that all rights under the lease came to an end on the bankruptcy and forfeiture, was untenable, and decided that the custom of the country was applicable, and therefore ordered Lord Denbigh to pay the trustee £268 7s. 4d., the whole tenant-right claimed.

From this decision Lord Denbigh appealed, and the appeal was heard on the 14th November, 1892, before Mr. Justice VaughanWilliams and Mr. Justice Wright.

The Court inspected the valuation, and suggested that, as certain chattels, which really belonged to the trustee, had been included in the valuation of tenant-right, Lord Denbigh should pay the trustee £13 16s., or 10 per cent. on £138 6s. 4d., the amount in dispute. This was agreed to by Lord Denbigh, and the Court then set aside the order of the County Court Judge, stating that the custom of the country was not applicable to a case where a lease was determined by re-entry under a forfeiture clause on the bankruptcy of the tenant, and that all the tenant, or his trustee, was entitled to be paid for was the hay and straw, and any moveable chattels. The landlord, on the other hand, was entitled to the tenant-right, fixtures, and root crops not secured when the entry was made, without any payment whatever. Each party to pay their own costs of the County Court and appeal.

(558.)

IN THE MATTER OF AN ORDER OF THE BOROUGH JUSTICES OF RICHMOND, SURREY, UNDER THE SMALL TENEMENTS ACT.

[NOVEMBER 14TH, 1893.]

Landlord and Tenant-Small Tenements Act (1 and 2 Vict., c. 74)Determination of Tenancy-Summary Recovery of PossessionRent, What is.

This was a case, which had arisen at Richmond, Surrey, under the Small Tenements Act (1 and 2 Vict., c. 74), which provides that on any tenancy at will or for short terms of years, in any case in which the tenancy has expired, in which there is either no rent payable or a rent not exceeding £20, the magistrates may make summary order for recovery of possession, and issue their warrant to give the landlord possession. In the present case the applicant, on March 24th, 1885, entered into an agreement in writing with the landlord of a house in Greenside, Richmond, to occupy the ground floor and top floor in consideration of paying all rates and taxes on the whole of the premises, the rest of the premises consisting of a chapel (a mission chapel), which the tenant also undertook to keep clean. The premises were assessed on an annual value of £30, and the affidavit of the applicant stated that the payments he had to make were never less than £28 a year. The landlord, however, had put an end to the tenancy, and, as the tenant did not give up posses

sion, applied to the mayor and borough justices for an order under the Act to recover possession, the order reciting that no rent was payable in respect of the tenant's occupation.

The Court, however, thought otherwise, and refused the application. Mr. Justice WILLS said that in his opinion no "rent" was payable at all. The payments to be made were not a "rent," and could not be distrained for as such.

Mr. Justice WRIGHT agreed, and added that it did not appear that the payments to be made by the tenant for rates other than those for which he himself would be liable exceeded £20 a year.

Application accordingly refused.

-(T. L. R., Q. B. D., vol. x., p. 68.)

(559.)

[IN THE COURT OF APPEAL.]

HILL v. THE WALLASEY LOCAL BOARD.

[OCTOBER 30TH, 31ST, AND NOVEMBER 16TH, 1893.]

APPEAL FROM THE CHANCERY DIVISION.

Local Authority-Water Supply-Landowner-Private Road—" Street" -Power to carry Water Mains under Street-Consent of OwnerNotice-Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), ss. 28, 29, 30-Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 4, 16, 54, 57.

A local board, who were the urban sanitary authority for their district, and also undertook the supply of water thereto, entered upon a freehold private road, and proceeded to dig a trench and lay down water mains therein without any previous notice to the owner of the private road, who brought an action to restrain the local board from proceeding with the works.

Held, (SMITH, L.J. dissentiente), that the defendants were a local authority, having control of the streets in their district, and the powers conferred upon them by sect. 54 of the Public Health Act, 1875, were not restricted by sect. 57; and that, therefore, the plaintiff was not entitled to an injunction.

182

-(L.T., vol. lxix., N.S., p. 641.)

Decision of Romer, J., reversed.

(560.)

THE HALKYN DISTRICT MINES DRAINAGE COMPANY, APPELLANTS, v. THE ASSESSMENT COMMITTEE OF THE HOLYWELL UNION AND THE OVERSEERS OF HALKYN PARISH, RESPONDENTS.

SAME, APPELLANTS, v. THE SAME ASSESSMENT COMMITTEE AND THE OVERSEERS OF NORTHOP PARISH, RE

SPONDENTS.

APPEAL FROM THE QUEEN'S BENCH DIVISION.

[NOVEMBER 21st, 1893.]

Poor rate-Easement-Rateability.

(For a previous stage of this Case, see page 267, ante.)

The Duke of Westminster made a tunnel on property belonging to him for the drainage of certain mines and by a deed made between himself and the appellants he granted to them certain rights of use over the tunnel. In respect of these rights the appellants were assessed for poor rate, and upon an appeal by them a special case was stated by the Court of Quarter Sessions for the opinion of the High Court. The Queen's Bench Division held that upon the construction of the deed the appellants were in exclusive occupation of the tunnel and were liable to be rated in respect thereof. On appeal to the Court of Appeal:

Held, that upon the true construction of the deed, the Duke had only granted to the appellants an easement in the tunnel, and the appellants having only an easement were not liable to be rated.

Judgment of the Queen's Bench Division reversed.

-(L.T., C.A., vol. lxix., N.S., p. 705.)

(561.)

STRETTON'S DERBY BREWERY v. MAYOR OF DERBY.

[OCTOBER 31ST, NOVEMBER 1ST, 2ND, AND 23RD, 1893.]

Drainage - Local Authority - Nuisance Injunction - Increase in number of buildings draining into sewer-Liability of Local Authority-" Reasonable care and diligence"-Public Health Act, 1875 (38 & 39 Vict., c. 55), s. 19.

A local authority had many years ago constructed a sewer as part of a system of drainage provided by them in exercise of their statutory powers for a certain district within the limits of their authority. The owners of a brewery under which the sewer passed drained its cellars into the sewer by means of communications duly approved by the local

authority. The district was an increasing one, and new buildings were constantly being drained into the sewer. On several occasions (commencing in 1891) when there was a heavier rainfall than usual, the pressure in the sewer was so great as to force the storm water and sewage up the communications and flood the brewery cellars, causing considerable damage. The owners of the brewery brought an action against the local authority for an injunction and damages, contending (inter alia) that the defendants were liable under sec. 19 of the Public Health Act, 1875, which provides that "every local authority shall "cause the sewers belonging to them to be constructed . . . and kept "so as not to be a nuisance." The defendants had consulted experts as to the advisability of constructing a new sewer, but had not yet got the report. The Judge found upon the facts that the defendants had not been guilty of negligence in not having as yet constructed a new

sewer.

Held (1) that the defendants could not be held responsible like private owners, and without reference to the Act, for a nuisance, in the absence of negligence on their part; and (2) that, though sec. 19 of the Public Health Act, 1875, is unlimited in wording as to the liability it casts on a local authority, yet it is now settled that by reasonable construction of such an Act the liability in circumstances like the present is in fact to be limited to cases in which the authority has been guilty of negligence, or (as it is sometimes expressed) want of reasonable care and diligence, and that, accordingly, in the absence of such negligence, the defendants could not be made liable under sec. 19, nor was any other provision or implication to be found in the said Act, whereby the defendants, in a case like this, could be held liable in the absence of negligence, and the action therefore failed.-(L.T., Ch.D., vol. lxix., N.S., p. 791.)

(562.)

SKETCHLEY v. BERGER.

[NOVEMBER 2ND, 3RD, AND 23RD, 1893.]

Right of Way on Foot-Grant-Defined Way-Construction-Limitation of User-Substantial Interference.

The plaintiff in 1888 purchased Nos. 1, 2, and 3, H. Cottages, and certain lands in the rear thereof, which property was conveyed to him by deed, together with a right of way on foot along the way or passage coloured blue in the plan on the deed, which passage ran from F. Lane along the south side of No. 3, H. Cottages, to the above-mentioned land of the plaintiff. This land was at the date of the conveyance, and had ever since been, used as a nursery garden. The passage was for the greater part of its length about three feet wide, but grew to a width of about ten feet where it reached the plaintiff's land, from which a gate about three feet wide opened on to it. The defendant had erected a building,

partly on certain adjoining land of his own, and partly on the wider end of the passage, thereby reducing it to a uniform length of about three feet, reducing the frontage of the plaintiff's land on the passage by some seven feet, and preventing the erection by the plaintiff on his land of any greenhouse or other building which could open on the passage by any door unless it occupied the exact site of the three-foot gate.

Held, that the grant of the footway was not limited to a way suitable for the occupation of the land as a nursery garden, but gave a right to the reasonable use of the way, and any part of it, for all purposes;

That the plaintiff's mode of access to his land was not limited to the gate, but he was entitled to access at whatever point was most convenient to himself;

That the defendant's building was a substantial interference with the plaintiff's right of way, and a mandatory injunction for its removal must be granted.-(L.T., Ch. D., vol. lxix., N.S., p. 754.)

(563.)

IN RE BISHOPSGATE FOUNDATION.

[NOVEMBER 25TH, 1893.]

Practice - Lands Clauses Act (8 & 9 Vict. c. 18)-Reinvestment— Costs-Scale Fee-Surveyor's Fee-Apportionment between several Parties-Form of Order.

The general rule that the costs of a reinvestment in land of funds paid into Court under the Lands Clauses Act by different public bodies must be borne by these public bodies in equal shares, does not apply, where there is great inequality in the amounts of the different funds, to the scale fee payable on the purchase, and these costs, with the ad valorem stamp duty and surveyor's fee, will be apportioned rateably between the different public bodies. Ex parte Governors of St. Bartholomew's Hospital, followed to this extent.

Ex parte Bishop of London and Ex parte Governors of Christ's Hospital considered.-(L.R. [1894] 1 Ch., p. 185.)

(564.)

PRYOR v. PETRE.

[NOVEMBER 15TH, 16TH, AND 25TH, 1893.]

Vendor and purchaser-Adjoining landowners-Conveyance of land abutting on lane subject to public right of way-Presumption of law as to right to soil of lane ad medium filum viæ-Surrounding circumstances sufficient to rebut such presumption.

A piece of land bounded on one side by a wooded, grassy lane, about fifty feet wide, belonging to the same owner, was purchased from him