1911. In re Hall's repair of the bridge, including its surface ways and approaches, but they say that for this purpose the swing bridge or opening portion Charity; Severn is on a different footing to the rest. Commissioners Trustees and Worcestershire In the first place they contend that this is not part of the bridge 2. Hall's Charity at all, but a mechanical contrivance by which the bridge, as a bridge, can, for the time being, be destroyed. This argument, in my County Council. opinion, confuses the mechanism for opening and closing with the opening part itself; the opening part carries the highway over the river none the less that for the accommodation of the traffic on another highway it can lawfully be removed for a time. The real fact is that the bridge is merely one of a special construction designed to meet the special needs of the public, and the opening part, with the necessary machinery, is as much a part of such a bridge as any other part. But they say, suppose this is so, still, inasmuch as by virtue of the Acts of 1846 and 1881, and the agreement above mentioned, the burden of repairing the opening portion is, as between the County Council and the Commissioners, thrown on the latter body, no part of the fund is applicable for this purpose. I confess I find it difficult to follow this contention. The decree of 1851 declares that the fund is to be applied towards the reparation of the bridge, and I cannot see that it makes any difference, so far as the applicability of the fund is concerned, on which of two authorities the duty of repairing the several portions is cast. It is said the effect of the Acts of Parliament and agreement is to entitle the County Council, as between them and the Commissioners, to the full benefit of the fund, and this, I think, is the 1eal ground upon which it is attempted to rest the contention I have referred to. On the possible questions whether, if there were rival claims, the County Council might require their claim to be first satisfied, or whether, the fund having been exhausted by previous payments to the Commissioners, the County Council would have a claim to be reimbursed by them, I say nothing; for these questions do not arise. The repairs done by the Commissioners are, in my opinion, reparations of the bridge: the fund is, by the terms of the feoffment and the order, applicable for such reparations; and I do not see how any possible claim of the County Council can affect the matter. It has been further contended that the settlor intended to benefit the inhabitants of the county of Worcester exclusively by relieving them of the burden of repairing the bridge, and that therefore the fund cannot be applied in relieving the Commissioners. The answer is that he has devoted the fund to the repair of a bridge which is for the benefit of all his Majesty's subjects who may pass that way, and that I cannot limit the scope of his bounty in the manner suggested. It is the bridge which is to be repaired, not any particular body of persons to be benefited in pocket by the fund. I must answer both questions in the affirmative. The answer to the second question, following the form in which it is asked, will not prejudice any question as to apportionment or priority, with which I expressly Idecline to deal. Solicitors-Church. Rendell, Bird & Co., for T. Southall, Worcester; Blundell, Gordon & Co. ; O. B. Cowley. bigh Court of Justice. CHANCERY DIVISION.-Eve J. SCHWEDER v. WORTHING GAS LIGHT AND COKE COMPANY. Streets-Breaking-up street to lay gas mains-Laying pipes through roof of subway under street-"Building"-"Tunnel"-" Reinstatement of tunnel"-Gasworks Clauses Act, 1847 (10 & 11 Viet. c. 15), ss. 6, 7, 10-Worthing Gas Act, 1907 (7 Edw. VII., c. lxxxix). The owner of land on either side of a street made a subway under the road connecting his two properties. A gas company having power to lay pipes in the street laid them in or through the roof of the subway, and in so doing removed part of the roof which they did not reinstate. Held. that the subway was a building" within the meaning of section of the Gasworks Clauses Act, 1847, and therefore the company had no power to lay their pipes into, through or against it. Thompson and Co. v. Sunderland Gas Co., 2 Ex. D. 429 followed. Held also, that the subway was not a The word "tunnel" in section 6 means something ejusdem Caledonian Railway v. City of Glasgow, 3 Fraser 526 applied. Action for declaration and injunction. By the Worthing Gas Act, 1907 (7 Edw. 7, c. lxxxix.) the defendants were empowered to purchase certain land near the plaintiff's residence for the purpose of erecting new gasworks and to lay down gas pipes and mains for the purpose of connecting such new works with their existing gas works at Worthing. They were also empowered to exercise the powers of breaking up streets and bridges given by the Gasworks Clauses Act, 1847. The defendants acquired the land for the purposes of the Act. The plaintiff was the owner of other land situated on both sides of a highway or street through which the defendants were authorised to lay their pipes and in September, 1909, he completed a subway of tunnel under the road connecting his two properties on either side of the road. Such tunnel is fully described in the judgment. 1911. Oct. 31. 1911. Schweder v. In December, 1910, the defendants opened up the road over the tunnel, removed part of the roof of the tunnel and laid two gas mains upon and to a certain extent in and through the roof of the tunnel. The Gasworks Clauses Act, 1847 (10 & 11 Vict., c. 15) provides as follows: Section 6. "The undertakers under such superintendence as is hereinafter specified may open and break up the soil and pavement of the several streets and bridges within the limits of the special Act and may open and break up any sewers drains or tunnels within or under such streets and bridges and lay down and place within the same limits pipes conduits service pipes and other works and from time to time repair alter or remove the same . . . and do all other acts which the undertakers shall from time to time deem necessary for supplying gas to the inhabitants of the district included within the said limits doing as little damage as may be in the execution of the powers hereby or by the special Act granted and making compensation for any damage which may be done in the execution of such powers." Section 7"Provided always that nothin herein shall authorise or empower the undertakers to lay down or place any pipes or other works into through or against any building or in any land not dedicated to public use without the consent of the owners and occupiers thereof." Section 10. "When the undertakers open or break up the road or pavement of any street or bridge or any sewer drain or tunnel they shall with all convenient speed complete the work for which the same shall be broken up and fill in the ground and reinstate and make good the road or pavement or the sewer drain or tunnel so opened or broken up The plaintiff brought this action for a declaration that the defendants were not entitled without the plaintiff's consent to lay down or place any pipe or other works in the plaintiff's land not dedicated to the use of the public, and for an injunction. P. O. LAWRENCE, K.C., and BRYAN FARRER for the plaintiff. The plaintiff's subway is a "building" within section 7 of the Waterworks Clauses Act, 1847, and therefore the defendants had no right to lay their pipes into through or against it. Further the subway is not a tunnel within the meaning of section 6 and therefore the Gas Company had no right to break into or interfere with it. The case of Thompson v. Sunderland Gas Company, 2 Ex. D. 429; 46 L. J. Ex. 710 is on all fours with the present case. The plaintiff's motive in making the subway, even though he made it for the purpose of preventing the defendants from laying their pipes, is immaterial : Bradford Corporation v. Pickles, 1895, A. C. 587; 64 L. J. Ch. 759. The pipes laid in the tunnel are a continuing trespass: Goodson v. Richardson, L. R. 9 Ch. 221; 43 L. J. Ch. 790. The word "tunnel in section 6 must be read as ejusdem generis with sewers and drains: Caledonian Railway v. Glasgow Corporation, 3 Fraser 526. The land under the highway is land belonging to the plaintiff and not dedicated by him to public use. Only the surface of the highway is dedicated to the public: Tunbridge Wells Corporation v. Baird, 1896, A. C. 434; 65 L. J. Q. B. 451. The principle is further exemplified in Battersea Vestry v. County of London and Brush Provincial Electric Lighting Company, 1899, 1 Ch. 474; 68 L. J. Ch. 238; and Marriott v. East Grinstead Gas and Water Company, 1909, 1 Ch. 70; 78 L. J. Ch. 141. MACMORRAN, K.C., and COZENS HARDY for the defendants. 1911 Schweder v. The plaintiff's tunnel is not a "building" within the meaning of Worthing Gas section 7, but it is a tunnel within the meaning of section 6. The Light and Coke defendants are therefore entitled to open and break it up and lay Company. their pipes through it. It is difficult to conceive anything which would be ejusdem generis with sewers and drains. The right to lay pipes is a statutory power overriding the rights of the owner of the land and the defendants had a right to remove the concrete: Glasgow Corporation v. Glasgow and South-Western Railway, 1895, A. C. 376, 380; 64 L. J. P. C. 171. The roof of the plaintiff's tunnel was really a bridge over the tunnel, and it has been held that a bridge is not a "building" within the meaning of section 7 and that the Company can open the surface of a bridge and lay pipes resting on the bridge: Taff Vale Railway v. Cardiff Gas Light and Coke Company, 5 L. G. R. 993; 71 J. P. 350. EVE J. The plaintiff is the owner of considerable property at Goring near Worthing in the County of Sussex and he is the occupier of what no doubt is a very attractive and pleasant residence there. Prior to 1906 the Worthing Gas Light and Coke Company, who are the defendants, had been advised that the growing demands on their supply were such as to necessitate the early extension of their works and the provision of further means for storing and distributing gas. In due course they applied to Parliament for authority to acquire certain land at Goring in the near neighbourhood of the plaintiff's residence and immediately adjoining some of his land with a view of utilising the land so to be acquired for the erection of gasometers and other works associated with the storage of gas and of connecting the same with their works at Worthing some two or three miles off. The plaintiff joined with other landowners in opposing the passage of the Bill. One can well understand the owners of land in the neighbourhood of a flourishing and increasing town like Worthing viewing with alarm the erection in their midst of gasometers and the other, I hope I shall not hurt the feelings of anybody by saying it, unsightly accompaniments incident to the storage and supply of gas. The result was that Parliament, considering that the needs of Worthing and its neighbourhood must prevail over the sentiments and objections of the landowners, passed the Bill in 1907 and thereby empowered the Company to acquire the land in question and to utilise it for the purposes I have indicated: purposes which necessarily involved the linking up by mains of the buildings on that land with their gasworks in Worthing. The incorporation of the general Act of 1847 clothed the Company with all the powers necessary to enable them to carry out the works authorized by their special Act. But the plaintiff was not the man to acknowledge himself beaten after the first encounter. He opposed the Bill unsuccessfully in both Houses and set himself to discover, as he was perfectly entitled to do, whether he could not so use his own property as to thwart and defeat the Company's intention of connecting their new works with their works in Worthing by means of mains to be laid along Goring Lane, a highway in part 1911. Schweder v. abutting on and in other part for some distance intersecting his property. It occurred to him that if he were to connect his property on one side of that road with his property on the other side by means of a passage arch or tunnel under the road, he might at one and the same time be making his own property more convenient and be inserting in the road something in the nature of an obstruction to the laying of the contemplated mains. Accordingly before the Company had set about erecting any of the works or laying any mains he commenced and completed under the whole breadth of the road the construction of a passage arch or tunnel enabling him to pass from one side to the other. It was constructed as described by the plaintiff's manager and was a boring of some 6ft. in height and 5ft. in width the sides consisting of two brick retaining walls 18in. in thickness, the intervening space of 3ft. in width being covered over by what I may call a network of longitudinal and transverse girders the rectangular spaces between the girders being filled in with concrete and the under side being finished off with an arch in brickwork. Bearing in mind the risk which even steel girders run of being damaged and possibly broken by heavy traffic passing over them the builder thought it prudent to cover the upper surface of the girders with a further layer of concrete to a depth of some five or six inches. So that the boring when completed was really a passage 3ft. wide between two retaining walls each 18in. thick and covered in by a brick arch over which was a roof of longitudinal and transverse girders and concrete. All that work was completed in September, 1910, and subsequently but at a much later date the boring was continued at each end to a point sufficient to admit of admission and exit to and from the tunnel by means of flights of steps but for all practical purposes the erection which the plaintiff had completed in September, 1910, is that which he alleges the defendant company have improperly interfered with. The Company, stirred to action it may be by the plaintiff's activity or realising that the time had come to put their statutory powers into operation, commenced to lay their mains along Goring Lane, and early in December last with a persistent alacrity prompted in part no doubt by a desire to interfere as little as possible with public traffic and in part, I hope I am doing them no injustice, by a hope that the rapidity of the work would prevent any interference with it by the plaintiff proceeded to lay the main across the tunnel in a manner of which the plaintiff complains and which he alleges gives him a good cause of action. The engineers who were responsible for the laying of the mains had prepared a plan showing how they were to be carried over the tunnel and it appears from this plan that they thought the top of the tunnel roof was at least 2ft. below the surface of the road. Proceeding upon that footing they provided for the insertion of the mains in that 2ft. but in positions which would leave sufficient soil above the larger of the two pipes to secure its safety and would also leave it quite clear of the topmost girder of the plaintiff's tunnel. The contractors were expressly instructed to avoid touching or interfering in any way with the girders but at the same time they were instructed to leave a certain margin of soil above the pipe and it may well be that what has occurred is due to the fact that the contractors finding it |