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rate-Volunteer Act 1863 (26 & 27 Vict. c. 15),
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18, 19 (3)
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(See Public Health.)
(See Criminal Law.)
Person suffering from delirium tremens-" Wil-
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-Vagrancy Act 1824 (5 Geo. 4, c. 83), s. 3 page 675
(See Local Government-Metropolis.)
VOTERS, REGISTRATION OF.
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sched. 2, form 1
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(See Local Government.)
Metropolis Fire hydrants User- Waterworks
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1875 (34 & 35 Vict. c. 113), s. 34-London
County Council (General Powers) Act 1894 (57
& 58 Vict. c. ccxii.), s. 4
WEIGHTS AND MEASURES.
Barrel used as measure No facility by local
authority for verification and stamping--Weights
and Measures Act 1878 (41 & 42 Vict c. 49), ss.
Coal-Sale of-Ticket Coal weighed at pur-
chasers' on delivery - Weights and Measures Act
1889 (52 & 53 Vict. c. 21), s. 21 (1) (2)
Coal ticket Merchant trading under trade name—
Insertion of trade name as seller-Sufficiency
-Weights and Measures Act 1889 (52 & 53
Vict. c. 21), s. 21
LAW ADMINISTERED BY MAGISTRATES
PAROCHIAL AND MUNICIPAL LAW.
SANDGATE URBAN DISTRICT COUNCIL v. COUNTY COUNCIL OF KENT.
Nov. 18, 22, 24, and 25, 1898.
(Before The LORD CHANCELLOR (The Earl of Halsbury), Lords WATSON, SHAND, DAVEY, and LOPES.)
SANDGATE URBAN DISTRICT COUNCIL v. COUNTY COUNCIL OF KENT. (a)
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.
Highway Maintenance and Repair-Sea wallEsplanade-Works necessary for protection of road-Annual payment-Local Government Act 1888 (51 & 52 Vict. c. 41), s. 11. sub-s. 2.
A local authority under an obligation to keep up a road is chargeable with the cost of works necessary for the preservation of the road, even though they may not actually form part of it, such as a sea wall and groynes necessary to prevent a road running along the sea shore from being periodically injured by inroads of the sea. The fact that a footpath along the top of such sea wall is, besides being part of the highway, used as a promenade or esplanade for the purposes of pleasure, does not affect the liability to repair. The words "annual payment towards the costs of maintenance and repair" in sect. 11, sub-sect. 2 of the Local Government Act 1888 mean a payment to be made annually in respect of the expenditure of the particular year, not a fixed sum to be arrived at by taking the average expenditure over a series of years. Judgment of the Court of Appeal reversed.
THIS was an appeal from a judgment of the Court of Appeal (Lord Esher, M.R., Smith and Rigby, L.JJ.) delivered in June 1897, who had reversed a judgment of the Divisional Court (Cave and Lawrance, JJ.) upon a case stated by an arbitrator appointed by the Local Government
(a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.
MAG. CAS.-VOL. XIX.
Board under sect. 11, sub-sect. 4, of the Local Government Act 1888. The case is reported below in 61 J. P. 517, and on a preliminary point not affecting the present appeal in 72 L. T. Rep. 725; (1895) 2 Q. B. 43. The appellants were the highway authority for the district of Sandgate, and in the year 1893 their predecessors, the Local Board of Sandgate, made a large claim against the respondents under sect. 11 of the Local Government Act 1888, in respect of the costs alleged to have been incurred by them during the four years ending the 25th March 1893, in the maintenance, and repair, and reasonable improvement of such part of the main road running from Folkestone to Hythe as was within their district. The part of the road referred to was within the urban district of Sandgate, and lay along the sea front and abutted upon the foreshore. The claim was repudiated by the respondents, and the difference was referred to the arbitration of the Local Government Board, and by an order of the Local Government Board under sect. 63 of the Local Government Act 1888, Mr. Thomas Codrington, a member of the Institute of Civil Engineers, was appointed to act as arbitrator. The arbitrator published his award in the form of a special case on the 1st Jan. 1897. By the award, some items of which were in favour of each party, the county council were ordered to pay 61887. to the appellants. The special case was heard by the Divisional Court on the 19th March 1897, and judgment was given on the 6th April 1897, confirming the award both as to the amount awarded to the appellants and as to the residue of the award in favour of the respondents, and the Court directed that each party should pay their own costs. Both parties appealed, and the appeals were heard together on the 24th and 25th June 1897, and judgment was given on the 25th June 1897, in favour of the respondents on both appeals, directing the arbitrator to reject the whole claim of the appellants and to award entirely in favour of the respondents. The road in question was a part of a road running from
H. OF L.] Folkestone to Hythe, and in the year 1883, when it became a main road; there was, between the carriage road and the sea, what was then, and still was known as the "Esplanade." It had been made at various times, and was of various widths. Beyond that there was a piece of land between the esplanade and the carriage road, which was laid out ornamentally and planted with shrubs. As long ago as 1867 the local board had repaired and improved it for the purposes of a promenade by regulating the width, kerbing and paving the same throughout. Throughout the entire length it was faced by a sea-wall, the outer edge of the esplanade being on the top of the sea-wall. This sea-wall had been erected at different times and under different circumstances, and besides protecting the esplanade and ornamental grounds from the inroads of the sea, it helped to protect parts of the carriage road also.
SANDGATE URBAN DISTRICT COUNCIL v. COUNTY COUNCIL OF Kent.
Dickens, Q.C., Cunningham Glen, and Drake Brockman, for the appellants, argued that, upon the findings of the arbitrator, the decision of the Queen's Bench Division was right, and should be restored. The sea wall and groynes are found to be necessary for the support and maintenance of the road, and therefore the appellants are entitled to be repaid what they have spent upon them. "Annual payment" in sect. 11, sub-sect. 2 of the Local Government Act 1888 means a payment of the expenses incurred in each year. The cases relied on by the appellants in the court below (Reg. v. Inhabitants of Paul (2 Moo. & Rob. 307), Reg. v. Inhabitants of Bamber (5 Q. B. 279), Reg. v. Inhabitants of Hornsea (23 L. J. 59, M. C.) are not applicable, and Reg. v. Inhabitants of Greenhow (35 L. T. Rep. 363; 1 Q. B. Div. 703) is really an authority in favour of the appellants. See also
Reg. v. Inhabitants of Lordsmere, 54 L. T. Rep.
Improvement Commissioners of Leek v. Justices of
Staffordshire, 20 Q. B. Div. 794;
Rex v. Inhabitants of Landulph, 1 Moo. & Rob.
Reg. v. Inhabitants of High Halden, 1 F. & F. 678; Reg. v. Inhabitants of Henley, 2 Cox C. C. 334. Macmorran, Q.C. and Bray, Q.C., for the respondents, contended that the findings of the arbitrator could not be supported on the evidence. In any case the esplanade cannot be part of the road for the repair of which the respondents may be made liable. "Annual payment fixed sum annually.
Dickens, Q.C. was not called on to reply.
At the conclusion of the argument for the respondents their Lordships gave judgment as follows:
The LORD CHANCELLOR (the Earl of Halsbury.)-My Lords: In this case, before I deal with the merits of the appeal, I wish to say a word or two upon the subject of the form of the award, because I think that scant justice has been done to the arbitrator in regard to the form in which this case is stated. I think, with great respect for those who think otherwise, that they have not sufficiently considered the complex nature of the problem which the arbitrator was called upon to solve. At common law all parishes were bound to repair their own roads. But when county councils were established, the duty was cast upon them of maintaining and keeping in
repair the main roads in their counties. To that
there was added a further provision, that if any
local authority thought proper to claim the right
of dealing with their own roads they might do so.
But the Legislature did not, even in such a case,
cast the whole cost of the maintenance of their
roads on the particular district; the county
council is to make a contribution for the purpose.
In those circumstances it is obvious that the ques-
tion of amount is a matter which, unless settled
by agreement, can hardly be determined by the
ordinary courts of law. The Legislature
accordingly provided that on failure of the
parties to agree on the contribution of the
county council it should be determined by
the Local Government Board. There was a road
bordering on the sea, in some places close to the
sea, and in some parts further off; in respect of
some part of the road it was contended, and found
by the arbitrator, that it was part of the main
road, and therefore it was beyond doubt within
the jurisdiction of the arbitrator to award the
contribution with respect to the maintenance and
repair of that part of the main road. Other
questions appear to have been raised as to whether
when a thing was not actually part of the main
road, but became necessary for the support
of the main road, so that the road could not
exist as a main road without it, but would be
continual state of disrepair, the county
council could be called upon to repair it,
and further it was apparently successfully
contended that the main road parted from the
sea shore at a point which was not either the
main road itself, or connected with, or forming
part of the support in maintainance of it, and
that if the local authority thought proper to
spend money upon it there, they must pay for it
themselves. That was the sort of problem that
the arbitrator had to solve, and it is manifest from
the mere statement of these facts that he had to go
into them with great minuteness. [His Lordship
discussed the form of the award, and continued.]
Now, let me deal with what I may call the merits
of the appeal. The first and main question is, of
course, whether the road or any part of it, and if
so, what part, is part of the main road? Subject
to the question of the amount to be allowed, which
is a question of fact for the arbitrator, he has
found in terms, with respect to a cousiderable
part of it, that it is part of the main road, and
therefore, so far as that part of the award is con-
cerned, it is conclusive against the County
Council, and perfectly according to law. Then
there comes another part as to which he finds
that it is not part of the main road strictly speak-
ing, but is so necessary to the maintenance
of the main road, that unless that construction
was there the main road might be washed away.
It was argued before the arbitrator that in point
of law the expenses, as regards that part were not
recoverable because it was not part of the main
road. To my mind that contention is absurd. Is
it common sense to say that where the obligation
is to maintain the road and keep it in repair, you
can, by neglect, allow that duty to be so disre-
garded that in time the road may be washed
away, so that your liability or obligation ceases?
Such a proposition is, to my mind, absolutely
monstrous. The obligation at common law,
(and the same obligations have been handed on to
the various bodies which in turn have received by