Edinburgh and District Water Trustees v Clippens Oil Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1900 |
| Date | 27 November 1900 |
| Docket Number | No. 29. |
| Court | Court of Session |
Lord Pearson, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Water SupplyRight of Support for Pipes laid under Statutory AuthorityCompensationMinerals under and adjacent to AqueductPresumption Edinburgh Water Act, 1819 (59 Geo. III., cap. cxvi.)Edinburgh Water Company Act, 1843 (6 and 7 Vict. cap. lxxxix.).
By an Act passed in 1819 (59 Geo. III. cap. cxvi.), the Edinburgh Water Company was empowered to lay a pipe for bringing water from the Crawley Spring into the city, and in 1821 a track was opened and a pipe laid, a portion of which passed through the lands of Pentland and Straiton, and water was thereafter brought in continuously by the pipe to Edinburgh.
In 1898 the Edinburgh and District Water Trustees, who were vested in the rights and property of the original water company, raised an action against the Clippens Oil Company, who had come to be the owners of Straiton, and were tenants of the minerals in Pentland, and also against the owner of Pentland, for declarator that the pursuers were entitled to have their pipe or aqueduct in Straiton and Pentland supported so as to serve uninterruptedly as a conduit for the water, and that the defenders were not entitled so to work the minerals as to injure or bring down the pipe, and for interdict.
The defenders pleaded that the pursuers had no right of support for their pipe either under the Act of 1819 or at common law.
A proof was led. It was not established that any compensation had been paid to the owners of Pentland and Straiton in respect of the pipe being laid through their lands, but it was proved that they were cognisant of the pipe being so laid.
Held (1) that the Act of 1819 on a sound construction of it contained clauses under which the owners of lands in whose ground the pipe was laid were entitled to claim compensation for any injury thereby occasioned to them; (2) that after the lapse of seventy years from the date when the pipe was laid, it must be assumed either that compensation had been paid or that the right thereto had been waived; and (3)followingLondon and North-Western Railway Company v. EvansELR, L. R. [1893], 1 Ch. 16that the statutory right to lay the pipe carried with it a right of support for the pipe, and interdict granted.
Held further, that the Edinburgh Water Company's Act, 1843 (6 and 7 Vict. cap. lxxxix.), did not apply to works which had already been executed under the powers conferred by the Act of 1819.
PropertyRight to lateral supportMineralsRight to work minerals to prejudice of adjacent groundInterdict.
A water company in 1821 under statutory authority constructed an aqueduct through certain lands. In 1825 the owner granted the company a feu-disposition of a strip of ground 25 yards wide (including the minerals) in which the aqueduct pipe is laid.
Held that the feu-disponees were entitled to lateral support sufficient not only for the ground acquired by them, but also for the pipe running through it, and to interdict against the disponers so working the minerals adjacent to the feu as to interfere with this right of support.
(Antea, June 7, 1899, 1 F. 899.*)
On 27th April 1898 the Edinburgh and District Water Trustees, incorporated under the Edinburgh and District Water-Works Act, 1869, raised an action against the Clippens Oil Company, Limited, and against Major John Gibsone of Pentland, concluding for declarator (first) that the pursuers were vested by virtue of their Act of 1869 in all the powers, privileges, and property of the Edinburgh Joint Stock Water Company, incorporated by the Act 53 Geo. III. cap. cxvi. (1819), entitled an Act for more effectually supplying the city of Edinburgh and places adjacent with water, and of the successors of that company, incorporated by the Water Company's Acts of 1843 and 1856, and that the pursuers as so vested, and more particularly as vested in the Castlehill Reservoir in the city of Edinburgh, have good and undoubted right to receive in the said reservoir from the Crawley Spring a continuous and uninterrupted supply of water by means of a pipe or aqueduct laid, inter alia, in a strip of ground about 1083 yards long and about 25 yards wide, in the parish of Lasswade, belonging to the pursuers, and in the lands of Pentland, from where the pipe emerges from the strip of ground belonging to the pursuers to the boundary of Major Gibsone's property, and thence through the lands of Straiton, belonging to the defenders, the Clippens Oil Company, for 815 yards or thereby, and that the pursuers have good and undoubted right to have the said strip of ground and the said pipe or aqueduct, in so far as it is laid in the said strip of ground and in the said lands of Pentland and Straiton, supported so that the said pipe or aqueduct may serve continuously and uninterruptedly as a conduit for the water passing from the said Crawley Spring to the said Castlehill Reservoir; and (second) that the defenders, the Clippens Oil Company, Limited, as lessees of the minerals in the said lands of Pentland, on both sides of the said strip of ground belonging to the pursuers, and where the said pipe is laid, and as the owners of the lands and minerals of Straiton, are not entitled to work the shale, limestone, and other minerals adjacent to the said strip of ground, and adjacent to or under the said pipe or aqueduct belonging to the pursuers, in such manner as to injure the said strip of ground or bring down the surface thereof, or to injure the said pipe or aqueduct, or to bring it down or affect or interfere with the continuous flow of water through the said pipe or aqueduct from the Crawley Spring to the Castlehill Reservoir in any way.
There were also conclusions that the Court should, by remit to a
person or persons of skill or otherwise, fix and determine the limits within which the defenders shall be bound to abstain from working, or otherwise the manner and conditions in and under which the workings may go on adjacent to the feu, and under and adjacent to the pipe, and for interdict against the company working the minerals adjacent to and under the strip of ground and the pipe or aqueduct so as to injure or bring them down, and from working within the limits to be fixed by the Court.
The pursuers averred that their predecessors, the Edinburgh Joint Stock Water Company, were empowered by an Act passed in 1819 (59 Geo. III. cap. cxvi.) to take and use the Crawley Spring, and by section 38 thereof to make the necessary works for conducting the water therefrom to the city, that the company acquired the reservoir on the Castlehill at Edinburgh and also the Crawley Spring, and in 1821 constructed a pipe or aqueduct for conducting the water from the spring to the reservoir. The said pipe or aqueduct has remained in the same position ever since it was laid in 1821.
The pursuers also averred that the strip of ground mentioned in the summons was acquired by their predecessors from the proprietor of Pentland under feu-disposition dated 3d March 1825;* that the defenders were proprietors of Straiton, and also tenants of the minerals in Pentland; that the defenders and their predecessors had worked the minerals in Straiton and Pentland adjacent to the place where the pipe or aqueduct passed through them; that the operations of the company threatened to deprive the strip of ground and the pipe or aqueduct of support; that the result of such deprivation would be to interrupt the flow of the water to Edinburgh; and that, notwithstanding remonstrances, the company continued to work the minerals near and under the strip and aqueduct.
The pursuers stated further that it was estimated that in order to give adequate support to the strip of ground and aqueduct it was necessary that the minerals should not be further worked for 45 yards on the south or east side of the pipe and 145 yards on the north or west side.
The pursuers pleaded;(2) The pursuers, under the statutes in virtue of which the said pipe or aqueduct was laid, and at common law, being entitled to have adequate support therefor where it passes
through the said strip of ground and the lands of Pentland and Straiton, so as to receive through it a continuous and uninterrupted flow of water from the Crawley Spring to the Castlehill Reservoir, decree should be granted in terms of the first declaratory conclusion. (3) The defenders, the Clippens Oil Company, Limited, having no right or title to take away the support from the said strip of ground and pipe or aqueduct where it is laid in the said strip of ground and lands of Pentland and Straiton, or to cause any interruption to or interference with the flow of water through the said pipe or aqueduct from the Crawley Spring to the Castlehill Reservoir, decree should be granted in terms of the second declaratory conclusion.
The Clippens Oil Company lodged defences, in which they pleaded, inter alia;(1) Res judicata. (5) The pursuers' averments so far as material being unfounded in fact, the defenders should be assoilzied from the conclusions of the summons. (7) The pursuers having no right of support either under statute or at common law, the defenders should be assoilzied.
After sundry procedure the defenders' plea of res judicata was repelled.1
Thereafter, on 28th July 1899, the Lord Ordinary allowed parties a proof.
The evidence entered largely into the question of the nature of the operations being conducted by the defenders, and the effect of these operations on the pipe or aqueduct, and also of the kind and efficiency of the support which the defendersif they were liable to give support to the pipemaintained could be substituted for the natural strata of the ground in the event of the minerals in the vicinity of the aqueduct being worked out. There was no proof of actual payment of compensation to the defenders' authors at the time the pipe was laid, but it appeared that the latter were well...
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Clippens Oil Company Ltd v Edinburgh and District Water Trustees
...dismissed the appeal. (Vide report of these proceedings—Edinburgh and District Water Trustees v. Clippens Oil Co., LimitedSC, Nov. 27, 1890, 3 F. 156; aff. Dec. 7, 1903, 6 F. (H. L.) 7.) On 6th May 1898 the Clippens Oil Company, Limited, raised the action which forms the subject of this rep......