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sewer, called the marsh wall, and that they consequently they were not bound to rehad damaged the said sewer,-informed the pay any of the expenses alleged to have respondents that unless they in the mean been incurred by the appellants. time complied with the previous notices The Magistrate decided that the appeland orders of the board, the appellants lants could recover from the respondents would, at the end of fourteen days, viz., neither of the sums so claimed, and that on the 22nd of May, &c., demolish the although in his opinion the marsh wall was said houses and buildings, and proceed to vested in the appellants, and they might recover from the respondents the expenses legally enter to abate an encroachment on so incurred, and the amount necessary to it, yet as the entry made by them was make good the damage done to the said not in pursuance of sections 76, 83 (1), or sewer, and to reinstate the same.

204, or of any other sections of the said The respondents on the 14th of May act, whereby he was authorized to order wrote remonstrating, but were informed, repayment of the said expenses so incurred, on the 19th, that the notice of the 12th such expenses could not be recovered on would be acted upon; and on the 22nd of summons before him.

He accordingly May the appellants took down so much of dismissed the complaint with costs, the two houses as had been then built, and the retaining wall so far as the latter stood Hugh Hill (May 1), for the respondents, on the 32 feet of the marsh wall before in support of the Magistrate's decision, mentioned, and reinstated so much of the argued that none of the expenses incurred marsh wall. On the 22nd of August 1857 by the appellants were incurred under any the appellants served the respondents with powers conferred on them by the 76th or a summons reciting that complaint, stating 204th or any other section of the 18 & 19 the above facts, had been made ; and that Vict, c. 120, and referred to the 68th, 69th, the expenses of the appellants incurred in 76th, 204th, 205th, and 250th sections of removing the houses and reinstating were the act; and more particularly that nothing 421. 16s. The respondents attended the was said in the act as to the costs of reinsummons at the Thames Police Court. stating; that the 76th section did not

The appellants claimed to be reimbursed apply, as the case expressly found that the in the sum of 51. 5s. 6d., being the ex- foundation of the two houses had not been pense incurred by them in the pulling down dug out, but was merely laid on the surface. the two houses, and 211. 14s. 2d., being He also contended that if the embankment the expense incurred by them in rein- a sewer" within the act, then that it stating the portion of the said marsh wall. was a main sewer, and vested not in the They also claimed to be reimbursed in the appellants, but in the Metropolitan Board, sum of 161. 6s. 4d., for obtaining the under section 135, and Schedule D, as advice of counsel. They referred the Ma- part of the Great Sluice and Drunken Dock gistrate to sections 68, 76. and 204. of Sluice. He cited Tinkler v. the Wandsthe 18 & 19 Vict. c. 120. as those on worth Board of Works (2). which they relied.

Huddleston, for the appellants, gave up The respondents, on the other hand, the expenses of advice of counsel, and contended, first, that by section 135. all contended that the marsh wall, if a part of the powers, rights and other matters, and a sewer, was vested in the appellants by all property in the sewers, walls, &c. section 68. and Schedule A, and was not situated in the said Isle of Dogs, including in the Metropolitan Board; that it was a the said marsh wall, had become vested in sewer, within section 204; and that the the Metropolitan Board of Works; and, houses being built against the consent of secondly, that even if the 68th section of the appellants, the expenses of demolishthe said act gives any property or rights ing the houses and reinstating the wall over the said wall to the appellants, that were rightly incurred by them, and must they, the respondents, had not done any- be paid by the respondents under that thing which justified the interference of the appellants within the meaning of any

(1) Section 83. was not relied on by the appel

lants in argument. of the sections of the said act; and that (2) 27 Law J. Rep. (N.s.) Chanc. 342.

was

sewer.

section. He cited sections 68. and 69; to be repaired where it may be necessary and contended, that if necessary to rely on for effectually draining or protecting from the 76th, it was clear that under that sec- floods the district. Here, again, banks tion the mere laying out of foundations, and defences are classed under the term though they were not even dug out, with- sewer," and the marsh wall is a bank out the consent of the Board, was within that and defence within the section, and so a section. He cited The Isle of Ely case (3).

If we regard the protection conHugh Hill, in reply.

ferred by section 204. it seems more necesCur. adv. vult. sary for a bank or wall fending back the

high water, than for a gutter or drain carLORD CAMPBELL, C.J.

now delivered rying off the low water; inasmuch as the the judgment of Campbell, C.J. and inundation from high water might be more Erle, J.-In this case the district board suddenly and widely destructive than the had caused certain houses belonging to gradual rise of one drain. No reason is the respondents to be demolished, and assigned why the legislature should give had caused a portion of the marsh wall, summary powers for preventing the obremoved by the respondents, to be re- struction of a sewer drain, and leave a instated, and had claimed 51. 5s. 6d. and sewer bank liable to be undermined by 211. 14s. 2d, as the expenses of these ope

foundations or incumbered with superrations; and the question upon this appeal structures. Section 205. was relied on is, whether they can sustain that claim, for the respondents, as shewing that “sewer" either under section 204, or section 76. of meant a drain, and did not mean a wall or their act (18 & 19 Vict. c. 120).

bank. But it seems to lead to the opposite By section 204. the board have this conclusion. Sewer" in its common sense right in respect of "any building in, over may mean the whole apparatus, and in its or under any sewer vested in them.” The pecific sense a drain, as part of that apparespondents had cut away part of the ratus. Section 205. prohibits, among other marsh wall and built thereon, so that under things, sweeping rubbish into a sewer or a this section the point is, whether the marsh grate communicating with a sewer. Here wall was a sewer within its meaning. The the context shews that the specific sense wall, according to the case, keeps back the is meant, and accordingly every time sewer River Thames at high water from inun- is mentioned the words “or drain" are dating the Isle of Dogs. It is therefore

It is therefore added, as shewing its meaning in this secessential to the drainage of the level, quite tion; the expression “sewer or drain" as much so as the channel which actually occurs four times in four lines of this secdrains the Isle of Dogs at low water; both tion; but the word "sewer" stands alone, form one apparatus, and if either were lost for the most part, in other parts of the act. the level would be uninhabitable; and A point was made which is rather of thus from its nature the wall seems to us form than of substance, viz., that the proto be part of the sewer of the level. Also, perty and power over the marsh wall were the legislature uses the term “ sewers" in in the Metropolitan Board, and not in the this sense. By section 68. "the sewers,

district board. To this our answer is, with the walls, banks, outlets and sluices that the statute is not definite on the point, thereunto appertaining," are vested in the and for the purpose of the present appeal district board,—the walls and banks are it is not necessary to scan the statute, as it here named as appertaining to a sewer as would be if the Metropolitan Board were much as outlets and sluices. Section 69. in conflict with the district board. If that commands the district board to repair the question should be raised between those sewers, and amongst the repairs, they are parties, it is probable there may be further commanded to cause to be maintained such evidence tending to its elucidation ; but sewers and works as may be necessary for we decide the present appeal in favour of draining the district, and further to cause the appellants on this point, because it is all banks and defences adjoining any river stated in the case that the Metropolitan

Board has never exercised any jurisdiction (3) 10 Rep. 141.

over it, and the case shews that the dis

trict board de facto is in the exercise of Removal Act, 1855, the local authority are that jurisdiction; and as against the respon- empowered in certain cases to lay down a dents their letters are abundant evidence sewer, and to assess every house using it, to to prove that they treated with the district such payment, either immediate or annual board as having jurisdiction, and now or distributed over a term of years, as they resort to the Board of Works to evade a shall think reasonable, and, after fourteen judgment on the merits.

days' notice left on the premises so assessed, If it were necessary for the appellants to levy and collect the sum and sums so to claim under section 76. it seems to us assessed in the same manner and with the same to support their claim. It was said that remedies as highway rates, and with the the respondents had neither dug out nor same right of appeal against the amount of laid any foundation, their houses being on assessment reserved to the person assessed, the ground, without a foundation in its as by the law in force for the time being ordinary sense; but we are of opinion shall be given against the highway rate : that all houses stand on a foundation within provided that such assessment shall in no the meaning of this act, and the legislature case exceed 1s. in the pound on the assessappears to us to have expressly provided ment to the highway rate. By the Highfor houses standing on foundations placed way Act, (5 8 6 Will. 4. c. 50.) s. 105, on the surface, as the enactment is, “before the right is given to any person aggrieved beginning to lay or dig out the foundation by any rate to appeal to the next Quarter of any new house." It seems to have Sessions, first giving to the opposite party contemplated that some foundations would notice within fourteen days after such rate be laid without any digging out, and if shall have been made :-Held, first, that the respondents had no other answer to the fourteen days for giving notice of appeal the appellants' claim than the 76th section against an assessment under the former act our judgment would be against them on ran from the service of the notice of assessthis point also.

ment on the premises assessed, and not from The claim for fees to counsel on advising the time when the amount was fixed by the the district board was properly given up

local authority. on the argument. We are, therefore, of Secondly, that the proviso in the 22nd opinion that the Magistrate's decision was section limited the annual assessment only wrong; and in pursuance of the power to ls. in the pound on the rateable value mentioned at the end of the case, we order as assessed to the highway rate, but did that the respondents pay to the appellants not prohibit the whole assessment of the pre51. 5s. 6d. and 211. 4s. 6d., and the costs mises in respect of one structure, to be disof this appeal, that is, the costs of the tributed over several years, from exceeding paper books and arguments.

that amount. My Brother Crompton is not satisfied with the conclusion at which we have On an appeal to the Lancashire Quarter arrived, and particularly doubts whether Sessions, by Edmund Howarth, against a the wall in question is a sewer within the rate and assessment, alleged to have been meaning of either the 204th or the 205th made by the Nuisances Removal Comsection.

mittee of the township of Middleton, on Judgment accordingly for the the 4th of February 1858, under the powers appellants.

of the Nuisances Removal Act, 1855, (18 & 19 Vict. c. 121.), the Justices ordered

the assessment to be reduced as hereafter THE QUEEN V. THE NUISANCES mentioned, subject to the opinion of this 1858.

COMMITTEE
REMOVAL

OF
Nov. 13.

Court on a-
MIDDLETON.

CASE.
Nuisances Removal Act, 1855, (18 & 19
Vict. c. 121.) s. 22. — Notice of Appeal,
Notice of Appeal, houses, situate in Wood Street, in the said

The appellant is the owner of three Time for- Assessment, Limit of.

township. The respondents, as surveyors By the 22nd section of the Nuisances of the highways, are the local authority NEW SERIES, XXVIII.-Mag. Cas.

G

for the said township, under the Nuisances such assessment or that it had been made. Removal Act for England, 1855.

Before the 4th of February the appellant In May 1857 there was a gutter in Wood had seen the sewer while it was being Street, partly used for the conveyance of made, and had consented to an eye being water, sewage, and other matters from cer- put down opposite to one of his houses, tain of the houses and premises in the and to a service-pipe being laid down from street, the houses belonging to the appel- the houses to communicate with such sewer. lant among the number, which in the On the 20th of February the appellant opinion of the local authority became a served the respondents with notice and nuisance that could not be rendered in- grounds of appeal. The appellant was nocuous without the laying down of a rated in the highway rate for the time being, sewer along the same. The local autho- which was at 4d. in the pound, at 3s. 6d., rity accordingly laid down a sewer. At a the rateable value of the three houses bemeeting of the local authority, held on the ing 101. 10s. 4th of February 1858, the following entry The Justices ordered the whole assesswas made in their book of the proceedings: ment on the appellant of 31. 12s. to be

"Nuisances Removal Act for England, reduced to 10s. 10d., and the first year's 1855. An assessment made for drainage instalment of 1l. 78. to the proportional work done in Wood Street, District Mid- sum of 4s. dleton, under the Nuisances Removal Act If the Court should be of opinion that of 1855, (18 & 19 Vict. cc. 116, 121.) at notice of appeal was not given by the apthe rate of 48. per lineal yard on the front- pellant in time, then the appeal was to be age of all property using the drain in the dismissed. If the Court should be of said district, to be paid in the following opinion that notice of appeal was given in manner-viz. 1s. 6d. per lineal yard, for time, then the judgment was to be as the year ending March 25, 1858; 1s. 6d. follows: — If the proviso at the end of for the year ending March 25, 1859, and 18. section 22. of the Nuisances Removal per lineal yard for the year ending March Act, for England, 1855, “That such as1860; and if in the mean time any pro- sessment shall in no case exceed 1s. in perty be built to use the aforesaid sewer, the pound on the assessment to the highthat the rate for the last year be reduced way rate, if any," prohibits the local auin proportion to the amount brought in thority from assessing in respect of one by new property."

and the same structure, the houses using Under this assessment the appellant was such structure to a payment distributed charged the first year's assessment, in re- over a term of years, or otherwise not exspe of his three houses, 1l. 78., being ceeding 1s. in the pound on the assessment 1s. 6d. a yard upon eighteen yards. to the highway rate for the then current

The following note was made out by year, but exceeding 1s. in the pound on one of the officers of the local authority, the whole, then the order of Session to be from the said entry on the 5th of February, confirmed. and duly served on the appellant on the If the said proviso does not prohibit 6th of February :

the local authority from assessing in re“ Middleton, 5th February, 1858. spect of one and the same structure, the “Mr. Edmund Howarth.—To the Sur- houses, &c. using the same to a payment veyors of the Highways of the Township of distributed over a term of years or otherMiddleton District. To eighteen yards of wise, not exceeding 1s. in the pound on sewering, at 1s. 6d. per yard-first year's the assessment to the highway rate for instalment, 11. 78."

the then current year, although exceedBefore the said note was served on the ing ls, in the pound on the whole, then appellant, he had no notice that any assess- the assessment to be amended by reducing ment had been made, or was about to be the sum of 11. 7s. to 10s. 6d. made on the particular day on which it If the words in the said proviso “ the was made, nor did it appear that any public assessment to the highway rate” do not notice had been given within the township refer to the annual value of the premises that the local authority was about to make as assessed to the highway rate-e. g. in the present case, 101. 10s., but refer to the shall think himself aggrieved, notice in actual sum payable for highway rate dur- writing of his intention to bring such appeal, ing the current year in respect of the said together with grounds, within fourteen days premises-e. g. in the present case, at 4d. after such rate shall have been made, fc. in the pound, 3s. 6d., then the assessment The highway rate is to be made, assessed to be amended by reducing the sum of and levied, and also allowed by Justices, 31. 128. to 2d., and the said sum of 17. 78. and published; and the other side, no to the proportioned sum of id. ; if the doubt, will cite cases to shew that a person said proviso limits the whole assessment is bound to appeal within fourteen days to 1s. in the pound, or if the proviso limits of the making, and not of the publication. only the yearly instalment to this amount, But the words of the 105th section of the then the said sum of 11. 7s, only to be re- Highway Act are not literally applicable duced to 2d.

to the present assessment, which is only

to be assessed and levied and collected Monk, in support of the order of Ses- fourteen days after notice of the assesssions. The first question is, whether the ment; the sum assessed is, therefore, not notice of appeal was in time. The assess- payable until this notice; and the limit for ment was made under the 22nd section of giving notice of appeal, reconciling the the 18 & 19 Vict. c. 121.(1), by which the two acts as well as it is possible, must run local authority are authorized to assess from the notice. There being no liability every house, &c., and after fourteen days' to pay until notice, there can be no grievnotice, at least, left on the premises as- ance and no person aggrieved until such sessed, to levy and collect the sum assessed notice, in the same manner and with the same Atherton and R. A. Cross, contrà.--The remedies as highway rates are by the notice of assessment is matter subsequent law in force for the time being leviable and to the assessment; and in the 105th seccollectable, and with the same right and tion of the 5 & 6 Will. 4. c. 50, for “after power of appeal against the amount of the the rate shall have been made," we assessment reserved to the person assessed, must read, “after the assessment shall as by the law in force is given against a have been made." The notice in the late highway rate. The act now in force for the act is merely equivalent to the publihighways is the 5 & 6 Will. 4. c. 50, by cation in the other; and the appeal must section 105, of which, the right is given to be from the making of the assessment, irrethe person aggrieved by any rate to appeal spective of the notice, in the same way as to the next Quarter Sessions, first giving it must be from the making of the rate, to the person, by whose act such person irrespective of the publication. The fact (1) Section 22. is as follows:-"Whenever any

of notice being required before collection ditch, gutter, drain, or watercourse, used or partly

does not make the assessment less an asused for the conveyance of any water, filth, sewage, or other matter from any house, building, or pre- premises so assessed, to levy and collect the sum mises, is a nuisance within the meaning of this act, and sums so assessed in the same manner, and with and cannot, in the opinion of the local authority, the same remedies, in case of default in payment be rendered innocuous without the laying down of a thereof as highway rates are by the law in force for sewer or of some other structure along the same, the time being leviable and collectable, and with or part thereof, or instead thereof, such local the same right and power of appeal against the authority shall and they are hereby required to lay amount of such assessment reserved to the person down such sewer or other structure, and to keep or persons so assessed as by the law for the time the same in good and serviceable repair, and they being in force shall be given against any rate made are hereby declared to have the same powers as to for the repair of the highways; and the provisions entering lands for the purposes thereof, and to be contained in this section shall be deemed to be part of entitled to recover the same penalties in case of the law relating to highways in England: Provided interference, as are contained in the 5 & 6 Will. 4. always, that where such ditch, gutter, drain or waterc. 50; and such local authority are authorized and course shall, as to parts thereof, be within the jurisdicempowered to assess every house, building, or pre- tion of different local authorities, this enactment shall mises, at any time thereafter using for the purposes apply to each local authority only as to so much of aforesaid the said ditch, gutter, drain, watercourse, the works hereby required, and the expenses sewer, or other structure, to such payment, either thereof as is included within the respective jurisimmediate or annual, or distributed over a term of diction of that authority: Provided also, that such years, as they shall think just and reasonable, and, assessment shall in no case exceed 1s. in the pound after fourteen days' notice at the least left on the on the assessinent to the highway rate, if my."

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