By the Highway Act, 1864, s. 3, "highway rate" shall in- Amount of clude any rate, whether poor rate or not, out of the produce of assessment. which moneys are payable in satisfaction of precepts of a High- 18 & 19 Vict. way Board. The law officers of the Crown (Karslake and Selwyn), and Mr. Tomlinson, with reference to the limitation of the rate to be levied under 18 & 19 Vict. c. 121, S. 22, have advised the Poor Law Board that in a poor law parish which is co-extensive with a highway parish and in which the precept of the Highway Board is addressed to the overseers of the poor law parish, and the amount called for is paid by them out of a rate made in accordance with the statute 6 & 7 Will. IV. c. 96, there is an assessment to the highway rate within the meaning of the proviso to 18 & 19 Vict. c. 121, S. 22; and that the guardians as the local authority can in no case make an assessment for the purposes of the 18 & 19 Vict. c. 121, S. 22, at an amount exceeding one shilling in the pound on the rateable value of the property mentioned. The word " assessment" means, not the sum assessed, but the rateable value at which the premises are assessed to the highway rate. The rate may be for a sum more than one shilling in the pound and spread over several years, but so that in no one year the rate exceeds one shilling in the pound. (1) C. 121, s. 22. Ib. And after fourteen days' notice at the least left on the pre- Collection mises so assessed, they may levy and collect the sum and sums and recovery so assessed in the same manner, and with the same remedies, in of assessment. case of default in payment, as highway rates are leviable and collectable, and with the same right and power of appeal Appeal. against the amount of such assessment reserved to the Ib. person or persons so assessed as is given against any rate made for the repair of the highways. The assessing the premises and giving notice of the assessment are two successive acts, going to make up the liability of the person assessed; and the words "after fourteen days" refer to the latter, (2) and both days must be excluded in reckoning the fourteen days. (3) The provisions contained in 18 & 19 Vict. c. 121, s. 22, are deemed to be part of the law relating to highways in England; and under the 5 & 6 Will. IV. c. 50, s. 105, any person aggrieved by any rate may appeal to the next quarter sessions, first giving to the opposite party notice of appeal within fourteen days after the rate shall have been made. The following bears upon this enactment limiting the amount Limitation to of the rate. By a local Act a Town Council were empowered amount of to make once a year or oftener one or more rates, provided that rate. the amount to be levied did not in any one year exceed one (1) Reg. v. Middleton, 28 L. J. M. C. 41; 5 Jur. (N. S.) 622; 32 L. T. 124. (2) Reg. v. Middleton, 5 Jur. (N. S.) 623; 28 L. J. M. C. 41; 32 (3) Reg. v. Shropshire 77., 8 A. Ib. Limitation to amount of rate. 13 & 19 Vict. C. 121, s. 22. Jurisdicion. Power to to execute works in adjoining place. 21 & 22 Vict. c. 98. s. 28. penny in the pound upon the rateable value of the property. The Council made a rate and directed the overseers to levy £4767; but the overseers said they could not levy that sum without charging more than one penny in the pound upon the productive rateable property. The Council, therefore, applied to the justices to issue a warrant to levy the £4767 upon the goods of the overseers, but the justices declined to do so. Upon application for a rule to the justices and the overseers to show cause, the Court of Queen's Bench held that the justices were right in so declining. (1) Where any part of the ditch, gutter, drain, or watercourse shall be within the jurisdiction of different local authorities, the 18 & 19 Vict. c. 121, S. 22, is to apply to each local authority only as to so much of the works, and the expenses thereof, as is included within the respective jurisdiction of that authority. The following provisions of the Local Government Act, 1858, bear on the same subject: Every Local Board may, with the consent of the Local Board Local Board of any adjoining district, or with the consent of any adjoining place maintaining its own poor, do and execute in such adjoining district or place all or any of such works and things as the Local Board may do and execute within their own district, and upon such terms as to payment or otherwise as may be agreed upon between such Local Board and the Local Board of the adjoining district, or the Local authority under the Nuisances Removal Act, 1855, in and for such adjoining place; and any sums agreed to be paid by the Local Board of the adjoining district, in pursuance of this section, shall be payable out of the rates leviable under the Public Health Act, 1848, and this Act; and any sums agreed to be paid by such local authority shall be payable out of the same rates as the expenses of executing the said Nuisances Removal Act: and the consent of any such place to any work or thing proposed to be done under this section shall be signified in the same manner in which the consent of a place to the adoption of this Act is hereinbefore required to be signified; and where the expenses of any such work or thing would, if the same had been executed in a district under the powers of this Act, have been recoverable from the owners or occupiers, such expenses shall be recoverable by the Local Board or local authority of the district or place respectively from such owners or occupiers. In case any watercourse or open ditch lying near to or forming the boundary between the district of any Local Board and any adjoining parish or place shall be foul and offensive, so as injuriously to affect the district of such Local Board, any justices of the peace of the county, city, or borough in which such adjoining parish or place may be situate may, on the application of such Local Board, summon the local authority for the pur (1) Reg. v. Liverpool JJ., 6 L. T. (N. S.) 241, poses of the Nuisances Removal Act, 1855, of such adjoining Cleansing parish or place, to appear before the justices of the same county, foul and offensive boundaries of city, or borough, to show cause why an order should not be watercourses, made by the said justices for cleansing such watercourse or or open open ditch, and for executing such permanent or other structural ditches lying works as may appear to such justices to be necessary; and near to or such justices, after hearing the parties, or ex parte in case of the forming the default of any of them to appear, may make such order with districts. reference to the execution of the works, and the persons by 21 & 22 Vict. whom the same shall be executed, and by whom and in what c. 98, s. 31. proportions the costs of such works shall be paid, and also as to the amount thereof, and the time and mode of payment, as such justices shall deem reasonable; and any sums ordered to be paid by any justices in pursuance of this section shall be a charge upon and be payable out of the poor rates of such adjoining parish or place, as if the same were legally incurred in the relief of the poor of such parish or place, and in default of payment may be levied upon the goods and chattels of such overseers by distress and sale thereof. Apparently the 18 & 19 Vict. c. 121, s. 22, is compulsorily Course of upon the local authority; but, nevertheless, it could hardly have procedure. been intended that no discretion was to be permitted to them in the exercise of the powers given to them by the Act, when the owners or other persons interested in the property are willing themselves to do the works without the intervention of the local authority. As to what sewers came within the contemplation of the Act, Offensive the following observations, per Crompton, J., are important :- watercourses; "I think the 22nd section of the 18 & 19 Vict. c. 121, must be etc.held to include at the least a case in which a private person has a watercourse into which the sewage of new buildings is made to flow to such an extent as to cause a nuisance, requiring a remedy by structural works along the watercourse, or part of it, or instead of it. To make the owner of the watercourse do such works would be a hardship. The intention is, therefore, that the community should do it at the expense of those who get the benefit. (1) But the local authority are not entitled, on the ground of there being an ancient custom or privilege at various times and in various proportions of making a river or running stream carry off their sewage into drains, to collect the whole mass and pour it at one time in such a manner and quantity as that the river or running stream cannot perform its proper function of diluting the sewage on its passage down to the lower riparian proprietors, and thus cause a pollution of the stream and a nuisance. The Court in such a case will restrain the local authority from doing so in future if the practice has become a nuisance. (2) (1) Reg. v. Gee, 5 Jur. (N. s.) 1348. Attorney-General v. Richmond, 35 L. J. Ch. 597; 14 L. T. (N. s.) Offensive watercourses. etc. 21 & 22 Vict. c. 98, s. 31. Incorporated provisions of Highway Act. 5 & 6 Will. IV. c. 50, s. 67. Before proceeding to exercise the powers conferred upon them by the 18 & 19 Vict. c. 121, s. 22, it should be ascertained in the manner already indicated (ante, p. 507) whether a nuisance exists within the meaning of the Act. The local authority should then, by a resolution entered on the minutes of their proceedings, formally resolve that the ditch, gutter, etc., cannot in their opinion be rendered innocuous without the laying down a sewer or some other structural work, The sewer to be laid down by the local authority in pursuance of 18 & 19 Vict. c. 121, s. 22, must be as nearly as possible in the same line or course, and upon the same site as the former sewer. Where the former Sewer ran along the side of a field, it was held that the local authority was not, in the absence of proof that it was necessary to depart from the former line, justified in laying down a new one instead thereof across a field, although that might be the least expensive and most convenient mode of remedying the nuisance. It was also held that the power given by the 67th section of the 5 & 6 Will. IV. c. 50, did not justify the local authority, qua surveyor, in making the new sewer across the field, although it was bounded on one side by a highway; and further, that though the Local Act empowered the local authority to carry sewers, if necessary, through enclosed lands, making compensation to the owners, and giving twenty-eight days' notice before commencing, such Act must be taken into consideration together with the General Act, 18 & 19 Vict. c. 121. (1) On appeal to the Exchequer Chamber the judgment of the Court of Exchequer was, however, reversed, the Court holding that the Commissioners were justified by section 22 of the 18 & 19 Vict. c. 121, in making the new sewer though not made in the line of the old one; and that they were not disabled by reason of having previously had under the Local Act a similar power of making such sewer after notice to the landowner; and also holding that the compensation clause in the General Act 5 & 6 Will. IV. c. 50, was applicable. (2) A sewer made under the powers of a Local Act on the site of an old one, but deeper, larger, and wider than the old one, and intended to connect new drains with it, was held to be a new sewer. (3) The 67th and 68th sections of the 5 & 6 Will. IV. c. 50, which are incorporated with the 18 & 19 Vict. c. 121, S. 22, may here be quoted. The 67th section is nearly the same as the 21st section of the 18 & 19 Vict. c. 121, and is as follows: "And be it further enacted, that the said (1) Earl of Derby v. Bury Improvement Commissioners, 37 L. J. Exch. 64; 18 L. T. (N. S.) 147; L. R. 3 Exch. 121. (2) Earl of Derby v. Bury Improvement Commissioners, W. N. surveyor, district sur 1869, p. 135; L. R. 4 Exch. (Exch. Ch.) 222; 20 L. T. (N. s.) 927; 38 L. J. M. C. 100. (3) Holt v. Rochdale, 23 L. T. (N. S.) 43. C. veyor, or assistant surveyor, shall have power to make, scour, Highway Act. cleanse, and keep open all ditches, gutters, drains, or water- 5&6 Will. IV. courses, and also to make and lay such trunks, tunnels, plats, c. 50, s. 67. or bridges, as he shall deem necessary, in and through any lands or grounds adjoining or lying near to any highway, upon paying the owner or occupier of such lands or grounds, provided they are not waste or common, for the damages which he shall sustain thereby, to be settled and paid in such manner as the damages for getting materials in enclosed lands or grounds are herein directed to be settled and paid." By section 68, it is enacted, Ib. s. 68. "that if any owner, occupier, or other person shall alter, obstruct, or in any manner interfere with any such ditches, gutters, drains, or watercourses, trunks, tunnels, plats, or bridges, after they shall have been made by or taken under the charge of such surveyor or district surveyor, and without his authority or consent, such owner, occupier, or other person shall be liable to reimburse all charges and expenses which may be occasioned by reinstating and making good the work so altered, obstructed, or interfered with, and shall also forfeit any sum not exceeding three times the amount of such charges and expenses." The application of sect. 67, above quoted, to the new sewer or other structural work is this: that the local authority may, within their own jurisdiction, do that which is authorized by the section to be done in respect of ditches, etc., under the Highway Act; and of sect. 68, is to make any owner, occupier, or other person who shall alter, etc., any sewer laid down by the local authority, liable to reimburse all charges and expenses which may be occasioned by the local authority, by reinstating and making good the work so altered, etc. costs of new sewers. The local authority are empowered to assess every house, Assessment building, or premises, "then or at any time thereafter" using to defray the ditch, etc., to such payment, "either immediate or annual, or distributed over a term of years, as they may think just and 18 & 19 Vict. reasonable." But it will be observed that the Act gives the c. 121, s. 22. local authority no power to borrow money for the execution of the works if they should be of an extensive kind, and to charge the rates leviable under the Act with the repayment of the loan and interest. Moreover, a local authority who have rendered innocuous a drain passing through their district, conveying away the filth of houses in a higher district, have no power to assess the owners of those houses for payment of the expenses, though those houses use the drain. The power of assessment is confined to property within the district for which the local authority acts. (1) At the time of making the assessment, only existing houses, buildings, or premises are to be assessed; the benefit derived from the works is solely the benefit of existing houses, which, as they enjoy the benefit, ought to pay for it. If at a future (1) Reg. v. Tatham, 8 E. & B. 915. |