sewer, called the marsh wall, and that they had damaged the said sewer,-informed the respondents that unless they in the mean time complied with the previous notices and orders of the board, the appellants would, at the end of fourteen days, viz., on the 22nd of May, &c., demolish the said houses and buildings, and proceed to recover from the respondents the expenses so incurred, and the amount necessary to make good the damage done to the said sewer, and to reinstate the same.

The respondents on the 14th of May wrote remonstrating, but were informed, on the 19th, that the notice of the 12th would be acted upon; and on the 22nd of May the appellants took down so much of the two houses as had been then built, and the retaining wall so far as the latter stood on the 32 feet of the marsh wall before mentioned, and reinstated so much of the marsh wall. On the 22nd of August 1857 the appellants served the respondents with a summons reciting that complaint, stating the above facts, had been made; and that the expenses of the appellants incurred in removing the houses and reinstating were 42l. 16s. The respondents attended the summons at the Thames Police Court.

The appellants claimed to be reimbursed in the sum of 51. 5s. 6d., being the expense incurred by them in the pulling down the two houses, and 217. 14s. 2d., being the expense incurred by them in reinstating the portion of the said marsh wall. They also claimed to be reimbursed in the sum of 16. 6s. 4d., for obtaining the advice of counsel. They referred the Magistrate to sections 68, 76. and 204. of the 18 & 19 Vict. c. 120. as those on which they relied.

The respondents, on the other hand, contended, first, that by section 135. all the powers, rights and other matters, and all property in the sewers, walls, &c. situated in the said Isle of Dogs, including the said marsh wall, had become vested in the Metropolitan Board of Works; and, secondly, that even if the 68th section of the said act gives any property or rights over the said wall to the appellants, that they, the respondents, had not done anything which justified the interference of the appellants within the meaning of any of the sections of the said act; and that

consequently they were not bound to repay any of the expenses alleged to have been incurred by the appellants.

The Magistrate decided that the appellants could recover from the respondents neither of the sums so claimed, and that although in his opinion the marsh wall was vested in the appellants, and they might legally enter to abate an encroachment on it, yet as the entry made by them was not in pursuance of sections 76, 83 (1), or 204, or of any other sections of the said act, whereby he was authorized to order repayment of the said expenses so incurred, such expenses could not be recovered on summons before him. He accordingly dismissed the complaint with costs.

Hugh Hill (May 1), for the respondents, in support of the Magistrate's decision, argued that none of the expenses incurred by the appellants were incurred under any powers conferred on them by the 76th or 204th or any other section of the 18 & 19 Vict. c. 120, and referred to the 68th, 69th, 76th, 204th, 205th, and 250th sections of the act; and more particularly that nothing was said in the act as to the costs of reinstating; that the 76th section did not apply, as the case expressly found that the foundation of the two houses had not been dug out, but was merely laid on the surface. He also contended that if the embankment was a sewer" within the act, then that it was a main sewer, and vested not in the appellants, but in the Metropolitan Board, under section 135. and Schedule D, as part of the Great Sluice and Drunken Dock Sluice. He cited Tinkler v. the Wandsworth Board of Works (2).

66

Huddleston, for the appellants, gave up the expenses of advice of counsel, and contended that the marsh wall, if a part of a sewer, was vested in the appellants by section 68. and Schedule A, and was not in the Metropolitan Board; that it was a sewer, within section 204; and that the houses being built against the consent of the appellants, the expenses of demolishing the houses and reinstating the wall were rightly incurred by them, and must be paid by the respondents under that

(1) Section 83. was not relied on by the appellants in argument.

(2) 27 Law J. Rep. (N.s.) Chanc. 342.

section. He cited sections 68. and 69; and contended, that if necessary to rely on the 76th, it was clear that under that section the mere laying out of foundations, though they were not even dug out, without the consent of the Board, was within that section. He cited The Isle of Ely case (3). Hugh Hill, in reply.

Cur. adv. vult.

LORD CAMPBELL, C.J. now delivered the judgment of Campbell, C.J. and Erle, J.-In this case the district board had caused certain houses belonging to the respondents to be demolished, and had caused a portion of the marsh wall, removed by the respondents, to be reinstated, and had claimed 51. 5s. 6d. and 217. 14s. 2d. as the expenses of these operations; and the question upon this appeal is, whether they can sustain that claim, either under section 204. or section 76. of their act (18 & 19 Vict. c. 120).

By section 204. the board have this right in respect of "any building in, over or under any sewer vested in them." The respondents had cut away part of the marsh wall and built thereon, so that under this section the point is, whether the marsh wall was a sewer within its meaning. The wall, according to the case, keeps back the River Thames at high water from inundating the Isle of Dogs. It is therefore essential to the drainage of the level, quite as much so as the channel which actually drains the Isle of Dogs at low water; both form one apparatus, and if either were lost the level would be uninhabitable; and thus from its nature the wall seems to us to be part of the sewer of the level. Also, the legislature uses the term "sewers" in this sense. By section 68. "the sewers, with the walls, banks, outlets and sluices thereunto appertaining," are vested in the district board,-the walls and banks are here named as appertaining to a sewer as much as outlets and sluices. Section 69. commands the district board to repair the sewers, and amongst the repairs, they are commanded to cause to be maintained such sewers and works as may be necessary for draining the district, and further to cause all banks and defences adjoining any river

(3) 10 Rep. 141.

to be repaired where it may be necessary for effectually draining or protecting from floods the district. Here, again, banks and defences are classed under the term "sewer," and the marsh wall is a bank and defence within the section, and so a sewer. If we regard the protection conferred by section 204. it seems more necessary for a bank or wall fending back the high water, than for a gutter or drain carrying off the low water; inasmuch as the inundation from high water might be more suddenly and widely destructive than the gradual rise of one drain. No reason is assigned why the legislature should give summary powers for preventing the obstruction of a sewer drain, and leave a sewer bank liable to be undermined by foundations or incumbered with superstructures. Section 205. was relied on for the respondents, as shewing that "sewer" meant a drain, and did not mean a wall or bank. But it seems to lead to the opposite conclusion. "Sewer" in its common sense may mean the whole apparatus, and in its specific sense a drain, as part of that apparatus. Section 205. prohibits, among other things, sweeping rubbish into a sewer or a grate communicating with a sewer. Here the context shews that the specific sense is meant, and accordingly every time sewer is mentioned the words "or drain" are added, as shewing its meaning in this section; the expression "sewer or drain" occurs four times in four lines of this section; but the word "sewer" stands alone, for the most part, in other parts of the act.

A point was made which is rather of form than of substance, viz., that the property and power over the marsh wall were in the Metropolitan Board, and not in the district board. To this our answer is, that the statute is not definite on the point, and for the purpose of the present appeal it is not necessary to scan the statute, as it would be if the Metropolitan Board were in conflict with the district board. If that question should be raised between those parties, it is probable there may be further evidence tending to its elucidation; but we decide the present appeal in favour of the appellants on this point, because it is stated in the case that the Metropolitan Board has never exercised any jurisdiction over it, and the case shews that the dis

trict board de facto is in the exercise of that jurisdiction; and as against the respondents their letters are abundant evidence to prove that they treated with the district board as having jurisdiction, and now resort to the Board of Works to evade a judgment on the merits.

If it were necessary for the appellants to claim under section 76. it seems to us to support their claim. It was said that the respondents had neither dug out nor laid any foundation, their houses being on the ground, without a foundation in its ordinary sense; but we are of opinion that all houses stand on a foundation within the meaning of this act, and the legislature appears to us to have expressly provided for houses standing on foundations placed on the surface, as the enactment is, "before beginning to lay or dig out the foundation of any new house." It seems to have contemplated that some foundations would be laid without any digging out, and if the respondents had no other answer to the appellants' claim than the 76th section our judgment would be against them on this point also.

The claim for fees to counsel on advising the district board was properly given up on the argument. We are, therefore, of opinion that the Magistrate's decision was wrong; and in pursuance of the power mentioned at the end of the case, we order that the respondents pay to the appellants 5l. 5s. 6d. and 21l. 4s. 6d., and the costs of this appeal, that is, the costs of the paper books and arguments.

My Brother Crompton is not satisfied with the conclusion at which we have arrived, and particularly doubts whether the wall in question is a sewer within the meaning of either the 204th or the 205th section.

Removal Act, 1855, the local authority are empowered in certain cases to lay down a sewer, and to assess every house using it, to such payment, either immediate or annual or distributed over a term of years, as they shall think reasonable, and, after fourteen days' notice left on the premises so assessed, to levy and collect the sum and sums so assessed in the same manner and with the same remedies as highway rates, and with the same right of appeal against the amount of assessment reserved to the person assessed, as by the law in force for the time being shall be given against the highway rate: provided that such assessment shall in no case exceed 1s. in the pound on the assessment to the highway rate. By the Highway Act, (5 & 6 Will. 4. c. 50.) s. 105, the right is given to any person aggrieved by any rate to appeal to the next Quarter Sessions, first giving to the opposite party notice within fourteen days after such rate shall have been made :-Held, first, that the fourteen days for giving notice of appeal against an assessment under the former act ran from the service of the notice of assessment on the premises assessed, and not from the time when the amount was fixed by the local authority.

Secondly, that the proviso in the 22nd section limited the annual assessment only to 1s. in the pound on the rateable value as assessed to the highway rate, but did not prohibit the whole assessment of the premises in respect of one structure, to be distributed over several years, from exceeding that amount.

On an appeal to the Lancashire Quarter Sessions, by Edmund Howarth, against a rate and assessment, alleged to have been made by the Nuisances Removal Committee of the township of Middleton, on the 4th of February 1858, under the powers of the Nuisances Removal Act, 1855, (18 & 19 Vict. c. 121.), the Justices ordered the assessment to be reduced as hereafter mentioned, subject to the opinion of this Court on a

CASE.

The appellant is the owner of three houses, situate in Wood Street, in the said township. The respondents, as surveyors of the highways, are the local authority

G

for the said township, under the Nuisances Removal Act for England, 1855.

In May 1857 there was a gutter in Wood Street, partly used for the conveyance of water, sewage, and other matters from certain of the houses and premises in the street, the houses belonging to the appellant among the number, which in the opinion of the local authority became a nuisance that could not be rendered innocuous without the laying down of a sewer along the same. The local authority accordingly laid down a sewer. At a meeting of the local authority, held on the 4th of February 1858, the following entry was made in their book of the proceedings: "Nuisances Removal Act for England,

1855.

An assessment made for drainage work done in Wood Street, District Middleton, under the Nuisances Removal Act of 1855, (18 & 19 Vict. cc. 116, 121.) at the rate of 4s. per lineal yard on the frontage of all property using the drain in the said district, to be paid in the following manner-viz. 1s. 6d. per lineal yard, for the year ending March 25, 1858; 1s. 6d. for the year ending March 25, 1859, and 1s. per lineal yard for the year ending March 1860; and if in the mean time any property be built to use the aforesaid sewer, that the rate for the last year be reduced in proportion to the amount brought in by new property."

Under this assessment the appellant was charged the first year's assessment, in respect of his three houses, 17. 7s., being 1s. 6d. a yard upon eighteen yards.

The following note was made out by one of the officers of the local authority, from the said entry on the 5th of February, and duly served on the appellant on the 6th of February :

"Middleton, 5th February, 1858. "Mr. Edmund Howarth.-To the Surveyors of the Highways of the Township of Middleton District. To eighteen yards of sewering, at 1s. 6d. per yard-first year's instalment, 17. 7s."

Before the said note was served on the appellant, he had no notice that any assessment had been made, or was about to be made on the particular day on which it was made, nor did it appear that any public notice had been given within the township that the local authority was about to make

such assessment or that it had been made. Before the 4th of February the appellant had seen the sewer while it was being made, and had consented to an eye being put down opposite to one of his houses, and to a service-pipe being laid down from the houses to communicate with such sewer. On the 20th of February the appellant served the respondents with notice and grounds of appeal. The appellant was rated in the highway rate for the time being, which was at 4d. in the pound, at 3s. 6d., the rateable value of the three houses being 107. 10s.

The Justices ordered the whole assessment on the appellant of 31. 12s. to be reduced to 10s. 10d., and the first year's instalment of 1. 7s. to the proportional sum of 4s.

If the Court should be of opinion that notice of appeal was not given by the appellant in time, then the appeal was to be dismissed. If the Court should be of opinion that notice of appeal was given in time, then the judgment was to be as follows: If the proviso at the end of section 22. of the Nuisances Removal Act, for England, 1855, "That such assessment shall in no case exceed 1s. in the pound on the assessment to the highway rate, if any," prohibits the local authority from assessing in respect of one and the same structure, the houses using such structure to a payment distributed over a term of years, or otherwise not exceeding 1s. in the pound on the assessment to the highway rate for the then current year, but exceeding 1s. in the pound on the whole, then the order of Session to be confirmed.

If the said proviso does not prohibit the local authority from assessing in respect of one and the same structure, the houses, &c. using the same to a payment distributed over a term of years or otherwise, not exceeding 1s. in the pound on the assessment to the highway rate for the then current year, although exceeding 1s. in the pound on the whole, then the assessment to be amended by reducing the sum of 17. 7s. to 10s. 6d.

If the words in the said proviso "the assessment to the highway rate" do not refer to the annual value of the premises as assessed to the highway rate-e. g. in

the present case, 107. 10s., but refer to the actual sum payable for highway rate during the current year in respect of the said premises-e. g. in the present case, at 4d. in the pound, 3s. 6d., then the assessment to be amended by reducing the sum of 31. 12s. to 2d., and the said sum of 11. 7s. to the proportioned sum of d.; if the said proviso limits the whole assessment to 1s. in the pound, or if the proviso limits only the yearly instalment to this amount, then the said sum of 11. 7s, only to be reduced to 2d.

Monk, in support of the order of Sessions.-The first question is, whether the notice of appeal was in time. The assessment was made under the 22nd section of the 18 & 19 Vict. c. 121. (1), by which the local authority are authorized to assess every house, &c., and after fourteen days' notice, at least, left on the premises assessed, to levy and collect the sum assessed in the same manner and with the same remedies as highway rates are by the law in force for the time being leviable and collectable, and with the same right and power of appeal against the amount of the assessment reserved to the person assessed, as by the law in force is given against a highway rate. The act now in force for the highways is the 5 & 6 Will. 4. c. 50, by section 105. of which, the right is given to the person aggrieved by any rate to appeal to the next Quarter Sessions, first giving to the person, by whose act such person

(1) Section 22. is as follows:-"Whenever any ditch, gutter, drain, or watercourse, used or partly used for the conveyance of any water, filth, sewage, or other matter from any house, building, or premises, is a nuisance within the meaning of this act, and cannot, in the opinion of the local authority, be rendered innocuous without the laying down of a sewer or of some other structure along the same, or part thereof, or instead thereof, such local authority shall and they are hereby required to lay down such sewer or other structure, and to keep the same in good and serviceable repair, and they are hereby declared to have the same powers as to entering lands for the purposes thereof, and to be entitled to recover the same penalties in case of interference, as are contained in the 5 & 6 Will. 4. c. 50; and such local authority are authorized and empowered to assess every house, building, or premises, at any time thereafter using for the purposes aforesaid the said ditch, gutter, drain, watercourse, sewer, or other structure, to such payment, either immediate or annual, or distributed over a term of years, as they shall think just and reasonable, and, after fourteen days' notice at the least left on the

shall think himself aggrieved, notice in writing of his intention to bring such appeal, together with grounds, within fourteen days after such rate shall have been made, &c. The highway rate is to be made, assessed and levied, and also allowed by Justices, and published; and the other side, no doubt, will cite cases to shew that a person is bound to appeal within fourteen days of the making, and not of the publication. But the words of the 105th section of the Highway Act are not literally applicable to the present assessment, which is only to be assessed and levied and collected fourteen days after notice of the assessment; the sum assessed is, therefore, not payable until this notice; and the limit for giving notice of appeal, reconciling the two acts as well as it is possible, must run from the notice. There being no liability to pay until notice, there can be no grievance and no person aggrieved until such notice.

Atherton and R. A. Cross, contrà.-The notice of assessment is matter subsequent to the assessment; and in the 105th section of the 5 & 6 Will. 4. c. 50, for "after the rate shall have been made," we must read, "after the assessment shall have been made." The notice in the late act is merely equivalent to the publication in the other; and the appeal must be from the making of the assessment, irrespective of the notice, in the same way as it must be from the making of the rate, irrespective of the publication. The fact of notice being required before collection does not make the assessment less an as

premises so assessed, to levy and collect the sum and sums so assessed in the same manner, and with the same remedies, in case of default in payment thereof as highway rates are by the law in force for the time being leviable and collectable, and with the same right and power of appeal against the amount of such assessment reserved to the person or persons so assessed as by the law for the time being in force shall be given against any rate made for the repair of the highways; and the provisions contained in this section shall be deemed to be part of the law relating to highways in England: Provided always, that where such ditch, gutter, drain or watercourse shall, as to parts thereof, be within the jurisdiction of different local authorities, this enactment shall apply to each local authority only as to so much of the works hereby required, and the expenses thereof as is included within the respective jurisdiction of that authority: Provided also, that such assessment shall in no case exceed 1s. in the pound on the assessment to the highway rate, if any."