such river, canal, dock, harbour, or basin, or with any land necessary for the enjoyment or improvement thereof,

The local board shall give to such corporation, company, undertakers, commissioners, conservators, trustees, or individuals as last aforesaid a notice (e) specifying the particulars of the matters and things so intended to be done;

And if the parties on whom such notice is served do not consent to the requisitions thereof, the matter in difference shall be referred to arbitration (f), and the following questions shall be decided by such arbitration; (that is to say,)

(1.) Whether the matters or things so proposed to be done by the local board will cause any injury to such river, canal, dock, harbour, basin, towing-path, works, or land as herein before mentioned in this section, or to the enjoyment or improvement of such river, canal, dock, harbour, or basin as aforesaid:

(2.) Whether any injury that may be caused by such matters or things or any of them is or not of a nature to admit of being fully (g) compensated by money.

LXX. The result of any such arbitration shall be final, and the local board shall do as follows (h); (that is to say,)

Arbitration.

(e) As to the service of this notice, see 11 & 12 Vict. c. 63, s. 150, ante, and as to its authentication, sect. 61, ante.

(f) According to 11 & 12 Viet. c. 63, s. 123, ante.

(g) Note the object of this subject of inquiry, namely, full compensation. Perhaps some meaning is gained popularly by this word, but otherwise it is of no use. A compensation must be full or it is defective in itself.

It is to be noticed that the clause does not contemplate that these arbitrators shall ascertain the amount of compensation for the injury if any be experienced.

(h) These two clauses are expressed without much regard to accuracy. First, it is stated in sect. 69, that two questions are to be submitted to the arbitrators, and afterwards in sect. 70 it is shown that another question may be submitted to and decided by them. Then sect. 70 states that the local board shall do as follows, and having required in a certain event

Provision as

of powers,

&c.

If the arbitrators (c) are of opinion that no injury will be caused, the local board may forthwith proceed to do the proposed matters and things:

If the arbitrators are of opinion that injury will be caused, but that such injury is of a nature to admit of being fully compensated by money, they shall proceed to assess such compensation (d):

And upon payment of the amount so assessed, but not before, the local board may proceed to do the proposed matters and things:

If the arbitrators are of opinion that injury will be caused, and that it is not of a nature to admit of being fully compensated by money, the local board shall not proceed to do any matter or thing in respect of which such opinion may be given.

LXXI. No transfer of powers and privileges under this to transfer Act shall deprive any corporation, company, undertakers, commissioners, conservators, trustees, or individuals authorized by virtue of any Act of parliament to navigate on any river or canal, or to demand for their own benefit in respect of such navigation any tolls or dues, of such powers and privileges as are vested in them by any Act of parliament in relation to such river or canal.

Power for corporation to alter sewers.

LXXII. Any corporation, company, undertakers, commis

the arbitrators to do a particular act, empowers the local board to proceed, and afterwards, upon a decision of the arbitrators, in a manner described, prohibits the local board from acting.

(c) Although no mention is made of an umpire here, it is presumed that the 11 & 12 Vict. c. 63, s. 2, applies. It will be necessary also to refer to 11 & 12 Vict. c. 63, ss. 123-128, ante, as to the proceedings in this arbitration.

(d) Although it seems that it would have been better to provide for compensation after the works shall have been completed, and the amount of damage actually ascertained, inasmuch as the estimate of the arbitrators may prove too high or too low, (see note on sect. 30, ante,) yet it is clear that the payment is here made a condition precedent to the execution of the works.

sioners, conservators, trustees, or individuals authorized by virtue of any Act of parliament to navigate on or use any river, canal, dock, harbour, or basin, or to demand any tolls or dues in respect of the navigation on such river or canal or the use of such dock, harbour, or basin, may (e), at their own expense, and on substituting other sewers, drains, culverts, and pipes equally effectual, and certified as such by the surveyor (f) to the local board, take up, divert, or alter the level of any sewers, drains, culverts, or pipes constructed (g) by any local board, and passing under or interfering with such rivers, canals, docks, harbours, or basins, or the towingpaths of such rivers, canals, docks, harbours, or basins, and do all such matters and things as may be necessary for carrying into effect such taking up, diversion, or alteration.

water

companies

LXXIII. Nothing in this Act or any Act incorpo- Preserving rated therewith shall be construed to authorize any local rights of board to injuriously affect any reservoir, river, or stream, or or indivithe feeders of any reservoir, river, or stream, or the supply, quality, or fall of water contained in any reservoir, river, stream, or feeders of any reservoir, river, or stream, in cases

duals.

(e) This modifies the prohibition contained in 11 & 12 Vict. c. 63, s. 47, ante.

(f) Though the certificate of the surveyor is required, it does not appear that it will conclude the local board, if they can show that the new sewers or pipes are not equally effectual as their own, and sect. 74, post, accordingly provides for the reference of such question to arbitration.

According to the language of the clause, no consent is required from the local board previous to the commencement of the works. The certificate of the surveyor is to be given after the works shall have been done. Nevertheless if it should appear that the parties referred to are working in such a manner as obviously to be unprotected by this Act, an injunction would be granted by the Court of Chancery to stay their proceedings.

(g) It is to be presumed that these works of the local board must have been executed with the consent of the parties referred to. Consequently it will be prudent when such consent is given, to reserve power to make alterations as above contemplated.

Arbitration questions under preceding sections.

where any company or individuals would, if this Act had not passed, have been entitled by law (a) to prevent or be relieved against the injuriously affecting such reservoir, river, stream, feeders, supply, quality, or fall of water,

Unless such board shall have first obtained the consent in writing of such company (b) or individuals so entitled as aforesaid.

LXXIV. Any difference of opinion that may arise between

(a) See note on sect. 68, ante, and Earl of Ripon v. Hobart; 3 Myln & K. 169; 3 L. J. Ch. (N. 8.) 145. If the local board injuriously affect the rights of any company or individual in respect of matter to which this clause applies, without the requisite consent, the remedy is not by compensation, but by action for damages. Reg. v. Darlington Local Board of Health, 33 L. J. Q. B. 105; 10 Jur. (N. s.) 1196; 5 B. & S. 516, confirmed on error, 35 L. J. Q. B. 45.

In this case are set forth complaints of injuries caused by the local board, but which the court appeared to consider would not be actionable. Reference should be made to the case of Reg. v. Proprietors of the Bradford Navigation, 11 Jur. 766; 34 L. J. (N. s.) Q. B. 191; 29 J. P. 613, where the Court of Queen's Bench laid down this principle, that statutory powers although granted for the public benefit are only co-extensive with the power to exercise them without an infringement of the general law. Where the exercise is not compulsory upon the grantees, and new and unforeseen circumstances subsequently arise, which render the exercise of them a nuisance, such exercise is unlawful. Hence, where a navigation company were empowered by statute to take water from certain streams for the supply of their canal, and the streams became polluted so that the water in the canal caused a public nuisance, it was held that the lessees of the company were properly convicted. This decision was supported by Vice-Chancellor Wood, who granted an injunction against the lessees and the company who owned the canal, to prevent them from drawing the polluted water from the beck into the canal, though he granted some time to enable the defendants to provide a remedy, if possible. A. G. v. Proprietors of the Bradford Canal, L. R. 2 Eq. 71; 35 L. J. Ch. 619.

(b) In sect. 68 there is a distinct provision as to the mode in which this consent is to be given. It may be well incorporated here. It is not easy to understand how any public company can properly give their consent to the local board of health injuring their reservoirs or streams of water. They may, indeed, sell the interest of the company in the same for adequate compensation, but the clause appears to go further. When properly considered, however, it will be seen that it only operates to protect the local board, and leaves the board of directors or managers to settle with their own constituents as to whether they shall or shall not give their consent to the proceedings proposed.

a local board and any such corporation, company, commissioners, conservators, trustees, or individuals as aforesaid, whether any sewers, drains, culverts, or pipes substituted under the powers of this Act for sewers, drains, culverts, or pipes constructed or laid down by any local board are equally effectual with those for which they are substituted, or whether the supply, quality, or fall of water in any such reservoir, river, or stream as last aforesaid is injuriously affected by the exercise of powers under this Act (c), may at the option of the party complaining, be detertmined by arbitration in the manner hereinbefore provided (d);

And in the latter case the arbitrators shall decide the same questions as to the alleged injury; and the local board shall proceed in the same way as is herein before provided (e) with regard to arbitrations in cases of alleged injury to rivers, canals, docks, harbours, and basins.

PURCHASE OF LAND.

as to the purchase of

land.

LXXV. So much of the eighty-fourth section (f) of the Regulation Public Health Act, 1848, as relates to the incorporation of the Lands Clauses Consolidation Act, 1845, shall be repealed, and the following regulations shall be observed with respect to the purchase of land by local boards for the purposes of this Act; (that is to say,)

(1.) The Lands Clauses Consolidation Act, 1845 (g), shall

(c) It is presumed that this word applies also to 11 & 12 Vict. c. 63. (d) See 11 and 12 Vict. c. 63, s. 123, and s. 144, ante.

(e) See ss. 69, 70, ante.

(f) Ante.

(g) 8 & 9 Vict. c. 18. That statute contains two sets of clauses ;one applicable to agreements which enable persons under disability to sell and convey; the other applies to cases where there can be or is no agreement. The local board may adopt the former set by the operation of this clause, but they cannot adopt the latter set without the consent of the secretary of state.

Facilities are given to corporations by the 23 & 24 Vict. c. 16, to purchase or otherwise acquire any hereditaments for public purposes, and consequently for purposes to which these Acts apply.