Hanley v Edinburgh Corporation
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1912 |
| Date | 12 July 1912 |
| Docket Number | No. 166. |
| Court | Court of Session |
Ld. Ormidale, Lord Guthrie, Lord Salvesen, Lord Justice-Clerk.
Burgh—Drainage—Roads—Discharge of surface water—Flooding of agricultural land in burgh—Responsibility of drainage and road authority—Reparation—Negligence—Edinburgh Corporation Act, 1900 (63 and 64 Vict. cap. cxxxiii.), sec. 28.
The drainage and sewage from a portion of the city of Edinburgh flows into the Craigentinny Burn, which for part of its course forms the southern boundary of a market garden on the Craigentinny estate. When the district, which includes the Craigentinny estate, was annexed to the city of Edinburgh by the Edinburgh Corporation Act, 1900, it was provided by section 28 of the Act that the Corporation, who were the drainage authority, should not have power to diminish the supply of sewage water flowing through the burn and used for irrigating the estate, or to deepen or otherwise interfere with the burn so far as passing through the estate.
On two occasions in 1909, after a heavy rainfall, the burn overflowed its banks, and flooded the garden, and water also found its way into the garden through a gate or door opening on to a public road under which the burn flowed. Since 1900 there had been no increase in the quantity of sewage or surface water discharged into the burn but, in consequence of building and paving operations which had gradually rendered a greater portion of the surface of the drainage area impervious, the surface water found its way more quickly into the burn.
In an action of damages at the instance of the tenant of the market garden against the Corporation, the Court (rev. judgment of Lord Ormidale) assoilzied the defenders, holding (1) that, with regard to the increased flow of surface water from the higher to the lower levels of the area which they administered, the defenders had no more responsibility than an upper proprietor, who, by an improved system of drainage, discharged the surface water more rapidly from his lands on to those of a lower proprietor, and who was not liable for the flooding thereby caused; and (2) that, as in a question with a tenant on the Craigentinny estate averring damage to agricultural ground, the defenders (a), as the drainage authority, were not liable for the damage done by the burn overflowing its banks, since, by section 28 of the Act of 1900, they were prohibited from diminishing the supply of the sewage water or from interfering with the watercourse in any way; nor (b), as the road authority, were they liable for the damage done by water entering from the road, since it had not been proved that any deficiency that might exist in the water channels of the road had resulted in sending more water on to the pursuer's lands than would otherwise have reached them.
On 15th November 1909 William Blackie Hanley, market gardener, Restalrig Gardens, Restalrig, Edinburgh, brought an action against the Lord Provost and Magistrates of the City of Edinburgh, concluding for payment of £200.
The pursuer was tenant of the Restalrig market garden, which formed part of the estate of Craigentinny, at Restalrig, near Edinburgh. The garden was bounded on the south by the Craigentinny Burn, which from time immemorial had received the drainage and sewage from a portion of the city of Edinburgh. When the district, which included the Craigentinny estate, was annexed to the city of Edinburgh by the Edinburgh Corporation Act, 1900, it was provided by section 28 of the Act that the Corporation should not have power to diminish the supply of sewage water flowing through the burn and used for irrigating the estate, or to deepen or otherwise interfere with the burn so far as flowing through the estate.*
The garden was bounded on the west by the Restalrig Road, from which access to the garden was obtained by means of a gate or door. The Craigentinny Burn, after passing through Lochend Meadows, flowed under the road from west to east through a culvert which extended beyond the road for about 55 feet along the southern boundary of the garden, after which the course of the stream was open. The portion of the culvert, 30 feet in length, under the road, was crossed by a water main, which had been put in by the Edinburgh and District Water Trustees under their statutory powers, which it was alleged diminished the capacity of the culvert.
The defenders were the drainage authority charged with the construction and maintenance of drains and sewers within the city of Edinburgh.* They were also the road authority in charge of the Restalrig Road.
On 25th July and again on 13th October 1909, after a heavy rainfall, the pursuer's garden was flooded by water from the Craigentinny Burn, and he suffered damage, for the recovery of which he brought this action.
The pursuer averred:—(Cond. 3) ‘The defenders have for many years made from time to time a number of drains which discharge their effluents into said watercourse, and similarly they have above said road between Piershill and Restalrig, in virtue of powers vested in them as a corporation, authorised the connecting of a great number of other drains with the said watercourse or sewer. In consequence the volume of water and sewage carried by it has gradually become very considerable, and is always increasing. The defenders have not, however, altered or increased the capacity of the culvert foresaid at
the Piershill and Restalrig Road, and the same has for a considerable time past been in the knowledge of the defenders quite insufficient to admit of the transmission of the contents of said burn whenever anything occurs, such as a fall of rain, to add materially to the contents of it. The Lochend Meadow immediately above the said Piershill and Restalrig Road is frequently flooded in consequence of the insufficiency of the said culvert to carry off the increased effluents of said burn or sewer, and this state of matters is well known to the defenders. The insufficiency of said culvert is entirely due to the artificial additions to the contents of said burn made by the drainage operations of the defenders as aforesaid.’ (Cond. 4) ‘On 25th July 1909 the said burn or sewer overflowed its banks in Lochend Meadows as before mentioned, owing to the insufficiency of said culvert. The water being dammed back by the embankment of the Piershill and Restalrig Road rose gradually on the ground to the west of said road until it reached a level considerably higher than that of the road. The water so pent up and accumulated percolated through the retaining wall of the road in great quantities. The road drains in said road are all connected into the said burn through the said culvert. In consequence of the pressure of water from the culvert or from the meadows immediately above the road, the said road drains overflowed and sent up a great quantity of sewage water on to said road through several syvors or gratings therein. The drains which enter the said burn from the Holyrood district immediately below said culvert also became choked through excess of drainage and regurgitated through the syvors or gratings on the Piershill side of the culvert, increasing said flooding. The said road was flooded in consequence for a considerable distance on each side of the entrance to the pursuer's garden above described to a depth of over two feet.’ (Cond. 5) ‘In consequence of the accumulation of water on the road, as set forth in the last article, said water forced itself through the door of the pursuer's garden, breaking it open, and during the 25th and 26th of July 1909 flowed in great quantities continuously off said road into his said garden. The said garden was in consequence flooded to the extent of over nine acres by the said water.…’ (Cond. 6) ‘On 13th October 1909 the pursuer's garden was again flooded under the same circumstances and to practically the same extent. The said flooding, which was caused by the water being pressed up through said syvors or drains and walls and finding its way from the said road into the pursuer's garden, lasted for three days and also did great damage.’ (Cond. 7) ‘The pursuer produces a detailed statement of the damage sustained by him through both floodings.… The said damage by flooding is entirely due to the fault of the defenders in not increasing or having increased the size of the culvert above referred to to correspond with the drainage which they are diverting into it, and also in leading or allowing to be led into said burn more drainage water than on occasions it can take away without the carrying capacity thereof being increased to avoid flooding.’ [An averment that the flooding was also due to the faulty construction of the road drains and syvors was deleted, by leave of the Lord Ordinary, before proof was allowed.]
The pursuer pleaded;—The pursuer having sustained loss, injury, and damage through the fault of the defenders to the amount stated is entitled to damages as concluded for, with expenses.
The defenders pleaded;—(2) The pursuer's averments so far as material being unfounded in fact, the defenders should be assoilzied. (3) The defenders having acted without negligence and within their statutory powers, should be assoilzied. (4) The defenders are entitled to absolvitor with expenses in respect that:—(a) Neither the culvert nor the channel and banks of the watercourse below said culvert belong to or are vested in the defenders; (b) Any obligation of protecting the lands from the effects of flooding arising through rainfall, normal or excessive, is upon the pursuer's landlord; (c) Defenders are debarred by statute from executing any effective protective works upon the culvert or channel or banks of said burn below said culvert. (5) The flooding complained of having happened through no fault of the defenders, they are entitled to be assoilzied.
Proof was led on 22nd November 1910 and following days. The facts ultimately held to be established (which will be found...
To continue reading
Request your trial
-
Hanley v Edinburgh Corporation
...periodical or frequent, but that they were responsible for every failure in effective drainage. (In the Court of Session, July 12, 1912—1912 S. C. 1199.) The pursuer appealed to the House of Lords. The view of the facts taken by their Lordships, which differed from the view of the Judges of......