money expended are not entitled to come forward after the operations are completed and say that some formality has not been complied with— Montgomerie & Company, Limited v. Haddington Corporation, 1903 S.C., 127 (per Lord Justice-Clerk, at 150), 45 S.L.R. 73, affd., 1908 S.C. (H.L.) 6, 45 S.L.R. 337. The fact that the requisite consent was not obtained for making a sewer did not prevent it from being a sewer when made— Queen v. Vestry of St Matthew, Bethnal Green, [1896J 2 Q.B. 95 (per Lord Russell of Killowen, C.J., at 96), affd. [1896] 2 QB 319, and [1898] AC 190. The onus lay on the pursuer to show that written notice had not been given to Mr Bruce thirty-three years ago, or that no report had been made by a surveyor that the sewer was necessary. He had not discharged that onus. Moreover, it was not of the least importance at the present day whether notice had been sent to Mr Bruce, for he had taken an active part in seeing that the work was carried out to his own satisfaction. The provisions of the 73rd section of the Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), were for the protection of owners of property at the time the scheme was being carried through. The pursuer did not aver that it did not “appear to be necessary” that the drainage scheme should be carried out, and that if Mr Bruce had objected thereto he would have been successful in his objection.

Argued for pursuer—The evidence showed that the Police Commissioners in constructing the sewer in question were not acting under the Public Health (Scotland) Act 1867 at all. As the burgh had at that time no surveyor who could make a report, no report could have been made by the surveyor— Lewis v. Weston-Super-Mare Local Board, 40 Ch D 55. It was necessary to show that the pursuer's author accepted these drains as public sewers. Further, personal bar could not be pleaded against a singular successor; acquiescence of a predecessor would not bind him unless he had knowledge— M'Gregor v. Balfour, December 23, 1899, 2 F. 345, 37 S.L.R. 245. Acquiescence was not proved here. The pursuer's disposition gave him right to everything— acœlo usque ad centrum. The onus therefore lay on the defenders, who maintained that his right was thus limited. Moreover, the defenders must prove that they complied with the statute under which they claimed their right. Certain procedure—the giving of a written notice and a report by a surveyor—must be followed in order to give local authorities a title to the land against everyone— Brown v. Magistrates of Kirkcudbright, November 17, 1905, 8 F. 77, 43 S.L.R. 81. The burgh would have had statutory right if they had adopted the procedure prescribed by section 73 of the Public Health Act. This they had not done. Failing that, they must have a written grant, which they had not got.