Scott v. Burgh of Dunoon [1909] ScotLR 798 (02 June 1909)

Scott v. Burgh of Dunoon [1909] ScotLR 798 (02 June 1909)

The pursuer failed to prove that the statutory requirements for notice and surveyor's report were not complied with in 1875. The previous owner's knowledge, consent, and use of the sewer constituted waiver of statutory protections. The sewer vested in the burgh by statute, and the pursuer as singular successor could not challenge its existence or use.

Citation
[1909] ScotLR 798
Parties
Pursuer: J. G. Campbell Scott; Defenders: Provost, Magistrates, and Councillors of the Burgh of Dunoon
Jurisdiction
Scotland
Judgment Date
02 June 1909
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session Inner House, Second Division
Outcome
appeal sustained; interlocutors recalled; defenders assoilzied (absolved)
Legal Topics
Public Sewers, Statutory Powers, Servitude, Wayleave, Burden of Proof, Acquiescence, Statutory Compliance
Public Law Property Law Local Government Law Public Sewers Statutory Powers Servitude Wayleave Burden of Proof +2 more

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Parties

J. G. Campbell Scott

Pursuer

Provost, Magistrates, and Councillors of the Burgh of Dunoon

Defenders

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session Inner House, Second Division

Legal Issues

  1. 1 Whether the Burgh of Dunoon had a valid statutory right to maintain a public sewer through private property absent evidence of statutory notice or surveyor's report in 1875.
  2. 2 Whether the onus of proof lay on the pursuer to show non-compliance with statutory requirements.
  3. 3 Whether acquiescence or waiver by the previous owner binds a singular successor.

Ratio Decidendi

The pursuer failed to prove that the statutory requirements for notice and surveyor's report were not complied with in 1875. The previous owner's knowledge, consent, and use of the sewer constituted waiver of statutory protections. The sewer vested in the burgh by statute, and the pursuer as singular successor could not challenge its existence or use.

Court Disposition

appeal sustained; interlocutors recalled; defenders assoilzied (absolved)

Orders

  • Sustain the appeal and recall the interlocutors appealed against, as also all interlocutors since 8th July 1908.
  • Find in fact that the defenders' predecessors duly laid the sewer in dispute through the grounds of the pursuer in virtue of the powers conferred upon them by section 73 of the Public Health Act 1867.