HOLLIDAY . NATIONAL TELEPHONE CO. the view expressed by the learned deputy judge. He went on to say that Highmore had not freedom of action to come and go when he pleased." There is no evidence to support this statement. There is nothing in his agreement to make joints at 12s., a joint to bind him to any time, or to put him under any obligation beyond that of doing the work in a reasonable time after notice that it was ready for him. The judgment goes on to say, "In substance, the defendants retained control of these works," and, therefore, they are liable. The phrase is too vague to be of much service; but it is incorrect so far as the mode of doing High. more's work, which is the important matter for the present purpose, is concerned. There remains one other question. There are many cases in which a person who employs another to do work for him is not exempted from liability for accidents arising out of such work, because he has employed an independent person, and has not retained control over processes or details, or even interfered in any way with the work at any stage. If a person orders a thing to be done which when done, or as done, is an interference with the safety or rights of another who, at the time he is injured, is in the exercise of his lawful rights, it is no answer to say that the person for whom the offending thing has been done is, by virtue of a contract with someone, independent of his interference or control-the "independent contractor" of the books. A man has a hole dug for him into which a person lawfully passing over or near the spot falls without fault of his own, and is injured; a man has a piece of pavement laid down for him in a public highway and leaves part of it projecting so that a passer-by, though exercising due care, trips against it and is injured by the fall; a man has works constructed for him, not unlawful in themselves, but which when done, by reason of their being badly or carelessly done, narrow an ancient highway, or infringe the provisions of an Act of Parliament, which says that a certain space must be left between the ground and the under side of a bridge, and in consequence an accident occurs causing injury to another-in all these cases the person ordering the work to be done is liable. He has interfered with the status quo, having no right as against his neighbour to do so, and his neighbour has sufficient injury

63 J. P. 133.

in consequence-so if a man puts up a sign projecting over a highway and it falls by reason of imperfect construction, and someone is injured, the person to whom the thing which does the mischief belongs, who has caused it to be put up, or who has maintained it where it does the mischief, is liable, no matter whom he has employed to do it. The principle which underlies all these illustrations is that the person for whom the work has been done has failed to see that something has been done which it was his duty to do either by himself or someone for him. The man who disturbs, or who fails to create, a state of things which other people have a legal right to expect at his hands is liable for such disturbance or failure. The man who maintains an insecure weight hanging over the heads of passers-by fails in taking care that it shall not expose them to danger. The man who contracts a right of way, vertically or laterally, which the public have a right to enjoy in all its old height or width, and a man who digs a hole in a place where others have a right to expect no hole, disturbs a state of things to which they have a legal right, and does it at his peril if an accident happens by reason of what has been done. In the same way, if the hole deprives a neighbouring house of support to which it is entitled. the disturbance of the status quo is at the risk of him who brings it about. But there is a broad and wellestablished distinction between such cases and those in which an accident has happened, not because the thing which has been ordered has been done badly and in its bad state interferes with the rights of others. but because some process which may be natural or necessary in the course of effecting the result to be produced, and forming, as it were, a mere incident in the train of operations and leaving no trace upon the completed work, has been carelessly done by the contractor's servant. This is what Lindley, L.J., has termed (adopting language already used) "casual or collateral negligence," and, as he has pointed out, the difficulty lies rather in the application than in the enunciation of the principle. (Hardaker v. Idle District Council (supra).) Here, however, there seems to us to be little difficulty. The act of Alfred Highmore in carelessly plunging into molten metal a lamp containing benzoline and with a safety-valve out of order, which he wanted

HOLLIDAY. NATIONAL TELEPHONE CO.

was

to heat, is about as typical an instance of negligence merely casual, collateral, or incidental as can well be conceived. It is certainly not less so than the dropping of a brick by a workman employed in building a bridge, in Reedie v. London and North Western Railway Company (supra). We were much pressed with a decision of Bruce, J., in Penny v. Wimbledon Urban District Council (supra), in which he held that an urban council which had employed a contractor to do work to a street in the way of sewering, &c., was liable for the negligence of the contractor, who, in the course of executing the work, had left a heap of excavated soil on the highway, unlighted and unprotected, over which the plaintiff stumbled in the dark and was hurt. The ground of the judgment, so far as this question is concerned, was that there necessarily danger to the public in the work done unless it were lighted, and that the defendants must have known that they were ordering to be done what must be dangerous in itself without precautions taken, and that they were therefore bound to see that precautions were taken. Nothing less like the present case could well be imagined. No human being could anticipate such a piece of folly as that committed by Highmore, and if common care had been used there was no danger to anyone in the work ordered by the defendants to be done, nor anything calling for precautions to prevent the molten lead from flying about. In the ordinary course of things there was nothing to make it fly about or to constitute any source of danger to anyFor these reasons we are unable to agree with the learned deputy judge, and we must allow the appeal, and order judgment with costs to be entered for the defendants in the court below. The plaintiff must also pay the costs of this appeal.

one.

Appeal allowed; leave to appeal refused,

but afterwards granted by the Court of Appeal.

Solicitors for the plaintiff: Gibbs, White and Strong.

Solicitor for the defendants: W. E. L. Gaine.

63 J. P. 137.

CHANCERY DIVISION.

August 4, 1898.

JORDESON v. SUTTON SOUTHCOATES AND DRYPOOL GAS COMPANY,

Gasworks-Erection-Nuisance-Injunction -Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), s. 29-Gasworks Clauses Act, 1871 (34 & 35 Vict. c. 41), s. 9.

A gas company empowered by statute to purchase certain land and erect gasworks thereon is not entitled to erect works in such a way as to injure adjoining property. In excavating, in order to erect a gasholder on the gas company's land, a subsidence in the plaintiff's adjoining land and houses was caused, and the gasholder, when erected to its full height, would block the plaintiff's ancient lights.

The

The gas company was formed in 1846, and subsequently registered and incorporated under the Joint Stock Companies Acts, 1844 and 1856, and the Companies Act, 1862. Gasworks Clauses Act, 1847, was incorporated with these Acts. By 36 & 37 Vict. c. lxxv., which incorporated the Gasworks Clauses Act, 1871, it was authorised to purchase the land where the gasholder was situate, and by section 6 it was empowered to erect, maintain, and from time to time alter and enlarge retorts, gasholders, receivers, &c.

Both the gas company and the contractors were made defendants to the action.

Upjohn, Q.C. (D. Pollock with him), for the plaintiff.-The main defence is that the defendant company had a statutory power, and a statutory duty to exercise that power; but there was no obligation to place the gasholder in the particular site selected by the company.

They referred to the Gasworks Clauses Act, 1817, s. 29; the Gasworks Clauses Act, 1871, s. 9; Metropolitan Asylum v. Hill, 6 App. Cas. 193; 45 J. P. 664; Geddis v. Bann Reservoir Proprietors, 3 App. Cas. 430; London and North-Western Railway Company v. Evans, [1893] 1 Ch. 16; Normanton Gas Company v. Pope, 32 W. R. 134; Shelfer v. City of London Electric Lighting Company, [1895] 1 Ch. 287; Clowes v. Staffordshire Potteries Waterworks Company, L. R. 8 Ch. 125; 36 J. P. 760; and Attorney-General v. Gas Light and Coke Company, 7 Ch. D. 217.

JORDESON v. SUTTON SOUTHCOATES AND

DRYPOOL GAS Co.

Haldane, Q.C. (Macnaghten, Q.C., and Boome with him), for the gas company. The case is like London, Brighton and South Coast Railway v. Truman, 11 App. Cas. 45. They also cited R. v. Peare, 4 B. & Ad. 30; Vaughan v. Taff Railway Company, 5 H. & N. 679; Bedford v. Dawson, L. R. 20 Eq. 353; Hammersmith and City Railway Company v. Brand, L. R. 4 H. L. 171; 30 J. P. 37; Emsley v. North-Eastern Railway Company, [1896] 1 Ch. 418, and Kirby v. Harrogate School Board, [1896] 1 Ch. 418; 60 J. P. 182. Rawlins, Q.C. (Bardswell with him), for the contractors.

4 Aug.] NORTH, J.-It was said, first of all, on behalf of the defendants that the construction of the tank and the erection of the gasholder are acts to do which the gas company has statutory powers, with a statutory duty to exercise these powers, and such powers cannot be released, and no easement can be acquired in derogation of them. A number of railway cases were cited in support of this, but, as Lord Halsbury points out in London, Brighton and South Coast Railway Company v. Truman (supra), the Railway Acts are carefully distinguished from permissive legislation, such as that authorising the erection of a hospital. A railway may be made whether it is a nuisance or not, but not so a hospital, which can only be built and maintained if no nuisance will be thereby created. If the defendants are right, the plaintiff can get no compensation. [His lordship referred to Hammersmith and City Railway Company v. Brand (supra), and the remarks of Bowen, L.J., in London and North-Western Railway Company v. Evans (supra), and of Lord Herschell in Bradford Corporation v. Pickles, [1895] 1 Ch. 152, and to Normanton Gas Company v. Pope (supra), and Consett Waterworks Company v. Ritson, 43 W. R. 122.] Another argument strongly pressed was that the gas company owed a duty to the public, and that the preambles of its Acts show that the powers given to it are for the public benefit. Private and individual interests should therefore, it is argued, give way. The observations of Bowen, L.J., and Lord Herschell answer this, as do those of Lord Cranworth and Lord Campbell in Broadbent v. Imperial Gas Company (7 D. M. G. 462; 7 H. L. C. 610). But

63 J. P. 137.

there is a conclusive answer to the argument that the Acts confer a right and duty to perform these acts upon this particular site. The Act nowhere requires anything to be done which must necessarily injure the plaintiff. If the gasholder had been smaller, or further from the plaintiff's land, it might not interfere with his right to light or support, and the gas company has not shown that it cannot carry out its duties without interfering with the plaintiff. The rights and powers conferred on the gas company, however, are strictly qualified, as is shown by section 29 of the Act of 1867, and section 9 of the Act of 1871. The interference with the plaintiff's land, in my opinion, amounts to a nuisance. A further point was that no prescriptive right could be gained against the gas company, and Staffordshire and Worcestershire Canal Proprietors v. Birmingham Canal Proprietors (L. R. 1 H. L. 254) ; Ayr Harbour Trustees v. Oswald (8 App. Cas. 623; and Mulliner v. Midland Railway Company (11 Ch. D. 611), were relied upon. But the houses had been standing more than 30 years when the gasworks were erected, and, primâ facie, had gained by prescription a right to support founded upon an implied grant. The right to light depends upon section 3 of 2 & 3 Will. 4, c. 71, and, as Lord Westbury pointed out in Tapling v. Jones (11 H. L. C. 290), does not rest on any presumption of grant or fiction of license. Then as to the contractors, I fail to follow the argument that there can be no negligence unless there is a neglect of duty, and they owed no duty to the plaintiff. They excavated on the company's land, and the result of this excavation was wrongfully to remove part of the plaintiff's soil, and to cause the land above to subside and damage his buildings. As to the relief, I must grant an injunction, but not so as to prevent the erection of a gasholder not exceeding 68 feet in height, and, as the trench is finished and no further subsidence has taken place, 3401. damages in respect thereof against all the defendants.

Judgment for plaintiff.

Solicitors for the plaintiff : Bell, Brodrick and Gray, for Laverack and Son, Hull.

Solicitors for the respondents: Collyer, Bristow and Company, for Stamp, Jackson and Birks, Hull.

Solicitors for the contractor: Jaques and Co., for Samuel Wright and Co., Bradford.

63 J. P. 149.

QUEEN'S BENCH DIVISION.

January 13.

YABBICOM . KING.

Local government - Building - Bye-laws Power of local authority to disregard— Bristol Improvement Act, 1847, ss. 35, 37-Bristol Corporation Act, 1897, s. 15. Unless the building bye-laws of a local authority expressly give a dispensing power the local authority are bound by them, and cannot effectively approve plans not in accordance with the bye-laws.

'Approval” in section 15 of the Bristol Corporation Act, 1897, means a legally valid approval.

Re McIntosh and Pontypridd Improvement

Commissioners, 8 T. L. R. 203, followed. Case stated by two justices in and for the city and county of Bristol.

At a petty sessions holden on the 10th of May, 1898, at the petty sessional courthouse, Bristol, in and for the city and county of Bristol, an information preferred on the 30th of March, 1898, by Thomas H. Yabbicom (hereinafter called the appellant) against Edward King (hereinafter called the respondent) under section 35 of the Bristol Improvement Act, 1847. charging that the respondent unlawfully did erect a eertain house contrary to the provisions of the said Act, inasmuch as he omitted to build a parapet to the said house, was heard and determined by us (the said parties and their solicitors being respectively present), and upon such hearing we dismissed the said information subject to the following case :1. The facts proved at the hearing of the said information were the following, namely, the house mentioned in the said information was erected by the respondent at Red-hill, in the parish of St. George, in the city and county of Bristol, at a date subsequent to the 31st of October, 1897, being the date of the commencement of the Bristol Corporation Act, 1897.

Prior to the commencement of the Bristol Corporation Act, 1897, the parish of St. George was situated in the urban district of St. George, in the county of Gloucester, and that by the provisions of that Act the parish became part of the city and county of Bristol.

63 J. P. 149. The said house was one of a continuous row of houses, and that the walls separating the said house from the adjoining houses on either side were party walls.

The said house was erected in accordance with a plan deposited by the respondent with the urban district council of St. George before the 12th of June, 1896. The said plan did not comply with bye-law 26, made under section 157 of the Public Health Act, 1875, and then in force in the urban district of St. George (which bye-law is hereinafter set out), in that it showed that the party walls of the said house were not intended to be carried up above the roofs of the said adjoining houses, as required by the said bye-law; but notwithstanding such noncompliance, the said urban district council purported to approve the said plan on the said 12th of June, 1896, which approval was endorsed on the said plan as follows:ST. GEORGE URBAN DISTRICT COUNCIL. Plan approved 12th of June, 1896. (Signed) A. G. Verrier,

Presiding Chairman. 2. The Bristol Improvement Act, 1847, enacts as follows:-Section 35: "All separate side walls or party walls shall be well and closely lined up to the underside of the slates upon the roof of the building, and the parapets of the height and thickness as specified for party walls shall be built on such side walls or party walls."

66

Section 37: Every parapet, wall, and every party wall hereafter to be erected within the city and county shall be carried up at least two feet above the slates or other covering of the roof of the premises adjoining."

The aforesaid bye-laws of the urban district of St. George, dated 4th of November, 1885, which were admitted in evidence by us, though objected to by the respondent, provides (section 26):-"Every person who shall erect a new building shall cause every party wall of such building to be carried up nine inches at the least in thickness

"(1.) Above the roof, flat, or gutter of the highest building adjoining thereto to such height as will give in the case of a building of the warehouse class or of a public building a distance of at least 3 feet, and in the case of any other building a distance of at least 15 inches measured at right angles to the slope of the roof, or above the highest part of any flat or gutter as the case may be."

YABBICOM . KING.

The Bristol Corporation Act, 1897, enacts as follows:

Section 15: "All bye-laws, rules, and regulations and all orders (other than precepts) made by the urban district councils or the local authorities respectively (so far as they relate to the added area) under any Act of Parliament, and in force at the commencement of this Act, are hereby annulled, but all penalties incurred thereunder, and all forfeitures which may have ensued by reason thereof, may be enforced and recovered by the corporation in like manner and in all respects as the same respectively might have been enforced and recovered by the respective councils and local authorities, as the case may be, in case this Act had not been passed, and shall be carried by the corporation to the credit of the district fund. Provided that all plans of new streets and of new buildings within the added area approved of by the urban district councils or the local authorities respectively, upon the commencement of this Act, shall be valid for the period of two years after that date, but at the expiration of that period fresh plans of such new streets and new buildings as shall not at that date have been commenced shall be deposited for the approval of the corporation, which plans shall be in conformity with the bye-laws, rules and regulations in force within the city.”

Section 30 (1): "Except as by this Act otherwise expressly provided all the jurisdiction, powers, rights, privileges, authorities, immunities, and duties of the corporation as a municipal body, and of the council of the existing city, and any committee thereof, acting on the execution of such enactments as are at the commencement of this Act in force within the existing city, and of the corporation as the urban sanitary authority for the district, or any committee thereof, shall extend to and throughout the city; and all charters and enactments, and all bye-laws, orders and regulations, lists of tolls, tables of fees and payments, and scale of charges at the commencement of this Act, in force within and applicable to the existing city, or to the burgesses or inhabitants thereof, shall, subject to the provisions of this Act, extend and apply to the city and the inhabitants and burgesses thereof, until, or except in so far as, any of such bye-laws, orders, regulations, tolls, fees, payments, or charges may be repealed or altered."

63 J. P. 149.

3. The appellant contended that on the authority of Re McIntosh and Pontypridd Improvement Commissioners, 8 T. L. R.128, 203, the approval of the urban district council of St. George of a plan contravening the byelaws of the urban district of St. George was a nullity; that the proviso in section 15 of the Bristol Corporation Act, 1897, applied to cases where the bye-laws of the urban district council of St. George differed from the byelaws, rules and regulations in force within the city, and preserved for two years the right to build in accordance with approved plans complying with the bye-laws of St. George, but that it did not make valid a plan which had been illegally approved; that the case must be regarded as though no plan had been approved by the district council; that the respondent's house must therefore comply with the Bristol Improvement Act, 1847, and that by sections 35, 37 of that Act the respondent was obliged to erect parapets on the party walls of his house, and to carry up the said party walls at least two feet above the slates or other covering of the roofs of the adjoining premises.

4. The respondent contended that as the district council of St. George had in fact approved of the plan of his house, he was entitled, under the proviso to section 15 of the Bristol Corporation Act, 1897, to build the house in accordance with the plan, and that we had no authority to inquire whether the plan did or did not comply with the byelaws of the urban district of St. George, nor whether the approval of the plan was or was not valid.

5. We were of the opinion that the respondent's construction of section 15 of the Bristol Corporation Act, 1897, was correct. We were also of the opinion that sections 35, 37 of the Bristol Improvement Act, 1847, did not make it obligatory to build parapets on party walls of buildings erected in the city, but merely required that, if any parapets were built, they should be of the height and thickness therein specified.

6. The questions of law arising on the above statement of facts are whether our construction of section 15 of the Bristol Corporation Act, 1897, and sections 35 and 37 of the Bristol Improvement Act, 1847, was correct. Whereupon the opinion of the said court is asked upon the said questions of law. Whether or not we, the said justices, were correct in our determination as