C.

The expression "timber in the rough "I take to meam timber sawn up into scantlings of suitable size for the construction of the gates and fences, but not further shaped, planed, or otherwise prepared.

-origin of Drainage Acts in many parts of the country.

HY. SANDY, Fellow.

B.

Prima facie the owner of each bank of a stream is the owner of half the land covered by the stream, but there is no property in the water. Any proprietor who claims a right to throw the water back above, or diminish the quantity of water which is to descend below, must, in order to substantiate his claim, either prove an actual grant or licence from the proprietor whose interest is injuriously affected by his operations, or prove an uninterrupted enjoyment of 20 years which is generally accepted as conclusive evidence of a grant.

No owner can either diminish the quantity of water which would -otherwise descend, nor throw back the water to the prejudice of the owners above. Assuming that this is an ancient and natural channel it appears to me the best course to adopt would be to clear the beck periodically at the joint cost of the adjoining owners in proportion to the separate interests involved.

GILBERT MURRAY, Fellow.

Reply to Query CCCX. (Vol. VIII., p. 26.)

LONDON BUILDING ACT, 1894, SECTION 13-DEFINITION OF "FORECOURT."

In my opinion the extension C can be built under Section 13, Subsection 1, as shown upon the plan. The question of the garden wall being pulled down (which is, I assume, next the "roadway") I cannot I should think it would be required to be pulled down so as to keep all structures at the prescribed distance.

answer.

WM. WOODWARD, Fellow.

Replies to Query CCCXII. (Vol. VIII., p. 28.)

LONDON BUILDING ACT, “CUBICAL CONTENTS." HORIZONTAL PARTITION.

A.

I think that the division suggested may be permitted by the Act in cases of rebuilding where the adjoining premises overlap. But I can only express an opinion with some doubt that entirely new buildings cannot be so erected.

A. HARSTON, Fellow.

B.

It would be perfectly legal to erect a building divided horizontally as proposed, with a "proper party structure," if approached by distinct staircases and entrances also properly divided off and constructed.

I would add that the wording "proper party structure" would, in my opinion, require a strong fireproof floor, not a slender one as now frequently used to meet the requirements of Sub-section 2 of Section 74.

HENRY BLACKBOURN, Fellow.

C.

One building may be erected over another providing that the same is divided by proper party structures and walls, as defined by Section 74, and Section 5, Sub-section 20, and that each building does not exceed 250,000 cube feet, and is approached by a distinct entrance and staircase from without.

H. H. COLLINS, Fellow.

Replies to Query CCCXIII. (Vol. VIII., p. 28).

LESSEE AND LESSOR-LIABILITY TO MAKE GOOD DEFECTIVE

STONEWORK.

A.

No reliable answer can be given to this question in the absence of the repairing covenants in the two leases referred to.

I should expect to find the original lessee liable, and probably also the sub-lessee.

PHILIP E. PILDITCH, Fellow.

B.

In stating the case it does not say whether the specification was approved by the freeholder's surveyor, but in any case my opinion is: If the dilapidation affects the stability of the buildings the lessee is liable but not if it affects appearance only, as the freeholder permitted the inferior material to be used originally.

G. R. CRICKMAY, Fellow.

Replies to Query CCCXIV. (Vol. VIII., p. 28.)

COVENANT TO REPAIR.

A.

The words " fair wear and use alone excepted" lessen the obligation to repair, as without them the tenant's covenant would be much more stringent.

J. H. SHERWIN, Fellow.

B.

The question is somewhat baldly put, but I think the obligation to keep in repair involves putting in repair where necessary. And then being so put and kept in repair, the premises are so to be delivered up, "fair wear and use alone excepted." If that be the correct interpretation it is a lessening of the obligation to deliver up, according to the previous part of the covenant, in "good tenantable and decorative repair, order, and condition." I do not think it would pay to endeavour to enforce the covenant too strictly against the tenant. The strictness of the law in these matters is frequently modified by the sympathy of the judge or jury who may have to decide on the quantum of damage.

A. HARSTON, Fellow.

C.

The covenant is contradictory, as the fair wear and tear exception is not reconcilable with the stipulation to keep in good tenantable and decorative repair.

As to whether it will reduce the liability at all, I think it will, but how much cannot be said in the absence of the facts of the case, which are all important where there is an ambiguous covenant.

PHILIP E. PILDITCH, Fellow.

D.

These words of exception do not lessen the obligation to repair, but only relieve the tenant from liability for the natural deterioration and

wearing away of the property caused by its ordinary and proper use in the manner and for the purpose contemplated by the parties to the lease, proper repairs having from time to time been executed. It is doubtful whether the words really add anything to what the law implies in a repairing covenant, for if a man covenant to leave a house in the same state of repair as at the date of the lease, without any exception, the ordinary and natural decay and gradual wearing away by use is no breach (1 Shep. Touch., 169). A passage from the judgment in Manchester Bonded Warehouse Co. v. Carr (5 C. P. D., 513), may be usefully noted: "It only "remains to consider whether reasonable wear and tear can include "destruction by reasonable use. These words no doubt include destruc"tion to some extent, e.g. destruction of surface by ordinary friction, "but we do not think they contemplate total destruction by a catastrophe

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never contemplated by either party." In Davies v. Davies (38 Ch. D., 505), Kekewich J. seems to have considered that the words "fair wear "and tear," would exempt the tenant from liability if portions of the premises were entirely destroyed by wearing out. But the view is not consistent with the current of authorities, and a thing which is worn out is not kept in repair, and if it does not exist cannot be delivered up. J. H. REDMAN, Associate.

Replies to Query CCCXV. (Vol. VIII., p. 29.)

SEWER EASEMENTS.

A.

In this case, as I understand it, the question at issue is the interpretation of the concluding words of the covenant B, "as the said rights are at present subsisting."

C contends, apparently, that if he provides any (sufficient) outfall for the drainage of A's cottages, that is a compliance with the covenant.

A, on the other hand, says the outfall must be the one existing at the time of the conveyance, and that no addition, subtraction, modification, or variation of any kind must be made.

Theoretically the latter contention is correct, but if C could show that his works were not any derogation from the easement retained by A, and that they gave A substantially everything he secured by the original outfall, it is quite possible a judge would construe the words liberally, and hold that C had complied with the covenant.

I think C would, however, have done wisely to consult A before making the alteration, and that he would be well advised to act now with restraint.

As to the second question, the particulars given are too vague, and recent decisions have been based so much on the facts of each individual case and so little on general principles (which makes them appear therefore somewhat conflicting), that it would be misleading to offer any opinion.

Further information on the following points might enable me to be of assistance.

(1) Why is it stated that the sewer is just outside a municipal boundary? Are the houses within that boundary and the sewer outside, or vice versâ? If not, how does this fact affect the question?

(2) Does the so-called common sewer receive the drainage of any other premises than A's?

(3) Was the sewer made before the institution of the Board of Health?

(4) If not, were plans approved by the Board of Health?

J. J. DONE, Fellow.

B.

This question is very much a "legal" one. At the same time there can be no doubt as to the sewer being at the present time vested in the public authority, under Section 13 Public Health Act. The said authority will undoubtedly have a right of easement, but I should advise that so far as A is concerned the easement has expired.

CHARLES JONES, Fellow.

C.

C is within his rights in diverting the sewer to the new outfall as far as his land is concerned, unless there is in the conveyance to him a defined plan showing the course of the easement. On the other hand C has no right to turn the sewage into the running stream.

A has no right to enter on the land of C to execute any works, unless specially provided for in the conveyance.

If the pond is a nuisance the rural authority can deal with it, but in the Cowes Case (Meader v. West Cowes Local Board) it was held that a combined drain, such as this, emptying into a cesspool (which this pond is) is not a public sewer.

ROBERT GODFREY, Fellow.

D.

The extent of C's obligation is to receive the sewage discharged at the point X from such cottages and premises as existed at the time of the conveyance of the brickfield to him, which cottages and premises then drained into the brickfield. Having received such sewage, C is under no further obligation to A, and may deal with the sewage in such manner as he sees fit, provided he does not in so doing return the sewage upon A's premises, or create a nuisance, or cause injury to A or any other person. Upon the information afforded it is not possible to express an opinion as to the duties of the rural sanitary authority in the matter.

R. CUNNINGHAM GLEN, Associate.