therefore I do not think that he could now turn round and repudiate the incoming tenant or his valuer on this particular point.

(c.)

E. A. RAWLENCE, Fellow.

I am of opinion that A should be paid for the ploughing done, before Michaelmas.

If B had asked A not to do the ploughing, and had suggested other work which his horses could do on the farm, and for which B would pay, the circumstances would be altered.

(D.)

G. WEBB, Fellow.

In many leases and agreements there is set forth in what manner the arable land is to be left in the last year. Even in the absence of this A has no right, by custom or otherwise, to plough up the wheat stubbles after harvest, unless he receives direction from the landlord or his incoming tenant, as B might wish to feed them after the 29th of September, or even, if very clean, he might wish to top-dress them for roots. The ploughing of the stubbles properly comes after Michaelmas, and it is not good husbandry to plough them before. When the stubbles are grassy they are sometimes ploughed and worked as soon as possible after harvest, but grassy stubbles, are not good husbandry. If it were permitted to plough wheat stubbles, an outgoing tenant would often turn over a foul grassy stubble to avoid a claim, and charge for the ploughing.

The incoming tenant has a right to object, as he has to pay for the labour, and can be considered the agent of the landlord.

O. N. WYATT, Fellow.

Reply to Query CLXXVI. (Vol. VI., p. 240).

BOUNDARY-CATTLE-TRESPASS.

(A.)

This is a curious case, particularly the fact, as stated, that the boundary fence crosses the stream to B's side for about two yards, and then returns again to A's side.

Doubtless there are hidden legal points involved in this case which I may overlook, and with which I am not competent to deal.

My opinion, from a practical point of view, is as follows:That A is strictly within his rights in rebuilding the boundary fence on his own side of the stream for its whole length. What is the effect? Why, that A practically relinquishes any right that he may have over the part of the stream which extends for two yards along B's side.

In my judgment, B has no remedy against A. What obligation is then upon A to keep up a fence at all? Assume that he has allowed the entire length of fence to fall into disrepair, and refuses to renew it, B cannot make him. I think the obligation rests with B to fence against his own stock on his own land.

CHARLES BIDWELL, Fellow.

(B.)

I think not, in the absence of any special covenant or obligation on A's part. Probably B's best remedy is to erect a fence himself across the stream.

(c.)

A. VERNON, Fellow.

It appears that A has transferred a certain part of his property to B, which, if allowed to remain fenced out for a period of twelve years, becomes the property of B. Legally A is responsible for the restoration of the fence in its original position. A seems to have taken a practical, common-sense view of the case, and the matter being so trivial I should try to come to a mutual understanding.

(D.)

GILBERT MURRAY, Fellow.

Under ordinary circumstances a man erects a fence and maintains it for his own uses only, and not for the benefit of his neighbour. In such case B would have no remedy againt A for neglecting to repair.

But the middle line of a stream is usually the boundary between the property of two abutting owners, and probably is so in this case; therefore A or his predecessors must at some time have had permission to deviate on to B's land, for the obvious purpose of providing an access to the water for A's cattle. Such a concession must have been subject to conditions under a grant or agreement. What were these stipulations? If no document exists, then the matter will, I think, rest upon the issue as to whether A has repaired this small piece of fence, upon notice from time to time served upon him by B, during a period sufficiently long (20 years) to set up a prescriptive obligation to perform such work.

It should be borne in mind that the mere maintenance by A, apart from such a notice, or the stipulations of an express agreement, would not be sufficient to create the obligation on the part of B to repair. S. B. SAUNDERS, Professional Associate.

Reply to Query CLXXVII. (Vol. VI., p. 351).

DRAINAGE OF BUILDING LAND.
(A.)

A evidently bought his plot of building land subject to an easement to take the surface water of the adjoining lands through which the ditch flows, and although A was at liberty to pipe the ditch for his own convenience, he should have taken care that the pipes were of sufficient size to carry off any surface or storm water which might flow through the ditch. Although B has collected the rain water and discharged it through pipes into the ditch, it does not alter its character as surface water.

A has no remedy, but is even liable, in the event of the water being forced back by the smallness of the pipes on to B's land, to an action for damage.

ALEX. R. STENNING, Fellow.

(B.)

It would appear that the pipes laid in the ditch by A do not carry off the water so effectually as the open ditch did. I do not think A has any remedy other than to restore the open ditch or put in larger pipes.

(c.)

ARTHUR HARSTON, Fellow.

It is not stated whether the owner of the adjoining building land had an easement of a waterway along the ditch that A has piped with pipes not large enough to carry off the additional water. If he had, I do not see that A has any remedy other than the relaying with pipes of greater calibre. If there was no easement, then the additional water is a tort; for which, I think, damages could be claimed.

W. BENNETT ROGERS, Fellow.

Reply to Query CLXXVIII. (Vol. VI.,

p. 351).

DILAPIDATIONS-SURVEYORS' CHARGES, &C.

A lessor can recover from a lessee all reasonable costs and expenses incurred in the employment of a solicitor and surveyor, in reference to a notice to repair under the Conveyancing Act of 1881, when the specified repairs have been satisfactorily completed.

The Conveyancing Act, 1892, admits of a successful appeal to law, where the whole of the items in the notice to repair are undisputed by the lessee, and are carried out by him.

A breach having been committed, giving rise to a right of forfeiture, a lessee who has remedied the breach is entitled to relief under the Act of 1881, and the procedure is by summons before a judge at Chambers. By obtaining a waiver in writing, a lessee saves the necessity for a judge's order, whilst the lessor secures his costs as a condition of granting the waiver, which comprises whatever breach has been made.

J. H. SHERWIN, Fellow.

Reply to Query CLXXIX. (Vol. VI., p. 351).

DAMAGE TO ADJOINING OWNER--FALL OF A CHIMNEY.

(A.)

I do not think that A is liable for damage to B's property, caused by the fall of a chimney during a gale -the immediate cause being entirely outside any control by A. I have never heard of such a claim being made.

If there are any circumstances not stated, such as "the property "of A being notoriously insecure, and his attention having been "repeatedly called to its state," &c., then there might be some chance of success with the claim, otherwise I should think not.

JNO. HOLDEN, Fellow.

A A

(B.)

The facts are almost too barely stated for the purpose of evoking a trustworthy reply.

If the gale was of such exceptional force and violence as to be termed in law the "Act of God," then A is not liable. But whether or no the gale was the "Act of God" is a question of fact for a jury, under the direction of the judge, to determine. If the gale be found to be the "Act of God," then the accident was inevitable, and could not have been prevented by the reasonable care of A in upholding his chimneys. Also, if A's chimneys fell from some latent defect in their construction so that the accident could not have been prevented by reasonable care of A. But if the chimney stack shewed patent evidence of being defective or decayed, or was not reasonably vertical, then A would be liable.

Take an analogous case. A large gas lamp is projected over the footpath of a highway (lawfully so by permission of the local authority), it is blown down and injures persons or property; the same rules would apply. It is the custom of reasonably careful owners of such lamps not to trust to the usual ball and socket joint only, but to have a strong check chain as an additional security. In an action for damages, if it were proved that the wind was such as might be ordinarily anticipated to occasionally occur and the custom was to fix a check chain, but that none was fixed to this lamp, then the owner would be liable on the ground of negligence.

(c.)

ARTHUR HARSTON, Fellow.

Possibly there may be a case in point in E. S. Roscoe's Digest of Building Cases.

I should think A would be liable for the damage to B's house. His (A's) having a chimney not strong enough to stand a gale implies negligence.

BENJAMIN TABBERER, Fellow.

1. No.
2. No.

Reply to Query CLXXX. (Vol. VI., p. 352).

VALUATION (LESSEE'S INTEREST).
(A.)

In the case of leases of church property, renewable by custom, becoming vested in the Ecclesiastical Commissioners, the lessee would, under a special Act, be entitled to an advantage in selling to the Commissioners, on account of their doing away with the long-established custom of renewal; without such an Act or any covenant for renewal, the question of fine should not be taken into account.

(B.)

ARTHUR GARRARD, Fellow.

1. No lessee, so far as my experience goes, can be compelled to It would be a unique case in which he could.

renew.

Therefore the lessor is not entitled to be compensated for loss of

fines.

2. A right of perpetual renewal is usually a valuable one, and is therefore jealously guarded. But such a right must be absolute.

3. When such a right exists, the fine becomes a quit rent, payable at intervals. If it be a fixed fine, as in many city cases, it is a matter of simple calculation how much should be deducted from the annual value, which should then be treated as a freehold. If it be variable the deduction is a matter for adjustment.

4. In the above case the fine is not a factor in the valuation of the lessee's interest. The purchaser has no more claim to have the purchase money settled on the basis of the cost to the vendor in this than in any other case. Nor has the vendor any right to compensation for an outlay necessary to secure the enlarged term he has, by paying the fine, acquired the title to sell. What one has to buy, and the other to sell, is the income from the leasehold for the unexpired term. J. HENRY SABIN, Professional Associate.

Reply to Query CLXXXI. (Vol. VI., p. 353).

ARBITRATION ACT, 1889.

(A.)

There cannot be an arbitration unless there has been a submission. If one of the valuers refused to sign the joint request to the umpire, I think the other valuer should sign and forward it to him, informing him of such refusal.

WM. WRIGHT, Fellow.

(B.)

1. In my opinion all valuations are now within the Arbitration Act (see section 24 of that Act), whether between landlord and tenant or tenant and tenant.

2. An order of the court to remove the valuer for misconduct. See section 11 (1) of the Arbitration Act.

(c.)

J. W. W. BUND, Associate.

1. Arbitration includes all the various conflicting interests enumerated in the query. The submission should, in every case, be in writing, and drawn with care and judgment, as by it the arbitrators are clothed with their powers and authority to appoint an umpire to perform, and other ministerial acts. Although the Act itself does not define an arbitrator the submission should clearly set out his duties.

2. The reference should be made by rule of court. If so, the valuer who refuses to join in the appointment of an umpire may be compelled to do so by the court, disobedience to an order being treated as contempt. The award of an umpire, after the expiration of three months, is illegal, except with the written consent of the parties to the refer

ence.

GILBERT MURRAY, Fellow.