(Section 72.) In default by Expenses. Penalties for keeping Swine, &c. in improper Situations, allowing waste Water to remain in cellars, privies, &c. to overflow, &c. Abatement of the Removal of Filth, on Certificate of Inspector of Nuisances. Drainage, Filth, Water, Matter, or Thing of an offensive Nature, or likely to be prejudicial to Health; and they shall cause written Notice to be given to the Person causing any such Nuisance, or to the Owner or Occupier of any Premises whereon the same exists, requiring him, within a Time to be specified in such Notice, to drain, cleanse, cover, or fill up any such Pond, Pool, Ditch, Sewer, Drain, or Place, or to construct a proper Sewer or Drain for the Discharge thereof, as the Case may require; and if the Person to whom such Notice is given fail to comply therewith, the said Local Board shall execute the Works mentioned or referred to therein, and the Expenses incurred by them in so doing shall be recoverable by them from him in a summary Manner, or by Order of the said Local Board shall be declared to be Private Improvement Expenses, and be recoverable as such in the Manner herein-after provided; Provided always, that the said Local Board may order that the whole or a Portion of the Expenses incurred in respect of any such last-mentioned Works be defrayed out of the Special or General District Rates to be levied under this Act, and in case of any such Order the whole or such Portion of the Expenses as may be mentioned therein shall be defrayed and levied accordingly. Also the Section numbered 59 of the said Act: LIX. And be it enacted, That whosoever keeps any Swine or Pigstye in any Dwelling House, or so as to be a Nuisance (a.) to any Person, or suffers any waste or stagnant Water to remain in any Cellar or Place within any Dwelling House for Twenty-four Hours after written Notice to him from the Local Board of Health to remove the same, and whosoever allows the Contents of any Watercloset, Privy, or Cesspool to overflow or soak therefrom, shall for every such Offence be liable to a Penalty not exceeding Forty Shillings, and to a Further Penalty of Five Shillings for every Day during which the Offence is continued; and the said Local Board shall abate or cause to be abated every such Nuisance, and the Expenses incurred by them in so doing shall be repaid to them by the Occupier of the Premises upon which the same exists, and be recoverable from him in the summary Manner herein-after provided; and if at any Time it appear to the Inspector of Nuisances that any Accumulation of Manure, Dung, Soil, or Filth, or other offensive or noxious Matter whatsoever, ought to be removed, he shall give Notice to the Person to whom the same belongs, or to the Occupier of the Premises whereon it exists, to remove the same; and if at the Expiration of Twenty-four Hours after such Notice the same be not complied with, the Manure, Dung, Soil, or Filth, [a] See note to Sec. 107 of the Towns Improvement Clauses Act, incorporated by Sec 73 post,p.103. PURIFYING HOUSES, REMOVING FILTH, NUISANCES, &c, 101 or Matter referred to, shall be vested in and be sold or disposed Also the Section numbered 60 of the said Act. (Secs. 72.73) purified, on Officer of Health, cal Practitioners, by Owner or Occupier. LX. (a.) And be it enacted, That if upon the Certificate of the Officer Houses to be of Health (if any), or of any Two Medical Practitioners, it appear Certificate of to the Local Board of Health that any House or Part thereof is in or of Two Medisuch a filthy or unwholesome Condition that the Health of any Person is affected or endangered thereby, or that the whitewashing, cleansing, or purifying of any House or Part thereof would tend to prevent or check infectious or contagious Disease, the said Local Board shall give Notice in Writing to the Owner or Occupier of such House or Part thereof to whitewash, cleanse, or purify the same, as the Case may require; and if the Person to whom Notice Penalty on deis so given fail to comply therewith within such Time as shall be fault, &c. specified in the said Notice, he shall be liable to a Penalty not exceeding Ten Shillings for every Day during which he continues to make default; and the said Local Board may, if they shall think Commissioners fit, cause such House, Building, or Fart thereof, to be whitewashed, cleansed, or purified, and the Expenses incurred by them in so doing shall be repaid by the Owner or Occupier in default, and be recoverable from either of them in the summary Manner hereinafter provided. LXXIII. That the following Sections of "The Towns Improvement Clauses Act, 1847," shall be incorporated herewith: The Section numbered 98 of the said Act: may purify, &c. Sections 98 & 104 to 107 of 10 & 11 porated with this Act. veying offensive XCVIII. The Commissioners may from Time to Time fix the Hours Penalty for conwithin which only it shall be lawful to empty Privies or remove fatter at imoffensive Matter within the Limits of the special Act; and when proper Times, or in an improper the Commissioners have fixed such Hours, and given public Notice way. thereof, every Person who within the Limits of the special Act empties or begins to empty any Privy, or removes along any Thoroughfare within the said Limits any offensive Matter, at any Time except within the Hours so fixed, and also every Person who at any Time, whether such Hours have been fixed by the Commissioners or not, uses for any such Purpose any Cart or Carriage not having a Covering proper for preventing the Escape of the Contents of such Cart, or of the Stench thereof, or who wilfully slops or spills any such offensive Matter in the Removal thereof, or who does not carefully sweep and clean every Place in which any such offensive Matter has been placed, or unavoidably slopped [a] See the Nuisances Removal Act, Section 1, post appendix No. 3, giving further remedies for purifying houses, &c. (Section 73.) Justices may order Nuisances to be abated, from offensive Trades, Places, &c. Suspension of Justices' order in certain cases. Appeal. Penalty for disobedience of Orders of Justices. Nnisance may be continued till after appeal. or spilled, shall be liable to a Penalty not exceeding Forty Shillings, and in default of the Apprehension of the actual Offender the Driver or Person having the Care of the Cart or Carriage employed for any such Purpose shall be deemed to be the Offender. The Section numbered 104 of the said Act: CIV. If any Candle-house, Melting-house, Melting-place, or Soaphouse, or any Slaughter-house, or any Building or Place for boiling Offal or Blood, or for boiling or crushing Bones, or any Pigstye, Necessary House, Dunghill, Manure Heap, or any Manufactory, Building, or Place of Business within the Limits of the special Act, be at any Time certified to the Commissioners by the Inspector of Nuisances or Officer of Health, or if for the Time being there be no Inspector of Nuisances or Officer of Health, by any Two Surgeons or Physicians, or One Surgeon and One Physician, to be a Nuisance (a.) or injurious to the Health of the Inhabitants, the Commissioners shall direct Complaint to be made before Two Justices; and any Justice may summon before any Two Justices the Person by or on whose Behalf the Work complained of is carried on, and such Justices shall inquire into such Complaint, and they may, by an Order in Writing under their Hands, order such Person to discontinue or remedy the Nuisance within such Time as to them shall appear expedient: Provided always, that if it appear to such Justices that in carrying on any Business complained of the best Means then known to be available for mitigating the Nuisance or the injurious Effects of such Business have not been adopted, they may suspend their final Determination, upon Condition that the Person so complained against shall undertake to adopt within a reasonable Time such Means as the said Justices shall judge to be practicable and order to be carried into effect for mitigating or preventing the injurious Effects of such Business. Also the Section numbered 105 of the said Act; and against the Order of Justices therein mentioned an Appeal shall lie to the Quarter Sessions, as herein-after provided: (b.) CV. If any such Nuisance, or the Cause of any such injurious Effects as aforesaid, be not discontinued or remedied within such Time as shall be ordered by the said Justices, the Person by or on whose Behalf the Business causing such Nuisance is carried on shall be liable to a Penalty not exceeding Five Pounds for every Day during which such Nuisance shall be continued or unremedied after the Expiration of such Time as aforesaid: Provided always, that when [a.] See Note to Sec. 107 of the Towns Improvement Clauses Act, incorporated by this sec. 73, post, page 103. [b] See the 185th section of the Public Health Act incorporated by section 129, post. any Person who thinks himself aggrieved by any such Order shall, according to the Provisions of this or the special Act, appeal against any such Order, such Person shall not be liable to discontinue or remedy the Nuisance or Cause of the injurious Effects mentioned therein, or to pay any Penalty, until after the Expiration of Five Days after the Determination of such Appeal and the Confirmation of such Order, unless such Appeal cease to be prosecuted. Also the Section numbered 106 of the said Act: (Section 73.) Commissioners to order Costs of Prosecutions to be paid out of CVI. The Commissioners may direct any Prosecution for any public Nuisance whatsoever, created, permitted, or suffered within the Limits of the special Act, and may order Proceedings to be taken the Rates. for the Recovery of any Penalties, and for the Punishment of any Persons offending against the Provisions of this or the special Act, or of any Act incorporated therewith, and may order the Expences of such Prosecution or other Proceedings to be paid out of the Rates authorized to be imposed under the Provisions of this and the special Act. Also the Section numbered 107 of the said Act. Nuisances at CVII. Nothing in this Act contained shall be construed to render Act not to affect lawful any Act or Omission on the Part of any Person which is, Common Law. or but for this Act would be, deemed to be a Nuisance at Common Law, nor to exempt any Person guilty of Nuisance at Common Law from Prosecution or Action in respect thereof, according to the Forms of Proceeding at Common Law, nor from the Consequences upon being convicted thereof. (a.) [a.] It is questionable if this clause takes away the common law right, that a party injured by a nuisance, has to remove or abate himself the nuisance, so as he commits no riot in the doing of it, though it expressly saves other remedies. Statutes restrictive of the common law receive a restrictive construction. Remedies have been always provided for nuisances and noisome or offensive trades, but were often as trying as the disease; thus actions of trespass lie for erecting anything offensive so near the house of another as to render it useless and unfit for habitation The erection of a tallow furnace near a common Inn is actionable. Morley v. Pragnell, Cro. Car. 510. Bliss v. Hall, 4 B. N. C. 183. So a lime kiln (Aldred's case, 9 Rep. 59). A smith's forge (Bradley v. Gill, Lutw. 69.) A pigstye (Aldred's case supra.) A privy (Jones v. Powell, Hut, 136.) A tobacco mill, Styan v. Hutchinson, 2 Selw. N. P. 1114. And in Walker v. Selfe, 15 Jur. 416. V. C. Bruce decided in April, 1851, that brick-making was a private nuisance and granted an injunction against making the bricks; and see Rich v. Basterfield as to nuisances from smoke issuing from shop stoves, 11 Jur. 696, and 2 Car. and K. 257, and from accumulations of compost and refuse, Jones v. Williams, 12 L. J. N. S. 249, Exch. Numerous are the causes respecting private nuisances shewing the law of England to be that every one should enjoy "fresh and pure air," the rule of law being "enjoy your own property so as not to injure that of another person." And as to noisome or offensive trades, filth, &c. becoming public nuisances the law is equally stringent. "The word noisome comes in the place of the Latin nocivus and means not only disagreeable but hurtful. It is not necessary to constitute the offence that the smell should be unwholesome, it is enough if it render the enjoymeut of life and property uncomfortable, R. v. White, 1 Burr. 337 per Ld. Mansfield; and C. J. Abbott laid it down in Rex. v. Neil, 2 C. and P. 485, that “it is not necessary that a public nuisance should be injurious to health, if there be smells offensive to (Section 74.) Construction of vention of Fire. LXXIV. And with respect to the Construction of Houses for Prevention of Fire, be it enacted, That the Party Walls of all Buildings erected in the Borough after the passing of this Act shall be carried through and above the Roof to form a Parapet (properly coped with Stone or with such incombustible Materials Regulations as to as the Surveyor may approve) of not less than Twelve Inches in External Walls Height measured at Right Angles with the Slope of the Roof Roof Carverings. above the Covering of the Roof of the highest Building to which Party Walls, Fire places, and such Party Walls belong; and all such Party Walls and the External Walls of all Buildings erected after the passing of this Act within the Borough shall be constructed of incombustible Materials, and be of such Thickness, not less than Nine Inches and not more than Twenty-seven Inches, as the Commissioners shall direct, and the Covering of the Roof thereof shall not, without the previous Consent in Writing of the Commissioners or their Surveyor, be constructed of combustible Materials; and no Timber or Woodwork shall be placed in any Building within Four and a Half Inches of any Flue or Fireplace therein; and all Hearths, Slabs, and the Supports thereof, shall be of incombustible Materials; and it shall not be lawful for the Owner of Thatched Roofs. any Building within the Borough, having at the passing of this Act a Roof covered with Thatch or other combustible Material, and adjoining to or near any other Building, to allow such Covering to such Roof to remain for a longer Period than Seven Years after the passing of this Act, unless with the Consent in Writing of the Commissioners Surveyor; and every Person who shall erect, rebuild, or alter any Building, or cover any Roof, or suffer the Covering of any Roof to continue, contrary to the Provisions herein contained, and who shall not remove or alter the same within One Month after Notice given to him for that Purpose by the Commissioners Surveyor, shall be liable to a Penalty not exceeding One Pound for every Day that such Building or Covering to such Roof shall so continue; and it shall be lawful for the Commissioners Surveyor to enter into or upon any House or other Building within the Borough during the building, re-building, or Alteration thereof, after the passing of this Act, and to view Penalty for neglect. Surveyor may enter Buildings, &c. the senses that is enough, as the neighbourhood has a right to "fresh and pure air." Burns says that it hath been holden that it is no common nuisance to make candles in a town, because the needfulness of them shall dispense with the noisomeness of the smell, but this opinion, the same learned author says, seems justly to be questionable, and see the case of Morely v. Pragnell supra. Several cases have established that no length of time will legitimate a public nuisance, but the rule has often been modified, and it has been held that the continuing a noxious trade which has been carried on at the same place for nearly fifty years will not be deemed a nuisance. As regards remedies against private nuisances 20 years continuance seems a bar. |