44 plot of grass land out of which a new roadway is made), he may take "6 it and build continuous lines of houses so as to form what is com46 monly known as a street. When I say continuous lines, I do not 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, Reply to Query CLXXII. (Vol. VI., p. 238). THE METROPOLIS MANAGEMENT ACT-COMBINED DRAINAGE-COSTS OF REPAIR. A must pay; he owns the property subject to any easements; exactly similar cases are dealt with daily. WM. WEAVER, Fellow. (B.) 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, a "sewer" and to be maintained by the local authority. The following letter to the Hackney and Kingsland Gazette, 5th January, 1894, throws some light on the subject: "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. Reply to Query CLXXIII. (Vol. VI., p. 239). RIGHT OF WAY. (A.) While the two properties remained in the same occupation, no question could arise, as all acts of user are referable to the rights of the occupier. The starting point, therefore, is "since 1859," and the acts of user stated to have been made since then are occasional passage for persons through the doors at D; thus the question is reduced to whether a right of way on foot has been gained under the Prescription Act; there is no pretence for alleging a right for horses or carts as the statement is framed. It is not stated if the doors at D, in opening, swing over A's land, and this seems a material fact, as their use in such case would be a strong fact from which to infer a continuous claim as of right. If, however, they do not so swing, I doubt whether the occasional use amounts to such a claim of right as would establish an easement. The conclusion I should then draw is that they were mere casual acts of trespass, which, leaving no trace behind, could not be said to amount to an allegation of right which A or his tenant could reasonably be held to have known of and be bound to resent. Again, the nature of the tenancy of A's land is material; if held on lease, user, even adverse, during the term need not be noticed till its end, when A can bring his action. It does not appear to me that B has acquired any rights over A's land. F. A. PHILBRICK, Q.C., Associate. (B.) I think that rights have probably been acquired by B to a passage over A's land, to the extent of the user by which such rights have been acquired, viz., for foot traffic. To have prevented such rights arising, A should have had the doorway closed when the joint tenant gave up possession in 1859. P. E. PILDITCH, Fellow. Reply to Query CLXXIV. (Vol. VI., p. 240). PURCHASED FEEDING STUFFS-ARE HORSES CATTLE? (A.) In a claim for improvement effected by the consumption of cake, corn, or feeding stuffs by cattle, sheep, or pigs, it is not the custom of valuers to include horses under the term "cattle." Murray's (1889) definition of the word "cattle" is, A collective "name for live animals, held as property, or reared to serve as food, "or for the sake of their milk, skin, wool, &c." This would explain the exclusion of horses as being working factors on the farm, and therefore any improvement caused by them should not be one for which an outgoing tenant should receive compensation on quitting. HERBERT TRUSTRAM EVE, Fellow. (B.) I cannot find any case defining what live stock is embraced in the term "cattle"; but it has been held that a drift way for cattle does not embrace a horse way, thus indirectly showing that the law recognises a distinction between them. To my mind it is clear that it was never intended that a tenant right should be paid on purchased horse corn, and, even assuming that a claim to this could be substantiated under this clause, it is obvious that a considerable reduction must be made for the large proportion of the secretions therefrom, which would fall on the public or occupation roads, and thus be lost to the incoming tenant. E. A. RAWLENCE, Fellow. Reply to Query CLXXV. (Vol. VI., p. 240). TENANT RIGHT-PLOUGHING STUBBLE. (A.) Where the agreement is silent as to the ploughing of stubble before a fixed date, A, the outgoing tenant, having received notice from B, the incoming tenant, not to proceed with the work, A cannot recover for any work done subsequent to the notice. A's contention, that all work done before the termination of the tenancy must be paid for, is fallacious; in some cases the land would be injured by exposure and bleaching by the winter rains. (B.) GILBERT MURRAY, Fellow. It appears to me that it is difficult to give an answer to this question without knowing whether there was an agreement governing the tenancy, and, if so, what, if any, conditions there are relating to the quittal and the nature of the arrangement, if any, under which the outgoing tenant had put in the roots for the landlord or incoming tenant. Also, failing an agreement, whether there is any local custom affecting the point. Subject to these considerations, and assuming that the stubble land in question was in course for the incoming tenant's ensuing turnip crop, I am of opinion that the outgoing tenant had no right to plough the stubbles without instructions, and especially after the notice served on him not to do so. The outgoing tenant clearly is not entitled to create work for his horses at the expense of the incoming tenant, especially when, under the ordinary routine, the work in question would not have been done until after Michaelmas. In regard to the technical point as to the service of the notice of objection, strictly speaking, I should say that the outgoing tenant is right unless the incoming tenant is coupled with the landlord under the agreement, if any; but I gather from the tenor of the proceedings that the outgoing tenant had previously entered into negotiations with the incoming tenant or his valuer on matters generally, and thus recognised him as agent of, or acting in the place of, the landlord, and |