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The House of Lords (Scotch and Jrish Appeals),
JAMES EYRE THOMPSON,
[CONTEMPORARY WITH LAW REP. (1897] A. C.]
PUBLISHED FOR THE PROPRIETORS AT THE OFFICE OF
JUDICIAL COMMITTEE OF
HER MAJESTY'S PRIVY
AND OF THE
HOUSE OF LORDS
IN SCOTCH AND IRISH APPEALS.
[IN THE HOUSE OF LORDS.] suspension and interdict on the ground
OGSTON (appellant) v. ABER- that the local authority, to which was 1896.
DISTRICT TRAMWAYS Dec. 14.
entrusted the duty of seeing that the streets (respondents).*
were cleared in such an emergency as Burgh-Street-Obstruction of Street
a snowstorm, had approved the method
adopted by the respondents. Nuisance-Interdict.
The House, reversing the decision of the Although road authorities are invested COURT OF SESSION (23 Rettie, 340), rewith large discretionary powers in regard mitted the case, to the Second Division of to the cleaning of streets and the regulation the Court of Session to pronounce decree of of traffic, and a Court of law would decline ) interdict. to interfere with a due exercise of that discretion, they have no power or dis- Appeal from the Second Division of the cretion in the case of a nuisance, which Court of Session. The facts sufficiently the Legislature has not expressly or by appear in the judgments. necessary implication sanctioned, either to commit it themselves or to authorise its The Dean of Faculty (Asher, Q.C.) and commission by others.
Haldane, Q.C.(D. M. Abel with them), for According to the law of Scotland, any the appellant. private person, whether a ratepayer or The Lord Advocate (Graham Murray, municipal elector or not, is entitled to sue Q.C.) and Sir R. T. Reid, Q.C. (D. for an interdict in respect of a nuisance Wilson with them), for the respondents. caused in a highway.
The appellant sued for an interdict to Dec. 14.—THE LORD CHANCELLOR (LORD prevent the respondents from continuing HalsBURY).-—In this case the appellant, the practice of sweeping away the snow who has a place of business in Loch Street, from their tramway-rails, and sprinkling Aberdeen, complains that the Aberdeen salt on the snow in order to melt it in such District Tramways Company obstruct the a way as to cause a nuisance.
highways in the city of Aberdeen, and The Court of SESSION refused the note of create a nuisance therein, whenever a
snowstorm occurs in the city. As to the Coram, The Lord Chancellor (Lord Hals
facts which gave ri e to the complaint hury), Lord Watson, Lord Shand, and Lord Davey.
there is no serious dispute, and I do not Vol. 66.-P.C.
OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. understand that the Lord Ordinary in except in respect of the exclusive use to the Second Division of the Court of Session which I have referred, the tramway entertained any doubt that a serious in- company have received any express convenience to horse traffic was caused by authority to deal with the highways. the acts complained of. It appears that But it is contended that in time of snow the tramway company, when
they can only continue the use of their storm occurs in Aberdeen, are in the tramway by scattering salt, and that if habit of clearing the snow off their track, the municipal authority of Aberdeen were and piling it at the side of their rails. sufficiently prompt in sweeping up
and The heaps of snow thus piled are left carting away the freezing mixture thus sometimes for as long a period as a week created, the practice might be pursued together, and for the purpose of facilita- without inconvenience to any one. This ting their own traffic the tramway com- may be perfectly true, but it is an absopany scatter salt, which causes the snow lutely untenable proposition that any one in the grooves of their rails to melt. The may create a nuisance, and shelter himmixture thus created flows by gravitation self from due responsibility by suggestinto the heaps of snow already collected ing that somebody else is under a legal at the sides and forms a freezing mixture, responsibility to remove it. Each member which I think it cannot be doubted causes of the public in turn might claim a right injury to the horses and inconvenience to to create a nuisance by removing what was traffic wherever and whenever carriage inconvenient to himself, and set up the traffic other than that of the tramway same defence. The question would be a company themselves is compelled to force very different one if the road authority its way through the freezing mixture of were the person sued, and were setting up salt and snow.
that the acts complained of were necesIt cannot be doubted that, unless this sarily done in the general interest of the can be justified by some legal authority, community and in the course of cleansing this does constitute a nuisance to the the streets from obstruction. I do not say highway. If the question had arisen in that such a defence would certainly be England, I think some doubt might be complete. It would introduce questions entertained whether the obstruction, as of fact and degree with which I am at proved, was such that a private person present not prepared to deal.
That a could sue without further proof of peculiar snowstorm must cause some inconvenience damage to himself; but that question to every one may be true, but I cannot does not arise. According to the law of assent to the argument that a snowstorm Scotland, Mr. Ogston is entitled to in Aberdeen, at some period of the interdict in respect of an interference winter, is an extraordinary and unlookedwith the highway which affects him in for convulsion of nature, for which common with the rest of her Majesty's it is unreasonable to suppose some prosubjects. It is sought to justify the pro- vision should be made; and the exceeding which I have described by the amples of Edinburgh and Glasgow would powers conferred hy their Act of Parlia- seem to indicate that it is not beyond the ment, and if the matters do constitute resources of civilisation to make such a nuisance that is the only justification provision. But, as I have said, I decline which is to be found on this record. I to enter into this field of enquiry. am of opinion that the Act of Parliament If it were true, as the Lord Justice in question confers upon the respondents Clerk assumes, that we were dealing here no such powers.
It gives them the with what was done necessarily under the monopoly of using the tramway, where it sanction of the public authority of the is laid, with flange wheels or other wheels place, a great many of his Lordship's specially adapted to run on a grooved rail, observations would be, I think, very perand except as otherwise provided by the tinent, but that proposition is absolutely Act the track of the tramway is for all contrary to the fact. I have already purposes to be and remain a part of the pointed out that upon the record no such street or road. It is not suggested that, authority is pleaded. If it had been OGSTON V. ABERDEEN DISTRICT TRAMWAYS, H.L. pleaded, I think the proof would have spondents of clearing and keeping open failed. Indeed, I think it is distinctly their tramway rails whenever there is a disproved. Not only did the Town fall of snow is attended with injurious Council of Aberdeen make a regulation consequences amounting to a legal nuisance against the practice, but by their letter to those members of the public who have of February 1, 1886, they had informed occasion to use the streets of Aberdeen the tramway company that they had for horse traffic. The evidence shews that been advised that their operations in this on these occasions their first step is to respect were unwarrantable and illegal, clear their track, which is fair along the and that, if they did not desist, the centre of the street, by means of snowcouncil would be compelled to take legal ploughs—an operation which increases the proceedings against them. I do not think deposit of snow upon other parts of the that the town council of Aberdeen have street. The next operation, which is realtered their position in this respect. It peated from time to time, is to scatter is true that, long after this action was salt upon their rails and in their vicinity, raised, they deputed three gentlemen to the object of which is to prevent snow or give evidence upon the trial of the action snow-water froin freezing in the rail on behalf of the council in favour of the grooves. Snow and salt in combination respondents. What legal operation such form a wet, briny amalgam which does a transaction as this may be supposed to not freeze, although its temperature is effect I am wholly unable to conceive. considerably below the freezing-point of Approval is, of course, out of the question. water, and the briny slush so produced is
, The acts complained of were not done, and left on the street; and in the course of could not be done, under the authority of time it gradually permeates a large porthe town council. They were, in fact, tion, and sometimes the whole, of the done in absolute defiance of that authority. street. It is, in my opinion, amply proved It is manifest, therefore, that if obstruc- that the mixture thus diffused is injurious tion of highway is proved, and the claim to horses standing or moving in it, and to persist in that obstruction insisted that its saline element has a direct and upon, it is a proper case for interdict. I noxious effect of its own if the skin of am therefore of opinion that the inter- the animals coming in contact with it has locutor appealed against should be re- been perforated or abraded. versed, and I move your Lordships ac- The respondents have endeavoured to cordingly. I think that the form the justify their proceedings by advancing a decision should take is this—that the series of propositions, ingenious if not interlocutors should be reversed ; that altogether consistent, which I shall notice the complainant is entitled to have in detail. The first of these, which is the the respondents—the Aberdeen District only defence stated by them in the record, Tramway Company - prohibited, inter- upon the assumption that the allegation dicted, and discharged from removing of the appellant has been established, is snow from their tramway lines in various to the effect that their operation in clearstreets of the city, so as to create a ing and keeping clear their lines are nuisance to the appellant and to the “ within their statutory rights.” That public using the said streets ; that the plea, if well founded, would necessarily case be remitted to the Second Division afford a good answer to the appellant's of the Court of Session to pronounce
prayer for interdict.
But neither tbe decree of interdict aforesaid, and to find provision of their special Acts, nor those that the appellant and complainant is of the general Tramway Act of 1870, bear entitled to expenses of process in the out that contention.
Some statutory Court of Session ; and that the respondents privileges they may possess which the are liable to the appellant in the costs of law does not accord to the general public. this appeal.
They have the right to lay down and to
maintain their grooved rails upon the LORD Watson.—I also am of opinion public streets, and to use these rails for that the method practised by the re- the passage of their tramway cars, to