thence to

highways, roads, and premises to the point marked —, and from at a point marked ; and to construct all other necessary works for all or any of the purposes aforesaid; and to make and construct all necessary tanks, and other works and sewers for receiving, storing, disinfecting, or distributing the sewage of the town of in or upon the said closes of land in

2. The course of the said sewer is indicated by a line drawn on the said plan from the points and from to.

to

And notice is hereby further given that a plan of the intended works, and of the land required and intended to be taken for the same, is now open for inspection at all reasonable hours, that is to say between the hours of 9 o'clock in the forenoon and o'clock at noon, and may be then seen at the office of the said Local Board

Clerk to the said Local Board.

For the purposes of the Act, the word "street" shall apply Street deto and include any highway not being a turnpike road, and any fined. road, public bridge (not being a county bridge), lane, footway, 11 & 12 Vict. square, court, alley, passage, whether a thoroughfare or not, and c. 63, s. 2. parts of any of them within the limits of any district.

the

The term "public highway" imports a road for carriages as well as for other purposes; but it has been held that it might mean a public bridleway only. (1) A further definition of the term highway, with reference to the 11 & 12 Vict. c. 63, $s. 68, 69, is given by the 15 & 16 Vict. c. 42, s. 13.

If under 11 & 12 Vict. c. 63, s. 45, a public sewer be made Sewers through private lands, it is not necessary for the Local Board through to acquire the land under the Lands Clauses Act, 1845, private and lands. 21 & 22 Vict. c. 98, s. 75, if nothing more is wanted than merely to make a sewer through the land, which is an easement only. (2)

and to the

With regard to a person acquiring a right to sewage water Right to flowing in a natural stream which would otherwise be pure, it sewage water would seem from Gaved v. Martyn. (3) that such right would not abstraction of necessarily be acquired by prescription, especially if the persons water from who had a right to divert the sewage from the stream chose to a natural do so. On the other hand, the abstraction of water from a stream. natural stream, openly and under a claim of right for a period of twenty years, to a tenement not abutting on the stream, will create no easement to have pure water flow down the stream to the point of abstraction. (4)

If a proprietor through misapprehension of his legal obli- Construction gation constructs a sewer upon his land for the opening of a new street, he is not bound to continue it, but may require the

of sewer through misapprehension

local authority to provide a new sewer. This was so held with of liability.

Construction

of sewer by Local Board out of their district.

Local Board

powers for purposes of

outfall or dis

tribution of sewage without their district, if necessary.

reference to a district under the Metropolis Local Government Act. (1)

It was held that under the 11 & 12 Vict. c. 63, sects. 43, 45, & 46, a Local Board have no power to make a sewer out of their own district against the will of the owner of the land through which they proposed to construct it; and that though under 21 & 22 Vict. c. 98, s. 30, they could go out of their district, this only gives a power to make reservoirs, etc., out of the district, where, and so far as they may be really necessary for the purposes of outfall and distribution of sewage, and does not authorize them to do so where they can keep within their own district by purchasing property. (2) By the Act to amend the Local Government Act, 1858, extended powers are now, however, given to the Local Board in this respect. Under that Act,

Local Boards may exercise the powers given by the 45th may exercise section of the Public Health Act, 1848, also without their district, for the purpose of outfall or distribution of sewage, upon making due compensation, to be settled in the manner provided in the 144th section of the Public Health Act, 1848. Provided always, that nothing herein contained shall give or be construed to give power to any Local Board to construct or use any outfall, drain, or sewer for the purpose of conveying sewage or filthy water into any natural watercourse or stream until such sewage or filthy or refuse water be freed from all excrementitious or other foul or noxious matter, such as would affect or deteriorate the purity and quality of the water in such stream or watercourse.

24 & 25 Vict.

c. 61, s. 4.

Previous

intended

works.

Ib. s. 5.

Provided also, That no sewer or other work shall be connotices of the structed or extended, under the 24 & 25 Vic. c. 61, s. 4, unless three months, at the least, before the commencement of such work, notice of the intended work, describing the nature thereof, and stating the intended termini thereof, and the names of the parishes, townships, and places, and the turnpike roads and streets, or places laid out or intended for streets, and other lands, if any, through, across, or under which the work is to be made, and naming a place where a plan of the intended work is open for inspection at all reasonable hours, shall be given by advertisement in one or more of the newspapers usually circulated in the place where the work is to be made, and a written or printed copy of such notice shall be served in manner directed by 11 & 12 Vic. c. 63, s. 150, on the owners or reputed owners, lessees or reputed lessees, and occupiers of the said lands, and on the overseers of such parishes, townships, or places, and the trustees, surveyors of highways, or others, having the care of such roads or streets.

Notice of intended works.

24 & 25 Vict. c. 61, s. 5.

(1) Clarke v. Paddington, 5 Jur. (N.S.) 138.

(2) Haywood v. Lowndes, 28 L. J.

Ch. 400; 5 Jur. (N.S.) 185; 32 L. T. 366.

Notice under § 5 may be in the following form :

Form of

Notice.

Notice is hereby given that the Local Board for the District 24 & 25 Vict. of in the County of by virtue of the powers con- c. 61, s. 5. ferred by the Public Health Act, 1848, the Local Government Act, 1858, and the acts amending the same, intend, after the expiration of (three) months from the date hereof, to lay down and construct, and afterwards to maintain a main sewer or drain (21) inches internal diameter commencing by a junction with an existing main sewer vested in the said Local Board of Health at at a point three chains or thereabouts south, and of and passing thence in a north-westerly direction through or at the several parishes, townships, and places following and terminating in the said township of

say,

in the

to

that is to
at a point
and at

And notice

of the westerly side of the road leading from
a distance of chains or thereabouts north of
is hereby further given that a plan of the said intended works, and
the lands and roads in, under, and through which the same are
intended to be laid, constructed, and taken now lies at the office
of the said Local Board for inspection between the hours of 9 in
the morning and 4 in the afternoon. Dated this

other

By order

Clerk of the said Board.

In case any of such owners, lessees, or occupiers or such If objection overseers, trustees, surveyors, or others as aforesaid, or any be made, the owner, lessee, or occupier, who would be affected by the work not to be proceeded proposed work, object to such work, and serve notice in writing with without of such objection on the Local Board at any time within the sanction of three months, the proposed work shall not be made or com- Local Governmenced without the sanction of the Local Government Board, after such inquiry and report as hereinafter mentioned (unless c. 61, s. 6. such objection be withdrawn). Service of such notice of 11 & 12 Vict. objection may be made upon the Local Board by being left c. 63, s. 150. at or sent through the Post Office, directed to the Local Board

at their office, or by being delivered there to their clerk personally.

ment Board,

24 & 25 Vict.

Inspector in such case to make inquiry on the spot,

Board.

It shall be lawful for the Local Government Board, upon application of any Local Board, to appoint an inspector to make inquiry on the spot into the propriety of any such work as aforesaid, and into the objections thereto, and to hold one or and report to more meeting or meetings for the purpose of hearing all persons the Local desirous of being heard before him on the subject of such in- Government quiry, and to report to such Local Government Board upon the matters with respect to which such inquiry was directed. If it appear to a Local Board that any premises were sufficiently drained before the construction of any new sewer they already may lay down, they may deduct from the amount of rates otherwise chargeable in respect of such premises such a sum and for such time as they may under all the circumstances of the case deem to be just.

Woolwich dockyard is exempted from the Act, and the local authorities of the district which includes the dockyard are

24 & 25 Vict. c. 61, s. 7. Premises

sufficiently drained.

21 & 22 Vict. c. 98, s. 29.

255392

Woolwich
Dockyard.

15 & 16 Vict.

c. 69, s. 2. Proceedings

restrained from entering upon or doing any works upon any lands vested in the Lord High Admiral, or in the MasterGeneral, or other principal officer of the Ordnance.

Where a Local Board of Health filed a bill for an injunction against Secre- to restrain the Secretary at War from stopping up a drain in tary at War the town within their jurisdiction, and thereby interfering with for interfering certain sanitary measures which they were carrying out; as with drains of there was no injury, or an invasion of the rights of the inhabitants of the town, caused by the proceeding of the Secretary at War, the injunction was refused. (1)

Local Board.

Existing liabilities preserved.

11 & 12 Vict. c. 63, s. 118.

Compensation for injury caused by works.

Ib. s. 144.

The same Local Board instituted a suit against the Secretary at War, as the owner, for filling up the ditch, thereby obstructing an ancient easement which they possessed in the flow of water through the ditch, and interfering with their right to the free use thereof for sanitary purposes. They claimed the easement with regard to the drainage of the whole district, whereas it appeared from the nature of the locality that the ditch could carry off only the surface water which collected on an undulating space of ground of 114 yards in length. The bill was, however, dismissed with costs, principally on the ground that the proper remedy for a Board of Health to resort to in such a case was under the Public Health Act, 1848. (2)

Notwithstanding the application of the Acts to any district, existing liabilities to defray the expense of making sewers, or any walls or works for protecting the land against the force or encroachments of the sea, or of paving or flagging or putting in order any street or part thereof within the district, are not discharged by the transference of the powers as to sewerage to the Local Board of the district, if such expenses were incurred previous to the application of the Acts to the district.

Though the Local Board are empowered to carry sewers through or under any lands, they cannot do so without making full compensation to all persons sustaining any damage thereby; to be settled, in case of dispute, by arbitration; or, if the claim do not exceed £20, by summary proceedings before justices.

Under the 11 & 12 Vic. c. 63, s. 144, only disputes as to the amount of compensation are to be settled by arbitration or by justices; and not disputes as to the liability to make compensation at all. (3) So again where the Thames Embankment Act, 1862, authorized the Metropolitan Board of Works to execute certain works in connection with the embankment, "making compensation to all persons having any interest in any wḥarves, jetties, quays, or other property taken for, or injuriously affected by, such works, or other the exercise of the powers of the Act," it was held that the payment, ascertaining, or depositing the amount of compensation in such case was not

(1) Felkin v. Herbert (Lord), 4 L. T. (N.S.) 433.

(2) Felkin v. Herbert (Lord), 11 L. T. (N.S.) 173.

(3) Reg. v. Burslem, 1 E. & E. 1077, affirmed in the Exchequer Chamber, ib, 1088.

a condition precedent to the commencement of the works which Compensation occasion the damage. (1.) As to what can be recovered in respect for injury of "damage," see Southampton and Itchin Floating Bridge Com- caused by pany v. Southampton, p. 107. As regards damage arising from works. the obstruction of the flow of water by the construction of sewers, see post, page 236. The right of the Local Board to enter upon the lands is absolute, and it is not a condition precedent that the damage to be sustained shall first be measured and ascertained. With reference to a somewhat similar provision in the Highway Act, it was held that the words in that Act do not make payment for the damage a condition precedent, for the duty to pay does not arise until after the Justices have at their Special Sessions settled the amount. (2).

If in the execution of works authorized by Act of Parliament damage be sustained, and the Act provides a special mode in which compensation for such damage may be recovered, no action will lie for it. But this only relates to works carefully and skilfully executed, and if there be a want of proper care and skill on the part of those executing the works, an action for the negligence, to recover damages for the injury thereby sustained, will lie. Therefore where works were executed by the Metropolitan Board of Works, under the powers conferred by 18 & 19 Vict. c. 120, s. 135, whereby plaintiff's premises were injured, and the jury found that by proper care and skill the injury could have been avoided, it was held that to recover compensation for this injury an action would lie, and that the plaintiff was not precluded from maintaining the action by the provisions of sect. 225 of that Act. (3) So it will be no answer to an action for damages that the works causing it were executed under the powers of an Act of Parliament, if the damage be occasioned by the wrongful construction, negligence, and improper execution of the works, and the want of proper and sufficient drains. (4)

A person who sustains injury from the execution of works authorized by a statute is not, generally speaking, entitled to compensation under the compensation clauses of the statute unless the injury sustained is such as, had the works not been authorized by the statute, would have given the claimant a right of action. Therefore where a company in the execution of works authorized by a Local Act which incorporated the Waterworks Clauses Act, 1847, intercepted water from percolating underground into a well, and also abstracted from the well water which had already so percolated into it, it was held

(1) Macey v. Metropolitan Board of Works, 33 L. J. Ch. 377; 10 L. T. (N.S.) 66; 10 Jur. (N.S.) 333. (2) Peters v. Clarson, 7 M. & G. 548.

(3) Clothier v. Webster, 31 L. J. C. P 316; 6 L. T. (N.S.) 461; 12

C. B. (N.S.) 790; 9 Jur. (N.S.) 231.

(4) Brine v. Great Western Railway Company, 31 L. J. Q. B. 101. See also Lawrence v. Great Northern Railway Company, 20 L. J. Q. B. 293.