Scottish Court of Session Decisions

Subject_1 PART I.

PROPERTY.

William Jameson and Others,
v.
Anthony and Thomas Hillcoats and Others

Date: 24 June 1800
Case No. No. 4.

The preparation of blood as an ingredient in the manufacture of Prussian blue, prohibited, as a nuisance, in certain circumstances.

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About 1783, a company of manufacturers of Prussian blue, near Newcastle upon-Tyne, instituted, upon the lands of Figgot, within two or three hundred yards of the village of Portobello, and not far from the junction of the roads from Edinburgh, Leith and Musselburgh, on the one side, and the sea-shore on the other, a work for the preparation of blood, by boiling, or roasting, as an ingredient in their manufacture; and for this purpose purchased the whole blood from the shambles of Edinburgh.

Not long after this operation had been begun, William Jameson and other proprietors at Portobello, complained of the smell emitted from it, as a nuisance, by an action before the Sheriff. The Magistrates of Edinburgh and Procurator-fiscal made a similar complaint.

The Sheriff pronounced an interlocutor, by which he declared, that he would not order the work to be removed, provided the proprietors of it would erect a building for carrying it on, of the shape and height of the highest glass-house at Leith; by which means he supposed the offensive smell would be removed.

The pursuers advocated the cause to the Court of Session, where it was allowed to fall asleep about 1788, without any judgment being given on the merits.

The work was carried on with little intermission till 1798, and without the building suggested by the Sheriff being erected. By this time Anthony and Thomas Hillcoat had acquired right to the blood-work, which was condocted for behoof of the proprietors of a manufacture of Prussian blue, near Berwick. And William Jameson, and other proprietors at or near Portobello, most of whom, except Jameson, had acquired their rights since the blood-work was first begun, presented a bill of suspension and interdict, praying that the work should be prohibited as a nuisance, prejudicial to health and comfort, and which was placed in a situation particularly incommodious, from the offensive smell being constantly felt, according to the direction of the wind, by passengers on the sands and public roads, and the inhabitants of Portobello, which was much resorted to for seabathing.

The other party denied that the manufacture occasioned any nuisance. In evidence of this, they stated, that similar manufactures were common in the neighbourhood of Newcastle, and other large towns in England; and, at any rate, they contended, that it was a legal exercise of property, of which the suspenders had no right to complain; 20th January 1767, Dewar against Fraser, No. 27. p. 12803., particularly as Mr Jameson, who had himself an offensive brick and tile work in the neighbourhood, had deserted the former action, and most of the other complainers had acquired their properties subsequent to the erection of the blood-work.

A proof was allowed as to the allegation of nuisance, and of the existence of similar works in or near great towns in England.

From the proof, it appeared, that the smell from the blood-work was extremely offensive; felt at a considerable distance all around, according to the direction of the wind, and was prejudicial, if not to the health, certainly to the comfort of the neighbourhood.

It likewise appeared, that, there were similar works in the neighbourhood of Newcastle, and in the towns of North and South Shields.

After a hearing in presence, on a prepared State, the Court was clear, that the smell from the operation complained of, was very disagreeable; but difference of opinion was entertained with regard to the legal grounds for removing the work. On the one hand, it was observed, Every question of nuisance must depend on its own circumstances; and it is difficult to draw the line between the legal uses of property, and the obligation not to injure our neighbour in the exercise of it. All circumstances considered, the present situation seems commodious for the operation in question, which can only be conducted in the neighbourhood of large towns, where they are tolerated in England. Most of the present complainers have come to the nuisance, and therefore cannot complain of it.

But a majority of the Court thought, that the work ought to be prohibited, unless some mode could be found of preventing the nuisance resulting from it. The proprietors in the neighbourhood, when it was first erected, (it was observed), had a clear right to have it removed. Indeed, the evil is of such magnitude, that the Procurator-fiscal ought to have complained of it, as the village and sands are inter gaudia of the inhabitants of Edinburgh. Many other situations, equally commodious for the work, might have been obtained, where it would not have been offensive; and, at any rate, comfort is not to be sacrificed to manufactures, making every allowance for their importance.

The Lords found it proved, that “the blood-work in question is a nuisance, and ought to be removed from that place, or discontinued; and therefore suspended the operation complained of.”

A petition, craving that the interlocutor should be so qualified as to give the chargers an opportunity of adopting some cure for the nuisance, which might supersede the removal of the works, was (8th July) refused, as unnecessary.

Lord Ordinary, Justice-Clerk. Act. Alt. C. Ross. Clerk, Gordon. Fac. Coll. No. 187. p. 424.