Scottish Court of Session Decisions

On 21st April 1919 the Corporation of the City of Glasgow, pursuers, being the local authority for the County of the City of Glasgow, and as such responsible for the maintenance of the public streets of the city, brought an action against Messrs Barclay, Curle, & Company, Limited, shipbuilders, engineers, and boilermakers, White-inch, Glasgow, defenders, in which they sought to recover the sum of £460 in respect of damage alleged to have been done to certain public streets of the city by the conveyance over them by the defenders of traffic of abnormal weight.

The pursuers pleaded—“1. The pursuers having suffered loss and damage through the fault of the defenders, as condescended upon and to the extent sued for, decree should be granted as concluded for. 2. The traffic complained of being traffic of excessive weight, having regard to the traffic which the streets of a city constructed in the best usual methods can carry, and such traffic, for which the defenders are responsible, having caused damage to said streets in excess of ordinary tear and wear; the defenders are liable in compensation therefor to the pursuers, and decree should be granted as concluded for. 3. The defenders having transported along the streets traffic of excessive weight and having thereby caused loss and damage to the pursuers, all as condescended upon, are liable to compensate the pursuers therefor, and decree should be granted as concluded for. 4. In any event, the defenders being bound, in conveying said traffic over the streets specified, to do so in the manner least burdensome thereto, and having failed in this duty, are liable in compensation to the pursuers for the damage thereby resulting, and decree should be granted as concluded for. 5. The defenders' actings, as condescended upon, being in contravention of section 4 of the Locomotive Act 1861, and the damage complained of being the result of such contravention, the defenders are liable in the damage thus caused to the pursuers, and decree should be granted as concluded for.” The defenders pleaded, inter alia—“3. The pursuers not having suffered loss or damage through the fault of the defenders, the defenders are entitled to absolvitor. 4. The said traffic complained of not having been unusual, extraordinary, or excessive, having regard to the locality and the nature and extent of the industries carried on therein, the defenders should be assoilzied. 5. The defenders having conveyed their said traffic over the said streets With due care and regard to the prevention of unnecessary damage, are entitled to absolvitor. 6. The damage to the said streets having been caused or materially contributed to ( a) by the failure of the pursuers to construct and maintain them in a condition to bear the traffic usually passing and reasonably to be expected to pass over them, and to provide for the increased requirements of the local industries, and ( b) by the passage of traffic other than that of the defenders, the defenders are entitled to absolvitor. 7. Section 4 of the Locomotives Act 1861, not being applicable to the traffic complained of, et separatim, the defenders not having acted in contravention of the said statute, they should be assoilzied from the conclusions of the summons so far as based thereon.”

The averments of parties and the import of the evidence sufficiently appear from the opinion ( infra) of the Lord Ordinary ( Ashmore), who on 14th April 1921 sustained the third, fourth, fifth, sixth, and seventh pleas-in-law for the defenders, and assoilzied them from the conclusions of the summons.

Opinion.—In this action the Corporation of Glasgow are suing the defenders for damages representing the cost incurred by the Corporation in repairing injury alleged to have been done to certain streets by the passage over them of what the pursuers describe as ‘excessive’ weights.

It is a test case intended to vindicate the right of the Corporation to charge against anyone whose traffic causes extraordinary damage the extra expense incurred in making good the damage.

The defenders are a well-known limited company who carry on business as shipbuilders, engineers, and boilermakers at no less than six establishments situated at different parts of Glasgow, one of these being their boilermaking works in Kelvin-haugh Street.

The claim in the present case relates only to the carriage of boilers from the defenders' boiler-works in Kelvinhaugh Street to the docks over a period of three or four days.

The defenders as owners and occupiers are at present contributing in the form of road assessments about one-thousandth part of the total expenditure incurred by the pursuers in maintaining the whole streets of the city.

Hitherto the Corporation have not sought to recover any special payment in respect of heavy traffic, realising, no doubt, the practical difficulties attending both the proper ascertainment and the equitable apportionment of the extra cost in view of all the ordinary wear and tear and all the other injurious effects resulting from traffic of every kind.

Indeed, the attitude of the Corporation before this litigation began and throughout its course has been wholly consistent with their interest in maintaining and indeed encouraging the traffic, however burdensome, and their recognition of the necessity that in the solution of the difficult problem now facing them out of the three factors involved—the weight, the vehicle, and the street—the weight must continue to pass.

In its legal aspect the case raises a novel question. Not only is it the first of the kind to be instituted by the Corporation, but it

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has no recorded or known precedent in this country. I must deal later in detail with the legal question. Meantime it is sufficient to explain generally that this case falls to be distinguished from the somewhat analogous cases which arise under the Roads and Bridges Act of 1878 for recovery of extraordinary expense incurred by road authorities in repairing highways. The statutory remedy referred to does not apply to the city of Glasgow, and accordingly the claim in this case is based not on statute but on common law.

The sum sued for is £460. The damage is said to have been caused by the transporting from the defenders' works in Kelvin-haugh Street to the Clyde Navigation crane at Lancefield Quay of seven boilers in all, as follows, viz.—On 22nd April 1918 two boilers weighing respectively 56 tons and 55 tons; on 27th April three other boilers weighing respectively 71 tons, 71 tons, and 72 tons; on 30th April a boiler weighing 55 tons; and on 1st May another boiler also weighing 55 tons.

The pursuers' averments so far as material are to the following effect:—( a) That the pursuers had made proper provision for the traffic of the industrial district of the city by constructing and maintaining the streets according to the best methods and with the most suitable materials; ( b) that the transporting of the defenders' boilers on the occasions stated substantially altered and increased the burden imposed on the streets by the usual traffic; ( c) that in consequence of the excessive weights many hundreds of the granite setts in Kelvinhaugh Street, Argyll Street, and Finnieston Street were ‘broken,’ involving expenditure in repair to the extent of the sum sued for; and ( d) that it was the duty of the defenders to have prevented the damage, and that they could have done so by the use of properly constructed bogies ‘of a well-known type such as are used for the like purpose in Dundee.’

The defence may be stated generally as follows:—( a) That the streets were not properly constructed and maintained, and in particular, as regards construction, that the setts used were hammer dressed, which are Unsuitable for heavy traffic, and that nidged setts with smooth dressed surfaces should have been used, and as regards maintenance, that during the war the streets had suffered serious deterioration, and were out of repair in April and May 1918; ( b) that the boilers referred to were not excessive in weight, and on the contrary that similar and also heavier weights had been regularly taken over the streets for many years; ( c) that the damage complained of was largely accounted for by other heavy traffic and by lighter miscellaneous traffic; and ( d) that the defenders did use care and caution to minimise damage, and that bogies of the Dundee type would have been inappropriate for the traffic.

Put shortly, the contentions of the parties are as follows:—The pursuers' contention is that this is a case not of using but abusing the streets by employing an unsuitable vehicle for the carriage of the heavy weights, and the defenders' counter contention is that what was wrong was not the vehicle but the streets.

On the questions of fact as to the alleged fault on the part of the defenders and as to the damage to the streets a long proof was led, and on both these questions the defenders were handicapped in adducing evidence. I say so because the first intimation of the present claim in connection with the conveyance of the boilers in April and May 1918 was only given some months later, viz., by the pursuers' letter of 20th September 1918, stating that an expenditure of £460 had been incurred in repairing the damage, and calling on the defenders to. admit liability. Moreover, Mr Somers, C.E., the experienced assistant to the Master of Works for the city, who supervises the maintenance of the streets, was unfortunately in France in April and May 1918, and was unable to speak from personal knowledge either as to the state of the streets at the time or as to the damage done.

Have the pursuers established, in point of fact, that the damage on which the claim is based was occasioned by the fault of the defenders?

On this question of fault I think that in judging of the reasonableness or unreasonableness of the weights sent by the defenders over the streets, it is proper to keep in view the general and long-continued practice in the industrial parts of the city of transporting heavy traffic over the streets.

Glasgow is the centre of the boilermaking industry of Great Britain. Moreover, the allied industries of boilermaking, engineering, and shipbuilding carried on for generations on both sides of the Clyde have gone far to make Glasgow the workshop of the world; and all along, as these ‘heavy trades, as they are called, have been developing, the products of manufacture have been increasing, and the burden on the streets has been growing in volume and in concentration.

In my opinion, whether regard be had to the traffic of the district generally or whether it be confined to the particular route from the defenders' boiler works to the quay, in either case the evidence shows that the weights complained of in this case, 55 to 72 tons, are much less than the heaviest weights which for many years past have been carried over the streets.

On this subject it is not practicable to enter into details regarding the instances and examples of heavy weights sent over the streets, but I will indicate generally the nature and scope of the evidence.

In the first place, various representatives of the boilermaking industry spoke to such weights as 89 tons in 1900, 103 tons in 1909, 104 tons in 1911, 122 tons in 1915, and 111 tons in 1917. Then an employee of the Clyde Navigation Trustees explained that in order to facilitate the handling of heavy weights the Trustees in 1894 installed two big cranes costing £16,000 each, one at Lancefield Quay and the other on the opposite side of the river; and as the result of his examination

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of the records of the weighing machine at Lancefield Quay during the six years from 1914 to 1920 it was shown that very many weights over 50 tons were dealt with, and many considerably higher—up to a maximum of 120 tons.

The managers of the two traction haulage contractors, who between them substantially conduct the whole of the heavy traffic of this kind, demonstrated how frequently during the five years from 1913 to 1918 heavy weights up to over 100 tons had been hauled by them over the streets.

One of them stated that during the war his firm, in the employment of the pursuers, had carried weights up to 70 tons over the streets on the same type of bogie as that complained of in this case.

So far the statistics have related to traffic over the streets generally. It was proved, however, that for many years prior to 1918, and at least since 1904, the defenders themselves were in the habit of sending boilers heavier than those taken in 1918 on similar bogies and along the same route.

Moreover, this is not a case of selecting for heavy traffic a street not intended for it. According to the pursuers themselves no streets in the city were better constructed or better maintained than the three streets in question in this case, and ex hypothesi it must have been over streets so constructed and maintained that for very many years all the heavy traffic of all the heavy trades in Glasgow has been passing.

I shall conclude my reference to the evidence on this part of the case by quoting the following passages from the evidence of the pursuers' leading official witness Mr Somers:—‘(Q) I find that from 1879 to date there appears to have been close on 800 heavy boilers taken over the streets?—(A) Yes. (Q) So long ago as 1890 boilers up to 69 tons weight were evidently being manufactured and taken over the streets?—(A) Yes. (Q) And in 1903 up to 84 tons, and latterly as much as between 90 and 100 tons?—(A) Yes. (Q) This traffic is not confined to the three streets traversed by the defenders' bogies?—(A) No, the boiler traffic is not. (Q) It is to be found in other industrial parts of Glasgow?—(A) Yes, generally in the streets parallel with the river. (Q) And it has been going on there for a long time?—(A) No doubt.’

Now if the practice of the last half century is to be taken into account, as I think that it ought to be, on the question now under consideration of the alleged fault on the part of the defenders in sending excessive weights over the streets, it seems to me that the evidence to which I have been referring is prima facie adverse to the pursuers' case on that head.

I am further of opinion that it has been proved that the defenders consistently exercised care to prevent, or at least to minimise, damage to the streets and inconvenience to the other traffic. Before taking any heavy load over the streets the defenders communicated with the Corporation and also with the Tramways Department in case precautions had to be taken regarding parts of the street under repair or in order to get the overhead wires lifted to secure headway for the passage of the boilers. Then so as to lighten the load the defenders' practice was to strip off from the boiler proper anything that was detachable—smoke boxes, boiler mountings, and furnace bars—although the cost involved in doing this was considerable and might be as much as £50.

Moreover, the inspectors of the haulage contractors whom the defenders employed to conduct the traffic went over the streets inspecting them by daylight and noting the manholes in the way and any parts that seemed to require protection so that steel plates might be put over these manholes and weaker parts. During war time the defenders, with the consent of the Master of Works, had all the manholes whitewashed so that they might either be avoided altogether or if to be passed over might be protected by the steel plates.

The route included three busy streets—Kelvinhaugh Street, Argyll Street, and Finnieston Street; but the first of these on which there is no tramway is not so busy as the other two, on one of which (Argyll Street) the tramcars are constantly running, and on the other (Finnieston Street) there is often a continuous double line of traffic going to and from the docks.

Accordingly the defenders when transporting a boiler had it brought along to the end of Kelvinhaugh Street in the afternoon, left it there till midnight, when the streets are quiet, and then had it removed through the night along Argyll Street and Finnieston Street.

With regard to the vehicle and the actual conduct of the haulage, the defenders for many years have employed one of the two companies of haulage contractors who are generally employed by the transporters of heavy weights. The haulage contractors employed by the defenders have a stock of fifteen bogies built to suit the work in the light of long and varied experience. The other company have bogies of a similar type. All these bogies are low set so as to keep low the centre of gravity of the load, and to secure that in the event of a wheel breaking down there will only be a few inches between the axle and the surface of the street. The measurements of the actual bogies used in the transport of April and May 1918 were not noted by the pursuers and are not available. I hold it proved, however, that the bogies so used were of the usual standard type kept for heavy haulage in Glasgow, and that they were of the most up-to-date type known in the haulage trade.

So far as appears there has never been a breakdown or accident as the result of the use of the Glasgow haulage contractors' bogies, and until the present case began there had been no suggestion that the type of bogie was not as good as could be designed for the purpose.

I ought to explain that it was only on the first day of the proof that the pursuers by amending their pleadings introduced a new averment to the effect that the defenders could have avoided the damage to the

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streets if they had used a properly constructed bogie, such as the Dundee bogie. I proceed to the evidence relating to the Dundee bogie.

The special feature of this bogie, in contrast, with what I will call for convenience the Glasgow bogie, consists in the sheathing of the wheels with blocks of beechwood.

The iron wheels have a hollow rim, and into this rim are fitted the blocks of wood so as to present a wearing surface of about 2 inches of beechwood before the iron rim would run on the granite setts. The effect is to interpose what may be described as a cushion between the load and the surface of the street.

The pursuers' advisers claim that the wood introduces two advantageous conditions, viz., a certain resilience and a better distribution of the weight over the street surface.

The Dundee bogie was adopted in that city seventeen or eighteen years ago as the result of a litigation between the city and a well-known Dundee company who it was said had been damaging the streets, breaking and crushing granite and whinstone setts, by the haulage of heavy loads up to 87 tons in weight. Thereupon the Dundee company hit upon the use of beechwood sheathing on the wheels.

The evidence led for the pursuers in this case is that from 1903 onwards the Dundee bogie has been a success—that the boilers of heavy weight have ever since 1903 been carried over the streets without doing damage to them. The cost of the bogie is about £1500, and the cost of re-sheathing is about £100 each time.

That evidence seems to support the pursuers' contention as to the desirability of using the Dundee bogie in Glasgow, but doubts suggested in the course of the evidence of the pursuers' witnesses were materially accentuated by the evidence for the defence.

To begin with, it does seem strange if the Dundee bogie has been so effective all along that throughout the intervening years it has been introduced in no other-town at either end of the island,

Then there was great vagueness in the evidence for the pursuers as to the extent to which the Dundee bogie is used in Dundee itself.

It turns out that only two such bogies are in existence in Dundee, that both belong to the same company, and that no one else requires to use them.

The city engineer of Dundee spoke to the last load he had seen on the bogie—a load of 24 tons (hereinafter referred to as the exhibition load)—but he also deponed that five or six years ago he bad seen what he called a maximum load of 80 tons, and further deponed that in 1915 he had arrived, on information available to him at that time, at an average weight of 50 tons as having been carried by the bogie on seventeen previous journeys. He could not say how many of these were made in any one year. Mr Somers saw the bogie carrying the exhibition load, and the general manager of the Dundee Tramway Company, a witness for the pursuers in this case, had examined the bogie but had never seen it under a load.

The other witnesses who gave evidence for the pursuers regarding the bogie reported what they had observed on the occasion of the exhibition load. Mr Frew, C.E., admitted that he had waited six months for the opportunity of seeing the bogie under a load. Mr Cowan, C.E., saw the exhibition load carried, and that was all the testing of the loaded bogie that he ever saw.

All of these witnesses thought well of the bogie, but substantially it was opinion evidence. The pursuers adduced no witness who could speak explicitly and fully as to the specific loads carried by the bogie, or could testify from actual practical experience as to the merits of the bogie for carrying loads such as the Glasgow bogie has to bear.

The defenders' witnesses, speaking from general experience and on theoretical grounds, were at one in condemning the Dundee bogie as unsuitable for Glasgow. Their reasons may be summarised as follows:—( a) The greater traffic to be dealt with in Glasgow both as regards volume and weight. ( b) The small factor of safety as compared with that afforded by the steel wheel of the Glasgow bogie. The evidence as to the crushing strain and the elastic limit of the beach sheathing in my opinion raised serious doubt as to the safety, the prudence, of subjecting the wood to the risks attending concentrated pressure under the very heavy loads over the uneven surface of the Glasgow streets. ( c) The roughness of the hammered granite setts used in Glasgow. These setts with their ‘pinnacles’ on the top are calculated to make indentations on the beechwood, with the result that the sheathing would probably lose its uniformity of bearing surface after even a single journey, especially under a very heavy load. The contrast between the Dundee streets and the Glasgow streets in this respect was brought out incidentally in the evidence of the Dundee city engineer. He deponed that in order to meet modern heavy traffic Dundee was dressing the granite setts to make them as nearly as possible ‘like bricks in smoothness.’ That is what Glasgow does not do and what the defenders maintain should be done by the use of nidged setts, ( d) The very serious effects of a breakdown of a heavy boiler load in Argyll Street. If a bogie carrying a heavy boiler broke down in Argyll Street, which is only 32 feet wide between the kerbs, the consequences might be disastrous. Apart from any other bad results, the probability would be that the tramway traffic would be stopped completely and the general vehicular traffic seriously hampered for several hours, with resulting loss of revenue to the city and to the great inconvenience of the general public.

These practical considerations represent generally the chief grounds on which the witnesses for the defence were against the use of the Dundee bogie in Glasgow; and I think that their adverse opinions receive

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substantial confirmation from the real evidence afforded by the experience of one of the Glasgow haulage contractors. He tried wood-sheathed wheels on the principle of the Dundee bogie, but found two fatal objections—( a) that the wood sheathing (he used oak blocks) tended to flatten under use, so that the wheel, losing its roundness, got into an eccentric shape and caused jolting, and ( b) that the cost of renewing the sheathing was quite prohibitive.

I have now reviewed the facts bearing on the question of the alleged fault on the part of the defenders, omitting no doubt very many details, but I think substantially indicating the state of the evidence.

In the light of all the evidence I have come to the conclusion that the pursuers have failed to establish either ( a) their general averment of fault with reference to the weights carried, or ( b) their special averment of fault in continuing to use the Glasgow type of bogie, and in failing to adopt the Dundee type of bogie.

So much for the facts, and my conclusions thereon, on this branch of the case.

I think it right to add that even if the evidence in favour of the Dundee bogie as against the Glasgow bogie had been much stronger in favour of the Dundee type of bogie, it would not follow, in my opinion, that the defenders would necessarily be held as in fault in continuing to use the standard bogie of the trade in Glasgow. I refer on this matter to the case of Wisely v. The Aberdeen Harbour Commissioners, 1887, 14 R. 445, in which the Commissioners were blamed for using what are known as bulb or concave rails instead of the “box” rails with straight sides, commonly in use in street tramways. The Court held that although the box rails were, on the whole, of a safer description for traffic which had to cross the rails, as both kinds to a certain degree were dangerous to traffic crossing them, the Commissioners could not be held negligent for not scrapping the existing rails which in the past had proved reasonably safe.

Although I have come to the conclusion that no fault on the part of the defenders has been established, nevertheless, on the assumption that the conclusion may be found wrong, ob majorem cautelam it would be proper for me to deal with the question of damages. In this case, however, even on the assumption that my conclusion is right, I must go on to deal with the question of damage, because the pursuers' counsel submitted a legal argument to the effect that, fault or no fault, the defenders are liable on the ground that they in using, or rather, as he put it, abusing, the streets, and thereby causing damage to the pursuers, had committed a public nuisance.

The averment of the pursuers as to the damage done by the carriage of the boilers is to the effect that in each of the three streets many hundreds of granite setts were ‘broken.’

The two foremen in the employment of the pursuers, however, who counted the damaged setts admitted ( a) that the setts described as broken included all setts which seemed to them to have been recently chipped in any way or which showed a powdering of the surface or any kind of mark of recent injury, and ( b) that they had counted all such stones in Argyll Street and Finnieston Street, whether on the tramway track or the sides of the streets, and had attributed two-thirds of the total so arrived at to the defenders' traffic.

It is necessary to explain that the pursuers' claim covers damage by the defenders' traffic only in certain parts of Argyll Street and Finnieston Street included in the route traversed by the boilers, viz., only these parts of these streets which are maintained by the statute labour department of the Corporation, exclusive altogether of the other parts which, being occupied by the tramway track, are maintained by the Tramway Department of the Corporation.

In Kelvinhaugh Street there is no tramway. In Argyll Street and Finnieston Street, part of the width of each street, 17 feet broad, representing the portion between the tramway rails and a margin of 18 inches on each side, is maintained by the Tramway Department. Moreover, in Argyll Street and Finnieston Street any damage done by the defenders' traffic is necessarily limited to the crossing at Kelvinhaugh Street into Argyll Street and the crossing at the head of Finnieston Street, because in both streets the bogies keep in the centre of the street on the portion (17 feet in width) maintained by the Tramway Department.

In considering whether responsibility can be attributed to the defenders for the damaging of setts on the occasions referred to in April and May 1918 I think that various general considerations must be kept in view—( a) In my opinion the reasonable inference from the evidence as a whole is that the defenders' traffic on the occasions mentioned did do considerable damage in each of the three streets, and in particular in Argyll Street, more damage than usual, having regard to the fact that the weights carried did not on any occasion exceed 72 tons. ( b) The general deterioration of the streets due to the abnormal war conditions seems to me to explain any unusual appearances of damage to the surface of the streets on the particular occasions. Before April 1918, which is the critical date in this case, an enormous traffic of war materials over the streets to the docks had been going on. It is not possible to obtain details of that traffic now, but glimpses of the abnormal conditions were given in the course of the evidence. For example, it appears that tanks weighing 20 to 25 tons were from time to time being taken over Finnieston Street, the hulls made at Beardmore's being transported to Mirrlees, Watson, & Company for engines, and then re-transported to Scotstoun for testing, all the traffic of that kind passing up and down Finnieston Street. ( c) The necessary neglect during war—time of the usual careful attention given in Glasgow to the upkeep of the streets, a neglect enforced by the want both of labour and material. The pursuers' witness the city engineer of Dundee put the

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position as regards his own city thus—I use his own words’—‘My roads all went to pieces for want of repair.’ The evidence satisfied me that substantially similar conditions prevailed in Glasgow, and that for the same reasons the streets in Glasgow had got into an unusually bad condition.

One piece of real evidence spoken to by the pursuers' witness, the engineer of the Glasgow Corporation Tramway Department, throws light on how the upkeep of the streets must have been prejudicially affected by reason of want of material. He deponed that he had experienced great difficulty for the last six years in maintaining his track—‘As a matter of fact,’ he added, ‘we have bought no setts for four or five years and cannot get them yet.’ ( d) In Argyll Street the unusual damage to the setts spoken to by the pursuers' witnesses as the result of the defenders' traffic is fully accounted for by the exceptionally disturbed state of the surface along the tramway track. In Argyll Street, as I have indicated, the defenders' bogies (to avoid the slope at the side) kept to the tramway track—the near wheel on or close to the north rail and the off wheel on or close to the third rail. Now it is just on these parts over which the wheels of the bogie passed that the surface is apt to become most irregular. In Argyll Street over 1000 tramway cars pass along the rails every day each weighing 15 tons. These cars travel at considerable speed, and the effect of the vibration consequent on this daily passage of 15,000 tons of weight in 15-ton loads affects the stability of the paving which is up against the tramway rail—that is to say, the rails lose their bedding; they begin to pump, and this pumping action loosens the setts alongside the rails. Soon the binding between the setts becomes displaced and water gets in; then the setts become slack or rocking, and at some parts stick up perhaps as much as two inches above the rails and at other parts they are depressed an inch or two, the general result being an irregular surface with projections here and depressions there. Moreover, in Argyll Street, in addition to the tramway service there is a vast miscellaneous traffic of mechanically propelled vehicles, some having rubber tyres with a scouring or sucking action on the disturbed surface, and others having steel tyres, most of them running at a high speed and likely to chip projecting and exposed setts. Many of these have trailers carrying loads up to 10 or 15 tons, and these must do damage to the uneven surface. Lastly, motors and horse-driven vehicles when the wheels come off the tramrails and run alongside cause a rubbing of four or five inches in breadth.

Under the conditions which I have been figuring, and which on the evidence I think were substantially present in Argyll Street and to some extent also in Finnieston Street in April and May 1918, it is evident that when a 70 ton boiler came along considerable damage must have been done to the projecting stones and to the stones exposed owing to depressions and rutting. The stone projecting above its neighbours, deprivad of lateral support and protection, subjected to the concentrated weight of the bogie and boiler, would almost inevitably be crushed or cracked, and the setts at the margins of the depressions and ruttings would suffer in a like manner or perhaps have their edges chipped off. It is not surprising that under such conditions the two foremen who counted the damaged setts found so many.

Another consideration seems to me to throw doubts of another kind on the claim which the pursuers are now making.

It appears that for the year ending May 1915 the cost incurred by the Corporation Tramway Department in the upkeep of Finnieston Street was £899, whilst the expenditure for the year ending May 1919 was only £878, and yet it is proved that the costs of maintenance had gone up 300 per cent. in the interval. The only explanation offered was that this might be accounted for to a certain extent because in 1918–19 redressed setts (costing only one-fourth of new setts) were used. In the previous year, however—1917–18—I see that the cost of upkeep was only £236. It seems to me that the use of redressed setts and the reduction of the pre-war rate of expenditure go to support the defenders' evidence that in April and May 1918 Finnieston Street, although no doubt patched up from time to time, was nevertheless not really as well kept up as in previous years. This view seems to me to derive direct support from an admission given by the engineer of the Corporation Tramway Department. He had been referred to the fact that the defenders were supplying more boilers than usual in the war years and was asked, ‘How do you account for the fact that when the boiler industry is active the expense of keeping up Finnieston Street goes down?’ and his reply was ‘It was not kept up. There was no money spent—the street was just allowed to go.’

Now the evidence which latterly I have been reviewing has no direct bearing on the question of the damage done to the particular bits of the route in connection with which the present claim is made, hut it does in my opinion deprive the evidence given by the pursuers' witnesses as to the number of setts damaged in Argyll Street and Finnieston Street of all real importance. That means that the prejudicial inference which might otherwise have been applied as regards the damage found in the particular bits referred to is not available to the pursuers.

Moreover, the direct evidence which is given by the two foremen as to the state of Kelvinhaugh Street and Finnieston Street strikes me as most unsatisfactory. One of them, asked in chief as to the state of Kelvinhaugh Street on his inspection just before the boilers were taken over the streets on 22nd April 1918, said, ‘I found Kelvinhaugh Street not in very good repair.’ Interrogated further, ‘What was wrong with Kelvinhaugh Street,’ he replied, ‘It was out of repair by the passage of boilers previous

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to that date. That damage showed itself in the setts being all broken and smashed up.’

If that is even substantially a correct description of Kelvinhaugh Street before the passage on 22nd April 1918 of the first two of the seven boilers which are said to have caused the damage now sued for, I do not doubt that there must have been considerable fresh damaging of the already broken setts and of other setts too, projecting and exposed because of the disturbed surface.

I have come to the conclusion on the facts that there is no reliable evidence on which the specific damage done by the defenders' traffic on the occasions referred to can be determined and assessed. Damage was certainly done by the defenders' traffic, but I think that the reasonable inference is that the damage resulted largely from the deteriorated condition of the streets, due to the abnormal war conditions and the consequent want of the usual more thorough repair and upkeep.

Further, in the circumstances and under the conditions to which I have referred, I am of opinion in law that any damage which could be fairly attributed to the defenders' traffic on the occasions in question, having been occasioned in the course of the legitimate and ordinary use of the streets attended with the observance by the defenders of all proper and reasonable care, no actionable claim arises in respect of such damage at the instance of the pursuers.

I must now deal with the case in its main legal aspect as presented by the counsel for the pursuers.

The learned counsel maintained that liability at common law had been established in respect that the haulage of the defenders' traffic was not in the exercise of the reasonable use of the public streets, but amounted in point of fact to an abuse of the streets, and in point of law, even apart from fault or negligence, constituted a public nuisance which involved actionable liability for damages.

The question of liability on the ground of nuisance is not raised in the pursuers' pleadings either in the condescendence or in the pleas-in-law, but as the pursuers' counsel based his legal argument solely on the facts brought out in evidence, and as I did not understand the defenders' counsel to object to the competency of the contention, I think that I ought to consider it on its merits.

The argument was based on the authority of a series of decisions—two Irish decisions, viz.— The Guardians, Armagh Union v. Bell, 1900, 2 Irish Reps. 371, and Cavan County Council v. Kane, 1910, 2 Irish Reps. 644, and 1913, 2 Irish Reps. 250; and two English decisions, viz.— Attorney-General v. Scott, 1905, 2 K.B. 160, and the Mayor of Chichester v. Foster, 1906, 1 K.B. 167.

In my opinion none of these decisions is applicable. The ground of decision in each of them was the commission of what in England and Ireland is a public nuisance in connection with a highway, viz., ( a) the use of a vehicle calculated to cause danger to others using the highway for passage; ( b) the destruction or obstruction of the highway so as to cause risk or danger, or so as to cause inconvenience, or so as to prevent the proper use of it by others; or ( c) the injury of the drains or pipes below the surface of the highway.

Thus in the Armagh, Union case the ground of action was that a traction engine had injured the water and sewer pipes laid in the street, and the ground of the decision was the use of an engine ‘fraught with danger’ and causing damage to the pipes legitimately laid in the subsoil of the street.

In the Cavan County Council case what happened was that the defendant's traction engine instead of keeping to the main road was taken, owing to a mistake on the part of the driver, over a rural road not fit and not intended for heavy traffic, with the result that the traction engine sank into the road to a depth of about a foot, tearing up and destroying about 58 perches of the road. In the words of Lord O'Brien, L.C-J.—‘This amounts to a public nuisance, being fraught with very substantial inconvenience and even risk of injury to an ordinary careful travelling public.’

In the case of the Attorney-General v. Scott an injunction was sought to restrain the defendant from using a traction engine on a road in such a way as to make the road dangerous to the public. Mr Justice Jelf, who gave judgment for the defendant and whose judgment was affirmed on appeal, stated the ground of action as follows:—‘The defendant was a hauler, and the complaint of the County Council was that he hauled stone with a traction engine and trucks over the main road … in such a way as to cut up that section of the main road and render it dangerous and practically impassable both for vehicles and pedestrians.’

Mr Justice Jelf, however, held upon the evidence that the road before the traction engine went over it was already in had condition, and he therefore held that the plaintiff's case failed.

On appeal Lord Justice Vaughan Williams stated the question for decision thus—‘Whether the evidence showed that the defendant had turned the road into a condition in which it is unfit for public user, or in which the public user has been rendered substantially less convenient.’

In the only other case of the kind founded on by the parsuers’ counsel, viz., the Chichester Corporation case, the plaintiffs, who were both the road authority and the water authority, were suing the defendant for damages for the breaking of their water main in a street by the passing over it of a heavy traction engine. The County Court Judge found for the plaintiffs on the ground that the damage had been caused by the use of ‘a dangerous thing upon the highway.’ The judgment was affirmed.

All these decisions are illustrations of the application of the English and Irish common law relating to obstructions and nuisances on public roads.

In Pratt and Mackenzie's well-known

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treatise on the Law of Highways (16th ed., p. 116) the following definition of nuisance is given—‘Nuisance may be defined with reference to highways as any wrongful act or omission upon or near a highway whereby the public are prevented from freely, safely, and conveniently passing along the highway.’

The definition as given does not cover all the cases, but I think that it does indicate essential characteristics of a public nuisance relating to highways, viz., ( a) the doing of something in itself illegal, ( b) the causing of danger, injury, destruction, or inconvenience to the normal or legitimate passage over or use of the highway, its surface, or its subsoil.

I refer to Salmond's Law of Torts, 5th ed. (1920), p. 320.

In the recent English case of Weston-Super-Mare Urban Council ( (1919) 1 Ch. 11, aff. 1919, 2 Ch. 1) Mr Justice Eve drew a distinction between the statutory remedy under the English Act of 1878 (analogous to the remedy given by the Scottish Act of 1878) and the common law remedy of an action for public nuisance. The plaintiffs the Urban Council were suing the defendants on two grounds, viz., ( a) for damage done to their roads by extraordinary traffic within the meaning of the Act of 1878, and ( b) for damages at common law for public nuisance. Mr Justice Eve affirmed the claim on the ground of extraordinary traffic, but held that so far as laid on public nuisance the claim was untenable. His Lordship put his opinion thus—‘In my opinion no case of nuisance has been made out. Except for two trifling instances of damage to motorcars … there is no evidence to prove the allegations that either of the roads was even a source of danger to the public.’

I refer also to certain English cases selected out of those examined by me on this branch of the law as bearing on the question under consideration (1) The King v. Russell, 1805, 6 East. 427, 8 R. R. 506; (2) Rex v. Cross, 1812, 3 Camp. 224, 13 R.R. 794; (3) Wandsworth Board of Works, 1884, 13 QBD 904, Brett, M.R., p. 910; (4) Attorney—General v. Brighton, &c., Supply Association, 1900, 1 Ch. 276; (5) Latham v. Johnson, 1913, 1 K.B. 398 ( per Hamilton, L. J.); (6) Crane v. South Suburban Gas Company, 1916, 1 K.B. 33.

Now in the present case there is no averment of danger to the public or interference with other traffic, and there is no mention whatever of anything of the nature of the public nuisance of the English law. Moreover, in the evidence not a word was said as to any such danger or interference or public nuisance. On the other hand there was clear evidence to the contrary. Assuming, therefore, that in Scotland the doctrine of the English and Irish law of public nuisance in connection with highways is applicable, that doctrine in my opinion has no application to the facts of this case.

I may add that I think that in the circumstances to which the English and Irish law of nuisance applies the law of Scotland does afford appropriate remedies. I mean that our law would give a remedy, e.g., interdict or damages or both, for an act in itself illegal (‘a nuisance’) which caused substantial injury or danger or inconvenience or discomfort to persons or property even although fault or negligence could not be established— Shotts Iron Company v. Inglis, 1882, 9 R. (H.L.) 78, per Lord Blackburn at p. 88; Duke of Buccleuch v. Cowan, 1866, 4 Macph. 475, at p. 482.

An alternative argument of the pursuers' counsel depended on proof of negligence, which was the ground on which the action as brought (and as amended) was laid. On my findings in fact, however, the argument fails in respect that the evidence does not establish negligence either in the carrying of excessive weights or in the use of an improper vehicle.

In my opinion on the facts brought out in this case the pursuers can find no judicial remedy under the common law of Scotland and no statutory remedy under the existing legislation.

For the reasons which I have given I must assoilzie the defenders.”

The pursuers reclaimed, and argued—No ordinary well-constructed road could stand the wear and tear of the traffic complained of in the present case. The streets in question were proved to be as suitable as they could be for the purposes for which they had been constructed, viz., the ordinary traffic of the city. Although it might be that in certain instances the damage was greater where portions of the streets were in a lesser state of repair, still the streets sustained damage even when in the best possible state of repair. The defenders were not entitled to ask the pursuers to keep their streets in a higher state of repair than was necessary for ordinary traffic. The pursuers were not bound to construct or maintain streets that met merely the requirements of one user out of millions. The only traffic which did damage of this nature to the streets was that of the defenders, who accordingly were abusing the streets rather than using them. It was illegal traffic which amounted to a public nuisance in the English sense of that term—Bell's Principles, sec. 974. The damage was not due to ordinary wear and tear, but to sudden and substantial breakage of specific portions of the streets. The pursuers could not construct better streets than those they had constructed, nor could they make streets that were at once suitable for the defenders' and other traffic also. The pursuers were only bound to conform to the standard set by ordinary normal traffic— Mackenzie v. Bankes, (1868) 6 Macph. 936, 5 S.L.R. 607; Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), sec. 310. Assuming, however, that the defenders' traffic was legal, the onus lay upon them to prove that they had conducted it in a manner least likely to injure the pursuers' property, and this onus they had failed to discharge. The defenders were guilty of negligence in using the bogies in question when a better type was available—Bevan on Negligence, p. 117. Counsel quoted the following authorities in illustration of the common law of the subject— Gas Light and Coke Company v. Vestry of St Mary Abbott's, Kensington,

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(1885) 15 Q.B.D. 1; Hill v. Thomas, (1893) 2 QB 333, per Bowen, L.J., at p. 340; Attorney-General v. Scott, (1904) 1 KB 404, (1905) 2 KB 160; Chichester Corporation v. Foster, (1906) 1 KB 167, per Lord Alverstone, C.-J., at p. 174, and Wills, J., at p. 176; Billericay Rural Council v. Poplar Union and Keeling, (1911) 2 KB 801, per Vaughan Williams, L. J., at p. 809, and Fletcher Moulton, L.J., at p. 813; Weston-Super-Mare Urban Council v. Henry Butt & Co., (1919) 1 Ch. 11; 2 Ch. 1, per Swinfin Eady, M.R., at pp. 7, 8, and 9; (1920) W.N. 241; Solicitors' Journal, (1921) vol. lxv, p. 680; Egerley's case, 3 Salk. 182; Guardians, Armagh Union v. Bell, (1900) 2 I.R—371, per Sir P. O'Brien, L.C.J., at p. 373; Cavan C.C., and Bailieborough, R.D.C. v. Kane, (1910) 2 I.R. 644; (1913) 2 I.R. 250. Reference was also made to the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap.51), sec. 57; the Locomotives Act 1861 (24 and 25 Vict. cap. 70), sec. 4, proviso, repealed by the Roads Act 1920 (10 and 11 Geo. V, cap. 72), sec. 16.

Argued for the respondents—No action lay at the instance of the pursuers unless they could prove danger or damage on the part of the defenders to another user of the road. The pursuers had not attempted to prove this, and accordingly the defenders' use of the streets was legal and proper, and not out with their rights as members of such a large industrial community as Glasgow. The pursuers had never sought to interdict the defenders' user of the streets. They had never tried by this means to stop the alleged wrong, but had, on the contrary, in various ways, such as by lifting electric tramway wires, positively encouraged the defenders and then sought to obtain compensation in the present action. The pursuers had no remedy at common law in this case. Traffic such as that complained of here was no novelty in Glasgow, but had been carried on for half a century. The defenders, whose traffic only occasioned more distinctive wear and required the execution of more frequent repairs, were only causing such damage as they did to the streets in pursuance of their lawful business. Boilers such as those made by the defenders had frequently been carried over the streets in question. The evidence showed that the principal damage was done by the general volume of traffic, especially the electric tramcars, which rendered the granite setts irregular, and the defenders' bogies only completed the damage thus already done. It was impossible to distinguish between the damage done by the defenders and that caused by other users of the streets. The pursuers never hitherto complained that the defenders' bogies were unsuitable. The Glasgow type of bogie was the ordinary one used in every town in the country where boilers were made. The local authority was bound to keep its roads in a condition sufficient to cope with the increase in the extent and weight of traffic which with the progress of time it might reasonably expect. The following authorities were referred to;—The Locomotives Act 1865 (28 and 29 Vict. cap. 83); Locomotives Amendment (Scotland) Act 1878 (41 and 42 Vict. cap. 58); Highways and Locomotives (Amendment) Act 1878 (41 and 42 Vict. cap. 77), sec. 23; Locomotives Act 1898 (61 and 62 Vict. cap. 29); Local Government (Scotland) Act 1908 (8 Edw. VII, cap. 62); Glasgow Corporation Order Confirmation Act 1912 (2 and 3 Geo. V, cap. cxlix), schedule, par. 28; Ferguson on Roads, chap. vii; Port Glasgow and Newark Sailcloth Company v. Caledonian Railway Company, (1893) 20 R. (H.L.) 35, 30 S.L.R. 587; Deer District Committee of the County Council of Aberdeen v. Shanks & M'Ewan, (1911) 1 S.L.T. 314, 2 S.L.T. 497; Milne & Company v. Aberdeen District Committee, (1899) 2 F. 220, per Lord Low at p. 224 and Lord M'Laren at p. 230, 37 S.L.R. 171; Lord Aviland v. Lucas, (1879) 5 C.P.D. 211, per Lindley, J., at p. 223, and in the Court of Appeal ibid, at p. 351, per Baggalay, L.J., at p. 353; Cadenhead v. Smart, (1894) 22 R. (J.) 1, 32 S.L.R. 7; Walling ton v. Hoskins, (1880) 6 Q.B.D. 206; Wisely v. Aberdeen Harbour Commissioners, (1887) 14 R. 445, 24 S.L.R. 315.

At advising—