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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Ewen and Others v. Steedman & M'Alister [1911] ScotLR 136 (21 November 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0136.html Cite as: [1911] SLR 136, [1911] ScotLR 136 |
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Page: 136↓
[Sheriff Court at Glasgow
Three pro indiviso proprietors of a tenement of dwelling-houses in an engineering district, one of whom was an occupant, held entitled to interdict against a gas engine, the vibration from which caused injury to the structure of the building and material discomfort and annoyance to the tenants.
Opinion ( per Lords Dundas and Salvesen) that a proprietor, although he may not be in occupation of his property, has a title to interdict in respect of discomfort or annoyance caused to his tenants by the operations of a third party which lower, or are reasonably calculated to lower, the letting value of his property.
Mrs Mary Gibb or M'Ewen, wife of Charles M'Ewen, with her husband's consent and concurrence, and James Gibb and William Gibb, pro indiviso proprietors of a tenement at 103 Cathcart Street, Kingston, Glasgow, pursuers, brought an action in the Sheriff Court at Glasgow against Steedman & M'Alister, cork manufacturers, 35 Ardgowan Street, Glasgow, defenders, in which they craved the Court, “to interdict the defenders, their servants, and all others acting under their authority, from working the gas engine in the premises occupied by the defenders at 35
Page: 137↓
Ardgowan Street, Glasgow, in such a way as to cause vibration of the property situated at 103 Cathcart Street, Kingston, Glasgow, or at least in such a way as by the vibration occasioned thereby to cause material discomfort and annoyance, and to be a nuisance to the tenants and occupants of the property at 103 Cathcart Street aforesaid.” The essential facts of the case appear from the findings in fact of the Second Division in their interlocutor disposing of the case, viz.—“(1) That the pursuers are the proprietors of a tenement forming No. 103 Cathcart Street, Kingston, Glasgow, containing ten dwelling-houses; (2) that the defenders are tenants of an adjacent property, where they carry on the business of manufacturers of lifebuoys, &c.; (3) that near to the mutual gable wall dividing the properties the defenders have erected a gas engine for the purposes of their business; (4) that this gas engine is worked during week days from about 7 a.m. till about 5.30 p.m., and on Saturdays from about 7 a.m. till 1 p.m.; (5) that as at the date of the action being brought the said gas engine was being worked in such a way as to cause vibration to the said tenement, and so as to cause injury to its structure, and to raise a reasonable apprehension of further injury if such working were continued; (6) that the vibration occasioned by the working of the said gas engine caused material discomfort and annoyance to the tenants and occupants of the said tenement.”
The Sheriff-Substitute ( Fyfe), after a proof, the import of which appears from the opinion of the Lord Justice-Clerk, refused interdict, and assoilzied the defenders.
The pursuers appealed to the Court of Session, and argued—Nuisance was doubtless to be judged by the locality, but where something new was introduced, even into an engineering locality like this, there might be nuisance. The Court had held a gas engine in a similar case to be a nuisance— Turner v. Wyllie, February 26, 1904 (Second Division, not reported). In Polsu & Alfieri, Limited v Rushmore, [1906) 1 Ch 234, and [1907] AC 121, an aggravation of noise and vibration in a noisy neighbourhood had been held to be a nuisance. The character of the vibration and the source of the nuisance which would entitle to interdict was exemplified in four cases— Oort v. Clark, 1868, 18 L.T. (N.S.) 343; Husey v. Bailey, 1895, 11 T. L. R. 221; Goose v. Bedford, 1873, 21 W.R. 449; Knight v. Isle of Wight Electric Light Company, 1904, 73 L. J.(Ch.) 299. The evidence showed just such an aggravation by increased vibration as entitled pursuers to a remedy. Defenders' objection as to title to sue came too late now, as no plea to that effect was taken on record. But even if it could be stated now, it was not well founded in fact, as one of the proprietors had been living in the property. Nor was it well founded in law, because it was not the law of Scotland that a proprietor could not obtain an interdict to prevent discomfort to his tenants—Rankine on Leases, p. 572; Harvie v. Robertson, January 27, 1903, 5 F. 338, 40 S.L.R. 855; Marquis of Breadalbane v. Campbell, February 12, 1851, 13 D. 647; Steuart v. Stephen, June 12, 1877, 4 R. 873, 14 S.L.R. 560. There was, however, plenty evidence here of structural damage. Further, even though defenders maintained that the nuisance was abated, pursuers were en titled to interdict—Kerr on Injunctions p. 13; Seafield v. Kemp, January 20, 1899 1 F. 402 ( per Lord Kyllachy, p. 410, foot) 36 S.L.R. 363. The loss to defenders which interdict might occasion was not a relevant consideration— Bank of Scotland v. Stewart, June 19, 1891, 18 R. 957, 28 S.L.R. 735.
Argued for defenders—The question of locality was important, and in the present case the locality had been a centre of engineering since 1877. The case of Turner v. Wyllie, cit. sup., was different, because there the owner was in personal occupation, and complaining of personal annoyance, and there was no damage to property. Polsu & Alfieri v. Rushmore, cit. sup., was really in defenders' favour. Having regard to the locality, and the use made of the premises around, pursuers, on the evidence, had no reasonable cause of complaint— Viscountess Gort v. Clark, cit. sup. The serious part of pursuers' case was the discomfort occasioned to tenants, and that was not a relevant ground of complaint in an action at the instance of the landlord. The action was relevant on injury to buildings, but on this the proof entirely failed. It also failed to establish that the letting value of the property had been affected. There therefore remained only the discomfort occasioned to tenants, and on this the action was irrelevant— Jones v. Chapell, 1875, L.R., 20 Eq. 539; Batteshill v. Reid and Others, 1856, 18 C.B. 696; Mumford v. Oxford, Worcester, & Northampton Railway, 1856, 25 L.J. (Exch.) 265; Simpson v. Savage, 1856, 1 C.B. (N.S.) 347; Clark v. Lloyd's Bank, 1910 W.N. 187; Garrett on Nuisances (3rd ed.), p. 234. There was no case in Scotland where a proprietor had been held entitled to sue an interdict against discomfort to tenants. Even assuming discomfort to tenants a relevant consideration, the discomfort must be material, and such as would disturb normal people enjoying normal health. In the present case, considering the locality, the standard of comfort would be less.
The form in which the case is presented is unfortunate. The pursuers in their pleadings ask the Court to interdict the
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As regards the facts of the case, I must say I cannot agree with the learned Sheriff-Substitute's view. The Sheriff-Substitute has not, I think, acted here as a jury would in deciding the question of fact, but has proceeded upon a theory of his own as to the facts. I cannot doubt that if this case had been tried by a jury the jury would have been directed that, if they were satisfied upon the evidence that certain things which were proved to have occurred in the pursuers' premises were indications of injury by vibration in these premises caused by the use of this large gas engine in connection with the various machines in the defenders' premises, then they the jury would be entitled to consider it proved that there was such vibration or such annoyance as would entitle them to find a verdict for the pursuers. But unfortunately the Sheriff-Substitute has not dealt with the case in this way. He has proceeded on his own view that certain witnesses were “largely hysterical” in the evidence they gave. What the meaning of “hysterical” evidence is I do not quite understand, but the Sheriff-Substitute has gone upon this view and not upon the facts which were proved. If the facts are proved, it does not matter whether the persons who proved them were hysterical or not. Then the learned Sheriff-Substitute says that he looks upon certain things “as trifling matters which have been spoken to, and which might quite well be the result of ordinary tear and wear,” and adds that he is not prepared to hold that such things are the results of the working of the gas engine in the adjacent building. Here again I am in the position of not being able to agree with the Sheriff-Substitute. I think that the matters to which he refers, although they may quite well be such as would result from ordinary tear and wear, are proved in this case to be due not to that cause but to the vibration of the building. No witness was brought to depone that he had examined these matters and was able to say that they are the result of fair wear and tear occurring before or apart from the establishment of the gas engine and the running of the machinery connected with it.
Therefore we must approach the case independently altogether of the Sheriff-Substitute's interlocutor, and must look at the evidence for ourselves, taking it as evidence which is laid before us in the ordinary way, and giving our decision upon the question at issue as a question of fact. In the ordinary case we would give very great weight indeed to the views expressed by the Sheriff, who saw the witnesses and heard the evidence, but I do not think this is a case in which we can do so.
Now, what are the facts? The facts are that from the time that this engine was established and set to work there were serious complaints made to the landlords in regard to the effect of its working upon the adjoining houses which belonged to them. There is evidence—and it is uncontradicted evidence—that these houses, when the engine was in use, were in a constant state of vibration or shaking; that that could be seen in any vessel holding water; that it could be noticed on articles such as dishes on a dresser, or a mirror standing unfastened on a mantlepiece; that clothes hanging up to dry were in a constant state of motion; that the tenants felt the motion; that it had an effect upon them; and that people who came to visit the houses noticed it and felt it. One very marked instance of that is given in the evidence of one of the tenants, who tells us that when visitors came to see her she advised them to keep on the rug in order that they might feel the vibration less. Many of the witnesses say that it affected their rest—not at the time the engine was running, for they could not be in bed at that time—but that it affected them nervously, and that various results followed. The doctor who attended one of the tenants attributed the latter's attacks of asthma to the vibration, and gave it as his opinion that in the case of a person susceptible to asthma the vibration would cause nervousness, and thereby produce asthma. I cannot, however, go into the details of all the cases spoken to in the evidence; I can only give results of my general reading of them. But let me refer to the evidence of Dr Yuill Anderson, who attended patients in the tenement, and who is an important witness. He is a man who, necessarily from his position, would be observant, and he speaks to certain facts. Thus he says: “After the new gas engine was installed I noticed the vibration very markedly. I had not noticed any thing of the kind before.
Page: 139↓
The next question is whether the nuisance has been abated, or so abated that it is no longer a tangible nuisance. Now I think we must accept the view that something has been done to make the nuisance less than it was before—at least in a matter to which I have not yet alluded. It is proved that there was not merely vibration from the working of the engine and machines, but that there were also a series of thumping noises caused by explosions in the exhaust of the gas engine. That is a separate cause of nuisance, and is of a very serious nature. I am inclined, however, to think that the evidence shows that that has been abated to a very considerable extent, if not wholly.
But coming to the conclusion, as I do, that it has been established that there is a nuisance of which the pursuers are entitled to complain, and which ought to be abated, the next question is what is to be done at the present juncture. Mr Wilson has suggested that if we came to that conclusion, it would be only fair to give to the defenders an opportunity of abating the nuisance to the best of their ability, in order that it may be ascertained whether there is any necessity for making the interdict perpetual, and Mr Watson very rightly said that to that there could be no objection. In that view I suggest to your Lordships that some reasonable time should be given, say two months, before the matter is brought up before us again, in order that we may know what proceedings the defenders propose to take in order to avoid the decree which would otherwise follow from the judgment. We must find that what is complained of is a nuisance, and in the meantime I think, as the defenders have been wrong in their contention, according to the view I have expressed, they ought to be found liable in the expenses that have been incurred by the pursuers in the conduct of this case.
Page: 140↓
Upon the merits I agree with all your Lordship has said. One is, of course, slow to differ upon a question of fact from the Sheriff-Substitute, especially a Sheriff-Substitute so experienced as the one who tried this case, and if he had said that from the demeanour of the witnesses, or from other specified cause, he was unable to accept them as credible or veracious witnesses, one would have attached weight to that consideration. But, as your Lordship has pointed out, all that the learned Sheriff-Substitute says is that he formed a strong impression at the proof, which a perusal of the notes of evidence confirmed, that “the tenants' evidence is largely hysterical, and upon that I place very little weight.” I am not sure that I understand what hysterical evidence may mean, and the learned Sheriff-Substitute does not say that anything in the demeanour of the witnesses led him to disbelieve them, or that for any other definite reason their evidence was not in his opinion worthy of credit as honest evidence. I confess that, reading the tenants' evidence for myself, it seems to me to be robust and sensible evidence; and if it is true, which I see no reason to doubt, it appears amply sufficient for its purpose, especially when coupled with that of the other witnesses, doctors, engineers, and so forth. I think the Sheriff-Substitute is wrong, and that we should recal his interlocutor and find that the pursuers are entitled to interdict. But as Mr Wilson suggested delay for the purpose of seeing what could be done, and as Mr Watson very reasonably said he had no objection, the proper course will be to allow a period, as your Lordship suggests, of two months for that purpose.
These two matters of fact being found against the defenders—and I think we should formulate them in a series of findings—there is really no question of law at all. But as the question has been argued and insisted in, I wish to state that my impression of the law of Scotland on the question of title is the same as that which Lord Dundas has indicated. I should be very slow to affirm, as at present advised, that a proprietor would not be entitled to complain of operations which affected materially the comfort of his tenants, and might be likely to induce them not to renew their tenancies, on the mere ground that the whole of his property was at the time let and that he himself was suffering no personal inconvenience from the operations complained of. But that question really does not arise for decision, because the facts here being found against the defenders in the way suggested give ample reason for holding that the pursuers are entitled to the remedy they seek. I only say with regard to the form of this interdict that when we come to consider that, which we need not do at the present time, it seems to me that the first branch of it is much too wide, and will require very serious modification before it can be given effect to in a perpetual interdict.
The Court sustained the appeal, recalled the interlocutor of the Sheriff-Substitute, and, after the above findings in fact, found in law that the pursuers were entitled to be protected against a continuance of the nuisance, but on the motion of the defenders, not objected to by the pursuers, allowed the defenders to take such remedial steps as they might be advised for the removal of the nuisance within a period of two months from the date of the interlocutor, and quoad ultra continued the cause.
Counsel for Pursuers and Appellants— Sandeman, K.C.— Hon. Wm. Watson. Agents— Cumming & Duff, S.S.C.
Counsel for Defenders and Respondents— Wilson, K.C.— Paton. Agents— Graham, Miller, & Brodie, W.S.
