K. B. Div. Local Board (1), as to "street," and the Finchley Case (2) as to 1903. CORPORATION ľ. HILI.. vest," make it unnecessary to discuss the matter. There was OF BELFAST evidence that the path in dispute was apparently part of the street, Connsbrook-avenue: Wilson v. Vestry of St. Giles, Camberwell (3), and if a street, whether private or not, it would vest in Gibson, J. the plaintiffs: Armstrong v. London County Council (4); Midland Railway Company v. Watton (5); Reg. v. Goole Local Board (1). Defendant's counsel, however, contend that the footway was never dedicated at all by the defendant, and that plaintiffs had no right to treat it, in invitum and without compensation, as vested in them. Plaintiffs' counsel reply that where there is one apparent street, consisting of road and footpaths, as one entity, it would be inconvenient if the question of vesting should depend on some antecedent title from dedication, of which the road authority, who must act on physical appearance and user, may know nothing; they contend that there is jurisdiction to make the order where there is a possessory vesting of what is used, in fact, as a street; and that defendant should establish his adverse title (if any) by some independent proceeding. I am not, however, compelled to decide this question, as, in my opinion, there is here sufficient evidence that defendant dedicated the pathway for public use in connection with his houses fronting the street, and as part of the street as it then was. If the road as a private street would vest in the plaintiffs, so would this pathway, which under the definition would be, as the authorities show, itself a new street. The inference of dedication may fairly be drawn, as it was in the analogous case Attorney-General v. Esher Linoleum Co. (6). The path was made for the convenience of the tenants of defendant's houses, and the plan on the sub-lease represents the path as outside the demised premises fenced by the railing, and as forming part of the street. The tenants, as against defendant, were entitled to insist on their right to use the path so described. So far as he could as termor, the defendant dedicated the path, and no subsequent change of intention on his part or demand for compensation could undo the appropriation which, if once made, was irrevocable. Whether the (1) [1891] 2 Q. B. 212. (3) [1892] 1 Q. B. 1. (4) [1900] 1 Q. B. 416. (5) 17 Q. B. D. 30. (6) [1901] 2 Ch. 647. 1903. CORPORATION path was a private street or a public street, it falls within the K. B. Div. plaintiffs' jurisdiction. How far the owner in fee would be bound, and how the case would stand at common law, does not now require discussion. I referred to this question in Smith v. Wilson (1). t. HILL. It is urged that the learned Judge ruled that, apart from dedi- Gibson, J. cation by the defendant, the path in its de facto state vested in the plaintiffs. This supposed ruling does not appear from the report; but assuming that the Judge ruled that there was no sufficient proof of dedication (as would appear from the report of the case in 3 New Irish Jurist, at p. 202), he may have had in his mind common law dedication where the fee is bound, and dedication of the strip as part of a public street. If the Judge thought that there was no evidence of dedication of any kind by the defendant, I could not agree with him. There was evidence to warrant an inference of at least limited dedication. The first objection to the judgment. therefore fails. 2. The second question (which was that mainly argued) turns (as is admitted) entirely on the meaning of the words "such owner" in the local Act, 1865, section 89, sub-sect. 1. Apart from case law, and without embarrassing myself with speculative difficulties (which, indeed, apply more or less to any construction of the words), I would think that the owner on whom the demand is to be made would be the owner spoken of in the preceding sections, who was then in default for not doing the work ordered, and who is referred to in the estimate lodged. Though there may be no actual personal debt till demand, the substantial liability would seem complete when the antecedent conditions prescribed by sections 86, 87, and 88 are satisfied. The Act of 1865 proceeds on the basis of estimate, and differs from the Public Health Act, 1875, sections 150 and 257, under which, after service of the statutory notice, the charge on the premises accrues on the completion of the works: Stock v. Meakin (2), Surtees v. Woodhouse (3), when the Statute of Limitations begins to run: Hornsey Local Board v. Monarch Investment Building Society (4), notwithstanding that the owner to be charged cannot, pending (1) [1903] 2 I. R. 68, 69. (2) [1900] 1 Ch. 683. (3) [1903] 1 K. B. 396. CORPORATION K. B. Div. any dispute as to the apportionment, be personally sued: Sandgate 1903. District Local Board v. Keene (1). The charge affects the inheriOF BELFAST tance, and a tenant for life paying it off is entitled to keep it alive as an incumbrance: Re Smith (2). Section 267 contains wide powers of service, extending apparently to cases where the owner Gibson, J. is not known. v. HILL. The Belfast Act of 1865 resembles the Metropolis Local Management Act, 18 & 19 Vict. c. 120, s. 105, in making estimate the basis of charge. This English Act enables the vestry or district board to pave a new street, and imposes on the owners of the houses forming such street the liability or demand to pay the estimated amount of such expenses; in case the estimate exceeds the actual expenses, the difference is to be repaid to the owners by whom the money has been paid; in case the estimate is less than the actual expenses, the owners shall on demand pay such further sum as, with the sum already paid, amounts to such actual expenses. This provision does not impose on the owners the duty of doing the works themselves, as section 86 of the Belfast Act expressly does. The owner under this statute cannot be described therefore as a defaulting owner till demand. There is no direct authority on 18 & 19 Vict. c. 120, s. 105, but there is a dictum of Kelly, C.B., in Plumstead Board of Works v. Ingoldby (3), that under that enactment, standing alone, the board could not have recovered from subsequent owners (see also Blithing Union v. Warton (4)). There is much stronger ground for applying a similar construction to the Belfast Act, 1865. The liability of the owner arises on his default in complying with the order under sect. 86, and that order imposes an absolute obligation to obey it (Mayor, &c., of West Hartlepool v. Robinson (5)). It would seem that the premises became chargeable by virtue of the order and estimate, apart from the execution of the works. The word "payable" in section 101 does not, any more than in section 88, import the existence of a prior demand on the owner. In the Public Health Act, 1875, section 267 enables service to be (1) [1892] 1 Q. B. 831. (2) [1901] 1 Ch. 689. (3) L. R. 8 Ex. at p. 67, (4) 3 B. & S. 352. 1903. CORPORATION OF BELFAST t. HILL. had by addressing "the owner" without naming him; and thus K. B. Div. service on a reputed owner may be sufficient (Wirrall Rural Council v. Carter (1)). There is no similar provision in the Belfast Act, and the actual legal owner, as defined, must be served. It might be impossible to ascertain or serve such owner. No one might be in actual receipt of the rent, either by reason of death, Gibson, J. absence of the owner, or the title being unknown, or otherwise. The inheritance is charged under section 101, and a tenant for life paying off the incumbrance could raise it by mortgage (Re Smith (2)). It is quite possible that when the works are executed the true owner may be unknown, and still the premises might be liable. No doubt, under sub-sections 3 and 4 of section 89, subsequent owners may be included. New owners may come into being during the completion of the work, and the premises being chargeable under section 101, these new owners might be compelled to pay the excessive original estimate (as contemplated by sub-sect. 3), or the extra cost in respect of an insufficient estimate (as contemplated by sub-section 4). Still, these sub-sections do not contain the word "such," which is restrictive in its application to the original personal liability arising out of the order and estimate. Whether a demand could be made under sect. 89, sub-sect. 1, of the statute of 1865, against a succeeding owner of the premises charged, so as to impose on such owner personal liability, is not now before us for decision. Under sect. 96 of the Act of 1878 successive owners were expressly made liable. But whether successive owners could be made personally answerable under the Act of 1865 or not, it seems to me that the original defaulting owner is "such owner" within sect. 89, and must pay the estimated charge when demanded. The difficulties suggested as to the case of a sale by the defaulting owner only arise if the parties misconstrue the statute, and act in disregard of their legal rights and liabilities. The vendor, who may be made personally liable, should see that the purchaser who is to get the benefit of the outlay on the new street should indemnify him. The supposed difficulties apply as much to the defendant's construction as to that (1) [1903] 1 K. B. at p. 651. (2) [1901] 1 Ch. 689. 1903. OF BELFAST v. HILL. Gibson, J. K. B. Div. submitted by the plaintiffs. Thus, if the demand was made on the owner, and he then sold, he would unquestionably be responCORPORATION sible, notwithstanding that the works were begun and completed during the period of the purchaser's ownership, and notwithstanding that such purchaser, and not the vendor, alone was benefited. The demand referred to in sect. 89, sub-sects. 1 and 4, may be a condition precedent to suing the owner personally (Grece v. Hunt (1)); but the default of the owner mentioned in the order and estimate is what, in substance, founds the liability and makes the premises chargeable. The case mainly relied on by defendant's counsel, Reg. v. Swindon Local Board (2), is distinguishable. It was decided on the Public Health Act, 1875, which, after service of the statutory notice on the then owner, makes the liability accrue on the completion of the works. Here the statutory conditions as to order, estimate, and advertisement, were fulfilled; and the default of the owner and chargeability of the premises were ascertained while the defendant continued owner. The demand is only a condition to the personal remedy. The premises may be chargeable, though the owner cannot be personally sued (Stock v. Meakin (3); the Sandgate Case (4)). The Swindon Case (2) has been criticised; but as it was decided on quite different legislation, I need not consider it further, as it is not in point. It is argued that the definition of "owner," which embraces an agent, makes it impossible to suppose that a person who had ceased to own could be charged as owner. Any construction of the term "such owner," however, appears obnoxious, more or less, to the same difficulty. An owner on whom a demand, founded on the prospective estimate, was made, would certainly be liable, though he afterwards, and before the works were finished, sold to someone else. In Broadbent v. Shepherd (5) an agent who had resigned his agency was made responsible in a prosecution for a nuisance which it was no longer in his power to remove. The agent is personally liable, though he has received no rent, and the premises are unlet (Mayor of St. Helens v. Kirkham (6)). The (1) 2 Q. B. D. 389. (2) 4 Q. B. D. 305. (3) [1900] 1 Ch. 683. (4) [1892] 1 Q. B. 831. |