An old highway formed a boundary between the parish of C., in the county of London, and the parish of H., in the county of Middlesex, the actual boundary being nearly in the centre of the road. Before 1856, the year the Metropolis Management Act, 1855, came into operation, buildings had been erected on the H. side of the road along nearly the whole of its length, but on the C. side there were only a few buildings. Since 1856 the greater part of the C. side of the road had been covered with build. ings, and in 1898 a sewer had been constructed on the C. side for draining the houses on that side, and the cost was apportioned on the frontagers on that side as being a "new street" within the Metropolis Management Acts. A summons having been taken out against a frontager for the apportioned cost of the sewering, the justices held that the road taken as a whole was sufficiently built upon to be a street before the Metropolis Management Act, 1855, came into operation, and dismissed the summons. Held, that the road must be dealt with as a whole; that the C. side of the road could not be dealt with by itself for the purpose of determining whether it was a new street within the meaning of the Metropolis Management Acts so as to render frontagers on that side liable to the cost of the sewering; that the justices were right in dismissing the summons. Case stated by justices in and for the county of London, sitting at the Highgate Petty Sessions. 65 J. P. 54. A complaint was preferred by the appellants under the Metropolis Management Act 1862, against the respondents that the appellants during the years 1897 and 1898, in accordance with the provisions in that behalf of the Metropolis Management Acts, executed or caused to be executed, certain works, to wit, the construction of a sewer and the works appertaining thereto, including the costs of gulleys, side entrances, lengths of sewer at the intersection of streets, with the necessary manholes and inspection chambers, and other incidental charges and expenses under the said Acts in or in part of a new street known as Colney Hatch-lane for or in respect of certain premises in the said street of which the respondents were the owners, and that the appellants had thereby incurred expenses, of which the amount apportioned in respect of the respondents' premises were 130l. 6s. 8d. and 71. 2s. 10d. respectively, and that the respondents had not paid the said sums or any part thereof. Colney Hatch-lane is an old highway form. ing the boundary between a detached portion of the parish of St. James and St. John, Clerkenwell, in the county of London, and the parish and urban district of Hornsey, in the county of Middlesex. The actual boundary is nearly in the centre of the lane, but the greater part of the surface is within the parish of Clerkenwell. Before the year 1856, when the first of the Metropolis Management Acts (18 & 19 Vict. c. 120) came into operation, buildings had been erected on the Hornsey and Middlesex side of the lane. There were at that time only about seven or eight buildings at various points. The entire length of the lane is 2,993 feet, and the character and extent of the said buildings is shown on the ordnance map published in 1862. Since the year 1856, and more particularly since the last few years, the remainder of the Clerkenwell or London side has been laid out for building, and the greater part of the frontage to the lane is now covered with buildings. In or about the year 1887 the Hornsey Local Board laid out a sewer on their side of the lane for the drainage of the houses in their district. By agreement between that board and the appellants, two of the houses on the Clerkenwell side were drained into such sewer until the sewer mentioned in paragraph 2 of this case was constructed, and VESTRY OF ST. JAMES AND ST. JOHN, CLERKENWELL v. EDMONDSON & SON. by agreement between the same board and the owners of two other houses on the Clerkenwell side, those owners connected their drains with the Hornsey sewer. The sums paid by such owners to the Hornsey Local Board under the said agreement were repaid to them by the appellants when their drains were connected with the said sewer mentioned in paragraph 2 of this case. On the Clerkenwell side of the lane there was no sewer of any kind, save a surface water sewer, which had been laid for the drainage of the road itself partly by the owners of the adjoining land and partly by the appellants, and for a short distance an old brick sewer running obliquely across the lane and taking the drainage of three or four houses on that side. The old houses at the south end of the lane on the Clerkenwell side were drained into a sewer behind these houses running into another parish. The part of the parish of Clerkenwell which comprises the eastern side of Colney Hatch-lane is wholly detached from the rest of the parish, and is entirely surrounded by the county of Middlesex. For this reason it was found to be impracticable to provide an outlet into the metropolitan main drainage system from this part of the parish. By the Metropolitan Board of Works (Various Powers) Act, 1887, s. 44, the Metropolitan Board of Works (now the London County Council) were enabled by agreement with local authorities of certain adjoining districts or any of them to cause any sewer or sewers constructed or to be constructed by such board in the said detached portion of Clerkenwell to communicate with the sewers of one or more of such authorities, and an agreement for this purpose was made in the year 1896 by the London County Council with Friern Barnet Urban District Council, and an outlet for the sewage of the said detached part of Clerkenwell into a sewer of the said county council, and thence into the Friern Barnet sewers was provided in pursuance of the said agreement in the year 1897. As soon as such outlet was provided the appellants laid the sewer which is the subject of this case, for the drainage of the houses and buildings which there were or might thereafter be erected on the Clerkenwell or London side of the lane, and such sewer was completed in the year 1898. 65 J. P. 54. The total cost of the sewer and the works appertaining thereto was 1,106l. 14s. 5d., of which the appellants charged the sewer rate 1037. 78. 3d., and apportioned the balance among the owners of the premises on the Clerkenwell side of the lane according to the frontage of their respective premises. The amounts apportioned in respect of the respondents' premises were 1301. 6s. 8d. and 71. 2s. 10d. respectively. These sums were duly demanded, and the respondents having refused to pay them, a complaint was preferred as above-mentioned under the Metropolis Management Act, 1862, ss. 52 and 53, and came on before us on the 16th of May, 1900. It was contended before us that so much of Colney Hatch-lane as is within the parish of Clerkenwell was a new street within the meaning of the Metropolis Management Act; that it had become a new street by reason of the erection of buildings fronting it as above mentioned; that in order to determine whether it had become a new street no regard could be had to the portion of the lane in the parish of Hornsey, or to the buildings on the Hornsey side, these being in a different parish, district, and county, and subject to entirely different statutes. It was contended on behalf of the respondents that Colney Hatch-lane, taken as a whole, had become a street in the ordinary sense of the term by reason of the buildings erected along it before the year 1856, and was an old street when the Metropolis Management Act, 1855, came into operation; that no part of such street could become a new street subsequently, by reason of the erection of additional buildings along it, and that the portion of the lane which is in Clerkenwell could not be dealt with by itself without regard to the portion which is in Hornsey, or to the buildings on the Hornsey side, for the purpose of determining whether it was a new street within the meaning of the Metropolis Management Acts. We found that Colney Hatch-lane, taken as a whole, was sufficiently built upon to be a street before the Metropolis Management Act, 1855, came into operation, and we were of opinion that that portion of the lane which is in Clerkenwell could not be dealt with by itself for the purpose of determining whether it was a new street, and for these reasons we dismissed the summonses. VESTRY OF ST. JAMES AND ST. JOHN, The question for the opinion of the court is whether that portion of Colney Hatchlane which is in Clerkenwell can be dealt with by itself without regard to the portion which is in Hornsey, or to the buildings on the Hornsey side, for the purpose of determining whether it is a new street. If the court is of opinion that it cannot, then the said summonses are to stand dismissed. If the court is of opinion that it can, then it is requested that this case may be remitted to us with the opinion of the court thereon in order that due effect may be given thereto. Dated the 2nd day of August, 1900. The Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), provides as follows: Section 52: "Where any sewer shall, after the passing of this Act, be constructed by any vestry or district board, in or for the drainage of any new street, or of any house or houses erected since the 1st of January, 1856, the expense of constructing such sewer, and the works appertaining thereto, including the costs of gulleys, side entrances, lengths of sewer at the intersection of streets, and other incidental charges and expenses shall be borne and defrayed by the owners of such street or houses, and of the land bounding and abutting on such street respectively, and the said expenses shall be apportioned by the vestry or district board in such proportions as they may deem just." 66 Section 53: Where any sewers shall be constructed by any vestry or district board in a street in which, previously to such construction, there had been no sewer or only an open sewer, but where sewers rates have been levied previously to such construction, the expense of constructing such sewer and the works appertaining thereto. . . shall be borne and defrayed in part only by the owners of the houses situated in and of the land bounding and abutting on such street respectively, &c." Macmorran, Q.C. (C. F. Pritchard with him), for the appellants.-The question is whether this lane, half of which is in the metropolis and the other half in Middlesex, 65 J. P. 54 is a new street within the meaning of these Acts. The justices went on a wrong basis in assuming that the road must be treated as a whole. "Street" is defined in section 250 of the Act of 1855 (18 & 19 Vict. c. 120), and includes " a part of any such highway, &c.," and "new street" is defined in section 112 of the Act of 1862, and it applies to "all streets hereafter to be formed or laid out" and a part of such street." The definition of "new street may not apply here, but the expressions show that the words "street" and " new street" apply not only to the whole street, but to a part of such street. Although this lane was an old highway it had become a new street by the erection of these buildings on the Clerkenwell side since the passing of these Acts. This half of the road-the Clerkenwell half-is a street in itself and was not so in 1856, though the lane as a whole was found to be a street, but the Clerkenwell side was not then a street in the ordinary acceptation of the term. The half of the road on the Clerkenwell side can be dealt with by itself as a street and a new street, and in fact had to be so dealt with and ought to be considered by itself. It is the same as if there were a fence down the middle of the road along the boundary line, and in that case there would be houses on the one side and a fence on the other side. Instead of considering the lane as one street there are, in fact, two streets, that on the Hornsey side being in the county of Middlesex, and that on the Clerkenwell side being in the county of London. The justices were therefore wrong in holding that the Clerkenwell side could not be dealt with by itself. He cited Pound v. Plumstead District Board of Works, L. R. 7 Q. B. 183; 35 J. P. 772; Richards v. Kessick, 52 J. P. 756. Alexander Glen.-The justices were right in treating this road as a whole. Two questions arise-whether this road is a street, and if so whether it is a "new street." The Clerkenwell half of the street is the half of an old street, and having once had this characteristic impressed upon it, cannot afterwards acquire a new character. This road, taken as a whole, had the character of a street, and had, in fact, become a street by the erection of buildings on the Hornsey side before the year 1856. This highway having had impressed upon it the character of a street before 1856, and being then an old street, no VESTRY OF ST. JAMES AND ST. JOHN, CLERKENWELL v. EDMONDSON & SON. part of it can afterwards become a new street, and the justices were right in so holding. He cited Simmonds v. Fulham Vestry, [1900] 2 Q. B. 188; 64 J. P. 548; White v. Fulham Vestry, 60 J. P. 327; Fulham Board of Works v. Goodwin, 1 Ex. Div. 400; 41 J. P. 134. Macmorran, Q.C., in reply. Cur. adv. vult. Nov. 16.] Lord ALVERSTONE, C.J.-This case is an appeal from a decision of the justices of the county of London sitting at Highgate on a summons to enforce the payment of two sums of 1301. odd and 71. odd. portions of the expense of making a certain sewer in Colney Hatch-lane which had been charged on the defendants, the respondents in this case, as frontagers. The facts are, and are so found in this case, that Colney Hatch-lane is an old highway forming a boundary between a detached portion of the parish of St. James and St. John, Clerkenwell, in the county of London, and the parish and urban district of Hornsey, in the county of Middlesex. The actual boundary is nearly in the centre of the lane, but the greater part is within the parish of Clerkenwell. The case then goes on to state that "before the year 1856, when the first of the Metropolis Management Acts came into operation, buildings had been erected on the Hornsey or Middlesex side of the lane along nearly the whole of its length, but on the Clerken. well or London side of the lane there were at that time only about seven or eight buildings at various points." The case then states the facts as to the construction of the sewer, and the justices having stated the facts which gave rise to this claim, proceed to say: "We found that Colney Hatch-lane, taken as a whole, was sufficiently built upon to be a street before the Metropolis Management Act, 1885, came into operation, and we were of opinion that that portion of the lane which is in Clerkenwell could not be dealt with by itself for the purpose of determining whether it was a new street." The summons was taken out and the expenses had been apportioned under sections 52 and 53 of the Metropolis Management Amendment Act of 1862, whereby if drainage is done in a new street, the expenses can be apportioned on the frontagers. Speaking for myself, I should have been glad if I could have seen my way to adopt the argument 65 J. P. 54. for the appellants. I think there is a great deal to be said for the view that it was, so far as the county of London and the parish of Clerkenwell are concerned, substantially a new street, and the sewer being put down in the new street it ought to have fallen within the rule which was applied in the Plumstead case (ubi supra). Of course, we do not sit here to review findings of fact, and I might go further and say that there is no reason to doubt or even to criticise the findings of fact; but in this case the justices have found as a fact that Colney Hatchlane had become a street before 1856. I think the street for this purpose must be taken to be the whole road. I think the justices must be taken to have found that the portion of the street which was in Clerkenwell is included within the road which had become a street at the date that was mentioned, and I do not think it is open to the appellants to argue that for the purpose of this section the part of the road so forming part of the street can be regarded as having become a new street, because building on that side of it has been carried on very extensively since the year 1862. I think the point taken by the learned counsel for the respondents forms a strong argument that if the boundary had happened to run just upon the other side of the Hornsey side of the road even though a new street had been put down before there had been a large amount of fresh building, it would have been impossible to divide the road, but whether that is a conclusive argument or not, I think in the face of these findings we must come to the conclusion that the justices have arrived at a right finding in saying that they cannot treat the particular portion of Colney Hatch-lane, which is in the county of London, as a new street for the purposes of section 52 of the Act of 1862. For these reasons I think the appeal must be dismissed with costs. KENNEDY, J.-I am of the same opinion I think we fully appreciate the argument for the appellants, and the suggestion that practically the street may be treated, for the purpose of the parish of Clerkenwell, as a street of which one side is not the other side of the road physically, but is a line drawn at the boundary of the jurisdiction of Clerkenwell, running longitudinally through the highway. But it appears to me that, in the absence of authority, to create one more VESTRY OF ST. JAMES AND ST. JOHN, CLERKENWELL v. EDMONDSON & SON. artificiality in the understanding of a "street" and "new street," is clearly not to be desired; and in the face of the finding of the magistrates, from which I see no reason to differ, in following what I may call the primary and natural sense of the words "street," and "new street," we do not violate any interpretation of those terms as given by the courts in reference to kindred Acts of Parliament. I prefer to say that the view taken by the magistrates is right, that they are right in law, and that there is nothing to find fault with. Appeal dismissed; leave to appeal. Solicitors for the appellants: Boulton, Sons and Sandeman. Solicitors for the respondents: Tatham and Hardy. 65 J. P. 56. CHANCERY DIVISION. October 30, 31; November 10, 1900. NEAVERSON v. PETERBOROUGH RURAL DISTRICT COUNCIL. Inclosure award-Unallotted land-Private road-Right of pasture-Presumption of lost grant. Certain lands were allotted by Inclosure Com missioners in 1822 in pursuance of 52 Geo. III. c. 143. The commissioners were directed to set out certain roads, and section 21 provides that the herbage of the public and private roads should belong to and be the property of the person or persons to whom the commissioners should allot and award the same. Amongst other roads awarded was one private carriage, bridle, and drift road and footpath distinguished by the name of M.-road of the breadth of 40 feet." The award provided that all the grass and herbage which should from 66 65 J. P. 56. time to time grow and arise upon all the private roads set out should belong to and be the property of the surveyor of highways to be appointed for the common, to be by him let annually for the depasturing of sound and healthy sheep, but of no other cattle or stock whatever, at and for the best rent or rents that could be reasonably obtained, and that the rents should be applied in defraying the costs of maintaining the public and private roads. The herbage on the roads was let publicly by auction without any restriction providing for the depasturing of sheep only for more than 50 years. The plaintiff occupied a farm on one side of M.-road, and claimed an injunction to restrain the defendants (a rural district council, in the character of surveyor of highways, and its tenant) from grazing or pasturing horses, cattle, and stock other than sound and healthy sheep on M.-road. It was proved that the plaintiff had formerly hired M.-road and grazed cattle there, and received money for the right of turning cattle thereon. Held, that the soil of M.-road became vested in the owners of adjoining allotments, including that of which the plaintiff was an occupier, subject only to a right of way and to the right of the surveyor of the highways to the herbage thereon. Held, also, that a lawful origin ought to be presumed from long usage and a lost grant by the owners of the soil of the road by virtue of which the surveyors were released from the restriction as to the mode of grazing imposed by the award must be presumed. The plaintiff was the occupier of a farm adjoining on Moor-road, a private road, from which it is separated by a ditch and low hedge. An Act for draining, inclosing, and improving the lands called Borough Fen Common and Four Hundred Acre Common, in the county of Northampton, and for forming the same into a parish to be called Newborough, and for building and endowing a church for such parish (52 Geo. III. c. 143), provided for the appointment of commissioners and the allotment of the common. Certain roads were to be set out |