cease, the company were nevertheless held to be rateable. Where, in such a case, money is raised for the construction of an undertaking, so as to cause a debt, the interest of which is paid for out of the profits, such interest is not allowed as a deduction (n).

(n) Reg. v. Blackfriars Bridge Co., 8 L. J. M. C. 29; 9 A. & E. 828; 1 P. & D. 603. See Castle, pp. 155, 191, 324. With respect to county rates, see Reg. v. Aylesbury-cum-Walton, 9 Q. B. 261; 4 Rail. Cas. 315 and with respect to highway rates, see Reg. v. Paynter, 13 Q. B. 399; 3 New Sess. Cas. 465; 18 L. J. M. C. 168; 13 Jur. 281; see, as regards land tax, Chelsea Waterworks v. Bowley, 17 Q. B. 358; 20 L. J. Q. B. 520; 15 Jur. 1129. As regards paving rates, see R. v. Manchester Waterworks Co., 3 D. & R. 20; 1 B. & C. 630; Reg. v. East London Waterworks Co., 18 Q. B. 705; 21 L. J. M. C. 174; 16 Jur. 711; Arnell v. Regent's Canal Co., 14 C. B. 564; 23 L. J. C. P. 155; 18 Jur. 632; 2 W. R. 457; Arnell v. L. & N. W. Rly., 12 C. B. 697: as regards lighting rates, see Reg. v. Southwark and Vauxhall Water Co., 6 El. & Bl. 1008; 3 Jur. (N.S.) 411; 5 W. R. 71; East London Waterworks Co. v. Mile End Old Town, 17 Q. B. 512; 21 L. J. M. C. 49; 16 Jur. 121: as regards sewer rates, see East London Waterworks Co. v. Leyton Sewer Authority, L. R. 6 Q. B. 669; 40 L. J. M. C. 190.

L. W.

41

Land drainage.

Bill of
Sewers and
Commissions

of sewers and

their powers.

CHAPTER X.

LAND DRAINAGE.

THE drainage of land for the improvement of agriculture and the prevention of floods is left either to the efforts of individual landowners, or is regulated and controlled by Commissioners of Sewers, land drainage boards, and bodies specially constituted for the purpose by Act of Parliament or by the Minister of Agricul ture and Fisheries.

As has been pointed out at p. 39 et seq., where the origin and some of their characteristics are discussed, Commissions of Sewers have been issued by the Crown from early times. These Commissions were appointed for specific areas liable to be flooded either by land water or by inundation of the sea. In localities which were not within the jurisdiction of a Commission of Sewers persons who were under any liability to do or repair any drainage works or make defences could be compelled by indictment to fulfil their obligations (a).

In 1531 the power of the Crown to create Commissioners of Sewers was given statutory sanction by the Bill of Sewers (23 Hen. 8. c. 5) (b). By that Act, the form for future commissions was settled and the powers and duties of the Commissioners were set out though in not very exact terms, as the following extract from the Commission shows.

Know ye that forasmuch as the walls (c), ditches, banks, gutters (d), sewers (e), gotes (f), calcies (g), bridges, streams, and

(a) For examples of such indictments, see Public Works in Medieval Law, passim, Selden Society Publications, vols. 32 and 40.

(b) Made perpetual 3 & 4 Edw. 6. c. 8.

(c) Walls, banks, Callis, p. 52, says: "A wall doth differ in point of ownership from a bank, first in respect of the materials the same is made on, for a bank is made ex solo et fundo qua ex suis propriis naturis sunt eadem cum terra super qua edificatur, but so is not a wall, for it is an artificial edifice, not of the materials arising of the place where it standeth, but which be brought thither and built there, ad propria onera et costagia partis." Cf. Duke of Newcastle v. Clarke, 8 Taunt., at p. 627.

(d) Callis, p. 58, defines a gutter as the diminutive of a sewer.

(e) The term sewer is uncertain as regards its derivation, some maintaining that it is compounded of seoir, to sit, and eau, water (Termes de la Ley, Woolr. Sewers (3rd ed.), p. 1), others that it means merely to sue or issue, whence suera (4 Inst. 275; Woolr., ibid.), while some again derive it from sea or were (Callis, p. 80). Mr. Sergeant Callis holds it to be the diminutive of river, it being a freshwater trench compassed in on both sides with a bank, while in modern Acts it is treated as a general term comprising sewers and drains of every description except drains connecting houses with

other defences by the coasts of the sea and marish ground, lying and being within the limits of A., B. or C. in the county or counties of or in the borders or confines of the same by rage of the sea, flowing and reflowing, and by means of the trenches of freshwaters descending, and having course by divers ways to the sea, be so dirupt, lacerate, and broken; and also the common passages for ships, balangers and boats, in rivers, streams, and other floods, within the limits of A., B. or C. in the county or counties of or in the borders or confines of the same, by means of setting up, erecting and making of streams, mills, bridges, ponds, fishgarths, mill-dams, locks, hebbing-weirs, hecks and flood-gates, or other like lets, impediments or annoyances, be letted and interrupted, so that great and inestimable damage, for default of reparation of the said walls, ditches, banks, fences, sewers, gotes, gutters, calcies, bridges, and streams and also by mean of setting up, erecting, making, and enlarging of the said fishgarths, mill-dams, locks, hebbingweirs, hecks, flood-gates, and other like annoyances, in times past hath happened, and yet is to be feared that far greater hurt, loss, and damage, is like to ensue, unless that speedy remedy be provided in that behalf.

We, therefore, for that by reason of our dignity and prerogative royal we be bound to provide for the safety and preservation of our realm of England, willing that speedy remedy be had in the premises, have assigned you, and six of you, of the which we will that A., B. and C. shall be three, to be our justices, to survey the said walls, streams, ditches, banks, gutters, sewers, gotes, calcies, bridges, trenches, mills, mill-dams, flood-gates, ponds, locks, hebbing-weirs, and other impediments, lets, and annoyances aforesaid and the same cause to be made, corrected, repaired, amended, put down, or reformed, as case shall require after your wisdoms and discretions."

The Commissioners were empowered to enquire by jury by whose faults the annoyances came; to assess the persons who should contribute to the costs of the necessary works and repairs;

cesspools, and includes also a marsh wall or embankment: Poplar Board v. Knight, 28 L. J. M. C. 37; cf. Reg. v. Local Board of Godmanchester, L. R. 1 Q. B. 328; 35 L. J. Q. B. 125. Its application seems to be equally wide. Lord Coke states that there are three manner of statutes which concern sewers. The first consists in maintaining and repairing walls, sewers, &c.; the second in destroying and removing nuisances; the third, which concerns both these points, as well in destroying as in maintaining (10 Rep. 143).

(f) Callis, p. 66, says goats be usual engines erected and built with percullsses and doors of timber, stone or brick, invented first in Lower Germany and after brought into England accounted most useful instruments for draining the waters out of the land into the sea."

(g) Callis, p. 66: " A Calcey or Calsway is a passage made by art of earth, gravel, stones and such like, on or over some high or common way leading through surrounded grounds for the safe passage of the King's liege subjects.

to appoint bailiffs, collectors and officers, to distrain for arrears of money assessed on the level; to arrest and take as many carts, horses and other instruments as necessary and as many workmen and labourers as required, paying for the same competent wages; to make statutes and ordinances and provisions and to award writs and precepts to the sheriffs to survey the walls, ditches, &c., in the level and to compel obedience to their orders (h).

Doubts arose as to the extent of the jurisdiction of Commissioners of Sewers, and as to their power to make new works. So it was enacted by the Sewers Act, 1833 (3 & 4 Will. 4. c. 22), s. 10, "that all walls, banks, culverts, and other defences whatsoever, whether natural or artificial, situate or being by the coasts of the sea, and all rivers, streams, sewers, and watercourses which now are or hereafter shall or may be navigable, or in which the tide now does, or hereafter shall or may ebb and flow, or which now do or hereafter shall or may directly or indirectly communicate with any such navigable or tide river, stream, or sewer, and all walls, banks, culverts, bridges, dams, flood-gates and other works erected, or to be erected, in, upon, over, or adjoining to any such rivers, streams, sewers, or watercourses, shall be from henceforth to all intents, constructions and purposes within and subject to the jurisdiction of Commissioners of Sewers" (i).

By sections 19 and 21 Commissioners were given power to make and maintain new works and to make alterations of old or existing works, and to abandon existing works and make new works in their place but before any new works were made the consent of the owners and occupiers of three-fourths part in value of the lands and hereditaments to be charged with the cost and expenses of the new works had to be obtained (k).

The power of the Crown to grant Commissions of Sewers was thus restricted to areas which were liable to inundation by tidal waters, and commissions could not be granted for areas liable to be flooded by non-tidal waters. This was to a certain extent remedied by the Land Drainage Act, 1861 (24 & 25 Vict. c. 133). By that Act power is given to the Crown, on the recommendation of the Inclosure Commissioners (now the Minister of Agriculture and Fisheries), to direct Commissions of Sewers to all parts of

(h) 23 Hen. 8. c. 5, s. 2, et seq. This Act was amended by 7'Ann. c. 33, so as to make the decrees of the Commissioners for sale of lands binding on all persons, and to authorise them to empower any person to levy assessment by distress and sale.

(i) Dams, flood-gates, or other works erected for the purpose of ornament before the Act were excepted from the jurisdiction of Commissioners. The Sewers Act, 1833, s. 10.

(k) They were also given power to buy land necessary for the works and to sell surplus land and to borrow money: the Sewers Act, 1833, ss. 24-43, and 4 & 5 Vict. c. 45, ss. 4-6.

England, inland as well as maritime. Additional powers were given to Commissioners, and are set out post, pp. 647 et seq.

Boards.

The Land Drainage Act, 1861, also gives the Commissioners Land power to commute the liability of anyone to do repairs to walls, Drainage maintain sewers, or do any other work (1), and prescribes the regulations to be observed with respect to rates (m). This Act also prescribes the procedure to be observed by the Commissioners in serving notices; the method of appeal from their orders, when, as the Act allows, they can be made without the presentment of a jury (n).

With the consent of the Minister of Agriculture and Fisheries money may be borrowed on the credit of the rates authorised to be levied, for the purpose of defraying costs, charges and expenses incurred, or to be incurred, by the Commissioners of Sewers under the authority of any Act of Parliament, law or custom (0).

The powers given by this Act are in addition to any other powers conferred on Commissioners of Sewers, but do not authorise interference with the rights of property of other commissioners, conservators, canal owners and wharfingers, and others (p).

The property of and in all lands, tenements and hereditaments, buildings and erections, and other things purchased, obtained or erected by Commissioners of Sewers or under their view and management, and all tools, goods, &c., bought, provided or within their view or management, is vested in the Commissioners, and they can take all necessary legal steps to protect them (q).

This, however, does not give them the ownership of such property, except where they have actually bought it. They have only such property therein as to enable them to take legal action. to prevent its destruction (r); nor does it vest in them any wall or defence over which they have not in fact exercised any jurisdiction, though it may be within their area (8).

Boards.

Besides vesting Commissioners of Sewers with additional Drainage powers, the Land Drainage Act, 1861, prescribed the machinery for the creation of drainage districts governed by drainage boards

(1) Land Drainage Act, 1861, ss. 34-37.

(m) Ibid., ss. 38-40.

(n) Ibid., ss. 42-52.

(0) Ibid., ss. 40, 41.

(p) Ibid., ss. 54-57, 60. See post, p. 650.

(q) The Sewers Act, 1833, s. 47. This provision does away with the decision in Duke of Newcastle v. Clarke, 8 Taunt. 602, that Commissioners of Sewers have not such possession of their works as to enable them to maintain trespass.

(r) The soil of sea banks is not vested in Commissioners so as to entitle them to compensation as owners if the banks are taken over compulsorily under the powers of an Act of Parliament: Stacey v. Nelson, 12 M. & W. 533; Nesbitt v. Mablethorpe Urban Council, [1918] 2 K. B. 1.

(s) West Norfolk Farmers' Manure Co. v. Archdale, 16 Q. B. D. 754; 87 L. J. Q. B. 705.