Smeaton v St Andrews Police Commissioners. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 30 March 1867 |
| Date | 30 March 1867 |
| Docket Number | No. 126 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jervis-woode. R.
Police and Improvement Act, 1862, 25 and 26 Vict., e. 101.—Held
Statutory Commissioners.—Questions
SEE case reported ante, vol. iii., p. 816.
In 1865 the pursuer, Smeaton, applied to the Court for suspension and interdict against the Commissioners of Police of St Andrews carrying out a proposed scheme of draining part of the burgh by leading a drain through his lands. The Court, on 17th May 1865, refused the note, on the ground that it had no jurisdiction to judge of the necessity of the works undertaken by the Commissioners under the Act 25 and 26 Vict., c. 101, of which sect. 397 ∗ allowed an appeal to the Sheriff at the instance of any party
aggrieved. The pursuer then appealed to the Sheriff, who, on 7th October 1865, pronounced this interlocutor;—‘Dismisses the appeal; confirms the ‘resolutions of the respondents complained of, with this variation, that, if so required by the appellant, within fourteen days from this date, the respondents shall cause to be made a properly constructed cesspool, and relative manhole in the main sewer in question in its course through the appellant's’ (pursuer's) ‘property, at a convenient place, to be selected by him, and pointed out within said time, and decerns.’The Commissioners thereafter served on Mr Smeaton the statutory notices of possession, and he served a notice for having the amount of compensation due to him settled by jury trial. The Commissioners made a tender.
With the view of avoiding a jury trial, various meetings and much correspondence took place. Mr Smeaton proposed that any sewer to be made through his lands should deviate from the line mentioned in the Sheriff-substitute's interlocutor, and should be carried nearer the Kinness Burn.
Heads of agreement were drawn up as the basis of a settlement of the question, and on 12th February 1866 the Commissioners, by a majority, voted in favour of a settlement conform to these heads of agreement.
They afterwards refused to carry out the works alleged to have been agreed to.
Mr Smeaton then raised an action of declarator against the Commissioners, concluding (1) ‘that the defenders are bound to execute in duplicate a formal deed of agreement, embodying the stipulations and provisions contained in a memorandum or heads of agreement signed… on behalf of the pursuer on 12th February 1866, and approved of, accepted, and adopted by the defenders at a meeting held by them in St Andrews on the said 12th February;’ (2) ‘that they are bound to take all steps, and adopt all measures, either by giving notices … or otherwise, which may be requisite or necessary to entitle and enable the said Commissioners to execute’ the said scheme. Then followed corresponding conclusions to have the defenders ordained to execute in duplicate a formal deed of agreement, and to take all steps necessary, by giving notices and otherwise, to enable them to execute the works agreed on. The summons further concluded for interdict against the defenders executing other works on the pursuer's lands than those specified in the agreement.
In their defences, the Commissioners averred;—‘On the 12th February 1866, when thirteen of the defenders voted in favour of settling amicably the questions in dispute with the pursuer on the basis of the heads of agreement, they believed they had power to do so, and that an amicable settlement was attainable. The defenders have been advised, and they now believe and aver, that the said heads of agreement are in every respect impracticable, that the execution would entail great additional cost, quite unnecessary, and to the detriment of the drainage, and that the resolution approving of them as a basis of settlement was illegal and beyond their powers under the Act of Parliament.’
The defenders pleaded;—2. The present action, in so far as founded on the document entitled ‘Memorandum or heads of proposed agreement,’ is not well-founded, in respect—(1) That the said document is by its terms incapable of being construed to be a complete and concluded agreement or contract; (2) That the tenor of the said document is such as to exclude the alleged right of any one to make it the basis of a litigation, as were also the whole amicable negotiations of which it formed a part; (3) That on the assumption that it does contain a completed contract, it was ultra vires of the defenders to enter into such a contract, and contrary to their duty to the public; and (4) That the document itself is informal and improbative. 3. The Sheriff having already sanctioned a certain line of main sewer through the pursuer's lands, and the...
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