Companies having no parliamentary powers.

Such are a few of the main provisions relating to companies having parliamentary powers. We go on to notice more briefly

(2) Companies having no parliamentary powers.-Where such bodies undertake to supply water it is to be noted that they lay

that there was some evidence of negligence to go to the jury: Steggles v. New River Co., 13 W. R. 413.

When the company's Act does not exempt them from liability for nuisance, the company are liable for damage done by a burst pipe: Charing Cross Electricity Supply Co. v. Hydraulic Power Co., [1914] 3 K. B. 772; 83 L. J.

K. B. 1352.

In Harrison v. Great Northern Rly. Co. (10 Jur. (N.s.) 992) the defendants were charged with the duty of repairing a drain, the outlet of which was in a channel under the management of commissioners bound to keep it clear, and of certain dimensions. Owing to an extraordinary rainfall, the drain burst, and it was held that defendants were liable, although there was an obligation on others which they did not perform; Pollock, C.B., observing (inter alia) that there was nothing in the matter of so extraordinary a character as that the defendants were not bound to anticipate it. The storm, though unusual and extraordinary in a sense, yet as happening once a year, or in a few years, was not unusual. This is not a case of a sudden wrong done by others in stopping the outlet. It is a permanent long-continuing state of things which it was the duty of defendants to guard against."

In order to meet the charge of negligence, a plea must be express and not too general. Thus where damages were claimed by a plaintiff from the East London Waterworks Company for neglect in supplying him with water, they being bound, under section 79 of their Act, to supply water by measure at the request of owners of premises for purposes other than those in respect of which rates were paid, it was pleaded by the company:

1st. That the fire-plug in the main pipe was open to put out a fire.
2nd. That they were prevented by an unavoidable accident.

It was held on demurrer that the first plea was a good answer, but the second was bad, as too general: Campbell v. East London Waterworks, 26 L. T. (N.S.) 475.

Where, however, a water company have observed the directions in their Act of Parliament in laying down their pipes, they are not liable for an escape of water not caused by their own negligence, and the fact that their precautions were not sufficient in an exceptional circumstance (as, for instance, a winter of extreme cold, such as no man could have foreseen) will not render them so: Blyth v. Birmingham Water Co., 11 Ex. 781. As to vis major, see ante, pp. 150 et seq. In Edinburgh Water Trustees v. Sommerville (1906), 95 L. T. 217, H. L. (Sc.), where the company were empowered to construct a reservoir on a stream, and the Act provided that a fixed amount of compensation water should be allowed to flow from the reservoir for the benefit of riparian owners down the stream, it was held that, in the absence of negligence, the water company was not liable for the pollution of the compensation water from accidental causes.

Again, no action at common law lies against the owner of land by a person who has strayed from the public highway, and fallen into a reservoir or any excavation near to but not substantially adjoining it: Hardcastle v. South York Rly. Co., 4 H. & N. 67.

A company claiming a statutory power to take land compulsorily is bound to prove distinctly from the Act of Parliament the existence of the power, and where there is a doubt, the landowner is to have the benefit of it. When, as is often the case, a special Act incorporates a general Act, it is to the special Act that reference must be made in order to ascertain the contract between the landowner and the company. A water company incorporated by a special Act incorporating the Lands and Waterworks Clauses Acts deposited plans showing their intention to make a tunnel through the plaintiff's land forty-five feet below the surface. They also claimed to hold the land permanently for other purposes, namely, to erect steam engines and sink wells. Held, per Lord Westbury, L. C., they were not entitled to do so : Simpson v. South Staffordshire Waterworks, 11 Jur. (N.s.) 453; 34 L. J. Ch. 380.

It may be convenient to note here that the principle that a grantor, knowing the purposes for which his conveyance is accepted, cannot derogate therefrom, applies to a compulsory sale by Act of Parliament; but that such principle

their pipes in streets and public ways at their peril, being liable to an indictment (i) or action for damages, joined with a claim for an injunction at the instance of any individual whenever they break up or obstruct a highway (k). They have also no power to acquire lands and water, or to levy tolls or charge rates or rents, save by agreement (1).

Both projected companies and those already existing can, however, by means of the Gas and Water Facilities Act, 1870 (33 & 34 Vict. c. 70), obtain certain powers for supplying water.

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Section 3 provides that the Act may apply where powers are required to construct or to maintain and continue waterworks and works connected therewith, or to supply water in any district within which there is not an existing company, corporation, body of commissioners, or person empowered by Act of Parliament to construct such works and to supply water" (sub-section 2). By sub-section 3, additional capital can be raised for any of these purposes, and under sub-section 4, "two or more companies or persons duly authorised to supply gas or water in any district, or in adjoining districts," may enter into agreements jointly to furnish such supply or to amalgamate their undertakings." Lastly, by sub-section 5, "two or more companies or persons supplying gas or water in any district, or in adjoining districts," can be authorised" to manufacture gas or to supply water, and to enter into agreements jointly to furnish such supply and to amalgamate their undertakings. Such purposes, or any one or more of them, as the case may be, shall, for the purposes of this Act, be deemed to be included in the term, gas undertaking,' or water undertaking,' according as the same relate to the supply of gas or water; provided that any gas or water company empowered as aforesaid may apply

does not apply to an accidental state of circumstances, such as the flooded state of a mine at the time of the conveyances: N. E. Rly. Co. v. Elliot, 6 Jur. (N.s.) 817; 10 H. L. Cas. 333.

It would appear that a water company has no right to interfere with the sale of water for a profit so supplied by them to a township, where the agreement merely stated that the company should supply not more than 75,000 gallons, nor less than 25,000, and the township took more than 25,000 gallons, and sold the surplus: Halifax v. Soothill, 31 L. T. (N.s.) 6.

It has been decided that a water company has no claim to compensation for interest in land under section 68 of the Lands Clauses Act, 1845, because their pipes are laid under such land: New River Co. v. Midland Rly. Co., 36 L. T. (N.S.) 539. See, too, Ward v. Wolverhampton Waterworks Co., 41 L. J. Ch. 308; Clowes v. Staffordshire Potteries Waterworks Co., 2 L. T. (N.S.) 521.

(i) Reg. v. Longton Gas Co., 2 El. & El. 651; Preston (Mayor of) v. Fulwood Board, 57 L. T. 719.

(k) Goodson v. Richardson, L. R. 9 Ch. 221.

(1) Michael & Will (5th ed.), pp. cxxix., 20 et seq.; as to an agreement to purchase water for mining purposes, see Kimberley Water Co. v. De Beers Consolidated Mines, [1897] A. C. 515; 66 L. J. P. C. 108; 77 L. T. 117, P. C.

Local autho

rities supply ing water.

10 & 11 Vict. c. 34.

11 & 12 Vict. c. 63.

21 & 22 Vict. c. 98.

for and avail themselves of the facilities of this Act within their own districts respectively."

Provisional orders (to be subsequently confirmed by Parliament (section 9)) can be obtained in any district by any company, association, or person for carrying out the above purposes (section 4), the Minister of Health being empowered to consider any application or objection thereto (section 6), and, if it be deemed expedient, to make the provisional order. The Waterworks Clauses Acts, 1847 and 1863, and the Lands Clauses Consolidation Acts of 1845 and 1860, are, by section 10 (m), to be incorporated with such provisional order, save where varied thereby.

This enactment was amended by The Gas and Waterworks Facilities Act, 1870, Amendment Act, 1873 (36 & 37 Vict. c. 89), by section 12 of which the Board of Trade may amend and extend or vary provisional orders, and by section 15 of which the Act is not extend to the metropolis as defined by The Metropolis Management Act, 1855. It remains to notice a few points respecting

(3) Local authorities empowered to supply water.-10 & 11 Vict. c. 34 (The Towns Improvement Clauses Act, 1847), made some provision in this respect (sections 121-124), and incorporated The Lands Clauses Consolidation Act, 1845 (section 19). It was however superseded as regards water by 11 & 12 Vict. c. 63 (The Public Health Act, 1848), under which local authorities were empowered under certain circumstances and conditions to supply their districts with a proper and sufficient supply of water for the purposes of the Act, and might, for that purpose, contract from from time to time with any person whomsoever, or purchase, take on lease, hire, construct, lay down and maintain such waterworks, and do and execute all such works, matters and things as may be necessary for those purposes (sections 75-80). Local authorities might, by agreement, purchase land, and the Act incorporated The Lands Clauses Consolidation Act, 1845 (section 48), excepting such enactments as related to the purchase and taking of lands otherwise than by agreement (n).

These powers were supplemented by 21 & 22 Vict. c. 98 (The Local Government Act of 1858) (o), which (by section 75) incorporated the whole of the Lands Clauses Consolidation Act. except the provisions relating to access to the special Act; and

(m) Cf. section 1 of 33 & 34 Vict. c. 70. Section 10 excepts, so far as regards the incorporation of the Lands Clauses Consolidation Acts, the provisions (1) with respect to the purchase and taking of lands, otherwise than by agreement; and (2) with respect to the entry upon lands by the promoters of the undertaking.

(n) Cf. Michael & Will (6th ed.), pp. 69 et seq.

(0) Sections 51-53 deal specially with water. The Act was amended by the Local Government Act, 1858, Amendment Act, 1861 (24 & 25 Vict. c. 61).

provided the machinery for enabling local authorities to put in force the powers of that Act, as regards the compulsory acquiring of land, by obtaining a provisional order, to be afterwards confirmed by Parliament. This Act was further amended by 24 & 25 Vict. c. 61.

37 & 38 Vict.

c. 89.

The Sanitary Acts of 1866 and 1874 (p) extended to sewer 29 & 30 Vict. authorities the powers given to local boards; the latter statute c. 90. incorporating the powers of the Lands Clauses Act, and authorising sanitary authorities to purchase, either within or without their districts, any land covered with water, or any water, or right to take or convey water (q) (sections 31—33).

c. 55.

The Public Health Act, 1875 (38 & 39 Vict. c. 55), amended 38 & 39 Vict. by The Public Health Act, 1878 (41 & 42 Vict. c. 25), repeals all the statutes noticed above, consolidating, and in some respects amending, the law (r).

By section 51, urban authorities may provide their district or any part thereof, and any rural authorities may provide their districts or any contributory place (8) therein, or any part of such place, with a supply of water proper and convenient for public and private purposes," and for these purposes or any of them

may

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(1) Construct and maintain waterworks, dig wells (t), and do all other necessary acts;

(2) Take on lease or hire any waterworks, and, with the sanction (u) of the Local Government Board, now the Minister of Health, purchase any waterworks or any water or right to take or convey water either within or without their district, and any rights, powers, and privileges of any water company; and

(3) Contract with any person for a supply of water (x).

(p) 29 & 30 Vict. c. 90, Sanitary Act, 1866 (ss. 11-13); 37 & 38 Vict. c. 89, the Sanitary Law Amendment Act, 1874.

(q) But the compulsory powers of purchase contained in the said Lands Clauses Act shall not be exercised, except in pursuance of a provisional order of the Local Government Board (section 33).

(r) Michael & Will, pp. 69 et seq.

(s) As to the repayment out of rates of loans for expenses of construction under this section, see Horn v. Sleaford Rural Council, [1898] 2 Q. B. 355; 67 L. J. Q. B. 724; 78 L. T. 722; 46 W. R. 588; 62 J. P. 502.

(t) As to Public Wells, see ante, p. 186.

(u) Under section 61 the Local Government Board has the power to give a limited sanction, i.e., a sanction of a supply to a specified district of an adjoining local authority and after such a limited sanction has been given a contract for a supply of water to a larger area requires a fresh sanction: Soothill Urban District Council v. Wakefield Rural Council, [1905] 2 Ch. 516; 74 L. J. Ch. 703: 93 L. T. 71; 3 L. G. R. 1208; 69 J. P. 447; 21 T. L. R. 766, C. A.

(a) Their powers are, however, limited in that where there exists a water company empowered by Act of Parliament, or any order confirmed by Parlia ment, to supply water within the district of the local authority, and exercising such powers within the limits of their special Act, local authorities must give written notice to any such water company, within whose limits of supply they are desirous to supply water, before beginning to construct; and so long as any company are able and willing to supply water, proper and sufficient for all

Local authorities are given full powers (sections 175-181) to purchase lands and easements by agreement, for the purposes of the Act, either within or without their districts, but must obtain a provisional order for the purpose (section 176), unless they have acquired by agreement the necessary lands and easements for their waterworks (y); and in order to do this they must publish the same notices by advertisement in the local papers, and serve the same notices (2) on owners, lessees, and occupiers, as if they were proceeding for an Act of Parliament (section 176). Water companies are empowered to contract to supply water, or lease their waterworks to any local authority, or to sell and transfer to such authority on such terms as may be agreed on all the rights, powers, privileges, and all or any of the waterworks, premises, and other property of the company, but subject to all liabilities to which the same are subject at the time of such purchase. The duty of providing a pure and wholesome supply of water (a) is imposed on local authorities (sections 55, 176), and they have now all the powers of The Waterworks Clauses Act, 1863, and many of those of The Waterworks Clauses Act, 1847-such, for instance, as those relating to the breaking up of streets for the purpose of laying pipes (b), the laying of com

reasonable purposes for which it is required by the local authority, it is not lawful for the latter to construct any waterworks within such limits (section 52). The omission to specify a penalty to be paid in case the contract be broken does not render such contract invalid under section 174, sub-section 2: Soothill Urban District Council v. Wakefield Rural Council, ante, n. (u), p. 343.

A local authority may, notwithstanding section 52 of the Public Health Act, 1875, construct and use waterworks for the supply of water for their use only in the district of a water company able and willing to supply such water. Works erected and maintained by a local authority to provide the water necessary to carry out a scheme for the disposal of sewage of its district, are not waterworks within the meaning of section 52, as defined by section 4 of the Public Health Act, 1875; nor can the local authority be said to be supplying water within the meaning of those sections. There is no provision in the Waterworks Clauses Act, 1847, which compels a local authority to take water to cleanse sewers from a water company within whose limits of supply the sewers are situate West Surrey Water Co. v. Chertsey Union, [1894] 3 Ch. 513; 63 L. J. Ch. 806; 71 L. T. 368.

Differences as to being able and willing to supply to be settled by arbitration; see sections 52 and 179-181; and cf. sections 53, 54, for provisoes as to notice.

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(y) Section 4 defines "lands as messuages, buildings, lands, easements, and hereditaments of any tenure "; but as this definition does not include water rights, local authorities must obtain a private Act, and not a provisional order, where their intended waterworks involve the abstraction of water from rivers, streams, &c.; section 176; see Michael & Will (6th ed.), p. 883. As to the meaning of land covered with water in section 211, sub-section 1 (6), see Smith's Dock Co. v. Tynemouth Corporation, post, p. 624. As to the release or waiver of water rights belonging to the Crown under section 8 of the Crown Lands Act, 1894 (57 & 58 Vict. c. 63), see ante, p. 25, n. (d).

(z) Such notices only apply to new waterworks, and not to additions and alterations of existing works: Cleveland Water Co. v. Redcar Local Board, [1895] 1 Ch. 168; 64 L. J. Ch. 64; 13 R. 18.

(a) See ante, p. 335, n. (x).

(b) As to the right to break up a private road, see Hill v. Wallasey Local Board, [1894] 1 Ch. 133; 7 R. 51; 63 L. J. Ch. 1; 69 L. T. 641.