« EelmineJätka »
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.
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.
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
down. To enable the building owner to recover for rebuilding as well as for pulling down, the requirements of Secs. 85 and 83 should be previously complied with. Sec. 85 enacts that the building owner is not invested with the right of rebuilding until he either receives the consent of the adjoining owner or obtains an award of surveyors, after serving on the latter owner the statutory three months' notice of intention to rebuild.
ARTHUR HARSTON, Fellow.
The words in Sec. LXXXVIII., as regards expenses to be borne jointly by the building owner and adjoining owner (Sub-sec. 2), apply rather to the wall being pulled down in the course of contemplated new building operations; but the point in the question arises under a dangerous structure notice. In this case my opinion is that the owners are liable for the portion of the party wall as occupied before the wall is pulled down.
WM. WOODWARD, Fellow.
HENDERSON v. THORN.
[MAY 2ND, 1893.]
Landlord and Tenant-Lease-Covenants to keep and deliver up Premises in Repair-Breach of Contract-Action by Landlord against Tenant during term of Lease--Second action by Landlord on completion of term-Measure of Damages in second actionMode of Assessing.
A landlord brought an action against his tenant two years before the completion of his lease, for breach of covenant to keep the premises in repair. The tenant paid a sum into court which the landlord took out in satisfaction, and the action was discontinued. On completion of the term of the lease the landlord brought a second action against the tenant for breach of covenant to keep the premises in repair, and to deliver up in repair. There were no repairs done to the premises from the time of the payment into court in the first action down to the time of the completion of the term, but the landlord included in the particulars in the second action the repairs claimed in the first action, and in addition further repairs. The official referee, in assessing the damages, deducted from the sum necessary to put the premises in repair the sum paid into court by the tenant in the first action, and gave the landlord judgment for the difference.
Held, on appeal, that the mode in which the official referee had assessed the damages was right. (L.T., Q.B.D., vol. lxix., N.S., p. 430.)
REG. v. THE JUSTICES OF LONDON AND THE LONDON COUNTY COUNCIL.
[MAY 15TH AND 16TH AND JUNE 17TH AND 20TH, 1893.]
Metropolis Valuation List - Appeal against - Appeal against Totals-Time-Jurisdiction-Valuation (Metropolis) Act, 1869 (32 & 33 Vict. c. 67), ss. 32, 34, 42, sub-sect. 13.
Sect. 42 of the Valuation (Metropolis) Act, 1869, provides that "With respect to the times within which proceedings under this Act This Section is intended primarily as a clue only to reported cases.
" and the Acts incorporated herewith are to be done, the following "provisions shall have effect; that is to say ... (13) The justices may hold the assessment sessions at any time after the first of February in the same year, which will enable them to determine all 'appeals (except where a valuation list or valuation is ordered) before "the ensuing thirty-first of March."
Held, that the provision in this section as to the hearing of appeals before the 31st March is not directory but imperative, so that the court-now the London Quarter Sessions-has no jurisdiction to hear the appeals of the year after the 31st March in that year.—(L.T., Q.B.D., vol. lxix., N.S., p. 438.)
MAYOR, &c., OF SOUTHPORT v. ORMSKIRK UNION ASSESSMENT COMMITTEE.
JULY 10TH AND 17TH, 1893.]
Poor Rate-Occupation-Exclusive Use--Gas Mains.
By s. 43 of the Southport Improvement Act, 1871 (34 & 35 Vict. c. cxl.), the local board of Birkdale had the exclusive right of laying down gas mains and pipes within the township, and were obliged to keep all present and future gas mains and public lamps in good repair, and were to afford the corporation of Southport (who were the owners and occupiers of gasworks and were empowered by statute to supply gas in the township of Pirkdale) the use of the same for the supply of gas for public and private purposes within the township in consideration of certain payments to be made by the corporation to the local board for every thousand cubic feet of gas supplied to private consumers. The local board had laid mains within the township and had kept them in repair, and had afforded the corporation the use of the same for the supply of gas; the mains were not used for any purpose other than the supply of gas by the corporation. The corporation laid the service pipes from the mains to the premises of private consumers at the cost of the latter, kept the service pipes in repair, and charged and collected all gas rents :
Held, that the corporation had only a right to the use of the mains for the sole purpose of the supply of gas, and had no exclusive occupation of the mains so as to render them liable to be rated in respect of them. (L.R.  2 Q.B., p. 468.)
HAYNES v. KING.
[AUGUST 10TH, 1893.]
Light-Prescription - Reservation in Lease of Right to Obstruct Light Adjoining or Contiguous"—Covenantee—“ Assign"-Prescription Act (2 & 3 Will. 4, c. 71), s. 3.
The plaintiffs were lessees, under four leases, dated the 17th of February, 1870, from the Ecclesiastical Commissioners, for a term of