Greenock Corporation v Caledonian Railway Company ; Greenock Corporation v Glasgow and South-Western Railway Company

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date23 Jul 1917
Docket NumberNo. 9.
House of Lords

Ld. Chancellor (Finlay), Ld. Dunedin, Lord Shaw of Dunfermline, Ld. Parker of Waddington, Ld. Wrenbury.

No. 9.
Caledonian Railway Co.
Greenock Corporation.

PropertyRiver, Loch, and SeaReparationFloodOpus manufactum erected in alveus of streamDamnum fataleExtraordinary rainfall.

The corporation of a burgh, in order to effect an improvement in a public park, altered the channel of a burn by enclosing the burn in a culvert and filling up the valley through which it formerly flowed. Near the entrance to the culvert they constructed a shallow pond, and erected other works which tended to obstruct the flow of the stream. During a heavy rainfall, which was unprecedented in the district though not unprecedented in Scotland, the culvert, obstructed as it was by the other works, proved insufficient to carry off the water, the burn overflowed at the pond, and the overflow materially contributed to cause damage to the property of two railway companies situated at a lower level. The channel of the burn in its natural state would have been sufficient to carry off harmlessly all the water which came down the burn on the day of the flood.

Held (in aff. judgment of a majority of the Whole Court), (1) that, although the rainfall was unprecedented in the district, the corporation, having constructed an opus manufactum in the bed of a stream, were liable for damage resulting to property situated at a lower level which would not have occurred had the stream remained unaltered; (2) that the rainfall on the day in question was not a damnum fatale which could relieve them from liability; and accordingly that the corporation were liable for the damage sustained by the railway companies.

Opinion, per Lord Wrenbury, that the corporation would have been liable even if the rainfall had been a damnum fatale.

Kerr v. Earl of OrkneyUNK, 20 D. 298, approved.

Nichols v. MarslandELRELR, L. R., 10 Ex. 255, 2 Ex. D. 1, distinguished and commented on.

(In the Court of Session 8th July 1916.)

On 20th January 1913 the Caledonian Railway Company brought an action against the Corporation of Greenock for payment of the sum of 5000. On 3rd February 1913 the Glasgow and South-Western Railway Company also brought an action against the same defenders for payment of the sum of 1500.

In each action the pursuers averred that on 5th August 1912 a heavy rainfall took place in the neighbourhood of Greenock, and that, during this rainfall, their railways and works were damaged by flooding, in consequence of the overflow of a burn, known as the West Burn; that in the years 1908 and 1909 the defenders had effected certain operations in the channel of the West Burn which interfered with its flow; and that the overflow of the burn, and the consequent damage sustained by the pursuers, were the result of the defenders' operations.

In the action at their instance the Caledonian Railway Co. pleaded, inter alia;(2) The operations and works of the defenders having, as condescended on, been so executed and constructed as to materially interfere with the natural drainage of the West Burn, and the pursuers having in consequence suffered loss and damage, the pursuers are entitled to reparation. A similar plea was stated for the Glasgow and South-Western Railway Co. in the action at their instance.

In both actions the defenders pleaded, inter alia;(1) The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (3) The damage complained of not having been due to the operations or fault of the defenders, the defenders should be assoilzied from the conclusions of the summons. (6) The damage complained of having been caused by vis major, the defenders are entitled to absolvitor.

The actions were heard together, and proof was allowed and led. The import of the evidence was to the following effect:

The West Burn comes down from hilly ground lying to the southwest of Greenock, and enters the town at a park called the Lady Alice Park. Prior to the defenders' operations after mentioned it flowed through the park for about 400 yards in a small valley. The channel of the stream was then below the level of the surrounding ground, and in particular was below the level of Inverkip Road, which ran along its northern bank.

In 1908 the defenders, with a view to forming a playground for children, altered the natural channel of the West Burn. They did this by enclosing the burn in a culvert, on the top of which they deposited soil until they raised the level of the ground so that the park then sloped down to Inverkip Road, which became the lowest level. Near the entrance to the culvert the defenders placed a concrete paddling-pond, which was so constructed that the concrete bottom of the pond was 1 foot 7 inches higher than the original bed of the burn. At the lower end of the pond there was a concrete curb or weir, and at the mouth of the culvert there was an iron grating to prevent children falling into it. The defenders also placed two iron pipes in the mouth of the culvert which discharged surplus water from two of their reservoirs. At the upper end of the paddling-pond a dam was placed across the stream with a footpath on the top, and an opening underneath8 feet wide by 4 feet 5 inches highfor the passage of the burn. The footpath on the top of the dam and the cope wall of the paddling-pond were both above the level of Inverkip Road. These works obstructed about half the flow of water which would otherwise have gone down the culvert.

On 5th August 1912 a rainfall of unusual intensity took place in Greenock and the neighbourhood187 inches falling in an hour and twenty minutes. There was no recorded instance of a previous rainfall of a like intensity in the neighbourhood of Greenock. But in the forty-five years from 1868 to 1912 eleven instances of a more intense rainfall had been recorded in other parts of Scotland. During the rainfall the West Burn overflowed at the paddling-pond, and the flood water found its way to Inverkip Road. It flowed down Inverkip Road, and, in the view taken by their Lordships in the House of Lords, it reached the pursuers' property and materially contributed to cause the damage sustained by the railways and works of both pursuers.

Prior to the defenders' operations the West Burn had never caused any damage, but subsequently it had on two occasions, once in 1909 and again on the occasion here in question, overflowed at the mouth of the culvert and damaged property in the town. It was admitted that in its natural state the channel would have safely accommodated all the water which came down the burn on 5th August 1912.

On 14th May 1914 the Lord Ordinary (Dewar) decerned against the defenders for payment to the Caledonian Railway Co. of 4136, 7s. 2d. On the same day his Lordship decerned against the defenders for payment to the Glasgow and South-Western Railway Co. of 998, 5s. 8d.

The defenders reclaimed in both actions. The causes were heard before the First Division, and thereafter their Lordships ordered the parties to lodge minutes of debate, and appointed the minutes of debate to be laid before the Whole Court.

On 8th July 1916 in each action their Lordships of the First Division, in conformity with the opinions of a majority of the whole Judges, pronounced an interlocutor adhering to the interlocutor of the Lord Ordinary. The Lord President, the Lord Justice-Clerk, Lord Johnston, Lord Cullen, Lord Ormidale, and Lord Hunter dissented in the action at the instance of the Caledonian Railway Co. The Lord President, the Lord Justice-Clerk, and Lord Hunter dissented in the action at the instance of the Glasgow and South-Western Railway Co.

The defenders appealed to the House of Lords in both actions, and the causes were heard on 30th April and 1st, 3rd, 4th, 7th, 8th, and 10th May 1917.

Argued for the appellants;The onus lay on the respondents to prove that the damage done to their property was due to the overflow from the paddling-pond. That onus they had failed to discharge.1 In any event, when the appellants altered the course of the West Burn the obligation which lay upon them was to make provision for any flood that might be reasonably anticipatedthey were not bound to make provision for any flood however abnormal.2 Tried by this test, the obligation which lay on the appellants had been fulfilled. The rainfall in the present case was unprecedented in the locality, and not such as the appellants were bound to anticipate. In this class of case it was necessary to strike a balance between two opposing principles(1) the principle that a man was entitled to use his property in the way most beneficial to himself; and (2) the principle that he must use it in a way that did not injure his neighbour.3Fletcher v. RylandsELRELR4 showed that a man who brought to his land and kept there something that was likely to cause injury if it escaped must keep it in at his peril. That principle was recognised in Scotland,5 but it did not apply to the present

case where nothing was kept on the land. Further, it was a good defence if the escape of the dangerous thing was due to vis major.1 That defence was open to the appellants here, for the unprecedented rainfall in this case amounted to vis major. The Scots cases also showed that the measure of the appellants' obligation was to provide for floods which might be reasonably anticipated,2 and that vis major or damnum fatale was a good defence.3 In Kerr v. Earl of OrkneyUNK4 the decision turned on negligence and was right; but the dictum of Lord Justice-Clerk Hope5 went too far. It was not supported by Fletcher v. RylandsENRELR6 and was inconsistent with Nichols v. Marsland.ELRELR7 It followed that the appellants were entitled to absolvitor. Counsel also referred to the undernoted authorities.8

Argued for the respondents;On the facts the respondents had proved that the damage was caused by the overflow of the West Burn, and that the overflow...

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