He may have a joint interest in the passage and stair along MIDLOTHIAN with others, but that is, in my opinion, neither a right of ownership nor a right of servitude. J. C. G. Irons v Leith Sanitary Inspector. Sheriff MACONOCHIE. EDINBURGH, 10th October, 1906.-The Sheriff, having Oct. 10, 1906. heard the agent for the appellants, the Provost, Magistrates, and Councillors of Leith, and counsel for the respondent, James Campbell Irons, S.S.C., and having considered the cause, adheres to the interlocutors of the Sheriff-Substitute of dates 26th June and 17th July, 1906, and dismisses the appeal ; finds the said appellants liable to the said respondent in the expenses of the appeal, and remits to the Auditor of Court to tax the same according to the higher scale in the table of fees (allowing fees to counsel), and to report to the SheriffSubstitute. C. C. MACONOCHIE. Note. The appellants in the first place have argued that Mr. Campbell Irons' appeal is incompetent under sec. 339 of the Burgh Police Act, 1892, in respect that the order appealed against is not an "order or resolution or deliverance or act of the Commissioners." The Sheriff-Substitute has repelled that plea, and I entirely agree with his decision. The sanitary inspector is appointed by the Commissioners to "superintend and enforce the sanitary provisions" of, inter alia, the Burgh Police Act, 1892. To the Commissioners is entrusted the duty of carrying out the provisions of the Act, and in my opinion the sanitary inspector is simply one of their servants who is appointed for obvious reasons of convenience to assist them in carrying out that duty. The argument of these appellants would simply lead to this, that the sanitary inspector, who has extremely wide powers, would be an absolute autocrat so long as he acted within his instructions, and I cannot believe that such was the intention of the Legislature. On the merits also of the case I concur in the SheriffSubstitute's judgment. The facts necessary for a decision are set forth in a joint minute, and they simply come to this, that the disposition to Mr. Irons is admitted, and that the tracing produced is correct. The tracing shows that Mr. Irons' property has no internal communication with the common stairs or passages in question. The appellants argued, in the first place, that because Mr. Irons had a mutual right in one of the containing walls on each side of the stair, he was bound to paint or whitewash these two walls on the side farthest from his own property if called on to do so, but had no duty to do so to the other two walls. The appellants could cite no authority whatever for this contention, which, if sound, would have a very widespread effect in Edinburgh and Leith, where maindoor houses with MIDLOTHIAN. Irons v Leith Sanitary Inspector. Oct. 10, 1906. Sheriff MACONOCHIE. common stair flats above them are very common, and I confess that to me the whole idea is so extraordinary that I do not think that in the absence of any authority in favour of the appellants' contention I need seriously discuss it. Turning to the titles I find that all that is conveyed to Mr. Irons by his disposition, No. 11 of process, is, so far as the common stair and passages are concerned, a right of access by the stair to the roof "for the purpose of sweeping the vents" of his property. To the dwellers in the flat tenements, however, there had, prior to the granting of Mr. Irons' disposition, been conveyed (12 of process) "a joint right in common with the other proprietors in the tenement, of which the subjects hereby disponed form part.. (2) to the said common passage and stair," and, further, a right of access, such as was subsequently conveyed to Mr. Irons. It is unnecessary to decide whether the earlier dispositions dispone an absolute right of property in the stair and passages, but the position of the other disponees is clearly very different from that of Mr. Irons in regard to the ownership of the stair, and there is to my mind nothing in the titles to suggest that Mr. Irons has any right of ownership in it. But, further, the appellants maintain that, even if his title gives him no right of ownership in the stair and passages, he is on the facts "owner" of them within the meaning of sec. 4, sub-sec. 22, of the Act of 1892. That sub-section defines the word owner," and enacts, among other things, that the word shall include "joint owner or other person "in the actual possession of, or entitled to receive the rents of, lands or premises." The matter of rent is out of the question here, but it is said that Mr. Irons is in the actual possession of the stair and passages as being "lands or premises," that under sub-sec. 16 lands and premises" include rights of servitude, and that the right of access disponed to Mr. Irons is a servitude. I agree with the Sheriff-Substitute in thinking that, looking to the titles, the right of access is not, properly speaking, a servitude right at all; but, further, it does not appear to me on the facts that Mr. Irons is "in actual possession" of the "lands or premises." Assuming that the right is one of servitude, he can go to the stair for one purpose, and for one purpose only, and the necessity of going there at all is infrequent. I cannot think that such a right is the kind of right which the Legislature had in view when it defined the word "owner," and the reference to the Valuation Acts in sub-sec. 16 only strengthens that view, as it could hardly be said that such a right is an assessable subject under those Acts. In reply to a question from me, I was informed that there is no authority in favour of the view contended for by the appellants, and I cannot find in the books any record of For appellant-Mr. R. D. MELVILLE, advocate, Edinburgh, For respondent-Mr. R. H. MILLER, S.S.C., Leith. SHERIFF COURT OF LINLITHGOWSHIRE. MIDLOTHIAN. Irons v Leith Sanitary Inspector. Oct. 10, 1906. Sheriff MACONOCHIE. DANIEL WARDROP, Applicant; ANDREW DONALDSON, No. 100. Respondent. Workmen's Compensation Act, 1906-Workman Casual employment.-Circumstances in which held that a boot riveter, who alleged a contract of The re In this application, brought under the Workmen's Compensation Act, 1906, the applicant concluded for a payment of compensation at the rate of 11s. 6d. per week. The applicant contended that, on 2nd July, 1907, he entered the employment of the respondent, and on the following day, while accompanying the respondent with his lorry filled with bottles to Glasgow, he had both hands badly cut, as a result of which he had been incapacitated for work, more particularly as the left hand had since become poisoned. spondent argued that the applicant was not in his employment; that he simply indicated a wish to go to Glasgow with him on the date in question; and that on the way he met with the slight accident. The respondent stated that no wages were bargained for, and none given, and that the relationship of employer and employee did not, and never did, exist between the parties. After hearing proof and parties' procurators, the Sheriff-Substitute (MACLEOD) issued the following interlocutor and note: LINLITHGOW- Wardrop v Oct. 1, 1907. LINLITHGOW, 1st October, 1907.-The Sheriff-Substitute, having, as arbitrator, considered the proof, productions, and Sheriff MACLEOD. whole process, and having heard parties' procurators thereon, assoilzies the respondent from the claim; finds the respondent entitled to expenses, &c. HECTOR MACLEOD. LINLITHGOW- Wardrop v Donaldson. Oct. 1, 1907. Note.--This is an arbitration in which Wardrop asks me to award him a weekly payment of 11s. 6d., beginning the first weekly payment, under deduction of 7s. paid to account, as of date 10th July, 1907, until further order, in respect Sheriff MACLEOD. of his having sustained personal injury by accident arising out of and in the course of his employment as a workman with Donaldson. The following facts were admitted or proved to my satisfaction :-(1) Donaldson had, in the course of his business as a delf merchant and broker in Linlithgow, accumulated a large quantity of bottles, which, for the purpose of profitable disposal, he found it advisable to convey to Glasgow by means of a horse and lorry, with a second horse in attendance as a trace horse, to help up the inclines on the road; (2) for no purpose in connection with the said journey did Donaldson require or desire outside assistance. He and his household were sufficient for the loading of the bottles on the lorry; he looked forward to no need for help on the journey; while at Glasgow the unloading of the bottles was to be done by the purchaser; (3) but, though he had neither need nor desire for help, yet on the evening of 2nd July last, when about to prepare for the said journey, Donaldson did, in his own house, express his wish to members of his family that he had company for the way through the silent hours of the night and early morning, and, as Wardrop's daughter was at the time a maid-servant in Donaldson's house, and as it was known to Donaldson that his near neighbour, Wardrop, was at leisure, it came to pass that Donaldson invited Wardrop to go with him to Glasgow by way of company as his guest, while Wardrop, having no work on hand, and being well inclined to a country outing in agreeable company, readily agreed to go. Nothing was said by Donaldson to Wardrop as to Wardrop's doing work or receiving pay. Donaldson took Wardrop on the said journey solely as his guest. Nothing was said by Donaldson to Wardrop which could justify Wardrop in the belief that he was entering into a contract of service as a workman; (4) Wardrop, being an invited guest for the journey to Glasgow, naturally joined as such guest in helping Donaldson and his household to load the bottles on the lorry, and, the loading having been completed early on the morning of 3rd July, they then set off (after the enjoyment of suitable refreshment), and Wardrop enlivened the journey for his host by the recital of ghost stories, of which he appears to have a famous stock; (5) when approaching Glasgow the horse in the shafts of the lorry becoming somewhat fractious, was taken out of the shafts by Donaldson, so that it might follow behind the lorry, and he handed its reins to Wardrop, who, seated on the lorry, took charge of them. The other horse, having been yoked to the shafts, went off at a trot, while workman" in Had I been able to regard Wardrop as a the employment of Donaldson, there would then have arisen a question as to the amount of weekly payment to be paid by Donaldson, and on that question the following facts were admitted or proved to my satisfaction:-(a) Wardrop's most regular occupation is that of a boot riveter, but at the time in question he was out of employment, and, for wage-earning, was only available for such odd and casual jobs as that for which (I am now assuming) Donaldson employed him; (b) Donaldson had no such person in his employment, but the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade, employed in the same class of employment, and in the same district was (making sanguine calculations) 7s. On the foregoing facts I would have awarded Wardrop a weekly payment of 3s. 6d. until further order, and with expenses on the lower scale. An alternative point was taken in the pleadings that the claim fell to be dismissed in respect notice of claim had not been given before Wardrop voluntarily left Donaldson's service. This, however, was not pressed-no doubt because its strength ultimately depends on the question of prejudice, which could not be reasonably suggested. LINLITHGOW Wardrop v Oct. 1, 1907. Sheriff MACLEOD. |