Scottish Court of Session Decisions

In this action Robert Dowdy sued Daniel M'Far-lane for £500 in name of damages caused by an alleged nuisance to the hotel kept by him, for which he maintained that the defender was responsible. The pursuer averred that he took the premises (a flat in Greenside Street, Edinburgh) which formed his hotel from the defender, the proprietor of the premises, for ten years from Whitsunday, at an annual rent of £100, and that the premises were let expressly for use as an hotel. He averred further—“(Cond. 3) The defender is also proprietor of the flat immediately above the pursuer's said hotel. If, as is stated in the answer, the defender is not formally the proprietor of the said upper flat, he at least, during and subsequently to the year 1880, had the sole management and control of, and was the person most materially interested in, the said upper flat, the same being held in trust for his firm of D. & H. M'Farlane, grocers and wine merchants, 2 Greenside Street, Edinburgh, of which he is the principal, and his brother Henry M'Farlane the only other partner. At or about Whitsunday 1880, and after he had entered into the said lease with the pursuer, whom he assured that the said upper flat and his other properties in the stair would only be let for ordinary dwelling-houses, the defender let the northmost half of the said upper flat to a number of persons, who started therein what they termed a ‘Musical and Dramatic Club,’ but what was really a billiard, draught, card-playing, and drinking club, keeping open house for the greater part of the night and morning. Under guise of being a private club, the said persons kept and sold spirituous liquors therein. All this, as well as the proceedings after mentioned, was done with the knowledge and authority of the defender, and continued down to the breaking up of the said club as after mentioned. At the time the defender let the said upper premises for the use of the said club he informed and assured the pursuer that should their existence in the stair prove an annoyance to him, or interfere with the comfort of his visitors, he would have them turned out. Shortly after the said club took possession of the said premises billiard-playing and drinking almost nightly began about eleven o'clock, and were often carried on until three o'clock in the morning. The pursuer complained to the defender (and it was the fact) that the existence of the said club in the stair was causing a nuisance to him, and that his visitors were leaving his hotel in consequence of want of sleep caused by the great noise overhead occasioned by the playing of billiards and other entertainments, which, with the knowledge and authority or license of the defender, were being carried on in his premises occupied by the said club. The defender, in answer to the pursuer's complaints above and after condescended on, acknowledged and accepted liability for the nuisance complained of, but took no steps whatever to have the same removed.” He further averred that in consequence of the annoyance caused to his customers by the noisy and disreputable conduct of the club his business greatly fell off, and he had suffered damages to the amount sued for. Notwithstanding this he alleged that the defender had again let the same apartments to the club for a second year from Whitsunday 1881.

The defender admitted that he was proprietor of the premises occupied by the pursuer, but denied that he was proprietor of the premises let to the club. These premises he alleged belonged to his brother Henry M'Farlane. He denied that he had ever sanctioned or was in any way responsible for any improper use of those premises by the club.

The Lord Ordinary (Adam) having allowed both parties a proof of their averments, the pursuer reclaimed, and asked that issues should be adjusted, arguing that an action for causing a nuisance such as the present was specially marked out for trial by jury under the Act 6 Geo. IV. c. 120, sec. 28, and was not removed from that category by the subsequent Acts 13 and 14 Vict. c. 36, sec. 49, and 29 and 30 Vict. c. 112, sec. 4. There was no “special cause” to prevent it from being so tried— Ross Hume v. Young, January 19, 1875, 2 R. 338; M'Avoy v. Young's Paraffin Oil Company, November 5, 1881, 19 Scot. Law Rep. 691, 9 R. 100. The tenant injured as the pursuer had been might sue either the person causing the nuisance or the landlord— Weston v. Tailors of Potterrow, July 10,1839, 1 D. 1218; Young v. Hamilton, March 11, 1837, 15 S. 853.

The defender argued—There was here ample “special cause” in the fact that the property of the subjects alleged to be used so as to cause a

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nuisance was not admitted to be the defender's. There was also “special cause” in the circumstance that the pursuer was suing not the persons who caused the alleged nuisance themselves, but another whom he alleged to be responsible for what they had done.

Lord President—Is the pursuer willing to take an issue whether the defender, “as proprietor” of these subjects, wrongfully caused the disturbance complained of?

The pursuer declined to take such an issue.

At advising—