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OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. which, seeing that they cannot be deviated transforms it into slush. It would, in my from the track, other vehicles meeting or opinion, be extravagant to suggest that passing must give precedence. But the what can be done and is done, either by respondents' use of their track is in no the street authority or by the combined other sense exclusive. Any other vehicle action of that authority and the tramway which does not run on flanged wheels company, in Edinburgh, Glasgow, and may use the track and rails as freely as Dundee, becomes an impossibility in the any other part of the street whenever and city of Aberdeen. so long as these are not actually occupied În the next branch of their argument, by the respondents' cars. Beyond posses- the respondents accepted, but without sion of these privileges, which are all admitting, the foregoing conclusion, their that statutes confer upon them, respond- object being to shift the origin of the ents are in no better position, and have nuisance from themselves to the Town no higher right, than the appellant and Council of Aberdeen. They maintained, other persons to use the public high- upon that footing, that their use of salt way.

does not necessarily lead to a nuisance, The respondents' next proposition was and that any nuisance which may thereby that, even if the operations complained of be created is entirely due to the fact that had not been expressly licensed by statutes, after the salt has been applied the briny they are sanctioned by implication, be- slush which it produces, and the snow cause they were necessary in order to the which it may come in course of time to efficient carrying out of the purposes for affect, are not removed with sufficient which the respondents were incorporated expedition. If they were, no injurious by the Legislature. It was argued that consequences would follow. Then, it was tramway undertakings are authorised by maintained that the duty of removal the Legislature in the interests and for rested with the town council as the street the accommodation of a large class of the authority, and that they were chargeable community, who would be deprived of with the creation of the nuisance which that accommodation at times when they resulted from their want of alacrity in the most require it if the respondents were performance of their statutory duty. I prevented from using the only means by no reason to doubt that the town which they can keep their tracks open and council, as constituting the road authomaintain a regular tramcar service in times rity, are charged with the removal of the of snow. The answer to that argument snow from the streets under their jurisdicappears to me to be obvious and conclusive. tion, whenever a fall is so heavy as to In the first place, the statutes give the obstruct traffic, but I am unable to come respondents no right to create a nuisance, to the conclusion that their dilatoriness in and they have no such right at common the performance of that duty will relieve law. In the second place, it is not shewn the respondents of responsibility for the that the nuisance complained of is in any consequences of their own operations. sense necessary.

Whilst I have little The nuisance is ultimately and mainly doubt that there may be other methods due to the employment of salt, which is equally efficacious, I think the evidence used by them and not by the town very strongly suggests that the use of salt council. If they choose to employ means is the only known method which combines which, if certain precautions are not cheapness with efficiency. The experience observed, lead to a nuisance, they must of other cities appears to me to point to first ensure that these precautions will be that result, but the same experience clearly taken. The town council are under no demonstrates that salt may be effectively obligation, statutory or otherwise, to counemployed without occasioning a nuisance. teract the illegal proceedings of the Its injurious consequences may be obviated respondents, and it is by no means clear by the simple expedient of removing from that their delay in removing would create the street immediately or within a reason- any nuisance, while it seems certain that ably short time after the application of the if it had that effect the nuisance would

It both the snow and the brine, which be of a character different from, and less

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OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. aggravated than, that which is com- practically obviate all risk of nuisance. plained of.

In like manner the Lord Justice Clerk, . The last proposition submitted to us on who delivered the opinion of the Second behalf of the respondents is formulated in Division, consisting of himself and Lords the second branch of the fourth reason in Young and Traynor, observed : “If we their appeal case, which is as follows: were here to express our own opinion as “Because the operations of the respond- to the propriety of using salt upon the ents are in themselves legal, and are sanc- streets, I, for one, would have

very

little tioned by the street licensing authorities.” difficulty in expressing my opinion most In the record there is not to be found emphatically against such a proposition ; either a statement of fact or even a plea but we are dealing here also with what is in law calculated to raise the latter con- done necessarily under the sanction of the tention. The practice, which is becoming public authority of the place, and if they too common, of submitting for considera- are of opinion that that is the only reasontion of this House points of controversy able way of getting the street cleared so involving matters of fact which have as to allow that traffic which Parliament neither been pleaded nor sent to proof in sanctioned to be kept in operation, I do not the Court below, is not a commendable think we are judges at all of whether they one. In the present instance the re- are right in that matter or not.” Again, spondents have this excuse to offer, that in the same connection, his Lordship said the fact of the town council having either they (the town council)

they (the town council) “have a responauthorised or acquiesced in their opera- sibility and duty imposed upon them by tions, although it was neither pleaded nor the ratepayers of seeing that the roads are remitted to probation, has been accepted properly managed in all circumstances to and relied on both by the Lord Ordinary the best of their ability. If the inhabitants and by the Second Division of the Court of Aberdeen are of opinion that their affairs of Session upon evidence which was not in that matter are being mismanaged by directed to the point. The Lord Ordinary the corporation, they have the remedy in (Low), after intimating an opinion that their own hands." what respondents have done " is to clear This last remark is hardly to the point. a part of the streets of snow with the The streets of Aberdeen are open to all acquiescence and approval of the town the inhabitants of the realm, who have council,” comes ultimately to the con- the same right of use as the ratepayers clusion " that it is sufficient for the themselves, and it is not a matter of course decision of this case that the town council that persons aggrieved by the nuisance have come to be of opinion-and I see no must be municipal electors. I am unable reason to doubt that opinion has been to concur either in the law which seems fornied honestly and after due considera- to be laid down in these opinions or in tion-that it is, upon the whole, in the the facts which they assume.

So far as public interest that the respondents should the law is concerned, I entertain no be allowed to do a part of the work of doubt that the road authorities are clearing the streets by sending a snow- invested with large discretionary powers plough along the tramway lines and melt- in regard to such matters as the cleaning ing the snow not removed by the ploughs of streets and the regulation of traffic by means of salt; and that that view is upon them, and that a Court of law would not an unreasonable one is, I think, shewn decline to interfere with the due exercise by the fact that the same practice is of their discretion. But, in my opinion, adopted in Edinburgh, Glasgow, and in the case of a nuisance which the Dundee." His Lordship omits to notice Legislature has not sanctioned, either that the practice of clearing the snow from expressly or by necessary implication, the the tramway rails which is followed in road authorities have no power or disAberdeen differs from that which obtains cretion either to commit it themselves or in Edinburgh, Glasgow, and Dundee in to authorise its commission by others. this essential respect, that in these cities As regards the question of facts, an it is carried on under conditions which examination of those parts of the

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(GETOX T. A BERDEES DISTRICT TRAMWATS, H.L. evidence which can be said to have any gible. Tres were 27 to enter into hearing upon it has satisfied me that the any reason: ble arrangement for clearing WWL council have not acquiesced in and away the snow and sash, which woald have not authorized the operations Co- remove ail cause of complaint be the plained of. In dealing with these appellant and others; but they, as the questiol- of acquiescence and authority, same time, thought it better that the it is necessary to keep in view that the responderts sioad maintain at their respondents have all along asserted, and in own hand and at their own cost the only this suit still maintain, their tatutory plea which they bui sated again the rights to do the acts complaini of merits of the action. It is to my mind a irrespective of any licence from the street very significant circumstance that nežther authority. So far back as February, in their record nor any of their communi1&2, the town council, acting upon the cations with the town council is there the advice of counsel and the report of a slightest siggestion made of acquiescence sub-Committee, intimated to the or authority. The attitude of the council sponderits that their operations, in so far may savour of north-country caution, but as they consisted of sprinkling salt upon it must be remembered that if the their track in times of snow, and in respondents had succeeded in establishing clearing their rails by heaping snow on this plea the town council and the either side of the track, acted unwarrant- public would have been alike at their ably and illegally, and requested that mercy. For these reasons I am of they should discontinue those proceedings opinion that the interlocutor appealed in the future. That intimation was from ought to be reversed, and that the never withdrawn, and the only answer case should be remitted to the Second which appears to have been sent to it Division of the Court of Session, with was one or two letters of remonstrance, directions to grant the appellant an accompanied by a number of communica- interdict in the terms proposed by the tions received by the respondents in reply Lord Chancellor. I also think that the to a circular addressed by them to the appellant ought to have his costs of this secretaries of various tramway companies appeal in this House and in the Courts throughout the country, all of which below. indicated a practice of salting, and some of which go so far as to impeach the right LORD SHAND.-I am also of opinion of the road authority to interfere with it. that the appeal should be allowed, and I The respondents in September, 1895, sent am of that opinion for the reasons which to the town council a copy of the record have been so fully stated, and which in this action, which had been closed on render it unnecessary for me to do more May 18, 1895, together with a request than add a very few observations. I that the council should nominate a think it has been clearly proved, as a representative to give evidence support- matter of fact, that a serious nuisance ing the conduct of the tramway company. did exist during the winter months in The council remitted the matter to their the year in question, as complained by Streets and Roads Committee, upon the appellant. The respondents practically receiving whose report they resolved: drew no distinction between the two “ First, that such of their number as the operations complained of-the clearing respondents should select should give away of snow and the putting of salt evidence on behalf of the council in favour on the streets. But it is clear to me of the tramway company, and secondly, these two things must be taken together. that a committee be appointed to meet It was the combined result of the mode the officials of the company and to report in which the streets were cleared, and whether an arrangement could be effected the large quantity of salt placed there, with the view of having the streets that created the nuisance. The nuiexpeditiously cleared during snowstorms,” sance might have been obviated if the I think the position that was taken up snow had been immediately removed, or by the town council is perfectly intelli- removed within a reasonably short period OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. of time after the operations of the tram- to pile up large heaps of snow in the ways company. It is clear, I think, highway was an excess of respondents' from the evidence in other towns, that rights, and was, in law, a nuisance. The in Aberdeen the same promptitude and tramway company had no more right to despatch in clearing the streets has not do this than any other occupant of the been displayed. If that had been so street would have to pile up heaps of snow there would have been an end to the upon the tramway itself. With regard complaint that is made in this action, and to the use of salt, it is proved in the a complete answer to the action. I see evidence that respondents produced a no reason to doubt that the nuisance is noxious mixture, which they let loose on not by any means one that must neces- the highway. That noxious inixture would sarily be incurred in time of storm, and I not otherwise be there; and its presence, cannot doubt that arrangements will be I think, as proved by the evidence, inmade in future by which any

such creased to a serious extent the inconnuisance will be obviated.

venience and dangers incident to the As to the other defence, that this was snowstorm. done with the sanction of the town The only relevant defence I can find is council, I have only to say, referring to

that the operations of the respondents in what has been so fully said hy my noble clearing and keeping clear their lines were and learned friend Lord Watson, that I within their statutory rights. I can only think that defence is not made out.

In

say that that argument depends upon point of fact, I think the town council whether it was an incident necessary to did not sanction the proceedings of the the statutory rights conferred upon them. company; but, apart froin that, I agree They had no statutory rights to commit a with Lord Watson in the opinion he has nuisance, and the only attempt to make expressed, that even the town council out and support that plea was to argue themselves would not be entitled to that the statutory power of maintaining continue to perpetuate a nuisance and to their tramways necessarily involved—and defend themselves by saying that they I say necessarily deliberately—the creation were to be judges in a matter of the kind. of this nuisance. I do not think that I think that if even they, as administrators that is made out in this case, and I do of the streets, do cause serious nuisance not think there are any grounds whatever of this kind, the Court would have power,

by which respondents can maintain that and would exercise it, to put a stop to the operations which I say were a nuisance the nuisance.

were sanctioned or permitted by their

Acts. They point to the analogy of what LORD DAVEY.—I am of the same opinion. is done in other towns, and the evidence I confess to some feeling of sympathy with on that point seems to have impressed the the tramway company.

In a time of Lord Ordinary. I think it is impossible snowstorm, such as in 1894 and 1895, to read the evidence of Mr. Young, as to there must of necessity be some incon- what is done in Glasgow, and of Mr. venience and suffering to men and horses, Pitcairn, of how the streets are cleared in and the directors of the tramway com- Edinburgh, without coming to the conpany might easily have conceived that clusion that that analogy is entirely their first duty was to keep the tramways against the respondents and not in their open for public traffic. But what we favour. I observe in Mr. Young's have to consider is whether the com- evidence he says, “We all knew what to plainant is entitled to the rights which he do, and did it." Well, that, it seems claims, and whether respondents have to me, did not exactly take place in infringed the rights of the complainant, Aberdeen. I observe Mr. Pitcairn says, and whether he is entitled to have his 66 We exercise more care now than we rights protected, even if it were shewn used to do." Well, perhaps the effect that the majority of the public who used of the large experience in Edinburgh may the tramways were benefited by the acts also have a salutary effect in Aberdeen in of the respondents. I cannot doubt that future. The Lord Ordinary and the

BENEFICED

Ogston v. ABERDEEN DISTRICT TRAMWAYS, H.L. Inner House seem both to have thought nuisance, I think the interdict should be that the defendants might have been re- in the qualified form proposed by the Lord garded for this purpose as the town Chancellor. council, and in the same position as if the town council had been respondents.

Interlocutor of the Court of Session Indeed, it was argued before us by counsel

reversed ; case remitted to the Second on behalf of the respondents that the

Division of the Court of Session to respondents were, in the operations com

pronounce decree of interdict. plained of, the agents of the town council, and acted by their authority.

Solicitors-Grahames, Currey & Spens, for apNow, I agree with the Lord Justice

pellant; Martin & Leslie, for respondents. Clerk's observations that the public body is entrusted with the duty of clearing the

[Reported by J. Eyre Thompson, Esq.,

Barrister-at-Lar. 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 1896. not the town council, and, in my opinion, March 25.

CLERK (appelthey have failed to shew any ground upon

lant) v. LEE (respondent).*

Dec. 16. which they can shelter themselves under Ecclesiastical Law-Simony-Declarathe powers and minutes of that body. I

tion against Simony - Jurisdictionneed not refer again to the evidence and

Church Discipline Act, 1840 (3 & 4 Vict. minutes of the town council and to the

c. 86)—Clergy Discipline Act, 1892 (55 & correspondence which passed between

56 Vict. c. 32)—Clerical Subscription Act, them and the tramway company. They

1865 (28 & 29 Vict. c. 122)—Canons of have been referred to by Lord Watson. the Convocation of Canterbury, 1603, Nos. But the effect left on my mind is that, so

75 and 109. far from acting as the town council, the town council, wisely perhaps, left them

Proceedings against a clerk for the offence to fight their own action in the best way

of simony cannot be taken under the Clergy they could, and declined to interfere.

Discipline Act, 1892, as the scope of that With regard to permitting some of their

Act is confined to such criminal acts, conbody to give evidence, I should not have

duct, and habits as are described in the thought that permission was required to

75th and 109th canons issued by the Conbe granted to enable persons to speak the

vocation of Canterbury in 1603, and are truth. I do not think the council in

summed up in the 109th canon tended to interfere at all, or intended to

cleanness and wickedness of life." In make themselves responsible for defend

order to punish the offence of simony reants. If this had been a mere temporary

course must still be had to the Church Disinterference with the highway, and an

cipline Act, 1840. interference which would come to an end,

The charge of a false declaration against and if there were any claim of right in

simony made under the Clerical Subscripthe acts complained of, your Lordships charge of simony itself, as it would be

tion Act, 1865, cannot be isolated from the would probably think it was not a case to grant interdict; but, by their fourth plea necessary to determine whether simony had in law, respondents claim statutory au

in fact been committed, and thus an offence thority for their operations. I am there

would be indirectly tried which could be

tried directly. fore of opinion that the appellant is entitled to interdict; but, as it is quite

* Coram, The Lord Chancellor (Lord Hals

bury), Lord Watson, Lord Hobhouse, Lord possible that salt may be used for the

Davey, Sir Richard Couch, and Sir Francis purpose of clearing the snow from the

Jeune. Ecclesiastical Assessors: The Archtramway, which cannot be so easily cleared

bishop of York, the Bishop of Manchester, and by any other means without creating a the Bishop of Ely.

as Un

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