Harvie v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 27 January 1903 |
| Docket Number | No. 69. |
| Date | 27 January 1903 |
| Court | Court of Session |
Lord Low, Lord President, Lord Adam, Lord Kinnear.
NuisanceLime-burningPrescriptionTitle to object without immediate injury being sufferedLapse of forty years without actual injury and without complaintNon valens agere.
Held that when a proprietor of land begins to carry on works which pollute the atmosphere, the proprietor of adjacent ground has an immediate interest and title to apply for interdict although the use of the ground may not be injuriously affected at the time.
The owner of a piece of ground having erected a tenement of dwelling-houses thereon raised an action to have the proprietor of an adjoining piece of ground interdicted from carrying on lime-burning in respect that lime-burning was a nuisance, and that the inhabitants of the dwelling-houses suffered from the noxious fumes arising from it. The defender denied that lime-burning was a nuisance, and further pleaded that lime-burning having been carried on without challenge from time immemorial he had acquired a prescriptive right to carry on the operation. The pursuer in answer, while not disputing that lime-burning had been carried on for more than forty years, maintained that he and his authors had during the whole of that period, and up to the date of the erection of the dwelling-houses, carried on an oil-work, or had otherwise so occupied and used their own ground that the lime-burning had in no way injuriously affected them, and that therefore they had hitherto had no right or title to complain of the operation. After a proof, held (aff. judgment of Lord Low)on the assumption, but without deciding, (1) that lime-burning was a nuisance, and (2) that the pursuer and his authors, from the use made by them of their own subjects, had not suffered immediate injury therefrom prior to the erection of the dwelling-housesthat the pursuer and his authors had had a right from the first to complain of the nuisance, and that not having done so for the prescriptive period the defender could not now be interdicted, and defender assoilzied.
Observations on the plea of non valens agere.
On 17th June 1901 William Harvie, Hillhead, Glasgow, raised an action against Archibald Robertson, lime-merchant there, concluding, first, for decree of declarator that the operation of lime-burning intended to be carried on by the defender upon the plot of ground occupied by him situated at the junction of Chalmers Street and Anderson Street, Gallowgate, Glasgow, and lying immediately to the north of the tenement of dwelling-houses forming No. 48 Anderson Street foresaid, belonging to the pursuer, will constitute and be a nuisance to the pursuer as owner of said tenement, and to the tenants and occupants of the same, and second, for interdict against the defender carrying on the operation of lime-burning on the plot of ground in question.
The pursuer averred that he and the defender were owners of the respective subjects mentioned in the conclusions of the summons, that prior to May 1900, when the defender acquired the property, P. Stevenson & Sons occupied the plot of ground with lime-kilns, that the process of lime-burning was necessarily productive of certain noxious fumes and gases, causing material discomfort and inconvenience to the occupants of his houses, and that it constituted a nuisance. The pursuer further averred that interdict (by default) had been obtained in January 1901 against Stevenson & Sons, whose estates had been sequestrated, and that the defender, who had purchased the plot of ground from their trustee, proposed to resume lime-burning.
The defender denied that the lime-burning was a nuisance, and explained that the operation had been carried on for upwards of eighty years without objection or complaint by anyone.
The pursuer pleaded, inter alia;The operations complained of being a nuisance, decree of declarator and interdict should be pronounced as concluded for, with expenses.
The defender pleaded, inter alia;(2) The pursuer's material averments being unfounded in fact, the defender is entitled to decree of absolvitor, with expenses. (3) Separatim, the defender having a prescriptive right to carry on the business of lime-burning on the ground in question, is entitled to be assoilzied.
On 19th July 1901 the Lord Ordinary allowed a proof, but it was chiefly concerned with the question whether the lime-burning was in fact a nuisance, and for the purposes of this report it is unnecessary to refer to it on that point. It appeared from the evidence that the process of lime-burning had been carried on on the plot of ground belonging to the defender for about sixty years at least, and that without objection or challenge by anyone, that the pursuer had acquired his ground in 1883, and that he had erected the tenement of houses in 1897.
It appeared that at the date of the pursuer's acquisition of the subjects an oil-work was being carried on thereon which was continued by the pursuer down to 1896, but there was no evidence to shew for how long the oil-work had existed, or what was the precise nature of the occupation of the ground while it lasted.
On 20th February 1902 the Lord Ordinary (Low) sustained the third plea in law for the defender and assoilzied him from the conclusions of the summons.*
The pursuer reclaimed, and argued;1. On the evidence the operations complained of constituted a nuisance. 2. The pursuer was not barred from complaining. Prior to 1897 the lime-burning did not prejudicially affect the pursuer's property, for the pursuer's authors carried on another work, in itself a nuisance, viz., oil-making, and it was not open to them to take action. To give a title to complain there must be material discomfort.1 Accordingly the defender had not acquired a prescriptive right to burn lime, nor had the pursuer lost his right to complain of the lime-burning, when, for the first time, on his making a perfectly legitimate use of his own property, the lime-burning became obnoxious to him, and interfered with the comfortable use of his property.2 Uses of property might be either (1) lawful absolutely, or (2) lawful so long only as they did no injury to others. When they became injurious they also became unlawful. The defender's use of his property was in the latter category. It might be that there was a possibility of lime-burning becoming prejudicial, but there was no case in Scotland in which potential injury by a prospective nuisance had grounded an action. The injury must be threatened directly either to the substance of the property, or to the comfortable use of the property, as that was being enjoyed at the time, and not as it might possibly afterwards come to be enjoyed; but so long as there was no nuisance there was no right to interfere. Mere risk of depreciation did not give a right or title to complain. The reasonable use of property...
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