Professional Notes

"amount of fine, heriot, &c. Each copy of court roll represents a "distinct property, and the steward is bound to keep such distinction "intact; and each copy is a title deed involving much labour. The steward, however, can only claim to be paid on the principle of a "quantum meruit,' and the copyholder in question can have the fees "reviewed on taxation, or if sued for them obtain the judgment of the "court as to their reasonableness. As a concession, I sometimes make a reduction in such cases, especially where the properties are small."

A. DUDLEY CLARKE, Fellow.

Reply to Query 806 (Vol. XI., p. 455.)

UNDERPINNING-LESSEES' LIABILITY.

I am of opinion that under a covenant to "uphold, support, sustain, "and maintain," the lessees are liable for underpinning the main walls as deemed necessary, the lessees' remedy being against the Tube Railway, if it can be proved that the construction of their lines has caused the serious settlements which have taken place.

W. BENNETT ROGERS, Fellow.

Replies to Query 807 (Vol. XI., p. 455.)

PUBLIC HEALTH ACT, 1875-SINGLE PRIVATE DRAIN.

I do not think that the District Council can be compelled to drain the houses; the obligation is upon the owner to connect with the sewer already provided, if the surface water constitutes a "nuisance," which probably it does not.

W. F. PERKINS, Fellow.

I do not think the owners have any power to compel the District Council at its own cost to take the surface drainage from the residences

into the sewer.

JAMES E. CLIFTON, Fellow.

A question may arise, influencing a decision in this case, as to whether the Public Health Acts Amendment Act, 1890, was adopted before or after the making of the drain. This is not stated. I do not think, however, that the local authority can be compelled to connect this drain with the existing surface water sewer; but they may do so if they choose.

In the case of Bradford v. Mayor of Eastbourne (Q. B. D., May 14 and June 18, 1896), it was held that a similar drain was a single private drain within the meaning of Section 19 of the Public Health Acts Amendment Act, 1890, and the owner having failed to comply with notice to connect with the sewer had to pay the cost of doing so. I do not think the fact of this drain conveying sewage proper instead of surface water makes any difference in the principle laid down.

T. J. HANKINSON, Fellow.

Reply to Query 808 (Vol. XI., p. 455.)

RURAL DISTRICT COUNCIL-LOWERING STREET LEVEL-GAS MAIN-LIABILITY.

I am of opinion that the Council is liable for the cost of the alterations, as they were rendered necessary solely by the improvements of the road levels made by the Council.

F. J. C. MAY, Fellow.

Reply to Query 809 (Vol. XI., p. 456.)

LIABILITY OF URBAN AUTHORITY-COMBINED DRAIN-PUBLIC HEALTH ACTS AMENDMENT ACT, 1890.

These are very troublesome questions, made unnecessarily complex by the clumsy draughtsmanship of the statutes, and a reckless kind of confused artificial nomenclature.

It may assist to a proper understanding of this kind of questions if it is borne in mind that "sewers" (sæ-wærs, that is, sea-fences) originally meant walls and banks for the defence of the land against the sea and the tidal rivers, as well as for the maintenance of the navigable condition of the tidal streams, together with the ditches, collecting-ponds, gutters, cuts, sluices, and other works necessary to protect the walls and banks from damage by the down-flow of the fresh waters behind them, and to secure the land lying near tidal waters from being flooded by the down-flowing waters being backed up by the flowing of the tide. On the other hand, drainage works were for the removal of superfluous water from land, and incidentally of surface water from buildings, but it was

illegal to foul these drains aud streams with filth (vide Collis, Woolrych, Toulmin-Smith, and others). This explanation is necessary to show that the term "sewer" in the Public Health Acts excludes the surface-water, streams, and ditches, and the meanings of both of the expressions "drain and "sewer therein must be limited to the definitions given in those Acts, which meanings are in accordance with comparatively modern and corrupt use, viz. works for the removal of sulliage and filth from houses and other buildings and their curtilages. Therefore those ditches and streams by which water from the land is drained away are not "sewers vested in the local councils, although they may be continuous through the lands of many owners.

NOTE.-For brevity the Acts are referred to herein only by the years of their enactment, “1875" being the Public Health Act of that year, and "1890" the Public Health Acts Amendment Act.

I assume from the wording of the questions that Part 3 of 1890 has been "adopted" by the Urban Council.

1875, Section 4, gives the definition drain thus: means any drain of "and used for the drainage of one building only, or premises within the same curtilage, and made merely for the purpose of communicating "therefrom with a cesspool or other like receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed," and sewer" includes sewers " and drains of every description, except drains to which the word 'drain' interpreted as aforesaid applies . . . ."

1875, Section 41, put shortly for the purpose of this answer, provides that on the written application of any person to the local authority stating that any drain. . . . on or belonging to any premises is a nuisance or injurious to health (but not otherwise) the authority may by writing empower their officers, after twenty-four hours' notice in writing, to enter the premises, open the ground, and examine such drain, and if it appear to be in bad condition the owner or occupier after notice from the authority is to amend, under penalty for neglect, and the authority may execute the necessary works and recover the expense from the owner.

Then 1890, Section 19, which is divided into three subsections, alters the definition of "drain," but for the purposes of that section only, so that although that which was heretofore a sewer, and is now called a drain, yet still remains a sewer vested in the local authority and a sewer also for all other purposes.

It may be convenient to take firstly into consideration Subsection 3: "For the purposes of this section the expression drain' includes a drain "used for the drainage of more than one building." And as "building" includes house the same meaning must apply if the drain is used for more than one house, and therefore, for the purpose of this section (only) a drain which is used for more than one house is no longer a sewer (as per 1875, Section 4), but a drain. Then Subsection 1 enacts that: "Where "two or more houses belonging to different owners are connected with a public sewer by a single private drain." Then 1875, Section 41, can be

put in force, and if the authority do the work, the cost is to be apportioned on the owners by the surveyor of the authority or by a court of summary jurisdiction and recovered from them.

It will be observed that this 1890, Section 19, can only be enforced in respect of a drain from houses, and those houses belonging to different owners and connected with a sewer, and cannot apparently apply to houses in one ownership, or buildings which are not houses, or if the drain communicates with a cesspool.

The prefix private to the terms "drain" and "sewer" in this Section 19 introduces some confusion. Both Glen and Lumley, cited below, say it is difficult to assign a precise meaning to "private drain," but later Lord Russell, Lord Chief Justice, held it means a drain constructed for the drainage of one or more houses as distinguished from a drain or sewer which any member of the public may have a right to use, Hill v. Hair (L. R. 1895, 1 Q. B. 96).

The answers to the numbered sections in the question are:(1) The drain is a private drain under 1890, Section 19. (2) No question of public easement arises. The road is not a dominant tenement to which the houses are servient, nor is there any circumstance disclosed which would negative the right of any owner of the houses to shut out the flood water which occasionally flows off the road. The burthen of taking the waters does not become fixed upon the owner of the house by prescription.

(3) The question of private easement does not arise. It is a question of statutory authority and liability as above explained. The notices are to be served firstly on the occupier and next on the owner and occupier of the premises on which the nuisance exists (1875, Section 41).

(4) No. Note also that even if the owner, under other circumstances, were liable to the council, it would only be after statutory notices served by the council to compel the works, and not after a mere cautionary notice or request, to which the owner may assent or which he may ignore as he may choose.

(5) The council is not liable to maintain the drain. Even were it otherwise the council would only be liable for mis-feasance, not

for non-feasance.

For cases see the lawyers' treatises here cited: Lumley on Public Health, Glen's Public Health Acts, with notes (both in Surveyors' Institution Library), and Digest of Public Health Cases (Sanitary Publishing Company, 5, Fetter Lane). In reading these, however, be very careful to distinguish between the metropolis and other parts, as the law is not the same throughout; and note also that "combined drain" is not a statutory expression, although "drainage by a combined operation” is, and that the latter applies only to the metropolis (see Metropolis Local Management Acts).

There still remains a question of some difference as to that portion of a "private drain" which may lie under a public road between the sewer

and the point where the drain enters the curtilage of one of the several houses. If the nuisance were to arise from that portion the liability to abate it would not be on the owner of any one of the several premises, but would attach to them all, and no portion of the expenses incurred by the authority (1875, Section 41) could be apportioned on or recovered from an owner who had not been served with the second notice mentioned in that section.

One writer, learned in the law, hazards the opinion that private drain does not extend beyond the private land forming the sites of the houses through which the drain runs, and that the portion in the street is therefore still a sewer, but this opinion, given in doubt, is still of doubtful value.

ARTHUR HARSTON, Fellow.

NOTE.-See also articles reprinted from "The Contract Journal," p. 545 infra.

Replies to Query 810 (Vol. X1., p. 457).

CROWN LEASE-LAND BOUNDED BY RIVER-ALTERATION OF
COURSE OF RIVER.

(A) If the river gradually shifted its course so that the strip of land was gained by accretion, then the lessee had the right to claim all land to the margin; if it was a sudden, not a gradual, diversion, he had not.

(B) If his lease is still in force he has a claim against his lessor for turning him out of part of the demised land, assuming the land gained by accretion.

J. W. WILLIS BUND, Associate.

A. In the absence of express evidence to the contrary, a grant of land on the banks of a tidal navigable river would, prima facie, be bounded by the line of high-water mark (see Coulson and Forbes, Law of Waters, 2nd edition, p. 81), and this would seem to apply equally to a lease (see Law of Waters, p. 101, and Tilbury v. Silva, 45 Ch. D. 98, which, though relating to non-tidal rivers, seems so far applicable to tidal rivers). As therefore the old high-water mark before the recession of the river was the original boundary, and the acreage of the land is expressly stated in the lease and on the plan, it could hardly be contended that the lessee was entitled to additional lands, not possessed by the Crown, when the lease was executed.

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Professional Notes, 11권