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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Currie v. Macgregor [1871] ScotLR 9_86 (16 November 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0086.html Cite as: [1871] SLR 9_86, [1871] ScotLR 9_86 |
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Page: 86↓
By the Edinburgh and Leith Sewerage Act, 1864, proprietors of lands are required to connect the drains of houses built by them with the main sewer, at their own expense, and at the sight of the Commissioners. The Commissioners are further empowered to require payment from such proprietors of a “reasonable sum” for the use of the sewer. A proprietor executed these operations according to statute at his own expense, and thereafter disponed the property by a feu-disposition, under which he was bound to relieve the purchaser of all public and parochial burdens payable out of the lands preceding the term of entry. The purchaser entered into possession at Whitsunday 1869, and the Commissioners did not fix the said “reasonable sum” for the use of the sewers until December 1870. Held that the proprietor was bound to relieve the purchaser of payment of “this reasonable sum,” it being a burden payable out of the lands prior to the term of entry.
Currie in this action sued Messrs W. & D. Macgregor, builders, for the sum of £40, 5s., which he had been called upon to pay by the Commissioners who acted under “the Edinburgh and Leith Sewerage Act, 1864,” in respect of certain houses in Leven Street, sold by them to the pursuer. Their sale was carried through by means of a missive offer by Mr Currie, a condition thereof being that the pursuer Currie should bear no part of the expense of forming, macadamising, causewaying, and completing the streets, roads, lanes, and others mentioned in the conditions of feu of the lands of Leven Lodge and Valleyfield, or of the drainage of the said lands.
Following on this, a feu-disposition, of date 13th May 1864, was granted by the defenders to the pursuer, disponing the said subjects to him, with entry at Whitsunday. The said disposition contained a clause binding the defenders to free the pursuer of all feu-duties, casualties, and public and parochial burdens payable out of said subjects at and preceding the said terms of entry.
The defenders accordingly entered into possession
Page: 87↓
of the subjects at Whitsunday 1869, and previous to that time the drains of the buildings had been connected with one of the main sewers of Leith at the expense of the defenders in terms of the enactments of “The Edinburgh and Leith Sewerage Act 1864.” By section 44 of that Act all sewers shall be in connection with the main sewer, and not discharge their contents into the river or harbour. Section 45 provides that this shall be done at the sight of the Commissioners, and at the expense of the proprietors.
Section 47 is as follows—“The owners of all lands, houses, or other property, any sewer, outfall, or drain from which shall, after construction of the said main and branch sewers and works, be connected with the same, shall be liable in payment to the Commissioners of a reasonable sum of money for the use of the said main or branch sewers and works, which the Commissioners are hereby authorised and required to fix and exact in respect of all such lands, houses, or other property: Provided always that such lands, houses, or other property shall not have been assessed for the expense of making such main or branch sewers or works; but if such lands, houses, or other property shall have been so assessed, and shall have been built upon, enlarged, or altered after the assessment for making such main or branch sewers or works was imposed and levied, the owners thereof shall be liable in payment to the Commissioners of such reasonable sum of money as aforesaid.”
On 7th December 1870 there was served upon the pursuer a notice, under the hand of the Clerk to the Commissioners, to the effect that in terms of the last mentioned section the “reasonable sum” for the use of the sewers had been fixed at £40, 5s., and accordingly that the pursuer was liable for that sum.
The pursuer paid this sum to the Commissioners, and the present action claimed relief for the same from the defenders in respect that it was a public burden payable out of the subjects prior to his term of entry.
The Lord Ordinary ( Ormidale) sustained the claim of the pursuer, and decerned in terms of the conclusions of the summons. He remarked in his note—“The £40, 5s. sued for is the sum fixed by the Commissioners under the Edinburgh and Leith Sewerage Act 1864 as payable by the owners of the subjects in question in respect of the junction or connection of the sewerage and drainage thereof with the main drain and sewers constructed by said Commissioners in the exercise of their statutory powers.
“The important clauses of the Edinburgh and Leith Sewerage Act bearing on the present dispute are set out in articles 3, 4, and 5 of the pursuer's condescendence. By the clause set out in condescendence 3 it is made imperative on all persons constructing sewers on their properties, in place of allowing them to lead or to discharge their contents into the river of Leith, to join or connect themwith the main drain and sewers constructed by the Commissioners. By the clause set out in condescendence 4 it is provided that the mode of connection or junction is to be determined by the Commissioners, and that the works necessary for that purpose are to be executed at the expense of the parties requiring the connectionor junction. And by the clause set out in condescendence 5 it is enacted that the owners of the subjects, the drains or sewers of which have been connected with the main drain and sewers, shall be liable in payment to the Commissioners of a ‘reasonable sum of money for the use of the said main or branch sewers or works, which the Commissioners are hereby authorised and required to fix and exact in respect of all such lands, houses, or other property.’
With reference to these statutory enactments it is admitted (condescendence 6, and answer thereto) that the connection or junction of the drains and sewerage of the subjects in question with the Commissioners' main or branch sewers had been effected at the expense of the defenders previous to the date of the pursuer's entry to the subjects in question. It thus appears that the defenders had previous to such entry taken and obtained the use of the main or branch sewers, for which the sum now sued for was chargeable.
The subjects in question were purchased by the pursuer from the defenders on 9th November 1868, per the missive offer and acceptance No. 6 of process. By that missive the pursuer's entry to the subjects is declared to be Whitsunday 1869, and it is made an express condition of the purchase that the pursuer was to bear ‘no part of the expense of forming, macadamising, causewaying, paving, and completing the streets made, lanes, or others therein referred to, or of the drainage of said lands.’ If then the present question were to be governed by this condition there could be little room for doubt that the defenders and not the pursuers are liable for the sum now in dispute, for that sum must, the Lord Ordinary thinks, be taken as part of the expense of completing the drainage of the subjects in question.
It was contended, however, for the defenders that the missive of sale cannot now be considered at all, in respect that, according to the general rule applicable to such matters, the feu-disposition (No. 7 of process) which followed on it must alone be held to embrace the conditions of the contract of parties as finally agreed on. But assuming this to be true as a general rule, the Lord Ordinary cannot find anything in the feu-disposition to alter the state of matters or relieve the defenders from the liability which had unquestionably been incurred by them prior to the sale of the subjects in question, and to transfer that liability over upon the pursuer. On the contrary, although the feu-disposition contains no express allusion to the expense of constructing and completing the drainage of the subjects, or to the sum incurred and payable to the Commissioners under the Edinburgh and Leith Sewerage Act for allowing the connection or junction of that drainage with their main or branch drains, it implies very plainly that the drainage had been completed, and of course that the relative expense had been incurred. He accordingly finds that the pursuer is by the feu-disposition taken bound to defray the expense, not of constructing and completing the drainage, but of ‘supporting and keeping in repair’ the drains; and he also finds that besides the ordinary clause of absolute warrandice the defenders have bound and obliged themselves to free and relieve the pursuer and his successors of, inter alia,‘ all public and parochial burdens payable out of the said subjects before disponed at and preceding the said term of entry, they freeing and relieving us and our foresaids of the same in all time thereafter.’ Now, keeping in view that the liability for the sum in dispute had arisen and been incurred prior to
Page: 88↓
Upon the whole, and although the point in dispute is somewhat peculiar, and may not be altogether unattended with difficulty, the Lord Ordinary considers the pursuer is entitled to prevail, and he has so decided.”
The defenders reclaimed.
The Solicitor-General and Balfour for them.
The Dean of Faculty and Thomas in answer.
The Court adhered.
Solicitors: Agents for Pursuer— Hill, W.S.
Agents for Defenders— Lindsay & Paterson, W.S.
