CLXXXVIII.

LIABILITY TO MAINTAIN A DIVERTED ROAD ON A RAILWAY BRIDGE

APPROACH.

(For Replies to this Query, see p. 375.)

The adjoining landowner, for reasons of his own, obtains power at Quarter Sessions to move the approach to a bridge of the Railway Company over its line of railway.

He gets permission, after formal notice, and the Highway Board and Railway Company neither object nor assent; two magistrates inspect and approve the diversion made. This was prior to County Councils.

The road being well metalled, lasted for many years without repair. The Highway Board executes repairs up to the foot of the bridge approaches, and the Railway Company on these approaches generally; but, since the road has been diverted, that portion of the new approach has not been repaired by anyone.

Who is liable? What is the proper course to get the road repaired, no public body being willing (as it would appear) to take action?

CLXXXIX.

EASEMEMT OF DRAIN ACROSS LAND OF ADJOINING OWNER.

(For Replies to this Query, see pp. 376, 377.)

An owner of an inn has sunk a cellar and finds it constantly filled with water; his tenant asks an adjoining landowner to let him cut a drain, and pipe it, across his freehold into a watercourse, passing water on to the lands of third parties.

If the landowner consents, what is his position afterwards if the owner and occupier (the third party) raise difficulties on account of this extra water?

Has the inn owner any right to the drain? Would the granting of the easement grow into a right?

Some compensation should be payable to both owner and occupier of the estate through which the drain is proposed to be laid. Can the tenant object?

The tenant is not likely to object if the owner agrees, but if the tenant should leave will he be right in claiming compensation, finding that his landlord is obtaining a rent for the wayleave (as the landowner proposes to do)?

If the land in which the drain is to be made should be required for building sites, how can the drain then be dealt with?

Owners sometimes accommodate one another by allowing land drains across one another's freeholds. Is there any short form of agreement in use on any estate to meet such cases where a rent or no rent has been charged? Is there any rule among surveyors in estimating compensations in such small easements?

CXC.

SECTION LXXXVIII., SUB-SECTION 2, METROPOLITAN BUILDING Аст, 1855.

(For Replies to this Query, see pp. 377, 378.)

In a case where a party wall has been condemned and pulled down by the London County Council and the two owners are rebuilding their respective premises, are the owners liable for the portion of the party wall as occupied before the wall is pulled down, or for that portion to be used by their respective new buildings?

The case in point is where one owner does not require to carry his new building up as high as his old.

ΟΧΟΙ.

BURST WATER PIPE UNDER HIGHWAY-LIABILITY.

The water pipe supplying a house in the London District burst under the public highway, between the Water Company's main and the houses, whether as the result of frost, of a passing steam-roller, or of defect in itself, cannot now be ascertained. The road becomes rotten, a passing vehicle sinks in, and an accident follows. The Water Company then cut off the water and repair the road. The owner and tenant have no power to repair, or any control over the road, even if they had known the defective pipe supplied their house, and this could not be ascertained until the road was opened by the Water Company. Is the tenant, owner, Water Company, or Vestry liable? How far does a branch pipe remain the property of a private owner when beyond his control, or does it become part of the Company's system?

REPLIES.*

Reply to Query CLXIV. (Vol. VI., p. 234).

OLD ROAD-FORMATION INTO NEW STREET.

The authorities are right in their contention that the fact of “A” beginning to build makes the old public road a new street. In Robinson v. Barton Local Board, Jessel, M.R., said:-" There are two ways " in which a street may come into existence where there was no street "before. A person may take a grass field or a country lane (for, in my "opinion, it makes no difference whether or not there was a public "highway and lane, or a footpath, existing before, which is thrown into "the street and is utilised, or whether there was nothing but a mere

* Replies must, in all cases, be authenticated by the full name of the Member supplying the information asked for.

"plot of grass land out of which a new roadway is made), he may take "it and build continuous lines of houses so as to form what is com"monly known as a street. When I say continuous lines, I do not 46 mean that there are to be no breaks or intervals, but there must be a "certain degree of continuity. A new street may arise in another "way, and that is, where it is not from the first laid out as a street in a "formal manner, but may be considered to grow up so to say of itself. "This often happens where there is an existing highway, and people "build houses along the sides of that highway, so that, without any "intention of laying out a street, the street grows. When does it "become a street? This question cannot be answered until you know "the locality. It must be a question in each particular case when the "road becomes a street. At some time or other it becomes a street, "and not the less a new street because some of the houses were built "before it was a street." In the same case, when before the House of Lords, Lord Selborne said: "I should certainly understand. . . . "by new street a place which before had not that character, but which "by the construction of buildings on both sides, or possibly on one "side, has acquired it." 8 App. Cas. 798; 53 L. J. Ch. 226; 50 L. T. (N. S.) 57; 33 W. R. 249; 48 J. P. 276.

Subject to the question of fact set forth in the above decision, I am of opinion

(1) The authorities can insist that "A" shall set back his fences to a distance of 22 feet from the centre of the existing road.

(2) No.

(3) Yes. Pound v. Plumstead Board of Works; Dryden v. Palney (Overseers of); Hampstead Vestry v. Cotton; Holden v. St. Mary, Islington (Vestry of); and Robinson v. Barton Local Board (quoted above).

(4) The 22 feet from the centre must be thrown into the roadway.

FRED. W. PEARCE,
Professional Associate.

Reply to Query CLXXII. (Vol. VI, p. 238).

THE METROPOLIS MANAGEMENT ACT-COMBINED DRAINAGE-COSTS

OF REPAIR.
(A.)

A must pay; he owns the property subject to any easements; exactly similar cases are dealt with daily.

(B.)

WM. WEAVER, Fellow.

There have been recent questions and answers in these "Notes" as to whether, in cases where one drain is common to two or more houses, it is, in law, a private drain, to be kept in repair by the owners

of the houses, or a public sewer maintainable at the expense of the local authority. For these questions and answers, vide Question CXXV., p. 458, Vol. V., Answer p. 465; and Question CLXXII., p. 238, Vol. VI., Answer pp. 249, 250. In a case four or five years since, in, I think, the Court of Appeal, Bateman v. Poplar Board of Works, it was held that such a drain was a private drain not repairable at the public expense. Notwithstanding this, the report of a recent case in the Q.B. Division has created some considerable questioning and discussion, as it appeared to conflict with, in fact to be in direct opposition to, the earlier case quoted above. In this case, Travis v. Uttley, it was held that such a drain was, in law, sewer " and to be maintained by the local authority.

a

The following letter to the Hackney and Kingsland Gazette, 5th January, 1894, throws some light on the subject:

66

"SIR.I notice that an anonymous correspondent in your columns "directs the attention of owners of houses in Hackney to the recent decision "of the Queen's Bench Division in Travis v. Uttley. Will you permit me to state, lest my Hackney friends should be misled, that Travis v. Uttley has no application to London. It is a decision under the Public Health Act, 1875, which so defines 'drain' and sewer' that, roughly, a drain is that "which receives the drainage of one house, while a sewer is that which "receives the drainage of two or more. But in London a similar case is governed by the Metropolis Local Management Act, 1855, which (by "section 250) provides that the word drain' shall include any drain for "draining any group or block of houses by a combined operation under the "order of any Vestry or District Board; and the Court of Appeal in 1886 "decided that these words include not only the case of existing houses' "under section 74, but also the case of new houses' under section "76 (Bateman v. Poplar Board of Works). The net result is that a "combined drain' is not vested in the local authority in London, whilst it is vested in the local authority within areas which are governed by the "Public Health Acts. "E. H. PICKERSGILL.

"2, Essex Court, Temple, E.C.,

"3rd January, 1894."

The writer of the letter, Mr. E. H. Pickersgill, is a Barrister-at-Law, and is M.P. for Bethnal Green, South-West Division. He shows that the cases do not conflict, but that the law for the Metropolis on this subject is directly opposite to the law for districts outside the Metropolis under the Public Health Acts, a result probably not intended by the draughtsmen of those Statutes.

ARTHUR HARSTON, Fellow.

(c.)

Supplementary Note by the Querist.

It appears to me that the point of the whole question has been misunderstood in this case, and the answers, I think, imply this; and Mr. Pickersgill's letter appears to me misleading if taken by itself. The point at issue, stated plainly, is as follows:—

There are thousands of combined house drains in London which were laid before and since the Metropolis Management Act of 1855

* For a report of the judgment in this case, see page 395.

came into force. Of the former the vestries have no record (they not being in existence); of the latter, though plans were deposited and approved showing separate drainage for each house, on examination of the premises combined drainage is found to exist. Therefore, in neither of these cases does the query referred to by Mr. Harston, and numbered CXXV. in "Professional Notes," or the reservation referred to in Mr. Pickersgill's letter, lines 9-12, apply.

Now we come to Section 250 of the Metropolis Management Act, by which these combined drains (?) are to be sewers, and by Section 69 of the same Act sewers are vested in the vestry or district board, and the case of Travis v. Uttley applies exactly, the wording of that part of the section in both Acts being identical.

The law for the Metropolis and the Public Health Act do not disagree; but for the Metropolis combined drainage, under an order of the vestry, is also included in the word drain.

If the vestry or district board cannot produce an order by reason of which such combined drainage took place, then the property owner may surely presume there was no order (as he can hardly reasonably be expected to prove a negative), and claim that the vestry are liable to keep in repair such drainage.

Now, as to the vestries' action in the matter, I find that several vestries have taken counsel's opinion upon the matter, and in two cases, where I have been able to ascertain what that opinion was, it was fully in favour of the property owner.

One parish in London estimates the outlay necessary to put right the combined drainage for which they are liable (if this interpretation of the section is a correct one), at a sum approaching £100,000, and they are quietly serving notices upon owners to do the works necessary, in the hope that no case will be decided by a high tribunal till matters are considerably improved.

In another parish I have lately, since the query was asked, found, on a property for which notice was served to "abate a nuisance arising "by reason of a defective drain," notice given to the Health Department who served the notice, that it was combined with one other house adjoining, and have been referred to the Works Department with a view to their doing the necessary work.

This same vestry, I am informed, have on more than one occasion made payment to builders for works done under notice from them to drains which, afterwards, because they were combined and no order of the vestry could be found, were decided to be repairable by the vestry.

Considering that there are very few records of house drains before 1855 in London, this question is a large one, and in these days of notices by local authorities being so freely served, and the enormous outlay by owners on small property as well as large, I certainly think that a decision by the High Court, and, if necessary, the Court of Appeal, with a definition settling the matter, is to be desired.

With the section so clear in statement, and the vestries refusing to admit the interpretation, as many of them are doing, the owner is placed in a very difficult position unless he is prepared to fight.