Scotland's Brick and Tile Manufacturing Industry

Priory Quarry Company, Brick Manufacturers, Glasgow

19/08/1869 – Glasgow Herald – Smoke nuisance in the West End – Important Prosecution. At the Northern Police Court yesterday, before Bailie Taylor, a case at the instance of the Procurator Fiscal against a Priory Quarry Company, and George Lamb, as an individual partner of that company, and residing at Hampton Court Terrace, Hillhead, came up for decision.  Mr Gordon Smith (Assessor) said-The defenders are charged under the Glasgow Police Act, section 249, clause 3, with carrying on the trade of brickmakers so as to occasion annoyance with the neighbourhood, without having used the est means for preventing or counteracting such annoyance.  There are thus two questions involved-(1) Does the making of bricks within the works of the defenders amount to a nuisance or annoyance in the sense of the statute? and (2)if so have the defenders failed to use the best means for mitigating the nuisance?  I am prepared to advise your Honour that the Public Prosecutor has succeeded in proving both branches of the case, and therefore that the judgement ought to be against the defenders.  The proof led on both sides showed that large volumes of dense black smoke, charged with offensive vapours, were emitted from the kilns of the defenders, and although it was not proved that these were injurious to health, they were so offensive as to effect very materially the comfort of those residing in the immediate neighbourhood, including the inhabitants of Landowne crescent, Holyrood Crescent, Wilton Crescent, and Burnbank Gardens.  Although slight annoyance is not to be held a nuisance, yet annoyance to the extent proved, in this case, is so.  In fact, this very question of brickmaking has been frequently the subject of a decision, and by a series of cases, it has been held to be a nuisance in localities adjoining the valuable property.  The question was considered with great care in the leading case of Bumford v. Turnley, 12th July 1863.  (9 Jurist, new series, p.377.)  It was there found that a brickwork carried on within 180 yards of certain villas recently erected was a nuisance; and the same judgement was given in the case of Robert v. Clark, 12th Feb. 1868, where the nearest house was 240 yards distant.  Looking to these decisions, therefore, which are of the very highest authority, I have no hesitation in advising that the nuisance should be held proved.  But although the nuisance is proved, this Court has not the power to interfere in the exercise of its quasi-criminal functions, provided the defenders can show that they have used the best means to abate the nuisance.  The chief difficulty in connection with the case arises in regard to the phrase employed in the statute, “the best means,” Are these words to be understood literally, or are they to be construed as meaning the best means consistently with the carrying out of the business under the ordinary conditions of reasonable convenience and the possibility of manufacturing a profit?  To require of certain trades the construction of such works as will absolutely prevent nuisance may be equivalent to rendering the carrying on of such trades within the city impossible; and the difficulty of the question, as I have said, arises in deciding whether the Legislature meant that the phrase should be continued in such a way as to admit of these trades being carried on under the necessary condition of profitable working; or whether it was intended that such trades as could not be carried on if compelled to employ literally the best means for abating nuisance, should, in a large city like this, cease to be carried on altogether.  In the present case it has been proved that, according to a process at present in operation on the land of Merryflatts, near Govan, the smoke is entirely consumed or nearly so, and, therefore, that if this system were adopted by the defenders the nuisance complained of would be counteracted or avoided.  But Dr Wallace, the skilled witness who gave evidence to this effect for the prosecution, admitted that the cost of the erections necessary for that purpose would be so great that to compel its adoption by the defenders would be equivalent to shutting up their works entirely.  This arises from the fact that the defenders’ Clayfield is a small one, and will be exhausted in a comparatively short period.  If therefore, the cost of the erection were spread over the quantity of brick capable of being produced from the field, it would much increase the cost of production that the works would of necessity be carried on at a loss.  This opinion was concurred in by a large number of Master Brickmakers who were examined.  These gentlemen even went further and stated that under the circumstances could the system in operation at Merryflats be carried on to a profit, and that to compel its adoption would in effect be to interdict the making of bricks altogether within the city.  Looking to the evidence thus given, and to the fact that the new system is of quite a recent introduction, I fear we must have in view, as a result of the judgement against the defenders, that the worst anticipations may be realised, and that brickmaking in Glasgow may become impossible.  But notwithstanding such a probable result,  I am prepared to advise your Honour that a conviction under the statute ought to follow.  To construe the language of the statute literally, and to require the use of the best means to avoid a nuisance within a great city like this, even though it should have the effects of banishing a particular trade, is not, unreasonable.  It appeared to me apart altogether from the special powers conferred by the Police Act, any proprietor in the neighbourhood could ask at common law interdict the nuisance, and it cannot be unreasonable to suppose that a result which could be obtained by an appeal t the common law courts, might not, with equal propriety, be obtained from the exercise of statutory powers conferred on a local magistrate.  Moreover, it is a canon of interpretation applicable to all statute law that it s to be strictly construed, and without some very express authority, it would be dangerous to adopt any more liberal principles of construction.  I am not aware of any direct authority on this question.  The case nearest in point that I am aware of is that of Cooper v. Wooley, 16 Jan. 1867.  This was a case under the Towns Improvement Act and related to nuisance arising from the smoke.  The question there was whether the obligation “to consume as far as possible all the smoke” was to be construed literally, or whether it meant that the smoke should be consumed as ar as possible consistently with the carrying on of the manufacture in question.  The latter view was adopted there, but the distinction between that case and the present is that no amount of outlay could have made a compliance with the statute possible, and allowed the trade to be carried on, whereas in the present case it is entirely a question of expense.  The very circumstances which have arisen here were anticipated in the course of the argument in Cooper’s case, and although not decided, we have an indication of the opinion of the Courts,  Baron Channel, in giving judgement, says:-“If the introduction of external air in either of the modes pointed out by this case would simply have retarded the process of annealing, ad rendered the operation longer and the article more costly in its production.  I am by no means satisfied that the respondent’s construction would not be the right one,” viz.,  that the appellant would be bound to consume all the smoke possible, no matter how much it would add to the cost of production.  While I have without hesitation arrived at the conclusion I have already stated, I confess that the question is not free from difficulty; ad it is perhaps to be regretted that we have not in Scotland, as they have in England, the means of obtaining the opinion of the Supreme Court on questions of this kind.  The judgements of this Court on the merits in final; and however important the interest may be which are affected by the judgement, there are by no means of submitting that judgement to the review of a superior tribunal.  For that reason, as well as because of its importance, I have given the question of law involved in the case the most careful consideration, and I think it right to say that my opinion is concurred in by two of my brother assessors.  The other assessor I have not been able to consult, owing to his absence from town.  Baillie Taylor found the charge proven, and fined the defenders in the sum of 40s, being the full amount eligible for the first offence.