(793.) ATTORNEY-GENERAL v. TOD HEATLY AND BROWNRIGG. [TUESDAY, NOVEMBER 24TH, 1896.] Public Health-London - Vacant Land-Nuisance-Vestry-OwnerInjunction-Public Health (London) Act, 1891 (54 & 55 Vict., c. 76), ss. 13 and 35. Local authorities in London have a right, both at common law and under the Public Health (London) Act, 1891, to bring an action in the High Court for an injunction to restrain the owner of a vacant piece of land from allowing the land to be a nuisance; but the Court is reluctant to grant an injunction, which the owner may not be able to obey, when the local authorities have special powers under the Act to abate the nuisance themselves, and to make the owner pay the expenses.--(L. T. [1897], C. D., vol. lxxv. p. 452.) (794.) [QUEEN'S BENCH DIVISION.] LONDON AND NORTH WESTERN RAILWAY COMPANY, APPELLANTS, v. COMMISSIONERS OF SEWERS OF FOBBING LEVELS, RESPONDENTS. [DECEMBER 8TH, 1896.] Sea Walls-Liability of Frontager to Repair-Custom — Ratione Tenure-Presumption of Legal Origin. Where the liability of a frontager to keep the sea wall on his land in repair at his sole experse has long been asserted, and has long been submitted to on his part, it will be presumed to have originated under a local custom or ratione tenure, or in some other legal way, unless and until it is proved that it cannot have had a legal origin. If in order to presume a legal origin it is necessary to presume a grant from the Crown, the court will presume such a grant.—(L. T. [1897], Q. B. D., vol. lxxv., p. 629.) (795.) [COURT OF APPEAL.] DIXON v. THE GREAT WESTERN RAILWAY COMPANY. [DECEMBER 9TH, 1896.] Railway-Accommodation Works-Fence-Fence erected more than Five Years after Opening of Railway--Liability to MaintainRailways Clauses Act 1845 (8 & 9 Vict. c. 20), ss. 68 and 73. By section 68 of the Railways Clauses Act 1845 a railway company "shall make and at all times thereafter maintain sufficient fences for separating the land taken for the use of the railway from the adjoining lands not taken and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout"; and, by section 73, "the company shall not be compelled to make any further or additional works for the use of occupiers and owners of land adjoining the railway after five years from the opening of the railway for public use." The defendants did not erect any fence separating the railway from the adjoining land within the five years, but did erect one subsequently. Owing to the defective condition of this fence an animal of the plaintiff escaped from the adjoining land, of which he was the occupier, and was injured on the railway. Held (affirming the judgment of Lord Russell, C.J.), that the defendants were bound to maintain the fence, though it was erected after the expiration of five years from the opening of the railway, and were liable for the injury to the animal of the plaintiff.-(L. T. [1896], C. A., vol. lxxv., p. 539.) Metropolis 796.) LONDON COUNTY COUNCIL, APPELLANTS; HOBBIS, RESPONDENT. [DECEMBER 10TH, 1896.] - Ministerial County Council - Dangerous Structures Duties-Delegation-London Building Act, 1894 (57 & 58 Vict. c. 213), Part IX. Where a public duty vested in a public body is not discretionary but merely ministerial the public body may delegate it to one of its officers. The duties of the London County Council as to dangerous structures under Part IX. of the London Building Act, 1894 (57 & 58 Vict. c. 213), are merely ministerial, and may, therefore, be delegated to the Council's superintending architect.—(L. T. [1897], Q. B. D., vol. lxxv. p. 687.) (797.) PEEBLES AND OTHERS v. THE OSWALDTWISTLE URBAN DISTRICT COUNCIL (a). NOVEMBER 11TH AND DECEMBER 11TH, 1896. Public Health-Liquids from Factory-Right of Owner of Factory to Drain Liquids into Public Sewer-Duty of Local Authority to provide Sewers, and give facilities for Draining into existing Sewers— Mandamus-Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 15, 21, 299; Rivers Pollution Prevention Act, 1876 (39 & 40 Vict. c. 75), 88. 7, 10. An action was commenced by a manufacturer for a mandamus to compel the local authority, under sections 15 and 21 of the Public Health Act, 1875, to cause to be made such sewers as were necessary for effectually draining their district for the purposes of the Act; and, under section 7 of the Rivers Pollution Prevention Act, 1876, to give facilities for enabling the manufacturer to carry the liquids proceeding from his factory into the sewers under their control. Held, that a mandamus ought to be granted in so far as it related to the claim to compel the local authority to cause to be made such sewers as were necessary for effectually draining their district under the Public Health Act and the manufacturer's premises in particular, upon the ground that, under sections 15 and 21, the authority were bound to provide sufficient sewers to carry off the liquids from factories within their district, and that for any default by the authoirty in this obligation section 299 provided no exclusive or sufficient remedy, and had no application in such a case as the present where the question was one of law and not of fact; but that a mandamus ought not to be granted to compel the authority to give facilities under section 7 of the Act of 1876 for enabling the manufacturer to carry the liquids from his factory into existing sewers, upon the ground that for any default in that respect a sufficient and exclusive remedy was provided by section 10 of the Act, which constituted the County Court of the district the tribunal to deal with such default.—(L. T. [18971, Q. B. D., vol. lxxv. p. 689.) (798.) [IN THE HOUSE OF LORDS.] M'NAB, APPELLANT, v. ROBERTSON AND OTHERS, [DECEMBER 15TH, 1896.] Water--Diversion of Spring-Stream-Lease-Covenant. Water percolating discontinuously through or along strata cannot be described as a "stream." A lessor demised by lease a distillery, cottages, thirteen and a half acres of land, with two ponds, " together with right to the water in the said ponds and in the streams leading thereto." The lease also contained the usual warrandice clause. The lessor sunk a tank on ground outside but adjoining the demised subjects, and drew off from marshy ground percolating water which would have found its way eventually into one of the ponds. Held (Lord Halsbury, L.C., dissenting), affirming the decision of the Second Division of the Court of Session, that water percolating through the ground towards the pond was not water in any stream leading to the pond. Held, secondly, by the whole House, that, assuming an implied obligation on the part of the lessor not to diminish the water supply to the ponds, there had been no breach.-(L. R. [1897], part 1, p. 129.) (799.) [IN THE COURT OF APPEAL.] LORD GERRARD, APFELLANT; THE KENT COUNTY [DECEMBER 17TH, 1896.] Highway-Extraordinary Traffic-Person by whose order Traffic is Conducted Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict., c. 77), s. 23. The appellant was owner of a house and land, in respect of which be was undertaking building and other operations, which he intended to carry out himself and not by means of contractors. Samples of the various materials which he required were submitted to and approved by him, and the persons proposing to supply the materials gave an inclusive price for the same delivered free. No contract was entered into for the supply of specified quantities of the materials, nor was the appellant bound to take any, but he gave information from time to time of the amounts that he required, and they were delivered accordingly. The manner in which the materials were to be brought was left to the persons who supplied them, but the appellant knew that the delivery would be by means of tractionengines, and that it would have been impracticable to deliver in any other manner at the prices named. The traffic caused by the carriage of the materials was extraordinary traffic, and damaged a highway which the respondents were liable to repair. On a case stated by quarter sessions: Held, by Lord Esher, M.R., and Rigby, L.J, Lopes, L.J., dissenting, that the appellant was not a person by whose order the traffic was conducted within the meaning of section 23 of the Highways and Locomotives (Amendment) Act, 1878.—(L. R. [1897], C. A., vol. i. p. 351.) (800.) [QUEEN'S BENCH DIVISION.] THE CONSERVATORS OF HAYES COMMON, APPELLANTS ; THE BROMLEY RURAL DISTRICT COUNCIL, RESPONDENTS. [DECEMBER 17TH, 1896.] Justices-Jurisdiction― Commons-Digging Gravel for Roads-Highway Act, 1835 (5 & 6 Will. 4, c. 50), s. 51— Commons Act, 1876 (39 & 40 Vict., c. 56), s. 20-Discretion of Justices to Refuse to make Order. By section 51 of the Highway Act, 1835, power is given to a surveyor of highways to get and carry away gravel, &c., in any waste land or common ground. By section 20 of the Commons Act, 1876, such right is not to be exercised, as regards certain classes of commons, "without the consent of the person or persons having the regulation or management of the same, or in default of such consent without an order of two or more justices in petty sessions assembled. . . . who may in their order prescribe such conditions as to mode of working and restitution of the surface as to them shall seem expedient." The appellants having refused leave to the respondents to take gravel from a common, the latter applied to justices, who made an order under section 20 of the Commons Act, 1876, on the express ground that the section only gave them power to prescribe the conditions under which the right given by section 35 of the Highway Act, 1835, was to be exercised, and that they had, therefore, no discretion to refuse altogether to make an order : Held, that the decision of the justices was wrong, and that they had absolute discretion, under section 20 of the Commons Act, 1876, to make or refuse to make an order.-(L. R. [1897], Q. B. D., vol. i. p. 321.] (801.) [CHANCERY DIVISION.] SIMPSON v. HUGHES AND ARMSTRONG. ARMSTRONG v. HUGHES (a). [DECEMBER 18TH, 1896.] Specific Performance-Contract on Letters-Reference to Time for Completion in Acceptance. H., the owner of a freehold estate, offered it in writing for sale at £2,000. The plaintiff wrote back accepting the offer, but at the end of the letter added: "I should like to know from what time Mr. H. wishes the purchase to date." Held, that there was a completed contract for sale on the letters.(L. T., Ch. D., vol. lxxv. p. 487.) |
