The Acts amending this enactment, and cited with it, are The Lands Clauses Consolidation Acts Amendment Act, 1860, and The Lands Clauses Consolidation Act, 1869, and The Lands Clauses (Umpire) Act, 1883 (23 & 24 Vict. c. 106, and 32 & 33 Vict. c. 18, 46 & 47 Vict. c. 15, and any Acts for the time being in force amending the same are all included in the expression "Lands Clauses Acts" (g).

The Companies Clauses Consolidation Acts of 1845, 1863, and 1869 (8 Vict. c. 16, 26 & 27 Vict. c. 118, 32 & 33 Vict. c. 48) consolidate the law regulating the constitution of companies incorporated for carrying on undertakings of a public nature.

:

Of the powers of companies incorporating these statutes, the authors of The Law relating to Gas and Water" write :"Thus authorized, a company may take compulsorily lands (h) and streams (i), subject to the provisions and restrictions of the Lands Clauses Act in exercising such powers. The undertakers must make to the owners and occupiers of and all other parties interested in any lands or streams taken or used for the purposes of the special Act, or injuriously affected by the construction or maintenance of the works thereby authorized, or otherwise by the

the parties, whether company, undertakers, commissioners, trustees, corporations, or private persons, by the special Act empowered to execute such works or undertaking. Land" includes messuages, lands, tenements, and hereditaments of any tenure (section 3). By section 6, power is given to promoters of undertakings to purchase lands by agreement, and section 7 enables parties under a disability to sell and convey. For decisions on points connected with these Acts, cf. Stone v. Corporation of Yeovil, 2 C. P. D. 99; Bush v. Trowbridge Water Co., L. R. 10 Ch. 459; North Eastern Rly. Co. v. Elliot, 6 Jur. (N.S.) 817; New River Co. v. Midland Rly. Co., 36 L. T. (N.s.) 529; see note (s), p. 332, and note (h), p. 339.

(g) See Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 23.

(h) Lands include mines" Halliday v. Mayor of Wakefield, [1891] A. C. 81. As to meaning of other minerals,' see Glasgow (Mayor of) v. Farie, 13 A. C. 657; 58 L. J. P. C. 33; 60 L. T. 274. A waterworks undertaking which by voluntary agreements purchases, under the powers of its special Act, land without the minerals, and then purchases other adjoining land with the minerals, is entitled to lateral support for the adjoining land so purchased and for the buildings thereon, derived from the mines under the land purchased without the minerals, and such support is not confined to but extends beyond the forty yards limit specified in sect. 22 of the Waterworks Clauses Act, 1847. In such a case the common law rights of the undertakers are unaffected by the statute: New Moss Colliery Co. v. Manchester Corporation, [1908] A. C. 117; 77 L. J. Ch. 392.

(i) A water company, who were authorised in 1869 by their Act to make a reservoir with a dam across a stream, and to impound all the waters of that stream and of other streams then flowing into that stream above the dam, have the right to stop any person from diverting the water of that stream or its tributaries above the dam, but not to stop any person using the water above who had a right to do so at the time their Act was passed.

A person who makes an artificial cutting and so brings water to a stream which did not go there before, can primâ facie cut it off if he chooses. Brymbo Water Co. v. Lester's Lime Co. (1894), 8 R. 329.

There is no penalty for taking water from an unoccupied house under the Waterworks Acts: Piercy v. Pope, 45 L. T. 477; 30 W. R. 60. As to covenants for supply of water between two companies, see Hartlepool Gas and Water Co. v. West Hartlepool Harbour Rly. Co., 12 L. T. 366.

execution of the powers thereby conferred, full compensation for the value of the lands and streams so taken or used (k), and for all damage sustained by such owners, occupiers and other persons by reason of the exercise, as to such lands and streams, of the power vested in the undertakers" (1). The amount of the compensation (m) is to be determined, and the payment enforced in the manner provided by the Lands Clauses Consolidation Acts. For the purpose of constructing waterworks, the undertakers may enter upon the lands and places described on the plans (n) and in the books of reference, and may take the levels and set out parts thereof, and dig and break up the soil (o), and trench and sough the same, and remove and use earth, stone, mines, minerals, trees, and other things. They may sink wells (p), make, maintain, alter, or discontinue reservoirs, waterworks, cisterns, tanks, aqueducts, drains, cuts, sluices, pipes, culverts, engines, and other

(k) Where land is compulsorily taken for the purpose of making a reservoir, and the land has a special adaptability for the construction of a reservoir, the tribunal assessing the compensation is not precluded from taking into consideration the special adaptability as an element of value, by reason of the fact that the land could not be utilised for the construction of a reservoir by other possible competitors unless statutory powers for its compulsory purchase were first obtained: In re an arbitration between Lucas and Chesterfield Gas and Water Board, [1909] 1 K. B. 16, C. A. As to the right to compensation for the withdrawal of support by the abstraction of water under sects. 6 and 12 of the Waterworks Clauses Act, 1845, see Fletcher v. Birkenhead Corporation, [1907] 1 K. B. 205; ante, p. 215.

(l) Cf. as to the powers and duties of water companies, Michael & Will, 2nd ed., pp. lviii et seq, 5th ed., pp. cxxix et seq. See also Consett Water Co. V. Ritson, 22 Q. B. D. 702. Mine-owners are not entitled under sect. 6 to compensation for the prospective prevention of the working of part of their coal by the formation of a reservoir under a special Act, inasmuch as though the word lands includes mines the mine-owners were not injuriously affected within the meaning of the section: Halliday v. Mayor of Wakefield, [1891] A. C. 81. See also Stone v. Corporation of Yeovil, 2 C. P. D. 99; post, p. 339, n. (k).

(m) As to meaning of "price and compensation under a special Act, see Stockton and Middlesboro' Water Board v. Kirkleatham Local Board, [1893] A. C. 464; 62 L. J. Q. B. 356; 69 L. T. 661; see also Blantyre v. Batbie, 13 A. C. 631, H. L. Sc. As to the right to recover compensation and penalties under a local Act and the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 145, see Meltham Spinning Co. v. Huddersfield Corporation (1903), 89 L. T. 403; 67 J. P. 448; 2 L. G. R. 32, C. A.; Beaumont v. Huddersfield Corporation, (1902) 67 J. P. 57; 1 L. G. R. 128, C. A.

(n) Errors, misstatements, and wrong descriptions of any lands, streams, or the owners, lessees, or occupiers thereof, on the plans or books of reference may be corrected before the justices subject to the conditions prescribed by the Act. As to meaning of plan see East Molesey Local Board v. Lambeth Waterworks. [1892] 3 Ch. 289; 62 L. J. Ch. 82; 67 L. T. 493. The deposit of plans of their underground works, pursuant to sections 19 and 20 of the Waterworks Clauses Act, 1847, is a condition precedent to the right of a company incorporated under that Act to recover for injuries caused to their pipes by the ordinary and usual workings of a subjacent mine: South Staffordshire Waterworks Co. v. Mason, 56 L. J. Q. B. 255; 57 L. T. 116; see In re Corporation of Dudley, 51 L. J. Q. B. 121; L. R. 8 Q. B. D. 86.

(0) As to cutting through girders of a railway bridge, see Glasgow Corporation v. Glasgow and S. W. Rly. Co., [1895] A. C. 376; 64 L. J. P. C. 171; 72 L. T. 809; Thompson v. Sunderland Gas Co., 2 Ex. D. 429.

(p) See as to this point, South Shields Waterworks Co. v. Cookson, 15 L. J. Ex. 315.

Rights and liabilities of water com

panies.

works (q) and erect buildings; they may also divert and impound water from the streams mentioned for that purpose in the special Act or the plans or books of reference, and alter the course of such streams not being navigable, and take such waters as may be found in and under or on the lands to be taken for constructing the works. In the exercise of these powers, the undertakers are to do "as little damage as can be (r); and in all cases where it can be done, they are to provide other watering places, drains, and channels for the use of adjoining lands in place of any such as shall be taken away or interrupted by them, and are to make full compensation to all parties interested for all damage sustained by them through the exercise of such powers" (s). Provision is made for the settlement by justices of differences as to the construction of accommodation works, for cases where the undertakers take land containing minerals or interfere by the works with the working of mines, and for the mode in which streets are to be broken ap (t) for the purpose of laying pipes (u).

(q) These words include surface works, such as valve covers: East London Water Co. v. St. Matthew, Bethnal Green, 17 Q. B. D. 475; 55 L. J. Q. B. 571; 54 L. T. 919.

(r) As to negligence in leaving a stopcock box uncovered, see Smith v. Southwark and Vauxhall Co., 53 J. P. 424; Chapman v. Fylde Waterworks Co., [1894] 2 Q. B. 599; 64 L. J. Q. B. 15; 71 L. T. 539; Moore v. Lambeth Water Co., 17 Q B. D. 462; Kemp v. Worthing Local Board, 10 Q. B. D. 118. As to liability for escape of water, see ante, pp. 150 et seq.

water in

(s) As to the duty of a water company to supply"compensation place of water taken from certain streams, see Beaumont v. Huddersfield Corporation (1902), 67 J. P. 57; 1 L. G. R. 128, C. A.; Meltham Spinning Co. v. Huddersfield Corporation (1903), 89 L. T. 403; 67 J. P. 448; 2 L. G. R. 32, C. A.; Michael & Will, 5th ed., pp. cxxix, cxxx et seq. Unless otherwise authorised by their special Act, the undertakers must not deviate from the line of the works laid down in the plan more than ten yards when constructing their waterworks, nor may they lay down any pipe or other work in any land not dedicated to public use without the consent of the owners and occupiers

thereof.

(t) As to sections 48 and 52 of 10 & 11 Vict. c. 17, on this point, see Glover v. East London Waterworks, 16 W. R. 310; 17 L. T. N. S. 475, C. P.; and as to minerals, see Huddersfield Corporation and Jacomb, In re, 17 L. R. Eq. 476; 30 L. T. N. S. 78; 31 L. T. N. S. 466. As to breaking up a private road, see Hill v. Wallasey Local Board [1894] 1 Ch. 133.

(u) Michael & Will, 5th ed., pp. cxxix, cxxx, et seq. For the rights and duties generally of bodies exercising statutory powers, see ante, pp. 283 et seq. It will be useful here, however, to note some of the leading decisions relating to the rights and liabilities of water companies who, while prevented by the law from unduly trenching on the rights of the public, are at the same time protected from harassing actions by individuals which otherwise interfere with the discharge of their functions. The mere fact that the breach of a statutory duty has caused damage, does not vest a right of action in the person suffering against the person guilty of the breach. This is regulated by the wording and object of each statute. The mere passive omission of a road authority to rectify a subsidence in a road originally caused by the neglect of a water company to make good the road after having broken it up for the purpose of their undertaking does not exonerate the water company from liability for an injury to a person using the road: Hartley v. Rochdale Corporation, [1908] 2 K. B. 594; 77 L. J. K. B. 884; 99 L. T. 275; 72 J. P. 343; 6 L. G. R. 858; 24 T. L. R. 625. In Southwark and Vauxhall Water Co v. Wandsworth District Board of Works. [1898] 2 Ch. 603; 67 L. J. Ch. 657; 79 L. T. 132; 47 W. R. 107: 62 J. P. 756, C. A., where a water company under statutory powers laid down pipes

On the other hand, as respects the rights of the public, Rights of the public. "Owners and occupiers are entitled to demand a supply of pure

under the surface of a street and a highway authority under section 98 of the Metropolis Management Act, 1855, 18 & 19 Vict. c. 120 proposed to lower the surface of the street without disturbing the pipes but leaving only a few inches of soil over them, it was held that the highway authority were not bound to relay the pipes at a corresponding depth: Gas Light Co. v. Vestry of St Mary Abbott, 15 Q. B. D. 1; and Geddis v. Bann Reservoir, 3 A. C. 430, distinguished and explained.

In Atkinson v. Gateshead Water Co., 2 Ex. Div. 141; 46 L. J. Ex. 775; 36 L. T. 761, the plaintiff brought an action for damages against the company for not keeping their pipes charged as required by their Act, whereby his premises were burnt down. Under the Waterworks Clauses Act, 1847, the company were bound-(1) to maintain fire plugs, sections 33-43; (2) to furnish a sufficient supply of water for certain public purposes, section 37; (3) to keep pipes to which fire plugs are affixed at a certain pressure at all times, and to allow all persons to use them for extinguishing fire at all times without payment, section 42; (4) to supply all owners with sufficient water for domestic purposes, section 35. A penalty of £10 of which one-half may be awarded to the informer, is imposed for each breach, and for breaches of duties (2) and (4) they are to forfeit £40 a day, sections 37 and 43:-Held (reversing the decision of the Court of Exchequer), that the statute gave no right of action. Per Cockburn, C.J., If any person is injured by a breach of such duty, he must have recourse to the statutory remedy, and cannot maintain an action for damages." See, too, New River Co. v. Johnson, 6 Jur., N. S. 374; Blagrove v. Bristol Waterworks Co., 1 H. & N. 369; 26 L. J. Ex. Ch. 57; Barber v. Nottingham and Grantham Rly. and Canal Co., 15 C. B. N. S. 726; 33 L. J. C. P. 193.

A water company had laid mains along a turnpike road under an Act which declared the soil to be in the owners on each side. On an action being brought by a firm who had contracted with K., owner of the soil on both sides, to make a cut through the embankment on which the road and pipes were carried over his soil for the stoppage of their works by an escape of water from the company's pipes; it was held that assuming K., the owner, could have maintained an action against the defendants (as to which the Court gave no opinion), the plaintiffs could not. If we did so (i.e., held defendant liable), we should establish an authority for saying that in such a case as Fletcher v. Rylands, the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools destroyed, but to an action by every workman employed in the mine, who in consequence of its stoppage made less wages."-Blackburn, J.; Cattle v. Stockton Water Co., L. R. 10 Q. B. 453; 44 L. J. Q. B. 139; 33 L. T. 475. See also Charing Cross Electricity Supply Co. v. Hydraulic Power Co., [1914] 3 K. B. 772, where it was held that the doctrine of Rylands v. Fletcher applied to cases in which the site of the plaintiff's injury was occupied by him under a licence and not under any right of property in the soil.

was

An Act, incorporating the Waterworks Clauses Act, 1847, empowered the Trowbridge Water Company to divert the water of certain springs forming the principal supply of a brook. The owner of a water meadow below through which the brook subsequently flowed, alleged by bill that the water materially diminished, and prayed that defendants might be restrained and compelled to treat for the purchase of her interest under the 18th clause of the Lands Clauses Act. It was held that, not being an owner of anything "taken "under the Act, she could not compel defendants to treat for purchase, and her proper remedy was to apply for compensation for lands injuriously affected. James, L.J., said: "I am of opinion that it is impossible in any legal or other sense of the words to say that she was the owner or occupier of anything which they entered on or took. They entered on the channel or bed of a stream somewhere above plaintiff's land, and there they took, by way of diversion, water for purposes of their waterworks, which water, to put the case in the highest for the plaintiff, would in due course, if they had not so diverted it, have gone down to her land, and would then and so long as it was over her land, be water of which she was the owner and occupier in the sense in which a person is the owner or occupier of a stream running through his land, that is to say, the water would have then become within the ownership, and to some extent, within the occupancy of the plaintiff. But when it was intercepted by defendants just as if it had been intercepted by any other

and wholesome water (x) for domestic purposes (y), and at such a pressure as will reach the top storey of the highest house in the

riparian proprietor, although it might have become part of her property the water which was actually intercepted was not her property": Bush v. Trowbridge Water Co., L. R. 10 Ch. 459; 44 L. J. Ch. 45; 33 L. T. 137. See, too, Simpson v. South Staffordshire Waterworks Co., 11 Jur. (N.S.) 453; 34 L. J. Ch. 380; 13 W. R. 729; Att.-Gen. v. Bristol Waterworks, 10 Ex. 884; 24 L. J. Ex. 205.

In Waller v. Mayor of Manchester, 6 H. & N. 667, the defendants were empowered to construct a reservoir, but were not to divert the waters of the river Etherow till it was completed. They were to discharge seventy-five cubic feet of water per second for twelve hours a day under £50 penalty, and they were not to divert any water from the river Etherow till they had commenced to discharge seventy-five feet per second. Defendants made a reservoir which, through engineering difficulties, was never completed, but they diverted the waters of the river Etherow in 1857, and supplied certain quantities less than seventy-five feet. In 1860, the plaintiff, a mill-owner, brought an action1st count, for diverting the water; 3rd and 4th counts, claiming damages from the defendants for not supplying seventy-five cubic feet.-Defendants paid money into Court as to the 1st count; as to the 3rd and 4th they pleaded that the reservoir had not been finished so as to make it their duty to supply the water-Held, that the plea was good, and the plaintiffs were only entitled to damages for the diversion of the water, and not for the non-discharge of seventy-five feet per second from the reservoir. 'The plaintiffs did not think fit to interfere by mandamus or injunction, but suffered the defendants to intercept the water for more than six years. Under the circumstances plaintiffs are only entitled to damages for getting less water from the natural stream."-Pollock, C.B.

46

Section 43 of the Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), enacts that, if, except when prevented as aforesaid (that is to say, by frost, unusual drought, or other unavoidable cause or accident, or during necessary repairs (sect. 42), the undertakers neglect or refuse to furnish to any owner or occupier entitled under this or the special Act to receive a supply of water during any part of the time for which the rates for such supply have been tendered, they shall be liable to a penalty of £10, and shall also forfeit to every person having paid or tendered the rate, the sum of 40s. for every day during which such refusal or neglect shall continue after notice in writing shall have been given to the undertakers of the want of supply." This provision only applies to a total cessation of the supply, and not to a neglect to supply sufficient quantity of water Simpson v. South Oxfordshire Gas and Water Co., [1908] 1 K. B. 917; 77 L. J. K. B. 46; 98 L. T. 585; 72 J. P. 162; 6 L. G. R. 454; 24 T. L. R. 407.

66

By section 74 of the same statute, it is provided that if any person supplied with water neglect to pay the water rate, the undertakers may stop the water from flowing into the premises, by cutting off the pipe to such premises, or by such means as the undertakers shall think fit." A tenant of premises supplied by a company with water having failed to pay the water rate, the company, under the powers conferred on them by section 74, severed the communication with their main pipes. A subsequent tenant demanded a supply of water for the same premises, tendering to the company the current quarter's rate, and the estimated expense of restoring the communication, but the company refused to supply the water until the arrears due from the former tenant were paid. A magistrate having convicted the company under section 43 of the Act for such refusal, it was held that, although the company were not warranted in refusing to supply water to the incoming tenant until the arrears due to them as above stated were paid, they could not be made liable to the penalties imposed by section 43 until he himself had restored the communication with their main pipes: Sheffield Waterworks Co. v. Wilkinson, 4 C. P. D. 411. If a water company wrongfully cut a communication made by the owner of a house between the main and the house they are guilty of a common trespass, and the owner has a right of action for damages and an injunction, and is not restricted to proceedings for penalties under section 43 of the Act of 1847 Gale v. Rhymney Gas and Water Co. (1903), 89 L. T.

(x) (y) See notes, (x) (y), p. 335.