important of these. By it commissions of sewers were to be issued from time to time as need required (t), and their powers and duties were confined to the particular districts issued in each particular commission, which formerly only lasted for three years. But now, by the Land Drainage Act, 1861 (u), a commission of sewers once issued shall be deemed to continue until such time as it shall be superseded by his Majesty, who may from time to time fill up any vacancies therein under his sign manual.

The Commissioners of Sewers were required by the Bill of Sewers (23 Hen. 8, c. 5), in the first place, to make a survey of the various defences against the sea, and obstructions to navigation or the flow of rivers, and to hear and determine concerning the same, through whose default such defences were out of repair, or such obstruction caused, and to ascertain the names of the owners of the various lands where offences have occurred, and also of such as have suffered inconvenience. They were empowered to assess the lands of all individuals in their district (x), whether damaged or not, for repairs which they are directed to execute, and to take labourers, carriages, timber, and other necessaries, on paying a reasonable price. They are empowered to make such orders, ordinances, and decrees as may be expedient, and by the judicial authority with which they are invested they may sit in judgment upon their own orders, subject, however, to the correction of the higher Courts. They may issue writs and precepts to the sheriffs, bailiffs, and others, and may punish by distress, fine, and, in some cases, by imprisonment, any one showing negligence or disobeying their orders (y). Their powers are confined to the sea, and to navigable rivers, and to public sewers, and to things which interfere with the public convenience (z).

The authority to be exercised by the Commissioners of Sewers on the behalf of the public does not, however, vest in them such a property in the embankments or walls which they have

(t) See Woolrych on Sewers, pp. 8, 9.

(u) 24 & 25 Vict. c. 133.

(a) In a district under the statutory jurisdiction of Commissioners of Sewers, rentcharges were imposed on lands A. and B. for the maintenance of works necessary to protect the district from the incursions of the sea. Some of the lands within the district shared the benefits of this protection, though they were not liable to, and did not contribute towards, the maintenance of the works.

Held, by the H. L., reversing the decision of the C. A. and the K. B. D., that upon assessing to the poor rate the tenants of lands A. and B., they were entitled to a deduction from the rateable value in respect of the rentcharge. or such proportion thereof as was the proper share of lands A. and B. respectively, on the footing that all the protected lands were taken to contribute rateably, having regard to the protection they received. _Green_v. Newport Union and Stead v. Newport Union, [1909] A. C. 35, H. L. E., [1907] 2 K. B. 460, [1906] 2 K. B. 147.

(y) Woolrych on Sewers, pp. 54-62.

(z) Ibid. p. 68; per Buller, J., in Jean v. Holland, 2 T. R. 365.

erected, as will enable them to maintain an action of trespass against a trespasser for breaking them down-the remedy must be by indictment in the name of the king (a). Sect. 10 of the Sewers Act, 1833 (3 & 4 Will. 4, c. 22), by which all walls, banks, &c., adjoining the sea or tidal rivers are to be within the jurisdiction of the commissioners, does not vest such walls, &c., in the commissioners until they have taken them within their jurisdiction in the manner described in section 47 (b). It has further been held that there is nothing inconsistent with the purposes of a sea or river wall or embankment erected to protect the neighbouring lands, in a public right of way along the surface; and that the same evidence of user will raise the presumption of a dedication of a right of way by the owner of the soil in the case of such embankment, as in any other case of uninterrupted and open user by the public; but that, if it was necessary for public purposes or for the public safety of a district that the level of the wall should be altered, so as to interfere with and obstruct the public right of way, the right of way must yield to the larger and more important purpose for which the powers of the Commissioners of Sewers were given (c).

Their powers parts of the

limited to

vested in

any conser

The conservancy of navigable rivers, ports, harbours and docks of the kingdom is now almost universally vested in corporate bodies, who have in some cases had conferred on them power coast not to attend to the sea defences within their jurisdiction. The powers, therefore, of Commissioners of Sewers at the present vators or harday are restricted mostly to those parts of the coast not under the regulation of any body of conservators or trustees of ports, harbours or docks (d).

Though it has been said that it was the duty of the king to guard and protect the shores and lands adjoining the sea from being overflowed by the sea, there is no liability in this respect which can be enforced against the king, and no mode of enforcing it (e). There is also no liability at common law apart from prescription upon a frontager to maintain a sea-wall for the protection of his neighbours; nor is the fact that a frontager had always maintained a wall in front of his land, and that no one had thought it necessary to erect a wall to protect his land from the water which might come from his neighbour's land, sufficient

(a) Duke of Newcastle v. Clark, 2 Moore, R. 666, 20 R. R. 583; see Driver V. Simpson, itid. note on p. 682.

(b) West Norfolk Farmers' Manure Co. v. Archdale, 16 Q. B. D. 754, 55 L. J. Q. B. 230; 54 L. T. 561.

(c) Greenwich Board of Works v. Maudsley, L. R. 5 Q. B. 397.

(d) See post, Chap. X., as to Commissioners of Sewers and Land Drainage Boards.

(e) Hudson v. Tabor, 2 Q. B. D. 290; Att.-Gen. v. Tomline, 14 Ch. D. 58, 12 Ch. D. 214. As to liability of River Commissioners under Acts of Parlia ment to repair, see Bramlett v. Tees Conservancy, 49 J. P. 214, and post, p. 497.

bour trustees.

Liability to repair not against the Crown or at against a frontager.

enforceable

common law

But the Crown may prevent destruction of

natural barriers.

A.-G. v.
Tomline.

evidence to establish a prescriptive liability on a frontager to maintain the wall for the protection of the adjoining landowners (f). So a parish has been held not liable to repair part of a highway washed away by the sea (g).

But there exists in the Crown a prerogative right and a duty to protect the lands of the realm from the inroads of the sea for the benefit of the commonwealth; and such prerogative right and duty import a right in an owner of land protected from the sea by a natural barrier to have such protection continue undisturbed by the owner of the land on which the natural barrier is; and this right, though not enforceable against the Crown, is enforceable against a subject who is the owner of land on which such natural barrier exists. Thus in Att.-Gen. v. Tomline (h), the plaintiff and relator, the Secretary of State for War, was seised in trust for the Crown of a piece of land near the shore of the estuary of a tidal river. The defendant was lord of the manor and owner of the adjoining land and foreshore lying between the plaintiff's land and the estuary. On the shore on the defendant's land was a natural bank of shingle formed by the sea. The defendant and his predecessors had for many years sold large quantities of shingle, and in consequence of this removal the plaintiff's property was overflowed by a very high tide in 1877, and its safety became endangered. On information and action to restrain defendant from removing any shingle so as to endanger the plaintiff's land, Fry, J., granted the injunction prayed, and based his judgment on the ground of the duty of the Crown to protect the land of the subject, and on the absurdity which would result if the subject was allowed to destrov what the Crown is bound to maintain; and, remarking on the case of Hudson v. Tabor, he admits that a great distinction may exist between a liability to repair an artificial bank or wall, and the right to destroy a natural protection. This judgment was affirmed on appeal (i), the Court holding that it is the duty of the Crown to protect the realm from the inroads of the sea by maintaining the natural barriers or by raising artificial barriers, and that no subject is entitled to destroy a natural barrier against the sea; and if the destruction of such natural barrier would cause an injury to a neighbouring landowner, he is entitled to an injunction to restrain it, although the removal of shingle and its sale is a natural and ordinary user of the land (k).

(f) Hudson v. Tabor; Att.-Gen. v. Tomline, supra.

(g) Reg. v. Hornsea, 2 C. L. R. 596, 23 L. J. M. C. 59, 6 Cox, C. C. 279. (h) 12 Ch. D. 214, 40 L. T. (N.s.) 775; followed in Holien v. Tipping, [1915] 1 Ir. R. 210, and Canvey Island Commissioners v. Preedy, [1922] 1 Ch. 179, 91 L. J. Ch. 203, where the removal of drift sand and shingle was restrained.

(i) 14 Ch. D. 58.

(k) See Crompton v. Lea, 31 L. T. (N.s.) 469.

By prescription, however, the liability to repair a sea-wall and Liability to to defray all the expenses may be imposed upon an individual repair may be imposed by owner. If the injury to a sea-wall is occasioned by the default of prescription. him who is bound to repair it and is not irremediable, and he cannot repair it, every one charged with the repairs may have an action on the case against him (1). Thus it had been held in Lyme Regis Corporation v. Henley (m) that an individual who had suffered loss by decay of sea-walls which a corporation was directed to repair under terms of a grant from the Crown conveying borough and pier or quay tolls, may sue the corporation for damages; so also, as the obligation concerns the public, an indictment will lie. Where a farm has been subject ratione tenure to the repair of a sea-wall, such liability attaches to every part of the land comprising the farm though the farm has been sold and has become vested in several different purchasers (n). If the injury is caused by a sudden tempest without any default on his part, then the Commissioners of Sewers may order a new one, even in a different form if necessary, to be erected at the expense of all the owners of land who would be damaged by the nuisance, or may be benefited by the repair, according to the quantity of their lands (0). At common law the king might issue commissions to repair ancient walls, but not to build new ones. If a man would make a new wall, he must sue an ad quod damnum to know what damage it shall be to the king and others. By stat. 23 Hen. 8. c. 5, new inventions are not warranted, but some alterations might be made; when an old wall by violence of the sea is broken down, another wall in the case of inevitable necessity may be made, but if the damage may be avoided by the reparation of the old one, a new one ought not to be erected (p). In the absence of evidence that the prescriptive liability of a Where frontager extends to the repair of damage caused by extraordinary violence of the sea, the liability to repair the damage thus caused falls on all the landowners in a level (q).

The landowners of a level cannot, however, be called upon to contribute to the repairs of a sea-wall, although it has been injured by an extraordinarily high tide and tempest, unless the damage has been sustained without the default of the party

(Keighley's Case, 10 Coke, 139.

(m) 3 B. & A. 77, 5 Bing. 71; affirmed 1 Scott, 29, 1 Bing. N. C. 222, 2 Cl. & F. 331, 8 Bligh, N. S. 690, 37 R. R. 125.

(n) L. and N. W. Rly. v. Fobbing Level Commissioners, 66 L. J. Q. B. 127, 75 L. T. 629; but see post, p. 48.

(0) R. v. Commissioners of Sewers for Somerset, 8 T. R. 312, 4 R. R. 659; Keighley's Case, 10 Coke, 139.

(p) Isle of Ely Case, 10 Coke, 140; Rooke's Case, 5 Coke, 99.

(q) Fobbing Sewers Commissioners v. Reg., 11 A. C. 449, 56 L. J. M. C. 1. This liability may be commuted, see Land Drainage Act, 1861 (24 & 25 Vict. c. 133), ss. 34-37.

caused by extraordinary tempest.

damage is

Negligence.

Nitro-Phos

phate Co. v. London Docks.

generally bound to repair (r). A landowner may, moreover, be bound by prescription to repair a sea-wall, even though it be destroyed by an extraordinary tempest, and it is a question for the jury whether he is bound to provide against the effects of ordinary tempests only or of extraordinary ones also (8).

Where an obligation is imposed on a frontager, either at common law or by statute, to keep a wall at a certain height, and he fails to do so, he is guilty of negligence and responsible for all damage caused by such negligence, even though the damage is caused by the overflow of an extraordinarily high tide. Thus, in The Nitro-Phosphate Co. v. London Docks (t), the defendants, the owners of a dock on the river Thames, were, prior to 1875, required by the Dagenham and Havering Commissioners of Sewers to maintain a river-wall in front of their land at a height of four feet two inches above Trinity high water mark. They were authorised by Act of Parliament to make and maintain a dock and works according to levels defined in plans and sections deposited with the clerk of the peace. The sections showed the retaining banks of the new works to be of a uniform height of four feet above Trinity high water mark. The defendants allowed their retaining bank to be at one point several inches below the level of four feet. In November, 1875, an extraordinarily high tide, which rose to four feet five inches above Trinity high water mark, overflowed the defendants' bank and damaged the plaintiffs', adjoining landowners. The tide had never been known to rise so high before. In an action for damages the defendants urged that they were not liable, as the extraordinarily high tide. was the act of God, and that, even if they were liable for some damages for not keeping the wall of the height of four feet, they were not liable for the whole damage caused by a tide which rose to four feet five inches, which would have overflowed the plaintiffs' premises, even if they, the defendants, had maintained their wall at the proper height. Fry, J., held that a duty was imposed on the defendants by the Act of Parliament to keep their wall at a uniform height of four feet above Trinity high water mark; that they had failed to do so, and were guilty of negligence, and liable for the whole of the damage; and that though the unprecedented high tide might be the act of God, yet no man who has a duty cast on him, and who does not perform it, can rely upon the act of God as any excuse at all. He held further, that as he could not tell whether any of the damage did

(r) R. v. Commissioners of Sewers for Essex, 1 B. & C. 477, 25 R. R. 467. (s) R. v. Leigh, 10 A. & E. 398, 50 R. R. 463; and see per Cairns, L.C., in River Wear Commissioners v. Adamson, 2 A. C. 750.

(t) 9 Ch. D. 503, 37 L. T. (N.s.) 330.