Scottish Court of Session Decisions

The Procurator-Fiscal of the City of Edinburgh presented a petition in the Dean of Guild Court of Edinburgh praying to have the Edinburgh Gas-Light Company interdicted from proceeding with the erection of certain buildings in Gladstone Court, Canongate.

He averred that the Gas Company were about to erect a building to be used as a meter testing-house, and that in contravention of the Edinburgh Municipal and Police Acts of 1879 and 1882, as no plans had been submitted to or warrant for the erection of these premises obtained from the Dean of Guild Court.

He also alleged that a complaint had been made to him by a proprietor contiguous to the company, and that the present petition had been presented to ensure that the proposed building should not encroach upon the rights of others, or be attended with danger to the public. It was therefore necessary, he averred, that the respondents should submit plans to the Dean of Guild Court and obtain the usual warrant before proceeding with their operations.

The respondents denied that their operations would be attended with danger or inconvenience to the public, or that they would encroach upon the rights of others. They also denied that any Dean of Guild warrant was necessary.

They averred that their Act of Parliament (3 Vict. c. 13) gave them power to execute the works contemplated; that they had executed similar works without the Dean of Guild's authority upon previous occasions; and that in 1875 the then Dean of Guild had pronounced an interlocutor finding that the company's engineering works were not within the cognisance of his Court, or subject to its control. The Act founded on provides by section 11—“That it shall be lawful for the said Committee of Management …. to make and erect such retort-houses, gasometer-houses, receivers, and other buildings; to construct and erect retorts, gasometers, cisterns, engines, and other apparatus, cuts, drains, sewers, water-courses, reservoirs, and all other works; and to sink and lay pipes of such dimensions and construction, and in such manner, and at and in such parts and places, within the bounds of the said recited Acts and this Act as the said Company or the said Committee of Management shall think necessary or proper for carrying the purposes of said recited Acts and this Act into execution.”

The respondents pleaded—“(1) That they were entitled by virtue of this provision to carry through the works complained of without any warrant by the Dean of Guild.”

On 11th February 1885 the Dean of Guild pronounced the following interlocutor:—“Finds that the building proposed to be erected by the respondents is, as shown on the plan, on ground immediately adjoining that of several other proprietors: Finds that the respondents proceeded to erect the building without a warrant, and have maintained that the jurisdiction of this Court is excluded by virtue of the Act 3 Vict. c. 13, sec. 11: Finds that the jurisdiction of the Court is not excluded by the Act, either expressly or by implication: Therefore repels the first plea-in-law stated for the respondents: continues the interdict against the respondents proceeding further with the operations complained of until the warrant of Court shall be obtained: Therefore finds them liable to the petitioner in expenses, &c.

Note.—The respondents maintained that they were entitled to erect all buildings connected with their works by virtue of section 11 of the Act 3 Vict. c. 13, without requiring any warrant from this Court. The petitioner maintained

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that the Act in question does not confer upon the respondents any higher right than others as regards the jurisdiction of this Court, and separately that if such right existed prior to the passing of the Edinburgh Municipal and Police Act 1879, it has been excluded by that Act. It is thought that the section of the Act founded on by the respondents does not fairly admit of the construction put on it by them. They would on that construction be entitled at their own hand and without notice to erect buildings bounded by public streets or passages and by adjoining properties. The object and meaning of the section appears to be to give the company power and authority to make and erect houses, works, &c “necessary for carrying out the purposes of the Act.”

The Edinburgh Gas Light Company appealed to the Court of Session.

After hearing counsel, the Court, by interlocutor of 18th March 1885, allowed the appellants to add a statement and plea as to the jurisdiction of the Dean of Guild within the regality of Canongate.

The additional statement was, that the building which they were in the course of erecting was within the regality of the Canongate, and that the said regality had never been, and was not now, within the jurisdiction of the Dean of Guild Court.

They pleaded no jurisdiction.

The Procurator-Fiscal while admitting that the building in question was within what was formerly the regality of Canongate, denied that the Dean of Guild's jurisdiction was excluded.

Argued for the appellants—The jurisdiction of the Dean of Guild was excluded by the Gas Company's Act, and in all their operations carried on under these Acts the company had never, with two exceptions, applied to the Dean of Guild Court for authority to build. The locality of the proposed operations was the regality of the Canongate, and the Dean of Guild never had any jurisdiction in the Canongate, though, no doubt, the regality of the Canongate was within the police boundaries of the burgh of Edinburgh as defined in the Municipal and Police Act 1879. If anyone had jurisdiction it was the Sheriff. When a public body was authorised to erect buildings in terms of their Act of Parliament, the Dean of Guild could not interfere unless there was danger to the lieges in the buildings proposed. From the time of the Edinburgh Municipality Act 1856 (19 and 20 Vict., cap. 53), sec. 3, to the Edinburgh Municipal and Police Act of 1879, the Dean of Guild had no jurisdiction in the Canongate. The Act of 1879 was not an extending but a consolidating Act, and the words in sec. 151, “within the limits of its present jurisdiction,” were inserted to prevent the extension of the Dean of Guild's jurisdiction.

Section 5 of the latter Act provides—“The word burgh shall mean and include the whole territory within the police boundaries as defined in the recited Acts [of 1848, 1854, 1856, 1862, 1857, 1876] and this Act.”

Section 154 provides … “The Dean of Guild Court …. shall possess and exercise within the burgh all the rights, powers, privileges, functions, and jurisdictions which are possessed and exercised by the existing Dean of Guild Court by law or usage within the limits of its present jurisdiction.” …

Authorities— Dymock v. Edinburgh and Glasgow Railway Company, Nov. 27, 1847, 10 D. 158; Speed v. Philip, March 16, 1883, 10 R. 795.

Counsel for the respondent was not called upon.

At advising—