Sect. 11 (3). Sanitary Authority, [1894] 2 Q. B. 786; 64 L. J. Q. B. 26; 71 L. T. (N.s.) 433 ; 58 J. P. 786.

NOTE.

(4.) The county council and any district council may from time to time contract for the undertaking by the district council of the maintenance, repair, improvement, and enlargement of, and other dealing with any main road, and, if the county council so require, the district council shall undertake the same, and such undertaking shall be in consideration of such annual payment by the county council for the costs of the undertaking as may from time to time be agreed upon, or, in case of difference, be determined by arbitration of the Local Government Board; and for the purposes of such undertaking the district council shall have the same powers and be subject to the same duties and liabilities as if the road were an ordinary road vested in them.

In this sub-section for the words printed in italics are to be substituted the words "be determined by the Local Government Board either as arbitrators or otherwise at the option of the Board" (Local Government (Determination of Differences), Act, 1896, post.) For the effect of this substitution, see the note to the last sub-section.

As to the meaning of the term "district council," see s. 100, post, and Local Government Act, 1894 (56 & 57 Vict. c. 73), ss. 21, 25.

The provisions of this sub-section apply to all main roads save those which an urban authority have elected to maintain under sub-s. (2), ante. The county council and district council may contract, but in the absence of contract the county council may require the district council to undertake the repair of all or any main roads in their district.

The contract may apparently be for a term of years or for any less period. An agreement under this sub-section between a county council and a highway authority does not take away from the former their rights and liabilities as the road authority under the Tramways Act, 1870. Stockport and Hyde Highway Board v. Cheshire County Council, 61 L. J. Q. B. 22; 65 L. T. (N.s.) 85; 39 W. R. 696; 55 J. P. 808.

The Highways and Bridges Act, 1891 (54 & 55 Vict. c. 63), post, contains further provisions enabling county councils and highway authorities to make agreements for the improvement, etc., of main roads, highways, and bridges.

The highway authority have no option if required by virtue of the provision in the text to undertake the maintenance, etc., of main roads. They must in that case provide the necessary cost out of the funds in their hands for the repair of the highways in their district, and the payments made to them by the county council will be paid into the same fund.

On the concluding words of this sub-section it may be observed that ordinary roads are not vested in a district council, unless such council is an urban authority, in which case the highways repairable by the inhabitants at large. are vested in the authority by virtue of s. 149 of the Public Health Act, 1875. The words "vested in them" must not, therefore, be read literally, but as equivalent to "subject to their control," or some similar expression.

(5.) Provided that in no case shall a county council make any payment to a district council towards the costs of such undertaking

as respects any road, or towards the costs of the maintenance, Sect. 11 (5). repair, or improvement of any road by an urban authority, until the county council are satisfied by the report of their surveyor, or such other person as the county council may appoint for the purpose, that the road has been properly maintained and repaired, or that the improvement or enlargement of or other dealing with the road, as the case may be, has been properly executed.

This sub-section has reference both to an undertaking under sub-s. (4), and to maintenance by an urban authority under sub-s. (2). As to the procedure in case of refusal to make a payment under this section, see sub-s. (9), infra.

(6.) A main road and the materials thereof, and all drains belonging thereto, shall, except where the urban authority retain the powers and duties of maintaining and repairing such road, vest in the county council, and where any sewer or other drain is used for any purpose in connexion with the drainage of any main road, the county council shall continue to have the right of using such sewer or drain for such purpose, and if any difference arises between a county council and any highway or sanitary authority as respects the authority in whom the drain is vested, or as to the use of any sewer or other drain, the council or the highway or sanitary authority may require such difference to be referred to arbitration, and the same shall be referred to arbitration in manner provided by this Act.

The main road, the materials thereof, and the drains belonging thereto, are to vest in the county council, except where the urban authority retain the right of repairing under sub-s. (2). When the urban authority does not retain this right, the road which had hitherto been vested in the urban authority by s. 149 of the Public Health Act, 1875, will cease to be vested in them, and will vest in the county council. The meaning of the word vest will appear from the following decisions on the Public Health Act, 1875, s. 149 :-

In Hinde v. Chorlton, L. R. 2 C. P., at p. 116, WILLES, J., referring to the words vest in as used in a local Act, said, "There is a whole series of authorities in which words which in terms vested the freehold in persons appointed to perform some public duties, such as canal companies and boards of health, have been held satisfied by giving to such persons the control over the soil which was necessary to the carrying out of the objects of the Act without giving them the freehold. In Stracey v. Nelson, 12 M. & W. 535; 13 L. J. Ex. 97, it was provided by an Act that certain lands should be vested in the Commissioners of Sewers, and the court held, notwithstanding, that only the control over the land, and not the freehold, passed to them." In Bagshaw v. Buxton Local Board (ante, p. 25), 1 Ch. D., at p. 222, JESSEL, M.R., said that by the term vested he meant vested sub modo, as far as a highway can be, not necessarily giving to the local authority the right to the soil. The words vest in do not give the property in the street, but merely the property in the surface of the street, and in such part of the soil as is or can be used for the ordinary purposes of a street. Coverdale v. Charlton, 4 Q. B. D. 104; 48 L. J. Q. B. 128; 40 L. T. (N.S.) 88; 26 W. R. 687; 43 J. P. 268. In that case, by an award

NOTE.

Sect. 11 (6). made under an Inclosure Act passed in 1766, two private roads, E. and H., were set out. About 1818 the road E. became a public highway. Down to 1863 the surveyors of highways for the parish of C., within which E. and H. were situate, had from time to time let the pasturage upon E. and H. to various persons. A local board was formed in 1863 for the parish of C., who in 1876 let the pasturage on E. and H. to the plaintiff. He thereupon commenced to depasture the herbage with his cattle on the roads. The defendant interfered with the plaintiff's enjoyment of the pasturage. It was held that the property in the soil of E., being a street, so far vested in the local board that they could demise the right of pasturage thereon to the plaintiff, who was entitled to maintain an action. It was held also that the local board having no power to demise H., being a private way, the plaintiff had not sufficient exclusive possession as occupier to enable him to maintain an action. In a subsequent case, JAMES, L.J., explained this decision as to the meaning of the words vest in as follows :-"What that case decided, and all that it was necessary to decide in that case, was that something more than an easement passed to the local board, and that they had some right of property in and on and in respect of the soil, which would enable them as owners to bring a possessory action against trespassers. Now what was that something more? It is impossible to read any of the three judgments delivered on that occasion without seeing that in the view of the learned judges the soil and freehold, in the ordinary sense of the words 'soil and freehold,' that is to say, the soil from the centre of the earth up to an unlimited extent in space, did not pass, and that no stratum or portion of the soil, defined or ascertainable like a vein of coal, or stratum of ironstone, or anything of that kind, passed, but that the board had only the surface, and with the surface such right below the surface as was essential to the maintenance and occupation and exclusive possession of the street, and the making and maintaining of the street for the use of the public." Rolls v. St. George the Martyr, Southwark (Vestry of), 14 Ch. D. 785; 49 L. J. Ch. 691; 43 L. T. (N.S.) 140; 28 W. R. 867; 44 J. P. 680. In that case the plaintiff having, with the sanction of the Metropolitan Board of Works, made a new street over his land, upon which land were two old streets, N. and A., an order was made at quarter sessions for stopping up part of N. street as unnecessary, and an order was also made for diverting a part of A. street, and opening the new street in lieu thereof. The vestry of the parish gave notice to the plaintiff that he must not convert to his own use the stopped-up part of N. nor stop up A., or convert any part of the soil of it to his own use until he had purchased the same from the vestry. It was held by the Court of Appeal, reversing the decision of the Master of the Rolls, that under 18 & 19 Vict. c. 120, s. 96, all streets being for the time being highways, are vested in the vestry, but only so long as they are highways, and that when they cease to be highways by being legally stopped up or diverted, the interest of the vestry determines. And it was therefore held that the plaintiff was entitled to convert to his own use the stopped-up part of N. and the diverted part of A., subject, as to A., to his first obtaining a certificate under 5 & 6 Vict. c. 50, s. 91, that the substituted street had been completed and put into good condition and repair. Where a street was carried across a railway situate in a deep cutting, the bridge being erected pursuant to the Railways Clauses Act, 1845 (8 & 9 Vict. c. 20, ss. 46— 51), it was held that the vesting of the street in the vestry under 18 & 19 Vict. c. 120, s. 105, did not give the vestry any property in the bridges or its fences, but merely vested in them the carriageway and foothpaths and the materials of which these were made. Great Eastern Rail. Co. v. Hackney Board of Works, 8 App. Cas. 687; 52 L. J. M. C. 105; 49 L. T. (N.s.) 509; 48 J. P. 52. The

NOTE.

vesting of the streets in the urban authority does not confer upon them such Sect. 11 (6). a property in the streets as to entitle them to maintain an action for an injunction against the erection of a telephone wire across a street, the telephone wire being erected at a great height, and causing no appreciable danger to the public or to the traffic in the street. Wandsworth District Board of Works v. United Telephone Co, 13 Q. B. D. 904; 53 L. J. Q. B. 449; 51 L. T. (N.S.) 148; 32 W. R. 776; 48 J. P. 676. The earlier cases were discussed and explained by the House of Lords in Tunbridge Wells (Mayor, etc., of) v. Baird, [1896] A. C. 434; 65 L. J. Q. B. 451; 74 L. T. (x.s.) 385; 60 J. P. 788. There it was held that the vesting of the street vests in the urban authority such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use. It has since been held that a local authority in whom a street is vested under s. 149 of the Public Health Act, 1875, have no greater right of property in the materials, etc., of such street than they have in the street itself. See Salt Union v. Harvey, 61 J. P. 212; 13 T. L. R. 297.

The right of the public to use a highway prima facie extends not only to the via trita, but includes the entire space between the fences dedicated to the use of the public, and capable of being used by them. See on this subject R. v. United Kingdom Telegraph Co., and other cases cited ante, p. 26. But NORTH, J., has held that the waste land at the side of the metalled portion of a main road was not vested in the county council by the text. Curtis v. Kesteven County Council, 45 Ch. D. 504; 60 L. J. Ch. 103; 63 L. T. (N.s.) 543 ; 39 W. R. 199, ante, p. 26.

As to the effect of the vesting of a road in a highway authority in relation to their right to remove obstructions, see Reynolds v. Presteign Urban District Council, and Harris v. Northampton County Council, referred to ante, p. 25.

Ordinary highway drains will vest with the main road in the county council. But where the drainage of the road flows into a drain or sewer belonging to a sanitary authority the right of user is to continue.

The mode of arbitration referred to in this sub-section is that prescribed by s. 62, sub-ss. (2), (3), post.

(7.) Where a county council declare a road to be a main road, such declaration shall not take effect until the road has been placed in proper repair and condition to the satisfaction of the county

council.

This provision is in effect an amendment or proviso to the Highway Act, 1878, s. 15, which has been quoted in the note to sub-s. (1), ante. As to the method of determining any dispute arising as to the condition of the road, see sub-s. (9), infra.

(8.) If at any time the county council are satisfied, on the report of their surveyor or other person appointed by them for the purpose, that any portion of a main road, the maintenance and repair of which are undertaken by any district council, is not in proper repair and condition, the county council may cause notice to be given to such district council, requiring them to place the road in proper repair and condition; and, if such notice is not complied with within a reasonable time, the county council may do everything that seems to them necessary to place the road in proper

Sect. 11 (8). repair and condition, and the expenses of so doing shall be a debt of the said district council to the county council.

This provision applies only to main roads of which the repair has been undertaken under sub-s. (4). It does not apply to main roads repaired by an urban authority under sub-s. (2). As to the method of determining cases of dispute under this sub-section, see sub-s. (9), infra.

The expenses incurred being hereby made a debt, will be recoverable by action in the High Court, or in the county court if less than 50%.

(9.) If any difference arises under this section between a county council and a district council as to the refusal of the county council to make a payment under this section to the district council in respect of any undertaking or road, or as to a road having been placed in proper repair and condition previously to its becoming a main road, or as to any notice given to the district council by the county council to place a road in proper repair and condition, such difference shall, if either council so require, be referred to the arbitration of the Local Government Board.

In this sub-section for the words printed in italics are to be substituted the words "be determined by the Local Government Board, either as arbitrators or otherwise, at the option of the Board" (Local Government (Determination of Differences) Act, 1896, post). For the effect of this sub-section, see the note to sub-s. (3), ante.

The differences here referred to are such as may arise under sub-ss. (5), (7), and (8).

(10.) The county council may, if they think fit, contribute towards the cost of the maintenance, repair, enlargement, and improvement of any highway or public footpath in the county, although the same is not a main road.

For the meaning of the term "improvement," see the note to sub-s. (1). A contribution towards the cost of a highway under this sub-section may be made subject to any such conditions for the proper maintenance and repair of such highways (sic) as may be agreed on between the county council and the highway authority: Local Government Act, 1894, s. 25 (3), post.

See further as to agreements between county councils and highway authorities in relation to the construction, improvement, etc., of highways, s. 3 of the Highways and Bridges Act, 1891 (54 & 55 Vict. c. 63), post.

The text uses the words "highway or public footpath," but a public footpath is to all intents and purposes a highway, and is repairable like any other highway. See per Lord ELLENBOROUGH in R. v. Salop, 13 East, at P. 97.

(11.) Every authority having any power or duty to light the roads in their district shall have the same power and duty to light any main road in their district.

The county council are not liable to light the main roads in any case. In urban districts the power and duty devolves on the urban authority under