Page images

Participants” (throngh whom the defendants claim) down to the passing of the General Sewers Act (3 and 4 Will. IV., c. 22). These participants were in the position of a public body (subject to the control of the Commissioners of Sewers when in existence) who held valuable lands, rights, and privileges, subject to certain obligations to the Crown and to the landowners of the district drained by the works which were executed by the participants, and whose lands would be liable to flooding if those works were not properly maintained. And in particular the participants held the banks of the river, subject to the obligation and liability to repair and maintain them in an efficient'state so as to prevent risk of flooding or injury to the district. The participants cannot be considered as ordinary private landowners purchasing from the Crown and having merely the ordinary duties and liabilities of landowners as to the user of their lands. By an agreement of May 21, 1626, which was executed by King Charles I. under the Great Seal of England, Cornelius Vermuyden and his coadventurers (who and whose assigns for the time being constituted the participants) undertook to drain and reclaim, fit for tillage or pasture, the district which, or a considerable part of which, was then flooded or liable to be flooled or to be surrounded by water, and to execute all necessary works for that purpose, and for their services they were to receive one-third of the then surrounded or waste grounds which then belonged to or were acquired by the Crown. Several of the powers and privileges granted could certainly at the present time only be conferred by Parliament, and even in 1626, could only be justified, if at all, by the fact that the King entered into the agreement as representing the State in order that works of a public character and of advantage to the State might be carried out. It was contemplated that the participants should be incorporated, though that was not carried out. The agreement provided for certain lands being set apart for the maintenance of the works, but this did not free the participants from their personal liability to maintain the works. ment was followed by a further one, dated December 27, 1628, entered into by the King “by and with the advice of the Right Honourable the Lords and others of his Majesty's most Honourable Privy Counsell," and executed by him uuder the Great Seal of England. It recited the first agreement, and on certain terms and conditions agreed to convey to the participants the two-thirds of the lands which under the first agreement were to belong to the Crown. This was followed by an order of the Privy Council, dated April 26, 1633, which declared that the drains, so far as executed by the participants, were imperfect, and through their default had drowned and were likely to drown thereafter a quantity of other lands belonging to divers others, and that it was essential that the Dutch river and the participants' other works should be completed and charged on the participants "which have begun the same for the public good and for the discharge of all parties interested in the said drains.” It then declared that the cost ought to be duly apportioned between the participants themselves, and that commissioners of sewers should be appointed for the level. In accordance with this order commissioners of sewers were from time to time appointed for a term of years, and continued to exist (lown to the year 1858. The

This agree

river and other works of the participants were completed by them, and were thereafter maintained under the control of the commissioners. And on March 29, 1636, there followed a conveyance by the Crown of the reclaimed lands agreed to be granted to the participants. The fact that the participants owned and were liable to repair the banks of the Dutch river has been recognised in several statutes, and also in the award of 1754 made in pursuance of the Inclosure Act of 25 Geo. II., under which the plaintiff now claims some of his lands. It is further shown by numerous and continuous entries in the records of the Court of the Commissioners of Sewers, and several orders enforced the obligation of the participants as owners to repair and maintain the banks of the river. The effect of the Act of 3 and 4 Will. IV. was to vest in the commissioners for the time being the estate in the banks of the river which belonged to the participants, but to leave the participants still liable for the maintenance and repair of the banks. When the commissioners came to an end in 1858 the old estate of the participants in the banks became revested in them, or again revived, for their right remained unaffected by the Act except so far only as was necessary to carry out its provisions. To complete once for all the title of the defendants, on the passing of the Act of 1862 (25 and 26 Vict., c. 140), which incorporated the participants under the title of the Corporation of the Level of Hatfield Chase, the banks of the river which then belonged to the participants became vested in the defendants subject to the same liability to maintain and repair as the participants were under before the incorporation. Under these circumstances, it is for the plaintiff to show that he or his predecessors acquired the right he now claims. His claim mainly rests on the undoubted fact that he and his predecessors have during a long period, extending over more than a century, from time to time used and repaired the clough. The clough was made many years ago, probably about the middle of the last century. No contemporaneous document exists which shows how or on what terms or conditions it originally came to be made or used. I think the probabilities are, and I will assume that it was constructed by one of the plaintiff's predecessors in order that he might warp some of his lands. But the true conclusion to be drawn is that down to 1858 the plaintiff's predecessors had not acquired any estate in the clough or any easement over it or any irrevocable licence to use it. The plaintiff produces no grant of any estate easement or irrevocable licence nor any document showing that any such grant ever existed. And on the facts I think no lost grant can be assumed as contended for by him so as to bring this case within the authority of such cases as that of Simpson v. The Mayor of Godmanchester (L. R. [1896], 1 Ch., 214). The true conclusion to be drawn is that the clough was made and was originally, and down to the year 1958, used by the plaintiff's predecesso

essors by permission or revocable licence and not as of right, and on the terms that until the permission was withdrawn they should repair the clough and also (at any rate for several years before 1858) fifteen yards of the bank on each side of the clough. This permission was, at any rate for many years prior to the passing of the Act 3 and 4 Will. IV., c. 22, given by the commissioners of sewers, who appear to have


been regarded, as between them and the participants, as entitled, by virtue of their office, on behalf of or so as to bind the owders of the banks to give permissions or irrevocable licences to neighbouring landowners to make and use cloughs in the banks. And I think the permissions given to the plaintiff's predecessors by the commissioners in respect of this particular clough must be regarded as given in right of the participants. The participants appear to have acquiesced in the view which the commissioners took of their powers. It may well be that after a protest made by the participants about 1816 (to which his Lordship more fully referred) they could not as against the licensees challenge the right of the commissioners to give permissions to warp or impeach the permissions on the ground that the commissioners could not grant them. But that would not enable the licensecs (including the plaintiff's predecessors) to say as against the participants that by the permission or licences or by enjoying them they had acquired any estate in or easement over the cloughs or had deprived the participants of their property in the cloughs. And after the Act of Will. IV. of course the permissions would be granted by the commissioners in their capacity not only as commissioners having certain powers, but also as being owners in fee. And when the commissioners came to an end in 1858 the rights of the participants revived as owners of the banks entitled to say as against those who had formerly obtained permissions from the commissioners to use the cloughs that those permissions could be revoked as and when the participants wished. His Lordship then referred to entries and to permissions to make cloughs and as to applications by, amorgst others, the plaintiff's predecessors for permission to use cloughs already erected and previously used and the bonds of indemnity required from them, and proceeded as follows :— These show that at those dates it was not considered that any persons were entitled to any clough or to use it as of right. From other entries it appears that, from the first time this clough is expressly mentioned until the records of the commissioners close, the entries treat the plaintiff's predecessors and those predecessors petition the commissioners on the footing that they were persons merely using the cloughs by permission granted from time to time. These entries are, in my opinion, inconsistent with the view that the plaintiff's predecessors were the owners of the clough or were entitled to use it as of right subject only (if at all) to mere regulations as to user by the commissioners, or with any view except that the plaintiff's predecessors in using the clough did so under a revocable licence. In addition to the above facts it appears to me important to remember the circumstances under which the participants were constituted and acquired their rights, and in particular the terms on which they held the banks of the river. They were a public or quasi-public body with special rights and liabilities. The banks of the river had to be maintained by them, and they got no direct benefit from the banks as owners. Their obligation to maintain the banks and prevent flooding was a duty of a public nature cast upon them as the consideration for grants and privileges from the Crown of a special character. In my opinion they could not have alienated the banks or freed themselves from their liability and duty. On the participants and the commissioners was cast the duty so to deal with and regulate the use of the banks as to prevent floodling of the adjacent district or the possibility of it, and that duty they could not delegate. They could not have validly granted away a part of the bank or given an irrevocable licence to any one to use it for all time or at that person's pleasure or discretion. They could not have granted to the plaiutiff's predecessors the clough in question, which is part of the bank, or given those predecessors an irrevocable licence to use it which would in any way prevent the participants and the commissioners from having full control over the clough, and from saying when and how and under what safegaards it should be used for warping. No doubt the process of warping, if due care is exercised and the right times and seasons are selected, may not be dangerous to the neighbouring lands. But otherwise there would be great danger of the district being flooded, and, in my opinion, the plaintiff's predecessors could not have bad validly entrusted to them the right to warp at their pleasure or to say when and how warping through this clough should be carried on. It appears to me, therefore, in the first place, that the presumption is strong, apart from the other facts above mentioned, that the participants or the commissioners never did grant this clough to the plaintiff's predecessors or any easement or irrevocable licence to use it for purposes of warping. But, beyond being useful on this question of presumption, I think the facts bring the case within the principle of such authorities as the Rochdale Canal Propriсtors v. Radcliffe (18 Q. B., 287), Proprietors of Staffordshire and Worcestershire Canal Navigation v. Proprietors of Birmingham Canal Navigations (L. R., 1 H. L., 251), and Ayr Harbour Trustees v. Oswald (L. R., 8 App. Cas., 623). I think that no grant to the plaintiff or his predecessors of the clough or an easement or irrevocable licence to use it for warping, as claimed on behalf of the plaintiff could have been validly made, and that, therefore, no such grant can be implied by user on the part of the plaintiff or his predecessors, and no title to the clough or to an easement over it for warping could be acquired under the Statute of Limitations or Prescription Act respectively. I see no reason why the principle of the above cases should be limited to incorporated companies or to companies established by Act of Parliament, or why it should not apply to a case of a body like the participants, whose peculiar position I have above considered in detail and need not here repeat. It follows that, in my opinion, no title existed in plaintiff's predecessors down to the year 1858. As to the subsequent facts, the participants until they were incorporated and the defendants after that time, on the one hand, and the plaintiff, on the other, appear to have continued the previously-existing arrangement by a sort of mutnal understanding, without anything express being set forth or declared by writing. The plaintiff was permitted from time to time to use the clough for pur. poses of warping on terms of keeping the clough and fifteen yards of the bank on cacb side in repair, until ultimately, shortly before this action, disputes arose, and the plaintiff claimed for the first time the right he now insists upon, and then this action is brought. As the plaintiff's contention that he has since 1858 acquired a title to the clough by possession under the Statute of Limitations or an easement under the Prescription

[ocr errors]

Act, if the clovyh or an casement couid not be validly granted by the participants or the defendants the Statute of Limitations or the Prescription Act will not avail the plaintiff. But, apart from this consideration, I think this last contention of the plaintiff cannot be supported. The Statute of Limitations does not apply, for on the facts I hold that the participants and defendants never ceased to retain possession of the banks, including the part in which the clough lies; and that the plaintiff was not in possession of the clough, but only used it from time to time, and then, I think, by the tacit perniission of the participants and defendants and on the old terms of doing the repairs to the clough and the fifteen yards of bank on each side. As to the claim to an easement, there has been no such continuous user as would, in my judgment, support this claim. Such user as there was constituted no such continuous user as would be necessary under the Prescription Act. As to this, Hollins v. Verncy (13 Q. B. D., 305) is in point. Cooper v. Straker (40 Ch. D., 21) is distinguishable. That was not a case of user like the present, where the use relied on is the going upon another's premises. It was in a sense a case of continuous enjoyment by the owner of the dominant tenement. Moreover, in the case now before me I think the user must be taken to have been by permission and on terms which would prevent the plaintiff from relying on it as establishing a right to an easement. For these reasons the action fails and must be dismissed.-(T. L. R., Ch. D., vol. xii. p. 383.)


[JUNE 2ND, 1896.1 Metropolis - Sewer Drain rccciving Drainage of several Houses

Previous Approval of the Metropolitan Board of Works-Liability to Repair-Metropolis Management Act, 1855 (18 and 19 Vict. c. 120), 88. 69, 250.

The mere fact that the approval of the Metropolitan Board of Works bas not been obtained under s. 69 of the Metropolis Management Act, 1855, for the making of a new sewer does not prevent it, when made, from being a sewer repairable by the vestry.

Semble, such approval ought to be presumed after the lapse of a number of years in the absence of proof to the contrary.

The arguments in this case were heard on April 27. The facts and arguments appear in the judgment.

The judgment of the Court was delivered by the LORD CHIEF JUSTICE. - This is an application by the School Board for London against the vestry of a metropolitan parish for a mandamus to compel the vestry to repair a drain or sewer which was made in 1866 and receives the drainage and sewage of several houses and is therefore prima facic a sewer within

« EelmineJätka »