« EelmineJätka »
Act) from the agricultural land, shall, while the build"ings are used only for the cultivation of the said land
be calculated not on structural cost, but on the rent at
which they could be expected to let to a tenant from "year to year, if they could only be so used." Let us read "market gardens" for " agricultural land" as required by the definition clause, and it would seem that the single question remaining is whether the glass houses in question are "buildings" or not. As they are built on brick walls, I confess I cannot understand why they should not be. It would scarcely be argued that the Crystal Palace is not a building because it is made of glass. But the matter even goes further. Not only is there no distinction drawn between lands and buildings in the Public Health Act, 1875, but the former are made expressly to include the latter. In Section 4 of that Act it is said that "in this Act, if not inconsistent with the context
"lands are to include messuages, buildings, lands, easements, and hereditaments of any tenure; and (though the point was not argued) the court must be taken to have decided in the Worthing case that there is nothing inconsistent with the context in Section 211 to apply Section 4 to it; indeed that seems obvious. The result is that we have an exactly opposite set of circumstances and expressions in the Agricultural Rates Act to those presented in the Public Health Act, under which the Worthing case was decided. The words I have quoted from Section 5 (c), stating exactly how buildings which are used for the cultivation of market gardens are to be assessed, seem so specific that it is difficult to escape from them, and say, in spite of their clearness, land and buildings shall be put together and called "land" indiscriminately.
No such point as that arose in the Worthing case. There the question really was whether, as a whole, the property was to be called "greenhouses" or "market "garden." In the rate it had been described as greenhouses, and the point to be decided was whether that was right. There was no question of separation into the two items of "buildings" and "land." It was with reference to this that Mr. Justice Day said, In my "judgment it is a market garden. It is said that it is "not a market garden because the bulk of it is under 'glass, but in my opinion a garden in not the less a garden because it is protected by glass against the "weather." But the question arising under the Agricultural Rates Act in these cases is not whether a certain piece of land is a market garden or not, but whether, a market garden consisting partly of land and partly of buildings in the shape of glass houses, there is any reason why they should not be assessed separately and on different bases, as the Act seems to direct. It is evident that we shall have no satisfactory answer to the question until the matter is carried to a divisional court.
F. MARSHALL, Q.C., Associate.
Enformation is sought on the following points:
AGRICULTURAL HOLDING "FOLDAGE OF FLOCK"-COMPENSATION.
(For Replies to this Query, see pp. 171, 172.)
Can the "foldage of a flock" be claimed under the following clauses of a lease?
The tenant agrees "to leave all the unused muck, dung, and compost which shall be made upon the premises in the said last year, on being paid or allowed at the usual rate for same."
The landlord agrees" to take all the hay and straw at feeding price, and pay for all dressings, muck, dung, and compost, and such seeds sown, &c." The tenant's family have had the farm for many years-no old inventory produced.
LONDON BUILDING ACT 1894-PARTY-WALL.
(For a Reply to this Query, see p. 172.)
In the case of Drury (appellant District Surveyor) v. The Army and Navy Auxiliary Stores (Law Times Reports, vol. lxxiv. p. 621, July 18, 1896),* it was held by the Queen's Bench Division that a wall which divided two adjoining buildings of unequal height was a party-wall only to the height to which it divided the two buildings, and that the remainder of the wall upwards to the top of the higher building was not a party-wall or part of a party-wall, but an external wall superposed on a party-wall. This being so, how does it affect the Section which gives a building owner inter alia (A) power to pull down and rebuild a party-wall, and (B) power to raise a party-wall? From the above decision it may be argued that where a building owner desires to use the power marked (A) above, and his house is the lower of the two houses divided by the party-wall, he has no power to pull down and rebuild more than the lower or party-wall portion of the
* See Professional Notes, vol. viii. p. 99, ante.
dividing wall, and that he has no power to interfere with the upper portion of the wall, which, by the decision, is held to be the external wall of the upper part of the adjoining owner's higher house (superposed on the lower party-wall) and therefore not a party-wall at all. Then with regard to the power marked (B) above: assume the owner of one of two adjoining houses of equal height to be desirous of pulling down, rebuilding, and raising the party-wall for the purpose of building his house higher. If, according to the judgment in the above cited case, the raised portion of the wall is to be considered as an external wall of the building owner's house, it cannot be a party-wall nor part of a party-wall, but an external wall superposed on a party-wall, and, as the Act gives him only the power to raise the party-wall, the judgment prevents his using such power by saying the raised portion will not be a raised portion of a party-wall, but will be an external wall built on a party-wall, as to which, quâ external wall, the Act gives no power to the building owner to construct it. Of course, in using the word "power" here, I mean power to the building owner (under statutory surveyor's award) to pull down and rebuild, or to raise, without the consent of the adjoining owner.
The question is, are the above contentions the necessary corollaries of the above-cited decision of the Queen's Bench Division of the High Court?
POUNDING A STREAM.
(For Replies to this Query, see p. 173.)
A farmer having nearly two miles of watercourse or brook passing exclusively through his farm, once a year pounds the brook for a certain number of days, during which time a large accumulation of sand and mud descends to the pound, and when the stream is very nearly bank full he withdraws his pound, and the great weight of water forces the sand and mud into his neighbour's brook-course below, thereby choking it. What is the step to take to end the annoyance and injury done?
RIGHT OF WAY.
(For Replies to this Query, see p. 174.)
A farmer has a field of growing wheat, his neighbour as tenant of A has the right of passage over the field to another field he occupies. adjoining, but he does not exercise the right while the crop is standing. His landlord A, however, being a stickler for his rights, feels that the easement must not be lost, and thereupon sends his own cart-horses and land-roll over the standing crop to the field of his tenant and back again.
Probably the owner of the wheat is not aware whether the landlord A has reserved the right for himself and servants to use the road jointly with his tenant, and does not take action. Would he have recovered damages?
SEWERING NEW ESTATE-DUTY OF LOCAL AUTHORITY TO
(For a Reply to this Query, see p. 175.)
A county borough includes a large tract of land ripe for building, but unsewered. Under the Public Health Act 1875 there are sundry powers vested in and duties imposed upon sanitary authorities in respect to the construction of new sewers.
(i.) Is there any Act or Local Government Board Order exempting the sanitary authority of a county borough from the provisions of the Public Health Act 1875.
(ii.) Is a sanitary authority under the said Act bound to remove house refuse and cleanse cesspools, or must a Local Government Board Order be first obtained to compel them to do so.
(iii.) Can a sanitary authority be compelled to construct an outfall sewer where the land cannot be drained by gravitation into their existing system of sewerage, bearing in mind the decision in Reg. v. Tynemouth District Council, June 19 and July 21, 1896.
BOARDS OF GUARDIANS-ACQUISITION OF LAND-COMPULSORY
(For Replies to this Query, see p. 175.)
Under what compulsory powers can a Board of Guardians (within the London County Council area) compel an owner of property adjoining their workhouse to part with his premises?
BUILDING AGREEMENT-LIABILITY TO DO WORKS TO ENABLE COVENANT TO BE PERFORMED.
(For a Reply to this Query, see p. 176.)
A builder three years ago entered into an agreement for lease of some