The River Pollution Dilemma in Victorian England

Nuisance Law versus Economic Efficiency

Leslie Rosenthal

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409441823
• eBook ISBN: 9781317017318
• Edition: 1
• Topic: Law
• Subtopic: 19th Century History
• Index: Law

Nineteenth-century Britain witnessed a dramatic increase in its town population, as a hitherto largely rural economy transformed itself into an urban one. Though the political and social issues arising from these events are well-known, little is known about how the British legal process coped with the everyday strains that emerged from the unprecedented scale of these changes. This book explores the river pollution dilemma faced by the British courts during the second half of the nineteenth century when the legal process had to confront the new incompatible realities arising from the increasing amounts of untreatable waste flowing into the rivers. This dilemma struck at the heart of both Victorian urban and rural society, as the necessary sanitary reformation of the swelling cities and expanding industry increasingly poisoned the rivers, threatening the countryside and agricultural rents and livelihoods. Focusing on ten legal disputes, the book investigates the dilemma that faced the courts; namely how to protect the traditional and valued rights of landholders whose rivers and lands were being polluted by industrial waste and untreated sewage, whilst not hindering the progress of sanitary reform and economic progress in the towns. The case studies considered involve major industrialising centres, such as Birmingham, Leeds, Northampton, Wolverhampton and Barnsley, but also include smaller towns such as Tunbridge Wells, Leamington Spa and Harrogate. The fundamental issues raised remain as important today as they did in Victorian times. The need for the courts to balance a variety of conflicting needs and rights within the limits of contemporary technological capabilities often played out in surprising ways, with outcomes not always in line with theoretical expectations. As such the historical context of the disputes provide fascinating insights into nineteenth-century legal process, and the environmental and social attitudes of the times.

Chapter 1
Introduction: The River Pollution Dilemma

The river pollution dilemma was a seemingly intractable problem involving towns and civil courts in England during the nineteenth century. It arose as the industrial revolution in Britain brought new circumstances, generating new difficulties regarding town sewage and the increased levels of sewage effluent appearing in Britain’s rivers. Both the background to the dilemma and the dilemma itself can be described quite simply. In the Victorian era, increasing urbanisation was bringing larger and larger populations together into bigger and bigger towns. New ideas and approaches for improving health and sanitation for these urban populations were emerging based on the provision and facilities of a water carriage system: new improved engineering would first bring clean fresh water supplies to urban homes and industry, and then would circulate through sewer networks to carry away the domestic excreta, waste and effluvia that were viewed as direct causes of disease and fever. For non-coastal towns, however, most often wastewater from the sewers was simply discharged or spilled into the rivers and streams of the countryside and often overwhelmed the natural processes of the waterways to noxious and nauseous effect. The sanitation of the towns, it seemed, required the despoiling of the countryside. No available treatment could be relied upon to treat the sewage effectively enough to avoid gross pollution of the rivers and the environs through which the rivers passed: a technological solution would not begin to become available before the twentieth century began.

But rural landowners were not helpless against the actions of town authorities in such matters. Precedent and tradition within English law held, and continue to hold, that landholders have legal rights to enjoy their property and associated running waters free from interference from others: absolutely protected by civil law rules relating to nuisance. The highest courts of the land might be approached in defence of these landowner rights and powerful judicial orders, backed by all the forces of the court, are available to successful complainants. In particular, these rights are not challengeable by appeals that greater good, for example concerning the sanitation and health of large numbers in the towns, may arise from violating property rights held by, for example, small numbers of rural gentry. The Court of Chancery is the traditional resort of such complaints and, during the Victorian era, proved fully capable of both finding the responsible towns liable for the nuisance resultant from the sewage in the rivers and issuing remedial orders to protect landowners from the towns’ polluting activities. These powers included the ability to order the closing of the sewer wastewater outlets into rivers.

Herein lay the river pollution dilemma. Stopping or closing down newly opened and developed sewage networks and sanitation schemes in large towns would create impossible social problems: how could a town cope with the court denying it its only available means of discharging its sewage? Could the courts, actually, in the event, bring down such a calamity upon the town? And would the courts, actually, in the event, bring down such a calamity upon the town?

This dilemma was by no means a purely academic or philosophical puzzle to be mulled over. There were a sizeable number of instances, at the Court of Chancery and elsewhere, where Victorian town sanitary and sewage authorities were indeed sued for nuisance over their sewage disposal methods by individuals and groups of neighbouring landholders. Invariably, the outcome was for the town to be found unequivocally liable for the nuisance. In such circumstances injunctions requiring the halting of the town’s sewage pollution of the rivers concerned would come to be expected. However, although the sanitary activities and practices of the affected towns were usually undeniably, and often deeply, affected, it transpires that in no instance can it be found that the sewage network of any town was actually stopped on the order of the court. How the river sewage pollution dilemma played out, in practice, for a number of individual towns so affected is the core subject of this book.

The analytical method used to explore the dilemma is to examine the history and context of a number of Victorian-era civil disputes over river pollution where nuisance suits were brought. The history and context of ten disputes are described in detail, along with less detailed reference to others, and these histories have been collected together into chapters to illustrate the major common themes and routes by which the nuisance disputes and the associated dilemmas played out. The towns involved in the sewage pollution disputes include both large industrialising centres, such as Birmingham, Leeds and Wolverhampton, as well as much smaller communities, including Tunbridge Wells and Harrogate. Included also are two instances of river pollution nuisance cases which, while not directly sewage-related, further illustrate the ways that disputes under nuisance law can end. As many of the disputes stretched over extended time periods and involved numerous court hearings and appearances, some of the case studies illustrate more than just one of the pathways by which the dilemma played out.

Given the major objective of the study is to follow through the history and context of the disputes and detail how they evolved in practice, this is not a study in legal history as normally understood. Legal research, even in a historical context, is usually concerned with aspects of the establishment of liability, legal argument, leading cases and, perhaps, the establishment of new precedent, and in such pursuit the record of the court judgment and proceedings themselves are of most immediate interest. The leading figure advocating consideration of law cases in their wider setting as required here is A.W. Brian Simpson, and he laments that legal scholarship is rarely if ever interested in the empirical and historic context in which a case takes place.¹ But in pursuit of the wider post-litigation course and outcomes of these river pollution disputes, more is required than can be provided by just the collected detail of pre-trial depositions, courtroom argument and final judgment on liability, and so reports of court hearings are of less central importance to the study here than they would be in a purely legal examination of, for example, the evolution of the law on environmental protection. What is required here is information on how the towns reacted to their adverse judgment: whether injunctions and orders were obeyed or later violated; whether sequestrations resulted and with what effect; how any abatements of the nuisance were effected; and, in the end, how town sanitary authorities went about avoiding the potentially catastrophic closing down of their sewer discharges. In essence – what happened next?

Sources which usually inform legal treatises will seldom suffice for investigations of post-litigation outcomes. Fortunately, information and evidence on the consequent post-litigation histories of these river nuisance disputes is often (but not always) available from a number of other sources. As the defendants in most of the cases examined are local governing bodies with authority over town sewage affairs – town councils, local boards of health and boards of improvement commissioners – varied sources of information can be available. Formal minutes of meetings and submitted reports for these public bodies and their sub-committees are usually still in existence as sources; though the level of detail provided, their completeness and the amount of self-protective censoring does vary considerably among the examples. Similarly, as the affairs of these public bodies are properly of concern and interest to the general local populace, the local newspapers of the town will often provide priceless details of debates and controversies among the members of the ruling authorities, detail the actual progress on the sanitation of the town and provide general colour and reflect local opinion that could not otherwise be accessed. (The digitalisation of local and provincial newspapers in the UK will surely have revolutionary effects on the study of local history.)

Where public bodies are not involved, the situation is very different. Evidence from sources for private persons and organisations is much more elusive. Had the concern of the study required the investigation of Victorian nuisance disputes between purely private individuals and commercial enterprises, rather than those involving public authorities, finding documentary evidence on the post-litigation outcomes would have proved much more troublesome. Nevertheless, the plaintiff or complainant side of the disputes covered were indeed private individuals or groups of individuals, and one might normally expect this side of the disputes to have left little documentary trace after a century and a half. Unfortunately, for most of these plaintiffs – millers (at Northampton and Banbury), small landowners (along the Dearne at Barnsley), and middle-class professionals and businessmen (at Leamington Spa and Harrogate) – this is the case. But, in the narratives set out here, there appear a surprising number of historically important and celebrated individuals and, for some of these more eminent and aristocratic complainants, including Charles Adderley (Lord Norton) at Birmingham and the Giffard family at Wolverhampton, useful archives of relevant materials exist. Indeed, for one of the cases examined, material from the plaintiff side, from the Legh family archive, provided the only source for any detailed information on the dispute, and without this source no information at all would have been available from which to construct the relevant detail of the dispute.

It will already be clear that the very nature of the phenomenon being investigated here precludes the use of classic methodological approaches to the investigation. There exists no prospect, for example, of double-blind experiments or the use of formal statistical analysis on an unbiased sample of cases. It is difficult enough to assemble any sample of Victorian civil court cases on river pollution nuisance, let alone a valid randomly selected one. Even the full set of such disputes that reached the court system remains uncertain, and will have to await full digitisation of archive records. In any case, as will become clear, the nature of the problem is such that out-of-court settlement of disputes is possible, before any formal court record is made, so a full list of these nuisance disputes is not only unavailable but could never be assembled.

The method being applied here is that of a comparative case study, a less formal approach to analysis but one that remains common in many disciplines, including history, politics, medicine and psychology.² To find the examples included in this book, use was made, perforce, of information contained in law reports, local authority reports and newspaper accounts for known cases, from whence reference to further contemporary cases and disputes were found that could also be followed up. After initial review, detailed post-litigation histories were constructed for the cases reported in detail here – cases which could most clearly illustrate both the river pollution dilemma itself and the different means that were actually adopted or emerged to tackle the dilemma. Hence the bulk of the chapters below present the historical narrative of these case studies. The histories have, however, been grouped together as examples to illustrate a particular means, strategy or path taken, by court or defendant or both, that allowed the dispute to come to an end. In order to do so, the cases have been compared historically, using guiding hypotheses³ from the sub-field of ‘law and economics’ to search out and interpret patterns in the ways in which the river sewage dilemma was evaded.

Establishing the presence and significance of patterns of response to the river pollution dilemma is one objective of this study, but there remain others. The case studies, considered in their historical context, also stand as absorbing histories of disputes that often stood at the centre of important episodes in the urban development of major Victorian British towns and can cast light on the urban, civic and social histories of the towns concerned. In the main, these episodes have been little explored and undeservedly under-researched.

¹ A.W. Brian Simpson, Leading Cases in the Common Law (Oxford: Oxford University Press, 1995), 7–12.

² Arend Lijphart, ‘Comparative Politics and the Comparative Method’, The American Political Science Review, 65 (1971): 682–93; Theda Skocpol, ‘Emerging Agendas and Recurrent Strategies in Historical Sociology’, in Visions and Method in Historical Sociology, (ed.) Theda Skocpol (Cambridge: Cambridge University Press, 1984), 368–74.

³ Rosemary H.T. O’Kane, Paths to Democracy: Revolution and Totalitarianism (London: Routledge, 2004), 20–1.

Chapter 2
Victorian Britain I: Public Health and Local Government

… the twentieth century looks back upon the 1840s with a puzzled wonder of an Alice stepping into the world behind the looking-glass.¹

It is difficult, perhaps impossible, to conjure up the look and feel of societies of the past. The Britain of a century-and-a-half ago was different not only in terms of material prosperity, technological skills and knowledge: it was also crucially different in terms of the era’s own expectations of what an ordered society could look like or was capable of looking like. Twenty-first-century citizens have conscious and unconscious awareness of (if not always access to) possibilities and potentialities for individuals and society that were unavailable to even to the most far-seeing and speculative of the dreamers, philosophers and social reformers of the nineteenth century.

Much of the content of this book concerns the consequences of the necessary management of the growing quantities of human and industrial waste resultant from the concentrations of humanity and human industry in and around urban communities over that period. Britain, at the forefront of the industrial revolution, was also the pioneer in having to deal with the problems of waste and sewage disposal that resulted. To better understand the background against which the events of the river pollution dilemma disputes developed, this chapter presents a brief review of the relevant urban public health developments over the span of the Victorian period in Britain between 1830 and 1900. This will serve as a common background and a setting against which the river pollution case studies that follow may be seen.

Edwin Chadwick and the Water Carriage System

Many aspects of his life make Edwin Chadwick a formidable historical figure. Here, of primary interest is his role in the development and popularisation of the water carriage idea for the modern city. Chadwick was the major mover promoting the water carriage system and his work push-started the sanitary reform movement in Britain from the late 1830s. It was Chadwick who, forcefully and confidently, but without many influential prior examples to guide him, and no practical contemporary ones, developed a plan and put forward a model for the urban environment for the modern era that has become so ubiquitous that alternatives seem almost unthinkable.

The water carriage system² refers to the integrated system by which water having been carried into the urban area, usually for a variety of primary purposes, is then used in a secondary manner as a means of collecting, through a sewer network, the waste products of the industrial and domestic sectors (typically using water closets) and is the medium used to carry off these waste products away from the town, often to rivers or the sea. None of the individual pieces of the jigsaw can be viewed as novel to the nineteenth century: water had commonly been piped even into Romano-British settlements to be used for sophisticated, albeit mostly public, latrines and baths, and there was nothing new about flushing toilets and using drains, sewers and rivers to carry away waste from urban communities.³ But to envisage for the modern urban area an integrated, ‘arterial’ water carriage system and network serving diffused private households as a central element to improve urban health, as presented by Chadwick, was novel and was by no means ‘in the air’ as the Victorian era opens. With a water carriage system urban waste, with its unpleasantness and unwholesomeness, could be quickly removed while it was still fresh and before its disease-causing properties could become, as then believed, increasingly dangerous as it accumulated. The practical implications of the actual institution of such an integrated and interdependent system and the support required for its maintenance have proved to be extraordinarily far-reaching.

For the establishment of a water carriage waste system in a sizeable urban centre, there would first need to be a substantial water supply available both to carry the waste away and to flush the system. The water supply would ideally have to be continuous and under enough pressure to do its waste-carrying job as well as clearing blockages and scouring the sewers. Early in the nineteenth century, most water was supplied to towns by public and private water providers from a rag-bag of wells, rivers and streams, mostly via communal sources and often of questionable quality. Queues of peo...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Maps
• General Editor’s Preface
• Preface and Acknowledgements
• 1 Introduction: The River Pollution Dilemma
• 2 Victorian Britain I: Public Health and Local Government
• 3 Victorian Britain II: River Pollution and Sanitary Engineering
• 4 Nuisance Law and Nuisance Economics
• 5 Birmingham, Adderley and the River Tame
• 6 Delays and Contingencies: Leeds and Barnsley
• 7 The Threat of Sequestration: Leamington Spa and Tunbridge Wells
• 8 Negotiation and Settlement: Harrogate and the St Helens Canal
• 9 The Tactic of Diversion: Northampton and the Brinsop Hall Coal Company
• 10 Protection by Statutory Legislation: Wolverhampton
• 11 Conclusions
• Bibliography
• Index