Edinburgh and District Water Trustees v Sommerville & Son Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 23 July 1906 |
| Docket Number | No. 9. |
| Date | 23 July 1906 |
| Court | House of Lords |
Ld. Chancellor (Loreburn), Lord Macnaghten, Lord Davey, Lord James of Hereford, Ld. Robertson, Ld. Atkinson.
River—Pollution—Water supply for a town—Compensation water to riparian owners—Quality of compensation water—Reparation—Neglect of statutory duty.—
The water supply system of the Edinburgh and District Water Trustees included the Glencorse Reservoir in the Pentland Hills. This reservoir, which was constructed under statutory authority, was both a supply reservoir and a compensation reservoir, the trustees being by statute bound to allow to flow out of the reservoir down the Glencorse Burn 220 cubic feet of water per minute, as full compensation for the right conferred on them to stop, dam up, and store the water of the burn.
The summer and autumn of 1902 were exceptionally dry, and in consequence the Glencorse Reservoir became so much depleted of water that the silt or mud which had accumulated at the bottom of the reservoir became exposed to the air in the shallower portions, with the result that in the following winter, owing to the action of frost, rain, and wind on the exposed silt, the water of the reservoir became contaminated with large quantities of very fine sand, which took a long time to settle. In consequence the compensation water passed down the Glencorse Bum in a very discoloured condition, which made it unfit for use in the manufacture of paper. This state of matters lasted for over three months.
In April 1903 the owners of paper mills on the Glencorse Burn about three miles below the reservoir, who were almost entirely dependent on the water of the burn for their water supply, brought an action against the Water Trustees for damages on account of loss sustained by the pursuers in the manufacture of their paper owing to the discoloured condition of the water.
The defenders, who had throughout the drought continued to supply the city of Edinburgh with water from the reservoir, maintained that they were not responsible for the quality of the compensation water, in respect that their duty was to supply Edinburgh with water from the reservoir subject only to the condition of giving off the specified quantity of compensation water—a condition which (it was not disputed) they had fulfilled.
The Second Division, after a proof, held (1) that although the defenders were by the statute entitled to store the water in the reservoir, it was their duty to use the reservoir so that the compensation water should not be unnecessarily polluted; and (2), on the evidence, that the defenders had failed to perform this duty, and were liable in damages to the pursuers.
In an appeal by the Water Trustees, held (reversing the judgment) that the onus lay upon the pursuers to prove that the damage sustained by them was due to the negligence of the defenders, and that they had failed to prove this, diss. Lord James of Hereford and Lord Robertson, who held that the defenders had a duty to the pursuers in managing the compensation ponds, and that they had failed to discharge it.
(In the Court of Session, March 10, 1905, reported of date July 20, 1905, 7 F. 1060.)
The defenders, the Edinburgh and District Water Trustees, appealed.
Lord Chancellor.—This is an appeal against an interlocutor pronounced by the Second Division of the Court of Session which recalled an interlocutor of Lord Low and found the defenders liable to the pursuers in damages. One of the three Judges in the Second Division agreed with Lord Low's conclusions. The difficulty of the case is reflected in this even balance of judicial opinion.
The pursuers own paper mills on the Glencorse Burn and use its water, mixed with other of their own, for their manufacture. In December 1902 the water of the burn became contaminated and unfit for the pursuers' manufacturing purposes, and so remained for four or five months, with much ensuing damage to their trade.
There can be no doubt that this contamination commenced and, in part at all events, continued by reason of the condition of Glencorse Reservoir in December 1902. That reservoir is situated on the same burn, a little way above pursuers' mills, and catches its water and that of other tributaries. Yet higher up is Loganlee Reservoir, which collects other streams as well and sends their water down to Glencorse. From Glencorse 220 cubic feet per minute must be discharged into the Glencorse Burn, and flows to the pursuers' mills. The remainder is utilised for the supply of Edinburgh.
During the latter half of 1902 there was a drought of quite unusual duration, the most severe that had been known for sixty years. Accordingly, the resources of all the reservoirs that supply Edinburgh were heavily taxed. Glencorse itself was deplenished all through October and November, so that much of its bottom surface was exposed. In the number of years, nearly eighty, since it had been constructed, great quantities of silt had inevitably accumulated, and when the level is much lowered the streams entering it cut channels through the exposed surface and churn up the material deposited in the bottom. Wind and heavy rain and frost greatly increase the turbidity. In the beginning of December 1902 Glencorse was still further depleted. By 12th December contamination had set in, and was aggravated by violent wind and rain. In these circumstances the pursuers claimed that the defenders, who own Glencorse, and are responsible for its administration, were liable in damages for the loss they had sustained.
Glencorse Reservoir was constructed and subsequently enlarged under powers conferred by a series of private Acts of which the first was passed in 1819. These private Acts require that 220 cubic feet per minute shall be discharged down the stream for the benefit of riparian proprietors, and authorise the remainder of the water to be impounded in the reservoir and used for the supply of Edinburgh. No provision is to be found in regard to the quality of the water to be discharged into the stream, but I do not think there can be any doubt upon that subject. It depends, in my opinion, upon general principles applicable alike to Scotland and to England.
Riparian proprietors are entitled, except so far as their rights are varied by statute or by special circumstances absent in the present case, to claim that nothing shall be done to affect to their prejudice either the quantity or quality of the stream as it flows in a natural state. When an Act or Acts of Parliament authorise interference with this natural flow, the original right of the riparian proprietors is impaired so far as and not farther than the reasonable exercise of rights created by the statute impairs them. In the present case the private Acts do not obliterate the original right of the riparian proprietor to the natural quality of the water, but they impose upon it a qualification, viz., that if the proper construction of the works authorised, or the reasonable use of those works for the purposes specified by Parliament, leads to a deterioration in the quality of the water, the riparian proprietors have no remedy.
When the pursuers first shaped their case in the record they asserted that a duty lay upon the defenders to supply the 220 cubic feet of water per minute in one or other of three standards of purity. They claimed that it must be either in a state fit for all primary purposes, or in a state not inferior to what it was before it entered either of the two reservoirs named, or in a state not inferior to what it was when it entered the Glencorse Reservoir.
I agree in the opinion of all the Judges in the Court of Session that it would not be proper to affirm the pursuers' declaratory conclusion in any of its alternatives. I think the only duty upon the defenders is to confine their acts within the limits prescribed by Parliament, and in so doing to use reasonable skill and care so as not to damage, if they can by such skill and care avoid it, the quality of the water supplied to the riparian proprietors.
It was argued before your Lordships that the defenders had failed to use that reasonable skill and care. That was the main point relied upon by the pursuers, and the only point upon which in law they could rely.
Accordingly, what comes under review is really the defenders' administration of their water supply. Was there, or was there not, what may be called negligence on their part which caused the damage complained of? On this point, as I have said, the four Judges who have already heard this case were equally divided in opinion.
It is not necessary to enter in detail upon the mass of evidence given at the trial, consisting largely of statistics, and of conclusions drawn by skilled witnesses. The statistics, and indeed the facts as a whole, were hardly in dispute; but, as usual, the skilled witnesses arrived at diametrically opposite results from the same materials.
There are certain considerations which ought to be borne in mind in approaching this difficult question.
The Lord Ordinary, who heard the witnesses and had an opportunity of following the course of the trial with a degree of minuteness difficult to attain in any Court of appeal, thought that no negligence had been established. This has great weight with me, especially where the evidence, as here, is very complicated.
Again, it must be borne in mind that the supply of Edinburgh with water is a formidable business. There are about thirteen reservoirs which supply the city. In some the water is so pure that no filtering is needed. With others the water requires filtration. Now, the filtering power is limited, and the obligations to supply compensation water are not confined to the Glencorse Reservoir. Obviously it is no easy task in these conditions to determine in the event of a drought what sources of supply should be drawn upon and in what order and in what degree. The difficulty is, of course, that no one can...
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