Powers of Minister in respect of agricultural land. covenant (d). If after ten days' notice from the surveyor or other officer appointed by the Court of Sewers for that purpose, a person who is liable does not proceed to put the same into good and proper repair with all reasonable and proper dispatch, then the officer of the Court of Sewers may do the work and recover the expense of so doing (e). For the purpose of enforcing, in relation to agricultural land, any liability to repair by reason of tenure, frontage prescription. custom, covenant, or grant, which is enforceable by a Court of Sewers, an officer of the Ministry of Agriculture and Fisheries may exercise on behalf of the Minister the powers conferred on an officer appointed by a Court of Sewers (f). With the consent of the Minister of Agriculture and Fisheries this liability by tenure, &c., to repair may be commuted by way of gross or annual charge on the lands, and will have priority over any other charge created or to be created by the owner of the land (g). In the absence of evidence, the liability to repair by tenure, &c., does not extend to repair of damage caused by extraordinary storms. If the wall or work at the time was in repair so as to withstand ordinary storms, then the cost of repair falls on the whole level who receive benefit from the wall (h). Where, in the opinion of the Minister of Agriculture and Fisheries, any agricultural land is injured or likely to be injured by flooding or inadequate drainage which might be remedied wholly or partially by the exercise of drainage powers possessed by any drainage authority, and which are not being exercised, or are being insufficiently exercised, the Minister may exercise these powers or any others possessed by the drainage authority which are necessary for the purpose (i). (d) See Henly v. Mayor of Lyme, 1 Bing. N. C. 222, where the mayor and burgesses by the grant of the borough were bound to maintain the sea defences of the borough, and ante, p. 43. (e) Land Drainage Act, 1833, s. 15. As under the Bill of Sewers, s. 3, the commissioners may do the repairs and fine the person whose lands are chargeable, it is not necessary that the presentment of the jury should allege that notice to repair was given. It is sufficient to state that the costs and charges of repairing amount to a certain sum, and judgment thereon ordering payment is good. A mortgagor not in actual possession, but in receipt of the rents and profits of the land charged with the repair, is liable for any default of reparation The Queen v. Baker (1867), L. R. 2 Q. B. 621. (f) Land Drainage Act, 1918, s. 15. (g) Land Drainage Act, 1861, ss. 34, 35; Land Drainage Act, 1918, Sched. II., Part I. Before consenting the Minister must consider any objection put forward by the person whose obligation it is proposed to commute, ibid. The record of the commutation is deposited in the office of the clerk of the peace of the county in which the district or the greater part of the level is: Land Drainage Act, 1861, s. 36. (h) Keighley's Case, 10 Rep. 139; R. v. Somerset, 8 T. R. 312; Fobbing Sewers Commissioners v. The Queen, 2 A. C. 449; see ante, p. 43 et seq. (1) Land Drainage Act, 1918, s. 15, sub-s. 2. This does not apply to powers conferred upon any railway company or navigation authority for the purpose of their undertaking. Where the Minister is of opinion that agricultural land is capable of improvement by drainage works, but the same cannot be conveniently dealt with by a Provisional Order, and that the expense of executing and maintaining such works will not exceed the increase in the value of the land arising therefrom, he may prepare a scheme showing the work proposed and the area to be improved thereby, its estimated cost-which must not exceed £5 an acre or £5,000 in all-and the manner in which the expense of executing and maintaining the works is to be apportioned amongst the lands in the area. After settling the scheme he may enter on the lands and execute such drainage works as appears to him desirable (k). The powers of the Minister with regard to agricultural land may, with respect to any area consisting of one or more counties or county boroughs, be delegated to a committee, the majority of the members of which shall be members of the councils of the counties or county boroughs (1). Scheme for drainage of small areas. landowners. By the Public Money Drainage Acts, 1846 to 1856 (m), the Drainage by Inclosure Commissioners (now the Minister of Agriculture and Fisheries) were authorised to advance to any owner of land who wished to improve his land by works of drainage the whole or part of the cost of so doing, provided it did not exceed £5,000 (n). The amount so advanced was to be secured by a rentcharge charged on the land after the rate of 6 per cent. per annum payable for 21 years. So long as the rentcharge existed the works authorised had to be kept in proper repair (o). By the Land Drainage Act, 1847, any person interested in land (p) which is capable of being drained or improved by drainage (k) Land Drainage Act, 1918, s. 16. For this purpose the Minister has all the powers of a drainage board: ibid., sub-section 4. An owner may require that the sum payable by him may be recovered by means of a rate similar to a private improvement rate for private improvement expenses incurred by a local authority under the Public Health Act, 1875, ibid., sub-section 5. (1) Ibid., s. 17. (m) 9 & 10 Vict. c. 101; 10 & 11 Vict. c. 11; 11 & 12 Vict. c. 119; 13 & 14 Vict. c. 31; 19 & 20 Vict. c. 9. (n) This includes an outfall through other lands, making open drains and watercourses, fencing, trenching and clearing the surface of land to be drained for the purpose of converting it from waste or pasture to arable or tillage land, provided the works would effect an improvement in the yearly value of the land exceeding the amount to be charged thereon: 10 & 11 Vict. c. 11, s. 1. (0) 9 & 10 Vict. c. 101, ss. 34, 39. The rentcharge is collected by the collector of land and assessed taxes, but may be redeemed by the landowner at any time within twenty years from the commencement of the charge, ibid., section 35. (p) 10 & 11 Vict. c. 38, s. 4. Persons interested include the persons in actual possession and enjoyment of the land, or of any right of common or common right, or of any manor of which the land is waste, and certain other persons defined by section 18 of the Commons Inclosure Act, 1845 (8 & 9 Viet. c. 115): see 10 & 11 Vict. c. 38, ss. 18, 20. Persons interested in lands authorised to be drained under any local or private Act of Parliament may petition to have the same drained under the provisions of this Act: ibid., s. 18. 42 L. W. Power to borrow for improvements in drainage, etc. pensated by money, the compensation is to be assessed, and On any other finding when paid the work may be commenced. After the drains have been opened or improvements in drains made the applicant or his heirs or assigns may from time to time enter on the land to keep them in order, or the adjoining owner or occupier may do this and recover the expense in a summary manner from the applicant, his heirs or assigns. The adjoining owner for the time being may fill up, divert or otherwise deal with such drains or improvements provided he first lays down in lieu thereof drains equally efficient (b). Where any person is desirous of constructing any drain by means whereof any brook, river or other natural watercourse will be diverted from its ordinary channel into any brook, channel or natural watercourse, he must give notice in the local newspaper, serve a notice on all the riparian owners on the water into which the diversion is made and situate within four miles of the point of junction, and deposit a copy of the map, required to be sent with the notice, with the clerk of the peace. Any owner of land capable of being injured by the proposed drain may within eight weeks after the appearance of the notice in the local newspaper serve notice on the applicant of his objection, and then the matter is disposed of as if he were an adjoining owner, whose rights and privileges are set out above (c). In 1864 a landowner who wished to borrow in advance money for the improvement of his land was empowered by the Improvement of Land Act, 1864 (d), to do this if he satisfied the Inclosure Commissioners (now the Minister of Agriculture and Fisheries) and obtained from them a Provisional Order authorising the works and creating a charge upon the land for the repayment of the cost of the work and other expenses. (z) 24 & 25 Vict. c. 133, ss. 76, 77. In the case of persons under disability, the compensation awarded is payable as stated in note (y). (a) Ibid., s. 74, sub-s. 3. (c) Ibid., s. 83. (b) Ibid., ss. 79, 80. (d) 27 & 28 Vict. c. 114. " Land owner" in England means the person in actual possession or receipt of the rents or profits of the land, except where such person is a tenant for life or lives, holding under a lease for life or lives, not renewable, or a tenant for years holding under a lease or agreement for a term of years, not renewable, whereof less than 25 years shall be unexpired. Where the person in actual possession or receipt of the rents or profits falls within the above exceptions, then the person for the time being in actual receipt of the rent payable by the person so excepted, unless he also falls within the above exceptions, shall, jointly with the person who shall be liable to the payment thereof, be deemed the owner of the land. Ibid., s. 8. drain, stream or watercourse that requires attention forms the boundary between the lands, an entry must not be made on the land of the person in default without a warrant from two justices so to do, who, after giving the person in default an opportunity of being heard, are satisfied that the neglect of the occupier of the land to be entered upon has caused injury to the land of the applicant (t). By Part III. of the Land Drainage Act, 1861, any person interested in land (u) who wishes to drain it but cannot do so unless new drains are made through his neighbour's land or existing drains there are cleansed, widened, straightened or otherwise improved, may apply to his neighbour for leave to do what is necessary. The notice must be in writing, be served on the owner and occupier, must state what is required to be done, the compensation, if any, proposed to be made, and be accompanied with a map showing the length and depth of the proposed drains or improvements in drains (x). The adjoining landowner may assent by deed under his hand and seal, and then his assent is binding on all parties. having an estate or interest in the land (y). If the adjoining owner does not assent within one month he is presumed to have dissented, and the application has then to be decided by the justices in petty sessions, unless the adjoining owner desires it to be decided by arbitration. If it is decided that no injury will be caused to the adjoining owner, or to the occupier or other parties interested in the land, the improvements may be made, and if it is decided that there will be injury to any parties, but that the same can be fully com (t) 10 & 11 Vict. c. 38, s. 15. The powers conferred by sections 14 and 15 of this Act only apply to injury to land, and would not apply to injury to a mill caused by silt penning back water in a channel and thereby injuring the power of a mill in the channel: Finch v. Bannister, [1908] 2 K. B. 441; 77 L. J. K. B. 718. (u) 24 & 25 Vict. c. 133. There is no definition of such person in this Act, but there is in the Land Drainage Act, 1847 see ante, p. 657, note (p). (x) Land Drainage Act, 1861 (24 & 25 Vict. c. 133), ss. 72, 73. If the notices are irregular the landowner may be restrained from taking proceedings before the justices: Hedley v. Bates, 13 Ch. D. 498; 49 L. J. 170, in which case Jessel, M.R., at p. 503, said, as to the powers of the justices: " All they are to decide is whether the proposed drain will cause an injury to the adjoining owner,' that is, to the land qua land in ownership or to the occupier'; and secondly, whether the injury can be fully compensated in money. But if they go into the validity of the notice, they will have to inquire whether the person served is the owner or not; because it might be said, You have not served the right person; he is not the owner within the Act. Are they to try questions of litigated title? I think not." (y) Ibid., s. 74. If the owner is under any disability he must have the arrangement approved by two surveyors, one in his behalf, the other in the applicant's behalf, and any compensation paid to him must be applied in the manner in which compensation to parties under disability is applicable under the Lands Clauses Consolidation Act, 1845 ibid. By section 75 the deed must be deposited with the clerk of the peace. Power to con struct drains in neighbours land. pensated by money, the compensation is to be assessed, and when paid the work may be commenced. On any other finding the work may not be proceeded with (z). The occupier or any person, other than the owner, interested in the land must be compensated for any injury done by the proposed work provided he makes his claim within twelve months after completion of the work (a). After the drains have been opened or improvements in drains made the applicant or his heirs or assigns may from time to time enter on the land to keep them in order, or the adjoining owner or occupier may do this and recover the expense in a summary manner from the applicant, his heirs or assigns. The adjoining owner for the time being may fill up, divert or otherwise deal with such drains or improvements provided he first lays down in lieu thereof drains equally efficient (b). Where any person is desirous of constructing any drain by means whereof any brook, river or other natural watercourse will be diverted from its ordinary channel into any brook, channel or natural watercourse, he must give notice in the local newspaper, serve a notice on all the riparian owners on the water into which the diversion is made and situate within four miles of the point of junction, and deposit a copy of the map, required to be sent with the notice, with the clerk of the peace. Any owner of land capable of being injured by the proposed drain may within eight weeks after the appearance of the notice in the local newspaper serve notice on the applicant of his objection, and then the matter is disposed of as if he were an adjoining owner, whose rights and privileges are set out above (c). In 1864 a landowner who wished to borrow in advance money for the improvement of his land was empowered by the Improvement of Land Act, 1864 (d), to do this if he satisfied the Inclosure Commissioners (now the Minister of Agriculture and Fisheries) and obtained from them a Provisional Order authorising the works and creating a charge upon the land for the repayment of the cost of the work and other expenses. (z) 24 & 25 Vict. c. 133, ss. 76, 77. In the case of persons under disability, the compensation awarded is payable as stated in note (y). (a) Ibid., s. 74, sub-s. 3. (c) Ibid., s. 83. (b) Ibid., ss. 79, 80. (d) 27 & 28 Vict. c. 114. "Land owner" in England means the person in actual possession or receipt of the rents or profits of the land, except where such person is a tenant for life or lives, holding under a lease for life or lives, not renewable, or a tenant for years holding under a lease or agreement for a term of years, not renewable, whereof less than 25 years shall be unexpired. Where the person in actual possession or receipt of the rents or profits falls within the above exceptions, then the person for the time being in actual receipt of the rent payable by the person so excepted, unless he also falls within the above exceptions, shall, jointly with the person who shall be liable to the payment thereof, be deemed the owner of the land. Ibid., s. 8. |