a

newly built,

as dwelling

not to be let rooms. &c., to be let

LXVII. And be it enacted (w), that it shall not be lawful Cellars, &c. to let or occupy or suffer to be occupied separately as dwelling any vault, cellar, or underground room built or built after the passing of this Act, or which shall not have been so let or occupied before the passing of this Act;

re

And it shall not be lawful to let or continue to let, or to occupy or suffer to be occupied, separately as a dwelling, any vault, cellar, or underground room whatsoever, unless the same be in every part thereof at least seven feet in height, measured from the floor to the ceiling thereof,-nor unless the same be at least three feet of its height above the surface of the street or ground adjoining or nearest to the same,nor unless there be outside of and adjoining the same vault, cellar, or room, and extending along the entire frontage thereof, and upwards from six inches below the level of the floor thereof up to the surface of the said street or ground, an open area of at least two feet and six inches wide in every part, nor unless the same be well and effectually drained by means of a drain the uppermost part of which is one foot at least below the level of the floor of such vault, cellar, or room,- nor unless there be appurtenant to such vault, cellar, or room the use of a watercloset or privy and an ashpit, furnished with proper doors and coverings, kept and provided according to the provisions of this Act (x),—nor unless the same have a fireplace with a proper chimney or flue,-nor unless the same have an external window of at least nine

(w) A question arose as to whether the whole or any part of this clause applied generally, or was limited to places where the local board of health is established. This doubt has been removed by the 29 & 30 Vict. c. 90, s. 42, which enacts that" the 67th section of the Public Health Act, 1848, relating to cellar dwellings shall apply to every place in England and Ireland where such dwellings are not regulated by any other Act of Parliament, and in applying that section to places where it is not in force at the time of the passing of that Act" (7th August, 1866), the expression," this Act," shall be construed to mean "the Sanitary Act, 1866," and not the said "Public Health Act, 1848." In construing the said 67th section as applied to that Act, "nuisance authority" shall be substituted for "the local board."

(x) See sect. 54, ante.

No cellars

except under certain conditions.

superficial feet in area clear of the sash frame, and made to open in such manner as shall be approved by the surveyor (i), except in the case of an inner or back vault, cellar, or room let or occupied along with a front vault, cellar, or room as part of the same letting or occupation, in which case the external window may be of any dimensions, not being less than four superficial feet in area clear of the sash frame;

And whosoever lets, occupies, or continues to let, or knowingly suffers to be occupied for hire or rent, any vault, cellar, or underground room, contrary to this Act, shall be liable for every such offence to a penalty (k) not exceeding twenty shillings (k) for every day during which the same continues to be so let or occupied after notice in writing (1) from the local board of health (m) in this behalf:

Provided always, that in any area adjoining a vault, cellar, or underground room there may be steps necessary for access to such vault, cellar, or room, if the same be so placed as not to be over, across, or opposite to the said external window, and so as to allow between every part of such steps and the external wall of such vault, cellar, or room a clear space of six inches at the least, and that over or across any such area there may be steps necessary for access to any building above the vault, cellar, or room to which such area adjoins, if the same be so placed as not to be over, across, or opposite to any such external window :

Provided also, that every vault, cellar, or underground room in which any person passes the night shall be deemed to be occupied (n) as a dwelling within the meaning of this Act:

(i) See sect. 2, ante, and sect, 151, post, as to the exemption from duty. (k) See sect. 129, as to the recovery thereof.

(1) See sect. 150, post, and 21 & 22 Vict. c. 98, s. 61, as to the service and authentication of notices. The 29 & 30 Vict. c. 90, s. 36, enables the local authority when there have been two convictions within three months, permanently to close the cellars at their own cost. See Appendix.

(m) See first note on this section.

(n) It must be understood that the vault or underground room must be separately occupied. See the commencement of the section.

come into

until the ex

certain time,

Provided also, that the provisions of this Act with respect Act not to to the letting and occupation of vaults, cellars, and under- operation ground rooms shall not, so far as the same relate to vaults, piration of a cellars, and underground rooms which shall have been let or in case of occupied as dwellings before the passing of this Act, come into already ocforce or operation until the expiration of one year from the cupied as passing of this Act, nor within any district until the expiration of six months from the time when this Act shall have

been applied thereto (0);

dwellings.

wardens, &c.

tice of enact

ment.

And all churchwardens and overseers of the poor shall Churchfrom time to time after the passing of this Act cause public to give nonotice (p) of the provisions of this Act with respect to the letting and occupation of vaults, cellars, and underground rooms to be given in such manner as may appear to them to be best calculated to make the same generally known.

LXVIII. And be it enacted, that all present and future Managestreets (q), being or which at any time become highways (r) streets

(0) See now 21 & 22 Vict. c. 98, s. 20, as to the date of the constitution of the district.

(p) As the legislature have imposed this duty upon these officers, it seems that they may charge the cost of these notices upon the poor rate, as that is the only fund which they possess in common. But since no precise time is appointed for the giving of these notices, the clause has not been much observed. Of course the difficulty above adverted to, as to the extent of the operation of the clause, now removed, tended to diminish its operation.

(q) See the definition of street in sect. 2, ante. Sect. 117, post, made the local board surveyors of the highways, and vested in such board all the powers of the surveyor of the highways. It is proper to refer to the 33 & 34 Vict. c. 78. Act, 1870," as it contains the provisions whereby a local board may be enabled to construct and maintain a tramway within their district.

ment of

vested in

local board.

"The Tramways Tramways.

And in consequence principally of the interest of the local board in the Gas and streets in the district, their consent must be given before the undertakers waterworks. of any gas or water works within their district can obtain the provisional

order provided for by the 33 & 34 Vict. c. 70. See s. 4.

(r) The 15 & 16 Vict. c. 42, enacted in sect. 13, "That the term 'high- « Highway,” way,' in the sections of the Public Health Act, 1848, numbered re- meaning of spectively 68 and 69 in the copies of the Act printed by the Queen's the word. printers, shall mean any highway repairable by the inhabitants at large." In Sunderland, Mayor of v. Herring, 17 J. P. 741, the Court of Queen's Bench held that this enactment interpreted the clause in the text retrospectively

within any district, and the pavements, stones, and other materials thereof, and all buildings, implements, and other things provided for the purposes thereof by any surveyor of highways, or by any person serving the office of surveyor of highways, shall vest in and be under the management and control of the said local board of health;

And the said local board shall from time to time cause all such streets to be levelled, paved, flagged, channelled, altered, and repaired (r), as and when occasion may require, and they may (s) from time to time cause the soil of any such street to be raised, lowered, or altered as they may think fit, and place and keep in repair fences and posts for the safety of foot passengers;

And whosoever wilfully displaces, takes up, or injures the pavement, stones, materials, fences, or posts of any such

(r) It will be observed, that there is no reference here to the rights of private individuals, nor does the Act contain any clause applicable to streets such as that which is contained in sect. 145, applicable to sewers. The principle established by Boulton v. Crowther, 2 B. & C. 703, is, that where public commissioners have conferred upon them, by statute, powers to effect works for the public good, they are not personally responsible for the damage which they cause to private individuals in the due and careful exercise of those powers. Hence, where a local Act empowered a town council to alter the level of any street, the Court of Queen's Bench held that they had not exceeded their powers by erecting a bridge in the line of street, over a canal, (Beaver v. Corporation of Manchester, 22 Jur. 23,) and were not liable in damages to a person whose house was thereby injured. And it has been decided by the same court, that an action is not maintainable against the local board for injuring a house by lowering a street though the access was thereby obstructed. Bold v. Williams, 21 J. P. 84. But the proper compensation might have been obtained in this case under sect. 144, post. See Reg. v. Wallasey Local Board, 4 Q. B. 351.

(8) No compulsion or duty is cast upon the local board by these words. Therefore where a goit ran by the side of an ancient public footpath, it was held that the local board were not bound to fence the path from it, to prevent accidents in it. Wilson v. Corporation of Halifax, 17 L. T. (N. s.) 660; 37 L. T. Exc. 44; L. Rep. 3 Exc. 114.

But as a surveyor of the highways is not liable to an action for an injury caused by the non repair of the highway, (Young v. Davis, 7 Exc. (N. s.) 760; 2 H. & C. 197); so also the local board who are constituted surveyors of the highway by this Act are not liable for such an accident. Gibson v. The Mayor of Preston, L. R. 5, Q. B. 218; 39 L. J. Q. B. 131. Neither is the vestry of a parish in the metropolis. Parsons v. Vestry of Bethnal Green. 37 L. J. C. P. 62.

street, without the consent of the said local board (t), shall be liable for every such offence to a penalty (u) not exceeding five pounds, and a further sum not exceeding five shillings for every square foot of the pavement, stones, or other materials so displaced, taken up, or injured.

compel

LXIX. And be it enacted, that in case any present or Power to future street (v), or any part thereof, (not being a high- paving, &e. way,) (w) be not sewered, levelled (x), paved, flagged, and of private. channelled to the satisfaction of the local board of health, such board may, by notice in writing to the respective

(t) See, as to this consent, sect. 149, post, and also as to the alteration of the level of sewers, 21 & 22 Vict. c. 98, s. 38.

streets.

With reference to the powers of gas companies to break up the pave- Breaking ments in districts under Acts granted previous to this statute, see Dover up of Gaslight Company v. Mayor of Dover, 1 Jur. (N. s.), 812, where the pavements powers were upheld, though the case depended upon the construction of the local Acts. See note on sect. 71, post.

In the London and Blackwall Railway Company v. Board of Works for Limehouse District, 25 L. J. R. Ch. 164, this general principle is laid down. Where the legislature has vested special powers in a particular body for certain purposes, a general Act will not override those special powers; thus, a railway company were held to be empowered to build a station which abutted upon a street in the metropolis, without the consent of the district board, their local Act, which preceded the Metropolitan Local Management Act, authorizing them to do so. See also A. G. v. Northern and Eastern Railway Company, 10 Mee. & W. 263. (u) See sect. 129, as to the recovery of penalties.

(v) It was held that this section did not give power to the local board to make new streets and to compel the adjoining owners to pay for them, but was confined to existing streets not repairable by the parish. Local Board of Health of Hull v. Jones, 1 Hurl. & N. 489; 2 Jur. (N. s.), 1193; but this decision is now qualified by the enactment in 21 & 22 Vict. c. 98, s. 38, post, which, with retrospective as well as prospective operation, extends the power of the local board to public footpaths.

(w) As to the liability of owners to the repair of streets which are highways, see Mayor of Stockport v. Chatham, I L. T. (N. s.) 541. As to the use of this word highway here, see note on sect. 68. In determining what is a highway reference should be made to Illingworth v. Montgomery, 2 L. T. (N. s.) 726, and to Wallington, app., White, resp. 10 C. B. (N.s.) 128, and Willis v. Wallington, 13 C. B. 865.

(a) This word signifies where the particular street requires to be levelled, being looked at as an isolated street. The owners of houses in a street cannot be compelled to bear the charge of making the street on a level with other adjoining streets. Caley v. Local Board of Kingstonupon-Hull, 34 L. J. M. C. 7; 11 L. T. 339; 11 Jur. 171; 5 B. & S. 815.

in streets.