rately, and then the several gross and rateable values added together, to arrive at the assessment of the entire hereditament, viz., the nursery. If the dwelling were worth, say, £50 gross, I should deduct one-sixth to obtain the rateable, and, if there were any cottages worth, on a weekly tenancy, say, 3s. per week each, the gross would be £6, and the rateable £5, each. From the above remarks, it will be seen that the true deduction for statuteables will depend upon the value that the buildings bear to the land, and no fixed rule can, therefore, be given. A nursery consisting simply of land, glasshouses, and stabling (without a dwelling-house) would come under Class 6 of the 3rd Schedule in the Valuation (Metropolis; Act, 1869. W. G. COOKE, Professional Associate. Reply to Query CLXXXVI. (Vol. VI., p. 355). REPAIRING COVENANT-GOOD AND SUBSTANTIAL REPAIR. (A.) With reference to the question under this heading, I do not consider the words "good and substantial repair" specially cover whitewashing, papering, and similar items, which, if required, must be specially described in the lease. If the structure has been substantially upheld and no wilful or wanton waste or damage permitted or allowed to take place, I am of opinion that the soiling of the premises is not covered by the terms above named, as a house may have been occupied and soiled throughout, but yet left structurally in good and substantial repair. HOWARD CHATFEILD CLARKE, Fellow. (B.) The terms " good and substantial repair" would ordinarily be considered to mean good structural repair, and would not include decorative repair. The opinion quoted appears to be founded on the Appeal Court case of Proudfoot v. Hart. In the course of his judgment, Lord Justice Lopes said:" As to papering and painting, generally speaking the "tenant would not be bound to repaper or repaint. Most clearly he is "not bound to repaper with similar paper to that which was on the "walls when the tenancy began, or to repaint with similar paint. Most "clearly, also, he is not bound to do repairs which are merely decorative. "But if at the end of the lease the paper and paint are in such a con"dition as to cause portions of the premises to go into decay, he is bound "to repaper and repaint to such an extent as will satisfy the terms of "the definition which I have stated." The definition referred to was that of the meaning of "good tenantable repair," terms carrying greater responsibility than "good and substantial repair." *Prof. Notes," vol. iv., p. 246. This judgment appears to me to have so far modified the liabilities of lessees as to leave it doubtful whether under any general covenant to repair they can be called on to paper, paint, or whitewash, unless the omission to do so will cause the structure, or parts of the structure, to decay, in which case the work would necessarily be preservative as well as decorative. J. H. SHERWIN, Fellow. (c.) Many surveyors have expressed astonishment at the result of the judgments in Crawford v. Newton* and Proudfoot v. Hart, that whiting ceilings, papering, and painting cannot always be enforced, either at common law or under express covenant, for "tenantable repair" or "good tenantable repair," in the absence of covenants, for whiting, papering, and painting. But in this respect these recent judgments do not enunciate any new doctrine. In 1807, Mr. Beazley, in an excellent Paper read before the London Architectural Society, in summing up "tenantable repairs," says:-" They extend to "painting which, however, in itself, is not included, but damage caused by "neglecting . . . painting is included." Further, he says:-" Any "decay arising from the neglect of painting is a dilapidation, but the 'paint itself is not one, unless by covenant the lessee was bound to "do it." The covenant quoted in the question now asked is, "good and substantial repair." "Substantial" refers more to the fabric and the substance, rather than to cleansing and decoration. "Good repair," "good tenantable repair," "tenantable repair," and "habitable repair," all appear to mean much the same thing. In the judgment of the Court of Appeal, in Proudfoot v. Hart, good tenantable repair is defined as "such repair as, having regard to the age, character, and locality of "the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it." With regard to paper, it was held that the lessee was not liable to repaper if the old paper was merely worn, or merely in a worse condition than when the tenant went in, if it is in such a condition that a reasonably-minded tenant of the class who would take such a house would not think the papering unfitted the house for his occupation. The same with painting and whiting ceilings. But, in any case, if the want of paint the woodwork will decay, then it is obvious that the tenant must repaint. Whether the questioner's covenant, " good and substantial repair," be construed as good repair and substantial repair, or "good substantial repair," I think the above judgment will apply so far as papering, whiting, and painting is concerned. Papers on Dilapidations, by Mr. Wheeler, Q.C., and two Papers by Mr. Pilditch, and the cases cited above, will all be found in the "Transactions." *Prof. Notes," vol. ii., p. 247. ARTHUR HARSTON, Fellow. +"Prof. Notes," vol. iv., pp. 178, 246, 321. Reply to Query CLXXXVII. (Vol. VI., p. 355). RATING OF BRICKFIELDS. (A.) There is no rule applicable to all brickfields for deduction from gross to rateable. This must necessarily depend upon circumstances. Certainly any deduction for waste and spoilage should be made before arriving at the gross, not after. Bricks are not rateable, but the earth of which they are partially made. As to breeze, if the occupier finds breeze, its cost is in addition to the royalty paid; if not, then the royalty would be less if he did find it, and the gross and rateable will be less, but the question of breeze cannot affect the difference between gross and rateable. (B.) W. EvE, Fellow. So far as my experience goes, it is not usual to make the allowance claimed. The royalty is agreed upon with the knowledge that imported material will be used, and the sum agreed upon is the value of the brick earth apart from same. Jos. JOPLING, Fellow. Reply to Query CLXXXVIII. (Vol. VI., p. 356). LIABILITY TO MAINTAIN A DIVERTED ROAD ON A RAILWAY BRIDGE APPROACH. By Sec. 46 of the Railway Clauses Consolidation Act, 1845, the Railway Company is liable to repair the approaches to the bridge, and they can be compelled by mandamus so to do. The authority having control of the road leading to the bridge must take action. (B.) ROBT. GODFREY, Fellow. If a road has been diverted by order of Quarter Sessions, and a new road formed in place of an old one, the former, if made up to the satisfaction of the Road Authority, has to be maintained in place of the latter. If, however, the old road is not abolished by the order, it must, of course, be kept up by the Road Authority, who are under no liability as to the new additional road, unless the order makes them responsible-a liability which they could have opposed when the formal notice was given. Unless the responsibility for repair was directly transferred by the terms of the order, I am of opinion that it remains with the owner to repair. (c.) WM. WEAVER, Fellow. By Sections 91 and 92 of Highway Act, 1835, a new diverted highway is to afterwards continue a public highway, repairable by party liable to repair old highway; and, by Section 24, provision is made for proceedings before justices to enforce repair, while Section 95 indicates the mode of proceeding if obligation to repair is disputed. It would therefore appear that— (a) Assuming the Railway Company liable for the repair of the old bridge approaches, the same liability remains in regard to the new bridge approach. (b) On Company neglecting to repair, proceedings may be taken under Section 94 of Highway Act, 1835. C. H. LOWE, Fellow. Reply to Query CLXXXIX. (Vol. VI., p. 356). EASEMENT OF DRAIN ACROSS LAND OF ADJOINING OWNER. (A.) My views hereon are as follows: 1. Provided that the drain in question only conducts the water into its natural channel, I am of opinion that the third party cannot object on account of the increased volume; but if the fall of the ground from the cellar in question would naturally lead the drainage water into another water course, then the third party would have a cause for action on account of the diversion. 2. No, only by arrangement. It would certainly grow into a right, and if, as seems suggested in another part of the question, there is a possibility of the land through which the drain runs developing sooner or later into building land, a carefully-worded agreement, drawn up under legal advice, would be advisable. 3. In view of the above contingencies, I should advise the owner to accept an annual acknowledgment rather than a lump sum down. The tenant would certainly be entitled to compensation for surface damage and disturbance, but not to an abatement of rent unless he can shew that the drain permanently deteriorates the occupation. I am of opinion that unless there is a very unusually-worded clause in the tenant's agreement he could object to the drain being laid across his occupation; hence he holds the key of the position, and can make such terms as will protect himself. 4. If the tenant grants permission for the drains to be laid and is compensated for the damages which he sustains incident thereto, I do not think that he would be entitled to raise any further question of compensation on quitting. 5. This depends on circumstances, and I should not attempt to define now contingencies which may or may not arise. Grant the easement on three or six months' notice to terminate the arrangement, and you will then have a free hand to deal with it as it may be found necessary when the time arrives. 6. These arrangements usually only relate to purely agricultural land drains; but where an easement of this sort is sought to be acquired, where a possible building value may arise hereafter, certainly let a solicitor deal with the agreement. There is no rule, to my knowledge, for estimating the compensation in such cases. Each case must obviously be dealt with on its own merits according to the damage or possible damage sustained by the grantor and the benefit accruing to the grantee thereby; but moderation, consistently with the due protection of your client's interest, will generally be found to be the wisest course, always remembering that, sooner or later, you may in your turn have to ask a similar easement or other accommodation. E. A. RAWLENCE, Fellow. (B.) Apparently A wishes to lay a drain across land owned by B into a watercourse owned by C. In my opinion B should only give leave under an agreement with an annual rental, and a clause stating that drain is to be removed on months' notice, and should, at the same time, obtain compensation for himself and his tenant. B's tenant can object for his term. B's tenant could claim no compensation on quitting. If the land is wanted for building, B could give notice under agreement. It would be better to arrange with C in the first instance. In course of time the easement would grow into a right as regards C, but not (owing to the agreement) as regards B. I know of no form of agreement" for such cases, or of any "rule among surveyors." H. L. INGRAM, Fellow. Reply to Query CXC. (Vol. VI., p. 357). SECTION LXXXVIII., SUB-SECTION 2, METROPOLITAN BUILDING Аст, 1855. (A.) For the charges and fees of the County Council both owners are liable to the Council jointly and severally. But if one owner have paid the whole of such charges and fees, he can recover from the other owner a part thereof in proportion to the use that he made of the pulled-down wall. As to cost of rebuilding, the expense is to be apportioned in the same way as that of pulling down, viz., according to "the use that each owner makes of such structure." The words "such structure" refer to the commenting words of the Sub-section (2):-"If any party structure is pulled down" (meaning "be pulled down"). Therefore the reference in the sub-section to the use of "such structure" indicates that the expense is to be in proportion to the use which each owner makes of such structure, i.e., of the old structure which is rebuilt, not the use which the owners may make of the rebuilt structure. So that the enquirer may not be misled, it is necessary to go beyond the exact scope of the question. An attentive reading of the Building Act (which it does not always receive) will show that the notice of the County Council does not authorise either owner to do more than pull |