PIGGOTT v. GOLDSTRAW.

of the highway was legally inadmissible as evidence, by reason of their not having acted in the same manner as such other individuals, of a contrary intention on the part of lessees of the premises in question.

(2) That under the circumstances of the case the evidence of public user was not evidence of dedication.

(3) That the acts of the corporation as highway authority were not evidence of an intention on its part as owner of the freehold.

(4) That there was no evidence of a dedication by the corporation as owners of the freehold with the consent of any lessee.

(5) That even if the said embayments had been dedicated so as to form in November, 1899, a part of the highway, there was no evidence of an offence within section 69 of the Towns Improvement Clauses Act, 1847.

(6) That the act of the defendant was authorised by section 36 of the Liverpool Improvement Act, 1882.

7. On the facts aforesaid I found that the embayments had been dedicated to public use as part of the highway, and that the said windows or shop fronts having been erected in front of the building, No. 16, Churchstreet, so as to enclose the embayments, were obstructions to the safe and convenient passage along the said street, and therefore convicted the defendant as above stated.

8. The question for the opinion of the court is whether there was any evidence before me to justify my said findings. If the court is of opinion that there was, then the said conviction is to stand, if the court is of opinion otherwise, then the said conviction is to be quashed, or the court is to make such other order in the premises as the case may, in their opinion, require.

Given under my hand and seal this 23rd of August, 1900.

(Signed) JOHN KINGHORN. Section 69 of the Towns Improvement Clauses Act, 1847 (10 & 11 Vict c. 34), provides that " the commissioners may give notice to the occupier of any house or building to remove or alter any porch, shed, projecting window, step, cellar, cellar door, or window, sign, signpost, &c., in front of any house or building within the limits of the special Act, and which is an obstruction to the safe and convenient passage along any street,

65 J. P. 259. and such occupier shall within 14 days after service of notice remove such obstruction and alter the same," &c.

Section 36 of the Liverpool Improvement Act, 1882 (45 & 46 Vict. c. lv.): "It shall not be lawful without the written consent of the corporation to build or bring forward the main outer face of any external wall beyond the building line in any street or to construct, build, or make place or fix any projection beyond the building line in any street or over or upon the surface thereof except in accordance with the following regulations."

The

Joseph Walton, Q.C., Leslie Scott, and Dennis O'Conor, for the appellant. — The question arises under section 69 of the Towns Improvement Clauses Act, 1847, but does not turn on the construction of the section. The learned magistrate was wrong in holding that there was a dedication of the embayments to public use as part of the highway. What was done was no dedication. passage of the public over the embayments was no evidence of intention of the appellant to dedicate them to public use. The shop front within the embayments exhibited goods in the windows, and to enable persons passing along to see the goods they had to use the embayments, which were open for that purpose to the public-cleaning and repairing the embayments at the same time as the footway, does not prove any dedication. They cited Wood v. Veal, 5 B. &. A. 454; Baxter v. Taylor, 4 B. & Ad. 72.

Macmorran Q.C., and Horridge, for the respondent. The learned magistrate was right in finding there had been dedication to the public of the embayments. It was a question of fact for the magistrate to deal with on the facts. He has so dealt with this case and the only question is whether there was evidence so to justify his finding. The embayments were not marked off from the paving of the footway. When it is intended to show such places to be private property, there is generally some mark of some kind or other; here there was no line or mark. The user by the public without objection by appellant is also evidence of dedication. The cleaning and repairing of the paving of the embayment at the same time as of the footway by the corporation would be evidence on their part to dedicate the embayments to the public use. They cited Poole v. Huskisson, 11 M. & W. 827;

PIGGOTT v. GOLDSTRAW.

Vernon v. Vestry of St. James, Westminster, 16 Ch. Div. 449; Reg. v. Inhabitants of East Mark, 11 Q. B. 877.

Joseph Walton, Q.C., in reply.-The facts here are as consistent with an intention not to dedicate as with an intention to dedicate, and therefore it must be taken that there was no dedication, per Byles, J., in Dawes v. Hawkins, 8 C. B. (N. S.) 848, at p. 860, 25 J. P. 502, at p. 503; Reg. v. Hawkhurst, 27 J. P. 262; Grand Junction Canal Company v. Petty, 21 Q. B. Div. 273; 52 J. P. 692; Greenwich Board of Works v. Maudslay, L. R. 5 Q. B. 397; 35 J. P. 8.

Cur, adv. vult.

BRUCE, J.-In this case I have felt considerable difficulty, not because I had any doubt about the conclusion which I think ought reasonably to be drawn from the evidence, but because of the nature of the question stated for the court. We cannot review the decision of the learned magistrate if there was any evidence to justify his finding that the embayments had been dedicated to public use as part of the highway. I was during the argument inclined to think that, slight as the evidence was, it was yet difficult to say that there was no evidence to support the finding. But now having given the case very careful consideration, I have come to the conclusion that the evidence relied on as evidence of dedication amounts to nothing; that is, it is as consistent with an absence of an intention to dedicate as it is with an intention to dedicate. So far as the user by the public is concerned there is no preponderance of evidence either way, and that, therefore, according to the judgment of Byles, J., in Dawes v. Hawkins (supra), there is no balance of probability in favour of either hypothesis. As regards the acts of the corporation, who are the owners of the freehold, I think that, taken together as a whole, they tend to show that the corporation had no intention to dedicate, and did not dedicate, the embayments to public use as part of the highway, and that they did not acquiesce in any dedication by the tenant. The embayments in question existed on the ground floor of a building which was built in the year 1869. The upper part of the building overhung the embayments and the main wall of the building on either side of the embayments projected beyond the embayments to what I may call the building line. Within the two embayments

65 J. P. 259.

to which importance is attached in this case were windows, which were used for the exhibition of shop goods. But I gather from the plan annexed to the case that in the same building there was a third embayment in which was the doorway to the premises These embayments, I gather from the plan were 10 or 11 inches deep. The public passing along the street were allowed to pass in, and taking into consideration that the building was used as a shop it seems to be obvious that the very object of the embayments occupied by the windows were to invite passers-by to look at the goods exhibited in the windows, and the object of the embayment occupied by the door was to make a convenient entrance into the shop. To prevent the public passing along the street from passing into the embay ments would be to defeat the very object for which they were formed. No one has suggested, and no one could suggest, that the passing of the public into and out of the embayment forming the door can be treated as forming any evidence of a dedication. In order to make an easy access to a shop it is quite common to set back the door a foot or more from the front line of the building, and it would, as it seems to me, be a very startling thing to say that because passers-by who do not use the shop are free to pass over this space, such passage by the public is to be regarded as forming evidence of dedication. If the user of the embayment forming the door gives rise to no presumption of dedication, why should the embayments forming the windows? If the one embayment was formed and used for convenience of customers, or of those whom it was hoped to attract as customers, were not the other embayments formed and used for the purpose? If the owner of a piece of land leaves a portion of it unbuilt upon for the purpose of his own convenience and for the use of his customers, the user of the land by his customers is no evidence of dedication to the public, and if he is not able to exclude the public without at the same time excluding his customers or those whom he hopes to attract as customers, the user by the public does not necessarily raise a presumption of dedication. It is said by counsel for the respondent that if the window embayments had been paved with pavement of a kind different from the rest of the footway, or had been marked off by

PIGGOTT . GOLDSTRAW.

a line or division in the pavement, then that would have indicated that there was no intention to dedicate. It may be so, but why? Because it would, it is said, have made it apparent that the embayments were formed for the advantage of the occupier of the building. But the difference in the kind of pavement would not have restrained in any way the user by the public. The user by the public would have been just the same; the line or division in the pavement would only have made emphatic what I think is sufficiently apparent from the form in which the building was constructed, and the manner in which it was used. It is not to be left out of consideration that the embayments were but very small spaces. The two window embayments, I gather from the scale on the plan, were each about 5 feet in length and 10 or 11 inches deep. In deciding whether there is evidence of dedication the circumstances of each case must be considered, and it is not reasonable, as it seems to me, to draw a conclusion that the owner of the house, because he did not take active measures to protect his rights over those small spaces, therefore intended to abandon his rights and to dedicate the land as part of the public way. In nearly every case of a large building fronting on a street the door of the building is fixed on the inner side of the stone jamb; the stone jamb is generally some inches in thickness, so that when the door is shut there is a space of a few inches between the outside of the door and the building or street line; yet no one would infer any intention on the part of the owner of the building to dedicate this space of a few inches to the public. Now with reference to the acts of the corporation. It is said the embayments were cleansed and repaired by the corporation of Liverpool in its capacity of highway authority. It is difficult to understand how it would be possible for the besom of the highway authority to sweep the footway without sweeping, at the same time, the embayment; and it would, I think, be obviously out of the question to assume that because the corporation as highway authority swept the embayment, and the corporation as owner of the property made no objection, therefore there was an intention on the part of the corporation as owners to declare a right of passing over the embay. ments. Indeed this point about cleansing of the embayments was hardly insisted upon

65 J. P. 259.

by counsel for the respondent. But I think that the paving of the embayments stands upon the same footing. The paving of an inappreciable breadth of 11 inches affords no presumption of dedication by the owner. But the important fact which seems to throw light upon the acts of the corporation is that after the new building was erected and the alleged obstruction created the corporation granted, on the 25th of March, 1900, a new lease of the premises. The new building was erected in November, 1899. I think it is impossible, if the corporation had intended to dedicate a right of passage over the embayments to the public, that they would have granted a lease of the new premises which were so built as to obstruct the passage of the public over the embayments.

PHILLIMORE, J.-I am of the same opinion. I am so entirely in accord with the views which have been so well expressed by my learned brother that it is unnecessary for me to add anything.

Appeal allowed.

Solicitors for the appellant: Preston, Stow, and Preston, for Gamon, Farmer and Company, Liverpool.

Solicitors for the respondent: F. Venn and Company, for E. R. Pickmere, Liverpool.

65 J. P. 261.

QUEEN'S BENCH DIVISION.

January 22.

HOARE v. RITCHIE AND SON.

Local government-Factory - VentilationDust-Injury to workers-EvidenceFactory and Workshop Act, 1878 (41 Vict. c. 16), s. 36.

The respondents were summoned for that they, being occupiers of a factory where dust was generated and inhaled by the workers to an injurious extent, failed to provide, use, and maintain a fan or other mechanical means for preventing such inhalation within a reasonable time after due notice had been given by the appellants.

Held, that it was unnecessary to prove by evidence that any worker had sustained actual injury, but that it was enough to show that dust was generated to such an extent that its tendency was necessarily injurious to the health of the workers in course of time.

Case stated by the police magistrate for the county borough of West Ham.

1. An information was laid by the appellant (who is one of her Majesty's inspectors of factories) under section 36 of the Factory and Workshop Act, 1878, as extended by section 33 of the Factory and Workshop Act, 1895, and alleged that the respondents, being the occupier of a certain jute mill, the same being a factory within the meaning of the Factory and Workshop Acts, 1878 to 1895, wherein on or about the 18th of May, 1900, an impurity, to wit, dust, was generated and inhaled by the workers to an injurious extent, did fail to provide, use, and maintain a fan or other mechanical means of a proper construction for preventing such inhalation within a reasonable time after due notice had been given by the appellant.

The following facts were proved before

me:

2. The respondents are the occupiers of a jute mill at Carpenters-road, Stratford, in the county borough of West Ham, the same being a factory within the meaning of the said Acts. In the "preparing" and "batching" rooms in the said factory during

65 J. P. 261. the month of April, 1900, dust in large quantities was generated by the process there carried on. This dust consisted of jute fibre mixed with a small quantity of common dust. There was nothing of a poisonous character in the dust. The use of fans as recommended by the appellant would reduce the amount of dust in the atmosphere inhaled by the workers. On the 17th of April notice to provide such fans within one month was duly served on the respondents by the appellant, but the respondents failed to comply therewith.

3. Some 120 persons are employed in the rooms in question. Of these, several selected by the appellant, were medically examined on his behalf. Several more, also selected by the appellant, were called as witnesses. The evidence, however, failed to prove that any of the workers had suffered any injury to their health from inhaling the dust generated by the process there carried on.

4. The appellant contended that dust in large quantities in the atmosphere must be injurious to the workers, and that it was not necessary to prove that any of the workers had actually suffered injury to health.

5. I dismissed the summons on the ground that it had not been proved that the dust generated by the process had been inhaled by the workers to an injurious extent.

The question for the opinion of the court is whether I was right in my decision. If so, the dismissal by me of the information is to stand. If not, the case is to be remitted to me with the opinion of the court thereon. ERNEST BAGGALLAY.

The Factory and Workshop Act, 1878 (41 Vict. c. 16), s. 36, provides: "If in any factory or workshop where any process is carried on by which dust is generated or inhaled by the workers to an injurious extent it appears to an inspector that such inhalation could be to a great extent prevented by the use of a fan or other mechanical means, the inspector may direct a fan or other mechanical means of a proper construction for preventing such inhalation to be provided within a reasonable time, and if the same is not provided, maintained, and used, the factory or workshop shall be deemed not to be kept in conformity with this Act."

Factory and Workshop Act, 1895, s. 33, provides: "Section 30 of the principal Act shall extend to any factory or workshop where any process is carried on by which any

HOARE v. RITCHIE AND SON. gas vapour or other impurity is generated and inhaled by the workers to an injurious extent."

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Daldy (H. Sutton with him) for the appellants. The magistrate was wrong. He seems to have thought because the Act says that the dust is inhaled by the workers to to an injurious extent," that it was necessary to give evidence that in fact some worker or workers had suffered in health in consequence. But this view would defeat the object of the Act, which is to prevent injury to workers, and it is quite sufficient to show that the dust was generated in such quantities, and in such way that it must necessarily affect the health of any workers exposed to it. [He was stopped.]

The respondents did not appear and were not represented.

BRUCE, J.-In my opinion the magistrate has not found the fact in this case which it was his duty to find. The question he had to decide was whether the dust was generated in such a way that there was a tendency to injure the workers exposed to it. It may be true that only after long exposure to this injurious dust that the worker showed signs of impaired health, but if there is so much dust in the air that it is necessarily injurious to health then I think there has been an infringement of the Act, and it is for the magistrate to find that fact, which he has not done in this case. It is unnecessary to prove that actual injury has been caused to the workers by the inhalation of dust. It is quite sufficient for the magistrate to find as a fact that the dust is generated to such an extent that it must affect the health of the workers exposed to it.

PHILLIMORE, J.-I agree. The case must be remitted to the magistrate to find whether or not as a fact the dust is generated and inhaled to an injurious extent by the workers, and not whether any particular worker has been injuriously affected.

Appeal allowed. Solicitor for the appellant: Solicitor to the Treasury.

He

The respondent, an inspector of food and drugs appointed by the county council, went into the appellant's shop and asked to be supplied with ". mercury ointment." was supplied with a box containing_ointment labelled " The ointment-mercurial poison," but the ointment contained a less proportion of mercury than the formula prescribed by the British Pharmacopoeia. Held, that although no mention of the British

Pharmacopoeia was made by the respon dent he should be deemed to have demanded that the ointment should be compounded according to the formula contained therein, and that the appellant ought to be convicted under the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6, of having sold a drug not of the nature, substance, or quality demanded by the purchaser."

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Held, also, that as mercury ointment was a compounded drug, such sale did probably constitute an offence under section 7 of the Act, but that it also constituted an offence under section 6 under which the proceedings were taken.

Case stated by justices in and for the West Riding of Yorks.

1. On or about the 9th of June, 1900, an information was laid before us by Arthur Randerson of Skipton, in the said Riding, inspector of food and drugs, appointed by the county council for the said Riding (hereinafter called the complainant) against one Dickins of Skipton, aforesaid, chemist (hereinafter called the defendant), under 38 & 39 Vict. c. 63, s. 6, for that the said defendant on the 14th of May then last at Skipton did unlawfully sell, to the prejudice of the complainant, the purchaser, a certain