& Ors. v. Carnegy

23, 1900

there is water enough in the river to supply the ladder."

Section 29 of the Act of 1862 provides that "In the event of any person refusing or neglecting to obey any bye-law made by the Commissioners, or any regulation made by the District Board, the clerk may apply to the sheriff by summary petition in ordinary form, praying to have such person ordained to obey the same, and the sheriff shall take such proceedings and make such orders thereupon as he shall think just."

It appears that in the year 1867 the clerk of the Board of the district in which the dam in question is situated, applied to the Sheriff in terms of that section, and on 4th March 1871 the Second Division of this Court, before whom the case had been brought by appeal, found that it was necessary that the goil or passage in the damdyke should be altered in terms of reports made by Mr Stevenson, C.E., and the damdyke was put into a proper condition at the sight of Mr Stevenson-Myers v. Grant, 8 S. L. R. 404.

It further appears that in 1881 a part of the dam-dyke gave way, and that it was repaired or restored to the satisfaction of Mr Stevenson.

The pursuers now allege that the pass or ladder is defective, and after specifying the alleged defects they say in condescendence 4-"The said pass is, moreover, disconform to the rules laid down for such passes in Schedule G of the Salmon-Fisheries (Scotland) Act 1868."

In condescendence 5 they allege that "in addition to the defective condition of the said pass the said dam-dyke itself is in a thoroughly bad state of repair, and a great quantity of water percolates through at various parts of said dyke, in contravention of the rules laid down in the foresaid Schedule G of the Salmon-Fisheries (Scotland) Act 1868."

It appears to me that the action is in truth and substance a proceeding directed to enforce regulations made under the authority of the Act 1862, although the pursuers in their first plea-in-law also maintain that the dam-dyke is an illegal obstruction to the passage of salmon at common law, and under the Act of 1696, section 33.

If there had been no common or prior statute law requirements relative to any of the matters dealt with by the regulations of which the first declaratory conclusion of the summons is composed, I should have thought it clear that these regulations could be enforced only in the manner provided by the Act of 1862-that is, under section 29-and as there was no rule of common or prior statute law corresponding to the regulation requiring the construction of a salmon-pass or ladder on the down-stream face of every dam, I consider that any complaint relating to such a pass or ladder could only be enforced under that section-Wolverhampton New Waterworks Company v. Hawkesford (1859), 28 LJ. (C.P.) 242, Willes, J., at p. 246; Rex v. Robinson (1759), 2 Burrows 800; and The Tay District v. Robertson, 15 R. 40. It was

argued on behalf of the pursuers that the Act of 1696, section 33, in providing that there should be a "constant slop" in the mid-stream of each mill-dam in rivers where salmon are taken, in effect provided for a salmon-ladder, but the two things are, in my judgment, essentially different, a "slop" being merely a gap or opening in the damdyke through which the water could flow, without any structural provision for giving the salmon a lead up to the "slop," equivalent to the pass or ladder required by the regulations made under the authority of the Act of 1862.

The pursuers, however, maintain that the regulation directed against allowing percolation of water through a dam-dyke does not introduce a new requirement, and reference was made to the decisions of the House of Lords in Arbuthnott v. Scott, 4 Pat. App. 337, and Scott v. Gillies, 5 Pat. App. 750, in support of this view. These decisions may be taken to establish that the Court would prevent a colourable device, such as a barrier of loose stones, or a damdyke intentionally kept in such a condition that water could readily pass through it, from being used as an obstruction to the ascent of salmon, but they scarcely appear to me to be authorities for claiming from this Court the kind of regulation sought in this action. Even assuming, however, that before the regulations were made under the Act of 1862, it was within the power of this Court to require that bona fide mill damdykes should be maintained in such a condition as not to admit percolation, I think that where such a matter is taken up and dealt with, as it is by the Act of 1862, and regulations in regard to it are made under the authority of such an Act, any prior law directed to bring about the same result is superseded for the purposes of such a question as the present. It therefore appears to me that the existing regulation directed against percolation can, like the regulation provided for the making and maintenance of a proper class of ladder, be enforced only under section 29 of the Act of 1862. If the regulation relative to the pass or ladder having been made for the first time under the Act of 1862 can be enforced only in the method provided by section 29 of that Act, and it was competent to enforce the regulation against percolation by action in this Court, the result might be that different courts might simultaneously be making orders relative to the same dam-dyke under the advice of separate engineers, a result which can scarcely have been intended by the Legislature.

It is further to be kept in view that the dam-dyke in question was constructed, and the salmon-pass or ladder upon it established, under orders made in a proceeding taken under section 29 of the Act of 1862, and it would be inexpedient and anomalous that this Court, in the exercise of its common law jurisdiction, should make orders relative to a part (i.e., the dam-dyke) of the structure which in 1871 was dealt with by it as a whole under sec. 29, while it could not in the exercise of that jurisdiction make any order with respect to the pass or ladder.

And even if the Court had power in virtue of its ordinary jurisdiction to regulate the dam-dyke, it would not, in my judgment, be expedient to exercise that jurisdiction as to a part of the structure when the whole of it could be regulated under section 29.

The views now expressed appear to me to be sustained by the decision in Blair v. Lumsden & Sandeman, 7 Macph. 1127, in which the effect of section 29 was discussed by Lord Cowan in a carefully considered judgment. In that judgment his Lordship said "If the person contravening" (a regulation made under the Act of 1862) "refuse to obey, the Sheriff is the only person who is to consider whether such party resisting the bye-law has a good defence to its enforcement against him, and that judgment may be brought under review, as in the case of any other judgment of the Sheriff.' And it is to the 29th section, which has not been repealed by the Act of 1868, but is in truth embodied in the latter Act, that in every case of refusal or neglect to obey any bye-law, resort must be had for its enforcement."

66

It was maintained by the pursuers that the present case falls under the first of the three clauses mentioned by Mr Justice Willes in the case of the Wolverhampton New Waterworks Company v. Hawkesford already referred to. It appears to me, however, that his dicta relative to the first class do not apply, even to the regulation against allowing percolation at dam-dykes, which, as I have already indicated, seems to me to go somewhat beyond any rule either of common or prior statute law, and even if this were otherwise, I think that the rule should not be so applied as to require that part of the regulations relative to the same dam-dyke should be enforced by one tribunal, and another part by another tribunal, especially where, as in the present case, the structure as a whole had already been regulated by proceedings under section 29.

In this connection it is material to keep in view that the policy of the Acts of 1862 and 1868 was to treat the proprietors of salmon-fishings in a river as a community, and to vest in them-through elected district boards-large administrative powers with reference to these fishings. A provision that proceedings for the enforcement of statutory regulations should be instituted only by the District Board through their clerk would be quite in harmony with this policy, while it would not be so to leave proprietors of dam-dykes liable to as many separate actions at law as there are proprietors of salmon-fishings in the river.

For these reasons I consider that the Lord Ordinary's interlocutor should be adhered

to.

LORD ADAM, LORD M'LAREN, and LORD KINNEAR Concurred.

The Court adhered.

Counsel for the Pursuers-W. Campbell, Q.C.-J. H. Millar. Agents-W. & J. Cook, W.S.

Counsel for the Defender-Mackay, Q.C. Macphail Agents - Lindsay, Howe, & Co., W.S.

Tuesday, January 23.

FIRST DIVISION.

[Dean of Guild Court Hamilton.

HAMILTON MODEL LODGING-HOUSE COMPANY, LIMITED v. WATSON. Police-Street-New Street-Court-Width -Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), secs. 4 (10) (31), and 152.

By section 152 of the Burgh Police (Scotland) Act 1892 it is provided that "It shall not be lawful to form or lay out any new street or part thereof, or court, within the burgh unless the same. . . be at least 36 feet wide for the carriageway and foot-pavements, and no dwelling-house shall be built in any such street or court which shall exceed in height. . . one and a quarter times the width of such street."

In an application for warrant to erect a lodging-house within a burgh, the petitioner proposed to take down part of the dwelling-houses fronting upon a street, and thus provide an open space to give entrance to the site of the proposed lodging-house, which was behind the existing houses. The open space thus formed also served as a through passage to a public washing green. It was proposed to put up a gate at the entrance to the street, and a fence at other end of the passage adjoining the washing-green. The width of the proposed open space was less than 36 feet, and the height of the proposed building was more than one and a quarter times the width of the open space.

Held that the open space was not a "court" within the meaning of the section, inasmuch as the lodging-house did not constitute or contain "premises separately occupied," but that it was a street, and that accordingly the petitioners' proposals did not comply with the requirements of the statute. Section 4 of the Burgh Police Act 1892 enacts that "The following words and expressions in this Act shall have the meaning hereby assigned to them, unless there be something in the subject or coutext repugnant to such construction; that is to say, inter alia-(10) 'Court,' where by the context it applies to a space contiguous to buildings, shall mean a court or recess or area forming a common access to lands and premises separately occupied, including any common passage or entrance thereto. (31) Street' shall include any road, highway, bridge, quay, lane, square, court, alley, close, wynd, vennel, thoroughfare, and public passage, or other place within the burgh used by carts or foot-passengers, and not being or forming part of any harbour, railway or canal station, depot, wharf, towing-path, or bank."

Section 152 enacts-"From and after the date when this Act comes into force within the burgh, it shall not be lawful to form or

Lodging-House

23, 1900

lay out any new street, or part thereof, or court, within the burgh, unless the same shall (measuring from the buildings or intended buildings therein at the level of the surface of the boundary of such street) be at least 36 feet wide for the carriageway and foot-pavements, and no dwellinghouse shall be built in any such street or court which shall exceed in height from the level of the pavement to the roof of the highest habitable room one and a quarter times the width of such street, measuring from the front wall of the buildings or intended buildings on each side thereof: Provided always that where any road or street fronts any links, or common, or other open area, or in other exceptional circumstances, the Commissioners may allow buildings of greater height; and provided also that for the purposes of this enactment a street shall not include a mews or other lane, which may be made twelve and a half feet wide or such other width according to the use to be made thereof, of which the Commissioners shall judge and shall fix the works accordingly; but in no case shall the dwelling-houses fronting such lane exceed in height one and a half times the width of the lane: Provided also that where a building shall be situated so as to abut on two streets or courts of different levels, the height shall be measured from the street which lies on the higher level."

A petition was presented in the Dean of Guild Court of Hamilton by the Hamilton Model Lodging-House Company, who were the proprietors of a piece of ground situated in Church Street, Hamilton. The petitioners set out that they proposed to build upon this ground a lodging-house conform to the plan produced by them, and craved the Court for warrant to erect the building as proposed.

Objections were lodged by the Master of Works, containing the following statements: "The petitioners' property is at present fully built on along Church Street, and they propose erecting buildings behind the houses fronting the street, to be occupied as a model lodging-house, which will accommodate a very large number of lodgers.

"The plans submitted to the Dean of Guild Court shew that the petitioners propose taking down part of the dwellinghouses fronting Church Street, providing an open space to give an entrance to the north elevation of proposed lodging-house by a gangway projecting about 8 feet from the buildings at the level of the first floor. This open space is also shown as a through passage to the public washing-green. This open space at its junction with Church Street is shown by the plans to be about 27 feet in width, and at the proposed buildings only 20 feet in width. The distance between the back of the houses in Church Street and the proposed new buildings is 30 feet.

"The Police Commissioners have resolved that the street or court to be formed must be the statutory width of 36 feet, in terms of section 152 of the Burgh Police (Scotland) Act 1892.

"I have therefore to object to the pro

"19 Cadzow Street, Master of Works. "Hamilton, 10th August 1899.”

It

The petitioners lodged the following answers to these objections:-" What is called the 'new street' is not a street either in the popular sense or within the meaning of the Act of Parliament. is simply an entrance or approach to the buildings proposed to be erected by the petitioners. It is not a thoroughfare; the public have no right to make use of it; and the petitioners are willing and undertake to erect a fence at the opening from Church Street, leaving a gate in the centre for the use of the petitioners and their tenants. They also undertake that no opening will be left at the end of the passage adjoining the lade, all as shown on the amended block plan now produced. In respect whereof, &c., J. B. SOUTER, Pror. for Petitioner.

On 30th August 1899 the Dean of Guild made the following findings:-"Finds (1) That the petitioners ask the sanction of the Dean of Guild to the erection of a lodginghouse on a piece of ground lying between Church Street and the public green, and behind buildings fronting Church Street: (2) That practically for such erection they propose to form or lay out a new street or part thereof or court, and that the said lodging-house is to be three storeys in height; (3) That by section 152 of the Burgh Police (Scotland) Act 1892 it is provided that it shall not be lawful to form or lay out any new street or part thereof, or court within the burgh, unless the same.

be at least 36 feet wide for the carriageway and foot-pavements; and no dwellinghouse shall be built in any such street or court which shall exceed in height from the level of the pavement to the roof of the highest habitable room one and a quarter times the width of such street;' (4) That the said lodging-house is within the meaning of the Act a dwelling-house; (5) That the proposed street or part thereof or court is less than 36 feet wide; (6) That the building proposed to be erected, as shown by the plans, exceeds in height one and a quarter times the width of such street: Therefore what is sought being in contravention of the said Act, refuses to grant warrant to erect the said building in conformity with the plans produced: Finds no

expenses due to or by either party; and decerns."

The petitioners appealed to the First Division, and argued that what they proposed to make was not "a new street or part thereof or court"-Mair v. Thomson, December 14, 1897, 25 R. 238: Taylor v. Metropolitan Board of Works [1867], L.R., 2 Q.B. 213, at 221; Queen v. Fullford (1864), 33 L.J. (M.C.) 122.

At advising

LORD PRESIDENT-Upon the information before us it appears to me very doubtful whether the space in question is a "court " within the meaning of the Burgh Police (Scotland) Act 1892, and upon the whole I am disposed to think that it is not. Section 4 (10) of that Act declares that "court," where by the context it applies to a "space contiguous to buildings, shall mean a court or recess or area forming a common access to lands and premises separately occupied, including any common passage or entrance thereto.' It does not appear to me that the lodging-house will constitute or contain premises separately occupied in the sense of this definition, as I understand that the lodgers will merely have a right to occupy separately for a night, or for a longer period, a bedroom, cubicle, or bed, while they will also have the use of other rooms and conveniences in common. Their position will thus be very similar to that of guests in a hotel. It appears that buildings abut upon each side of the space where it enters from Church Street, but I understand that it does not at present form an access to any of these buildings, although it might come to do so if doors were opened in them.

66

I am, however, of opinion that the space in question is a "street" within the meaning of section 152 of the Act of 1892. The definition of "street" in section 4 (31) of that Act is very large, and it, in my judgment, includes a private street,' which the definition of "street" in the Burgh Police Act of 1862 did not include. I also think that it is not necessary that a space should be a thoroughfare in order to bring it within the definition, nor is it, in my judgment, requisite that the public should have a right of access to it. Where the space enters from Church Street, houses abut upon it at each side, and apparently back buildings nearly approach it on the north or north-east side, while, as it is continued inwards to the proposed lodginghouse, it will form an access for the large number of persons who will occupy that house, or who will go to it seeking accommodation, or taking supplies, or to visit lodgers. From the nature of the place there will evidently be in fact a large resort of the public to it, and even although a gate should now be placed across the entry from Church Street, and the existing wall should be kept up, or a gate placed at the other end to shut the space off from the public bleaching-green, there is no security, and little probability, that these barriers will be maintained. In any view it may be assumed that a considerable number of

Jan. 23, 1900.

persons other than actual lodgers will use the space. But even if a gate should be placed and maintained at the Church Street entrance, and the space should remain closed to the public bleaching-green, it appears to me that it will satisfy the definition of "street" in the Act of 1892.

I may add, that having regard to the use of the space in connection with the lodginghouse, as well as to the other uses to which it may be afterwards put in connection with the adjoining properties and the public green, it seems to me that the considerations of policy which led to the enactment of section 152 of the Act of 1892 apply to it.

I therefore think that the interlocutor of the Dean of Guild should be recalled in so far as it contains the words "or court" in the second and fifth findings, and that quoad ultra it should be affirmed.

LORD M'LAREN and LORD KINNEAR concurred.

LORD ADAM was absent.

The Court pronounced this interlocutor"Find that the space in question is a 'street' within the meaning of section 152 of the Burgh Police (Scotland) Act 1892: Recal the said interlocutor in so far as it contains the words or court in the second and fifth findings thereof: Quoad ultra affirm the said interlocutor, and decern: Find the petitioners and appellants liable to the respondents in the expenses of the appeal," &c. Counsel for the Petitioners Chree. Agents-Alex. Morison & Co., W.S.

Counsel for the Respondents - Cullen. Agents-Carmichael & Miller, W.S.

Thursday, January 25.

SECOND DIVISION.

[Sheriff-Substitute of Lothians. BEE v. THOMAS OVENS & SONS. Reparation-Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 4Liability of Occupier of Factory to Employee of Carting Contractor Injured in Factory.

A carter in the employment of a carting contractor was injured within the precincts of a factory when he was bringing raw material to the factory for use therein. He had for some time prior to the date of the accident been employed almost daily doing carting work in connection with the business of the factory, and his immediate employers the carting contractors were under contract to do all the carting required in connection with the factory business. The raw material for use in the factory was all brought to, and the finished product was all taken away from it in carts. Held (1) that the work of carting in which the workman was engaged was not merely ancillary or

incidental to, but was part of the trade or business carried on in the factory, and (2) that the occupiers of the factory were bound, under section 4 of the Workmen's Compensation Act 1897, to pay compensation to the workman notwithstanding that he being employed as a carter by a carting contractor, was not directly employed in an employment to which the Act applied, and consequently had no claim under the Act against his immediate employers, the carting contractors. This was an appeal upon a case stated in the matter of an arbitration under the Workmen's Compensation Act 1897 between Robert Bee, carter, Leith, claimant and respondent, and Thomas Ovens & Sons, manufacturers of sulphuric acid and chemical fertilisers, Leith, appellants.

The facts stated by the Sheriff-Substitute (SYM) were as follows:-"The appellants are manufacturers of and dealers in feeding stuffs and chemical manures. They import and store in their own stores, or those of others, the raw materials, make them up in their works, and deliver them to their customers, or to a common carrier for their customers. Part of their raw material is brought by sea to Leith Docks, and thence carted to their stores or their factory. Another part is brought by rail to various railway stations in Leith, and this part is carted from the ordinary goods stations in or near Leith.

"The works of said Thomas Ovens & Sons form a factory in the sense of the Factory and Workshop Acts.

our

"The appellants have no carts or horses of their own. They do not cart for profit, but simply to give delivery to their cus tomers or take delivery from merchants when carting is needed for these purposes. In order to have their carting done they have a contract with Cowan & Company, carting contractors. It is constituted by letters by which they (the appellants)‘agree to give you' (Cowan & Company) cartage' at certain rates, Cowan & Company always to keep us well supplied with carts. Sometimes, e.g., when a ship has to be discharged, the appellants require numerous carts. At other times they have little carting to be done, but nearly always they require the services of at least one cart, and therefore one of Cowan & Company's carters goes to them almost every morning, and when required is employed there in miscellaneous carting for them.

The

The customers of the appellants sometimes have their goods put free on rail for them at one of the Leith stations. carriage is then paid altogether by the appellants. Sometimes the contract is that the customer pays carriage, in which case he is charged with cartage to the station by the carts supplied to the appellants by Cowan & Company, as well as with railway freight.

"For some time before June 1899 Robert Bee, the respondent, one of the carters employed by Cowan & Company, had been engaged in the work of the appellants almost daily, obeying the directions of

their foreman as to the work which he had to do.

"The respondent's wages were 21s. per week.

"On 5th June 1899 the respondent in the course of his ordinary duties drove a cart of maize from a store in Leith to the appellant's factory, and while taking it to the hoist to be sent up into the mill he was accidentally crushed between the near or left shaft of the cart or lorry and the wall of the building, part of the factory into which he was leading his horse. In this manner he received severe injury to his collar-bone and right arm, whereby he has been, and will for some time be, incapacitated for his work as a carter.

"The appellants denied liability, under the Workmen's Compensation Act 1897, to pay compensation to the respondent, whom they did not employ, although he was injured ‘in or about' their factory, on the grounds that carting was not an essential part of their work as makers of and dealers in manures and feeding stuffs, and section 4 of the Workmen's Compensation Act 1897 did not apply to the case. In any view, they maintained that carting was merely 'ancillary or incidental to, and no part of or process in the trade or business carried on by them,' and therefore that section 4, assuming that it would otherwise have applied, was excluded."

The Sheriff-Substitute was of opinion that the appellants were the undertakers in the sense of the Act; that the case was the same as if the respondent had been in the employment of the appellants; and that the work of putting the material into the mill, or giving delivery of the finished article by cart to the customer was a part of the business which they carried on. accordingly gave decree for 10s. 6d. per week from 19th June 1899 till further orders of Court.

He

The questions of law for the opinion of the Court were:-"(1) Whether the appellants are in respect of section 4 of the Workmen's Compensation Act 1897 liable to pay compensation to the respondent for the injury which befel him on 5th June 1899 when delivering maize at their works, which are a factory within the meaning of the Workmen's Compensation Act 1897, he not having been in the appellants' employment but in that of Messrs Cowan & Company, who had contracted to perform carting work for the appellants? Whether the work in which the respondent was engaged at the time of the accident in question was merely ancillary or incidental to, and no part of or process in the trade or business carried on by the appellants as manufacturers of sulphuric acid, chemical fertilisers, and feeding stuffs, and dealers therein, at Timber Bush, Leith, within the meaning of the exception in said section 4 of the above-mentioned Act?"

(2)

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts as follows:Section 4-" Where in an employment to which this Act applies, the undertakers, as hereinafter defined, contract with any person for the execution by or under such con