sewers (b) which are situate in any parish mentioned in schedule (A.) to this Act (except such sewers as are mentioned in schedule (D.) to this Act), with the walls, defences, banks, outlets, sluices, flaps, penstocks, gullies, grates, works, and things thereunto appertaining, and the materials thereof, with all rights of way and passage used and enjoyed by such commissioners over or to such sewers, works, and things, and all other rights concerning or incident to such sewers, works, and things, shall become vested in the vestry of such parish; and all sewers vested in the said metropolitan commissioners which are situate within any district mentioned in schedule (B.) to this Act, except as before excepted, with all such works and things as aforesaid appertaining thereto, and all rights of way and passage used and enjoyed by such commissioners over or to such sewers, works, and things, and all other rights concerning or incident to such sewers, works, and things, shall become vested in the board of works, for such district; and all sewers made and to be made within any such parish or district, except sewers and works vested or to be vested in the metropolitan board of works, as hereinafter, mentioned shall be vested in such vestry and board respectively. acts of wrongful interference with sewers. Neither the present section nor the 135th, vesting the main sewers in the metropolitan board, contains the exception found in the 7th section of the Metropolitan Sewers Act, 1848, (11 & 12 Vict. c. 112,) vesting sewers in those commissioners of " sewers made or to be made by any person or persons, for his or their own profit, or for the profit of the proprietors or shareholders." That exception was borrowed from the Public Health Act, into which it was introduced in order to preserve the rights of the Cheltenham Sewers Company, acting under a local Act. See Lawes' edition of the Public Health Act, 11 & 12 Vict. c. 63, note to the 44th section. It would be difficult to assign any practical operation to those words as regards the sewers of the metropolis, but their omission from the present cnactment may obviate attempts to make claims upon and control the action of the bodies charged with the jurisdiction over sewers which might be attended with inconvenience. (b) See 11 & 12 Viet. c. 102, s. 7 (now expired), as to sewers vested in the metropolitan commissioners of sewers. district all sewers them, and LXIX. The vestry of every parish mentioned in sche- Vestries and dule (A.) to this Act, and the board of works for every boards to redistrict mentioned in schedule (B.) to this Act, shall pair, &c. (subject to the powers by this Act vested in the metro- vested in politan board of works (c)) from time to time repair and from time to maintain the sewers under this Act vested in them, or struct new such of them as shall not be discontinued, closed up, or ones, &c. destroyed under the powers herein contained, and shall cause to be made(d), repaired, and maintained such sewers (c) See proviso to this section prohibiting the making of new sewers without the previous approval of the metropolitan board of works, and the 138th section, authorizing the metropolitan board to make orders for controlling vestries and district boards as to construction, &c., of sewers, and generally in relation to sewerage. And see now ss. 45, 46, 47, 48, 49, 50, and 51 of 25 & 26 Vict. c. 102, post, as to the course to be pursued by vestries, district boards, &c., with respect to the construction of new sewers. See also sect. 83, of same Act, giving power to the metropolitan board of works to make byelaws for the guidance of vestries, &c., in the construction of sewers. (d) Though the language of this enactment is imperative, a discretion must be allowed to vestries, &c., as to the time at which such works should be executed; and, in other respects, therefore, a writ of mandamus which ordered the vestry of a parish, immediately after the receipt of the writ, to cause to be made such sewers and works as might be necessary for effectually draining a particular part of the parish, and to take all necessary steps in that behalf, without showing that a reasonable time had elapsed, or that there was a present duty to drain that particular part at once, or that the approval of the metropolitan board had been obtained, was held to be defective; R. v. The Vestry of St. Luke, Chelsea, 31 L. J. (N.S.) Q. B. 50. It was suggested in the judgment that the proper form might be to issue a mandamus ordering the vestry to go before the metropolitan board of works and get their approval, and in the event of such approval being obtained, another mandamus might be issued ordering the vestry to make the sewers. But looking to the grounds of the judgment, showing that a discretion must necessarily be vested in the body charged with the duty as to the time of doing the works, the manner of providing funds, and the relative urgency of the works in various localities, there seems little reason to anticipate that such a writ could be supported. See a full report of this case, setting out the return in extenso, in 26 J. P. 85. See Ex parte Champ, 20 J. P. 756, where a rule for a mandamus to the same vestry to make sewers in another part of the same time to con and works, or such diversions or alterations of sewers and works, as may be necessary for effectually draining their parish or district (e), and shall cause all banks, wharves, docks, or defences abutting on or adjoining any river, stream, canal, pond, or watercourse in such parish or district to be raised, strengthened, or altered or repaired, where it may be necessary so to do, for effectually draining, or protecting from floods or inundation such parish or district; and it shall be lawful for any such vestry or district board to carry any such sewers or works through, across, or under any turnpike road (ƒ), or any street or place laid out as or intended for a street (g), or through or under any cellar or vault which may be under the pavement or carriageway of any street, and into, through, or under any lands whatsoever (h), making compensation (i) for any damage done thereby as hereinafter provided; and it shall be lawful for any such vestry or district board from time to time to enlarge, contract, raise, lower, arch over, or otherwise improve or alter all or any of the sewers, watercourses, parish had been discharged for want of a sufficient demand and refusal. (e) See sect. 58 of 25 & 26 Vict. c. 102, post, authorizing, subject to certain conditions, the construction of sewerage works by vestries and district boards beyond the limits of the metropolis; sect. 44 of 25 & 26 Vict. c. 102, post, authorizing owners of land to construct sewers for drainage thereof, at their own expense, and empowering vestries, &c., to contribute to the cost out of the rates; and 25 & 26 Vict. c. 102, s. 52, et seq., as to construction of sewers by vestries at the cost either in whole or in part of private parties. (f) See as to notice and other requirements in breaking up turnpike roads, 25 & 26 Vict. c. 102, s. 33, post. (g) See interpretation of word "street," sect. 250. See 25 & 26 Vict. c. 102, s. 84, post, empowering vestries, &c., with consent of metropolitan boards, to stop up streets during their works. () As to the right of carrying sewers through private property, see notes (i) and (k) to sect, 135; and sects. 34 and 35 of 25 & 26 Vict. c. 102, post, as to notices, plans, &c. of works affecting railways and canals. (i) As to compensation for damage, see sect. 225, and note (k) to sect. 135, as to claims for compensation and actions against boards and vestries. and works which shall be from time to time vested in them or subject to their order and control, and to discontinue, close up, or destroy such of them as they may deem to have become unnecessary: Provided always, that no new sewer shall be made without the previous approval of the metropolitan board of works (k): Provided also, that the discontinuance, closing up, destruction, or alteration of any sewer as aforesaid shall be so done as not to create a nuisance; and if by reason thereof any person shall be deprived of the lawful use of any covered (1) sewer, it shall be the duty of the vestry or district board to provide some other sewer or a drain as effectual for his use as the sewer of which he is so deprived: Provided also, that where the vestry or district board alter any sewer, or provide a new sewer in substitution for a sewer discontinued, closed up, or destroyed, they may contract or otherwise alter the private drains communicating with the sewer so altered, or with the sewer so discontinued, closed up, or destroyed, or may close up or destroy such private drains, and provide new drains in lieu thereof, as the circumstances of the sewerage may appear to them to require, but so that in every case the altered or substituted drain shall be as effectual for the use of the person entitled thereto as the drain previously used. district LXX. Wherever any party is, by prescription, by Power to reason of tenure, or otherwise, liable by law to maintain vestries and or do any repairs to sewers, banks, watercourses, or boards to do works in any such parish or district which the vestry or provement in district board judge it necessary to alter or improve, it sewers, &c., the expense shall be lawful for them to make such alterations or of which to (k) See proviso to sect. 58 of 25 & 26 Vict. c. 102, post, making this consent necessary in all cases where new sewers are constructed by any vestry, district board, or other body having control over sewers within the metropolis; and see note (c), supra. (1) The word "covered" does not occur in the 38th section of the Metropolitan Sewers Act (11 & 12 Vict. c. 112), from which this provision has been adopted. This addition will exclude claims by parties draining into open watercourses. works of im be divided between the and the parish or improvements therein as they think proper, and to divide party liable the expense of such alterations or improvements between the party liable to such maintenance or redistrict (a). pairs and the parish, district, or persons who would have been wholly liable to the expense of such alterations or improvements if no party had been liable as aforesaid, so as to throw on the party liable to (a) As to the obligations of individuals in respect of sewers' works in general, see Callis, p. 139; Serj. Woolrych, Law of Sewers, 2nd ed. 68, et seq., and 15th sect. of 3 & 4 Will. 4, c. 22. Several examples of liabilities of this nature are found in the records of the former sewers' commissions existing within the metropolitan limits. Under the Greenwich commission various parties were held liable to do works of repair, raise the river wall, scour and bottom ditches, cut weeds, &c., by reason of tenure. This commission, the limits of which extended from the head of the Ravensbourne to Lombard's Wall, in the county of Kent, as also the Surrey and Kent commission, having jurisdiction from East Moulsey, in Surrey, to the river Ravensbourne, in Kent, were both subject to the provisions of the Act 3 & 4 Will. 4, c. 22. The course pursued by the Greenwich commission was to issue their precept to the sheriff to return a jury, and the jury impanelled were sworn by the court to inquire (amongst other matters) of the persons, &c. who, by reason of their tenure of certain lands, tenements, or hereditaments, were bound to repair or contribute to the repair of walls, defences, &c., or do other works the cost of which was not payable out of the general taxes and levies raised within the level, and also to inquire what works were necessary. The jury then heard evidence, and delivered their presentment into court; upon which the court decreed the works, and ordered notices to be served upon the parties ordering their execution, on pain of forfeiting certain sums which were specified. Subsequently the wall reeve presented cases of non-repair. Besides the maintenance, &c. of ditches and causeways, some of these works extended to the raising or repairing of the bank or wall of the river Thames, and at one time the liability to perform such works seems to have been considered a ground of exemption from the general assessments imposed upon the level. There are, also, a few cases of presentments by juries of similar obligations attaching to individuals in the parish of Rotherhithe and elsewhere within the Surrey and Kent commission, such as to strengthen and heighten the bank and wall of the Thames, so as to resist the tidal waters; but there is reason to doubt whether, under that commission, those liabilities were, in later times at least, ever enforced by adverse proceedings. Similar liabilities also existed under the Poplar commission, the court |