Edinburgh and District Water Trustees v Sommerville & Son Ltd
| Jurisdiction | Scotland |
| Judgment Date | 11 January 1907 |
| Docket Number | No. 52.,No. 187. |
| Date | 11 January 1907 |
| Court | Court of Session |
Lord Low, Lord Justice-Clerk, Lord Kyllachy.
RiverPollutionWater supply for a townCompensation water to riparian ownersQuality of compensation waterReparationNeglect 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 Burn in a very discoloured condition, which made it unfit for use in the manufacture of paper. This state of matters lasted for about 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 watera condition which (it was not disputed) they had fulfilled.
Held, after a proof (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) (diss. Lord Young, rev. judgment of Lord Low) on the evidence that the defenders had failed to perform this duty, and were liable in damages to the pursuers.
The Edinburgh water supply system, in so far as situated in the South Pentlands, was constructed by the Edinburgh Water Company under the authority of a series of private Acts of Parliament, dating from 1819 onwards.* By the Edinburgh and District Water-Works
Act, 1869 (32 and 33 Vict. cap. cxliv.), sec. 20, the undertaking of the Edinburgh Water Company and its whole powers, rights, and properties, were transferred to the Edinburgh and District Water Trustees, who were incorporated under sec. 5 of the Act.
The South Pentlands portion of the system included two reservoirsthe Glencorse Reservoir and the Loganlee Reservoir. The Logan-lee Reservoir was on a higher level than the Glencorse Reservoir, and discharged its water into the Glencorse Reservoir by means of the Logan Burn.
The Glencorse Reservoir was both a supply reservoir and a compensation reservoir. The water for the supply of the town passed out of Glencorse Reservoir through filter-beds at a weir a little distance below the reservoir and was conveyed by a conduit to Edinburgh. About a mile below the reservoir the conduit was connected with the Crawley cistern, which collected the water from an adjacent source of supply called the Crawley Spring.
Under their Acts the Water Company, and afterwards the Water Trustees, were bound to supply compensation water to the lower heritors and millowners out of the reservoirs, the quantity of the compensation water being ultimately fixed at 220 cubic feet per minute. This compensation water flowed out of the Glencorse Reservoir, and without going through the filter-beds above mentioned passed into the channel of the Glencorse Burn, which joined the river North Esk about three miles below the reservoir. At a point on the burn opposite the Crawley cistern a gauge was placed for the purpose of measuring the quantity of water that passed down the burn.
The Dalmore Paper Mills, belonging to Messrs William Sommerville & Son, Limited, were situated at the junction of the Glencorse Burn and the North Esk. The Dalmore mills had been in existence as paper mills since 1835, and prior to that date a grain mill had existed on the same site from time immemorial. The paper made at the Dalmore Mills was of a high-class quality, and the water used in its production was drawn principally from the Glencorse Burn.
The summer and autumn of 1902 were exceptionally dry, and in consequence the Glencorse Reservoir was so much depleted of water (partly for the supply of the town and partly for the compensation water) that large portions of the deposits of silt and mud at the bottom of the reservoir were exposed to the air. The effect was that in the following winter (19023) owing to the action of frost, rain, and wind on the exposed silt, large quantities of very fine silt (which when mixed with water took a long time to settle) became mixed with the water of the reservoir and passed down the Glencorse Burn, making its water unfit for the purposes of Messrs Sommerville's paper manufacture, as it discoloured the paper. This state of matters lasted from December 1902 to March 1903.
The Water Trustees having repudiated all responsibility for the quality of the water in the Glencorse Burn, Messrs Sommerville, in April 1903, brought the present action against the trustees concluding for declarator (primo) that the defenders are bound to allow to flow through the gauge near the Crawley cistern and down the Glencorse Burn for the use of the pursuers and the other owners of lands and mills on the said burn and on the North Esk River 220 cubic feet of water per minute in compensation for the water which the defenders are, under their Acts of Parliament, authorised to impound and to divert from the said burn and its tributaries for the use of the city of Edinburgh and other places; (secundo) that the pursuers
have good and undoubted right to have the whole of the said 220 cubic feet of compensation water per minute transmitted through the said gauge either (first) in a state fit for all primary purposes, or otherwise (second) in a state not inferior in quality or purity to the state of the said water before it enters either of the defenders' reservoirs known as the Loganlee and Glencorse Reservoirs, or otherwise (third), in a state not inferior in quality or purity to the state of the said water when it enters the defenders' reservoir known as the Glencorse Reservoir; and (tertio), that the defenders are bound to allow to flow through the said gauge not less than 220 cubic feet of water per minute in such of the said three foregoing alternative states as the Court should determine. Then followed conclusions for interdict, and for decree for 5000 as damages.
The pursuers, after setting forth the defenders' statutes substantially as given supra, pp. 10613 note, averred;(Cond. 7) Since 1835 the pursuers and their predecessors have used the water coming down the Glencorse Burn in the ordinary processes of manufacturing paper, and, except as after mentioned, it was always in such a state as to be perfectly suitable for being so used. The only other water available for their purpose is derived from a spring on the pursuers' lands, but the supply from this source is quite inadequate to keep the mills going. (Cond. 8) Before the construction of the water-works the water in the said burn was fit for primary purposes and was used therefor, and from the commencement of said works until about the second week of December 1902, except on certain occasions in November 1901, the water sent down the said burn continued to be so fit and used. From time immemorial the water supply for domestic purposes for various houses on the pursuers' lands was partly derived from the said burn. It is essential for the purpose of manufacturing white printing papers (which are chiefly the papers that have been made by the pursuers and their predecessors) that the water used should be pure, and until recently the pursuers had no serious cause of complaint with the quality of the compensation water supplied. After a heavy rainfall, when the burn is in flood, the water is occasionally unfit for use, but the burn has a rapid flow and a short course and the impurities from this cause never last more than a day or two at a time. In order to be prepared for such emergencies the pursuers have been in the habit of storing a reserved stock of water, which, together with the supply from the spring above mentioned, affords the necessary supply of pure water and keeps the mills going for about two and a half days. The pursuers have always found that before this supply was exhausted the water in the burn was again fit for use, and they have never suffered any loss through the impurity of the water in the burn caused by natural flooding.
(Cond. 9) On or about the 12th day of December 1902 it was found that the water flowing down the burn to the pursuers' mill was so contaminated with silt and sand as to be quite unfitted for primary purposes or for the purposes of papermaking, and it continued in this condition without any material improvement until about the 7th day of March 1903. This condition of the water was not due to flooding or any other natural cause, but to the fault and negligence of the defenders, and might have been prevented by reasonable precaution...
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