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transforms it into slush. It would, in my opinion, be extravagant to suggest that what can be done and is done, either by the street authority or by the combined action of that authority and the tramway company, in Edinburgh, Glasgow, and Dundee, becomes an impossibility in the city of Aberdeen.

OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. which, seeing that they cannot be deviated from the track, other vehicles meeting or passing must give precedence. But the respondents' use of their track is in no other sense exclusive. Any other vehicle which does not run on flanged wheels may use the track and rails as freely as any other part of the street whenever and so long as these are not actually occupied by the respondents' cars. Beyond possession of these privileges, which are all that statutes confer upon them, respondents are in no better position, and have no higher right, than the appellant and other persons to use the public highway.

The respondents' next proposition was that, even if the operations complained of had not been expressly licensed by statutes, they are sanctioned by implication, because they were necessary in order to the efficient carrying out of the purposes for which the respondents were incorporated by the Legislature. It was argued that tramway undertakings are authorised by the Legislature in the interests and for the accommodation of a large class of the community, who would be deprived of that accommodation at times when they most require it if the respondents were prevented from using the only means by which they can keep their tracks open and maintain a regular tramcar service in times of snow. The answer to that argument appears to me to be obvious and conclusive. In the first place, the statutes give the respondents no right to create a nuisance, and they have no such right at common law. In the second place, it is not shewn that the nuisance complained of is in any sense necessary. Whilst I have little doubt that there may be other methods equally efficacious, I think the evidence. very strongly suggests that the use of salt is the only known method which combines cheapness with efficiency. The experience of other cities appears to me to point to that result, but the same experience clearly demonstrates that salt may be effectively employed without occasioning a nuisance. Its injurious consequences may be obviated by the simple expedient of removing from the street immediately or within a reasonably short time after the application of the It both the snow and the brine, which

In the next branch of their argument, the respondents accepted, but without admitting, the foregoing conclusion, their object being to shift the origin of the nuisance from themselves to the Town Council of Aberdeen. They maintained, upon that footing, that their use of salt does not necessarily lead to a nuisance, and that any nuisance which may thereby be created is entirely due to the fact that after the salt has been applied the briny slush which it produces, and the snow which it may come in course of time to affect, are not removed with sufficient expedition. If they were, no injurious consequences would follow. Then, it was maintained that the duty of removal rested with the town council as the street authority, and that they were chargeable with the creation of the nuisance which resulted from their want of alacrity in the performance of their statutory duty. I see no reason to doubt that the town council, as constituting the road authority, are charged with the removal of the snow from the streets under their jurisdiction, whenever a fall is so heavy as to obstruct traffic, but I am unable to come to the conclusion that their dilatoriness in the performance of that duty will relieve the respondents of responsibility for the consequences of their own operations. The nuisance is ultimately and mainly due to the employment of salt, which is used by them and not by the town council. If they choose to employ means which, if certain precautions are not observed, lead to a nuisance, they must first ensure that these precautions will be taken. The town council are under no obligation, statutory or otherwise, to counteract the illegal proceedings of the respondents, and it is by no means clear that their delay in removing would create any nuisance, while it seems certain that if it had that effect the nuisance would be of a character different from, and less

OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. aggravated than, that which is complained of.

The last proposition submitted to us on behalf of the respondents is formulated in the second branch of the fourth reason in their appeal case, which is as follows: "Because the operations of the respondents are in themselves legal, and are sanctioned by the street licensing authorities." In the record there is not to be found either a statement of fact or even a plea in law calculated to raise the latter contention. The practice, which is becoming too common, of submitting for consideration of this House points of controversy involving matters of fact which have neither been pleaded nor sent to proof in the Court below, is not a commendable one. In the present instance the respondents have this excuse to offer, that the fact of the town council having either authorised or acquiesced in their operations, although it was neither pleaded nor remitted to probation, has been accepted and relied on both by the Lord Ordinary and by the Second Division of the Court of Session upon evidence which was not directed to the point. The Lord Ordinary (Low), after intimating an opinion that what respondents have done "is to clear a part of the streets of snow with the acquiescence and approval of the town council," comes ultimately to the conclusion "that it is sufficient for the decision of this case that the town council have come to be of opinion-and I see no reason to doubt that opinion has been formed honestly and after due consideration that it is, upon the whole, in the public interest that the respondents should be allowed to do a part of the work of clearing the streets by sending a snowplough along the tramway lines and melting the snow not removed by the ploughs by means of salt; and that that view is not an unreasonable one is, I think, shewn by the fact that the same practice is adopted in Edinburgh, Glasgow, and Dundee." His Lordship omits to notice that the practice of clearing the snow from the tramway rails which is followed in Aberdeen differs from that which obtains in Edinburgh, Glasgow, and Dundee in this essential respect, that in these cities it is carried on under conditions which

practically obviate all risk of nuisance. In like manner the Lord Justice Clerk,. who delivered the opinion of the Second Division, consisting of himself and Lords. Young and Traynor, observed: "If we were here to express our own opinion as to the propriety of using salt upon the streets, I, for one, would have very little difficulty in expressing my opinion most emphatically against such a proposition; but we are dealing here also with what is done necessarily under the sanction of the public authority of the place, and if they are of opinion that that is the only reasonable way of getting the street cleared so as to allow that traffic which Parliament sanctioned to be kept in operation, I do not think we are judges at all of whether they are right in that matter or not." Again, in the same connection, his Lordship said they (the town council) "have a responsibility and duty imposed upon them by the ratepayers of seeing that the roads are properly managed in all circumstances to the best of their ability. If the inhabitants of Aberdeen are of opinion that their affairs in that matter are being mismanaged by the corporation, they have the remedy in their own hands."

This last remark is hardly to the point. The streets of Aberdeen are open to all the inhabitants of the realm, who have the same right of use as the ratepayers themselves, and it is not a matter of course that persons aggrieved by the nuisance must be municipal electors. I am unable to concur either in the law which seems to be laid down in these opinions or in the facts which they assume. So far as the law is concerned, I entertain no doubt that the road authorities are invested with large discretionary powers in regard to such matters as the cleaning of streets and the regulation of traffic upon them, and that a Court of law would decline to interfere with the due exercise of their discretion. But, in my opinion, in the case of a nuisance which the Legislature has not sanctioned, either expressly or by necessary implication, the road authorities have no power or discretion either to commit it themselves or to authorise its commission by others.

As regards the question of facts, an examination of those parts of the

gible. They were willing to enter into any reasonable arrangement for clearing away the show and Sush, which wod remove all cause of complaint by the appellant and others; but they, at the same time, thought it better that the respondents should maintain at their own hand and at their own cost the only plea which they Lad stated against the merits of the action. It is to my mind a very significant circumstance that neither in their record or any of their communications with the town council is there the slightest suggestion made of acquiescence or authority. The attitude of the council may savour of north-country caution, but it must be remembered that if the

respondents had succeeded in establishing this plea the town council and the public would have been alike at their mercy. For these reasons I am of opinion that the interlocutor appealed from ought to be reversed, and that the case should be remitted to the Second Division of the Court of Session, with directions to grant the appellant an interdict in the terms proposed by the Lord Chancellor. I also think that the appellant ought to have his costs of this appeal in this House and in the Courts below.

COSTON 7. ABERDEEN DISTRICT TRAMWAYS, H.L. evilence which can be said to have any bearing upon it has satisfed me that the town council have not acquiesced in an I have Lot authorised the operations compainel of In dealing with In dealing with these questions of acquiescence and authority, it is necessary to keep in view that the respondents have all along asserted, and in this suit still maintain, their statutory rights to do the acts complained of inespective of any licence from the street authority. So far back as February, 1886, the town council, acting upon the advice of counsel and the report of a sub-committee, intimated to the respondents that their operations, in so far as they consisted of sprinkling salt upon their track in times of snow, and in clearing their rails by heaping snow on either side of the track, acted unwarrant ably and illegally, and requested that they should discontinue those proceedings in the future. That intimation was never withdrawn, and the only answer which appears to have been sent to it was one or two letters of remonstrance, accompanied by a number of communications received by the respondents in reply to a circular addressed by them to the secretaries of various tramway companies throughout the country, all of which indicated a practice of salting, and some of which go so far as to impeach the right of the road authority to interfere with it. The respondents in September, 1895, sent to the town council a copy of the record in this action, which had been closed on May 18, 1895, together with a request that the council should nominate a representative to give evidence supporting the conduct of the tramway company. The council remitted the matter to their Streets and Roads Committee, upon receiving whose report they resolved: "First, that such of their number as the respondents should select should give evidence on behalf of the council in favour of the tramway company, and secondly, that a committee be appointed to meet the officials of the company and to report whether an arrangement could be effected with the view of having the streets expeditiously cleared during snowstorms." I think the position that was taken up by the town council is perfectly intelli

LORD SHAND.-I am also of opinion that the appeal should be allowed, and I am of that opinion for the reasons which have been so fully stated, and which render it unnecessary for me to do more than add a very few observations. I think it has been clearly proved, as a matter of fact, that a serious nuisance did exist during the winter months in the year in question, as complained by the appellant. The respondents practically drew no distinction between the two operations complained of the clearing away of snow and the putting of salt on the streets. But it is clear to me these two things must be taken together. It was the combined result of the mode in which the streets were cleared, and the large quantity of salt placed there, that created the nuisance. The nuisance might have been obviated if the snow had been immediately removed, or removed within a reasonably short period

OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. of time after the operations of the tramways company. It is clear, I think, from the evidence in other towns, that in Aberdeen the same promptitude and despatch in clearing the streets has not been displayed. If that had been so

there would have been an end to the complaint that is made in this action, and a complete answer to the action. I see no reason to doubt that the nuisance is not by any means one that must necessarily be incurred in time of storm, and I cannot doubt that arrangements will be made in future by which any such nuisance will be obviated.

As to the other defence, that this was done with the sanction of the town council, I have only to say, referring to what has been so fully said by my noble and learned friend Lord Watson, that I think that defence is not made out.

In point of fact, I think the town council did not sanction the proceedings of the company; but, apart from that, I agree with Lord Watson in the opinion he has expressed, that even the town council themselves would not be entitled to continue to perpetuate a nuisance and to defend themselves by saying that they were to be judges in a matter of the kind. I think that if even they, as administrators of the streets, do cause serious nuisance of this kind, the Court would have power, and would exercise it, to put a stop to the nuisance.

LORD DAVEY.-I am of the same opinion. I confess to some feeling of sympathy with the tramway company. In a time of snowstorm, such as in 1894 and 1895, there must of necessity be some inconvenience and suffering to men and horses, and the directors of the tramway company might easily have conceived that their first duty was to keep the tramways open for public traffic. But what we have to consider is whether the complainant is entitled to the rights which he claims, and whether respondents have infringed the rights of the complainant, and whether he is entitled to have his rights protected, even if it were shewn that the majority of the public who used the tramways were benefited by the acts of the respondents. I cannot doubt that

to pile up large heaps of snow in the highway was an excess of respondents' rights, and was, in law, a nuisance. The tramway company had no more right to do this than any other occupant of the street would have to pile up heaps of snow upon the tramway itself. With regard to the use of salt, it is proved in the evidence that respondents produced a noxious mixture, which they let loose on the highway. That noxious inixture would not otherwise be there; and its presence, I think, as proved by the evidence, increased to a serious extent the inconvenience and dangers incident to the snowstorm.

The only relevant defence I can find is that the operations of the respondents in clearing and keeping clear their lines were within their statutory rights. I can only say that that argument depends upon whether it was an incident necessary to the statutory rights conferred upon them. They had no statutory rights to commit a nuisance, and the only attempt to make out and support that plea was to argue that the statutory power of maintaining their tramways necessarily involved-and I say necessarily deliberately-the creation of this nuisance. I do not think that that is made out in this case, and I do not think there are any grounds whatever by which respondents can maintain that the operations which I say were a nuisance were sanctioned or permitted by their Acts. They point to the analogy of what is done in other towns, and the evidence on that point seems to have impressed the Lord Ordinary. I think it is impossible to read the evidence of Mr. Young, as to what is done in Glasgow, and of Mr. Pitcairn, of how the streets are cleared in Edinburgh, without coming to the conclusion that that analogy is entirely against the respondents and not in their favour. I observe in Mr. Young's evidence he says, "We all knew what to do, and did it." Well, that, it seems to me, did not exactly take place in Aberdeen. I observe Mr. Pitcairn says, "We exercise more care now than we used to do." Well, perhaps the effect of the large experience in Edinburgh may also have a salutary effect in Aberdeen in future. The Lord Ordinary and the

nuisance, I think the interdict should be in the qualified form proposed by the Lord Chancellor.

OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. Inner House seem both to have thought that the defendants might have been regarded for this purpose as the town council, and in the same position as if the town council had been respondents. Indeed, it was argued before us by counsel on behalf of the respondents that the respondents were, in the operations complained of, the agents of the town council, and acted by their authority.

Now, I agree with the Lord Justice Clerk's observations that the public body is entrusted with the duty of clearing the streets. They are entitled to use their discretion as to the time and means to be used, and if they are supine in the exercise of that power, that is primarily a question to be considered by those who elect them to act; but the respondents are not the town council, and, in my opinion, they have failed to shew any ground upon which they can shelter themselves under the powers and minutes of that body. I need not refer again to the evidence and minutes of the town council and to the correspondence which passed between them and the tramway company. They have been referred to by Lord Watson. But the effect left on my mind is that, so far from acting as the town council, the town council, wisely perhaps, left them to fight their own action in the best way they could, and declined to interfere. With regard to permitting some of their body to give evidence, I should not have thought that permission was required to be granted to enable persons to speak the truth. I do not think the council intended to interfere at all, or intended to make themselves responsible for defend

ants.

If this had been a mere temporary interference with the highway, and an interference which would come to an end, and if there were any claim of right in the acts complained of, your Lordships would probably think it was not a case to grant interdict; but, by their fourth plea in law, respondents claim statutory authority for their operations. I am therefore of opinion that the appellant is entitled to interdict; but, as it is quite possible that salt may be used for the purpose of clearing the snow from the tramway, which cannot be so easily cleared by any other means without creating a

Interlocutor of the Court of Session reversed; case remitted to the Second Division of the Court of Session to pronounce decree of interdict.

Solicitors-Grahames, Currey & Spens, for ap-
pellant; Martin & Leslie, for respondents.
[Reported by J. Eyre Thompson, Esq.,
Barrister-at-Law.

1896. March 25. Dec. 16.

BENEFICED CLERK (appellant) v. LEE (respondent).*

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Ecclesiastical Law-Simony-Declaration against Simony JurisdictionChurch Discipline Act, 1840 (3 & 4 Vict. c. 86)-Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32)-Clerical Subscription Act, 1865 (28 & 29 Vict. c. 122)-Canons of the Convocation of Canterbury, 1603, Nos. 75 and 109.

Proceedings against a clerk for the offence of simony cannot be taken under the Clergy Discipline Act, 1892, as the scope of that Act is confined to such criminal acts, conduct, and habits as are described in the 75th and 109th canons issued by the Convocation of Canterbury in 1603, and are summed up in the 109th canon cleanness and wickedness of life." In order to punish the offence of simony recourse must still be had to the Church Discipline Act, 1840.

"as un

The charge of a false declaration against simony made under the Clerical Subscription Act, 1865, cannot be isolated from the charge of simony itself, as it would be necessary to determine whether simony had in fact been committed, and thus an offence would be indirectly tried which could be tried directly.

*Coram, The Lord Chancellor (Lord Halsbury), Lord Watson, Lord Hobhouse, Lord Davey, Sir Richard Couch, and Sir Francis Jeune. Ecclesiastical Assessors: The Archbishop of York, the Bishop of Manchester, and the Bishop of Ely.

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