takes up or who injures the pavement stones, materials, fences or posts of or the trees in any such street, shall be liable to a penalty not exceeding 5., and to a further penalty not exceeding 5s. for every square foot of pavement stones or other materials so taken up or injured; he shall also be liable, in the case of any injury to trees, to pay to the local authority such amount of compensation as the court may award.

It is an unlawful act for persons without legislative sanction to take up the streets of a town for the purpose of laying their gas mains; and therefore where a person is employed for such a purpose, and an injury is thereby occasioned to a third person, the employer is liable to an action for such injury, though the party employed be a contractor and the act that of his servants. Ellis v. The Sheffield Gas Consumers Co., 2 Ell. & B. 767; 23 L. J., Q. B. 42; Pudsey Gas Co. v. Corporation of Bradford, 42 L. J., Eq. 293; L. R., 15 Eq. 167; Stockport Waterworks Co. v. Corporation of Manchester, 9 Jur., N. S. 266.

By the 153rd section of the Public Health Act, 1875, it is enacted, "where for any purpose of this act any urban authority deem it necessary to raise, sink, or otherwise alter the situation of any water or gas pipes, mains, plugs, or other waterworks or gasworks laid in or under any street, they may by notice in writing require the owner of the pipes, mains, plugs or works to raise, sink or otherwise alter the situation of the same in such manner and within such reasonable time as is specified in the notice, the expenses of or connected with any such alteration shall be paid by the urban authority; and if such notice be not complied with, the urban authority may themselves make the alteration required: provided that no such alteration shall be required or made which will permanently injure any such pipes, mains, plugs, or works, or prevent the water or gas from flowing as freely and conveniently as usual: and that where under any local act of parliament the expenses of or connected with the raising, sinking, or otherwise altering the situation of any water or gas pipes, mains, plugs, or other waterworks or gasworks are directed to be borne by the owner of such pipes or works, his liability in that respect shall continue in the same manner and under the same conditions in all respects as if this act had not been passed."

By the Railways Clauses Act, 1845, 8 Vict. c. 20, ss. 18-23, a railway company for the purposes of its construction may alter the position of the mains and pipes of a gas company under the superintendence of the company after giving forty-eight hours' notice, but they cannot displace the pipes until they have laid down others for continuing the supply to the satisfaction of the engineer of the company, and in accordance with the act of the company. They must also leave a minimum covering of eighteen inches of soil over pipes of the company when altering the level of any roads.

The railway company must make good any damage and make full compensation for any injury, and if they cross any pipes of the company must make a culvert so that the pipes may be accessible for repairs. If in doing any of these works the supply of gas is interrupted, the railway company are liable to a penalty of 201. for each day of such interruption; but the penalty is not paid to the gas company, but to the overseers of the poor of the parish in which the obstruction occurs.

The authorized level of any railway cannot be altered to an extent greater than two feet, if such alteration affects gas companies, without their consent: see sects. 11 and 12, 8 Vict. c. 20.

Under the Towns Improvement Clauses Act, 1847, 10 & 11 Vict. c. 34, s. 13, the commissioners are to prepare a plan of their district, upon which is to be marked the course of the pipes for the distribution of gas within their district. They may also, by sects. 61, 62, require the situation of gas pipes laid in the streets to be altered, but the expenses, also compensation for any damage done, are to be paid by the commissioners; but in doing the work the works are not to be permanently injured, or the gas prevented from flowing as freely and conveniently as before.

Under the powers conferred by the Telegraph Act, 1863, 26 & 27 Vict. c. 112, on companies, they may by the 6th section break up streets, alter the position of any pipe not being a main for the supply of gas; but this power is regulated by sect. 8, which provides, that the work shall be done with as little detriment or inconvenience as possible, that they give twenty-four hours' notice, and that the work be done under the superintendence and to the reasonable satisfaction of the gas company. The costs of superintendence are to be paid by the telegraph company. In return for these privileges the gas company is also empowered to alter the works of the telegraph company mutatis mutandis under the like restrictions.

Power is given to commissioners appointed to carry out the General Police and Improvement (Scotland) Act, 1862, 25 & 26 Vict. c. 101, ss. 174 and 175, to alter the situation of gas pipes; the provisions being precisely analogous to those already cited for England.

As to the meaning of the words "doing as little damage as may be," see R. v. East and West India Docks, 2 Ell. & B. 466; 22 L. J., Q. B. 380. As to the general principles underlying the word compensation, see Stebbing v. The Metropolitan Board of Works, 40 L. J., Q. B. 1. Compensation held payable for an accident through laying gas pipes-corporation being liable for the negligence of its workmen; Scott v. Mayor of Manchester, 26 L. J., Ex. 132 and 406; 2 H. & N. 204; 29 L. T. 233. As to laying pipes in the streets of the metropolis, see the Metropolis Gas Act, 1860, post.

VII. Provided always, that nothing herein shall authorize Not to enter on or empower the undertakers to lay down or place any pipe or without conprivate land other works into, through, or against any building, or in any sent. land, not dedicated to public use, without the consent of the owners and occupiers thereof; except that the undertakers may at any time enter upon and lay or place any new pipe in the place of an existing pipe in any land wherein any pipe hath been already lawfully laid down or placed in pursuance of this or the special act or any other act of parliament, and may repair or alter any pipe so laid down.

The plaintiffs had premises through which ran a public footroad and a private cart and carriage-way, used only by the plaintiffs and the owners of the adjoining property, and under the road and the way were several arches which belonged to the plaintiffs, and were used by them as storerooms. The defendants excavated the road to lay down their pipes, and in so doing broke through the brickwork of the arches, so that the space in which the plaintiffs stored their goods became filled with rubbish and useless for that purpose. The Court of Appeal were of opinion that the arches in question constituted a building within the act. The history of the arches was not very clear; they may have been built to support. the road, or the owner of the soil, when the roads were made, may have thought they would be convenient to him. They were useful and had been used, and the court could not see why they were not buildings. The word referred, moreover, to buildings below the soil, as well as those built upon the soil. Many important parts of a house were frequently extended beneath a road, such as the cellars for wine or coals, and it could not be supposed, as the defendants contended, that a gas company were empowered to interfere with these as they pleased. If the arches had been made solely to support the street, it might be a question as to how far they might be considered a building within the meaning of the

W.

с

Notice to be served on persons having control, &c before break

ing up streets or opening drains.

Streets or

drains not to

act; but here the arches had apparently been used as long as the road itself by the owners of the soil. There was no parliamentary power enabling the defendants to interfere with these arches without the consent of the owner, and judgment, therefore, would be entered against them. Thompson v. Sunderland Gas Co., W. N., July 7, 1877, p. 165.

Occupation roads laid out for the convenience of the inhabitants of an estate are not thereby dedicated to the public. Selby v. The Crystal Palace District Gas Co., 31 L. J., Ch. 595; 8 Jur., N. S. 830.

A company is justified in breaking up such roads at the request of the inhabitants, in order to supply them with gas, without the consent of the freeholders, where it has been covenanted that the occupiers of the houses should have as full a use and enjoyment of the roads as though they had been public roads. Ib., 31 L. J., Ch. 595-603, 604. See also Curtis v. Embery, 7 L. J., Ex. 369.

It would appear that railway companies and hotels in connexion with them are not " the public" within sect. 54 of the Metropolis Gas Act, 1860, 23 & 24 Vict. c. 125, post. See Imperial Gas Light and Coke Co. v. West London Junction Gas Co., 14 W. R. 1019; 15 L. T., N. S. 66.

A footpath may or may not be a highway. See as to footpaths across arable fields, and whether or not it is lawful that they should be ploughed up, Mercer v. Woodgate, 39 L. J., M. C. 21; L. R., 5 Q. B. 26; 10 B. & S. 833; 21 L. T. 458; Arnold v. Blaker, 40 L. J., Q. B. 185; L. R., 6 Ex. (Exch.) 433; Arnold v. Holbrook, 42 L. J., Q. B. 80; L. R., 8 Q. B. 80; 28 L. T. 23; 37 J. P. 229; Brackenborough v. Thorsby, 19 L. T. 692. A local board cannot fix a gas lamp to a private tenement without leave. Meek v. Langdon, 37 L. T. 181.

up

VIII. Before the undertakers proceed to open or break up any street, bridge, sewer, drain, or tunnel, they shall give to the persons under whose control or management the same may be, or to their clerk, surveyor, or other officer, notice in writing of their intention to open or break the same, not less than three clear days before beginning such work, except in cases of emergency arising from defects in any of the pipes or other works, and then so soon as is possible after the beginning of the work, or the necessity for the same shall have arisen.

The consent of commissioners or other authorities in whom the streets, &c. are vested is not necessary; and more than one pipe may be laid down in any one street. Dover Gas Light Co. v. Dover (Mayor, &c.), 1 Jur., N. S. 812-Lords Justices.

Wherever consent is expressly said to be required, a gas company's act, being for purposes of public advantage, will not receive a narrow construction. Ib., 7 De G., Mac. & G. 545.

IX. No such street, bridge, sewer, drain, or tunnel shall, be broken up except in the cases of emergency aforesaid, be opened or broken up except under the superintendence of the persons having the control or management thereof, or of their officer, and according to such plan as shall be approved of by such persons or their officer, or in case of any difference respecting such plan, then according to such plan as shall be determined

except under superintendence of persons having control of the

same.

by two justices; and such justices may, on the application of the persons having the control or management of any such sewer or drain, or their officer, require the undertakers to make such temporary or other works as they may think necessary for guarding against any interruption of the drainage during the execution of any works which interfere with any such sewer or drain: provided always, that if the persons If persons having such control or management as aforesaid, and their having the officer, fail to attend at the time fixed for the opening of any fail to superintend, undersuch street, bridge, sewer, drain, or tunnel, after having had takers may such notice of the undertakers' intention as aforesaid, or shall perform the work without not propose any plan for breaking up or opening the same, them. or shall refuse or neglect to superintend the operation, the undertakers may perform the work specified in such notice without the superintendence of such persons or their officer.

X. When the undertakers open or break up the road or pavement of any street or bridge, or any sewer, drain or tunnel, they shall with all convenient speed complete the work for which the same shall be broken up, and fill in the ground, and reinstate and make good the road or pavement, or the sewer, drain, or tunnel so opened or broken up, and carry away the rubbish occasioned thereby, and shall at all times whilst any such road or pavement shall be so opened or broken up cause the same to be fenced and guarded, and shall cause a light sufficient for the warning of passengers to be set up and maintained against or near such road or pavement where the same shall be open or broken up, every night during which the same shall be continued open or broken up, and shall keep the road or pavement which has been so broken up in good repair for three months after replacing and making good the same, and for such further time, if any, not being more than twelve months in the whole, as the soil so broken up shall continue to subside.

See Towns Improvement Clauses Act, 1847, sects. 81-83, incorporated with the Public Health Act, 1875, sect. 160.

An action was brought against an incorporated gas company for that by negligence a piece of metal was projected against plaintiff. To this it was pleaded that the grievance was done in execution of the powers of the company, and that there was no negligence of the company otherwise than by their workmen. It was held that this was no answer to the action. Scott v. Manchester (Mayor, &c.), 1 H. & N. 59; 26 L. J., Exch. 132; affirmed on appeal, 2 H. & N. 204; 3 Jur., N. S. 596; 26 L. J., Exch. 406-Exchequer Chamber.

control, &c.

Streets, &c.

broken up to be reinstated

without delay.

carry

XI. If the undertakers open or break up any street or bridge, or any sewer, drain, or tunnel, without giving such notice as aforesaid, or in a manner different from that which shall have been approved of or determined as aforesaid, or without making such temporary or other works as aforesaid when so required, except in the cases in which the undertakers are hereby authorized to perform such works without any superintendence or notice, or if the undertakers make any delay in completing any such work, or in filling in the ground, or reinstating and making good the road or pavement, or the sewer, drain, or tunnel, so opened or broken up, or in ing away the rubbish occasioned thereby, or if they neglect to cause the place where such road or pavement has been broken up to be fenced, guarded, and lighted, or neglect to keep the road or pavement in repair for the space of three months next after the same is made good, or such further time as aforesaid, they shall forfeit to the persons having the control or management of the street, bridge, sewer, drain, or tunnel in respect of which such default is made, a sum not exceeding five pounds for every such offence, and they shall forfeit an additional sum of five pounds for each day during which any such delay as aforesaid shall continue after they shall have received notice thereof.

XII. If any such delay or omission as aforesaid take place, the persons having the control or management of the street, bridge, sewer, drain, or tunnel in respect of which such delay or omission shall take place, may cause the work so delayed or omitted to be executed, and the expense of executing the same shall be repaid to such persons by the undertakers; and such expenses may be recovered in the same manner as damages are recoverable under this or the special act.

:

And with respect to the supply of gas, and the recovery of the rent to be paid for the same, be it enacted as follows:XIII. The undertakers may from time to time enter into any contract with any person for lighting or supplying with gas any public or private building, or for providing any person with pipes, burners, meters, and lamps, and for the repair thereof; and may also from time to time enter into any contract with the commissioners, trustees, or other persons having the control of the streets within the limits of the special act for lighting the same or any of them with gas, and