Professional Notes

Law Reports, vol. ii., 2 B. D., part ix., page 271, prevents me from inferring the disastrous consequences suggested in the question.

The wall in question was not a party-wall as defined by Section 5. It was a wall, required by Section 75, dividing a building beyond the 250,000 feet cube into separate portions.

The description of the wall does not comply with the definition, Section 5, 16 (a), as the building on each side belongs to the same owner, nor with 16 (b), because it does not stand on the land of more than one

owner.

WRIGHT, J., in his judgment says, with reference to Section 75, Obviously in that section the words 'party-wall' are used not in their “technical sense, but as a convenient phrase for dividing walls.”

Should the portions of the building so divided be sold to different persons, the purchaser of the lower portion would have to obtain a sufficient conveyance, or some of the difficulties suggested in the question might arise, but before the wall could be used as a party-wall as defined in Section 5, under such circumstances, the district surveyor's action under Section 211 would have to be encountered.

THOMAS M. RICKMAN, Fellow.

Replies to Query CCCXXI. (Vol. VIII., p. 161.)

POUNDING A STREAM.

There can be little doubt the farmer has no right to interfere with the natural flow of the water if by doing so he inflicts injury upon his neighbours lower down the stream. But whether the remedy is by action for damages in the County Court or by injunction I am unable to state, and the question would seem to be more for the opinion of a legal member than for an ordinary member of the Institution.

J. W. FAIR, Fellow.

The mere fact of a farmer clearing his watercourse from sand and mud in the way indicated is not in my opinion illegal provided he does not add any extraneous matter, as by the mode which he appears to adopt he merely sends down in a rush the accumulations which would, in the natural course of events, be washed down the watercourse into the lower reaches of the stream, but if in the process of impounding the water he temporarily deprives his neighbours below of water for any necessary purpose, or in suddenly releasing the water he floods their land, then he would be liable for damages. The best mode to adopt in such an event would be either to dig down the dam or obtain an ir junction to restrain his erecting it.

E. A. RAWLENCE, Fellow.

Replies to Query CCCXXII. (Vol. VIII., p. 161.)

RIGHT OF WAY.

It may, I think, be assumed that A has a right of way at all times for himself and servants, as well as tenant, over the field in question, and therefore might be strictly within his right in acting as he did. But it was surely a most unnecessary and uncalled-for proceeding, because the rights of easement might just as effectually have been exercised at a time when no damage would have been done.

It may be contended that the right of way was only exercisable in connection with the occupation (or tenancy) of the land owned by A, but the latter would almost certainly have the right to haul timber, or sand, or gravel (if existing) over the same cartway. And it may be that A further contends that the ancient right of way was over pasture or land left uncropped for the purpose of a cartway, and he may have adopted this apparently "high-handed" proceeding in support of an argument that the land ought not to have been cropped.

The probability is, I think, that the farmer could not have recovered damages.

J. W. FAIR, Fellow.

It is impossible to answer this question without knowing the nature of the demise and the wording of the reservation to the landlord in the agreement between A and his tenant if any lease or agreement exists.

If no agreement exists then A would have demised all his rights in the easement in question to his tenant, and certainly would have committed an act of trespass.

If an agreement does exist, and the reservation to the landlord is a general one for all purposes, then A would in my opinion be within his rights; but if the reservation to the landlord is merely on the usual lines for specific purposes, such as removing minerals, timber, &c., then I am of opinion that A would, in using the right of way as he has, not be doing so in accordance with the legitimate powers reserved to him, and would in consequence be liable to damages.

If, as seems implied by the question, A merely hauled the roller up to the gate of his field and back again without going into the field, it could scarcely be held that he had done the damage in a lawful exercise of his right of way.

Under any circumstances the action seems to be a most unneighbourly one on A's part.

E. A. RAWLENCE, Fellow.

Reply to Query CCCXXIII. (Vol. VIII. p. 162).

SEWERING NEW ESTATE-DUTY OF LOCAL AUTHORITY TO
PROVIDE OUTFALL.

(i.) No.

(ii.) If the authority has itself undertaken or contracted for the removal of house refuse and the cleansing of cesspools, or has been ordered by the Local Government Board to do so, it will be liable to the penalty prescribed by Section 43 of the Public Health Act 1875 for neglecting its duty. Otherwise it cannot be compelled to remove house refuse or cleanse cesspools.

(iii.) The authority to which the question refers, being an urban authority, the decision in Reg. v. Tynemouth Rural District Council, 75 L. T. n. s. 86, does not apply, having regard to Section 25 of the Public Health Act 1875. Under that section, when there is no outfall sewer within 100 feet of some part of the site of a house, an urban authority may direct that the drains of such house shall empty into a covered cesspool or other place.

R. CUNNINGHAM GLEN, Associate.

Replies to Query CCCXXIV. (Vol. VIII., p. 162.)

I presume the inquiry is directed with reference to a union or parish within the purview of The Metropolitan Poor Act 1867 (30 Vict., c. 6). If so the powers are given by Sections 51 & 52 of that Act (which, however, by Section 53 provides that the provision as to compulsory purchase shall not be put in force, except for the purposes of enlarging a workhouse, hospital, or school existing at the passing of the Act, and then not without the previous order of the Poor Law Board directing such purchase) and Sections 31 & 32 Vict., c. 122, s. 35 interpreting the term "promoters of "the undertaking" in s. 52 of the first-named Act.

J. H. REDMAN, Associate.

Answer.-Under Sections 51 to 54 of the Metropolitan Poor Act, 1867

(30 Vict. c. 6).

R. CUNNINGHAM GLEN, Associate.

Reply to Query CCCXXV. (Vol. VIII., p. 162).

BUILDING AGREEMENT-LIABILITY TO DO WORKS TO ENABLE COVENANT TO BE PERFORMED.

I am of opinion that there is an implied covenant on the part of the builder to make the road, and that "it shall be formed and completed to the satisfaction of the lessor's surveyor."

That the above clause was inserted in the draft at the instance of the lessee, to give him the opportunity of constructing a road across the property at some future time, if he desired to do so, is an indication to me of the intention as above, and if the Lessee cannot perform his covenant to build without constructing the road, the very circumstance arises for which the clause was inserted, as the construction of the road enables him to comply with the covenant.

W. BENNETT ROGERS, Fellor.

Replies to Query CCCXXVI. (Vol. VIII., p. 164).

UNENCLOSED COMMON-GRAVEL PITS-RIGHT TO MINERALS.

The sand, gravel, and other minerals in or under an uninclosed common is the property of the lord of the manor, who can dispose of it as he may deem best. The road surveyor can open a gravel pit for the purpose of getting materials for the repairs and maintenance of the highways of the district. He must, however, pay a royalty to the lord, and compensation for any damage that may accrue through his act.

GILBERT MURRAY, Fellow.

By the Highway Act 1835 (5 & 6 William IV., c. 50, Sect. 51) it would appear that the road surveyor has power to take materials from any waste lands without making satisfaction, provided no damage can be proved and that the materials are for repair of the roads within the parish. Obviously in the case in question it would be difficult to prove any appreciable damages, but it may be for consideration how far a manor pit on an unenclosed common comes within the definition of waste land. E. A. RAWLENCE, Fellow.

The Highway Act, 1835 (5 & 6 Wm. IV. c. 50), Section 51, enables the surveyor of highways to dig for and get gravel, stone, and other material for the repair of a highway from any waste land or common

ground, river, or brook within the parish for which he shall be surveyor, without payment for the materials taken. (See Alresford Rural Sanitary Authority v. Scott, L. R., 7 Q. B. D., 210.)

J. H. REDMAN, Associate.

By proving the existence of a custom on the part of the surveyors of the highways to enter and take gravel. The custom is not unusual, but of course must be clearly established in each case.

Books

Professional Notes, 8. köide