(819)

[COURT OF APPEAL.]

APPLEYARD v. THE LAMBETH VESTRY.

[MARCH 15TH, 1897.]

Metropolis-Sewer or Drain-Liability to Repair-Definition of Sewer -Metropolis Management Acts, 1855 and 1862.

(For a previous stage of this Case, see vol. viii. p. 200 ante.)

This was an appeal from the judgment of Mr. Justice Hawkins at the trial of the action without a jury. The action was brought for a mandamus calling upon the defendants to repair and cleanse certain sewage or drainage pipes which conveyed the drainage of four houses, and the question was whether the pipes were sewers, in which case the defendants would be bound to repair and cleanse them, or drains, in which case the duty of keeping them in repair would rest upon the owners of the houses. Definitions of "sewer" and "drain are given in section 250 of the Metropolis Management Act, 1855. The word “ sewer" means and includes sewers and drains of every description, except drains to which the word "drain," interpreted as it is in that section, applies. The word "drain" means and includes "any drain of, and used for the drainage of, one building only, or premises within the same curtilage, and made merely for the purpose of communicating with a cesspool or other like reeeptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed, and shall also include any drain for draining any group cr block of houses by a combined operation under the order of any vestry or district board." Section 112 of the Metropolis Management Act, 1862, extends the definition of "drain" so as to include "any drain for draining a group or block of houses by a combined operation laid or constructed before the 1st of January, 1856, pursuant to the order or direction, or with the sanction or approval of the Metropolitan Commissioners of Sewers." The houses, which were drained by the pipes in question, were built in 1838, and the pipes were laid at the same time, and the drainage, as then constructed, remained till the present time. The drainage authorities at that date were the Commissioners of Sewers for Surrey and Kent. The Metropolitan Commissioners of Sewers were created in 1848 by the Statute 11 and 12 Vict., c. 112. Mr. Justice Hawkins held that the pipes were not drains within section 112 of the Act of 1862, and were, therefore, sewers, and he gave judgment for the plaintiff, granting the mandamus prayed for. The defendants appealed, and contended that the expression Metropolitan Commissioners of Sewers," used in Section 112 of the Act of 1862, was not confined to the body created by the Act of 1848, but included the previously existing Commissioners of Sewers for Surrey and Kent.

The COURT, without calling upon counsel for the plaintiff, dismissed the appeal, and upheld the judgment of the learned Judge.—(T. L. R. [1897], vol. xiii. p. 289.)

(820.)

JENKS v. VISCOUNT CLIFDEN.

[MARCH 16TH, 1897.]

Lights-Obstruction-Actio Personalis-Continuance of ObstructionCivil Procedure Act, 1833 (3 & 4 Will. IV., c. 42), s. 2.

The continuance of an obstruction to ancient lights is an "injury committed" in respect of property within the meaning of 3 & 4 Will. IV., c. 42, s. 2, giving rise to a cause of action de die in diem, and therefore an action in respect of the continuance of the obstruction in the lifetime of the person who caused it may be maintained against his executors or adminis trators notwithstanding that the obstructing building was completed more than six calendar mouths before his death.

Woodhouse v. Walker (1880), 5 Q. B. D., 404, followed.

The plaintiff, Maurice Jenks, was the owner of two freehold houses, Nos. 10 and 11, Cleveland Row, Saint James, Middlesex, in respect whereof he claimed to be entitled to ancient lights.

Henry George Viscount Clifden, who was the owner of houses immediately opposite to the plaintiff's property, made certain alterations therein whereby, as the plaintiff alleged, his ancient lights were materially obstructed and interfered with. These alterations were begun on April 24th, 1894, and completed on August 23rd, 1894.

Henry George Viscount Clifden died on March 3rd, 1895, and on August 5th, 1895, letters of administration, with his will annexed, were granted to the defendants Leopold G. F. Viscount Clifden and Luke, Baron Annaly.

On January 15th, 1896, the plaintiff brought this action, claiming, by his writ, against the defendants damages for obstructing the access of light and air to the plaintiff's houses, and an injunction, and costs, and so far as necessary administration of the estate of the deceased Viscount.

The defendants by their statement of defence, while not admitting that the alterations complained of affected the access of light or air to the plaintiff's houses, pleaded and relied on s. 2 of the statute 3 & 4 Will. IV.,

c. 42.*

For the purpose of obtaining a decision of the Court upon the point of law so raised by the defence, admissions of the dates and material facts above stated were made by the parties, it being agreed that, if the point of law was finally decided against the defendants, the question of the

....

* Section 2 of 3 & 4 Will. 4, c. 42, is, so far as is material, as follows:-" And whereas there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime, nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property, real or personal; for remedy thereof be it enacted, that an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person. . . ."

damage (if any) to the plaintiff's light was to be referred to an expert to be named by the judge on the footing that the defendants did not admit any obstruction.

Upon these admissions the action now came on for hearing.

KEKEWICH J. The defendants' first line of defence is that the right of action here claimed by the plaintiff is merely statutory, and therefore no action can be maintained except as expressly sanctioned by the statute. That seems to me to be sound, and the question is whether on that footing the action is maintainable. It might be possible to raise questions in this or in similar cases respecting the words in the statute, “for any wrong committed by him in his lifetime to another." The offending house here was completed more than six months before the death of the late Viscount Clifden, and there might be a question how far any wrong was committed by him after the date of the completion; but nothing has turned upon that. The argument turns on the words which follow, "so as such injury shall have been committed six calendar months before the death," The question is not when the wrong was committed, but when the injury was committed. The injury seems to me to have been committed not by the completion of the house, but by the continuance of the obstruction from day to day. Each day the offending house continued to be on the land, injury was done to the obstructed house, and so strictly there was injury from day to day. That seems to me to be exactly what was decided in Woodhouse v. Walker, and explained in the judgment of Lush, J., and I observe that in quoting the statute, which he does on pp. 407, 408, he leaves out the words which I have said are not material for the present purpose as not being material for his purpose, and begins with the words "so as such injury, &c." He says "the wrong "-it was a case of permissive waste" of not repairing was a continuing wrong, giving a cause of action de die in diem up to the day of the death of the tenant for life, and the action was brought within the six months after the death." That is a direct authority upon the words of the statute that any continuing wrong giving a cause of action arising within the period of six calendar months before the death of the wrongdoer is an injury committed within six calendar months from the death, because the injury accrues from day to day. The answer made to that is that under modern procedure damages for injury by obstruction of light must be assessed not with reference to the issue of the writ, but with reference to the real injury to the property once for all, and therefore, it is argued, there is no injury committed from day to day. That argument seems to confuse the damages which may be recovered for the injury, and the injury which gives rise to the damages. I put to Counsel the case of an action for obstruction of light against a person who, after action brought, causes the offending building to be pulled down. Of course there is in that case a right to recover damages up to the time when the building was pulled down. But until the action is brought the plaintiff cannot tell what the injury will be. When he brings his action he gets the proper amount of compensation assessed as damages to his house by reason of the obstruction of light. The fact that when he brings his action he has damages once for all, and not up to the issue of the writ, does not in the least interfere with the right to complain in respect of the continuing injury. The meaning of

the statute as I understand it is this. At common law an action of this character fell within that class which was not permitted as against the representative of a deceased person, inasmuch as the right of action against him personally ceased at his death. It was intended to remedy that state of things, and that, subject to certain limitations and restrictions as regards time, a person whose light was obstructed or who could complain of a trespass should be entitled to bring his action against the representative of a deceased person just as if the deceased were still alive, and the action were brought against him. The restrictions are inserted to prevent the grievance which it was intended to remove being succeeded by a grievance in the opposite direction; but, subject to these restrictions, the representative seems to me to be placed on the same platform on which the testator or intestate was in his lifetime. In my opinion, therefore, this action can be maintained; and there must be a declaration that the plaintiff is entitled to maintain his action and to recover damages for the obstruction so far as those damages were sustained during six months preceding the death of Lord Clifden. -(L. R. [1897] C. D., vol. i., p. 694.)

(821.)

PEEBLES v. THE OSWALDTWISTLE URBAN DISTRICT COUNCIL.

[MARCH 17TH AND 18TH.]

APPEAL FROM THE QUEEN'S BENCH DIVISION.

Local Government-Sewers-Duty of Local Authority to make Sewers -Default-Remedy-Mandamus-Complaint to Local Government Board-Public Health Act, 1875 (38 & 39 Vict., c. 55), ss. 15, 21,

299.

(For a previous stage of this Case, see p. 323 ante.)

A mandamus cannot be granted to compel a local authority to perform the duty, imposed upon them by section 15 of the Public Health Act, 1875, to provide sufficient sewers for draining their district, a complaint to the Local Government Board, under section 299 of the Act. being the exclusive remedy for neglect of that duty.-(L. T. [1897], C. A, vol. lxxvi. p. 315.)

(822).

[QUEEN'S BENCH DIVISION.]

THE OVERSEERS AND PARISH COUNCIL OF CRAYFORD v. RUTTER.

[MARCH 18TH, 1897.]

Rating-Lighting and Watching Act, 1833-Rates-Land--Property other than Land.

Certain brickfields held to be land for the purposes of rating under the Lighting and Watching Act, 1833.

This was a special case stated by the Quarter Sessions of Kent on a rating appeal in respect of rates made under the Lighting and Watching Act, 1833 (3 and 4 Will. IV.,c. 90) on a brickfield belonging to the respondents on this application, the appellants in the Court below. The question raised was whether brickfields were "land" or "houses, build ings, and property other than land," "land" being rated at one-third of the other class.

case.

The quarter sessions held that the amount at which the respondents, the owners of the brickfield, should be assessed should be 2d. in the pound instead of 6d., as in the rate, and directed that the rate should be amended accordingly. On this the rating authority obtained the statement of a By Section 33 of the Lighting and Watching Act it is provided that "property (other than land) rateable to the relief of the poor shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land should be rated." These brickfields had been rated at 6d. in the pound as "brickfields, land used for pipes, and other lands." The facts were these: Of the land included on the assessment 25 acres was agricultural land, and as to this there was there was no dispute. The remainder was used and occupied by the respondents entirely for brickmaking. There were situated on the property in question several engine-houses with engines and wash mills. On the surface of the ground were laid tram lines, by which brick earth excavated was conveyed to the wash mills. The earth, after being treated there, was conveyed by lines of pipes. There was also an open shed used as a wheelwright's shop and smithy, with an anvil and furnace, and a "tumble-down stable. A cottage on the property was occupied by a foreman. There was also a wharf used for loading bricks into barges. A kiln ground was used for burning the bricks in damps. On another plot, described as "hack ground," was another engine-house, with engine and coal sheds, and also a concrete pavement for drying bricks. The bricks when standing on these slabs are covered with moveable wooden hack covers. The clay pits and moulders' huts situated on one of the plots consisted of a series of roofed buildings with open sides, containing 14 machine mixers worked by the engine. On the part of