Fleming v Gemmill
| Jurisdiction | Scotland |
| Judgment Date | 20 December 1907 |
| Date | 20 December 1907 |
| Docket Number | No. 51. |
| Court | Court of Session |
Lord President, Lord M'Laren, Lord Pearson.
Landlord and Tenant—River—Pollution—Interdict—Title to Sue.—
In an action for interdict at the instance of the tenant of a farm to prevent pollution of a stream which flowed through his lands, and at which his cattle were watered, against the proprietors of houses (let to tenants) on the upper part of the stream, held, that, as the pursuer was the assignee of the landlord's title, in so far as it was necessary for his own protection in the subjects let, he had the same right as the landlord to maintain the purity of the stream, and accordingly that he had a good title to pursue the action.
Landlord and Tenant—River—Pollution—Responsibility of Landlord for Pollution by Tenant.—
The proprietors of a block of workmen's cottages erected for the use of their tenants earth closets, and made drains, which were only intended to receive water from wash-houses and sinks, but which were used by the occupants of the houses as a receptacle for sewage, with the result that a stream which flowed through an adjoining farm, and into which the drains discharged, was polluted, and injury was caused to the cattle which watered at the stream.
In defence to an action of interdict and damages directed against the proprietors of the houses, the defenders pleaded that they had provided an effective drainage system, and were not responsible for pollution due to an improper use thereof by their tenants.
The Court held that the improper use of the drains might have been anticipated, and that as the proprietors had made the drains in such a way that pollution was a probable result, they were responsible therefor,—but continued the cause that the defenders might submit a scheme to avoid pollution.
Reparation—Damages—River—Pollution—Plurality of Defenders—Joint and Several Liability.—
In an action of damages against several defenders for loss caused by the pollution of a stream, held that, as each of the defenders had contributed materially to the pollution, they were liable jointly and severally for the whole amount of the damage which ensued.
Process—Summons—Decree—Joint and Several Liability.—
In an action of payment against six defenders ‘jointly and severally,’ three of the defenders were assoilzied. Held that a decree against the remaining defenders conjunctly and severally was competent.
Alexander Fleming and others, tenants of the farm of South Netherburn, in the parish of Dalserf and county of Lanark, raised this action in the Sheriff Court at Hamilton, against six defenders, viz., James Gemmill, James Nimmo & Company, Limited, William Barr & Sons, The United Collieries, Limited, William Cooper, and Charles Surgeoner.
The pursuers prayed (first) for decree against each of the defenders, interdicting them from permitting polluting liquids to flow from houses belonging to them into the Netherburn Burn at any point in the course of said burn on the pursuers' farm of South Netherburn, or at any portion of its course prior to entering on the lands of said farm; and (second) for decree against the defenders ‘jointly and severally’ for payment of certain sums amounting in cumulo to £314.
The pursuers averred:—(Cond. 3) ‘Through said farm of South Netherburn, which extends to 130 acres or thereby, there flows a burn or watercourse known as Netherburn Burn or Dalserf Burn, which is the only natural source for obtaining water for the supply of the cattle on said farm. The dairy stock on said farm amounts to 30 cows or thereby and 13 heifers.’ (Cond. 4) ‘The defenders, the said James Gemmill and James Nimmo & Company, Limited, William Barr & Sons, and The United Collieries, Limited, are coalmasters occupying certain collieries in the vicinity of said burn and owners of houses in the same locality, and the said William Cooper and Charles Surgeoner are the owners of a number of houses there. For some time past defenders have permitted … sewage from said houses to flow into said burn, whereby the water in the burn has been rendered unfit for drinking purposes and for the watering of said cattle.’ They also averred that two heifers and a cow belonging to them died, that their cattle fell off in condition, and that the milk supply of their cows was diminished, as the result of using the water so contaminated.
The pursuers pleaded;—(1) The defenders, having through their operations contaminated and rendered unsuitable for the purpose of watering cattle the burn referred to, should be interdicted from continuing said pollution. (2) The pursuers having sustained loss and damage through the defenders' illegal actings, as aforesaid, to the extent sued for, decree should be granted therefor, with interest and expenses.
All the defenders lodged defences.
The defender James Gemmill pleaded;—(3) The defender James Gemmill not having contaminated and rendered unsuitable for the purpose of watering cattle the burn referred to, he is entitled to absolvitor, with expenses. (4) The pursuers not having sustained any loss or damage through the fault of the defender James Gemmill, he is entitled to absolvitor, with expenses.
Similar pleas were stated on behalf of the other defenders.
A proof was taken before the Sheriff-substitute (A. S. D. Thomson), which established the following facts:—The Netherburn Burn, which flowed through the pursuers' land, and from which their cattle were watered, was polluted with sewage coming from houses in the vicinity belonging to the defenders James Gemmill, William Barr & Sons, and Charles Surgeoner, and occupied by their tenants, with the result that the milk supply of the pursuers' cows was diminished, and eight or ten of the cattle fell off in condition.
The houses belonging to the defender Gemmill were tenanted by workmen, and were furnished with earth closets, and also with drains by which the water from sculleries and washhouses alone was intended to be carried off, and to which access could be got by open syvers and jawboxes in front of the cottages. The drainage passed through a cesspool into a pipe which discharged into the Netherburn Burn, and out of which the sewage which polluted the water was proved to flow. There was no fault in the construction of the system, and it appeared that the pollution was caused by the improper use of it by the occupants of the cottages, who poured their liquid sewage down these drains.
The drainage system in connection with the houses owned by the defenders William Barr & Son and Charles Surgeoner (which were of the same class) was substantially the same, and there was a material contribution to the pollution from these houses as well as from the houses owned by Mr Gemmill.
No sewage was proved to flow into the burn from the houses owned by the other defenders.
On 26th March 1907 the Sheriff-substitute interdicted the defenders James Gemmill, William Barr & Sons, and Charles Surgeoner, in terms of the first crave of the action, and ordained them, ‘all conjunctly and severally,’ to pay to the pursuers the sum of £115, at which sum he assessed the damage suffered by the pursuers, and expenses.
The defenders James Gemmill, William Barr & Sons, and Charles Surgeoner, appealed.
A preliminary objection taken to the competency of the decree pronounced by the Sheriff-substitute was separately argued.
The defenders argued;—The action being directed against the defenders ‘jointly and severally,’ the only decree which could competently be pronounced was one finding them all liable. If any of them were assoilzied, all were free. In an action against several defenders, if some were assoilzied, decree could only be pronounced against the others when to the words ‘jointly and severally’ such words were added as ‘or severally.’ The decree pronounced by the Sheriff-substitute was accordingly incompetent.
The pursuers argued;—There was no authority for the proposition that a joint and several conclusion meant anything different from what it said, or that, under such a conclusion, it was incompetent to pronounce decree in any form of which joint and several liability admitted. The addition of such words as ‘or severally,’ might be customary, but was quite...
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...a clearly negligent way. (d) In paragraphs [50] to [52] of his judgement, the Lord Ordinary erred in failing to follow Fleming v Gemmill 1908 S.C. 340. There could be circumstances in which the landlord was liable for the misuse of the property by his tenants, causing prejudice to another. ......
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