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be acquired by express grant, the terms of the grant will Easement regulate the extent and enjoyment of the easement. If on with regard the other hand it be by an implied grant, then it will be to to drainage. consider what amounts to such a grant, and the nature of it. There is a well recognized distinction between easements used from time to time, such as a right of way, and easements which are used of necessity or are in their nature continuous. Upon a severance of tenements the latter will pass by implication of law without any words of grant; but the former pass only when the owner by appropriate language shows an intention that they should pass. (1) The following are the leading cases on this subject. The first (though it has since been dissented from, as will be presently stated) established that where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entitled to the benefit, and is subject to the burden, of all existing drains communicating with the other house, without any express reservation or grant for that purpose. Thus, the plaintiff's and defendant's houses adjoined each other; they having formerly been one house and converted into two by the owner of the whole property. Subsequently the defendant's house was conveyed to him, and after that the plaintiff took a conveyance of his house. At the time of these conveyances a drain ran under the plaintiff's house, and then under the defendant's house, and discharged itself into the common sewer. Water from the eaves of the defendant's house fell on the plaintiff's house, and then ran into a drain on the plaintiff's premises, and then through the drain into the common sewer, through which the plaintiff's house was drained. On the trial of the action a verdict was entered for the plaintiff with leave to the defendant to move to enter a verdict for him, and it was held by the Court that the plaintiff was, by implied grant, entitled to have the use of the drain as it was used at the time the defendant purchased his house. (2) In a later case, however, it was held that an easement which is neither continuous nor apparent cannot be supported ; and that mere knowledge of the manner in which property conveyed was used by a vendor for the convenience of an adjoining tenement will not affect the purchaser, if the property is conveyed without reservation. Therefore a grantor cannot claim rights over property absolutely granted, even if such rights were at the time of the grant continuous and apparent easements enjoyed in respect of an adjoining tenement, which remains the property of the grantor. (3) In giving this judgment the Lord Chancellor, with reference to Pyer v. Carter, said that he could not look upon that case as rightly decided, and must wholly refuse to accept it as any authority. It is, however, thought to be by no means clear that it would be held
(1) Watts v. Kelson, L. R. 6 Ch. App. 166, 24 L. T. (N. S.) 209. (2) Pyer v. Carter, 1 H. & N. 916.
(3) Suffield v. Brown, 10 Jur. (N. S.) III.
with regard to drainage.
by the highest tribunal, if the question should arise before it, that Pyer v. Carter was wrongly decided. (1) The other case referred to above establishes that where two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used and was necessary for the comfortable enjoyment of that part of the property which was granted must be considered to follow from the grant. Therefore where the owner of two adjoining properties, consisting of a tan-yard and a house and garden, made a cesspool in the corner of the garden, and a drain to carry water into it from the tan-yard, which gradually sloped down towards the garden, and in the year 1819 sold the two properties to different persons, the conveyance making no allusion to the existence of the drain and cesspool, it was held on appeal to the House of Lords from a decision of the Court of Sessions in Scotland, that the easement passed by an implied grant with the tan-yard; and per Campbell, L.C., "I consider the law of Scotland, as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used and was necessary for the comfortable enjoyment of that part of the property which is granted shall be considered to follow from the grant if there be the usual words in the conveyance." (2) Again, where a conveyance contained the following clause, " save and except and always reserved unto the said A. B., his heirs and assigns, the power to enter upon the said land, and to dig and make a covered sewer or watercourse through the said land in order to convey the waste water from the premises of the said A. B. into the river W. on making reasonable compensation to the said C. D. for any damage or injury which might be occasioned thereby, either to the surface of the ground, or the building under which the same might be made," and A. B. having constructed a covered drain or sewer in pursuance of the power, and C. D. made an opening into it and drained his premises through it, it was held that the reservation gave A. B. a right to the exclusive use of the sewer. (3)
In the case of a right of way over a tenement which had been severed, the Master of the Rolls held that there could be no grant of such a right under the words "all ways heretofore occupied or enjoyed," when the user arose solely during the unity of possession for the convenience of the former owner while holding both tenements, when such convenience ceased to exist after the severance. (4)
(1) See the M. R. in Morland v. Cook, L. R. 6 Eq. 265.
(2) Ewart v. Cochrane, 7 Jur. (N. S.) 925.
(3) Lee v. Stevenson, 1 E. B. & E. 512; 4 Jur. (N. S.) 950.
(4) Thomson v. Waterlow, 18 L. T. (N. s.) 545; L. R. 6 Eq. 36; 37 L. J. Ch. 495. See also Langley v. Hammond, L. R. 3 Exch. 161; 37 L. J. Exch. 118; 18 L. T. (N. S.) 858.
§ 4. DRAINAGE INTO THE RIVER THAMES.
The district drained by the River Thames is so extensive, and there are so many Local Board districts in the immediate neighbourhood of that river, or in close proximity to it, that this work would be incomplete without a reference to the clauses of the Thames Navigation Act, 1866 (29 & 30 Vict. c. 89), which restrains drainage from towns into the river so as to pollute the water.
The preamble recites, " And whereas it is expedient that provision be made in this Act for preventing the pollution of the Thames between Cricklade and Staines, and that application for another Act for preventing the pollution of the Thames between Staines and the western boundary of the district under the authority of the Metropolitan Board of Works be made to Parliament by the Conservators;" and by section 2 enacts, the Interpretation term "the Thames" or "the river" means (unless a different of terms: meaning is expressed or implied) the river Thames or rivers extent of Act. Thames and Isis from the City stone near Staines to Crick- 29 & 30 Vict.
c. 89, s. 2.
By the Thames Conservancy Act, 1867, 30 Vict. c. ci. Extension (which is to be construed as one with the Thames Conser- from Staines vancy Acts, 1857 and 1864, and the Navigation Act of 1866), to Metropolis of provisions the provisions of section 52 and sections 63 to 69 (both inclu- against sive) of the Navigation Act of 1866, are extended so as to pollution. apply to the Thames from the City stone near Staines to the 30 Vict. c. ci. s. 3. -western boundary of the Metropolis, and to so much of every river, stream, cut, dock, canal, and watercourse communicating with that part of the Thames as lies within three miles of the Thames measured in a direct line therefrom, and for that purpose the term "this Act" used in those provisions shall be taken to include the 30 Vict. c. ci.
By section 4 of the Act the Conservators of the river Thames Surface of are incorporated, and they shall cause the surface of the Thames river to be to be (as far as is reasonably practicable) effectually scavenged, scavenged. in order to the removal therefrom of substances liable to putre- c. 89, s. 52. 29 & 30 Vict. faction.
Subject and without prejudice to their existing powers, rights, Duty of conand privileges, it shall be the duty of the Conservators by all servators to lawful and proper means to preserve and maintain at all times preserve flow and purity of as far as may be the flow and purity of the water of the Thames water down and its tributaries down to the western boundary of the metro- to Metropolis. polis, and the discharge of that duty, and the proper exercise 30 Vict. and execution of the powers and functions of the Conservators c. ci. s. 5. under the Thames Conservancy Acts, 1857 and 1864, and the Navigation Act of 1866, and the Upper Navigation Acts therein referred to, shall be deemed purposes of the Thames Conservancy Act, 1857, within the meaning of sections 111 113 (both inclusive) of that Act.
rate, etc., to contribute towards cost of improvements in river
Any body corporate, commissioners, or other body, and any bodies corpo- trustees or other persons, may from time to time contribute out of or by means of the funds or property under their respective management or control, and lawfully at their disposal for this purpose, or belonging to them, such sums of money in such form and on such terms and conditions as they think fit (but not so as to prejudice any right or interest of any person) towards the cost of such improvements in or relating to the Thames under this Act, as they deem beneficial to any lands under their management or held by them, or to the inhabitants of any town or district in or adjoining to which those lands are situate.
29 & 30 Vict. c. 89, s. 62.
From and after the passing of this Act it shall not be lawful
(2.) To cause or without lawful excuse (the proof whereof
If any person does any act or thing in contravention of this enactment, he shall for every such offence be liable on summary conviction to a penalty not exceeding £100, and to a further penalty not exceeding £50 for every day during which the offence is continued after the day on which the first penalty is incurred.
Whenever any sewage or any other offensive or injurious matter is caused or suffered to flow or pass into the Thames, or is caused or suffered to flow or pass into any river, stream,
one since the above date, and it did not need repair. The Paving, etc., Local Board of Health having called on the adjacent owner to private sewer, pave and level it, and on his refusal, having done so Liability of themselves, obtained an order of the justices on the owner to pay the expense. This being the state of facts, upon a case expenses. stated for the opinion of the Court of Queen's Bench, it was held that there was ample evidence that the road was a highway dedicated to and adopted by the public, and the adjudication of the justices was quashed accordingly (1).
The following are later decisions on the same point. In the year 1830 a street in a town, connecting two streets which were common and public highways, was made by the owner of the land, who, however, was only a leaseholder (though that fact did not come before the Court), and opened throughout to the public, and remained ever afterwards open. At the time when he opened it he intended the street or road to be used as, and to be a common and public highway, and it had been ever since adopted and used uninterruptedly as such. In the year 1825, a local Act was passed for paving, lighting, and cleansing the town, and under it commissioners were appointed for carrying its purposes into execution. By sect. 7 of that Act, when any new streets, &c. are made in the town, and well and effectually flagged and paved to their satisfaction, the commissioners on application by the owner or owners of the soil are required by writing under their hands to declare the same to be public highways, and from and after such declaration the same shall be deemed and taken to be highways, and be repaired by the commissioners. In the year 1852, the provisions of the 11 & 12 Vict, c. 63, with the exception of sect. 50, were applied to, and put in force in the town. The Local Board of Health having given notice to the respondents, who were owners of the premises in the street referred to, requiring them within a month to pave, flag, channel, and make good so much of the street as their premises respectively abutted upon, and the notice not being complied with, the Local Board thereupon executed the work, and demanded from the respondents payment of the expenses so incurred, which being refused, they took proceedings in a summary manner for the recovery of them. Upon the facts proved at the hearing of the information, it appeared that if the street was not on the 1st of September, 1858, a highway within the meaning of sect 69 of the 11 & 12 Vict. c. 63, the respondents were liable to the payment of the sum demanded of them; but if it was a highway within the meaning of that section they were not liable to the payment. The commissioners under the Local Act never exercised their option of declaring the street a highway, so as to render it repairable by them, and neither they nor the Local Board of Health, nor the respondents had ever repaired the street.
(1) Illingworth v. Montgomery, 2 L. T. (N. S.) 726.