THE PUBLIC HEALTH ACT, 1875.

38 & 39 VICT. CAP. 55.

An Act for consolidating and amending the Acts relating to public health in England. [11th August, 1875.]

The following sections deal with the purchase and taking of lands by local authorities under this Act. Some other public Acts provide for the taking of land by incorporating these sections of this Act, or some of them, as, for example:-The Housing of the Working Classes Act, 1890, Part III., s. 57; The Local Government Act, 1888, s. 65; and The Allotments Act, 1887, s. 3 (4).

Purchase of Lands.

lands.

175. Any local authority may, for the purposes and Sect. 175. subject to the provisions of this Act, purchase or take on Power to lease, sell, or exchange any lands, whether situated within purchase or without their district; they may also buy up any watermill, dam, or weir which interferes with the proper drainage of or the supply of water to their district.

Any lands acquired by a local authority in pursuance of any powers in this Act contained, and not required for the purpose for which they were acquired, shall (unless the Local Government Board otherwise direct) be sold at the best price that can be gotten for the same, and the proceeds of such sale shall be applied towards discharge by means of a sinking fund or otherwise of any principal moneys which have been borrowed by such authority on the security of the fund or rate applicable by them for the general purposes of this Act, or if no such principal moneys are outstanding shall be carried to the account of such fund or rate.

"Any Local Authority."-By section 4, "local authority" means "urban sanitary authority and rural sanitary authority," and now, by section 21 of the Local Government Act, 1894 (56 & 57 Vict. c. 73), urban sanitary authorities shall be called urban district councils, and for every rural sanitary district there shall be a rural district council,

Sect. 175. which district council shall have all the powers of the rural sanitary authority in the district.

"Lands."-By section 4, "lands" and "premises" include messuages, buildings, lands, easements, and hereditaments of any tenure. The Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 3, provides that in any Act passed after the year 1850 the expression "land" shall include messuages, tenements, and hereditaments, houses and buildings of any tenure. This latter definition omits the word "easements," which are, however, included in the word hereditaments. See section 3 of the Lands Clauses Act, 1845, note "Lands," ante, p. 7.

Mines.-Section 334 of this Act provides that nothing in this Act shall be construed to extend to mines so as to interfere with or obstruct the efficient working of the same; but in the case of Re Corporation of Dudley, 8 Q. B. D. 86, LINDLEY and BRETT, L.JJ., both expressed the opinion that section 334 only extended to nuisances: pp. 96, 97. In respect of support of sewers, pipes and other structures the Public Health Act (1875) (Support of Sewers) Amendment Act, 1883 (46 & 47 Vict. c. 37), post, incorporates the "mine" clauses of the Waterworks Clauses Act,

1847.

Tithes. Provision is made for the redemption of tithes on land taken to be used for public purposes by the Tithe Act, 1878 (41 & 42 Vict. c. 42), ss. 1, 2, post, p. 524.

Soil under Streets.-Where the surface of land has been dedicated to the public for a street, the subsoil still remains the property of the landowner, and a local authority cannot erect a public convenience under a street without acquiring such subsoil (Baird v. Tunbridge Wells Corporation [1894], 2 Q. B. 867); and as to the meaning of street, see Fareham Local Board v. Smith, 7 "Times" L. R. 443; Coverdale v. Charlton, 4 Q. B. D. 104; Rolls v. St. George-the-Martyr, 14 Ch. D. 785; and Wandsworth District Board of Works v. United Telephone Company, 13 Q. B. D. 904. Water pipes may be laid down in a private road by a sanitary authority having the general control of the streets, making compensation afterwards for injury done under section 308. Section 57; and see Hill v. Wallasey Local Board [1894], 1 Ch. 133.

Superfluous Land.-See the notes to section 127 of the Lands Clauses Act, 1845, ante, p. 275. That section is expressly excepted in the case of lands taken compulsorily by section 176. Section 128 of the Lands Clauses Act, 1845, is not, however, excluded, which gives a right of pre-emption to the person from whose land they were severed and to adjoining owners. Ante, p. 282.

Where a corporation had acquired land compulsorily for the purpose of carrying out a public improvement, and they proposed to abandon that purpose and use the land for some other purpose, the Court granted an injunction to restrain them from so doing. Attorney-General v. Corporation of Sunderland, W. N. (1873) 174.

Solicitors' Costs.--Land purchased voluntarily under this Act is purchased in accordance with the Lands Clauses Act, and the exception in rule 11 of Schedule I., Part 1, of General Order under the Solicitors Remuneration Act, 1881, which excludes the scale in the case of purchases under the Lands Clauses Act, applies to purchases under this Act. The charges of the vendor's solicitor, which a local board had agreed to pay, were held not to be limited to the amount mentioned in the scale. In re Burdekin [1895], 2 Ch. 136.

176. With respect to the purchase of lands by a local Sect. 176. authority for the purposes of this Act, the following regula- Regulations shall be observed; (that is to say,)

(1.) The Lands Clauses Consolidation Acts, 1845, 1860,
and 1869, shall be incorporated with this Act,
except the provisions relating to access to the special
Act, and except section one hundred and twenty-
seven of the Lands Clauses Consolidation Act, 1845.
(2.) The local authority, before putting in force any of the
powers of the said Lands Clauses Consolidation
Acts with respect to the purchase and taking of
lands otherwise than by agreement, shall

Publish once at the least in each of three consecutive
weeks in the month of November, in some local
newspaper circulated in their district, an advertise-
ment, describing shortly the nature of the under-
taking in respect of which the lands are proposed to
be taken, naming a place where a plan of the pro-
posed undertaking may be seen at all reasonable
hours, and stating the quantity of lands that they
require; and shall further

Serve a notice in the month of December on every
owner or reputed owner, lessee or reputed lessee
and occupier of such lands, defining in each case
the particular lands intended to be taken, and
requiring an answer stating whether the person so
served assents, dissents, or is neuter in respect of
taking such lands.

(3.) On compliance with the provisions of this section with
respect to advertisements and notices, the local
authority may, if they think fit, present a petition
under their seal to the Local Government Board.
The petition shall state the lands intended to be
taken, and the purposes for which they are required,
and the names of the owners, lessees, and occupiers
of lands who have assented, dissented, or are neuter

tions as to purchase of land.

Sect. 176.

in respect of the taking such lands, or who have returned no answer to the notice, it shall pray that the local authority may, with reference to such lands, be allowed to put in force the powers of the said Lands' Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, and such prayer shall be supported by such evidence as the Local Government Board requires.

(4.) On the receipt of such petition, and on due proof of the proper advertisements having been published and notices served, the Local Government Board shall take such petition into consideration, and may either dismiss the same, or direct a local inquiry as to the propriety of assenting to the prayer of such petition; but until such inquiry has been made no provisional order shall be made affecting any lands without the consent of the owners, lessees, and occupiers thereof.

(5.) After the completion of such inquiry the Local Government Board may, by provisional order, empower the local authority to put in force, with reference to the lands referred to in such order, the powers of the said Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, or any of them, and either absolutely or with such conditions and modifications as the Board may think fit, and it shall be the duty of the local authority to serve a copy of any order so made in the manner and on the person in which and on whom notices in respect of such lands are required to be served.

Provided that the notices by this section required to be given in the months of November and December may be given in the months of September and October or of October and November,

but in either of such last-mentioned cases an inquiry prelimi- Sect. 178. nary to the provisional order to which such notices refer shall not be held until the expiration of one month from the last day of the second of the two months in which the notices are given; and any notices or orders by this section required to be served on a number of persons having any right in, over, or on lands in common, may be served on any three or more of such persons on behalf of all such persons.

"For the Purposes of this Act."-The principal purposes of this Act for which land may be required are, under Part III., to construct sewers (section 16), works for the disposal of sewage (section 27), public conveniences (section 39), waterworks (section 51), hospitals (section 131), and mortuaries (section 141) and, under Part IV., to widen and enlarge streets and to make new streets (section 154), to provide public pleasure grounds, market places, and market houses (section 166), and slaughter-houses. Power is also given to construct a cemetery by the Public Health (Interments) Act, 1879 (42 & 43 Vict. c. 31).

The powers as to the construction of public conveniences and waterworks, and the powers to do the work under Part IV., mentioned above, were given to urban sanitary authorities, now urban district councils. These bodies are also given, by section 144, the powers of the highway authorities under the Highway Act, 1835 (5 & 6 Will. 4, c. 50). See Appendix. The powers of the Open Spaces Acts, 1877, 1890, are also given to urban sanitary authorities and certain rural sanitary authorities. See the Open Spaces Act, 1887 (50 & 51 Vict. c. 32), s. 5.

By the Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 25 (1), in rural districts the powers as regards highways are transferred to the rural district council, and by sub-section (5) of the same section, rural district councils may have such of the powers of urban districts as the Local Government Board may by general order direct. As to the powers of parish councils to acquire land, see sections 9 and 10 of the Local Government Act, 1894, post.

Sub-section (1.)-With the Lands Clauses Acts here mentioned are to be read the Lands Clauses (Umpire) Act, 1883 (46 & 47 Vict. c. 15), post, and the Lands Clauses (Taxation of Costs) Act, 1895 (57 & 58 Vict. c. 11), post.

Section 127 deals with the sale of superfluous land, ante, p. 275, as to the sale of which see last section. As to what is the special Act, and who are the promoters of the undertaking, see section 316, post, p. 523. District councils taking land under this section for public improvements will have to make good the deficiencies in the poor's rate and land tax under section 133 of the Lands Clauses Act, 1845, ante, p. 287. Governors of Poor of Bristol v. Mayor of Bristol, 18 Q. B. D. 549.

Sub-section (2.)—Serve a Notice.-As to service, see section 267, post, and as to service on commoners, see proviso to this section.

The service of a notice under this section does not bind the local