cases.

cal inspector or by the teacher, and excluded at the first suspicious symptom. The children belonging to the poorer class, twenty-three in number, were cared for at the expense of the board of health, as proper quarantine could not be maintained in their homes. As we had no contagious disease hospital we hired two tenements, fitted them up with cots, placed nurses in charge and cared for the patients in these temporary hospitals. At one time during the epidemic the board engaged physicians to visit every Italian house in the infected district in an effort to discover any concealed or unrecognized cases. Strict quarantine was maintained in all cases, watchmen being secured in several instances. In fact, none of our cases were due to the neglect of any known precaution, but to the wide-spread infection from ambulating We have had two cases of small-pox, and both patients arrived from the South about two weeks before coming down with the disease. They were cared for by the town at an expense of $730. In one instance the patient traveled in the trolley cars on the day she was pronounced infected with small-pox, and while badly broken out with the disease It was evident that there had been wide exposure and that drastic measures should be taken. All of the cars in which there was the least chance that the patient might have traveled were ordered out of service and disinfected and their crews vaccinated. Fifty notices were posted in conspicuous places about Montclair warning all who used the street cars between stated hours that they might have been exposed to small-pox and that the board of health would furnish free vaccination to all who applied. No further cases resulted Two cases of rabies and one case of glanders are all the communicable diseases of animals that have been reported. Medical inspection of the schools has been established now for about a year and a half and the results obtained more than justify the expense and labor involved in carrying out this branch of our work. While the board of health has charge of this work, the expense is met by a separate appropriation from the town council for this particular purpose. Until June 1st, the collection of garbage and ashes was in the hands of individuals who were licensed by the board of health. On that date a municipal system of collection was inaugurated which has given satis faction. Under the terms of the contract, garbage is to be collected three times a week during the summer months, and twice per week during the remainder of the year. The ashes are to be collected once each week during the summer and twice each week through the winter months. During the year ending October 1st, there was a total of 263 deaths, corresponding to a death-rate of 15.72, figured on an estimated mid-year population of 16,732. Of these, fifty-four deaths were non-residents who died in the Mountainside Hospital at the St. Vincent Foundling Asylum. If these deaths are excluded we have a corrected death-rate of 12.49 for the year. 37.2 per cent. of the total number of deaths were under five years of age, and 29.6 per cent. of the resident deaths were under five years of age. In the last annual report of the State board of health, Montclair is credited with having the second highest infant mortality rate in the state, and no explanation is made. As a matter of fact the infant mortality rate was brought up to the abnormal figures given in that report by the deaths at the Foundling Asylum. Foundlings are brought to this institution from all parts of northern New Jersey and from New York, and an erroneous impression is given if the resulting deaths are credited to Montclair with no word of explanation. In the same way the gross death-rate is greatly increased by deaths at the Mountainside Hospital, as patients are taken there from all parts of the county. The following are the deaths from communicable diseases during the year: Tuberculosis of the lungs, 27; pneumonia, 23; scarlet fever, 5; whooping cough, 4; diphtheria, 3; typhoid fever, 2; measles, 2; erysipelas, 1.

Legal Decisions and Opinions.

LODGING-HOUSE KEEPERS AND INFECTIOUS DISEASES.1

A claim brought by a young lady musician against a lodging-house keeper at Scarborough to recover her luggage was met recently by a counter-claim of a very unreasonable character, which fortunately was not allowed to succeed. The plaintiff took rooms with a view to occupy them during an engagement at a local place of entertainment and three days afterwards learnt that there was a case of measles in the house, when she naturally left at once. The landlady, however, refused to give up her lodger's boxes, and when the latter brought her action to recover them counter-claimed for payment for the lodgings in lieu of notice. His Honor Judge Raikes, made short work of the landlady's case, pointing out that a common misfortune had put an end to the contract, a misfortune of which lodging-house keepers must run the risk and of which they must take the consequences when it occurred. In other words, an event beyond the control of the parties had made it impossible for the lodging-house keeper to carry out her bargain by supplying a lodging of such a character as the plaintiff must be taken to have bargained for and the plaintiff could not be made to pay for one which might render her liable to the infection of measles. The judgment was for £4, to be reduced to 18. on the return of the box, and for 88. 8d. due in respect of the accommodation which the plaintiff actually enjoyed, the costs in each instance to follow the judgment.

AUTHORITY TO LICENSE MILK DEALERS.

Judge Charles B. Storrs, in the Orange district court, handed down a decision in favor of the board of health, upholding its contention that it had legal authority to require milkmen to take out a permit before doing business in the city. The board brought suit against Charles J. Hamilton and Walter Laracy, who had failed to take out permits or licenses. The facts in the case were admitted, but it was maintained by Daniel A. Dugan, who appeared for the dealers, that the board had no legal authority for requiring milkmen to take out licenses, but that the licensing power rested with the common council. Arthur B. Seymour, as counsel for the board, took the opposite view and decision was reserved in order to afford the counsel opportunity to file briefs. Judge Storrs decided that the board had ample powers in the matter and gave a judgment of $10 against each dealer for failing to take out his license.

'London Lancet, June 30th, 1906.

NUISANCE-POLLUTION OF OYSTER-BED BY SEWAGE-RIGHT OF LOCAL AUTHORITY TO DISCHARGE SEWAGE INTO THE SEA.1

A local authority have no right at common law or by statute to discharge sewage into the sea in such a way as to cause a nuisance to oyster-beds forming part of an ancient fishery, and if pollution is so caused the authority will be liable to pay damages for the injury caused and to be restrained by injunction.

This was an action for an injunction and damages in respect of an alleged pollution of the plaintiff's oyster-beds in Hadleigh Ray, near Southend, by sewage coming from the outfalls of the defendant corporation's sewage system. The case lasted nine days, and on February 21st, 1906, Buckley, J., delivered a considered judgment in which the facts are set out.

*

Buckley, J., in the course of his judgment, said: The plaintiff is lessee in occupation of a certain part of an ancient several fishery, being oyster-beds situate in the creek or gut called Hadleigh Ray, in the estuary of the Thames, some three miles and a half above Southend Pier. The defendants are the Corporation of Southend They discharge the sewage of Southend in a crude state, without any treatment, into the estuary at several outfalls, of which the main outfall lies some 500 or 600 yards east of Southend Pier, and the others lie in various positions, principally on the west side. The plaintiff's action is for an injunction to restrain the Corporation from so discharging sewage as to create a nuisance to him by the pollution of his oyster-beds, and for damages. The question which I have to try is the issue of fact, whether the discharge from the defendants' sewers does or does not create a legal nuisance to the plaintiff's oyster-beds. The defendants have raised a certain other defense as matter of law. With that I will deal separately. That there is pollution at the site of the plaintiff's oyster-beds is not denied. The question is whether it is due to the defendants' sewers. * * The plaintiff is entitled to the enjoyment of a several fishery; he has the right to enjoy the land for the purpose of laying oysters there. That right of his in the land is interfered with by nuisance caused by the discharge by the defendants from their pipes of offensive matter in such a way as that it reaches the plaintiff's land. Upon the principle of "Fletcher v. Rylands" (L. R., 1 Ex. 265; L. R., 3 H. L. 330), and the decisions upon which that case was founded, the defendants must keep their noxious matter from trespassing upon their neighbor's land. "Tenant v. Goldwin" (1 Salk. 21, 360; 2 Ld. Raymond 1,089) is an express authority upon this point. They have, I think, no common law right. But, if there be no right at law, there is a right say the defendants, by statute. For that purpose they refer to section 49 of 11 & 12 Vict., c. 63 (the Public Health act, 1848), and argue that, inasmuch as if the sea be within 100 feet of the site of a house the owner might under that act have been called upon to construct a drain into the sea, there must be a right to drain into the sea. The act of 1848, however, was repealed by the Public Health act of 1875, and section 23 of the latter act, in reproducing the substance of section 49 of the former, omits all provision as to draining into the sea, while section 27 of the act of 1875 provides that, for the purpose of disposing of sewage, the local authority may do certain things, but with this proviso, that no nuisance be created in the exercise of any of those powers. Any argument based upon the repealed act of 1 Public Health, London, May, 1906.

1848 seems to me, therefore, to be displaced. But the matter does not rest there. By the Sea Fisheries act, 1868 (31 & 32 Vict., c. 45), the property in oysters and mussels is, by section 51, in the owner of the fishery, and by section 53 it is not lawful for any person, other than the grantee, within the limits of a fishery, knowingly to disturb or injure in any manner any oyster-bed, and a penalty is imposed for doing the forbidden act. Further, by the Sea Fisheries act, 1888 (50 & 51 Vict., c. 54), provision is made for the creation by the board of trade of sea fishery districts, and for local fishery committees for the regulation of sea fisheries carried on within the district. It is provided by section 2 that a local fisheries committee may, with the confirmation of the board of trade, make by-laws, amongst other things prohibiting or regulating the deposit or discharge of any solid or liquid substance detrimental to sea fish or sea fishing. The plaintiff's fishery lies in the Kent and Essex Sea Fisheries District, and within the jurisdiction of the Kent and Essex Sea Fisheries Committee, being a district and a committee constituted under that Act of parliament. They have made by-laws which have been properly confirmed by the board of trade, and by-law 15 provides as follows: "The deposit or discharge of any solid or liquid substance detrimental to sea fish or sea fishing is hereby prohibited." Not only, therefore, have the defendants no common law or statutory right to discharge the sewage so as to cause a nuisance-they are, in my opinion, forbidden to do so by a by-law properly made under a statute. This by-law is binding upon the defendants. They have no power to discharge sewage given them by a general or local Act of parliament or by a provisional order confirmed by parliament. In my judgment the plaintiff has proved a nuisance against which he is entitled to an injunction, and I grant an injunction to restrain the defendants as asked in the claim, limiting it in point of time to the duration of the plaintiff's lease. The plaintiff also claims damages. I assess them at £1,500. I give judgment, therefore, for £1,500 damages, an injunction in the terms I have stated, and for the costs of the action, the costs being on the higher scale.

In commenting upon the foregoing case a writer in the Sanitary Record (May 31st, 1906) says:

"Oyster-beds and their pollution by sewage are matters which must have exercised the minds of local authorities in more places than Southend-on-Sea. Nevertheless, the case of Hebont v. Southend Corporation (reported Law Journal, March 3d, 1906, page 141) raised issues which will dispel their doubts on many points of law. The plaintiff was the lessee of oyster-beds which were part of an ancient several fishery. The defendants raised an issue of fact, namely, that the pollution did not arise from their sewage. They also raised certain legal defenses: (1) Their common law right to discharge sewage into the sea; (2) they claimed a statutory right, since section 49 of the Public Health act, 1848 (11 & 12 Vict., c. 63, sec. 49) requires that a house within one hundred yards of the sea should be drained into it, if the local authority directs, the section impliedly admitting the right to drain into the sea. Mr. Justice Buckley, however, granted an injunction against the corporation limited to the duration of the plaintiff's lease, and assessed the damages at £1,500. In the course of his judgment he held that on the evidence it had been established that the pollution of the oyster-beds had arisen from the corporation sewage; that the defendants had no common law rights to discharge their sewage