Section 69. to time vested in them or subject to their order and control, and to discontinue, close up, or destroy such of them as they may deem to have become unnecessary: Provided always, that no new sewer shall be made without the previous approval of the metropolitan board of works (a): Provided also, that the discontinuance, closing up, destruction, or alteration of any sewer as aforesaid shall be so done as not to create a nuisance (b); and if by reason thereof any person shall be deprived of the lawful use of any covered (c) sewer, it shall be the duty of the vestry or district board to provide some other sewer or a drain as effectual for his use as the sewer of which he is so deprived: Provided also, that where the vestry or district board alter any sewer, or provide a new sewer in substitution for a sewer discontinued, closed up, or destroyed, they may contract or otherwise alter the private drains communicating with the sewer so altered, or with the sewer so discontinued, closed up, or destroyed, or may close up or destroy such private drains, and provide new drains in lieu thereof, as the circumstances of the sewerage may appear to them to require, but so that in every case the altered or substituted drain shall be as effectual for the use of the person entitled thereto as the drain previously used (d).

Power to

vestries and

70. Wherever any party is, by prescription, by reason of tenure, or otherwise, liable by law to maintain or do any repairs to sewers district boards (e), watercourses, or works in any such parish or district which the

(a) See proviso to section 58 of 25 & 26 Vict. c. 102, post, making this consent necessary in all cases where new sewers are constructed by any vestry, district board, or other body having control over sewers within the metropolis.

(b) Refer to Southampton, &c., Bridge Company v. Local Board of Health of Southampton, 28 L. J. Q. B. 41, where it was laid down that an action will lie against a local board for improperly constructing a sewer, and causing a nuisance; and see notes to sections 96 and 135, infra.

(c) The word "covered" does not occur in the 38th section of the Metropolitan Sewers Act (11 & 12 Vict. c. 112), from which this provision has been adopted. This addition was intended to exclude claims by parties draining into open watercourses.

(d) Where a metropolitan vestry proposed under section 73 to make a new scheme of drainage, and upon default of the householders to make new drains, and the vestry made them themselves, and attempted to recover the cost from the householders, the occupier was decided not to be compellable to make a new drain or bear the cost of constructing it, on the ground that the facts brought the case under section 69; Vestry of St. Marylebone v. Viret, 34 L. J. M. C. 214.

It was decided under section 55 of the Metropolis Management Amendment Act, 1862, that where a person had constructed a sewer in a new street with the sanction of the metropolitan board, and the district board took it up and laid down another, he was not liable to pay any portion of the cost; Fulham District Board v. Goodwin. L. R. 1 Ex. D. (C. A.) 400. (e) As to the obligation of individuals in respect of sewers works in general, see Callis, p. 115, and Serg. Woolrych, Law of Sewers, 3rd edition, 87 et seq., and the 15th section of 3 & 4 Will. 4, c. 22. Amongst the liabilities mentioned by Callis, ubi supra, is what he designates "the custom of Frontagers," and he says, " In 37 Lib. Assis. plac. 10, it seems that the Frontagers are bound to the repairs," and "he whose grounds are next adjoining to a highway is bound to repair the same"; and again, "the ownership of a bank, wall, or other defence is a sufficient warrant to impose the charge of the repairs thereof upon him without being tied thereto by prescription as appears, 8 Hen. 7, fol. 5; and it stands with reason that every man should be bound to repair his own, and the consideration is also

vestry or district board judge it necessary to alter or improve, it Section 70. shall be lawful for them to make such alterations or improvements

moving for that his grounds which lie nearest the waters are soonest subject to drowning, and if any increase be upon the small rivers it falls to his share." This exposition of the law was closely scrutinised and its correctness denied by the court in the recent case of Hudson v. Tabor, L. R. 1 Q, B. D. 225, affirmed on appeal, L. R. 2 Q. B. D. (C. A.) 290; 42 J. P. 20, where it was decided that there was no prescriptive liability on the owner of a sea wall to maintain the wall, not only for his own protection, but for the benefit of his neighbours, and that by the common law, apart from prescription, no such liability was cast upon the defendant, the owner; and the court, after reviewing the cases cited by Coke, say that they do not establish the common law liability contended for. Several examples of liabilities, such as are described in this section, are found in the records of the former sewers' commissions existing within the metropolitan limits. Under the Greenwich commission various parties were held liable to do works of repair, raise the river wall, scour and bottom ditches, cut weeds, &c,, by reason of tenure. This commission, the limits of which extended from the head of the Ravensbourne to Lombard's wall, in the county of Kent, as also the Surrey and Kent commission, having jurisdiction from East Moulsey, in Surrey, to the river Ravensbourne, in Kent, were both subject to the provisions of 3 & 4 Will. 4, c. 22. The course pursued by the Greenwich commission was to issue their precept to the sheriff to return a jury, and the jury impannelled were sworn by the court to inquire (amongst other matters) of the persons, &c., who, by reason of their tenure of certain lands, tenements, or hereditaments, were bound to repair or contribute to the repair of walls, defences, &c., or do other works the cost of which was not payable out of the general taxes and levies raised within the level, and also to inquire what works were necessary. The jury then heard evidence, and delivered their presentment into court; upon which the court decreed the works, and ordered notices to be served upon the parties ordering their execution, on pain of forfeiting certain sums which were specified. Subsequently the wall reeve presented cases of non-repair. Besides the maintenance, &c., of ditches and causeways, some of these works extended to the raising or repairing of the bank or wall of the river Thames, and at one time the liability to perform such works seems to have been considered a ground of exemption from the general assessments imposed upon the level. There are also a few cases of presentments by juries of similar obligations attaching to individuals in the parish of Rotherhithe and elsewhere within the Surrey and Kent commission, such as to strengthen and heighten the bank and wall of the Thames, so as to resist the tidal waters; but there is reason to doubt whether, under that commission, those liabilities were, in later times at least, ever enforced by adverse proceedings. Similar liabilities also existed under the Poplar commission, the court proceeding on the presentment of the Marsh jury, and compelling the execution of the requisite works. The terms of the 61st section of 3 & 4 Will. 4 excluded this commission and the other sewers' commissions in Middlesex from its operation; and the course of proceeding under it somewhat differed from that provided under the commissions south of the Thames, to which the Act applied; but obligations generally similar in character to those existing under the Greenwich commission were habitually enforced.

Up to the passing of this Act the river wall in the parish of Charlton had been maintained by the commissioners of sewers for the limits extending from Lombard's wall to Gravesend bridge, out of the funds levied by them as walscot or sewer rates chargeable upon the owners and occupiers of the lands benefited, but it has now been decided by the Q. B. D. in the case of the Board of Works for the Plumstead District v. Commissioners of Sewers (Lombard's wall to Gravesend bridge), referred to in note to section 69, supra, that this Act has cast that obligation upon the district board, who, it is believed, levy special rates under section 159 upon the owners and occupiers of low-lying or marsh lands; see note to section 159.

to do works of improvement in sewers, &c., the expense of

Section 70. therein as they think proper, and to divide the expense of such alterations or improvements between the party liable to such maintenance or repairs and the parish, district, or persons who would have been wholly liable to the expense of such alterations or improvements if no party had been liable as aforesaid, so as to throw on the party liable to such maintenance or repairs such part of the expense of alterations or improvements as may be equal to what would be incurred for such maintenance or repairs, and to throw on the parish, district, or persons aforesaid the residue of such expense, and to settle and adjust such proportions either by some general regulation or by order in each particular case, as they may think proper: Provided always, that nothing in this Act con

which to be divided between the party liable

and the parish or district.

The ordinary mode of establishing such a liability is by the inquisition of a jury; see Wingate v. Waite, 6 M. & W. 739; and R. v. Warton, 2 B. & S. 719; and liability of a mortgagor to repair a sea wall without notice, R. v. Baker, L. R. 2 Q. B. 621. See further, Morland v. Cook, L. R. 6 Eq. 252; and R. v. Commissioners of Sewers of Essex, 1 B. & C. 477. The present Act, however, contains no provision for summoning a jury. The 144th section of 11 & 12 Vict. c. 112 (Metropolitan Sewers Act, 1848), provided that the Sewers Act, 3 & 4 Will. 4, c. 22, should not apply to any commission issued under it, but the 96th section expressly empowered the metropolitan commissioners of sewers, on the trial of appeals against sewers rates, to try the question of the appeal by a jury in the same manner as a traverse of a presentment of rateability was triable according to the laws and usages of sewers, and on the trial of such appeals it is obvious that questions affecting liabilities of this nature must sometimes have incidentally arisen. The 59th section of the same Act empowered the metropolitan commissioners to do or direct any work to be done, and exercise all the powers of the Act in relation thereto upon the information or presentment of their surveyor, without any other presentment in relation thereto; and though the 68th section of the present Act transfers to the vestry, &c., all the rights of their predecessors concerning or incident to sewers, those words do not seem to include the power of proceeding by presentment. The liability might probably be established by production of the inquisitions, decrees, &c., of the sewers' commissioners, and by proof that they were obeyed, though there is authority to show that proof of obedience might be dispensed with. In R. v. Leigh, 2 P. & Dav. 357; S. C. 10 Ad. & E. 398, orders of courts of sewers commencing more than seventy years previously were admitted in evidence, though it was not shown that such orders had been complied with. The court in that case laid it down that such orders were good evidence as adjudications by a court of competent jurisdiction upon the subject-matter, unless they were affected by proof of fraud or collusion, and that at so great a distance of time their execution might be presumed. An indictment at common law probably lies against a party liable ratione tenurae to repair, &c. See R. v. Earl Cadogan, 5 B. & Al. 902, where on an indictment for a nuisance by not repairing, pursuant to his liability ratione tenurae a bank and wall next the Thames, whereby a highway in the parish of Chelsea was in danger of being flooded, the court refused to grant an inspection of the court of rolls of the defendant's manor on the ground that the proceeding was a criminal one. In R. v. Gamble, 11 A. & E. 69, the court refused a mandamus to landowners liable ratione tenurae to amend and heighten banks, but that was on the ground that the applicants, the conservators of the Bedford Level, had the authority of commissioners of sewers, and might proceed by presentment; see R. v. Commissioners of Pagham, 1 B. & C. 255; R. v. Ouse Bank Commissioners, 3 A. & E. 344. Refer to the case of The Mayor of Lyme Regis v. Henley, 3 B. & Ad. 77, showing the liability of a corporation under a charter to repair buildings, sea banks, &c, and inasmuch as the obligation concerned the public, that the corporation might be indicted.

tained shall exempt from liability to do any works, or to pay the Section 70. whole cost thereof, any person who, by prescription, by reason of tenure, or otherwise by law, is so liable.

71. Every district board and vestry shall, by providing proper Gullyholes, traps or other coverings, or by ventilation, or by such other ways &c., to be and means as shall be practicable for that purpose, prevent the trapped (a). effluvia of sewers from exhaling through gullyholes, gratings, or other openings of sewers in any of the streets or other places within their district or parish.

72. Every vestry and district board shall cause the sewers vested Vestries and in them to be constructed, covered, and kept so as not to be a district boards nuisance or injurious to health, and to be properly cleared, cleansed, to cause and emptied, and for the purpose of clearing, cleansing, and empty- sewers to be ing the same they may construct and place, either above or under cleansed, &c. ground, such reservoirs, sluices, engines, or other works as may be (6). necessary (c).

in certain cases may

compel

73. If any house (d) or building, whether built before or after the Vestry or commencement of this Act, situate within any such parish or district, district board be found not to be drained by a sufficient drain communicating with some sewer, and emptying itself into the same, to the satisfaction of the vestry or board of such parish or district, and if a sewer of sufficient size be within one hundred feet of any part of such house or building, on a lower level than such house or building, it shall be lawful for the vestry or board, at their discretion, by notice in writing (e), to require the owner of such house or building forthwith, or within such reasonable time as may be appointed by the vestry or board, to construct and make from such house or building into any

owners, &c., of houses to construct

drains into the common

sewer.

(a) See notice to metropolitan board, &c., required before trapping their sewers, 25 & 26 Vict. c. 102, s. 27, post.

(b) This imposes upon the bodies named the duty of exercising reasonable care to keep sewers clean; and where the jury found that the obstruction of a drain causing damage could not by the exercise of reasonable care have been foreseen, the vestry were held not liable for a breach of the duty hereby imposed; Hammond v. Vestry of St. Pancras, L. R. 9 C. P. 316.

Where a local board had constructed a sewer without a flap, they were held liable for damages by flooding premises thereby; Ruck v. Williams, 27 L. J. Ex. 357. See action against a district board for neglecting to keep a sewer clean; R. v. Whitechapel Board of Works, 1 F. & F. 144; Brown v. Sargent, 1 F. & F. 112; Blyth v. Birmingham Waterworks Company, 25 L. J. Ex. 212; Geddin v. Proprietors of the Bourne Reservoir, L. R. 3 App. Ca. H. L. 430.

(c) A local board of health has no power under Public Health Act, 1848, to enter upon land without the owner's consent for purpose of making reservoirs for retaining the sewage; Sutton v. Mayor of Norwich, 27 L. J. Ch. 739.

(d) The word "house" under the Public Health Act, 11 & 12 Vict. c. 63, was held to apply to a toll-house on a turnpike road; Trustees of Tunstall Turnpike Roads v. Lowndes, 20 J. P. 374. In the case of the Poplar District Board v. Knight, 28 L. J. M. C. 37, the Court of Queen's Bench intimated an opinion that a house built with foundations placed on the surface without any digging out, was within the 76th section of this Act.

(e) Under section 69 of Public Health Act, 1848, a notice not specifying the works, but referring for particulars to the surveyor's office, was held sufficient; Bailey v. Wilkinson, 33 L. J. M. C. 161.

Section 73. such sewer a covered drain, and such branches thereto, of such materials (a), of such size, at such level, and with such fall as shall be adequate for the drainage of such house or building, and its several floors or storeys, and also of its areas, waterclosets, privies, and offices (if any), and for conveying the soil, drainage, and wash therefrom into the said sewer, and to provide fit and proper paved or impermeable sloped surfaces for conveying surface water thereto, and fit and proper sinks, and fit and proper sy phoned or otherwise trapped inlets and outlets for hindering stench therefrom, and fit and proper water supply (b), and water supplying pipes, cisterns, and apparatus for scouring the same, and for causing the same to convey away the soil, and fit and proper sand traps, expanding inlets, and other apparatus for hindering the entry of improper substances. therein, and all other such fit and proper works and arrangements as may appear to the vestry or board, or to their officers, requisite to secure the safe and proper working of the said drain, and to prevent the same from obstructing or otherwise injuring or impeding the action of the sewer to which it leads; and it shall be lawful for the said vestry or board to cause the said works to be inspected while in progress, and from time to time during their execution to order such reasonable alterations therein, additions thereto, and abandonment of part or parts thereof, as may to the vestry or board or their officers appear, on the fuller knowledge afforded by the opening of the ground, requisite to secure the complete and perfect working of such works; and if the owner of such house or building neglect or refuse, during twenty-eight days after the said notice has been delivered to such owner, or left at such house or building, to begin to construct such drain and other works aforesaid, or any of them, or thereafter fail to carry them on and complete them with all reasonable despatch, it shall be lawful for the vestry or board to cause the same to be constructed and made (c), and to recover the expenses to be incurred thereby from such owner in the manner hereinafter provided (d).

Penalty on owner, &c., for neglect.

Provision for combined drainage of blocks of houses (e).

74. If it appear to the vestry or board of any parish or district that a group or block of contiguous houses, or of adjacent detached or semidetached houses, may be drained and improved more economically or advantageously in combination than separately, and a sewer of suffi

(a) See as to the discretion given to vestries to determine the material to be used, Austin v. St. Mary, Lambeth, cited in note to section 76, post; and as to the power of a local board of health to decide on the works requisite for the removal of a nuisance; Hargreaves v. Taylor, 32 L. J. M. C. 111; 3 B. & S. 413.

(b) See section 67 of 25 & 26 Vict. c. 102, post, authorizing vestries. to compel owners of houses to obtain supply of water, at a rate not exceeding 3d. per week, and as to proceedings in case of deficient supply.

(c) See section 64 of 25 & 26 Vict. c. 102, post, authorizing vestries under this and the 74th, 76th, 81st, 85th, and 86th sections, to execute the works or proceed for the penalties.

(d) See sections 225 and 226, post.

(e) By the 250th section, any drain for draining a group of houses by a combined operation under the orders of vestries, falls within the definition of a drain as contradistinguished from a sewer. But as combined drainage was laid down before the passing of the Act under the direction of the Metropolitan Commissioners of Sewers, and claims were made on the vestries to maintain such drainage at the public cost, the meaning of the word "drain" has been extended by the 112th section of 25 & 26 Vict. c. 102, so as to include drains of this nature laid down before the passing of the Act.