Scottish Court of Session Decisions

On 2nd October 1899 a resolution was adopted by the Western District Committee of the County Council of Haddington, acting as the local authority within the Western District of Haddingtonshire under the Public Health (Scotland) Act 1897, to form into a special water supply district, under section 131 of the Public Health (Scotland) Act 1897, certain parts of the parishes of Prestonpans and Tranent. On appeal this resolution was confirmed by the Sheriff.

Part of the subjects included in the said special water supply district was the manse, garden, glebe, and offices of Prestonpans. Rates were accordingly levied on the minister of Prestonpans, the Rev. G. S. Smith, who was entered in the valuation roll as liferent proprietor of the said subjects.

Mr Smith thereafter brought the present action against the heritors of the parish of Prestonpans. The conclusions of the action were—“Therefore it ought and should be found and declared by decree of the Lords of our Council and Session that the defenders as heritors foresaid are bound to supply the manse and offices of Prestonpans occupied by the pursuer with a proper supply of water suitable for drinking and domestic purposes, and that they are bound to free and relieve the pursuer of the public water rates and assessments levied upon him as owner and occupier of the said manse and offices; and the defenders ought and should be decerned and ordained by decree foresaid to make payment to the pursuer of the sum of 17s. 7d. sterling, being the amount paid by the pursuer in name of said rates and assessments, and also of such sum as he may pay at any future date in name of said rates and assessments.”

In his condescendence the pursuer narrated the creation of the special water supply district, and explained the existing state of the manse water supply, pending the completion of the water supply by the local authority. Prior to 1889 the manse had been supplied by a well, but in that year the heritors had arranged with the Burgh Commissioners of Prestonpans for a supply of water from the burgh pipe to the manse, which is outside the burgh.

The pursuer pleaded—“(1) The defenders being bound to provide the pursuer with a suitable and sufficient supply of water for the manse and offices free of charge, decree ought to be pronounced in terms of the declaratory conclusions of the summons. (2) The defenders being in the circumstances liable to relieve the pursuer of water rates and assessments, decree ought to be pronounced in terms of the petitory conclusion of the summons.

The defenders pleaded—“(1) The pursuer has no title to sue the defenders for relief of assessments. (2) Quoad ultra the action is incompetent. (3) The pursuer's statements are irrelevant and insufficient to support the conclusions of the action. (4) The defenders not being bound in the circumstances to furnish the pursuer with any further or other supplies of water than the private supply which he has at present and the public supply which will shortly be available for him, should be assoilzied from the declaratory conclusion relating to the supply of water. (5) The defenders not being bound to relieve the pursuer of assessments imposed on him under the Public Health Act, should also be assoilzied from the other conclusions of the summons, with expenses.”

Page: 304↓

On 17th July 1902 the Lord Ordinary ( Low) pronounced an interlocutor, by which he sustained the first and second pleas-in-lawfor the defenders, and dismissed the action.

Opinion—“I think that the only question which is raised in this case is whether the heritors of the parish of Prestonpans are hound to relieve the minister of the parish of public water rates, and I take it that the declaratory conclusion that they, ‘as heritors foresaid are bound to supply the manse and offices occupied by the pursuer with a proper supply of water suitable for drinking and domestic purposes,’ is introduced simply in order to lead up to that question, the proposition being that as heritors they are bound to furnish the manse with a proper water supply, and that therefore they are bound to relieve the minister of these rates.

“Now the minister is liable for the assessment as owner and occupier of lands and heritages within the district, and he is bound to pay the assessment whether he uses the water supply or not, because it is laid upon the owners and occupiers of lands and heritages within the district, irrespective of the use they make of the water supply which the assessment is imposed to provide.

It is not disputed that the heritors of the parish are under obligation to see that the minister has a reasonable supply of water, and of course if there is a public water supply in the neighbourhood the obvious way of their implementing that obligation is to introduce the public water supply into the manse. The fact, however, that they may discharge their obligation at little cost by utilising the public water supply seems to me to be no reason why they should relieve the minister of rates, which he is bound to pay as owner and occupier of lands and heritages in the district along with other owners and occupiers of lands there. I do not think the two matters are connected at all. So I shall sustain the first and second pleas-in-law for the defenders, and dismiss the action with expenses.”

The pursuer reclaimed, and argued that as the heritors were bound to supply water to the manse, they were bound to pay the rates when they were relieved of that obligation by the formation of a special water supply district.

Counsel for the respondents were not called upon.