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The House of Lords (Scotch and Irish Appeals),
JAMES EYRE THOMPSON,
W. E. GORDON AND A. J. SPENCER.
[CONTEMPORARY WITH LAW REP.  A. C.]
PUBLISHED FOR THE PROPRIETORS AT THE OFFICE OF
THE LAW JOURNAL REPORTS, 119 CHANCERY LANE, LONDON.
JUDICIAL COMMITTEE OF
HER MAJESTY'S PRIVY COUNCIL
AND OF THE
HOUSE OF LORDS
IN SCOTCH AND IRISH APPEALS.
Although road authorities are invested with large discretionary powers in regard to the cleaning of streets and the regulation of traffic, and a Court of law would decline to interfere with a due exercise of that discretion, they have no power or discretion in the case of a nuisance, which the Legislature has not expressly or by necessary implication sanctioned, either to commit it themselves or to authorise its commission by others.
According to the law of Scotland, any private person, whether a ratepayer or municipal elector or not, is entitled to sue for an interdict in respect of a nuisance caused in a highway.
The appellant sued for an interdict to prevent the respondents from continuing the practice of sweeping away the snow from their tramway-rails, and sprinkling salt on the snow in order to melt it in such a way as to cause a nuisance.
The COURT OF SESSION refused the note of *Coram, The Lord Chancellor (Lord Halsbury), Lord Watson, Lord Shand, and Lord Davey.
suspension and interdict on the ground that the local authority, to which was entrusted the duty of seeing that the streets were cleared in such an emergency as a snowstorm, had approved the method adopted by the respondents.
The HOUSE, reversing the decision of the COURT OF SESSION (23 Rettie, 340), remitted the case to the Second Division of the Court of Session to pronounce decree of interdict.
Appeal from the Second Division of the Court of Session. The facts sufficiently appear in the judgments.
The Dean of Faculty (Asher, Q.C.) and Haldane, Q.C.(D. M. Abel with them), for the appellant.
The Lord Advocate (Graham Murray, Q.C.) and Sir R. T. Reid, Q.C. (D. Wilson with them), for the respondents.
Dec. 14. THE LORD CHANCELLOR (LORD HALSBURY).—In this case the appellant, who has a place of business in Loch Street, Aberdeen, complains that the Aberdeen District Tramways Company obstruct the highways in the city of Aberdeen, and create a nuisance therein, whenever a snowstorm occurs in the city. As to the facts which gave rise to the complaint there is no serious dispute, and I do not
OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. understand that the Lord Ordinary in the Second Division of the Court of Session entertained any doubt that a serious inconvenience to horse traffic was caused by the acts complained of. It appears that the tramway company, when a storm occurs in Aberdeen, are in the habit of clearing the snow off their track, and piling it at the side of their rails. The heaps of snow thus piled are left sometimes for as long a period as a week together, and for the purpose of facilitating their own traffic the tramway company scatter salt, which causes the snow in the grooves of their rails to melt. The mixture thus created flows by gravitation into the heaps of snow already collected at the sides and forms a freezing mixture, which I think it cannot be doubted causes injury to the horses and inconvenience to traffic wherever and whenever carriage traffic other than that of the tramway company themselves is compelled to force its way through the freezing mixture of salt and snow.
It cannot be doubted that, unless this can be justified by some legal authority, this does constitute a nuisance to the highway. If the question had arisen in England, I think some doubt might be entertained whether the obstruction, as proved, was such that a private person could sue without further proof of peculiar damage to himself; but that question does not arise. According to the law of Scotland, Mr. Ogston is entitled to interdict in respect of an interference with the highway which affects him in common with the rest of her Majesty's subjects. It is sought to justify the proceeding which I have described by the powers conferred by their Act of Parliament, and if the matters do constitute a nuisance that is the only justification which is to be found on this record. am of opinion that the Act of Parliament in question confers upon the respondents no such powers. It gives them the monopoly of using the tramway, where it is laid, with flange wheels or other wheels specially adapted to run on a grooved rail, and except as otherwise provided by the Act the track of the tramway is for all purposes to be and remain a part of the street or road. It is not suggested that,
except in respect of the exclusive use to which I have referred, the tramway company have received any express authority to deal with the highways. But it is contended that in time of snow they can only continue the use of their tramway by scattering salt, and that if the municipal authority of Aberdeen were sufficiently prompt in sweeping up and carting away the freezing mixture thus created, the practice might be pursued without inconvenience to any one. This may be perfectly true, but it is an absolutely untenable proposition that any one may create a nuisance, and shelter himself from due responsibility by suggesting that somebody else is under a legal responsibility to remove it. Each member of the public in turn might claim a right to create a nuisance by removing what was inconvenient to himself, and set up the same defence. The question would be a very different one if the road authority were the person sued, and were setting up that the acts complained of were necessarily done in the general interest of the community and in the course of cleansing the streets from obstruction. I do not say that such a defence would certainly be complete. It would introduce questions of fact and degree with which I am at present not prepared to deal. That a snowstorm must cause some inconvenience to every one may be true, but I cannot assent to the argument that a snowstorm in Aberdeen, at some period of the winter, is an extraordinary and unlookedfor convulsion of nature, for which it is unreasonable to suppose some provision should be made; and the examples of Edinburgh and Glasgow would seem to indicate that it is not beyond the resources of civilisation to make such provision. But, as I have said, I decline to enter into this field of enquiry.
If it were true, as the Lord Justice Clerk assumes, that we were dealing here with what was done necessarily under the sanction of the public authority of the place, a great many of his Lordship's observations would be, I think, very pertinent, but that proposition is absolutely contrary to the fact. I have already pointed out that upon the record no such authority is pleaded. If it had been
OGSTON v. ABERDEEN DISTRICT TRAMWAYS, H.L. pleaded, I think the proof would have failed. Indeed, I think it is distinctly disproved. Not only did the Town Council of Aberdeen make a regulation against the practice, but by their letter of February 1, 1886, they had informed. the tramway company that they had been advised that their operations in this respect were unwarrantable and illegal, and that, if they did not desist, the council would be compelled to take legal proceedings against them. I do not think that the town council of Aberdeen have
altered their position in this respect. It is true that, long after this action was raised, they deputed three gentlemen to give evidence upon the trial of the action on behalf of the council in favour of the respondents. What legal operation such a transaction as this may be supposed to effect I am wholly unable to conceive. Approval is, of course, out of the question. The acts complained of were not done, and could not be done, under the authority of the town council. They were, in fact, done in absolute defiance of that authority. It is manifest, therefore, that if obstruction of highway is proved, and the claim to persist in that obstruction insisted upon, it is a proper case for interdict. am therefore of opinion that the interlocutor appealed against should be reversed, and I move your Lordships accordingly. I think that the form the decision should take is this-that the interlocutors should be reversed; that the complainant is entitled to have the respondents-the Aberdeen District Tramway Company prohibited, interdicted, and discharged from removing snow from their tramway lines in various streets of the city, so as to create a nuisance to the appellant and to the public using the said streets; that the case be remitted to the Second Division of the Court of Session to pronounce decree of interdict aforesaid, and to find that the appellant and complainant is entitled to expenses of process in the Court of Session; and that the respondents are liable to the appellant in the costs of this appeal.
LORD WATSON.-I also am of opinion that the method practised by the re
spondents of clearing and keeping open their tramway rails whenever there is a fall of snow is attended with injurious consequences amounting to a legal nuisance to those members of the public who have occasion to use the streets of Aberdeen for horse traffic. The evidence shews that on these occasions their first step is to clear their track, which is fair along the centre of the street, by means of snowploughs-an operation which increases the deposit of snow upon other parts of the street. The next operation, which is repeated from time to time, is to scatter salt upon their rails and in their vicinity, the object of which is to prevent snow or snow-water from freezing in the rail grooves. Snow and salt in combination form a wet, briny amalgam which does. not freeze, although its temperature is considerably below the freezing-point of water, and the briny slush so produced is left on the street; and in the course of time it gradually permeates a large portion, and sometimes the whole, of the street. It is, in my opinion, amply proved that the mixture thus diffused is injurious to horses standing or moving in it, and that its saline element has a direct and noxious effect of its own if the skin of the animals coming in contact with it has been perforated or abraded.
The respondents have endeavoured to justify their proceedings by advancing a series of propositions, ingenious if not altogether consistent, which I shall notice in detail. The first of these, which is the only defence stated by them in the record, upon the assumption that the allegation of the appellant has been established, is to the effect that their operation in clearing and keeping clear their lines are "within their statutory rights." plea, if well founded, would necessarily afford a good answer to the appellant's prayer for interdict. But neither the provision of their special Acts, nor those of the general Tramway Act of 1870, bear out that contention. Some statutory privileges they may possess which the law does not accord to the general public. They have the right to lay down and to maintain their grooved rails upon the public streets, and to use these rails for the passage of their tramway cars, to