Scottish Court of Session Decisions

By the police act of Leith, it is, inter alia, enacted (§ 62), “That the monies arising from the foresaid assessment, and the property of the lamps, lamp posts, and irons, and also all the dust, clung, ashes, fulzie, and other materials (excepting always stable and byre dung, and the fulzie and refuse of slaughter-houses), within the bounds before described, and all and singular other matters and things acquired and purchased, and made by the said commissioners in pursuance of the powers hereby granted, shall be, and the same are hereby vested in the said commissioners for the uses and purposes before and after mentioned.”

By § 93, it is further provided, “That the said commissioners shall be and they are hereby empowered to appoint paviors, scavengers, and others, for paving, causewaying, sweeping, and cleansing the said streets, roads, lanes, and other places, or to contract with any person or persons for these purposes, and to remove the dung and fulzie thereof to such place as the said commissioners shall deem least offensive to the inhabitants, with power to the said commissioners to rent or purchase depots for that purpose within or without the bounds described by this act, from such person or persons as may be willing to contract and agree with them therefor, and to make and enact such rules and regulations as they shall from time to time consider necessary and proper for their order and government, for regulating the time and manner of paving, sweeping, and cleansing the different streets, roads, lanes, and places within the said district, and for prohibiting and preventing the inhabitants from throwing out and laying down upon the said streets, roads, lanes, closes, and other places, any dung, ashes, filth, rubbish, stones, or other nuisance, and generally for the enforcement and effectual execution of the purposes of this act, under a penalty not exceeding 20s.”

In August, 1834, the advocator, Robertson, a farmer in the county of Edinburgh, purchased from an inhabitant of Leith a quantity of pig's dung, which had been made and accumulated within the seller's own private premises in the town. He was in the act of conveying them to his farm, when his cart was stopped, and the dung taken possession of by orders of the respondent, Angus, intendant of police, on the ground, that the dung belonged to the commissioners of police, in virtue of the provisions in the police act, and that it could not be disposed of by the inhabitant on whose premises it had been made.

Robertson thereupon presented a petition to the magistrates, praying for restitution. The magistrates pronounced the following interlocutor:—“Finds that the cart-load of dung in question was the lawful property of the contractor with the commissioners of police, by the terms of the act of parliament; finds that, under the circumstances stated and admitted on record, the said contractor was entitled to possess himself of the dung in question by means of the respondent's assistance; finds that the respondent, in rendering such assistance, was acting in the lawful discharge of his duty, either as intendant of police or as a servant of the commissioners, whose interests and property he is bound to protect: Therefore, refuses the prayer of the petition, dismisses it, and decerns; finds the respondent entitled to the expense of process; allows an account thereof to be given in, and remits it, when given in, to the auditor of court to tax and report.”

Robertson brought an advocation of this judgment, pleading, that there was no provision in the statute conferring on the commissioners of police such a right as was here claimed, of confiscating the property of private individuals; that their powers clearly extended no farther than was necessary for cleaning the streets and public places; and that the exception of stable and byre dung could never be construed so as to give a positive right beyond what the words conferring the right implied, and beyond what was necessary for the object of the act.

To this, it was answered, that the exception in favour of stable and byre dung clearly showed what was the intendment of the statute in the terms, “all the dung, &c. within the bounds,” in the 62d section, which, besides, were sufficient, by their own force alone, to vest the commissioners with a right to all the dung within the bounds, except what was specially excluded; and that the removal of pig's dung from cellars and other private premises, was a matter truly within the purview of the act, and necessary for the health and cleanliness of the town.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: ^*—“Advocates the cause, and finds that the statute regulating

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* “The exceptions in the 62d section of the act raise a considerable difficulty in this case; and the Lord Ordinary confesses that he is not perfectly satisfied with any solution that has been proposed. But, at the same time, it appears to him so very improbable that the legislature should have intended to confiscate the lawful property of any of the subjects of the realm, while their continued enjoyment and disposal of it was in no way hurtful to their neighbours or the community, that he would adopt any possible construction of the act by which such a result might be avoided.

“The claim of the intendant is very broad indeed. He says the commissioners have the full and exclusive property of all dung, soil, or manure of any description (under the exceptions already referred to) made or existing within the bounds of police. Now, it is manifest that there may be manufactories and other large establishments within those bounds, in which, partly from the refuse of the manufacture itself (as in the case of brewers, curriers, &c.), partly from the ashes of fires and furnaces, and from the offal of kitchens, necessaries, and cess-pools, a very valuable collection of manure may be daily accumulated in covered ash-pits or other proper receptacles, so as to be in no way offensive even within the premises themselves, and much less to the vicinity, and sold to the extent it may be of many pounds at the end of every week. All this, however, according to the intendant, must now be interdicted. But take the case even of a private dwelling. Suppose a gentlemen has a large family, with a suitable house, and garden attached, and that he chooses to collect in a concealed and well-secured place, at a distance from any neighbouring property, the ashes of his fires, with the refuse of his kitchen, poultry-yard, pig-stye, or pigeon-house, and, from time to time, to carry out this compost, and lay it on his own garden: if the intendant's construction of the act is right, this is a fraud upon the commissioners, and would warrant his immediate interference; and between this, which may be thought an extreme case, and the present, there is really no room for a distinction. If the gentleman in question may apply his own manure to his own adjoining garden, may he not wheel a part of it into the garden of his next neighbour? may he not carry it out to his villa, half a mile distant? or to his farm a little way further? And if he is entitled to do this, is it conceivable that he should be prevented from selling it to a farmer beside him?

“If these he the unavoidable consequences of the intendant's doctrine, it would seem to require the sanction of a very special enactment, and ought not to be adopted on any implication from obscure or ambiguous expressions. If such was truly the purpose of the legislature, it is natural to think that they would have distinctly enacted that it should no longer be lawful for any one within the bounds of police to collect any manure within his own premises, however completely all risk of annoyance was excluded, or to dispose of it, however valuable, for his own benefit.

“It is certain, however, that there is no such substantive or express enactment in the present police act; and that the clause relied on, viz. the 62d, is very far from coming up to this description. In the first place, its object plainly is, not so much to rest any property for the first time in the commissioners, as to set forth the uses and purposes for which the property already at their disposal should be applied; at least it is certain, that if the intendant's construction is right, the soll and manure here taken for the first time from the owners is the only thing mentioned in the clause that was not already in the commissioners, or that can be pretended to have been previously at the disposal of any other persons. The provision it, that the monies raised by assessment, the lamps and lamp-posts (to be purchased or contracted for by the commissioners), and the dust, dung, and fulzie within the bounds specified, and all other things acquired, purchased, or made by the said commissioners, shall be vested in them for the purposes specified, and applied in paving, lighting, sweeping, watching, &c., and in making drains, and in paying wages and salaries to the necessary officers, &c. Now, considering the nature of the other things with which it is here classed and mixed up, it seems to the Lord Ordinary most natural to hold that the dust, dung, and fulzie so to be used and appropriated, along with the assessments, lamps, &c., was that which was found on, or brought out to the street, areas, and passages, over which the powers of the commissioners clearly extended; and not that deposited (without nuisance) in those private premises, into which, under ordinary circumstances, they had no right to enter. If it had not been for the exceptions in the clause, the Lord Ordinary would have thought this too clear to be disputed; and the whole difficulty of the case therefore arises, in his view of it, from those exceptions. They are, ‘excepting always stable and byre dung, and the fulzie and refuse of slaughter-houses.’ The inference from this in favour of the intendant's argument is sufficiently obvious, and there is no doubt that it is a little embarrassing. For the reasons already given, however, the Lord Ordinary cannot adopt that inference; and holding that the only dung or fulzie which is vested (or rather recognised as already vested) in the commissioners by the general words, was what was found on, or brought out to the streets, and in which no party had or retained any property, he inclines to think that the exception was intended to save to the owner the property of the particular substances mentioned, even when found on or brought out to the streets or lanes; supposing always that they were those kept under such precautions as neither to obstruct the passage, nor occasion an actual nuisance to the neighbourhood. Stable dung, it is well known, cannot be allowed to remain many hours in the place where it is produced, without injury to the horses; and yet, valuable as it is, it could not generally defray the expense of removal to the fields, till a considerable quantity is collected. It is the universal practice, accordingly, to have a small dunghill at the door of the stable, and in every meuse lane in the city (all which are public passages), such a dunghill may be seen at the door of every stable, public or private, and has never been supposed liable to challenge, if not of a size to obstruct the passage, or kept so long as to be actually offensive to the vicinity. Now the Lord Ordinary is of opinion, that the exception in this clause of the act was only intended to legalise such a practice in Leith, and that the reasonableness of that practice sufficiently explains the exception as to stable and byre dung, while, with regard to slaughter-houses, it probably had reference to the special regulations contemplated and authorized to be made as to those places by the 109th section of the statute.

“This construction appears to be countenanced by the terms of the 93d, and especially of the 100th section of the act, in which it is impossible to hold that the words, though most general and comprehensive, can be construed to apply to the private dwellings or premises of the inhabitants, unless it is meant to be contended that the commissioners have a right to fine a man for shaking a crumb-cloth from his own back window into his own garden, or to enter and cleanse, at their pleasure, all the slovenly sculleries, nurseries, or dressing-rooms of the district. In short, the Lord Ordinary is of opinion that the control and jurisdiction of the commissioners is limited to the public and open places which they are directed to keep in order; and that they are not to be countenanced in any invasion of private property, when kept and used in such a way as to give no annoyance to the vicinity.”