Scottish Court of Session Decisions

By section 52 of the Airdrie and Coatbridge Waterworks Act 1846 (9 and 10 Vict. cap. cclxxxviii) it is provided—“And be it enacted, that the company shall, when required by the owner or occupier, furnish to every private dwelling-house or part of a dwelling-house in any street within the foresaid district and within one hundred yards of which any pipe of the company shall be laid, a sufficient supply of water for the domestic uses of every such dwelling-house and occupier thereof, at a rate not exceeding ten per centum of the yearly rent or yearly value of such dwelling-house or part of a dwelling-house supplied with water by the company; … provided also that a supply of water for domestic purposes shall not include a supply of water for horses or cattle, or for washing carriages, or for any trade or business whatsoever, and which charge for water supplied shall be over and above the rent hereinafter provided to be paid for the service pipe

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and other apparatus provided by the company.”

By section 55 of the same Act it was provided—“And be it enacted that it shall be lawful for the company to supply any person with water for other than domestic purposes at such rates and upon such terms and conditions as shall be agreed upon between the company and the person desirous of having such supply of water.” [This section was repealed by section 23 of the Airdrie, Coatbridge, and District Water Trust Act 1900.]

By section 46 of the Airdrie and Coatbridge Waterworks Amendment Act 1892 (55 and 56 Vict. cap. cxvii), it is provided—“No person shall be entitled to require, nor shall the company be bound to supply any dwelling-house with water (otherwise than by meter or by special agreement), when any part of such dwelling-house is used for any trade or business purpose for which water is required.”

By section 42 of the Airdrie, Coatbridge, and District Water Trust Act 1900 (63 and 64 Vict. cap. xcviii) it is provided—“No person shall be entitled without special agreement with the Trustees to use the water supplied through the pipes of the Trustees except for domestic and ordinary purposes, but when there is a supply of water more than is required for such domestic and ordinary purposes within the limits of supply, the Trustees shall, if so required, contract with any person or persons within such limits to supply public baths, wash-houses, works, manufactories, railways, or other premises, within the limits of supply, with water at such rate per one thousand gallons and upon such terms and conditions as may be agreed on, or in the event of disagreement either as to the ability of the Trustees to give the supply, or as to the rate, terms, or conditions on or in respect of which the supply is to be given, the same shall be fixed by the Sheriff of the county of Lanark upon summary application by either of the parties, and the decision of the Sheriff shall be final: Provided that so far as possible the rate for such supply of water shall be uniform to all persons in the same circumstances and requiring the same extent of supply: Provided further, that when water is thus supplied from such surplus it shall not be lawful for the Trustees to charge the parties obtaining the same both with the domestic water rate (where such rate is chargeable) in respect of the premises for which such supply is given and also for the supply of water obtained by them. Any rate or payment for water supplied under this section may be recovered by the Trustees in the same manner as the domestic water rate.”

The pursuers in this action, the Airdrie, Coatbridge, and District Water Trustees, were incorporated by the Airdrie, Coatbridge, and District Water Trust Act 1900 (63 and 64 Vict. cap. xcviii), which Act at the same time enabled them to acquire the undertaking of the Airdrie and Coatbridge Water Company incorporated by the Airdrie and Coatbridge Waterworks Act 1846 (9 and 10 Vict. cap, cclxxxviii). The defender in the action, James Flanagan, carried on business as a wine and spirit merchant in a public-house at 78 Main Street, Coatbridge, which had no sleeping accommodation. The Water Trustees and Flanagan having failed to agree as to the rate at which, and the terms and conditions on which, the water required for these premises should be supplied, Flanagan made summary application under section 42 of the Act of 1900 (above quoted) to the Sheriff of the county of Lanark to fix the same.

On 15th August 1904 the Sheriff-Substitute (Mackenzie) allowed a proof as to the amount of water required by the petitioner, the cost of giving the supply, and any other facts relevant to the question raised by the petition as to the rate to be paid by the petitioner, and on 5th November 1904 he pronounced this interlocutor—“Having heard the procurator for the petitioner and counsel for the respondents on the proof and productions and considered the cause, Finds in fact (1) that the petitioner is the occupant of a public-house at 78 Main Street, Coatbridge, for which he requires a supply of water, and that the said public-house is within the limits of the respondents' water supply district; (2) that the said supply is required in part for domestic and in part for trade purposes, and that the total amount required is less than 200,000 gallons during the half-year; (3) that the available snpply of water from the works of the respondents is more than is required for domestic and ordinary purposes within the limits of the respondents' supply district; (4) that the petitioner and respondents have failed to agree as to the rate at which and the terms and conditions on which the water required by the petitioner should be supplied; and (5) that it is reasonable that the supply should be given at the rate at which and on the terms and conditions on which the respondents supply water by meter to other parties: Finds in law that as the supply is not required entirely for domestic purposes, and the parties have failed to agree as to the conditions on which it should be given, the petitioner is entitled to have water supplied to him by meter at a reasonable rate per thousand gallons: Therefore fixes the rate at which, and the terms and conditions on which the petitioner is to be supplied by the respondents with the water required for his said public-house as follows—the rate to be 8fd per thousand gallons, with a fixed minimum charge of one pound sterling per half-year; a meter rent to be paid by the petitioner in terms of the respondents' table of rates and charges, and the terms and conditions of supply in other respects to be in accordance with the terms and conditions set forth in the said table of rates, so far as applicable to the supply of water by meter.”

Note. —“This is an application by a publican carrying on business in Coatridge to have the rate at which and the terms and conditions on which he is entitled to have a supply of water for his premises fixed. The application is brought under section 42 of the Airdrie, Coatbridge, and

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District Water Trust Act 1000, which provides … (quotes section down to proviso) … The petitioner alleges that the supply required by him is not for domestic but for trade purposes, and that he has failed to come to an agreement with the Trustees as to rate at which it should be given, and on these grounds contends that he is entitled to have a supply by meter at a rate fixed by the Sheriff.

The application is opposed by the Water Trustees, who assert, in the first place, that the water required by the petitioner is required solely for domestic and ordinary purposes, and, in the second, that he is already in receipt of a supply by agreement with them, and contend on each of these grounds that the petition is incompetent.

The first question between the parties is, accordingly, one of fact. Is the water required by the petitioner required for domestic and ordinary or is it required for trade purposes? The evidence shows that it is required for drinking, washing floors, glasses, casks, jars, and bottles, flushing a water-closet and urinal, and to a very small extent for mixing with whisky to reduce its strength.

Are these then domestic and ordinary or are they trade purposes? The petitioner maintains that they do not belong to the first but to the second category, in respect (1) that the premises are not a dwelling-house but a place of business, and (2) that the water is used solely for the purposes of his trade as a publican. In support of the first branch of his argument the petitioner founds upon section 52 of the Airdrie and Coatbridge Waterworks Act 1846, which provides for a supply of water being given to dwelling-houses for domestic purposes. It enacts that the water authority shall furnish a sufficient supply to every ‘private dwelling-house' for the domestic uses of such dwelling-house and the occupier thereof, but that a supply for domestic purposes shall not include a supply for any trade or business whatever. Now I do not think that the word ‘ private ’ adds any force to the word ‘dwelling-house,’ and there is authority for the view that under the Waterworks Clauses Acts anything is a dwelling-house which is a house and in which water is required for domestic purposes; per Buckley, J., in South-West Suburban Water Company v. St Maryle-bone Union, L.R. 1904, 2 K.B., at p. 170–180. I accordingly reject the first branch of the petitioner's argument.

As regards the second, I am of opinion, on the authority of the same case, that some of the purposes for which water is required by the petitioner for his premises, viz., drinking, the washing of floors, and the flushing of closets and urinals, are domestic and ordinary purposes, but I cannot place the washing of casks, jars, and glasses, used in the course of his business, in this category. These, in my opinion, are trade purposes, and I may add that the petitioner has never been treated by the respondents as a person using water for purely domestic purposes, for a reference to their table of rates shews that he has not been charged the domestic rate, but a special rate applicable to spirit shops and coming under the heading of ‘special charges for supplies for other than domestic purposes.’ Indeed, they did not suggest until the day of the proof that they proposed to dispute his statement as to the purposes for which he required the supply. The conclusion, therefore, at which I arrive is that the petitioner requires a supply of water in part for domestic and in part for trade purposes. That being so, he is not entitled to a supply of water even for domestic purposes except by agreement with the respondents, for under section 46 of the Airdrie and Coatbridge Waterworks Amendment Act 1892, the Trustees are not bound to supply any dwelling-house with water when any part of such dwelling-house is used for any trade or business purpose for which water is required.

The next question is whether the petitioner has already got a supply by agreement with the Trustees. It appears to me that he has not. They have never agreed to treat him as a domestic consumer, or to charge him the domestic rate. What they have done is to attempt to impose upon him a special rate on the ground that the supply given is not for domestic purposes, and to this he objects. The parties are therefore not agreed as to the terms upon which the supply is to be given, and the effect of their disagreement is that the respondents might, in virtue of their powers under section 46 of the Act of 1892, have refused to supply his premises. Had they done so it could not have been suggested that the petitioner was receiving a supply by agreement, and the fact that they have not taken what would have been an extreme and unreasonable step, but have allowed the petitioner to receive a supply pending a settlement of the difference between them, cannot be held to have put an end to that difference and effected an agreement as to the terms on which he should have the use of their water.

For these reasons I am of opinion that the objections to the competency of the application are unfounded.

It remains to consider what rate the petitioner should pay. On this point section 42 of the Act of 1900 provides that so far as possible the rate for such supply shall be uniform to all persons in the same circumstances and requiring the same extent of supply. Unfortunately, however, there do not appear, so far as the evidence goes, to be any other spirit shops or premises of a like character in the district receiving a supply by meter, and therefore there are no persons in exactly the same position as the petitioner with whom a comparison can be made. The respondents have, however, advertised rates for supplies by meter, and one of these rates is applicable to the case where the consumpt is less than 200,000 gallons during the half-year. The petitioner contends that this rate is applicable to his case, his consumpt being below the amount mentioned, and in my opinion it lies upon the respondents to show that it is not. I am also of opinion

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that they have failed to do so. Their engineer said that the Trustees had not estimated for small supplies by meter, but it is evident, from the fact that there is a fixed minimum charge of £1 per half-year, that the Trustees have at least contemplated the possibility of the consumpt under a supply by meter falling to a very small amount. Further, the respondents’ engineer admitted that if that minimum charge were retained the increase in rate which would be required in the case of small consumers would not ‘amount to so much.’ The reasons also which he gave for a higher rate being fixed were not very convincing. The first was that the cost of inspection was the same whether the supply was big or little, but as the annual cost of such inspection is only 11s. or 12s. it bears a very small proportion even to the amount of such a supply as the petitioner requires, and so far as the expense in question is concerned the interests of the Water Trust will be in any event amply safeguarded if the fixed minimum be retained. The second and only other reason given in favour of a higher rate was that, if a large number of shops were taken out of the class assessed on rental, and if a less return were obtained by the charge per meter, that would lead to an increase in the domestic rate. To this I think there are two answers. In the first place, there is no evidence that the alteration in the mode of rating would lead to a less return being obtained, and in the second, even if this were proved, it might be a reason for making a general revision of the rates charged for meter supplies, but would not be a justification for treating a single individual differently from all other persons receiving a supply by meter. For these reasons I am of opinion that the rate payable by the petitioner should be fixed at 8fd. per 1000 gallons, but in order to guard the respondents against the possibility of loss, I think also there should be a fixed minimum charge of £1 per half-year payable in the event of the rate yielding less than that sum. It was suggested by the petitioners' procurator in the course of the proof that there was no statutory basis for such a charge. I cannot agree to this. The statute authorises me not only to fix the rate but also the terms and conditions on which the supply should be given, and as it seems to me to be a most reasonable condition that there should be a fixed minimum charge, and as the amount of the minimum charge mentioned does not appear to be excessive, I see no reason why I should not make it one of the conditions on which the petitioner should obtain the supply which he requires. No objection was taken to the other conditions in the table of rates applicable to supplies by meter, and accordingly I make them also applicable to the petitioner's case.”

On 20th December 1904 the Water Trustees brought this action to have it found and declared “that for the supply of water furnished and to be furnished by the pursuers to the defender in his premises at 78 Main Street, Coatbridge, aforesaid, the pursuers are entitled to charge against the defender the rate authorised to be charged for a supply of water for domestic purposes, in terms of the 52nd section of the Airdrie and Coatbridge Waterworks Act 1846; and that the defender is not entitled to demand that the water furnished and to be furnished to him in his said premises should be charged to him at a rate per thousand gallons, so long as the pursuers permit him to use for trade purposes the water supplied to him for domestic purposes,” and to reduce the interlocutors of 15th August 1904 and 5th November 1904 of the Sheriff.

On 13th June 1905 the Lord Ordinary (Johnston) assoilzied the defender from the conclusions of the summons.

Opinion.—“The question raised in this case is whether the Airdrie and District Water Commissioners are entitled to charge their general domestic water rate upon public-house premises, or whether the publican is entitled to a supply of water at meter rates.

It was the accepted condition of the argument (1) that the public-house had no sleeping accommodation. (2) That the water was mainly used for domestic purposes, i.e., sanitary, cleaning, and cooking, and only to a very limited extent for trade purposes, for the washing of casks and bottles, and other trade utensils. (3) That to be charged at meter rates, at least on the scale fixed by the Sheriff-Substitute, would be a saving to the publican, and a corresponding loss to the Water Commissioners, and through them to the general inhabitants, whose rates would be indirectly raised, the more so that the judgment would be followed by numerous similar claims.

The Airdrie and Coatbridge Water Trustees were incorporated by the Local and Private Act of 1900, which at the same time enabled them to acquire the undertaking of the Airdrie and Coatbridge Water Company, which had been incorporated by the Local and Private Act of 1846, and had obtained further power under subsequent

By section 23 of the Act 1900, ‘ all the powers, rights, privileges, and authorities of the company under the Company's Acts were transferred to and vested in the Trustees.

By the same section, section 55 of the Act of 1846 was repealed absolutely, and by section 33 the Company's Acts were repealed generally, so far only as regarded the existence of the company. The repeal of section 55 is important. For it was that section of the 1846 Act which empowered the company, and which, but for its repeal, would have empowered the trustees to supply persons with water for other than domestic purposes. Such supply is now regulated by the Act of 1900, section 42.

This provides that no person shall be entitled to use the water supplied ‘except for domestic and ordinary purposes,’ unless by agreement. But if there is surplus water ‘the Trustees shall, if so required, contract’ with any person to ‘ supply public baths, wash-houses, works, manufactories, railways, or other premises ’ with water at

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meter rates, on such terms as may be agreed upon, or may be fixed by the Sheriff.

Now, on this provision the first observation that suggests itself is, that the initial prohibition is not absolute. The Trustees may waive the requisition to supply by meter if they choose to sanction the use of water supplied for domestic and ordinary purposes for such minor trade purposes as are in question here.

The second matter for consideration is, is there any limitation on the power to requisition? The supply of public baths, public wash-houses, works, manufactories, and railways at meter rates is provided for. Does the addition of ‘or other premises’ add anything, and if so, what? It is clear that it is not capable of extensive interpretation without limit, else every user of water might demand a supply at meter rate, whatever the nature of his premises. Yet the context will not admit of a strict ejusdem generis interpretation being applied. I think that the context requires a reasonable and liberal interpretation to be given to the words ‘or other premises,’ so that premises where water is required not merely for sanitary, &c., purposes but for the prosecution of trade or businesses of any description must be held to be included.

“But it is clear that while in hardly any case will the trade use, applying the term comprehensively, be exclusive of some domestic use, yet in one set of cases the trade use will predominate, as in the case of a large manufactory, while in another set of cases the domestic use will predominate, as in the case in question, of the public-house. And the crux is in all cases to determine who has the right to dictate the mode of supply. Are the Trustees entitled to say to the requisitionist, you shall take as for domestic supply, but may use what you require for your trade purpose without any further charge; or may the requisition ist say to the Trustees, you must supply me by meter for my trade, and I shall use what I choose for domestic purposes; and the necessity for determining arises from the fact that the enactment I have paraphrased above is followed by the proviso that where water is supplied from such surplus it shall ‘not be lawful for the Trustees’ to charge both the domestic rate and the meter rate. This proviso would appear to keep the balance fairly by leaving it in the hands of the Trustees to charge according to the predominating use of the water, the domestic rate where the trade use is a mere ancillary, the meter rate where the domestic use is a mere ancillary. If that were all I should have no difficulty in deciding the question raised. But there is a parenthesis in the proviso which I think creates the real difficulty—the option to the Trustees to charge the domestic rate is only ‘where such rate is chargeable.’ When and where then is it chargeable?

For the power to charge the domestic rate recourse must be had to the company's original Act of 1846, section 52. That section requires the company on demand ‘ to furnish to every private dwelling-house ’ a sufficient supply of water ‘for the domestic use of such dwelling-house and occupier thereof, at a rate not exceeding ten per centum of the yearly rent or value of such dwelling-house.’ I find no other right to demand a domestic supply, and no other authority to charge the domestic rate. The final question is, does ‘ private dwelling-house ’ include a public-house, though it be merely a public-house in which water is used for all the domestic uses to which it can be applied in any private residence, but in which the publican does not reside in the ordinary sense of the term. Oil the one hand, ‘private dwelling-house’ has a natural meaning which excludes the public-house or shop. On the other hand, the proviso at the end of the section contemplates the possibility of a trade supply within the same premises to which a domestic supply is given. For it says that a supply of water for domestic purposes shall not include a supply for any trade or business whatsoever. This read along with section 55, now repealed, would admit, under the Act of 1846, of a double supply to the same premises, one by rate for domestic purposes, and the other by meter for trade purposes. But this is abrogated by the 1900 Act, which repealed the 55th section of the Act of 1846, and disallowed the double charge on the same premises. I think it probable that the framer of the Act of 1900 did not fully realise the result of carving upon the Act of 1846, and combining it with the Act of 1900, instead of repealing it, and making comprehensive provisions in this new Act to cover the whole field. The consequence is one frequently seen in public as well as in private Acts. But as I cannot find justification for giving the term dwelling-house anything but its naturally received meaning in the Act of 1846, section 52, I cannot find warrant for charging a public-house which does not come within that category with the domestic rate, and therefore I cannot hold that the trustees have the option of the Act 1900, section 42, to charge the publican the domestic rate in preference to that by meter. It is for the Sheriff-Substitute to remedy any injustice by fixing a rate for any class of persons using water mainly for domestic purposes, but not chargeable at the domestic rate, which will put them on a fair equality with those who, also using water wholly or mainly for domestic purposes, are charged the domestic rate.

I cannot therefore grant the declarator craved, and the reduction is dependent on it.

The interlocutor will assoilzie the defender with expenses.”

The pursuers reclaimed, and argued—The main distinction in the Acts was between water used for ordinary and domestic purposes, and water used for other purposes. Here water was mainly used for domestic purposes. The enactment in section 42 of the Act of 1900, that no person should be entitled to use water except for domestic and ordinary purposes, inferred that for these purposes the defender was entitled to water. The proviso in the same section

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left it to the Water Trustees, where there was a double use, to say for which they would charge. Section 42 did not give to the defender a right to requisition a supply at meter rates, for a public-house did not fall under the category of “public-baths, washhouses, works, manufactories, railways, or other premises.” The Trustees' option to charge the domestic rate was not taken away by the parenthesis “where such rate is chargeable” for the public-house was a “dwelling-house” within the meaning of section 52 of the Act of 1846, the word dwelling-house being used there for any house which required water for domestic purposes— Cooke v. New River Company, 1888, 38 Ch. Div. 56, Cotton, L.J., at 63, and Lindley, L.J., at 66; South-West Suburban Water Company v. St Marylebone Union, [1004] 2 K.B. 174, at 179–180. Nor did the word “private” add any force to the word “dwelling-house.”

Argued for the defender (respondent)—The main distinction in the Acts was not between different uses of water, but between a private dwelling-house and other premises. The pursuers were only entitled to charge the domestic water rate against those who under section 52 of the Act of 1846 could requisition a supply for domestic purposes, i.e., the owner or occupier of a private dwelling-house. The negative phraseology of section 42 of the Act of 1000 did not extend that class, and its proviso, if it gave an option, only did so in cases where the domestic rate was chargeable, i.e., referred back to section 52 of the Act of 1846. A place where a person merely conducted his trade and did not reside was not a private dwelling-house; it fell under the category of “other premises” of section 42 of the Act of 1000, for these words must be construed widely because of the diversity of the preceding words. They admitted that if a scarcity of water arose they would not be entitled to a supply. In Cooke the hypothesis was that the plaintiffs were entitled to a supply, and a different Act was being construed.

At advising—