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Cite as: (1881-82) LR 7 App Cas 518, [1881] UKHL 2, (1881) 8 R 1006

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20 July 1881

Shotts Iron Co.

1006 CASES DECIDED IN THE [fourth series

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

Right Honourable John Inglis, Pursuer.-D.-F. Kinnear-Sol.-Gen.

Balfour-Trayner-Graham Murray.

Shotts Iron Company, Defenders.-Asher-Mackintosh-

J. P. B. Robertson.

Nuisance-Property-Calcining Ironstone.-A mining company leased the coal and ironstone on an estate, subject to the condition that they should not conduct any operations within a certain area (which extended about two miles from the mansion-house). They thereafter commenced calcining ironstone in bings at places beyond this area, near their march. The proprietor of the adjoining estate raised an action concluding for interdict against the company calcining within two miles of his lands, on the ground that the smoke from their bings was destroying the trees in his plantations. Held, after a proof, (1) that the pursuer had proved that his plantations had been injured by the defenders' operations ; and (2) that he was entitled to interdict to prevent the defenders calcining within one mile of his march.

* Decided July 5, 1881.

vol. viii.] COURT OF SESSION, &c. 1007

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

2d Division.

Lord Ruther-furd Clark. M.

Diss. Lord Young, who was of opinion that further evidence should have been taken as to whether the places for the calcining bings had not been conveniently and reasonably chosen, having regard to the interests of the company as well as of the neighbouring proprietor.

The Shotts Iron Company became, by a series of leases between 1865 and 1873, lessees of the coal and ironstone and other minerals on the estates of Penicuik, Dryden, and Loganbank in the county of Midlothian. The minerals on these estates were of great value and large extent, and the leases were all of long duration. After the company had expended upwards of £50,000 in workmen's houses, water-works, railways, and other preparations, they, in March 1877, commenced calcining the ironstone raised from the estate of Penicuik at a point on that estate situated near to where it inarched with the estates of Glencorse and Belwood, the properties immediately to the north-east of Penicuik estate. The bing erected at this spot continued to burn until the end of April, emitting during that period considerable quantities of smoke. The Eight Honourable John Inglis, the proprietor of Glencorse and Belwood, through his agents, complained to the company that the result of the smoke from their calcining bing was to injure his plantations on these estates, and called upon them to desist. The company having, however, during the summer of 1877, constructed another bing on the same site, and also prepared other bings at no great distance, he, in October 1877, presented a note of suspension and interdict in the Court of Session against these bings being ignited. On 8th October interim interdict was granted. The Shotts Company lodged answers to the note, and on 27th November the note was passed and the interim interdict continued, and a record made up between the parties. A proof was in due course taken by the Lord Ordinary (Young), after which the Shotts Company, in March 1878, lodged a minute, in which they stated that " it was, and had always been, their intention to confine their calcining operations, in conformity with the usual custom, to the winter months, and that they hereby undertake to confine their calcining operations at the place mentioned in the prayer of the note of suspension and interdict to the months of November, December, and January in each year."

The proprietor of Glencorse thereafter lodged a minute, in which, in respect of the above minute of the company, he stated that he no longer pressed for interdict, but reserving all claims for damages, past and future, from calcining, and also reserving his right to apply for interdict against the company calcining during the months to which they now restricted themselves should the calcining become injurious to his property or a nuisance to himself.

On 12th March 1878 the Lord Ordinary (Young), " having considered the case, with the proof, and the minutes Nos.44 and 51 of process, in respect of the undertaking of the respondents by their minute No. 44 of process, and that in consideration thereof the complainer does not now ask for interdict," recalled the interim interdict, found it unnecessary to pronounce any decree on the merits, and found the company liable in expenses.*

* " Note.-At the close of the proof I thought it proper, because it might be useful, to express the impression which I had, first, that the calcining which had taken place in March and April was contrary to custom and injurious to the complainer's property; and second, that the calcining in what were called the dead months of the year (November, December, and January) being the customary season for that operation, might be practised without injury (of the nature of a nuisance) to the complainer's property. Acting on the suggestion

1008 CASES DECIDED IN THE [fourth series.

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

The Shotts Company thereafter proceeded to calcine ironstone in November and December 1878, and January 1879, at the original place • called Incline No. 1, at another place at some distance therefrom called Incline No. 2, and at a third place at a still greater distance called the New Hearths at Mauricewood. In November and December 1879, and January 1880, they calcined at Incline No. 1 and at the New Hearths, and from 3d January till 11th March 1880 they calcined at Incline No. 2.

The proprietor of Glencorse, finding, as he averred, that his plantations were being greatly injured by the continuation of the calcining, raised, on 30th October 1880, an action of declarator that the Shotts Company had illegally calcined ironstone to his nuisance, and for interdict against their calcining on any part of the Penicuik estate within two miles of the pursuer's lands.

In his condescendence he set forth the procedure in the note of suspension and interdict, and averred that the injury to the plantations had greatly increased, and that unless calcining was stopped the whole of his trees would be destroyed, and the amenity of his estate as a residential property be entirely sacrificed.

The Shotts Company lodged defences, in which they denied that the injury to the plantations complained of was caused by calcining. They also averred there were many mills and other factories in the neighbourhood of the pursuer's property. They also stated that their calcining operations were conducted in the ordinary manner, and if such operations were put a stop to the iron industry of the country would suffer serious injury, and its development would be practically arrested. They also offered to pay any damage which the pursuer could establish that he had suffered through them.

The pursuer pleaded;-The pursuer is entitled to decree of declarator

implied in the expression of my impression, the parties have lodged the minutes Nos. 44 and 51 of process, which supersede the necessity of further controversy except on the question of expenses. On this question (having heard counsel) I am of opinion that the respondents must pay expenses. It was explained during the proof, and then for the first time, that the respondents recognised a custom against calcining in spring and summer, or except during the three dead months of the year (no doubt because of the probably injurious effects on vegetation in the vicinity), and that their calcining in March and April was exceptional and accidental. The present record gives no such explanation, and suggests no limitation of season for calcining. On the question of actual damage or not from the calcining in March and April the evidence is conflicting, but of the tendency of calcining at that season to damage vegetation, and especially trees, there is, on the evidence, no doubt, and to calcine then is admittedly contrary to custom. I must, therefore, hold that the complainer had reasonable cause of complaint, and his resort to the Court has been successful to the extent of putting a restraint upon the respondents, by their own voluntary undertaking given after the proof, and with which he is, I think, properly content, not to calcine except during the months of November, December, and January.

" I introduce no reservations into the judgment, because I think it unnecessary. The case before me involves no claim of damages, and no otherwise as regards the future, than that the respondents undertake to confine their calcining operations to the months of November, December, and January. The parties by their minutes have only enabled me, without further argument, to give effect to the opinion which I had formed (prima facie) on hearing the evidence, that the respondents ought to be restrained from calcining in the other months. The complainer is content with their undertaking. What may be the result of the respondents' use of the liberty which they retain, or what rights or remedies may thereupon arise to the complainer, cannot be now considered or be affected by what is now done."

vol. viii.] COURT OF SESSION, &c. 1009

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

and interdict as craved, in respect that the operations complained of are wrongful, illegal, and are to the nuisance of the pursuer.

The defenders pleaded;-(2) The operations complained of being law- ful, the defenders should be assoilzied. (4) The operations complained of not being to the nuisance of the pursuer, the defenders should be assoilzied. (5) The pursuer does not suffer, and has not sustained, damage entitling him to any of the decrees concluded for. (6) Separatim, no ground is alleged or exists for the delineation of two miles libelled, and the prohibition thus concluded for is uncalled for and unnecessary.

A proof was allowed, and evidence led at great length. The result of the evidence, which was in many instances very conflicting, may be shortly summed up as follows :-

Under the leases of minerals on the Penicuik estate the Shotts Company were taken bound not to carry on any of their operations within 150 yards of any feus granted on that estate or of any dwelling-house Or farm-steading, or on any land tinted brown on a plan signed as relative to the lease. The effect of these restrictions was that operations could not be carried on except at a very considerable distance-about two miles-from Penicuik House and the policies and plantations round it. Under the lease of Loganbank minerals the tenants were bound not to sink pits, or carry on any surface operations on that estate at all.

The part of the estate of Penicuik where the ironstone was brought to the surface, and on which, in immediate proximity to the pit-heads, the calcining bings were placed, was a narrow strip, about 300 yards wide, running between Glencorse, Belwood, and Mr Cowan's estate of Beeslack, and the bing at Incline No. 1 was only a few yards from the march of Glencorse. The other bings-Incline No. 2 and the New Hearths-were situated at a greater distance from the march, but neither further than 1000 yards therefrom.

The pursuer examined a number of witnesses, foresters and others, who all spoke to the good and satisfactory state of the plantations on Glencorse and Belwood prior to 1876, when the calcining commenced, and to the great falling off in the strength and appearance of the trees and plantations since that date. The symptoms of the diseased trees were stated by these witnesses to be clearly traceable to the effect of the sulphurous fumes from the bings. Other witnesses were adduced by the pursuer, who spoke from experience of the effect of similar fumes in other parts of the country, and stated that what was complained of here was, according to their experience, the result of calcining.

The defenders, on the other hand, although unable to bring forward any contradictory evidence as to the state of the plantations before 1876, adduced a number of witnesses, who stated that the condition of the trees was exactly what was to be expected from the want of draining, overcrowding, and injudicious treatment of the plantations. It was also proved that the seasons after 1876 had been exceptionally wet and cold. These witnesses also denied that the symptoms were such as resulted from smoke from calcining bings. One fact greatly relied on by the witnesses for the defenders in support of their view was, that not only were trees at a greater distance suffering while those nearer the bings remained comparatively uninjured, but that in some instances the injury was on the side of a tree farthest from the bing.

The pursuer had caused " smoke plans " to be made shewing the course which the fumes from the bings had taken during the periods of calcining. From these it appeared that the prevailing wind was south-westerly, and that the fumes were carried from that direction into the plantations.

The ore calcined was proved to contain only 1 per cent of sulphur, and


1010 CASES DECIDED IN THE [fourth series.

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

of that it was estimated only 25 per cent was given off during calcination., The proportion of sulphur was thus no greater than in ordinary coal.

The scientific witnesses for the pursuer-Professor Dewar and Dr Dittmar-made various experiments, with a view to supporting their contention, that the injury to the trees was the result of sulphurous fumes. One of these was by what was called the "rain test." Glass bottles, carefully protected, were placed at various spots on Glencorse and Bel-wood, and the rain water collected in them was subjected to analysis. A sulphate was discovered in this water-not free sulphuric acid. Professor Dewar and Dr Dittmar, however, accounted for the sulphate, by saying that it was composed by the free sulphurous or sulphuric acid combining with the soda in the bottles, which were new. They had not, however, ascertained, whether what they discovered was sulphate of soda.

The scientific witnesses for the defenders maintained that the sulphate found was sulphate of ammonia, which was formed by the sulphuric acid as it was set free at the bing, combining with the ammonia also set free during calcination. Sulphate of ammonia, it was stated, would not be injurious to vegetation.

Dr Dittmar deponed to another experiment made by him, namely, subjecting a number of trees, similar to those in the Glencorse plantations, in a small greenhouse, to fumes containing sulphuric acid in the proportion of five volumes to a million volumes of air. These plants were so exposed for about a month, at the end of which time it was found that about one-fifth of them were damaged by the fumes, and, to all appearance, in the same way as the trees in the plantations.

The pursuer's scientific witnesses made a further attempt to ascertain the presence of sulphurous or sulphuric acid in the smote and air, by means of what was called the " iodine test," the result of which was to shew that sulphurous or sulphuric acid was present in considerable quantity.

The defenders' scientific witnesses endeavoured, by analysing the leaves of trees in the plantations, to ascertain whether sulphur was present in them, but failed to find any unusual quantity.

A considerable part of the defenders' proof was directed to the point that in no case could the fumes be dangerous beyond 400 yards, whereas the places where great mischief was said to have been done here were as far as 1000 or 1100 yards from the bings. It was proved that there was a large number of paper mills, coal mines, and other manufactories in constant operation, in the valley of the Esk, and in the immediate neighbourhood of Glencorse, and that these had been in existence for many years.

On 18th March 1881 the Lord Ordinary pronounced this interlocutor:. -

" Finds, declares, and decerns in terms of the declaratory conclusions of the libel: Further, interdicts and prohibits the defenders, in all time coming, from calcining ironstone, or iron ore, or burning blaes, on any part of the said lands of Penicuik, within one mile of the pursuer's said lands, and decerns: Finds the pursuer entitled to expenses." •

* " Note.-This case has "been conducted on both sides with great anxiety and ability.

" When the Lord Ordinary came to hear the parties on the evidence it was admitted that there was no question of law between them. The Lord Ordinary has only to decide a question of fact. It is this-viz., whether the pursuer's estate has been injured by the calcining operations carried on by the defenders. The pursuer conceded that he must establish a substantial injury. The defenders admitted that if he did so he was in law entitled to the remedy which he sought.

" The evidence which has been led is very voluminous and very conflicting.

vol. viii.] COURT OF SESSION, &c. 1011

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

The Shotts Company reclaimed, and argued;-The pursuer had failed in the proof. It was clearly proved by the evidence for the defenders

The Lord Ordinary does not propose to examine it in detail. He will only refer to the more salient points, and state the considerations on which his de- cision is based.

" The defenders began to calcine in March 1877, and they have since continued to do so. They have three places-viz., No. 1 Incline, No. 2 Incline, and the New Hearths. At the first and third of these places the burning has been limited to the winter months, with the exception of the year 1877, when it began at No. 1 Incline on 13th March, and finished on 28th April. At the second it continued into spring, during the years 1877, 1878, and 1880.

" Incline No. 1 is situated very near the march of the lands of Glencorse, being not so much as 200 yards to the south of them. Incline No. 2 is close to Belwood. The New Hearths are about 1000 yards to the south of Glencorse, though considerably nearer Belwood. They are to the south-east of that estate. The pursuer complains chiefly of injury to the lands of Glencorse, though he also alleges that Belwood has suffered.

" The case of the pursuer is, that prior to 1877 the trees on his estates were remarkably thriving; that the first appearance of injury to the plantations was in the summer of 1877, immediately after the calcining in the spring of that year; that the injury has increased, and is increasing very rapidly ; and that it is wholly due to the calcining. A large number of witnesses of skill support this view, and say that the injury from calcining is of the most marked and obvious kind.

" As the Lord Ordinary understood them, the defenders did not dispute that the plantations went back in 1877, but attributed that fact to the cold and wet seasons of 1876 and 1877. "With respect to the coniferæ, which were the most injured, they say that their condition was due to over-crowding, want of draining, bad soil, and climate, and planting under deciduous trees, especially beeches. But they allege that, while such decay as exists is due to these causes, the plantations have within the last two years improved on the whole. They bring a great body of witnesses in support of their averments. These witnesses depone that there is not the slightest trace of injury from calcining.

" In this state of the evidence it is necessary to examine the reasons why the calcination of ironstone may be injurious to vegetation.

" The raw ore which is calcined by the defenders contains about one per cent of combustible sulphur. This substance, when burnt in the open air, gives off suphurous acid, which gradually becomes sulphuric acid by the absorption of another atom of oxygen. It is not disputed that sulphurous acid and sulphuric acid, if present in sufficient quantity, are injurious to vegetable life. The question is, whether these acids, or either of them, reach the pursuer's land in such quantities as to injure vegetation.

" That the smoke from the bings comes upon the pursuer's lands is not capable of dispute. This has been matter of careful observation. Plans based on these observations have been made by Mr Blyth, shewing the number of times the smoke has come from the bings, and the distance it has reached. A reference to them will shew that the pursuer's plantations have been very frequently subjected to the influence of the smoke, and particularly at those places where injury has been observed-viz., Sergeant's Croft Plantation, Pheasant Corner, and Temple "Walk. It is proved, too, that the smoke, if the weather is calm, hangs about the places which it has reached, and takes a considerable time to dissipate.

" But does the smoke contain or carry with it the acids in destructive or injurious quantity 1 Experiments have been made to test this point; but a very important one has been so conducted as not to give, by itself at least, perfectly reliable results. The Lord Ordinary refers to what has been called the rain test. The rain-water was collected in monthly quantities at six different stations in order to determine whether there was an increase of sulphuric acid in the air when the bings were burning. It is obvious that this experiment could never

1012 CASES DECIDED IN THE [fourth series.

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

that what these trees were dying of was not poisoning by sulphurous fames, but of overcrowding, want of draining, exposure to wind, "bad ' seasons, and such natural causes.

shew the maximum increase, but it gave some very remarkable results, which are tabulated at p. 109 of the evidence. What may be called the normal amount never exceeded five parts of sulphuric acid in one million parts of water. But at all the stations there was at times a notable increase; and at some an increase by more than five times-as, for example, at Sergeant's Croft and Pheasant Corner.

" The observers, Professors Dewar and Dittmar, draw the inference that the increase was due to an increase of free sulphuric acid in the air. But the soundness of the inference is not free from doubt, and it appears to the Lord Ordinary that the doubt could have been obviated had the experiment been conducted with more exactitude. If the acid was free in the air, in which state it is alone injurious, it would enter the collecting vessels as a free acid, and the Lord Ordinary does not see why an acid reaction could not have been obtained, which would of course have been conclusive. But, unfortunately, the vessels which were used were new glass bottles, of an ordinary or inferior kind of glass, and the glass contained soda, which would be taken up by any free sulphuric acid which entered the bottle. The liquid was therefore a solution of a sulphate. But of what sulphate ? Professor Dewar assumes rather than proves it to be a sulphate of soda 128 F. If it were, the soda could only come from the bottle, and the acid must have been free in the air; for the air would not furnish any material addition of soda. But whether it was sulphate of soda has not been conclusively determined.

" It is said that the increase of sulphate might be and was probably due to an addition of sulphate of ammonia. Professors Dittmar and Dewar did not think that this was possible, and hence they did not determine the base of the sulphate. But the scientific witnesses for the defenders say that it is likely that a large portion of the sulphurous or sulphuric acid would combine with ammonia during the process of calcining, and hence that the air would contain an addition of sulphate of ammonia which would not do any harm. They do not, however, pretend that no sulphurous acid is given off in a free condition. Dr Voelcker computes it to amount to a quarter per cent of the entire sulphur.

" Another experiment was, however, made to determine whether there was free acid, and no objection seems to be stated against it, either as regards its theory or the manner in which it was carried out. It is detailed in the evidence of Professor Dittmar at pp. 1ll and 112, and it shews a marked increase of acid at various places, and, as the Lord Ordinary understands, of free acid for the theory of the experiment was to introduce a re-agent, in order to combine with such sulphurous acid as might exist in the air, and thence to determine the amount of the acid. It may be observed, with respect to the experiment made on 17th December 1880, that the amount of free acid found at Sergeant's Croft was 2.8 volumes per million volumes of air; and the note of the 'smoke observer' for that day is ' smoke at No. 1 Incline, Sergeant's Croft Plantation, Pheasant Corner, and Loganbank Grounds,' The evidence leads the Lord Ordinary to believe that the acid was present in such quantity as to injure; indeed it is not said by any one that such a proportion of acid to air as is indicated in these experiments would not be injurious. The Lord Ordinary may further notice the collection of water from the forester's house, and from a birch tree in Sergeant's Croft, which go a long way to shew the dissemination of sulphuric acid in injurious quantity.

" One other test may be referred to of a practical kind. Mr Dupré, a witness for the defenders, says, that if ' discomfort was at once felt by an ordinary observer the fumes that caused that discomfort would be injurious to vegetation.' -See Proof, p. 280. The case has occurred, and has been spoken to by several witnesses. The Lord Ordinary may refer, in particular, to the evidence of J. H. Dickson, p. 96.

" These, later experiments and observations seem to the Lord Ordinary to

vol. viii.] COURT OF SESSION, &c. 1013

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

The onus was on the pursuer to shew that there was sulphur poisoning present, and he had failed. The evils he complained of were to be found in great force at distances at which the fumes must be held to have been quite innocuous. But even had some damage been proved the pursuer was not on that account entitled to the interdict craved. This was not a case of a manufactory being suddenly commenced in a rural district. The whole district was, and had been for many years, a manufacturing and mining one. Nor was it a case of selecting a spot where least damage would be done to their landlord and most to their neighbours. Nor were they carrying on any works which were not indigenous to the district. "What they were doing was merely using the mineral products of the estate in the only way in which they could be used. Proprietors were not to be allowed to stand upon their extreme rights when what they were finding fault with was an industry not uselessly thrust upon them, but necessary to develope the resources of an adjoining property.1 It was not sufficient that the pursuer should establish that some injury had been done to him; he had to make out that suffi-

prove that sulphurous fumes reached the pursuer's lands in a quantity sufficient to injure. But they do more. They seem to remove any doubt which attaches to the rain test, and to shew that the notable increase of sulphates was due to the increase of free acid, and not to sulphate of ammonia. Hence, in the opinion of the Lord Ordinary, it is proved that the calcining operations of the defenders were capable of injuring the pursuer's lands, and he is therefore disposed to accept the evidence of those who say that they did injure them, rather than the evidence of those who say that they did not. The Lord Ordinary may say that he places much reliance on the evidence of Dr Angus Smith, whose experience and position shew him to be a very competent observer, and whose testimony is very decided in favour of the pursuer.

" The defenders have, no doubt, some strong points in their favour. They have given evidence to shew (1) that the calcination of ironstone, containing no more combustible sulphur than that which is calcined by the defenders, is not injurious to vegetation (see the evidence of Dr Sloan and Dr Lawrence) ; and (2) that when an ore containing much more sulphur is calcined, the injury does not extend beyond 300 or 400 yards at the most-(See the evidence of Professor Stockhardt). But these are isolated instances, which have not been examined on their own merits, and though very important, cannot, it is thought, outweigh the evidence which the pursuer has brought in this case.

" But they further found on the fact that the trees and hedges nearest to the bings have not suffered. It is certainly natural to suppose that the nearest trees and hedges would suffer first, and it is singular that this is not so in the present case. But this may be explained on the ground that the fumes have been carried past them or over them. It is impossible to speculate with any certainty on the height to which the fumes would rise, or the places to which they would be carried with destructive effect, or on the causes which may explain why some trees may resist while others fail. The circumstance founded on by the defenders is no doubt much in their favour, but it cannot overcome what the Lord Ordinary holds to be the positive evidence of the presence of injurious fumes in the pursuer's estates, and the injury resulting therefrom.

" It remains to consider how far the prohibition by the Court against calcining is to extend. This must necessarily be fixed in a somewhat arbitrary manner. But if the view which the Lord Ordinary has taken of the evidence be correct he thinks that it would not be safe to put the limit at less than a mile."

1 St Helen's Smelting Co. v. Tipping, July 5, 1865, 11 Clark's H. L. Cases, 642, and cases there cited; Salvin v. North Brancepeth Coal Co., July 14, 1874, L. E., 9 Chanc. App. 705; Dewar v. Fraser, Jan. 20, 1767, M. 12,803; Ral-ston v. Pettigrew, July 29, 1768, M. 12,808 ; Bell's Prin. (Guthrie), sec. 9, and cases there cited.

1014 CASES DECIDED IN THE [fourth series.

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

cient had been done to constitute a nuisance. This he had failed in. There had been no attempt even to distinguish between injury resulting from natural causes and injury resulting from smoke damage. Interdict should not be granted in this case, as the operation was a natural and reasonable one for the purpose of making use of the property, and of turning it to the best account.1 Any injury suffered was merely trifling compared to the beneficial results enjoyed. The degree of purity of atmosphere to which any person was entitled was a question of place and circumstances, and in this case the neighbourhood was already a manufacturing one, and the air was already greatly polluted. The smoke from the bings was ordinary coal smoke, and the same results would have followed from the erection of dwelling-houses. At all events, if it was held that substantial injury was done by these operations the true and just solution of the question was to take the case as one of damages, and not as a case for interdict. The defenders were willing to pay any damage which could be ascertained to have been caused by them.

Argued for the pursuer;-An actionable nuisance had been clearly established on the evidence. The plantations had been perfectly healthy up to the date of the commencement of the calcining, and after that date they had become unhealthy and diseased in a manner which it was utterly impossible to attribute to natural causes. The smoke was proved to enter the woods and to lie there in huge heavy masses, and the trees became unhealthy and shewed all the well-known symptoms of poisoning by sulphur. The nuisance being thus established, it was no answer to say that the calcining was carried on in a proper and convenient spot, and was a reasonable use of the land.2 Interdict was the proper legal remedy. The ordinary rule of law was sic utere tuo ut alienum non Iædas, and that applied here. If the Shotts Company could not carry on their works without injuring their neighbours' trees then they must desist.3

At advising,-

Lord Justice-Clerk .-The Lord Ordinary has decided this case on the footing that it only raised an issue of fact. The proof was led before himself, and he has returned his verdict on it in favour of the pursuer. "We have never held ourselves precluded from reviewing the conclusion arrived at by a Lord Ordinary in such circumstances, even although we were not prepared to hold it contrary to the evidence; but in considering such a verdict on an issue of fact we must, of course, attribute the greatest weight to the opinion of the Judge who took the evidence, and saw and heard the witnesses, and I should be slow to alter the result expressed in his verdict, unless I thought the overbalancing elements material.

In the present case we have a voluminous proof, and have listened to an oral argument of great ability, extending over several days. After studying the

1 D'Eresby's Trs. v. Strathearn Hydropathic Co., Oct. 21, 1873, ante, vol. i. p. 35; Comyn's Digest, vol. i. p. 420.

2 Hole v. Barlow, May 5, 1858, 27 L. J., C. P. 207; Bamford v. Turnley, July 12, 1862, 31 L. J., Q. B. 286; Walter v. Selfe, April 16, 1851, 20 L. J. Chanc. 433.

3 Kerr v. Earl of Orkney, Dec. 17, 1857, 20 D. 298, 30 Scot. Jur. 158; Duke of Buccleuch v. Cowan, &c., Dec. 21, 1866, 5 Macph. 214, 39 Scot. Jur. 591; Robertson v. Stewart, Dec. 11, 1872, 11 Macph. 189, 45 Scot. Jur. 115; Caledonian Railway Co. v. Baird & Co., June 14, 1876, ante, vol. iii. p. 839; Fraser's Trs. v. Cran, June 1, 1877, ante, vol. iv. p. 794; Fletcher v. Rylands, May 14, 1866, L. E., 1 Exch. 208, and July 17, 1868, L. E., 3 E. and I. App. 330; Rankine on Landownership, p. 313, cases there.

vol. viii.] COURT OF SESSION, &c. 1015

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

printed papers with care, and giving my best attention to the pleadings from 2 the bar, I have formed the opinion, not, I own, without difficulty, but ultimately without hesitation, not only that the view of the Lord Ordinary is not opposed to the weight of the evidence, but that the result which he has reached expresses the verdict which on these materials I should have pronounced.

In explaining the general impressions on which I found this conclusion or verdict in point of fact it is neither to be expected nor desired that I should analyse the evidence in detail, and this is the less necessary that, while most of the evidence is weighty, and much of it is apparently conflicting, the material points of concurrence and divergence are marked by broad features, which admit of being easily arranged and illustrated.

The foundation of the pursuer's demand is very simple. He is the proprietor of the estate of Glencorse, in the county of Midlothian, a property which is said to be nearly 1000 acres in extent, and to have a rental of over £1200 a year. He says that for a great many years he has paid great attention to the ornamental plantations on his property, which cover a considerable area, and contain many good specimens of the rarer pines. Until 1877, he represents these woods to have been uniformly healthy and flourishing; but in that year the defenders, the Shotts Iron Company, who hold mineral leases of the ironstone in adjacent lands, commenced the process of calcining the minerals in open bings and heaps, at three points in an outlying corner of the estate of Penicuik, and bounded mainly by the lands of the pursuer, and those of Mr Cowan of Beeslack. The result is said to have been that, in the summer and autumn of 1877, a marked change occurred in the state of the woods. While they had been previously healthy, and in good order, the trees, especially the conifers, began to go back, and to exhibit all the symptoms, which he alleges to be well marked and notorious, of poisoning from the fumes of sulphur disengaged in the process of calcining. The pursuer accordingly raised an action of interdict against the Shotts Company, to have the process prohibited at the places where it had been carried on. This action was terminated in March 1878 by a compromise, by the terms of which, while both parties reserved their respective rights, the Shotts Company undertook to carry on calcination only in the months of November, December, and January.

It is not said that the defenders have violated this agreement; but the damage, so far from having been abated, is said to have increased as calcination proceeded; and on these general allegations the present action for declarator and interdict has been presented.

In defence, the defenders deny entirely that any damage or injury whatever has been done to the pursuer's property by the calcination. They say that the amount of sulphur disengaged in the process is so slight as to be absolutely innocuous, and what there is, is in the form of a sulphate, for the most part, which is not injurious to vegetation. They allege, further, that the parts of the pursuer's plantations said to be most injured are so far from the calcining bings as to be beyond the influence of the fumes; and that trees said to have been injured in some, if not in many cases, are near to, or in the neighbourhood of trees upon which the smoke has had no effect: and they specially plead that the decaying state of the pursuer's woods is owing to a combination of natural causes, under which they were certain to be unhealthy, and to decay.

I do not of course mean to go in detail through the testimony by which these

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conflicting views are maintained; but I shall shortly indicate the impression which the evidence on each side has made on me.

First, as to the pursuer's evidence. He has proved, as I think, conclusively, that, up to the period when this process of calcining commenced, these woods were healthy and flourishing. This seems to be clearly proved by four witnesses- the pursuer ; Milroy, his forester; a man of the name of Robertson, who took a superintendence of the woods; and by the person in charge of the woods on the adjoining property of Beeslack. Their evidence is quite distinct-quite consistent-and altogether uncontradicted by any one who knew the woods prior to 1877, when calcining was commenced. In truth, no witnesses who knew the woods before 1877 have been called on the part of the defenders. The same witnesses for the pursuer also testify to the immediate and marked change for the worse which took place a few months after the calcining commenced in 1877, and this has continued and increased ever since.

The pursuer has also established, by a large and consistent body of testimony, that the appearances which thus suddenly were presented by his plantations were the distinctive results of sulphur fumes. These indications are now familiar to all acquainted with the ironstone districts, either in Scotland or in England they are fully described by the witnesses, and were at once recognised by them as being the characteristic signs of injury by the fumes of sulphur. The substance of the evidence of these witnesses is to the effect that, as matter of fact and experience, trees will not grow within the reach of the fumes which are the product of the open calcination of ironstone, or, at least, that these fumes are fatal to healthy arboreal life. The experience of the " black country " in England, of the effect of the process in the neighbourhood of Durham, and especially of similar bings or burning heaps in the vicinity of Dairy, in Ayrshire, is said to demonstrate that, within the range of their operation, hardly a healthy tree is to be found.

It is farther sufficiently established by the pursuer's evidence, that, in point of fact, sulphur is evolved in this process of calcination in a quantity sufficient to affect, and in many instances to destroy, vegetable life, if subjected closely and persistently to their effects. On the general aspect of this evidence, I am of opinion that, if taken by itself, it is conclusive of the main allegations on which the pursuer's action is based.

One element in this proof weighs very much with me. I mean the fact, which I must hold as proved, because there is no evidence to the contrary, that these woods presented a healthy and vigorous appearance before the calcination began, and commenced to shew symptoms of decay immediately thereafter. That fact, to my mind, disposes of a large amount of criticism, for, if the distinctive appearances of sulphur were absent until the calcination began, and developed themselves for the first time a few months afterwards, no amount of theoretical opinion will avail to avoid the conclusion, which common sense must suggest, that the sequence of events in this instance indicates cause and effect. The evidence led by the defenders must, therefore, be considered and estimated in the light of this significant and suggestive fact.

I shall proceed to consider the defenders' evidence in two or three of the more important details to which it relates. I commence with one view which has been very anxiously elaborated, and which occupies a large space in this volume of evidence,-I mean the allegation that the injury to the pursuer's woods is the result of the operation of natural causes. It is alleged by many witnesses of

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character and skill that these causes are numerous and varied. Bad soil to begin with-inclement exposure, imperfect drainage, want of sufficient thinning in . some places, injudicious thinning in others, are said to have tended to the general decay throughout all the plantations. Some of the pines have been planted under deciduous trees, where it is known they cannot thrive. Others on the site of former woods, where the roots of the former occupants of the soil hinder the young growth. Hence a fungus has attacked the roots, and a fly has devastated the leaves. In short, no physical calamity to which growing timber, especially pine, is subject, is, according to these representations, absent in the plantations of the pursuer.

The picture thus drawn by the defenders' witnesses, which I have not over-coloured, removes from the points of controversy one of the most important. It proves conclusively the injury which the trees have sustained, whatever the cause of it. If the condition of these plantations be as the defenders represent, they must have been the subject of some injurious influence, from whatever quarter it came. So far the evidence tends to corroborate the case of the pursuer as regards the condition of his woods in and subsequent to 1877. But when we come to consider this catalogue of causes, as accounting for the physical appearance of the woods, I must own that the evidence has not impressed me favourably, and is far from carrying conviction. It proves too much, and, so far from solving the required problem, is inconsistent with its conditions.

I do not doubt that, in a greater or less degree, all these injurious influences are to be discovered within the Glencorse plantations; and, I suppose, the same thing might be said of any wood of young pines in any district of the uplands of Scotland. Overcrowding and exposure to wind, planting under deciduous trees, or on the site of former plantations, are familiar elements in such parts of the country. Probably there is not a stretch of planting on the sides of the Pent-lands in which they are not to be found, in some degree, even under the best management. It might also be assumed, but that is by no means so certain, that the appearances they are capable of causing in individual specimens have some particulars in common with those created by sulphur fumes. But although these things were granted, the causes in question are totally incapable of producing the result of the origin of which we are in search. All these tendencies are of gradual operation, as indeed the witnesses say; and although I am myself well satisfied that the conclusion to which they advance is only reached by the device of substituting the general for the partial (and the large amount of skilled and independent testimony adduced by the pursuer leads to that conviction), it is clear, on their own shewing, that these causes could not have produced the phenomena in question. Supposing that any one of them, or that all combined, might, in process of time, have converted the flourishing woods described by the pursuer into decaying and backgoing timber, they never could have combined to produce this result within the same three months. That all these different and unconnected causes of decay, which had never exhibited their presence before, were simultaneously stimulated into activity in the summer of 1877, it is impossible to believe, if we believe the uncontradicted testimony of those who were familiar with these plantations up to the beginning of that year. For that sudden change, and those unwonted indications of decay, we have one cause, and one cause only, established in the proof. It is an agent of the existence of which there is no doubt, and it is one which only came into operation for the first time shortly before these appearances began to shew themselves. I remain,

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therefore, entirely unconvinced by this long and elaborate mass of evidence, and what I think its untrustworthy features throw an unfavourable light on the rest ' of the speculative testimony adduced for the defenders.

If, as has been maintained, the effect of the hard winter of 1876-77 was the source of this damage, it is but reasonable to think its operation should have extended all over Scotland; but we have no evidence to that effect. The illustration drawn from one of the woods of Penicuik is to my mind too vaguely proved, and altogether insufficient to neutralise the views that I have now expressed. I do not give much weight to, and place but little confidence in, that testimony.

Secondly, It is maintained by the defenders, and much insisted on, that these woods do not exhibit the general aspect known to be caused by the operation of sulphur fumes on vegetable life; and, in particular, that they do not exhibit one peculiarity which is found in these cases, namely, that the injury does not diminish in proportion to the distance from the bing; that trees which are near escape, while those at a greater distance are said to be injured.

Now, while it is clearly proved by the witnesses for the pursuer that, in general, the amount of injury does diminish in proportion as the distance from the bing increases, it is also true that there are many individual positions in which the vegetation has escaped, which are nearer to the bings than some of the trees which have suffered. But this arises from the operation of well-established laws. These fumes do not travel along or over the earth in a broad horizontal line, but generally in a close and often a narrow column, of varying altitude, according to the density of the atmosphere. They follow the direction of the prevalent wind, but the places which they assail are determined by many causes which it is difficult to trace. One of the pursuer's witnesses, Anderson, says-" All persons who know about these fumes know that they swim along the atmosphere in a body, as a rule, and they carry death and destruction along with them. The trees on the outside suffer worst. But if that is persevered with, it eventually kills the whole breadth of the plantation on which it strikes; and that is what I call a vista." (54, 55). In the same way Slater says-" (Q.) Do you find, in your experience, that the fumes will pass through a plantation in a certain direction, and leave a distinct mark of the progress of the fumes? (A.) Yes. (Q.) Passing through it like an avenue ? (A.) Yes," And one of the defenders' witnesses, Mr Stead, says, in relation to the timber near the bings in the county of Durham,-" Of course the surface of the ground in the district has something to do with the effect. If the bings are in a valley the trees on the hills round about are more affected than if they were on flat ground, and I should say at a greater distance." In this way it is certain that proximity is not and cannot be an invariable rule, but it is modified by the breadth and altitude of the column, the configuration of the ground, and the nature, condition, and health of the plant affected. Allowing for these modifications, I think the evidence does establish that at Glencorse, as elsewhere, the injury from the fumes is greater the nearer the plant affected is to their source.

The only question on the evidence which I have found attended with difficulty relates to the distance at which these fumes are injurious. The defenders have collected a considerable body of evidence in order to establish that the sulphur fumes evolved from these calcining bings cannot travel to the distance relied on by the pursuer, at least with the noxious effect ascribed to them. I have considered this question with considerable anxiety and care, because the evidence

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led for the pursuer on this point is defective in precision, and that on the part ] of the defenders has at least apparently the merit of being pointed and specific.

It is said by the defenders that the proper range of sulphur fumes emitted by calcination from open heaps does not extend beyond from 200 to 300 yards, at least as far as relates to their injurious effects. Now, the point at which the greatest amount of damage is said to have been done in the Glencorse woods by these fumes, namely, the point named in the proof Pheasant Corner, is at least 500 yards from bing No. 1, and over 1200 yards from bing No. 2; while the plantation at Flotterstone is considerably more distant. From this the defenders conclude that the trees cannot have been injured at these points from the sulphur fumes.

I observe, however, in the first place, that the defenders' evidence on this head is not quite so conclusive as at first sight appears. It is true that Dr Vœlcker asserts that none of the Glencorse trees were injured by the fumes. Dr Aitken says that the effects of the fumes seem to disappear at 200 yards, and several others of the defenders' witnesses concur with him, Dr Odling found no trace of them at 400yards. But, on the other hand, Mr Vicars Thomson says the maximum distance at which the effects are even visible is from 400 to 500 yards; and Mr Ford says that " the fumes may have a slight effect probably to the distance of half a mile, or about that; but it is so slight that it is scarcely distinguishable." Thus, as it stands, this testimony falls far short of demonstrating even the improbability of these fumes operating injuriously at 1000 or 1200 yards; and in regard to the analogies drawn from specific localities, such as Durham or Dairy, something may depend on the difference between level ground and the breezy uplands at the foot of the Pentlands. But the opposing evidence seems to me sufficient to displace any such conclusion. In the first place, such reasoning must yield to the fact, if it be a fact, that the trees at the distance in question shewed what I must hold to be clear signs of the effect of the fumes, for these were observed at Flotterstone, which is considerably beyond the range in question. In the second place, the description given by the pursuer's witnesses of the results observed by them in calcining districts seems to exclude the opinion that the effects of the fumes are limited to such distances. Further, it seems well established that the columns of smoke were seen all over the estate of Glencorse, and that the odour of sulphur which they bore along with them was sensible to quite as great a distance as the pursuer has alleged; and Dr Odling and Mr Dupré tell us that where the odour is perceived the presence of sulphur to an injurious extent may be inferred. And lastly, we have the results of the chemical experiments, with which the Lord Ordinary in his note has dealt in a manner quite satisfactory to me. With these I do not propose to deal in detail, but content myself with making one or two remarks on Dr Dittmar's and Dr Dewar's experiments with rain-water, which, although one flaw in the process prevents them from amounting to demonstration, are yet important contributions to the solution of this question.

These experiments were conducted at all the principal points at which injury from the fumes was alleged, and they certainly prove the presence of sulphur at all of them in an appreciable quantity. It is no doubt true that the sulphuric acid in the bottles was not free, but in the form of a sulphate; and it is said that this might have been sulphate of ammonia formed in the atmosphere by sulphurous acid in combination with the ammonia disengaged in the process of calcining, and that, if such were the case, the sulphur reached the stations in a state innocuous to

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vegetation. Now, if the sulphuric acid reached these experimental phials free, the result would have set the question of distance at rest. Unfortunately, the ' chemists did not test the sulphate for ammonia; the theory had not occurred to them, and therefore they have left this point doubtful; but they suggest that the sulphuric acid combined, after reaching the phials, with soda disengaged from the new glass of the bottles, and was therefore free when it reached them. Either theory, therefore, is possibly true, on the chemical evidence, and neither is proved. There is no evidence whatever to shew the amount of ammonia disengaged, or left unconsumed, in the progress of calcining, or to prove that any of it combines with the sulphur, Dr Vœleker professes entire ignorance on the subject; and, although Dr Odling says it has been determined, he does not tell us when, where, or by whom.

But it does not follow that the experiment is to be thrown aside, for it proves that, combined or uncombined, the sulphuric fumes reached the different stations at which these experiments were made; and failing direct evidence as to whether they reached them in a deleterious or an innocuous state, correct reasoning would suggest that we should ascertain the results coincident with their presence.

To take only one illustration. It appears quite clear, from the evidence of Lamont and others, and is not disputed, that the greatest damage done to the trees was about the point named Pheasant Corner, which is said to be 500 yards from Incline No. 1, and 1200 yards from Incline No. 2, as to which it lies in the direct line of the prevailing wind. If, therefore, Dr Dittmar's experiment shews the presence of the greatest amount of sulphur at the point of the greatest amount of damage, it is reasonable to conclude that there is a connection between these facts. Now, Dr Dittmar's tables shew two results,- first, that the amount of sulphur ascertained in the month of February of each year, from October 1878 to February 1881, was largely greater than in any other month, following as it did on the three winter months of calcining ; and, secondly, that in the month of February 1880-three years after the calcining commenced-the amount of sulphur disclosed at Pheasant Corner was the largest ascertained at any point at any time. It is not unreasonable to draw the inference that the sulphur, when it reached this point, was not innocuous.

The only other remark I shall make on the evidence relates to a view pressed on us by the defenders, founded on the fact that healthy trees were found side by side with trees which were injured. But I see no reason to suppose that such influences do not operate on vegetable life as analogous influences operate on animal life. The weaker and predisposed succumb, the stronger and less susceptible for a time resist. So Dr Dittmar found in his greenhouse experiment. Only a percentage of the plants was destroyed, although doubtless, had his experiment continued, all must in the end have perished.

On the evidence, therefore, I come to the conclusion that the injury which the pursuer says he has suffered, and that which he says he has reason to anticipate, have been sufficiently established by the evidence. Of course, there are many points to which I have not alluded, and necessarily could not allude, in this mere summary of the main results. I am also of opinion that these are directly the result of the defenders' operations in the calcination of ironstone close to his boundary. If this be so, I do not doubt that he is entitled to the remedy of interdict His interest is not to be measured even by his present loss. If the view I have taken of the facts be correct, he has to contemplate

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the total destruction of his plantations as ornamental timber. There is no ] reason to suppose that what has taken place everywhere else will not occur here. The conifers, no doubt, being the most susceptible, will give way the soonest; but experience seems to shew that the hardwood trees will follow, and that their destruction also is only a question of time. Against this result I think he has a reasonable claim to be protected.

No question of law was raised before the Lord Ordinary; but we have had from the bar, on the reclaiming note, a long and able argument to shew that, assuming the facts to be as the Lord Ordinary has found them, the defenders have only done with their own property what they were entitled to do, whatever injury they may have caused to the pursuer ; and that these operations, undertaken entirely for their own profit and for that of the proprietor, possess a quasi exceptional character, which ought to protect them from being stopped, whatever obligation of damage their results might infer.

This is, of course, a well-worn theme; but the law on the subject is not doubtful, nor do I think the present by any means a difficult example.

The general rule is, that every one is bound so to use his property as not to injure his neighbour. It is equally certain that this rule may suffer modifications according to the varied considerations of social life. Things which are forbidden in a crowded urban community may be permitted in the country. What is prohibited in enclosed land may be tolerated in the open. Vicinity -close proximity-may make that a nuisance which may cease to be so at a distance; and the habit and practice of the neighbourhood has also some weight in cases of this kind. Nor, in extreme cases, do I doubt that the comparative interests at stake may be taken into view.

But I do not think the facts of the present case make it necessary to apply any of these modifying rules. The simple ground of complaint in this case relates, not to any use which the defenders make of their own property, but to the use which they make of the atmosphere as it passes over them, by injecting into it noxious vapours, which prevent it reaching the pursuer in purity, and cause damage to his property. The law on this subject was fully discussed and settled in the case of a running stream, in the action against the papermakers on the Esk, The analogy of the atmosphere may not be in all respects complete, inasmuch as the rights of riparian proprietors in water-runs are more capable of definition and appropriation than those in the purity of the atmosphere. But in the case of injury to health by polluting the air the regulating principles are precisely the same, and we so applied them in the recent case of Fraser v. Gran, 4 R. 794; and injury to property, although admitting, as I have said, of some qualifications, substantially follows the same rule. The cases relating to brick-burning in urban or suburban districts, several of which have been decided by the Courts in England, were instances mainly of annoyance and discomfort; but the judgment in the case of Bamford v. Turnley, 31 L. J., Q. B. 286, has substantially set the law on that subject on an explicit footing, and the opinion of Baron Bramwell in that case proceeds on principles which are conclusive of the present.

It is true that if we continue the interdict which the Lord Ordinary has granted these mineral lessees may be exposed to inconvenience, and even to loss. But I cannot hold in the present case that this consideration can justify the continuance of the wrong. It was very truly said by Lord Justice James in a recent case, that when large interests are at stake persons should not stand on their extreme rights. I am quite of that opinion, but the sentiment seems

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to tell against the defenders. There is no attempt to shew, on the proof, that the operations of the defenders might not be carried on at other points of the estate of Penicuik, without doing any injury to the pursuer's property, or other conterminous proprietors. The evidence is left a Hank upon that subject, and there are no facts upon which we can come to a conclusion on it. But it is manifest that any difficulty on this head is entirely the voluntary act of the proprietor of the minerals, and the defenders, his lessees. Their lease covers an area upwards of three miles in extent, measuring from the pursuer's boundary, besides the minerals in the adjoining property of Logan Bank. I have looked into these leases, and their provisions afford a very instructive commentary on what the parties to them believed to be the character and effect of calcining. As regards Logan Bank, the defenders are prohibited by their lease to calcine on any part of the lands. By their lease from the proprietor of Penicuik they are prohibited from calcining on more than one-half of the area I have mentioned,-that is to say, on an area of nearly two miles in length; and although the portion on which they are not debarred from calcining extends to more than a mile from the pursuer's boundary, they have chosen to set down these calcining heaps within a couple of hundred yards of the pursuer's property, at points at which the width of the grounds narrows to about 300 yards. But these are voluntary acts. It is certain, at least for anything that appears, that the proprietor of Penicuik could not justify the works complained of on the pretext that he could not carry on the operations elsewhere. Nor do I think he could, by interposing a tenant, and introducing these restrictions into his lease, obtain the full value of his minerals, and save his own woods at the expense of his neighbour. It is not, in my opinion, a reasonable arrangement between landlord and tenant in a mineral lease to exempt practically nine-tenths of the surface of the mineral field, and all positions where such operations might injure the landlord, and to select for these deleterious operations a mere corner close to their neighbour's land, to the prejudice of one to whom they can yield no profit

Lord Young .-The defenders are tenants of the minerals in the lands of Penicuik, belonging to Sir George Clerk, and of Logan Bank, belonging to Mr Maxwell Inglis. The pursuer is proprietor of Glencorse, which marches with both, and of Belwood, which adjoins Glencorse on the west. The defenders have for some time been calcining, at a place called Incline No. 1, ironstone won from both Penicuik and Logan Bank, and at places called Incline No. 2, and New Hearths, ironstone won, as I understand, from Penicuik only. The pursuer complains of the calcining at all these places as a nuisance to his properties of Glencorse and Belwood, and seeks to restrain it by interdict accordingly. The nuisance alleged is injury to trees and hedges from the smoke. By an arrangement, referred to on record, the calcining has since 1878 been limited to the months of November, December, and January. The question regards calcining in these months only-whether it occasions a nuisance to the pursuer.

There is a residence on Glencorse, and also on Belwood, both let, and I think it must be assumed that with respect to these there is no nuisance, for there was no attempt to prove any, and it appears that the residence on Glencorse has recently been let for an increased rent to a tenant who makes no complaint. Neither has any attempt been made to prove injury to herbage or crops. In-

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deed, no inmate of either residence, and no agricultural tenant or cultivator were called. Further, there is no evidence of injury to deciduous trees, ¦which, I understood it to be admitted, were not liable to injury from smoke (in the quantity found), between November and January. The controversy in fact' regards only the conifers-were they injured by smoke or not ? On this question the evidence is voluminous, and so contradictory that one could not, I think, greatly hesitate to answer the question differently according as the witnesses on the one side or the other were relied on. I should myself have thought, although I desire to speak diffidently, being aware that your Lordships think otherwise, that the question was a fitting one to be tried by a jury.

Of the three properties owned by the pursuer, two, I think, may be laid out of view as of no account in the case,-House of Muir, inasmuch as it is admitted that no damage has been done to it; and Belwood, inasmuch as it is not proved, at least in my opinion, that any damage has been done to it. The firs planted by the pursuer himself, and to the condition of which the evidence is almost exclusively confined, are on Glencorse, and the substantial question of fact in the case regards them only. It is, I think, proved that, since 1877- i.e., since the commencement of the calcining complained of-a considerable number of these firs have manifested symptoms of bad health such as may be caused by any of several causes, and that many of them have died. With respect to some-I think not a few-of these unhealthy and dead firs, it is proved that their condition is not attributable to smoke from the defenders' calcining bings, but to natural causes. With respect to others again, and these in considerable number (though the evidence does not enable me to judge of the number even approximately), it is, I think, proved that smoke from the bing at Incline No. 1, which is in their immediate neighbourhood, is, if not the only cause, a material contributory cause of their condition.

Our only knowledge of the extent of the woodland on the property of Glencorse is such as we can collect from an inspection of the map, and the fact that it is worth £25 a-year for grazing, if cleared of trees. Throughout this woodland the firs in question were planted within the last twenty-five years. The unhealthiness and death undoubtedly proved extends throughout; and the pursuer has adduced evidence to shew that the pernicious effects of the smoke from the defenders' bings extends throughout, and is the true cause of the bad condition of the trees, at least generally and for the most part. I cannot say that this has been proved to my satisfaction. I think, on the contrary, that it is proved that other causes operated extensively; and that with respect to the parts of the property at a distance from the calcining bings these other causes were not materially aided by the smoke. The smoke is from coal fires, and no otherwise noxious than smoke from any fires in which coal is burnt. It is in greater volumes than smoke from house chimneys, and given off at a lower level, but it is the same smoke. The noxious ingredient is sulphur-the percentage of which, in this particular coal, is exceptionally low. Now, the generation of such smoke at calcining bings is, and has long been, of common occurrence, and it is reasonable to expect that the effect of it, and the distance to which it operates on vegetation in the neighbourhood, and particularly on conifer trees, should be known and capable of being shewn by the evidence of actual experience. There is, accordingly, such evidence in this case, and it is generally to the effect that, while a calcining bing is injurious to vegetation in the immediate vicinity, it has little effect beyond 200 yards, and none at all

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beyond 400 yards. This testimony of experience is, I think, confirmed by the scientific evidence-or perhaps I should rather say confirms it. There is, as I have said, evidence of the existence and operation (to a considerable extent admitted by the pursuer's witnesses) of other causes sufficient and likely to injure and kill young fir trees at the various places where they in fact suffered; and having regard to that evidence on the one hand, and on the other to the experimental and scientific evidence to which I have just referred as to the distance at which calcining bings are injurious to trees, I am unable to say that it is proved to my satisfaction that the unhealthiness and death of trees beyond 400 yards from the bings is attributable to them. I think it not immaterial to notice that Mr Barron, one of the pursuer's witnesses, who has experience of the effects of smoke from calcining and cokeing bings, although some of his language is rather vague and indefinite with respect to distances, practically confined his evidence to the immediate neighbourhood of Incline No. 1, and took all his specimens, whether for exhibition or his own examination and consideration, within a distance of 200 yards of it.

But if 400 yards, or even twice that distance, be taken as reasonably safe, there is an end of the case with respect to Incline No. 2 and New Hearths, for I have already observed that there is, in my opinion, no proof of injury to Belwood, and the notion of prohibiting calcining within two miles or one mile cannot be sustained.

With respect to Incline No. 1, I am of opinion, as I have said, that the calcining operations there have, in fact, been prejudicial to a number of conifers (Norway firs and spruces) on the pursuer's property of Glencorse. In the state of the evidence this cannot be affirmed with absolute certainty, for it is possible that the proved condition of the trees may be the effect of other causes which are shewn, as I think, to have produced similar effects where the smoke from the bing did not operate. But that smoke being itself a sufficient cause of the proved effect, and likely to produce it within a distance of from 200 to 400 yards, I think it reasonable within that distance to attribute the effect to it, and to take the case on that footing accordingly.

So taking it, the question of law is, whether there is here such nuisance and injury to the pursuer's property as to entitle him to the remedy he asks ? I do not regard this as a simple question in the sense of being easily answered. The defenders are certainly not at liberty to cause avoidable damage to the pursuer or any other adjoining proprietor,-that is to say, avoidable consistently with the reasonable exercise of their own legal rights at suitable or convenient places within their own bounds. It follows from what I have already said that with respect to Incline No. 2 and New Hearths the action fails on the facts-no damage being done by them to the pursuer's property. "With respect to Incline No. 1, by which I think damage is done, my doubt is about the reasonableness of calcining at that place, even in the winter months-for to the extent of confining the operations to that season the defenders have yielded to the injunction sic utere tuo ut alienum non lœdas. It was explained at the bar that the minerals of Logan Bank and Penicuik crop out there, and that the consequence of interdicting the working and calcining them would be to sacrifice a considerable part of the mineral field. But although there is some evidence on this subject it is slight, and I cannot say satisfactory. On the other hand, the pursuer does not, as I understand, suggest that No. 1, as a place of working and calcining, was not properly selected with reference to the legitimate interests of

vol. viii.] COURT OF SESSION, &c. 1025

No. 182.

July 20, 1881.

Inglis v. Shotts Iron Co.

the mineral field, and could be abandoned without a great sacrifice to the defen- ders and their landlords, or that it is an inconvenient place otherwise than with reference to the wellbeing of the fir trees in the neighbourhood. In the circum- stances, and considering the decision that is about to be pronounced, it is pro- bably an idle thing for me to pursue this topic. I should, however, wish to say for myself that I think the legality of an act, and the reasonableness of doing it at the particular place, is to be taken account of, and may be sufficient to defend it, notwithstanding that it causes damage to a neighbouring property. The nature and extent of the damage are, of course, to be considered, on the one hand, as well as the nature and extent of the proprietary interests sought to be sacrificed in order to avoid it, on the other. It is according to the evidence that iron ore, such as that here in question, must be calcined at the pit-head where it is brought to the surface, and that a field of such ore cannot in fact be worked on other terms. I cannot assent to the contention that it is necessarily sufficient for the pursuer's case that he has proved damage to his fir trees such as would entitle him to protection and remedy against a wrongdoer. I think magnitudes and proportions are to be considered, and also whether or not the defenders have acted with a reasonable regard to their neighbours' interests in selecting the places for operations which are in themselves quite legitimate. I am not prepared to hold that the case is made out with respect to Incline No. 1, although, had my views on the ease generally prevailed, I should have been prepared to allow further evidence regarding it-not as causing damage or not, but as being or not being a convenient and reasonably chosen place for working and calcining, having regard to the defenders' legitimate interests as well as those of the pursuer.

Lord Craighill .-I differ from the opinion which has just been delivered by my brother Lord Young, and concur with that which has been given by your Lordship in the chair. This case has received from me very anxious consideration since the argument was taken on the reclaiming note. I have not prepared a written opinion setting forth the result at which I have arrived, or the reasons which have led me to that result; but your Lordship was good enough to allow me an opportunity of reading the opinion which had been previously prepared by your Lordship, and I became so satisfied with the views of the case you presented that it appeared to me to be necessary only to adopt your Lordship's reasons and conclusions. Therefore, my Lord, for the conclusions at which I have arrived, I refer to the opinion you have delivered.

The Court adhered.

Inglis & Allans, W.S.-Hops, Mann, & Kirk, W.S.-Agents.

8 R 1006

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