to the said local board the sum of five pounds, and a further penalty of forty shillings for every day during which the offence is continued after notice in writing (d) from them in this behalf (e); And if any sewer, drain, building, vault, arch, or cellar be made, erected or constructed contrary to this enactment, the said local board may cause the same to be altered, pulled down, or otherwise dealt with as they may think fit, and the expenses incurred by them in so doing shall be repaid to them by the offender, and be recoverable from him in the summary manner hereinafter provided ( ƒ). sewers by beyond XLVIII. And be it enacted, that any owner or occupier Use of of premises adjoining or near to, but beyond the limits of persons any district (g), may cause any sewer or drain of or from such district. premises to communicate with any sewer of the local board of health, upon such terms and conditions as shall be agreed upon between such owner and occupier and such local board, or, in case of dispute, as shall be settled by arbitration in the manner provided by this Act (h). (d) See as to this notice, 21 & 22 Vict. c. 98, s. 61, and as to the service, sect. 150, post. (e). See as to the recovery of this penalty, sect. 129, post. (f) See sect. 129, post. These words only provide for the expenses of the alteration or pulling down. It is to be presumed that if the works have occasioned damage to the sewers of the local board, they could maintain an action for compensation in respect of such damage; and, moreover, that the local board may obtain an injunction to stay the works of any person before completion, so as to prevent damage which the penalty would be quite inadequate to repair. (g) See also 21 & 22 Vict. c. 98, s. 30, post, and 29 & 30 Vict. c. 90, s. 8, in Appendix. (h) See sect. 123, post. But the 24 & 25 Vict. c. 61, s. 8, contains this further provision. "Where already or hereafter any premises, not being within the limits Yearly sum of the district of the local board, have a drain communicating, directly to be paid for premises or indirectly, with a sewer within the district, and maintained by the without local board, and any sewage from the premises flows into the sewer, district there shall (except in cases where the owner is entitled to use such sewer, drained into without making any payment) be paid to the local board in respect thereof sewer within such a yearly sum as is agreed on between them and the owner of the district. No new house to be XLIX. And be it enacted, that it shall not be lawful built without newly to erect any house, or to rebuild any house which may drains, &c., have been pulled down to or below the floor commonly called the ground floor, or to occupy any house so newly erected or rebuilt, unless and until a covered drain (i) or drains be constructed, of such size and materials, and at such level, and with such fall as upon the report of the surveyor (k) shall appear (1) to be necessary and sufficient for the proper and effectual drainage of the same and its appurtenances; And if the sea, or a sewer of the local board of health, or a sewer which they are entitled to use, be within one hundred feet of any part of the site of the house to be built or rebuilt, the drain or drains so to be constructed shall lead from and communicate with such one of those means of drainage as the said local board shall direct, or if no such means of drainage be within that distance, then the lastmentioned drain or drains shall communicate with and be emptied into such covered cesspool or other place, not being under any house, and not being within such distance from any house, as the said local board shall direct (m); premises, or, failing agreement between them, as on the application of the local board is determined by two justices; and the yearly sum so agreed on or determined shall be "“private improvement expenses,” and shall be charged on the premises, and be paid and recoverable, accordingly, as if the premises were within the district. Provided that the yearly sum so charged shall cease to be payable if and when the connection between the drain from the premises and the sewer is discontinued, so that a proportionate part thereof up to the time of the discontinuance shall alone be payable; but if after the discontinuance the connexion be re-established the yearly sum shall again become payable, and so from time to time." (i) See the interpretation of this word in sect. 2, ante. (1) This clause is not framed very distinctly, but apparently the plan and specification as to the intended works must be submitted to the local board, and by them referred to the surveyor, who is to report thereupon to the board. The board must then decide as to the sufficiency of the proposed drainage, and give their directions as to the course to be followed. (m) This enactment will often render it necessary for the person proposing to rebuild to secure the rights of sewerage under the ground adjoining his property. And whosoever erects or rebuilds any house or constructs any drain contrary to this enactment shall be liable for every such offence to a penalty not exceeding fifty pounds, which may be recovered by any person (n), with full costs of suit, by action of debt; may, upon surveyor house is drain, cause constructed, &c. And if at any time, upon the report of the surveyor, it Local board appear to the said local board that any house, whether built report of before or after the time when this Act is applied to the district that any in which it is situate, is without any drain, or without such without a a drain or drains communicating with the sea or a sewer as one to be is or are sufficient for the proper and effectual drainage of c the same and its appurtenances, and if the sea, or a sewer of the said local board, or a sewer which they are entitled to use, be within one hundred feet of any part of such house, they shall cause notice (o) in writing to be given to the owner or occupier of such house, requiring him forthwith, or within such reasonable time as shall be specified therein, to construct and lay down in connexion with such house and one of those means of drainage, one or more covered drain or drains, of such materials (p) and size, at such level, and with such fall as upon the last-mentioned report shall appear to be necessary; And if such notice be not complied with the said local board may, if they shall think fit, do the works mentioned or referred to therein, and the expenses incurred by them in (n) See sect. 133, post. (0) As to service of notice see sect. 150, post; and as to its authentication, 21 & 22 Vict 98, s. 61. 274, Materials of their which the The sewer to be (p) It will be seen from Austin v. Vestry of Lambeth, 22 Jur. that the local board have the exclusive power of deciding whether directions are complied with in regard to the materials to be used. vestry ordered a drain to be made with pipes of stone-ware of the best kind and quality, and the builder laid down Aylesford pipes, but the vestry declared that these were not stone-ware, and proceeded to remove them. Vice-Chancellor Stuart held that it was for them to determine the question, and refused to grant an injunction against them on motion. His decision was confirmed by the lords justices on appeal, 27 L. J. R., Ch. 388, 392; and the bill was afterwards dismissed with costs on the hearing, his honour being satisfied that the vestry had not acted capri ciously or vexatiously. 22 Jur. 1032. constructed. As to con struction of for parishes than 2,000 and in which not other so doing shall be recoverable by them from the owner (c) in a summary manner (d), or, by order of the said local board, shall be declared to be private improvement expenses, and be recoverable as such in manner hereinafter provided (e). L. And be it enacted (f), that if it shall appear to a sewers, wells majority of not less than three-fifths of the rated inhabitants pumps, &c., of any parish (g) or place containing less than two thousand &c. with less inhabitants on the then last census in which this Act shall inhabitants, not have been applied by order in council or provisional this Act is order as aforesaid (h) assembled at a public meeting to be wise applied. called as is hereinafter provided, that it would contribute to the health and convenience of the inhabitants that any pond, pool, open ditch, sewer, drain, or place containing or used for the collection of any drainage, filth, water, matter, or thing of an offensive nature, or likely to be prejudicial to health, should be drained, cleansed, covered, or filled up, or that a sewer should be made or improved, a well dug, or a (c) As to the owner referred to in this section, see sect. 2, ante, as to the payment of such expenses between lessor and lessee, sect. 97, post. If there be any difficulty, by reason of the owner not having a right to carry his drain through his neighbour's land, the local board may, perhaps, be able, by means of the authorities conferred upon them by these Acts, to obviate the difficulty. (d) See sect. 129, post, as to the recovery of these expenses. (e) See sect. 90, post, and 21 & 22 Vict. c. 98, s. 62, which makes them a charge on the premises. See Vestry of Marylebone v. Viret, 12 L. T. (N.s.) 673, 11 Jur. (N. S.) 907, 19 C. B. (N. s.) 424; a case where the vestry acting under the Metropolitan Local Management Act, 18 & 19 Vict. c. 120, required the occupier to make a new drain, but it was held that the vestry in fact sought to make a complete new scheme of drainage, and therefore the occupier was not required to make the new drain or bear the charge thereof. (f) This useful clause is sometimes adopted in small parishes, and would be more so if it were more generally known. But it is now materially affected by the Sewage Utilization Acts, printed in App., post. (g) There is no interpretation of the word parish in this Act, but refer to note on sect. 2, ante. The word place is of a very wide extent, and may well apply to townships or chapelries having separate overseers. (h) Or in which the Local Government Act has not been adopted. pump provided, for the public use of the inhabitants, the churchwardens and overseers of such parish or place shall procure a plan and an estimate of the cost of executing such works, or any of them, and shall lay the same before another public meeting of such rated inhabitants, to be called as is herein-after provided; And if the same shall be approved and sanctioned by a majority of the rated inhabitants assembled at such lastmentioned meeting, such churchwardens and overseers shall cause the works in respect of which such estimate shall have been made and sanctioned as aforesaid to be executed, and shall pay the cost thereof out of the poor rates of such parish or place: Provided always, that notice of every such meeting shall be given by such churchwardens and overseers as is by this Act directed to be given by superintending inspectors, before proceeding upon inquiries previously to the application of this Act (i), and every such notice shall also contain a statement of the works proposed or intended to be submitted for consideration and approval. LI. And be it enacted (k), that it shall not be lawful newly Penalty on to erect any house, or to rebuild any house (1) pulled down erecting (i) See sect. 9, ante. (k) The 31 & 32 Vict. c. 115, s. 4, post, in Appendix, extends the first part of this section to the district of every sewer authority in which there is no enactment of any public or private Act of parliament to the like effect in force, and the section, when so extended, shall be construed in reference to the district of any sewer authority as if the expression sewer authority were inserted therein in the place of the expression local board; and any officer for the time being appointed by the sewer authority to examine any premises shall be deemed to be the surveyor within the meaning of the section. It must also be noticed that this clause continues to enact, "that where the sewer authority and the nuisance authority of a district, are different bodies of men, the jurisdiction of the nuisance authority shall cease within such district in relation to all matters within the purview of sects. 51 and 54 of the Public Health Act, 1848." (1) See in sect. 2, ante, the interpretation of this word, and in 21 & 22 Vict. c. 98, s. 34, post, what is a new building. persons |