Sheriff Small Debt Court – Wednesday.
(Before Sheriff Tennent).
Mysterious Water Supply.
Among the cases before the Court today was one of rather a novel and puzzling kind, which elicited a great deal of interest.
John McEwan, rigger, is tenant of a small house of one apartment in Mr David Paul’s Land in Cross-shore Street; and for about a month past water has been falling at intervals from the roof or ceiling of his house and to such an extent that he has been obliged to leave it.
Mr Paul brought the present action against McEwan, charging him, or others for whom he is responsible, with having mischievously and maliciously thrown the water on the ceiling of his own house between the 28th December, 1860, and 13th January, 1861, and demanding L.8 17s 6d as the costs attending the repair and survey of the roof. McEwan utterly denied the statement made against him, maintaining that the water came from the roof, and had come down on Saturday and Sunday last in the presence of many neutral parties who were sitting in his house and watching it at the time. The Sheriff allowed a proof.
The pursuer examined a number of witnesses, and the tenant and his wife, who occupy the apartment immediately above McEwan’s house, deponed that they never let down any water on McEwan. Two tradesmen also swore in substance that they had inspected the plaster of the ceiling of the defender’s house, which they had found wet on the outside, but dry immediately within, that they cut the roof in several places to test this, that the deafening of the roof was also dry, and they gave it as their opinion that the water must have been thrown up on to the ceiling of McEwan’s house by McEwan himself or other parties within his house for whom he was responsible. A variety of subordinate facts were elicited, but the above comprise the main features of the pursuer’s case.
The defender and his wife and grandchild, who lived in the house, were then severally examined, and they stated that neither of them had ever thrown up any water on the ceiling, nor had any one else done so; that the water had been coming down for upwards of a month at intervals; that it had destroyed the bed-clothes, and had injured the health of Mrs McEwan who is a frail old woman, nearly blind, of about 70 years of age; and she and her husband stated that they had been 38 years living in the same apartment, and had brought up their family in it.
Four respectable men were then called, who all swore that they had visited McEwan’s house on Sunday last, and had sat in it from about ten till twelve o’clock in the day; that when they went in the ceiling was dry, and that while they were in it water had come down from the ceiling on to the floor no less than five separate times at shorter and longer intervals, and that they were conscious it had not been thrown up from McEwan’s apartment, but had come down through the roof.
A witness was then called who swore to the same thing having taken place on Saturday last, and a woman who lives next door to McEwan deponed that she repeatedly saw the water come down, and that it fell on one occasion on herself and the infant in her arms.
A tradesman was also examined who had, on Monday last, inspected the premises. He had poured a small quantity of water from the house above, and it came down in less than half a minute on to the floor of McEwan’s house; that he thought there was mischief at the bottom of the matter; and that if men had sat in McEwan’s house and watched the water coming down, and that it was not thrown up, in his opinion it must have been let down from the tenant’s house above.
After a few words from the agents of parties, the Sheriff said he was quite at a loss, from the nature of the evidence, to give an opinion; and thought the agents on both sides, who were anxious to bring out the facts of the case, should at once get the key and inspect the premises. He then remitted to the Master of Works and Mr William Swan, slater, to inspect the premises minutely, and report to him their opinion at some future date.
Mr Swan gave up the key at once in Court; and we understand that the agents, with Mr Macdonald, writer, immediately inspected McEwan’s premises, and those of the tenants above, but without discovering anything new.
Agent for pursuer – Mr McClure. Agents for defender – Messrs McIlwraith & Swan.
Clyde Shipping Gazette, 26th January 1861.
Sheriff Small Debt Court.
Yesterday.
The Water Case.
The Small Debt case, Paul against McEwan, was again before the Small Debt Court yesterday, when the following report by the Master of Works and Mr Swan, in terms of the remit made to them, was handed in, and read by his lordship the Sheriff:-
We, William Allison, Master of Works of the town of Greenock, and William Swan, slater there, by virtue of a warrant from your Lordship of date 23rd day of January instant, visited the property belonging to Mr Paul, situated in Cross-Shore Street, Greenock, and the house occupied by Mr McEwan, defender, on the second floor of said tenement, as also the attic house occupied by another Mr McEwan, directly above the house occupied by the defender, upon the 26th day of January instant, at three o’clock in the afternoon, in presence of William McClure, writer in Greenock, agent for Mr Paul, and Hew McIlwraith, writer in Greenock, agent for Mr McEwan, the defender.
We, William Allison and William Swan again, on the 28th and 29th instant, very carefully examined the before-mentioned houses, and after great consideration, we now beg respectfully to report as follows: –
That the injury done by water did not come from the external walls or from the roof of the said tenement. These two houses before-mentioned, occupied by the McEwans, are very old, and the ceiling of the house occupied by the defender on the second floor is not level, having a fall of two inches from the west side wall towards the east side wall next Cross-shore Street, also a slight fall from the north gable towards the south. The plaster of the ceiling is cracked in several places, there is no deafening above the ceiling plaster, and there is only one joist in the centre of the ceiling, the space between the joists being wide.
Directly over said house, in the attic occupied by McEwan, the hearth-stone in front of the fire place is laid on the top of the floor, standing its whole thickness above said floor, and in front of said hearth-stone a space of about 5 feet by 4 feet of the original floor, which has been greatly worn by tear and wear, had been cross-sheathed over with thin flooring. These sheathing boards have been recently lifted for examination, and they are now in the keeping of Mr McEwan of the attic house. The under sides of two of these boards are strongly marked as if by water, which seems to have been lodged or poured between these thin sheathing boards and the original floor.
We are of opinion that water has been poured from the west side of said sheathing by the spout of a kettle or some such like utensil, and the sheathing being all its own thickness above the old flooring, the water so poured would readily run in between the under side of the sheathing, and the old floor which falls towards the east. Water thus poured would not show any wetness on the floor of the attic house occupied by Mr McEwan, but would find vent through the joints of the original flooring into the old cracks of the ceiling plaster of the house occupied by the defender on the second floor. As to the individual who may have poured the water there, we cannot tell, but we are decidedly of opinoin that by some such mode as we have described, the water came down from the attic house, through the ceiling on the house of Mr McEwan the defender. William Allison. William Swan. Greenock, 30th January, 1861.
His Lordship remarked that the report was very clear and distinct.
Mr McClure, for the pursuer, argued that the floor had not been lifted to any extent, and that no water had been run down on that floor to test whether or not it would run to the defender’s house. He wished a more minute examination.
Mr McIlwraith, for the defender, said that the inspectors were men of integrity, and in every way well qualified to form a sound opinion. They had satisfied their own minds, and the result was clear that the defender was innocent. He felt it inconvenient to be attending the court for hours, and he considered the defender was, in the view of the report and the proof, entitled to absolvitor with full expenses.
The Sheriff remarked that he had every confidence in the inspectors, and no better men could have been selected. As the pursuer, however, wished the floor of the garret house opened, he would remit the matter to the same gentlemen to reinspect, to open the floor, and to test it with water, if they had not already done so, and to report further. The following is the Sheriff’s interlocutor: –
“Having considered the report, remits of new to the Reporters to report as to what is the result of pouring water from above; and, in respect that the pursuer intimates a desire that the floor of the house should be raised, requests them to report of new after this has been done. This to be done in sight of parties and their agents.”
Greenock Advertiser, 31st January 1861.
Small Debt Court – Yesterday.
The Water Case.
The case, Paul against McEwan, was finally heard yesterday before the Court. The second report of the Inspectors was read by the Sheriff, and is as follows —
Report by William Allison, Master of Works, Greenock, and William Swan, Slater, there, in the case Paul v. McEwan.
We, William Allison, Master of Works, Greenock, and William Swan, Slater, there, by virtue of a second remit from his Lordship, the Sheriff-Substitute, of date 30th January last, again, on the 4th instant, visited the houses in question in Cross-shore street, Greenock, in presence of William McClure, writer in Greenock, agent for Paul, and Hew McIlwraith, writer, agent for McEwan.
We thoroughly examined the houses; we tested the ceiling of the defender’s house in the same way as we had done before writing the first report. At the request of Mr McClure and Mr Paul, we directed that the holes formerly cut in the plaster of the ceiling of the defender’s house, be filled up with putty lime, by a plasterer employed by the pursuer, Mr Paul, in order, as stated by Mr McClure and Mr Paul, to see if water would come through the old cracks in the ceiling. After this was done, water was poured on the flooring of the attic house to the west side of the sheathing on the floor as described in the first report, and in two minutes after the water being poured, it was running through the old cracks in the ceiling of the defender’s house, in some portions of the cracks in a stream of water, and in others hanging in globules on the ceiling.
Water was also poured behind the coom-ceiling of the attic house, under which coom-ceiling the beds are situated in defender’s house. There is no flooring behind the coom-ceiling in defender’s house. We poured water on the plaster of the ceiling, which immediately ran through, close to the wall, on the ceiling of the bed, where the defender’s grandchild slept.
We respectfully beg to state that, before making our first report, we had tested the ceiling of the defender’s house by pouring water on various portions of the attic floor, and from the additional test made at Mr McClure’s request, we have greater reason to adhere to our former report, to which we beg to refer your Lordship. William Allison. William Swan. Greenock, 5th February, 1861.
Mr McClure stated the case on the evidence on behalf of the pursuer, and Mr McIlwraith on behalf of the defender, both agents going minutely into the facts and circumstances connected with it.
The Sheriff pronounced judgment. He thought there was a good deal of discrepancy in some parts of the evidence, and that he was entitled to assume that the water that first came down was of a cleaner and different colour from what latterly fell from the roof. This would infer that it was thrown up inside; but then the firemen who were in the house on Sunday, were trustworthy persons, and they were quite sure that it came from the house above.
The inspectors had arrived at the conclusion that it had come from the house above, but by whom it was put through did not appear from the evidence. He felt himself justified in assoilizieing [*] the defender from the charge, but he would give no expenses. The pursuer was bound to pay the fees of the Inspectors.
Greenock Advertiser, 7th February 1861.
*absolving
[report as above] The under sides of two of them are strongly marked as if by water, which seems to have been lodged or poured between these thin sheathing boards and the original floor. We are of opinion that water has been poured from the west side of said sheathing by the spout of a kettle or some such utensil, and the sheathing being all its own thickness above the old flooring, the water so poured would readily run in between the underside of the sheathing and the old floor which falls towards the east.
Water thus poured would not show any wetness on the floor of the attic house occupied by Mr McKeown, but would find vent through the joists of the original flooring into the old cracks in the ceiling plaster of the house occupied by the defender on the second floor. As to the individual who may have poured the water there we cannot tell, but we are distinctly of opinion that by some such mode as we have described the water came down from the attic house on the house of McEwan, the defender.”
Mr McClure, for the pursuer, urged that the report did not touch on the subject-matter at all. He was ready to have the whole floor taken up, and the whole plaster taken down, to be at the bottom of the matter, so that the guilty party might be found out and punished. The reporters had not heard the evidence, and it did not appear that they had either taken up any of the floor or experimented by pouring water, without which he held it to be impossible to come to a sufficient judgment on the subject. They reported that they only saw one joist, while he had himself seen two in the small portion of the floor already lifted, and if more floor were lifted still more joists would be visible.
Mr McIlwraith, for the defender, urged that the report was from a source that could be relied on, and went clearly to exonerate McEwan.
The Sheriff said the difficulty he felt was the absence of a motive in wetting the house.
After some further discussion it was agreed to remit the matter anew to the same reporters to say what would be the effect of pouring water in the way referred to from McKeown’s house, and as to whether some of the flooring in said house should not be taken up, and to do this if necessary, in order to obtain further information on the subject.
Greenock Telegraph and Clyde Shipping Gazette, 2nd February 1861.