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CHAN. DIV.] TWICKENHAM URBAN DIST. COUNCIL v. MUNTON AND ANOTHER. [CHAN. DIV.
is the proper way to obtain an interpretation of and enforce a general statute.
Neville, Q.C. in reply on the objection.
NORTH, J.-I do not think I can refuse to exercise jurisdiction here. It is not a case where there are proceedings pending before the magistrates, and the effect of my exercising the jurisdiction would be that these proceedings ought not to go on. I do not think there is any reason why I should refuse to hear the motion. There is nothing in Stirling, J.'s judgment in the case cited to suggest that there was any want of jurisdiction; the only question was whether it was expedient to exercise it.
Farwell, Q.C. and R. Cunningham Glen for the motion. The only point to be decided is, whether this is a new street within the meaning of the 63rd section of the Towns Improvement Clauses Act. It cannot mean simply and solely a street made across a field where no street existed before; it must include the turning of a country road such as this is into a street, by the erection of houses on each side. Here we have old buildings extending 400ft. on one side, and it is proposed to erect buildings extending some 230ft. opposite to them. If the street is not made the proper width now it never can be, for there will always be a bottle-neck at this northern end. There has been no judicial decision on the construction of this Act, but there are decisions on sections in the Public Health Act in pari materia. The effect of them is stated in Lord Selborne's judgment in Robinson v. The Local Board of Barton Eccles (50 1. T. Rep. 57; 8 App. Cas. 798), and they plainly cover the present case. A similar point came before your Lordship in
Hendon Local Board v. Pounce, 61 L. T. Rep. 465; 42 Ch. Div. 602.
Neville, Q.C. and R. E. Moore for the defendants. Every case must depend upon the particular circumstances. That is laid down by Sir George Jessel in
Robinson v. The Local Board of Barton Eccles, 47
The plaintiffs must show that this country lane has become a street in the ordinary popular acceptation of the term. The mere fact that there are buildings on both sides at one or more points on a country lane will not make it a street; there must, as Sir George Jessel says in the same judgment, be some continuity. The nature of the buildings must be taken into consideration; the usual meaning of street is a road with dwelling-houses or shops on each side. This lane can never become a street in that sense owing to the nature of the ground.
NORTH, J.-I think I must hold that this is a new street within the meaning of the decisions, taking the decisions to be summed up in the case which has been cited to me from the House of Lords. There is a difficulty, no doubt, in saying when a country lane has become a street, as the Master of the Rolls pointed out when the matter was before the Court of Appeal. He points out this: "There are two ways in which a street may come into existence where there was no street before. A person may take a grass field or a country lane (for in my opinion it makes no difference whether or not there was a public highway and lane or a footpath existing MAG. CAS.-VOL. XIX.
before which is thrown into the street and is utilised, or whether there was nothing but a mere plot of grass land out of which a new roadway is made), he may take it and build continuous lines of houses so as to form what is commonly known as a street. When I say continuous lines, I do not mean that there are to be no breaks or intervals, but there must be a certain degree of continuity. Then he points out another way in which a street may arise, and says that is "where it is not from the first laid out as a street in a formal manner, but may be considered to grow up, so to say, of itself. This often happens where there is an existing highway and people build houses along the sides of that highway, so that, without any intention of laying out a street, the street grows. When does it become a street? This question cannot be answered until you know the locality. No doubt there may be great difficulty in saying in such a case as the latter when it does become a street. He points out that where you have continuous lines of buildings on both sides, then that is one way in which the property becomes a street. He points out that a new street does not mean necessarily without any break or interval, but that there must be a certain degree of continuity. In this case, there being buildings on the one side, it is proposed to put up a building which will extend about 230ft. or 240ft. along the other side; but supposing, instead of putting up a continuous building there a row of cottages of that length had been put up -perhaps twelve to twenty cottages-could it be said then that that was not a new street? Neville did not suggest that that would not be so, but he said there was a difference between that case and the present one, and in a certain sense there is. What they are doing here is defining the line of road-I do not use that word in a technical, but a general sense-defining the road on which people are to pass, by fixing walls and by altering the state of things so that there will be walls on each side limiting the road to that particular space, in this case 21ft. or 22ft. as the case may be. I must say I think that what will be the line of road between these walls will be a new street within the meaning of the Act. I
I think I am justified in coming to that conclusion by not only the view which Lord Selborne expressed in the case which has been cited to me, but also that I am conforming to the views of Sir George Jessel.
Solicitors Smiles and Co., agents for W. W. Goddard, Stourbridge; Church, Rendel, Todd, and Co., agents for Charles Herbert Collis, Stourbridge.
Nov. 10 and Dec. 10, 1898.
TWICKENHAM URBAN DISTRICT COUNCIL v. MUNTON AND ANOTHER. (a) Private street works-Urban authority-Approval of plans-Amendment to resolution and plans by justices without fresh notices to owners-Jurisdiction of justices-Construction-Private Street Works Act 1892 (55 & 56 Vict. c. 57), ss. 6, 8, and 13.
Sect. 8 of the Private Street Works Act 1892
(a) Reported by W. L. RICHARDS, Esq., Barrister-at-Law.
CHAN. DIV.] TWICKENHAM URBAN DIST. COUNCIL v. MUNTON AND ANOTHER. [CHAN. Div.
confers jurisdiction upon a court of summary jurisdiction, at the hearing of objections made by owners of premises shown in a provisional apportionment as liable to be charged with the expenses for executing works under the Act, to amend the resolutions, plans, sections, estimates, and provisional apportionments approved by an urban authority just as if the same had been duly passed ab initio by the urban authority, and fresh notices to such owners as may be affected by such amendment need not be served.
THIS was a summons taken out by the plaintiff council asking for a declaration that the plaintiffs were entitled, under sect. 13 of the Private Street Works Act 1892, to a charge on certain premises belonging to the defendants in Montpelier-road, Twickenham, for the amount of expenses incurred by the plaintiffs in executing certain private street works in the said road under sect. 6 of the Act.
On the 27th June 1895 the plaintiff council resolved, with respect to Montpelier-road, Twickenham, to do certain works authorised by the Act, with the exception of lighting, and, on the 25th July, they passed the following resolution :
That the specifications, plans, sections, estimates, and provisional apportionment prepared by the council's surveyer, with reference to the making-up of Montpelierroad, be and they are hereby approved.
The plans, &c., mentioned in the resolution referred to the whole of Montpelier-road.
The resolution was duly published, and copies thereof served, pursuant to sect. 6, sub-sect. 3, of the Act, on the defendants and other owners of premises thereby affected.
The defendants gave no notice of any objections, but another owner gave notice of objection on his own behalf that a part of Montpelierroad was a street repairable by the inhabitants at large.
On the 1st Jan. 1896 the objection was heard in a court of summary jurisdiction, and it was held by the justices presiding thereat that a part of Montpelier-road was a street repairable by the inhabitants at large, but that the remaining part was a private street within the meaning of the Act. The justices thereupon amended the plans, estimates, and apportionment so as to limit the operation thereof to the latter portion of Montpelier-road, but they did not direct any fresh notices to be served and no further notices were in fact served on the defendant or on any other persons affected by the scheme. The defendants objected to pay their proportions under the apportionment made unless the whole of Montpelier-road was repaired and alleged that the repair of the portion to which the scheme according to the amended plans, &c., had been limited to would be detrimental to them so long as the rest of the road remained unrepaired.
Sect. 3 of the Private Street Act 1892 provides for the adoption of the Act by resolution of an urban authority; the plaintiff council had duly adopted the Act.
Sect. 6 provides for the preparation by a surveyor of specifications, estimate, and provisional apportionment of expenses of works under the Act, and for a resolution by the urban authority to perform such works, and also under sub-sect. 3 for publication of a further resolution approving the specifications, plans, and sections (if any),
estimates, and provisional apportionments, and service of copies of such resolution on the owners of premises shown as liable to be charged in such provisional apportionments.
Sect. 7 provides for service on the urban authority of objections to the proposals of the urban authority.
Sect. 8 provides as follows:
(1.) The urban authority at any time after the expiration of the said month may apply to a court of summary jurisdiction to appoint a time for determining the matter of all objections made as in this Act mentioned, and shall publish a notice of the time and place appointed, and copies of such notice shall be served upon the objectors; and at the time and place so appointed any such court may proceed to hear and determine the matter of all such objections in the same manner as nearly as may be, and with the same powers and subject to the same provisions with respect to stating a case, as if the urban authority were proceeding summarily against the objectors to inforce payment of money summarily recoverable. The court may quash in whole or in part or may amend the resolution, plans, sections, estimates, and provisional apportionments, or any of them, on the application either of any objector or of the urban authority. The court may also, if it thinks fit, adjourn the hearing and direct any further notices to be given.
(2.) No objection which could be made under this Act shall be otherwise made or allowed in any court, proceeding, or manner whatsoever.
Sect. 11 provides that the urban authority may amend the specifications, plans and sections (if any), estimates, and provisional apportionments for any works authorised by the Act, but if the total amount of the estimate should be increased, such estimate and the provisional apportionment shall be published, and copies of the same shall be served on the owners of premises affected thereby who might then object to the proposals as if the same were original estimates and apportionment.
Sect. 12 provides for the final apportionment when expenses ascertained and works completed, and such apportionment shall be final and the expenses recoverable as therein mentioned, subject to the right of owners to object on certain specified grounds to such final apportionment.
Sect. 13 provides that the premises included in the final apportionment shall stand charged with such expenses, and under sect. 14 the urban authority has power (in addition to any other remedy) to recover such expenses, the same expenses in a court of summary jurisdiction or as a simple contract debt in any court of competent jurisdiction.
Macmorran, Q.C. and Frank Russell for the plaintiffs. All the proceedings have been regular and the amendments by the justices to the plans, &c, are within their jurisdiction under sect. 8 of the Act. It is discretionary whether fresh notices are to be served on owners of premises affected, and the justices have not directed such notices. They referred to the Private Street Works Act 1892 (55 & 56 Vict. c. 57), ss. 3, 6, 7, 8, 11, 12, and 13.
R. C. Glen for the defendants.-The justices have exceeded their jurisdiction by purporting to discharge the function of the urban authority; sect. 6, sub-sect. 1, vests the right to decide whether the whole or part only of a street is to be repaired. The defendants are debarred by the conduct of the proceedings from the opportunity of exercising
CHAN. DIV.] TWICKENHAM URBAN DIST. COUNCIL v. MUNTON AND ANOTHER. [CHAN. DIV.
their right to object under sects. 7 and 8. Fresh notices of the amended plans, &c., should have been served on the owners affected by the scheme. If anything is done to alter the original resolution the urban authority must commence proceedings de novo. I submit that the summons is premature and misconceived:
Whitchurch v. Board of Works for the Fulham
District, 13 L. T. Rep. 631; L. Rep. 1 Q. B. 233. Macmorran, Q.C. in reply.-There is no obligation cast upon the justices to amend the resolu tion; they have power to amend the plans and specifications. [STIRLING, J.-The urban authority resolved that the whole street should be repaired, and no resolution has been passed that a part only should be made up; it would involve different considerations if only a particular part was to be repaired.] When the justices heard the objection they were bound under the circumstances to amend or else dismiss the proceedings if any alterations were required.
Cur. adv. vult.
Dec. 10.-STIRLING, J. (having referred to the sections of the Act, continued) :-I do not read the sections in detail at the present moment, but the provision of the Act is that the objections are to be dealt with in a summary way by a court of summary jurisdiction; and sub-sect. 2 of sect. 8 provides that No objection which could be made under this Act shall be otherwise made or allowed in any court, proceeding, or manner whatsoever." Then sect. 11 provides that "The urban authority may from time to time amend the specifications, plans, and sections (if any), estimates, and provisional apportionments." Then there is this qualification: "But if the total amount of the estimate in respect of any street or part of a street is increased, such estimate and the provisional appointment shall be published in the manner prescribed in part 2 of the schedule to this Act, and shall be open to inspection at the urban authority offices at all reasonable times, and copies thereof shall be served on the owners of the premises affected thereby; and objection may be made to the increase and apportionment," and so forth. Then when everything has been done, sect. 12 provides for the recovery of the expenses from the owners who are chargeable with it; and sect. 13 gives a charge similar to the one which we have been accustomed to consider under the Public Health Act. That is the section which is sought to be enforced in the present case. The Private Street Works Act of 1892 was duly adopted for the district of Twickenham, and came into operation on the 23rd Feb. 1893. [His Lordship reviewed the facts of the case, and continued:] The defendants resist the summons on the following legal grounds, which are put forward; first, it is said that the justices have exceeded their jurisdiction by taking upon themselves the function of the urban authority with whom rests the determination of the question whether the whole or part only of the street should be repaired. Undoubtedly sect. 6, sub-sect. 1, gives the urban authority the right to decide whether the whole or part of a street is to be repaired; and, in the present case, the plaintiff council bad by resolution determined that the whole of Montpelier-road should be repaired. Sub-sect. 2, however, provides, as I have already pointed out,
that the specification, estimate, and provisional apportionment shall be submitted to the urban authority, who may by resolution "approve the same with or without modification or addition as they may think fit." So that they are not bound by the first resolution, but liberty is expressly reserved to them to modify or add to it. In this case the approval was without modification or addition. Sub-sect. 3 provides for due notice of the last-mentioned resolution being given to the owners of the premises shown as liable to be charged, any one of whom may, under sect. 7, take objection to the proposed works on the following, amongst other grounds, and it is important to see what the grounds are on which objections may be taken. The first is: (a) "That an alleged street or part of a street is not or does not form part of a street within the meaning of this Act"; (b) "That a street or part of a street is (in whole or in part) a highway repairable by the inhabitants at large"; (c) "That there has been some material informality, defect, or error in or in respect of the resolution, notice," &c ; (d) "That the proposed works are insufficient or unreasonable, or that the estimate expenses are excessive"; (e) "That any premises ought to be excluded from or inserted in the provisional apportionment"; (f) "That the provisional ap. portionment is incorrect in respect of some matter of fact "; and so forth. Now, sect. 8 provides that all these objections are to be dealt with by a court of summary jurisdiction, and the court is to "publish a notice of the time and place appointed, and copies of such notice shall be served upon the objectors; and, at the time and place so appointed, any such court may proceed to hear and determine the matter of all such objections," without any limitation, “in the same manner as nearly as may be, and with the same powers and subject to the same provisions with respect to stating a case as if the urban authority were proceeding summarily against the objectors to enforce payment of a sum of money summarily recoverable. The court may quash in whole or in part or may amend the resolution, plans, sections, estimates, and provisional apportionments, or any of them, on the application either of any objector or of the urban authority. The court may also, if it thinks fit, adjourn the hearing, and direct any further notices to be given.' Now, here the court did not quash the resolution or the plans, sections, estimates, or provisional apportionments, but amended the plans, estimates, and apportionments, without, however, saying anything about the resolution. But it is to be observed that in that they were within their power; that is to say, the court may quash in whole or in part, or amend the resolution, plans, and so forth, or any of then; and in point of fact the resolution was in terms so framed by reference to the plans and estimates, as not to require any verbal modification. Now, upon the construction of the Act, the jurisdiction of the court of summary jurisdiction to amend a resolution, and the accom. panying plans, sections, and so forth, appears to me to exist in a case where the objection taken is that the street or part of the street is a highway repairable by the inhabitants at large, no less than when the objection is of any other nature specified in sect. 7, and where the jurisdiction is exercised, I can find nothing in the Act which renders it necessary that the urban authority
ROBERTS v. GWYRFAI DISTRICT COUNCIL.
should begin their proceedings de novo, or pass a resolution limiting the works to that part of the street which is not repairable by the public; so to decide would, as it seems to me, be, in fact, to hold that the power of the court of summary jurisdiction is in such a case limited to quashing the resolution, and the accompanying plans, and does not extend to amending them. I do not think that is the true construction of the Act but I think that the amended resolution, and plans, and so forth were meant by the Legislature to take effect just as if they had been duly passed ab initio by the urban authority itself, In my judgment, therefore, the justices did not exceed their jurisdiction. Secondly, it was contended that the defendant had been by these proceedings deprived of all opportunity of taking objection to the works now proposed to be executed. Now that is true; but sect. 8 provides that the court of summary jurisdiction, may, if it thinks fit, adjourn the hearing, and direct further notices to be given. It was, therefore, within the power of the court of summary jurisdiction to direct notices to be given to the defendants, but it was not obligatory on such a court so to do. Plainly they had a discretion in the matter, and that discretion was exercised. It is not for me to say whether or not the discretion was properly exercised. All that I have to determine is whether they acted within their jurisdiction. I think that they did, and it appears to me, therefore, that this objection also fails. On the whole I come to the conclusion that the plaintiffs are entitled to the order which they ask, and that order must be made accordingly.
Solicitors: Ruston, Clark, and Ruston; Munton and Morris.
A district council subtracted water from a lake from which flowed a stream which drove the plaintiff's mill.
Held, that the plaintiff as a riparian owner was entitled to an uninterrupted flow of water as in the past, whether the acts of the defendants caused injury to the plaintiff or not. Sect 332 of the Public Health Act 1875 did not enable the defendants to "injuriously affect" the plaintiff's right to an uninterrupted flow of water without his consent, and there was no statutory power enabling the defendants to interfere with the plaintiff's common law right.
THE plaintiff, John Roberts, was the owner and occupier of an ancient mill and land known as Brynygro Mill, in the parish of Llanllyfni, in the county of Carnarvon.
The plaintiff's mill was driven by the water of a stream which flowed from a lake at the foot of mountains some distance above the mill. The plaintiff alleged that, whenever necessary for the (a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law.
purposes of the mill, owing to the scarcity of water in the stream through drought, he was entitled by prescription to dam up the water of the lake as a reservoir for the supply of water to his mill.
In 1893 the defendants, the Gwyrfai District Council, informed the plaintiff that they intended to take water from the lake for the purpose of supplying with water certain villages in their district, and applied for his written consent to their so doing.
The plaintiff refused to give such consent. The plaintiff further alleged that, notwithstanding such refusal, the defendants laid down pipes in order to take water from the lake, and threatened and intended to take such water.
The plaintiff claimed an injunction to restrain the defendants, their servants and agents, from taking any of the water from the lake, and from doing any act whereby the flow of water in the stream through and by the plaintiff's mill and land would be diminished.
By their defence the defendants did not admit that the plaintiff was owner or occupier of the mill or land mentioned in paragraph 1 of the statement of claim, or that he was entitled by riparian rights or otherwise to the flow of the stream running from the lake, or that he was entitled by prescription or otherwise to dam up the water of the lake.
The defendants did not admit that they applied to the plaintiff for his written or other consent to their taking water from the lake, or that any such consent was necessary.
The defendants contended that the plaintiff had not by reason of the matters alleged in the statement of claim any right of action against the defendants.
The defendants further said that they were the lessees and occupiers of certain lands adjoining the lake, and were entitled to riparian and other rights in such lake, including the right to take water therefrom for the purpose of supplying the same within their district, so far as they could do so without causing damage to other riparian owners or occupiers, and that they had not done, or threatened, or intended to do, and did not threaten, or intend to do, any act whereby the flow of water in the stream through or by the mill or land had been or would be diminished, or so as to cause any damage to the plaintiff.
Warrington, Q.C. and Bryn Roberts for the plaintiff. On the question of the right of a riparian owner to have a stream of water flowing in its natural state, without diminution or alteration, the case is governed by
Embrey v. Owen, 6 Exch. Rep. 352.
It is sufficient to prove violation of the right, and the law will presume damage. Judgment in that case was given for the defendant because the use was reasonable:
Wilts and Berks Canal Navigation Company v.
[KEKEWICH, J.-What do you say is the plaintiff's prescriptive right ?] The plaintiff has a right by prescription to put stones and sods in the
ROBERTS v. GWYRFAI DISTRICT COUNCIL.
stream to regulate the flow of water, and to go on the land for that purpose. The Public Health Act 1875 gives no right to the local authority to take water from a running stream without the consent of the riparian proprietor: (sect. 332). Sects. 51, 53, and 327 also bear on the subject.
Renshaw, Q.C. (Maemorran, Q.C. and A. Glen with him). The defendants are lessees and licensees of the Crown. In 1896 they were given licence and authority by the Crown to construct and maintain an embankment and other works. They have a right to take water so long as they do no damage to other riparian owners:
Swindon Waterworks Company v. Wilts and Berks
As to sect. 332 of the Public Health Act 1875, it is the duty of the district council to supply water if they do not "injuriously affect" the supply of water. This is a quia timet action; there is no damage, and no probability that the apprehended danger will ensue :
The Attorney-General v. The Corporation of Manchester, 68 L. T. Rep. 608; (1893) 2 Ch. 87. [KEKEWICH, J.-There is no authority on the words "injuriously affect" in sect. 332 of the Public Health Act 1875.]
A. Glen. Injuriously affect' means an injury which would give the plaintiff a right of action. In the case of Earl of Sandwich v. Great Northern Railway Company (10 Ch. Div. 707) the railway company was held to be entitled to subtract a reasonable amount of water for their station.
Bryn Roberts, for the plaintiffs, in reply.-The Public Health Act 1875 does not enable the defendants to do what they are doing; all it says is that nothing in this Act shall authorise them to do certain things without the consent in writing of the riparian owner; there are no compulsory powers. Sect. 332 is in similar words to sect. 68 of the Lands Clauses Consolidation Act 1845 There is a case on sect. 73 of the Local Government Act 1858 (21 & 22 Vict. c. 98), namely, Reg. v. Darlington Local Board of Health (35 L. J. 45, Q. B.), where it was held that the acts of the board were in excess of the powers given them by statute; and that they had "injuriously affected" the river:
Cooper v. Crabtree, 47 L. T. Rep. 5; 20 Ch. Div. 589, 592.
Renshaw, Q.C. in reply on the case of
Reg. v. Darlington Local Board of Health, 35 L. J. 45, Q. B.
In that case the board took the whole supply of water.
KEKEWICH, J.-So far as the plaintiff's claim to relief is founded upon the ground of prescription, I did not call upon counsel for the defendants. The plaintiff's claim in the second paragraph of his statement of claim is this: The plaintiff's said mill is driven by the water of the said stream. The plaintiff, whenever necessary for the purposes of the said mill, owing to the scarcity of water in the said stream through drought, is entitled by prescription to dam up the water of the said lake as a reservoir for the supply of water to his said mill." That was
put by Mr. Warrington into this form. I asked him, at the conclusion of his case, what he claimed as a prescription, and he said he sought to place at his will and pleasure stones and other refuse so as to regulate the flow of the stream, and to go upon the land for that purpose. That is attempted to be supported by the evidence of two witnesses. The second witness had never any connection with the plaintiff's mill. What he had done was solely for the benefit of what has been conveniently called the other mill, which is on the other portion of the stream, and although he had on one or two occasions, perhaps three in all, assisted the son, or the survivor of the previous persons in possession, it was entirely in reference to the other mill, and had nothing to do at all with the plaintiff's mill. Therefore I put the evidence of the second witness, David Evans, aside. Then I have the evidence of the plaintiff himself. I do not wish to be too severe upon the plaintiff, especially as he was examined through an interpreter. There is always some difficulty in getting exactly what the witness says, and what he means; but even if I gave full credit to his testimony, which I am bound to say I certainly do not, it would only come to this, that he "occasionally" made openings, although he says "frequently," and he dammed up this lake for purposes connected with his own mill with a view to increasing or diminishing the supply of water; as I understand, diminishing it in the first instance so as to obtain increased quantities afterwards. Having regard to the authorities and the principles on which prescription is regulated, I am prepared to hold that his claim to a prescriptive right is not within the particulars he alleges. It is very difficult to know what he did in particular. It is difficult to say what he did, even supposing he has established a right to what is disputed. I think it would be waste of time to criticise his claim, but I thought it right to say so much, and get rid of that part of the case. So far as the costs have been increased by that the plaintiff must pay those costs, whatever may be the result of the case generally, and those costs must, I suppose, be taxed as between solicitor and client. With regard to the rest of the case, it raises an entirely different question. The defendants, in the exercise of what they conceive to be their duty and within their powers, utilised the waters of this lake by constructing certain works, which are admitted at present to be properly constructed, with a view of supplying the district with water. It is not suggested that the plaintiff would be any the worse off now than he was before. If I may venture to suggest, from the way in which he was speaking with a knowledge of the facts, I should certainly hazard the conclusion that he would probably be better off in the future than he has been in the past. The supply may not be the same, but it will be sufficient, and, if that is constant at all, it will be more constant than it has been before, when, as we know from the evidence, it was of an intermittent character, and sometimes very much less than was required for the purposes of the mill. But the plaintiff says: "I am entitled to insist upon having what I had before. It is immaterial whether the water I had before is better or worse than what is now proposed to be given to me; it is for me to consider whether I shall derive any benefit from the alterations; I protest against any