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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rocheid's Trustees v Balfour. [1834] CA 13_220 (19 December 1834)
URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0220.html
Cite as: [1834] CA 13_220

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SCOTTISH_Shaw_Court_of_Session

Page: 220↓

Rocheid's Trustees

v.

Balfour.
No. 75.

Court of Session

2d Division

Dec. 19 1834

Lord Jeffrey, Lord Glenlee, Lord Medwyn, Lord Justice-Clerk.

Rocheid's Trustees,     Pursuers.— Rutherfurd— Handyside. James Balfour, W.S.,     Defender.— Cuninghame.

Subject_Road—Reparation.—

The trustees on a turnpike road having made an opening into a common sewer formed on an adjoining property by the proprietor, for the purpose of carrying off the soil water, &c. from a line of houses built by his feuars thereon—held, in reference to the road acts, that the proprietor had no claim for any compensation, or allowance for the use so taken of the sewer.

The lands of Inverleith, which belonged to the late Mr Rocheid, are bounded on the east by the turnpike road leading from Edinburgh to Trinity. The ground along a considerable part of this road had been feued out for houses by Mr Rocheid and the pursuers, his trustees; and, for the accommodation of the feuars, a common sewer, of about six feet in height, built of stone and lime, and arched over, had been formed within the Inverleith lands, but running parallel to the road, and discharging its contents into the Water of Leith. About ten years ago, considerable alterations and improvements were made on this road, which, among other effects, considerably increased the quantity of water thrown from its surface. For the purpose of having this carried off, the road trustees, without consent of the pursuers, caused three openings to be made into the common sewer, whereby they discharged into it the water from the road. For this use of their sewer, the pursuers demanded compensation from the road trustees, and their demand being refused, they raised the present action against Mr Balfour, W.S., as clerk to the trust, concluding for the value of certain ground, which had been assumed by the road trustees, and also for the sum of £170, “as the consideration or allowance payable by the said road trustees, for the use and benefit received by them from the said common sewer.”

In defence, the road-trustees pleaded, inter alia, that the mode adopted by them of discharging the water off the road into the adjoining property, being the least injurious that could have been resorted to, they were entitled to do as they had done, without making compensation and without consent of the proprietor, by virtue of the statutes under which they acted, and particularly of the general turnpike-road acts, 1 which, as to: this matter, enact, “That it shall be lawful for the trustees of every turnpike-road to make sufficient side-drains on any such road, with power to conduct the water therefrom into any adjoining land, ditch, or watercourse (such land not being the site of any house or garden), in such manner as shall be least injurious to the proprietor or occupier of such land.”

To this it was answered, that the statutes only applied to ordinary water courses, or drains for effecting the natural drainage of lands, but did not include sewers of the description here in question, formed at great expense, for carrying off from houses the soil water, &c, artificially collected; and, farther, that their property came within the exception in the statutes of ground built upon or in gardens.

The Lord Ordinary sustained the defence founded on the powers under the statutes, and assoilzied from the conclusions of the action, in so far as regarded the use of the sewer.

The pursuers reclaimed.

Lord Glenlee.—I am rather inclined to think the interlocutor right. It sustains the defence founded on the statutes, which empower road-trustees “to make sufficient side-drains on any such road, and to conduct the water therefrom into any adjoining land, ditch, or water-course (such land not being the site of any house or garden), in such manner as shall be least injurious to the proprietor or occupier of such land.” Now, there is no insinuation that this is not the way least injurious—and the pursuers never applied for an interdict against the trustees doing what they now say they were not entitled to do. There is nothing in the statute requiring that, after carrying the water into the proprietor's ground, if in the way least injurious, the trustees are bound to be at any expense. Even yet, the pursuers do not say, go and dispose of the water otherwise; but they say, pay us this money for it; and, considering the terms of the libel, I think the interlocutor well founded.

Lord Medwyn.—I have some difficulty. This is a question of power, and I do not know that it is essentially necessary that the pursuers should insist absolutely against the use of the sower. I rather conceive that they might reasonably agree to accept compensation, and if the trustees have proceeded contrary to their powers, I think the pursuers might frame their summons as they have done, concluding merely for compensation or an allowance for the use of the sewer. Then, as to the question of power, I do not think the local acts give any such, and it depends on the 80th section of the general act. Now this is truly a sewer common to the feuars, and for carrying off the soil of the houses; but I do not think that it is the sort

_________________ Footnote _________________

1 4 Geo. IV. c 49, § 80, and 1st and 2d Wil, IV. c 48, § 84.

of water-course intended by the act. If it had been an open course, though paved with stones, the trustees might have thrown water into it. A sewer, however, is totally different; and when we see in the statute “watercourse” coupled with “ditch,” I have the greatest hesitation in holding them entitled to me this private sower; and, where no compensation is provided, I would not construe the clause so strongly against the proprietor. I am not swayed by the consideration, whether the throwing the water in be beneficial in cleansing the sewer or not, because the question is, whether they had the power to throw in the water, and that I doubt.

Lord Justice-Clerk.—We cannot shut our eyes to the locality of the grounds. The statute allows water to be thrown on adjoining lands, with the exception of land built on or occupied as gardens, and the road trustees not to pay any thing for it. In the course of their improvements, it was found necessary to get rid of superfluous water, and, on the fair construction of the act of Parliament, I think what they have done is within the powers conferred on them, and in the least injurious way. I am therefore for adhering.

This Court accordingly adhered.

Solicitors: Ker and Dickson, W.S.— James Balfour, W.S.—Agents.

 SS 13 SS 220 1834

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URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0220.html