John Aitchison v. Magistrates of Glasgow [1825] UKHL 1_WS_153

UKHL
John Aitchison v. Magistrates of Glasgow
[1825] UKHL 1_WS_153
Lords Craigie , Reston , and Cringletie .

Subject_ Landlord and Tenant — River — Advertisement. —

That the tenant of the lower mill was not entitled to withhold payment of his rent, or to claim damages from the landlord, on the ground of having, by the above condition, been deprived of a sufficient supply of water; reserving his claim of damages against the tenant of the upper mill, if he any had.A landlord of several mills on a stream of water having advertised them for lease, and represented that they had an abundant and regular supply of water; and a party having taken one of the inferior mills, without any special stipulation as to the water; and the landlord having let the upper mill, under the condition that the tenant of it should keep his sluices open at least three hours in the day;—Held, (affirming the judgment of the Court of Session),

Page: 154 ↓

The Magistrates of Glasgow are proprietors of four mills, situated on a stream called the Molendinar-burn, which has its source in Hoganfield-loch, and, after passing under the walls of the ancient Cathedral of Glasgow, discharges itself into the river Clyde. These mills are known by the names of the Provanmill, (which is the nearest to Hoganfield-loch); the Town-mill, which is a little farther down the stream; the File or Iron-mill, which is still lower; and the Subdean-mill, which is the lowest. The Provan-mill had, in this way, the complete command of the water, the File and Subdean-mills being entirely dependent upon it; but the Town-mill had a reservoir capable of containing about 240,000 cubic feet of water. From 1755 the Provan-mill had been let under a stipulation, “that in every twenty-four hours he, the said tacksman and his servants, shall open and draw the sluices three hours, whether the tacksman have grinding or not, for the service of the mills below him.” In 1809 all the mills were out of lease; and the Magistrates then inserted two advertisements in the newspapers, offering, in the one, leases of the Provan-mill and the Town-mill, which were represented as having an abundant supply of water; and in the other, of the File-mill and Subdean-mill, each for 19 years. The advertisement relative to the File and Subdean-mills was thus expressed:—
“There are to be let, for 19 years from the term of Whitsunday next, all and whole the mill adjoining the Fir Park, known by the name of the Subdean-mill; also the mill known by the name of the File or Iron-mill. These mills, belonging to the town of Glasgow, are situated on the banks of the Molendinar-burn, have powerful falls, and command, at all times, an abundant supply of water. There is about half an acre of ground attached to the File-mill. Both properties are to undergo considerable repairs, and from their vicinity to the city, and easy access, the tenants of these subjects may always expect as much work as they are able to perform. The terms of set will be seen in the hands of the town-clerks.”
On the 14th April, (being a few days after the publication of this advertisement), Aitchison made the following offer for the File-mill, which had been formerly let at a rent of L.20:—L. 70 sterling; and, in lieu of repairs, to have the first year's rent allowed me, towards erecting a water-wheel and clearing out the mill-race.”
“I hereby make offer to take a lease of the File-mill and ground for 19 years from Whitsunday first, as they presently stand, at the rent of

Page: 155 ↓

On the following day he sent to the Magistrates another offer, which was thus expressed:—
“In case my offer for the File-mill is not accepted, I am willing to take a lease of the Subdean-mill and ground for 19 years;”
and he farther stated, that “I have made these offers on condition that I shall have liberty to grind all sorts of grain free of sucken or dues to the Town mills; also the miller at Provan is bound to let out a daily supply of water from the lochs when the mill is not going regularly.” The former of these offers was accepted by the Magistrates, on the 21st, in these terms:—
“We accept of the within offer of L. 70 for the File-mill per annum, and to give up the first year's rent towards erecting a water-wheel, and leaving the water-wheel on the property at the end of the lease; Mr. Aitchison finding security to the satisfaction of the committee.”
The Provan-mill was taken by a person of the name of Millar; the Town-mill by one Wright; and the Subdean-mill by Tassie and Company; and each of these persons, as well as Aitchison, entered into possession in virtue of missives. A lease was thereafter granted of the Provan-mill to Millar, in which it was stipulated, that he should “open and draw, and allow to remain open, the sluices of his dams and lades hereby set, whether he is grinding or not, for the service of the mills below the said Provan-mill, and that during any three hours in the course of every twenty-four hours which the Magistrates of Glasgow, for the time being, shall think most proper.” A lease was proposed to be granted of the Town-mill to Wright, containing a clause that he should be bound “to open and draw, and allow to remain open, the north sluice of the dam and lades of the premises set, regularly every day, whether working or not, for the supply of the mills below;” but Millar refused to subscribe this lease, as no such unlimited obligation was imposed on the tenant of the Provan-mill. A lease was also offered for the signature of Aitchison, containing an obligation to the same effect; but he in like manner refused to sign it, unless a declaration were inserted, “that the tacksmen of the Provan mill and Town-mill shall be held to let down their water, in a regular manner, every lawful day during working hours.” Tassie and Company subscribed a lease of the Subdean or lowest mill, without any such stipulation.Repeated complaints were made by Aitchison to the Magistrates, that he was unable to carry on his operations in

Page: 156 ↓

by the pursuer: Reserves to the pursuer all claims he may have against the tenants or occupiers of the superior mills, for the illegal or improper use of the water, if he is advised to institute the same, and to them their defences as accords; and with this explanation, and these findings, adheres to the interlocutor complained of, and decerns.”
“Finds, that the advertisement for letting the town's mills, founded on by the pursuer, did not supersede the duty incumbent on him of examining and making inquiry into the state and circumstances of the subjects previous to his offer, and that it must necessarily be presumed that he did so, and was satisfied: Finds, that the agreement for a lease of the Malt or File-mill was constituted betwixt the parties, by the offer dated 14th April 1809, which is accepted on the back by the Convener of the Committee for Mills on the 21st of April following, and by such of the pursuer's subsequent missives as were accepted by the said committee; but finds, that the pursuer's letter of the 15th of April 1809, which relates to the Subdean-mill, was not accepted by the committee, nor the proposed conditions therein agreed to by them: And in respect it does not appear that the lease of Provan-mill, entered into betwixt the defenders and James Miller, contains any clause injurious to the pursuer's right to the water at common law, but is averred to be framed in the same terms as the lease of that mill has always been heretofore, which last point the pursuer does not controvert, finds, that the pursuer has no relevant claim against the defenders for or on account of any alleged deficiency of or irregularity in letting down the water; and therefore assoilzies them simpliciter from this action, as well the conclusion for damages as that for execution of a lease, seeing that a lease, made out in terms of the missives of agreement, has been subscribed by the defenders, and is lodged in process, ready for being executed

Page: 157 ↓

Both cases were then brought into the Court of Session by advocation, and having come before Lord Craigie, he conjoined them, and ordained the Magistrates to produce certain documents, and to condescend as to certain allegations inferring acquiescence; and in reference to a statement which had been made by them, as to regulating the supply of water, he issued the following note:—
“The Lord Ordinary would wish to know whether the Magistrates of Glasgow, when taking the opinion of Messrs Rennie and Telford, made any inquiry as to the proper mode of regulating the supply of water to the different mills, so that it might be made as useful as possible. It likewise appears to the Lord Ordinary, that when the new tenants came to differ on this point, recourse ought to have been had to such opinions, instead of adopting, in the lease of Provan-mill, a rule which apparently had no recommendation but that of having been followed when the art of constructing mills and mill-lades was very little known or attended to; and although it would be improper at this time to produce opinions on the subject without authority from the Lord Ordinary, he thinks that the advocator should have an opportunity of stating what regulations ought to have been prescribed in the several leases for the general advantage.”
Thereafter the case came before Lord Reston, who, after an interlocutor allowing a proof, which Aitchison represented against, pronounced this judgment:—reservoir) three hours in twenty-four, is not reasonable Implement of the obligation arising from the memorandum; and that the pursuer, unless in so far as he may have virtually consented thereto, is entitled to any damages he can qualify from it, and allows him to lodge a condescendence accordingly.”
“In respect that the condescendence for the Magistrates of Glasgow, on the plea of homologation and acquiescence, is vaguely expressed, and of doubtful relevancy; and that the Magistrates seem to concur with the representer in wishing a judgment on the rights of parties, independent of that plea, recalls the former interlocutor, advocates the cause, and finds that the four mills belonging to the Corporation of Glasgow, being all out of lease, they were offered to be let by an advertisement, bearing that they commanded at all times an abundant supply of water, and referring to terms of set in the town-clerk's hands: Finds it admitted, that the terms here referred to were marked on a memorandum, which bore, that the water would be let down regularly: Finds the clause in the Provan-mill lease, securing the water being let down to a mill (having no dam or

Page: 158 ↓

Against this judgment the Magistrates lodged a representation; but Lord Reston having died, the case was transferred to Lord Cringletie.In the meanwhile the Magistrates had raised an action against Tassie and Company, for payment of rents, which they resisted on the same grounds as Aitchison, viz. that they did not receive a sufficient supply of water, which they alleged the Magistrates had bound themselves that they should have. On the other hand, Tassie and Company brought an action against the Magistrates, and Miller and Wright, the tenants of the upper mills, concluding for a supply of water, and damages. In these actions a remit was made to Mr Jardine, engineer, to examine the premises and report; and he having done so, and a copy of his report having been lodged in the process between the Magistrates and Aitchison, Lord Cringletie pronounced this judgment:—working, there could be no ground of complaint, as the water which drove the one mill passed on to the other: Finds, that from Mr Jardine's report it by no means appears, that the regulation in the lease of Provan-mill, viz. that the miller shall open the sluice of Hoganfield-loch three hours in the twenty-four, is improper, and inadequate to the supply of the other mills; for Mr Jardine does not report that the sluices should be longer open, but only recommends some regulations for giving greater effect to the opening of that sluice, and suggests a project for enlarging the quantity of water in Hoganfield-loch, which the Magistrates of Glasgow have found to be impracticable, on account of their not being proprietors of the ground which would be covered by the additional water: Finds, therefore, on the whole, that Mr Aitchison has no reason to complain of the regulation in the lease of the Provan-mill: Finds further, that even if Mr. Aitchison had reason to complain of that regulation, he has not relevantly condescended on any damages, or any grounds on which they could be ascertained; and therefore, on the whole, alters the interlocutors complained of by said representation, and remits both causes simpliciter to the Sheriff: Finds the Magistrates entitled to the expenses of the question about caution, and also to the expenses of the advocations, subject to modification.”
“The Lord Ordinary having resumed consideration, is satisfied that the interlocutor complained of by said representation is partly founded on a mistake, in the then Lord Ordinary conceiving that the water necessary to drive the File-mill depended entirely on the regulation of the sluices of Hoganfield-loch and the Provan-mill, as by that interlocutor his Lordship finds, that the clause in the Provan-mill lease, securing the water being let down to a mill having no dam or reservoir three hours in twenty-four, is not reasonable implement of the obligation arising from the memorandum, on the faith of which Mr Aitchison took his lease. In this way his Lordship seems not to have been aware that the Town-mill is situated between the Provan-mill and the File-mill in question, and has a reservoir containing 240,000 cubic feet of water, on the proper regulation of which must chiefly depend the supply of water to the mill in question: Finds, that there is no special regulation of the water in this last reservoir contained in the lease of the Town-mill; and, consequently, that if Mr Aitchison had any want of water for his mill, it arose from the impropriety of the management of the miller of the Town-mill, for which the Magistrates of Glasgow are not responsible, as it was open to Mr Aitchison to complain of that miller withholding the water when the mill was not working; and when the mill was

Page: 159 ↓

Against this judgment Aitchison reclaimed to the Inner-House; and, at the same time, the case between Tassie and Company, and the Magistrates and tenants of the upper mills, was reported to their Lordships. Both cases were advised upon the 16th May 1822; and in that of Tassie and Company their Lordships pronounced this judgment:—Find “that the defender, James Miller, is bound by the stipulations contained in his lease of Provan-mill, to open and draw, and allow to remain open, the sluice in the dam of Hoganfield-loch, at least three hours in every twenty-four hours; and also to allow the passage from the reservoir of Provan-mill of a quantity of water, equal to that discharged during the said three hours from the Hoganfield-loch, beginning the said discharge from the reservoir of the Provan-mill as soon as the water therein is in a state to work the said mill, and continuing it without intermission, at the rate usually required to work the said mill, till the whole of the three hours' run from the loch is discharged, and that whether the mill be working or not: Find, that the said John Wright is bound to send down the water regularly for the supply of the Subdean-mill, whether the Town-mill be working or not, and decern accordingly; and

Page: 160 ↓

Aitchison appealed.Appellant .—The advertisements held forth to the appellant that he was to have a proper supply of water, and on this faith he took the lease of the mill. Accordingly, in the offer of the 15th of April, he expressly mentioned, that both offers were made on the condition that the miller at the Provan-mill should let out a regular and daily supply of water. Notwithstanding this, the respondents entered into an agreement with that tenant, by which he was not compellable to keep his sluices open more than three hours in the day, which was quite insufficient for the supply of the inferior mills. As the appellant, therefore, has not received implement of this important condition, he is not liable in rent;

Footnote

* See I. Shaw and Ballantine, Nos. 553. and 554.† 2. Shaw and Dunlop, No. 357.

Page: 161 ↓

Respondents .—Advertisements are mere recommendatory notices, and are never understood to form the bargain between the parties, but only to induce intending offerers to make inquiries. Accordingly the appellant made inquiries, and, in his offer for the File-mill, he proposed to take it and the adjacent ground “as they presently stand,' without any stipulation whatever in regard to any regulation for the supply of water. The existing regulation at the time, and for many years previously, was precisely the same as that which was inserted in the lease to Miller. The respondents, in that lease, stipulated that Miller should keep his sluices open for at least three hours in the day; and if the appellant could shew that he was entitled to compel Miller to keep them open for a longer, period, there was nothing in the clause to prevent him doing so.The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.”Solicitors: Spottiswoode and Robertson— J. Duthie,—Solicitors.