construed as referring only to the vestry of a parish mentioned in schedule (A.) to this Act, unless such construction be repugnant to the context.

68. Upon the commencement of this Act all sewers vested in the

metropolitan and district boards and vestries as to underground rooms occupied as dwellings. They are the local authorities for their parishes and districts for the purposes of 31 & 32 Vict. c. 130, the Artizans and Labourers Dwelling's Act, 1868; and by 38 & 39 Vict. c. 36, the Artizans and Labourers Dwelling's Improvement Act, 1875, their medical officers of health are authorized to make official representations to the local authority with a view to improvement schemes under that Act. They are the "road authority" for the purposes of 33 & 34 Vict. c. 78, the Tramways Act, 1870. They are included among the bodies, &c., on whom notices must be served before any license for the use of any place as a slaughter-house or cow-shed is granted by justices at special sessions under the 93rd section of the Metropolis Management Amendment Act, 1862, to the intent that they may, if they see fit, show cause against the grant of the license. By 38 & 39 Vict. c. 63, the Sale of Food and Drugs Act, 1875, they are within the metropolis (exclusive of the City of London and liberties thereof) authorized to appoint analysts of all articles of food and drugs sold within their districts, &c., with a power to their medical officer of health or sanitary inspector (amongst others) to proceed for penalties in case of offences against the Act. They are the "sanitary authority" for their parishes and districts for the purposes of the 39 & 40 Vict. c. 75, the Rivers Pollution Prevention Act, 1876, which defines such authority in the metropolis as any local authority acting in the execution of the Nuisances Removal for England Act, 1855, and the Acts amending the same. They were the local authority under the 26 & 27 Vict. c. 40, the Bakehouses Regulation Act, 1863, but that Act was repealed by the 41 & 42 Vict. c. 16, Factory and Workshops Act, 1878, which by section 96 defines the term "sanitary authority" to mean any commission, board, or vestry in the metropolis having the like powers as urban or rural sanitary authorities within the meaning of the Public Health Act, 1875, and contains enactments relating to the objects provided for by the repealed Act. They are also authorized to adopt proceedings within their parishes and district for the protection of highways, sewers and drains, and other property under provisions contained in special Acts, conferring upon companies and other bodies powers for the construction of railway bridges, the formation of new streets, roads, and various other objects.

(b) The effect of this section, in conjunction with section 135, is to vest in the metropolitan board the main sewers enumerated in schedule (D.) to the Act, including the main sewers of the city of London, and all other sewers within the parishes mentioned in schedules (A.) and (B.) in the vestries and district boards. All sewers within the city of London other than the mair. sewers specified in schedule (D.) remain vested in the commissioners of sewers of the city, who retain all powers relative to sewerage under the City of London Sewers Act, 1848, (11 & 12 Vict. c. 163) which are not transferred to the metropolitan board by virtue of this Act. The sewers existing at Woolwich at the time of the passing of this Act were vested in the local board of health, constituted under the Public Health Act, who, by section 238 of this Act, are made subject to the orders of the metropolitan board in relation to sewerage and other matters in the same manner as vestries. None of the main sewers mentioned in schedule (D.) are in that parish, and any future sewers which may be made, either by the metropolitan or local board of health, will be vested in the respective bodies, subject to the power of adoption by the former under the provisions of this Act. Those sewers, belonging to the metropolitan commissioners, which are situate in districts without the limits of the metropolis as at present defined, are excepted from the property transferred by section 148, The

Section 67.

mean vestry of a parish in schedule (A.) Sewers (except main

sewers) vested

in vestries and district boards (b).

Section 68.

Note.

word "sewer" applies to the subject matters specified in the 350th section of this Act, as extended by the 112th section of 25 & 26 Vict. c. 102. See observations of Kindersley, V.C., in Sutton v. Mayor, &c., of Norwich, 27 L. J. Ch. 739, as to the meaning of the word "sewer." It originally meant a sea-wall, weir, dam, or defence against tides and inundations, or, according to others, a trench supported by banks for carrying fresh waters into the sea. According to the case of the Poplar District Board v. Knight, 28 L. J. M. C. 37, the word sewer, as used in the 204th and other sections of this Act, includes the wall and bank of the river Thames, preserving the low lands contiguous from inundation. It has, however, long since been extended beyond its original signification, and applied to channels both open and covered for the conveyance of feculent drainage. The situa tion of the sewers dealt with by the present Act, and existing at the time of its passing, is for the most part well known, the greater part of them being laid down upon the sheets of the subterranean survey in the possession of the Metropolitan Board of Works, and by this section all sewers to be hereafter made in parishes or districts described in schedules (A.) and (B.), except such as vest in the Metropolitan Board of Works, will vest in vestries or district boards. Before the passing of the Sewers' Act, 3 & 4 Will. 4, c. 22, commissioners of sewers, in general, had not such a possession of their works as enabled them to maintain an action of trespass against parties injuring them; Duke of Newcastle and others v. Clarke, 8 Taunt. 602; and see Stracey v. Nelson, 12 M. & W. 535. The terms of the present enactment vesting the sewers, &c., in boards and vestries are very similar to those used in section 96, vesting highways in vestries, &c., under which it seems to have been assumed that the soil of highways had become vested in the district boards and vestries; Wandsworth Board of Works v. London and South Western Railway Company, 8 Jur. (N.S.) 691, Ch. In the case of Taylor v. Corporation of Oldham, 46 L. J. Ch. D. 105, it is said by the Master of the Rolls that the usual clause in local Acts, vesting sewers in the sewer authority, confers an absolute property in that part of the subsoil occupied by any sewer, and not merely an easement or right of sewerage. In Bagshaw v. Buxton, L. R. 1 Ch. Div. 220, the same judge in commenting upon the word "vested" in the Towns Improvement Clauses Act, 1867, with reference to a highway, says: "I mean 'vested sub modo' as far as a highway can be, not giving the board necessarily a right to the soil." But in Coverdale v. Charlton, L. R. 3 Q. B. D. 372 (affirmed by C. A. 43 J. P. 268), it was held that the "vesting" intended by the 149th section of the Public Health Act, 1875, was not merely of the use and control of a lane for highway purposes, but an actual vesting of the property in the soil. See reference to that decision and as to the nature and extent of the "vesting" intended, in note to section 96, post. The making, &c., of a towing-path under powers conferred by a Navigation Act was held not to be a purpose rendering the ownership of the soil necessary; Badger v. South Yorkshire, &c., Railway Co., 1 Ell. & Ell. 347. The present enactment does not contain any words conferring upon boards and vestries the powers and authorities given by ordinary sewers commissions, therefore they cannot proceed by presentment, amerciament, &c., for annoyances and encroachments. But sections 68 and 69 of 25 & 26 Vict. c. 102, impose penalties for various acts of wrongful interference with sewers. Neither the present section nor the 135th, vesting the main sewers in the metropolitan board, contains the exception found in the 7th section of the Metropolitan Sewers Act, 1848 (11 & 12 Vict. c. 112), vesting sewers in those commissioners sewers made or to be made by any person or persons, for his or their own profit, or for the profit of the proprietors or shareholders." That exception was borrowed from the Public Health Act, 1848, into which it was introduced in order to preserve the rights of the Cheltenham Sewers Company, acting under a local Act. See Lawes' edition of the Public Health Act, 11 & 12 Vict. c. 63, note to the 44th section; and it is retained in the 13th section of the Public Health Act, 1875. See note to that section in

metropolitan commissioners of sewers (a) which are situate in any parish mentioned in schedule (A.) to this Act (except such sewers as are mentioned in schedule (D.) to this Act), with the walls, defences, banks, outlets, sluices, flaps, penstocks, gullies, grates, works, and things thereunto appertaining, and the materials thereof, with all rights of way and passage used and enjoyed by such commissioners over or to such sewers, works, and things, and all other rights concerning or incident to such sewers, works, and things, shall become vested in the vestry of such parish; and all sewers vested in the said metropolitan commissioners which are situate within any district mentioned in schedule (B.) to this Act, except as before excepted, with all such works and things as aforesaid appertaining thereto, and all rights of way and passage used and enjoyed by such commissioners over or to such sewers, works, and things, and all other rights concerning or incident to such sewers, works, and things, shall become vested in the board of works, for such district; and all sewers made and to be made within any such parish or district, except sewers and works vested or to be vested in the metropolitan board of works, as hereinafter mentioned shall be vested in such vestry and board respectively.

69. The vestry of every parish mentioned in schedule (A.) to this Act, and the board of works for every district mentioned in schedule (B.) to this Act, shall (subject to the powers by this Act vested in the metropolitan board of works (b)) from time to time repair (c) and maintain the sewers under this Act vested in them, or such of them as shall not be discontinued, closed up, or destroyed under the powers herein contained, and shall cause to be made (d), repaired, and main

Lumley's edition of that Act, p. 21, and also R. v. Local Board of Godmanchester, L. R. 1 Q. B. (Ex. Ch.) 328.

(a) See 11 & 12 Vict. c. 102, s. 7 (now expired), as to sewers vested in the metropolitan commissioners of sewers.

(b) See proviso to this section prohibiting the making of new sewers without the previous approval of the Metropolitan Board of Works, and the 138th section, authorizing the metropolitan board to make orders for controlling vestries and district boards as to construction, &c., of sewers, and generally in relation to sewerage. And see now sections 45, 46, 47, 48, 49, 50, and 51 of 25 & 26 Vict. c. 102, post, as to the course to be pursued by vestries, district boards, &c., with respect to the construction of new sewers. See also section 83 of same Act, giving power to the Metropolitan Board of Works to make bye-laws for the guidance of vestries, &c., in the construction of

sewers.

(e) It was decided to be a good return to a mandamus commanding a board of guardians to repair a sewer, that the sewer had been defectively constructed originally, and if repaired would create a nuisance; R. v. Guard. of Epsom Union, 8 L. T. (N.S.) 383.

(d) Though the language of this enactment is imperative, a discretion must be allowed to vestries, &c., as to the time at which such works should be executed; and, in other respects, therefore, a writ of mandamus which ordered the vestry of a parish, immediately after the receipt of the writ, to cause to be made such sewers and works as might be necessary for effectually draining a particular part of the parish, without showing that a reasonable time had elapsed, or that there was a present duty to drain that particular part at once, or that the approval of the metropolitan board had been obtained, was held to be defective; R. v. The Vestry of St. Luke, Chelsea, 31 L. J. Q. B. 50. See a full report of this case, setting out the return in extenso, in 26, J. P. 85. See Ex parte Champ, 20 J. P. 756, where a rule for a mandamus to the same vestry to make sewers in another part of the same

D

Section 68.

Vestries and district boards to repair, &c., all sewers

vested in

them, and

Section 69. tained such sewers and works, or such diversions or alterations of sewers and works, as may be necessary for effectually draining their parish or district (a), and shall cause all banks, wharves, docks, or defences abutting on or adjoining any river, stream, canal, pond, or watercourse (b) in such parish or district to be raised, strengthened,

from time to time to construct new ones, &c.

parish had been discharged for want of a sufficient demand and refusal. See Ex parte Parsons, 22 J. P. 68, where an application for a mandamus to a local board to make a sewer was rejected.

(a) See section 58 of 25 & 26 Vict. c. 102, post, authorizing, subject to certain conditions, the construction of sewerage works by vestries and district boards beyond the limits of the metropolis; section 44 of 25 & 26 Vict. c. 102, post, authorizing owners of land to construct sewers for drainage thereof, at their own expense, and empowering vestries, &c., to contribute to the cost out of the rates; and 25 & 26 Vict. c. 102, s. 52, et seq., as to construction of sewers by vestries at the cost, either in whole or in part, of private parties. Refer to Acts relating to the drainage of certain localities without the metropolitan area, cited in note to title of Act, p. 1, ante.

(b) The burthen of maintaining the river wall of the Thames in a parish comprised in a district constituted under the Metropolis Local Management Act, 1855, is now cast upon the board of works of that district, notwithstanding such river wall was included in the area subject to the jurisdiction of commissioners acting under a royal commission of sewers; so held by the Q. B. D. in the case of the board of works for the Plumstead district and the commissioners of sewers for the limits extending from Lombard's Wall to Gravesend Bridge, in the county of Kent. The only notice of this decision is found in the 41st vol. of the Justice of the Peace, p. 388, which only gives a condensed report of the judgment. The editor has since been favoured with a copy of the special case submitted for the opinion of the court, and with a full report of the judgment. From the former it appears, that up to the passing of the Metropolis Management Act, 1855, the river wall and defences bounding the levels subject to the jurisdiction of the commissioners, including the wall in question, had under the existing and preceding commissions always been maintained by the commissioners out of the funds levied by them as walscot or sewers rates, upon the owners and occupiers chargeable therewith according to the laws of sewers. In the year 1874 the commissioners raised the question of their liability to continue the maintenance of the river wall in the parish of Charlton, alleging that the burthen of such maintenance was now cast upon the board of works by virtue of 18 & 19 Vict. c. 120, a liability which was denied by the district board, and the question for the opinion of the court was whether or not the obligation still rested upon the commissioners; and the court decided that it did not, and that the district board were bound to perform that duty themselves. Mr. Justice Lush in delivering judgment, refers to the words "and shall cause all banks, &c., adjoining any river, &c., to be raised, strengthened, or altered, &c.," and says that they impose a specific obligation on the board of works, to protect their district from the inundation of the river, though he was not insensible to the possible inconvenience which might arise from the fact that an existing commission of sewers professed to embrace the area in question within its original district; and Mr. Justice Mellor, in delivering judgment against the district board, refers to that provision in the Act (section 159), which enables a vestry or district board to cause the sum required for expenses incurred for the special benefit of a particular part of a parish or district to be levied in that part. See note to section 159, post.

Refer to Mayor of Lyme Regis v. Henley, 1 Bing, 6, as to liability of a corporation for expenses incurred for injury resulting from the neglect to repair a sea-wall which they were bound by charter to repair.

See as to license by the Thames conservators to a riparian owner to erect an embankment; Lyon v. Fishmongers' Co., L. R. 1 H. L. (E.) 662.

or altered or repaired, where it may be necessary so to do, for effec- Section 69. tually draining, or protecting from floods or inundation such parish or district; and it shall be lawful for any such vestry or district board to carry any such sewers or works through, across, or under any turnpike road (c), or any street or place laid out as or intended for a street (d), or through or under any cellar or vault which may be under the pavement or carriageway of any street, and into, through, or under any lands whatsoever (e), making compensation (f) for any damage done thereby as hereinafter provided; and it shall be lawful for any such vestry or district board from time to time to enlarge, contract, raise, lower, arch over, or otherwise improve or alter all or any of the sewers, watercourses, and works which shall be from time

(c) See as to notice and other requirements in breaking up turnpike roads, 25 & 26 Vict. c. 102, s. 33, post.

(d) See interpretation of word "street," section 250. See 25 & 26 Vict. c. 102, s. 84, post, empowering vestries, &c., with consent of metropolitan boards, to stop up streets during their works.

(e) As to the right of carrying sewers through private property, see notes to section 135; and sections 34 and 35 of 25 & 26 Vict. c. 102, post, as to notices, plans, &c., of works affecting railways and canals. Under similar words in the Public Health Act, 1875, it was decided that a local board were authorized to make a sewer through private property raised above ground; Roderick v. Aston Local Board, L. R. 7 Ch. 328 (c.a.). Commissioners acting under a local Act and the local authority under the Nuisances Removal Act, were held to be empowered to make a sewer through enclosed land adjoining a highway not in the line of an existing watercourse; Earl Derby v. Bury Imp. Commissioners, L. R. 3 Ex. 121, reversing the decision of the court below.

Though a natural watercourse may in some degree be polluted, a district board constituted by this Act has no right to connect it with other sewers so as to become a nuisance; Att.-Gen. v. Hackney Dist. Board, 44 L. J. Ch. 545, nor to pollute water running through the land of another person; Cator v. Lewisham Dist. Board 5 B. & S. 115; and it makes no difference that the works of the board are necessary for abating a nuisance on the land of the person complaining, or that the water polluted lay out of the district for which the board was appointed; ibid.

A person sustaining damage by the overflow of a sewer, without the fault of the vestry, has no right of action against that body; Hammond v. Vestry of St. Pancras, 43 L. J. C. P. 157; and see as to non-liability of a vestry for damage caused by flooding from a gully connected with a drinking fountain erected by an association by permission of the vestry; Gordon v. Vest. of St. James, Westminster, 30 J. P. 24.

The Rivers Pollution Prevention Act, 1876, section 3, enacts that every person (defined by section 20 to include corporate and unincorporate bodies) who causes to fall or flow, or knowingly permits to fall or flow, or to be carried into any stream, any solid or liquid sewage matter, shall (subject as in the Act mentioned) be deemed to have committed an offence against the Act; and see special provision in same section with respect to sanitary authorities using the best practicable means for rendering sewage matter harmless. By section 20, the term sanitary authority includes in the metropolis, as defined by the Metropolis Management Act, 1855, any local authority acting under the Nuisances Removal Act, 1855, and the Acts amending the same. As to liability of vestries, district boards, and other public bodies, for damage resulting from negligence, see sections 96 and 135, infra, and proceedings for nuisance and injury by the pollution of streams and other acts, section 135.

(f) As to compensation for damage, see section 225, and note to section 135, as to claims for compensation and actions against boards and vestries.