1903. CORPORATION OF BELFAST v. HILL. into the road rendered it impassible for through cart traffic; but K. B. Div. at the other end it was open for all traffic, and throughout was open from end to end, and used by the pedestrian public without hindrance or obstruction. The defendant entered into possession under his lease, and built twenty-two cottages on the demised land facing the road; he removed the hedge, and about 6 feet in depth, Johnson, J. inside the removed hedge and in front of the cottages he erected iron railings with gates in them, affording access from the road to the cottages; this strip of land, between the iron railings and the site of the removed hedge, he coated with cinders, presumably for the convenience of the tenants of his cottages; but, with the exception of this coating of cinders, there was no visible distinction between the iron railing and the rest of the road widened by the addition of this strip of land, thus forming part of the entire road surface, and thenceforth used by the public as the road in its original condition had been used before the hedge was removed. I am not impressed by the fact that the road is in the lease of 1895 termed a new road. It is common knowledge that in the country parts of Ireland a road for the first time laid out is locally known as the new road, and. for years is known by that appellation, until by law or usage it acquires a more specific denomination. By what, in the argument, has been treated as a sub-lease, dated 21st November, 1898, the defendant demised to Clements, for the residue of the term of 9000 years, at a yearly rent of £64, the premises comprised in the lease of 1895, with the twenty-two cottages thereon erected. In this sub-lease the parcels are described by boundaries, with admeasurements of feet and inches, and are delineated on a map annexed to the sub-lease. By the scale in this map the north boundary (the Fourth-avenue, or Connsbrookavenue) corresponds exactly with the iron railings, leaving the whole area on the road side of the railings as part of the Fourthavenue, or Connsbrook-avenue. Clements does not appear to have entered under this sub-lease, but he used it in 1898 to raise £1400 on a mortgage of it, which I have not seen, and in September, 1900, he assigned his equity of redemption on the mortgage to the defendant, who thus, in the result, is beneficial owner of the premises for the residue of the term of 9000 years, subject to Clements' mortgage. Notwithstanding this sub-lease and mortgage, HILL. K. B. Div. the defendant Hill continued from the lease of 1895 up to and at 1903. the times of the publication and posting of the order of the plaintiffs CORPORATION (1st November, 1901) to receive the rents (admitted to be rackOF BELFAST v. rents) of the premises demised by the lease of 1895, and was, therefore, the "owner" within the definition of the Belfast Act, Johnson, J. 1865, section 106. By this order (1st November, 1901), under the Belfast Act, 1865, section 86, it was ordered that part of Connsbrook-avenue (including the frontage of the premises demised by the lease of 1895) should be freed from obstruction, sewered, drained, levelled, flagged, and paved within the time and in the manner by the order directed. This order was duly published and posted as required by section 87, and therefore was sufficient notice to all owners and others interested in the lands or buildings in that part of Connsbrook-avenue, including the defendant Hill. The order when so promulgated was, under section 88 of the Act, accompanied with the surveyor's estimate of the expenses of the works so ordered, and of the apportioned shares payable by the contributory owners of the buildings or lands in Connsbrookavenue. The defendant's apportioned share of the estimated expenses was the sum of £213 28. 10d., sued for in this action. No objection was made to this apportionment. The last posting of this order was made on the 27th November, 1901, and the defendant was then owner, being in receipt of the rack-rent of the premises in respect of which his share of the estimated expenses was so apportioned. Hill, the defendant, was not superseded in or displaced from his receipt of the rents until Clements' mortgagees entered into possession on 13th January, 1902, on foot of their mortgage of 1898, although Hollywood, his agent, ceased to receive the rents (weekly rents) for him after 16th December, 1901. Payment of defendant's apportioned share of the estimated expenses (£213 2s. 10d.) was demanded from him on 25th January, 1902, and several times subsequently, and not having been paid, the present action was commenced on the 8th May, 1902. For the defendant it is argued, 1st, that Connsbrook-avenue, including the strip between the iron railings and site of the removed hedge, was not a street within section 86 of the Act of 1865, in respect of which the plaintiffs had authority to make the order of 1st November, 1901; 2nd, that the defendant Hill is not liable to the plaintiffs in this action for the share of the estimated K. B. Div. amount of the expenses apportioned to him, because he was not the owner on the 25th January, 1902, when payment was demanded from him, Clements' mortgagees having entered into possession on the 13th January, 1902. 1903. CORPORATION OF BELFAST v. HILL. As to the first contention, sect. 86 of the Act of 1865 is not con- Johnson, J. fined to the term "street"; its scope is "any street or road formed, set out, or laid out," and by the Act of 1868, section 23, sections 86 to 90 of the Act of 1865 are made applicable to all streets or roads within the borough set out, or laid out after, as well as before, the Act of 1868. By the Act of 1865, section 106, the terms "street" and "lands" have the same meaning as in the Belfast Act, 1845, by which (section 420), unless there is something repugnant in the context, "street" includes (inter alia) all or any part of any present or future street, highway, lane, road, thoroughfare, or public passage, or place within the borough, as well footway as carriageway; and "lands" extends to any messuages, lands, houses, tenements, and hereditaments of any tenure. To constitute Connsbrook-avenue a street or road within section 86 it is not necessary that it should in all or part have been dedicated to the public as the law understands dedication, nor that it should be entirely open throughout to all kinds of public traffic. Even if it was a private road with these twentytwo cottages facing it, I think the Corporation of Belfast had authority to make and promulgate the order of 1st November, 1901: Daw v. London County Council (1); Midland Railway Company v. Watton (2). Most of the authorities are conveniently collected in Mr. Vanston's Book on the Public Health Acts (Ireland), pp. 12-14. One of the principal objects of these statutes is to promote public health by securing the execution of works on private property calculated to render them not only healthy in themselves, but innocuous to the public health: Field, J., Grece v. Hunt (3). As to the second contention: the order of the 1st November, 1901 (duly made and published under sections 86 and 87 of the Act of 1865), thereupon required the then owner (the defen (1) 59 L. J. M. C. 112, 115. (2) 17 Q. B. V. 30. (3) 2 Q. B. D. 389, at p. 393. OF BELFAST v. K. B. Dir. dant) to execute his part of the work within the time, and in the 1903. manner, expressed in the order; and, by sect. 88 the surveyor's CORPORATION estimate of the expenses of the work required by the order, and which accompanied the publication of the order, informed the defendant of the share of the estimated expenses which would be payable by him as such "owner." This statutory duty and liability of the defendant accrued and commenced with the publication of the order and the accompanying estimate, and thenceforth continued. HILL. Johnson, J. The defendant did not within one calendar month from the last publication of the order, nor did any other person commence the work required by the order to be done by him"; therefore by sect. 89 (1) it is provided that "such owner" (viz. the owner identified by the earlier part of sect. 89, as the owner who has not commenced the work which the order required to be done by him: in this case the defendant) "shall on demand pay to the Corporation the amount of the share payable by him of the expenses estimated as aforesaid" (viz. his (defendant's) share of the estimated expenses, of which he had notice, and was apprised on the publication of the order, and its accompanying estimate). This demand, therefore, was a condition precedent to proceedings by legal process against the defendant personally to recover his share of the estimated expenses published with the order of 1st November, 1901; but I find nothing in the statute requiring this demand to be made while he continued such owner as he was when his estimated share was ascertained and published with the order. The class of English authorities, of which The Queen v. The Swindon Local Board (1) is a representative case, does not appear to me to govern the present case, because the statutes in those cases did not provide for recovery of a share of expenses estimated when the work was ordered, but only enabled the local authorities, where the owner did not execute the work, to do the work themselves, and then recover the cost from the owner who was held to be the owner when, and not before, the work was done. The enactment of the Belfast Act is wholly different, and renders the person who is owner when the order, with the accompanying (1) 4 Q. B. D. 305. 1903. CORPORATION OF BELFAST v. HILL. amount of his share of the estimated expenses, is published, the K. B. Dir. person who, if the work is not commenced within a month, is to pay such estimated share to the Corporation. I should have thought this sufficiently clear on the construction of the Belfast Act; but since the argument I have found a case which appears to me in point: The Tottenham Local Board v. Williamson (1), Johnson, J tried by Lopes, L.J., without a jury. In that case, distinguishing The Queen v. The Swindon Board (2), it was held that on the terms of a local Act similar in this respect to the Acts in the present case the person who was the owner of the premises when the expenses of the works to be executed were estimated, and not the person who was the owner when the work was done, was and remained the owner liable for the payment of the apportionment of the estimated expenses. I, therefore, think that verdict and judgment are right, and should be retained. The Lord Chief Justice, who is engaged at Nisi Prius, desires me to state that he concurs in this judgment. GIBSON, J.: Two questions have been argued before us: was there jurisdiction to make the order as to the strip of ground occupied by the cindered footpath ? and was the defendant an owner on whom the demand under the order for the estimated share of the expenses could properly be made? As to the first question, it was assumed on both sides that if there was no jurisdiction to make the order as to part, this would be an answer to the whole demand, the order being treated-like a rate as entire. Whether this is so or not, I express no opinion, as the matter has not been argued. It was not disputed by defendant's counsel that Connsbrookavenue proper was a street to which the local statute of 1865 applied, and that it vested in the road authority. The meaning of the expressions "street" (the subject of statutory definition) and "vest" was the subject of some discussion, but the authorities, such as Robinson's Case (3), Allen's Case (4), and Reg. v. Goole (1) 62 L. J. Q. B. 322; 9 T. L. R. (3) 8 App. Cas. 798. (4) [1899] 1 Q. B. 681. |