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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 [1913] ScotLR 505 (13 March 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0505.html Cite as: [1913] SLR 505, [1913] ScotLR 505 |
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Page: 505↓
Single Bills.)
(Reported ante, 1912 S.C. 156, 49 S.L.R. 136.)
In an action of interdict against the continuance of a nuisance caused by the working of a gas engine which was alleged to affect injuriously an adjoining tenement, the Court held that the nuisance was proved, but allowed the defenders an opportunity of executing remedial works. The defenders lodged a note stating that they had executed remedial works which had resulted in the removal of the nuisance. The pursuers, although they were advised by an expert of their own that the nuisance was removed, maintained that it had in no way abated, in respect of a statement to that effect made to them by the factor and tenants of the tenement, and the Court remitted to a man of skill who reported that the nuisance had been removed.
The Court in dismissing the petition for interdict found the defenders entitled to the expenses of the remit.
Mrs Mary Gibb or M'Ewen, wife of Charles M'Ewen, hosier, Hillhead, Glasgow, and others, pursuers, brought an action of interdict against Steedman & M'Alister, cork manufacturers, Glasgow, defenders, with regard to a nuisance resulting from vibration caused by the working of a gas engine belonging to the defenders which the pursuers alleged injuriously affected an adjoining tenement belonging to them.
On 22nd November 1911 the Second Division of the Court found in fact that the nuisance was proved, and found in law that the pursuers were entitled to be protected against its continuance, but allowed the defenders an opportunity of taking such remedial steps as they might be advised for its removal. Thereupon the defenders executed remedial works, and the pursuers' law agents entered into correspondence with the defenders' law agents thereanent, in the course of which, on 30th January 1912, the pursuers' law agents wrote to the defenders' law agents admitting that an expert who had visited the tenement on the pursuers' behalf had “found little or nothing to complain of,” but stating that the factor of the tenement had informed them that “the vibration continues just as before,” and stating further that all the tenants of the tenement had signed a memorandum to the effect that “the vibration is in no way abated.” On February 15, 1911, the defenders presented a note to the Court in which they averred that they had executed remedial works which had resulted in the removal of the vibration, and moved the Court to find that the remedial works were satisfactory, and that in respect thereof it was unnecessary to grant interdict. The pursuers' counsel opposed the motion and maintained that the nuisance had in no way abated. On February 21, 1912, the Court remitted to Professor Hudson Beare, Edinburgh, to examine the remedial works and to report.
On March 12, 1913, Professor Hudson Beare reported that the remedial works were effectual, and on the same date the defenders lodged a note to the Lord Justice-Clerk craving his Lordship to move the Court to hold the defenders' remedial works satisfactory, and in respect thereof and of Professor Hudson Beare's report thereon to find it unnecessary to grant interdict, and to find the defenders entitled to the expenses of the remit, and of the procedure in regard thereto incurred by them since 22nd November 1911.
On March 13, 1913, the Court, which consisted of the
“Hold the defenders' remedial works satisfactory in terms of the report by Professor Hudson Beare: Find it unnecessary to grant interdict: Dismiss the crave of the petition, and decern: Find the pursuers entitled to additional expenses up to 21st February 1912, and the defenders entitled to expenses since that date, including the expense of and incident to the said report, and remit the accounts,” &c.
Counsel for the Pursuers— Sandeman, K.C.—Hon. W. Watson. Agents— Cumming & Duff,S.S.C.
Counsel for the Defenders— Wilson, K.C.— Paton. Agents— Graham, Miller, & Brodie,W.S.
