Scottish Court of Session Decisions

James M'Callum, C.E., Motherwell, as collector for the Commissioners of Police of that burgh, presented a petition to the Sheriff-Substitute of Lanarkshire at Hamilton ( Birnie) to have Dr John Tennant Barrie, as owner of property in Brandon Street, Motherwell, worth £1012 per annum, ordained to pay £126, 10s. That sum represented 2s. 6d. per £ of special sewer rate, the amount of assessment claimed in virtue of a resolution of the Police Commissioners dated 9th March 1875—“That the owners of all properties in the burgh not hitherto assessed for drainage purposes, and not charged for the use of sewers, assessed at the rate of 2s. 6d. per £ of the rental of the properties using the sewers.”

In October 1866 the burgh had been divided into seven drainage districts, and thereafter the Commissioners, in virtue of their statutory powers, resolved to make a new sewer for No. 2 district, which the petitioner alleged was being used by Dr Barrie for his own property in Brandon street. Dr Barrie denied the right to assess under the Act, and further, that the sum proposed to be exacted was, under the 190th section, a “reasonable sum of money for the use of the sewer, ” and refused to pay. He also, inter alia, alleged that the total value of the sewer in question—about £163—had been paid in 1866, and that his buildings were erected many years later. He further denied that the sewer drained his property at all.

The defender pleaded, inter alia—“(2) The sewer constructed by the Commissioners in the district in question, being incapable of draining the premises belonging to the defender, he is not liable to pay the sum in question, or any part thereof. (3) The entire cost of the sewer in question having been levied and paid by the owners of the lands and premises situated within district No. 2, prior to the erection of the defender's premises,

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the Commissioners are not entitled to levy any additional assessment or rate in respect thereof. (5) Esto that the Commissioners are entitled to exact payment from the defender in respect of said sewer, the sum claimed is grossly unreasonable and unjust.”

The Sheriff-Substitute ( Birnie), after a proof and various other procedure, pronounced the following interlocutor:—

“ Hamilton, 30 th November 1877.—Having heard parties' procurators on the concluded proof, finds, in fact, that the premises of the defender do not drain directly into the sewers of the pursuers; finds, in law, that he does not use said sewers within the meaning of the 190th sec. of the General Police and Improvement (Scotland) Act 1862; assoilzies the defender, &c.

Note.—By the General Police Act of 1862 the Commissioners are entitled to make sewers; by the 98th section they are entitled to assess for the cost the owners of lands or premises within the burgh or district; and by the 190th section to exact for lands or premises not assessed or built, enlarged or altered, after the assessment was imposed or levied, ‘a reasonable sum of money for the use of the sewers.’ In this action the pursuer, as representing the Commissioners, sues the defender for this reasonable sum of money. The sewerage of the defender's property reaches the sewers of the Commissioners, but through a private drain, known as the Watsonville drain; and the defender pleads that as his property is not directly connected with the sewers of the Commissioners he is not liable within the meaning of the 190th section. I have come to be of opinion that this contention must be sustained. There is a distinction between the 98th and the 190th section. All lands or premises may be assessed for the making of a sewer, whether they use it or not; but the reasonable sum can only be exacted if the premises do use it. It may no doubt be argued that the word ‘use’ in the 190th section is not limited, and that there is no reason why one proprietor more than another should get the benefit of the Commissioners' sewers without paying for them but the sum asked is a slump sum—not an annual payment. The owner of the private drain may prevent the defender from using it the day after he has paid this slump sum, and I am aware of no case where a statutory payment can be exacted with the risk of a claim for repetition— Bell v. Thomson, Nov. 30, 1867, Macph. 64. It is to be observed that the Commissioners have the remedy in their own hands. They may either purchase the Watsonville drain or interdict the defender from using their sewers through that drain. If they do the former, the defender's property will be directly connected with their sewers; and if the latter, they will be in a position to compel him either so to connect it or to drain it otherwise to their satisfaction. The pursuer argued, that as the property could be connected with the Brandon Street sewer within 100 yards (the distance specified in the 199th section), the defender was liable; but the 190th section must be interpreted without reference to this speciality.” … .

The Sheriff ( Clark) on appeal adhered, adding this note:—

“ Note.—The whole question here is—Is the present case covered by the provisions of the 190th section of the Act? Now, it will be observed that that section refers simply to the case where owners of lands or premises make a drain from their said lands and premises into the Commissioners' sewer, not to all persons whose sewage may happen to flow indirectly, or without any act on their part, into the Commissioners' sewer. In the present case it is plain on the evidence that the defender did not make a drain into the Commissioners’ sewer, and therefore, as I read the section, is not liable under its provisions.”

The pursuer appealed to the Court of Session.

At advising—