Davie v Magistrates of Edinburgh. Magistrates of Edinburgh v Brown
| Jurisdiction | Scotland |
| Judgment Date | 09 August 1951 |
| Docket Number | No. 74. |
| Date | 09 August 1951 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Justice-Clerk. Lord Sorn.
Compulsory Powers—Public Health—Sewers and drains—Compensation—Assessment of compensation—Common law action or statutory procedure—Local Act incorporating Lands Clauses Acts but enacting no special procedure for recovering compensation—Reparation—Process—Proof or jury trial—Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V, cap. lxv), secs. 5, 139 and 141—Lands Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. cap. 19), sec. 36.
The Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926, by sec. 141, empowers the Corporation to carry any sewer "into through or under any lands whatsoever doing as little damage as may be and making full compensation for any damage done." Sec. 5 incorporates the Lands Clauses Acts. Sec. 139 provides that nothing in Part V of the Order (which includes sec. 141) shall exonerate the Corporation from any action or other proceeding for nuisance.
The Lands Clauses Consolidation (Scotland) Act, 1845, by sec. 36, enacts the procedure where any party entitled to compensation for the taking of land desires to have the amount determined by a jury.
During the construction of a sewer by Edinburgh Corporation under the powers conferred by sec. 141 of the Act of 1926, a number of dwelling-houses were damaged by blasting operations connected therewith and some of the proprietors, founding upon the Corporation's liability to pay compensation, brought actions against the Corporation for reparation. These actions were dismissed as incompetent by the Lord Justice-Clerk (sitting in the Outer House) on the ground that the pursuers' remedy was to claim compensation under the procedure laid down by the Lands Clauses Acts. Another proprietor invoked that procedure by giving notice in terms of sec. 36 of the Act of 1845 that he desired to have the compensation assessed by a jury, and, the Corporation having petitioned the Sheriff to summon a jury, a jury in due course settled the compensation in his case. Thereafter the Corporation sought to suspend the proceedings in the Sheriff Court as being incompetent andultra vires in respect that the proprietor's claim had proved to be a claim for damages for nuisance and not a claim for compensation. The Lord Ordinary having dismissed the suspension, the Corporation reclaimed. The proprietors reclaimed in the petitory actions.
Held in the petitory actions (rev. judgment of the Lord Justice-Clerk) that sec. 5 of the 1926 Act, by incorporating the Lands Clauses Acts, had not restricted claimants for compensation under sec. 141 to procedure under those Acts, and that accordingly, as sec. 141 enacted no special procedure for the recovery of the compensation, the actions were competent.
Held further that the suspension had rightly been dismissed, more especially in respect (1) that the Corporation had failed to show that the jury's award had been made on the basis that a nuisance had been created, and (2) that, in any event, the mere fact that an authorised act had resulted in a nuisance would not make it an unauthorised act so as to exclude a claim for compensation, nor would a claim in such a case be excluded by sec. 139.
Opinions reserved on the question of the precise extent of the statutory right to compensation conferred by sec. 141.
Opinion, per Lord Keith, that the proper method of recovering the compensation was by action and not by procedure under the Lands Clauses Acts.
On 12th April 1949 James Pennycook Davie brought an action against Edinburgh Corporation in which he claimed £1136 as reparation, on the ground that his dwelling-house had been damaged by blasting operations during the construction of a sewer by the defenders under the powers conferred on them by section 141 of the Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926,1 and that under that
section the defenders were under obligation to make full compensation for the damage done. Between 12th April 1949 and 1st March 1950 the proprietors of other dwelling-houses brought similar actions. On 5th June 1950 William Lorenzo Brown, another proprietor, gave notice to the Corporation that he desired the compensation in his case to be determined by a jury in terms of section 36 of the Lands Clauses Act, 1845,2 and after sundry procedure a jury awarded him the sum of £280. Thereafter the Corporation presented a petition craving the Court to suspend a threatened charge for payment of that sum to Mr Brown "and the whole interlocutors, decrees, grounds and warrants thereof, including the whole proceedings following upon the said purported notice by the respondent dated 5th June 1950 and the said verdict of the jury."
Davie v. Magistrates of Edinburgh.
In this action the pursuer made the following averments3:—(Cond. 1) "The pursuer is the owner of a bungalow at 28 Mount-castle Drive South, Portobello, Edinburgh. …" (Cond. 2) "During the year 1948 the defenders commenced to lay a sewer in connexion with a new sewage scheme near the pursuer's property. In the course of these operations the defenders have engaged in blasting operations." (Cond. 3) "The said sewer is being constructed by virtue of powers conferred upon the defenders in terms of section 141 of the Edinburgh Corporation Act, 1926. In terms of said section, the defenders are under obligation to make full compensation for any damage done as the result of the construction of the said sewer." (Cond. 4) "From about the month of October 1948 the pursuer has observed damage to the walls and ceilings of his property as a result of said blasting operations carried out by the defenders. The said blasting operations are of great intensity causing severe tremors of the
earth and vibration of the house. The sum sued for consists of the following items:—
| [Specified repairs to bungalow] | £245 0 0 |
| Provisional estimate to cover repairs to drains | 40 0 0 |
| Removal of furniture and effects during repairs | 18 0 0 |
| Storage of furniture for six weeks | 3 0 0 |
| Alternative accommodation for occupant and family for six weeks (five persons) | 60 0 0 |
| Removal by electrician and storage and replacement of all electric fittings during renovations | 10 0 0 |
| Sum to cover incidental expenses, inconvenience, &c. | 10 0 0 |
| £386 0 0 |
As a result of the damage sustained and the defects which may supervene from the blasting operations, the pursuer now believes and avers that the value of his house has been seriously and permanently reduced and moderately estimates such loss at the sum of £750. The averments in answer are denied except in so far as coinciding herewith. Numerous other houses in the vicinity were damaged by the defenders' blasting operations in a similar way and numerous claims for such damage have been intimated to the defenders and in particular for Nos. 21 and 39 Milton Road West. The defenders remonstrated with Messrs A. M. Carmichael, Limited, the contractors, who carried out the works for them, and asked them to reduce the strength of the blasting charges owing to the damage being done to neighbouring property. In interdict proceedings by the owner of No. 21 (Mr A. L. Milne) the defenders and the said contractors undertook to do so. The said blasting operations were an unnatural use of land and the defenders are responsible for the damage resulting therefrom either without negligence or because negligence is to be presumed. Separatim the said operations were solely under the control and management of the defenders' said contractors and of the defenders' officials who superintended the contractors' work, and the damage hereinbefore referred to was such as does not happen if proper care is used. It is therefore to be inferred that proper care was not used."
The pursuer pleaded, inter alia:—"[(1) The defenders, having caused damage to the pursuer's property as condescended on, are bound to make reparation therefor.] (1) The defenders, having caused damage to the pursuer, are liable in full compensation therefor in terms of section 141 of the said Act of 1926. (2) The defenders, having caused damage to the pursuer by an unnatural use of land, are liable in reparation therefor. (3) There being in the circumstances condescended on a presumption that the defenders were at fault, they are liable in reparation for the damage thereby caused."
The defenders pleaded, inter alia:—"(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, et separatim being lacking in specification, the action should be dismissed. [(2) The present action, being incompetent in respect that the pursuer's remedy is limited to recovery of compensation under the statute, should be dismissed.] (2)The present action, being incompetent in respect (a) that compensation under section 141 of the said Act cannot be recovered in an action at common law, et separatim (b) that the separate and self-contradictory cases stated by the pursuer are not averred alternatively, should be dismissed."
On 18th May 1950, after a Procedure Roll discussion, the Lord Justice-Clerk sustained the defenders' second plea in law and dismissed the action.
On 9th August 1951 the Court issued the following opinions,—
LORD PRESIDENT (Cooper).—We have before us twelve reclaiming motions in a suspension and in a whole series of petitory actions, all of which arise out of the damage alleged to have been inflicted upon a number of dwelling-houses in the eastern part of Edinburgh as a result of blasting operations performed by contractors engaged in the construction of a Corporation sewer. The trouble began in the latter part of 1948 and notoriously gave rise during the ensuing months to much public protest. Eventually one of the proprietors brought an action of...
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