Scottish Court of Session Decisions

The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), section 89, enacts as follows:—“With respect to the improvement of burghs having a population of less than ten thousand according to the census last taken, and not having a local Act for police purposes. … (1) The local authority, if they think it expedient so to do, may acquire and provide or arrange for a supply of water for the domestic use of the inhabitants. … (3) The local authority, if they have any surplus water after fully supplying what is required for domestic purposes, may supply water from such surplus to any public baths or washhouses, or for trading or manufacturing purposes, on such terms and conditions as may be agreed on between the local authority and the persons desirous of being so supplied.”…

By lease, dated 18th September and 3rd October 1895, Patrick Baron Seton of Preston let to the Commissioners of the Burgh of Linlithgow seven acres of ground in the lands of Hiltly and Preston, to be used as a reservoir for the storage of water therein, together with the whole springs, streams, and runs of water which drained naturally into said reservoir. Mr Seton reserved to himself, inter alia, the whole surplus water that might flow over the bye washes of the reservoir.

Article sixth of the lease provided as follows:—“The powers and privileges hereby granted shall be held inalienably in trust by the second parties (the Commissioners) for the use and behoof of the community of the burgh of Linlithgow under the provisions of the Public Health (Scotland) Act 1867 (30 and 31 Vict. c. 101), and for compensating parties interested in said water as before written, but for no other use or purpose whatever, and it shall not be in the power of the second parties hereto to allow the said water to be wasted or to supply the same either gratuitously or for onerous causes to any person or corporation outwith the boundaries of the burgh of Linlithgow except as after mentioned; but declaring that if, after satisfying the requirements of the community of the burgh of Linlithgow, and compensating parties who may have claims on the said water, there remains a sufficient supply of surplus water, the same may, with the written permission of the first party (Mr Seton) or his foresaids, be allowed to be conveyed to the said burgh by means of the pipes of the said second parties, and thence by other pipes to dwelling-houses or farm-steadings within the parish of Linlithgow though outwith the municipal boundaries of said burgh, and that upon such rates as may be mutually agreed upon between the parties hereto.”

The North British Railway Company, whose line of railway and line of canal run through the burgh of Linlithgow, and who have a station within the burgh, applied to the Burgh Commissioners for a supply of water. The Commissioners, finding that they had surplus water after supplying domestic purposes within the burgh, gave the Railway Company a supply at a price of 6d. per 1000 gallons. The Railway Company used the water so supplied to them not only for domestic purposes in the station and stationmaster's house, and for supplying locomotives engaged in shunting operations within the burgh, but also for supplying locomotives which in the course of a journey entered the burgh, got supplied at the station situated within the burgh, and proceeded on their journey beyond the burgh.

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The supply of water was given to the Railway Company by the Burgh Commissioners without asking Mr Seton's permission or consulting with him on the subject. He, however, maintained that without his written permission the Commissioners were not entitled to grant supplies of water to the Railway Company for use in locomotives which travelled beyond the limits of the burgh, and called upon the Commissioners to adjust the amount due to him in respect of the water so used by the Railway Company, and to pay the same to him. This the Commissioners refused to do.

Mr Seton thereupon raised an action against the Commissioners, concluding, inter alia, for declarator “that the defenders were not entitled under their lease to give a supply of water to the North British Railway Company at their station within the burgh of Linlithgow for use in locomotives, which after being supplied pass outwith the said burgh, except with the written consent of the pursuer or his foresaids, and after having agreed with him regarding the rates to be charged for such supply.” There were also conclusions for interdict against the Commissioners giving such supply of water to the Railway Company until they obtained the consent of the pursuer; for declarator that the defenders were bound to account to the pursuer for the water already so supplied to the Railway Company, and to pay to him a just price therefor; for an accounting showing the payments received from the Railway Company for the water so supplied in order that the proportion used for purposes out-with the burgh might be ascertained; and upon this being ascertained, for payment to the pursuer of £750 or such other sum as should be ascertained to be due to him.

The defenders pleaded—“(2) On a sound construction of the lease condescended on, the defenders are entitled, without asking or obtaining the permission of the pursuer, to supply the North British Railway Company, as part of the trading community within the burgh, with the water they require for trading purposes.”

On 18th January 1900 the Lord Ordinary ( Stormonth Darling) sustained the 2nd plea—in—law for the defenders, and in respect thereof assoilzied them from the conclusions of the summons with expenses.

Opinion.—“This seems to me a very clear case. The essential conclusion of the summons is that the defenders are not entitled to give a supply of water to the North British Railway Company at their Linlithgow station for use in locomotives, which after being so supplied pass out-with the burgh, except with the pursuer's consent. The pursuer does not dispute the right of the defenders to supply water to the Railway Company for use in shunting operations within the burgh, but he objects to the supply of water for what I may term the ordinary and normal purposes of the Railway Company.

Now, the contract is for a supply of water from the lands of the pursuer for the use and behoof of the community of the burgh of Linlithgow, under the provisions of the Public Health Act of 1867; and the contract, by attracting the statute, has the effect of providing that the defenders may supply water (if they have enough after satisfying the domestic wants of the inhabitants) for trading or manufacturing purposes. I agree with Mr Rankine that this means for trading or manufacturing purposes within the burgh. Accordingly, it is not disputed by the pursuer that if, for example, there were an aerated-water manufacturer in the burgh, the Corporation might supply him with all the water required for his business, in order that he might aerate it and sell it to all and sundry. But the pursuer says that this Railway Company is not a manufacturer, and that if it is a trader it must use all the water which it gets within the burgh. Now, the Railway Company is very clearly a trader—that is to say, it carries on the trade of a carrier, and for that trade it requires water, and it requires water in order that it may convert it into steam and use it as a motive power for carrying its goods and passengers from the burgh to the utmost limits of its system. Then why for the legitimate purposes of this trade should it not be supplied with water in Linlithgow? I confess that I see no reason. The water is not to be used for consumption as water outside the burgh; it is to be used for the trading purposes of the company, and it seems to me that it would be utterly impossible to draw a distinction between the water which is to be transformed into steam within the burgh and the water which is to be transformed into steam outside. But there is no necessity to make any distinction. It is surely a sufficient test of the unreasonableness of the pursuer's demand that according to his view a tramway company plying within the burgh and working by steam power would be entitled to get all the water it required, which just means that you might consistently with this contract have the burgesses of Linlithgow conveyed from one end of the burgh to the other, but you could not have them carried beyond its limits. I suppose they do occasionally want to leave Linlithgow, and why they should not have every facility for doing so, consistently with this agreement and with the Public Health Act, I fail to see. Accordingly, I shall sustain the second plea-in-law for the defenders, which seems to me to put their case succinctly, and I shall grant absolvitor.

I only desire to add this, that there is no case presented here involving any abuse of the powers of the defenders. I could quite imagine that if, under cover of supplying the North British Railway Company with water for its regular traffic through Linlithgow, they were really using the Linlithgow water in order to supply the whole system of the company, that might be a fraud upon the contract; but no case of that kind is made. The case presented to me, and with which alone I have to deal, is one which seeks to prohibit the defenders from supplying water to locomotives of the company in the ordinary conduct of their

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business; and that, I think, is plainly an untenable view of the contract.”

The pursuer reclaimed, and argued— Under section 89 (3) of the Public Health Act 1867 the defenders were only entitled to supply surplus water “for trading or manufacturing purposes” within the burgh. And under the lease the defenders were to hold their powers with respect to the water leased “for the use and behoof of the community of the burgh of Linlithgow under the provisions of the Public Health Act.” When the water was supplied to the Railway Company's engines, and carried away and used miles outside the burgh, both the spirit and the letter of the Act of Parliament and the lease were broken. This use by the Railway Company of the water was not a use within the burgh for the purposes of trade or manufacture, or a use for behoof of the community of the burgh. The water was not even put into the boilers; it was carried off from the burgh in a tank from which the boiler was supplied, it might be many miles from the boundary of the burgh. This was a use of the water not solely for the benefit of the inhabitants of Linlithgow, but partly for the benefit of people living, for example, in Corstorphine or Edinburgh. The Lord Ordinary said that the line must be drawn somewhere. It could very easily be drawn by inquiring in all cases—Is the water to be used inside or outside the burgh? The local authority must confine the ambit of their powers to the burgh itself. The carrying off water by means of a tank attached to a railway engine was exactly in the same position as conveying water outside the burgh by means of buckets or drawing it off by a pipe. The proportion of water used by the Railway Company in their trains when within and when outside the burgh could easily be determined, and indeed a statement was produced showing these proportions. This water was not supplied for use within the burgh, and the pursuer being entitled to the surplus water had a right to demand from the defender a proportion of the amount received by them for the water so supplied.

Argued for the defenders—The Commissioners were dealing with surplus water, and the Railway Company was a trader and had a place of business within the burgh. They were therefore entitled, under the Public Health Act 1867, to supply such water to the company, and the lease had not derogated in any way from the rights conferred on them by the Act. The criterion according to the pursuer was—Is the water consumed outside the burgh? It was impossible satisfactorily to work out the problem involved in this question. The right criterion was—Is the water supplied within the burgh to persons trading therein? If the water was supplied to traders within the burgh, it was not part of the duty of the defenders to ask these traders what use they intended to make of the water.

At advising—