Q. B.]

may assume, therefore, that the respondent made no bona fide claim of right to keep his cab standing here, in which case, whatever the appearance of the place, the respondent was a trespasser, and should have been fined. If, however, the magistrate considered the facts he finds to have constituted a bona fide claim of right, he ought to have held that his jurisdiction was ousted. In either event he was wrong in dismissing the information.

Brown, Q. C. for the respondent.-The magistrate found that the respondent was not wilfully trespassing, and was therefore justified in dismissing the information. In Jones v. Taylor (1 E. & E. 20), the magistrates had refused to convict under this very enactment; and this court held, on appeal, that they were not bound to convict, inasmuch as it was competent to them, if they thought fit, to decide that the person charged was not a wilful trespasser. Reg. v. Bent (1 Den. Cr. Cas. 157) is an authority that the omission of the word " wilfully" in an indictment is material when that word is contained in the statute upon which the indictment is framed. There is another question which was here open to the magistrate, viz., whether this place was the station or premises connected therewith: he has practically held that this was not such a place. [QUAIN, J.-The only ground upon which this proceeding could be held to be not a wilful trespass was, that the respondent made a bona fide claim of right. The magistrate, therefore, ought to have either convicted or refused to adjudicate.]

Giffard in reply.-In Hudson v. M'Rae (33 L. J. 65, M. C.), it was held upon an information for unlawfully and wilfully fishing, that the bona fide belief of the defendant that he had a right to fish does not prevent his being convicted, a guilty mind not being a necessary ingredient to constitute the offence.

BLACKBURN, J.-I think that in this case there are some points which we can decide at once, although the whole matter must go back to the magistrate, in order to determine the result. Notwithstanding the case of Jones v. Taylor, I think that the respondent, by staying at the place in question after being ordered off, or by refusing to move therefrom when requested by the appellant, if the place formed part of the premises connected with the railway station, was wilfully trespassing, even if he acted honestly in the belief that he had a right to be there. If he based his defence upon a bona fide claim of right to be upon the land, the magistrate's jurisdiction was ousted, and he ought to have stayed his hand, and neither convicted the respondent nor dismissed the charge. It appears from the case that there is no reason for saying that this place is not the property of the railway company; the magistrate's finding is merely that it is not in or opposite the station, but presents the appearance of an ordinary public street. I cannot see that on this account a cabdriver would have a right to keep his cab standing there. Another point taken by Mr. Brown was that this was no part of the premises connected with the station. I should apprehend from the plan that this was part of the station. The fact that the railway company have disposed of the surrounding houses would not prevent it, but if this point were intended to be raised, the magistrate should have stated more than he has done. The case must be

[Q. B. remitted to the magistrate, in order that he may more clearly state the facts which he finds. HANNEN and QUAIN, JJ. concurred. Attorney for appellant, W. H. Shaw. Attorneys for respondent, Lewis and Lewis.

The appellants, a mason and a carpenter, were together upon a highway about nine o'clock of a misty winter evening; one had a net for game, which was wettish, under his arm. Two policemen who met them about 100 yards from their houses, which adjoined each other, had heard a dog yelping just before, and one of the police said he saw a dog with them, but this they denied. They did not say where they had been, but afterwards they asked the police to say nothing about the matter. Jus tices convicted the appellants of poaching under 25 & 26 Vict. c. 114, s. 2.

Held, that proof of having actually taken game was not necessary for a conviction; and that these facts constituted evidence from which the justices might infer that an offence under the Act had been committed.

CASE stated by justices under 20 & 21 Vict. c. 43, and the Poaching Prevention Act 1862 (25 & 26 Vict. c. 114).

At a petty sessions holden at Launceston, for the division of East North, in the county of Cornwall, on the 2nd Jan. 1872, Samuel Jenkin and William Dennis were charged by a certain information and complaint of James King, one of the constables of the county police, for that they the said Samuel Jenkin and William Dennis, on the 16th Dec. 1871, at the parish of Altarnum, in the said county, being on a certain highway or public place there situate, and with good cause suspected. of coming from lands where they had severally and respectively unlawfully been in search or pursuit of game, and aiding and abetting each other, had in their possession a certain net used for unlawfully killing and taking game, and prayed that the said Samuel Jenkin and William Dennis might be summoned to answer the said information and complaint; and the said parties respectively being present, the said James King upon his oath said: "I am stationed at Lewannick. I know the defendants Samuel Jenkin and William Dennis; the former is a mason, and the latter a carpenter. I recollect the 16th Dec. last; from information 1 received I went to Altarnum, on the highway between Altarnum village and the Rising Sun. I was going along the road with P. C. Cole. I heard a dog yelping at some distance; near half a mile. We stopped about to see what we could see. About half an hour after, we met the defendants together on the highway; it was getting dark then; it had been good moonlight; it was about half-past nine; I had a lamp and opened it on them. I saw Dennis had a net (which I produce) under his arm. They were in their working deshabille. I charged them both with being out poaching. They denied it-I did not see any dog with them, I searched them both; the only thing found was the net. They did not say where they had been."

Q. B.]

The defendant's attorney declined to ask this witness any question.

The other constable, John Cole, upon his oath said: “I was with King on this occasion at Treween Eve; heard a dog yelping. A little time after I saw defendants come along the road with a dog, a lurcher, half greyhound. The sergeant threw the light on them, and took possession of a net which Dennis had under his arm. I said they had a dog; Jenkins denied it, and said the only dog he had was the little one. Jenkins took us home to his house, about 100 yards off, and showed us a hole, and his little dog was inside. I told him he had a lurcher there some weeks, which he denied. A few minutes after, we saw the dog go into Dennis's house. He drove him out of his house, and he went through the hole into Jenkins's house. We told him we heard the dog yelping. evidently driving a rabbit or hare, just before. Jenkins said, "Twas not that dog. I've seen him drive a rabbit to-day, and he won't yelp at all.' Jenkins asked the sergeant several times to look the affair over, and say nothing about it. There had been a mist. The net was wettish."

Cross-examined: "I heard the men whistle to the dog just before we came up to the men. The dog was before them. There is a difference between a dog yelping at a rabbit or at a sheep."

On re-examination Coles said, "It was a hare net." The net was produced; it was a regular gate net for game, loaded at the corners. This was the case for the prosecution.

The defendants' attorney contended that there was no evidence that either of the defendants had been upon any land in search of game, or for any other purpose, or that they had used the net for unlawfully taking game, or at all. Nor were they in possession of game. That it is not unlawful within the Poaching Prevention Act to be seen in possession of a dog. That there was no evidence that a dog of the defendants was the dog which the policeman had previously heard yelping. Nor that either of the defendants knew that any dog had been upon any land for any purpose; nor was it shown upon what land, or whose land, the yelping dog had been. The defendants are tradesmenheads of families. They were, when detained and searched upon the public highway, within 100yds. of their own homes, and at a reasonable hour of the evening.

The justices, having heard the said charge and defence, adjudged that each defendant should be fined 11. with costs. And the said Samuel Jenkin and Wm. Dennis, respectively alleging that they were dissatisfied with the said determination as being erroneous in point of law, duly applied to the justices to state and sign the preceding case for the opinion thereon of the Court of Queen's Bench.

If the court shall be of opinion that on the above evidence the justices might infer that the appellants had used the net for unlawfully killing or taking game, the convictions are to remainotherwise they are to be quashed as against one or both appellants, as the court shall see fit.

Pinder argued for the appellants.-25 & 26 Vict. c. 114, s. 2, enacts that "It shall be lawful for any constable or peace officer in any county, borough, or place in Great Britain and Ireland, in any highway, street, or public place, to search any person whom he may have cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game, or any

any

[Q. B.

person aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of gun, or nets or engines used for the killing or taking game; and also to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game or any such article or thing is being carried by any such person; and should there be found any game or any such article or thing as aforesaid upon such person, cart, or other conveyance, to seize and detain such game, article, or thing; and such constable or peace officer shall in such case apply to some justice of the peace for a summons, citing such person to appear before two justices of the peace assembled in petty sessions, as provided in the 18 & 19 Vict. c. 126, s. 9, as far as regards England and Ireland, and before a sheriff or any two justices of the peace in Scotland; and if such person shall have obtained such game by unlawfully going on any land in search or pursuit of game, or shall have used such article or thing as aforesaid for unlawfully killing or taking game, or shall have been accessory thereto, such person shall, on being convicted thereof, forfeit and pay any sum not exceeding 5l., and shall forfeit such game, guns, parts of guns, nets, and engines; and the justices shall direct the same to be sold or destroyed, and the proceeds of such sale, with the amount of the penalty, to be paid to the treasurer of the county or borough where the conviction takes place; and no person who, by direction of a justice in writing, shall sell any game so seized, shall be liable to any penalty for such sale; and if no conviction takes place, the game or any such article or thing, as aforesaid or the value thereof, shall be restored to the person from whom it had been seized." There have been two cases upon the evidence necessary for conviction under this section; Brown v. Turner (13 C. B., N. S. 485), and Evans v. Botterill (33 L. J. 50, M. C.); although in each case the evidence was held to justify conviction, it was far stronger than that in the present case. In Brown v. Turner the four men charged were found together early one Sunday morning on the high road. One had rabbits which were recently killed in his pocket; the second had a net, and his clothes were marked with blood and rabbits' fur; the third had sold a rabbit that morning; and the fourth was very wet and dirty as to clothes and shoes. The Court of Common Pleas held that it was not necessary to prove that either of the parties had been seen off the high road, and that the evidence was sufficient to convict the first three, but not the fourth, of the men charged. In Evans v. Botterill the Court of Queen's Bench affirmed that decision with respect to proof of being off the high road, and held that the justices might have. convicted; but the men charged were found with a hare and rabbits, besides stakes and nets, upon them. In no case has a conviction under this section been maintained. unless the persons charged were found to have game in their possession. Crompton, J., is reported to have said in the Queen's Bench case, "There is plenty of evidence on which the magistrates might have found that these parties, on whom both game and nets were found, were guilty of the offence either of having been unlawfully on land in pursuit of game, or of having used the nets for unlawfully taking game, because it is but reasonable to infer

.

that the one was the produce of the use of the other. The possession possibly of game without the nets, or of the nets without the game, might not lead to this conclusion, but the two together might very well have justified the magistrates in coming to an adverse conclusion against the defendants; though I am far from saying they were bound to do so."

Stone for the respondent.-The Act does not require proof of the actual taking of game to justify conviction; and it is sufficient if either game or an article used for killing game be found upon a suspected person. Here the facts, taken together, were quite enough to prompt the justices to infer that an offence had been committed under this section.

Pinder in reply.

BLACKBURN, J.-I confess I have some doubt, but I think there is here just some evidence upon which to convict the appellants. I am inclined myself to think, from the facts stated, that the men had used the net for unlawfully killing or taking game. The facts I rest my conclusion upon are the net found upon them, which was probably carried for the purpose of use. This net was wettish, as if it had been used in the mist; there was evidence of their having a lurcher with them, which had been heard yelping, as if driving a hare or rabbit. I wish to say pointedly that I do not consider success a needful element of a case for conviction. It is sufficient.if the justices may infer from the facts that the person charged has used any of the articles mentioned for the purpose of unlawfully killing or taking game, although he may not have killed or taken any. HANNEN and QUAIN, JJ., concurred.

Judgment for respondent. Attorney for appellants, Cowdell and Grundy. Attorney for respondents, Bell, Steward, and Lloyd.

Wednesday, April 24, 1872.

SECOND COURT.

COOK (app.) v. MONTAGU (resp.) Nuisance-Owner of premises-Receiver of rents18 & 19 Vict. c. 121-29 & 30 Vict. c. 90. An order by justices was made against the appellant under the Nuisances Removal Act 1855, sect. 12, as the owner of premises upon which a foul and offensive privy existed so as to be a nuisance. The appellant was receiver of the rent of the house as agent of the ground landlord, from a person called Hancock, who held a lease of the whole house for twenty-one years: this lessee had underlet a part of the house to a Mrs. Kingston as yearly tenant. The privy was within the part of the house let to Mrs. Kingston, and was used exclusively by her, Hancock having no access to it:

Held, upon a case stated by the convicting justices, that the appellant was not the owner of the premises on which the nuisance arose, within the definition of the word in sect. 2 of the Act of 1855. THIS was a case stated by three of Her Majesty's justices of the peace acting in and for the city and borough of Bath, in the county of Somerset, under the statute 20 & 21 Vict. c. 43, for the purpose of obtaining the opinion of the court on questions of law which arose as hereinafter stated.

Upon the hearing of a certain complaint, laid by

[Q. B.

the respondent as inspector of nuisances, acting for and under the direction of the local board of health for the said city and borough, against the appellant, and instituted under the Nuisances Removal Act for England 1855 (18 & 19 Vict. c. 121), and the Sanitary Act 1866 (29 & 30 Vict. c. 90), charging "that in or upon certain premises, situate at and being No. 13, Union-street, in the city and borough of Bath, in the district of the said local board under the Nuisances Removal Act for England 1855, the following nuisance exists: a foul and offensive privy, for want of a syphon pan and supply of water, and that the said nuisance is caused by the act or default of you the said George Henry Cook;" the said parties being respectively then present, the majority of the justices present made the following order:

"To George Henry Cook, as the owner of the house and premises situate at and being No. 13, in Union-street, in the city and borough of Bath, within the meaning of the Nuisances Removal Act for England 1855, and to the local board of health for the said city and borough of Bath, and to his and their servants and agents respectively, and to all whom it may concern:

"Whereas on the 27th Feb., 1871, complaint was made before John Hulbert, Esq., mayor of the city and borough of Bath aforesaid, and one of Her Majesty's justices of the peace, acting in and for the said city and borough, by Henry Graham Montagu, inspector of nuisances, acting for and by order of, and on behalf of, the local board of health for the said city and borough of Bath, that in or upon certain premises, situate and being No. 13, in Union-street aforesaid, in the said city and borough, in the district under the Nuisances Removal Act for England 1855 of the local board aforesaid, the following nuisance then existed, that is to say: a foul and offensive privy, for want of a syphon pan and supply of water, and that the said nuisance was caused by the act or default of the said George Henry Cook, the owner of the said premises.

"And whereas the said George Henry Cook, the owner within the meaning of the said Nuisances Removal Act for England 1855, hath this day appeared before us justices, being three of Her Majesty's justices of the peace, in and for the city and borough aforesaid, sitting in petty sessions at our usual place of meeting, to answer the maiter of the said complaint.

"Now upon proof here had before us that the nuisance so complained of doth exist on the said premises, and is a nuisance injurious to health, arising from the defective construction of a structural convenience; and that the same is caused by the act or default of the said George Henry Cook, as owner of the said premises, within the meaning of the said Act. We, in pursuance of the several Acts in this behalf, do order the said George Henry Cook, within fourteen days from the service of this order, or a true copy thereof, to abate the said nuisance. And that the said George Henry Cook do within the same period effect and properly execute all such structural and other works as may be necessary to abate the said nuisance; and especially and for the purpose of abating such nuisance, and to prevent the recurrence of such or the like nuisance, we do order that the existing trunk of the said privy, and stop trough, and ashlar drain, be

removed, and that a syphon pan and proper supply of water and stoneware drains to connect the said syphon pan with the main sewer, be provided as a substitute for the privy and drains on the said premises now complained of. And we do further order that the said works be performed, executed, and carried out by the said George Henry Cook, under the direction and with the consent or approval of the local board of health for the city and borough of Bath, so that the said privy shall no longer be a nuisance or injurious to health as aforesaid. And if the above order for abatement be not complied with, then we do authorise and require the said local board of health, from time to time, to enter upon the said messuage and premises No. 13, in Union-street, in the said city and borough of Bath, and remove or abate the said nuisance, and to do all such works, matters, and things, as may be necessary for carrying this order into full execution according to the Act aforesaid.

"Given under the hands and seals of us, three of Her Majesty's justices of the peace, in and for the city and borough of Bath aforesaid, this 13th April 1871. "JOHN HULBERT, L.S. "WM. HUNT, L.S.

WM. THOMPSON, L.S." And the appellant being dissatisfied with the said order and determination, as being erroneous in point of law, pursuant to sect. 2 of the said statute (20 & 21 Vict. c. 43) duly applied in writing, to state and sign a case setting forth the facts and grounds of such determination as aforesaid for the opinion of this court, and also duly entered into a recognisance, as required by the said statute in that behalf.

Therefore the said justices, in compliance with the said application and the provisions of the said statute, stated and signed the following case.

Upon the hearing of the complaint it was admitted by both parties, and it is the fact, that the mayor, aldermen, and burgesses of the city of Bath, acting by the council of the borough, are the local board of health for the city and borough of Bath, and as such are the nuisance authority within the limits of the city and borough of Bath.

And the justices found as facts

That there was on the 7th Feb. 1871, and there continued to be and was on the 27th of the same month of February, being the day on which the information in the matter of this complaint was laid, on the premises No. 13, Union-street, Bath, within the district of the local board of health for the said city and borough of Bath, a foul and offensive privy, so constructed and in such a state as to be a nuisance, and injurious to health.

That by reason of the defective construction of the privy, and of the trunk, stop trough, and ashlar drain, respectively leading therefrom, and the want of a proper and sufficient supply of water to the said privy, the said nuisance was likely to recur so long as the defective construction remained unaltered.

That the removal of the trunk of the present privy, and of the stop trough and ashlar drain, and the substitution therefore of a syphon pan and the provision of a proper and sufficient volume of water falling from a sufficient height effectually to flush the said syphon pan when fixed, and the other works ordered in lieu of the trunk, stop trough, and ashlar drain, were works needful to abate the nuisance, and prevent its recurrence.

[Q. B.

That by an indenture, dated 8th June 1853, and made between the Rev. John Allen of the one part and Richard Hancock of the other part, the said house and premises, No. 13, Union-street, Bath, had been demised by the said John Allen (since deceased) to the said Richard Hancock, his executors, administrators, and assigns, for a term of twenty-one years from Midsummer 1853, at a rack rent.

That on the said 7th and 27th Feb. 1871, the said Richard Hancock continued to be and was the lessee of the whole premises under the said lease, having for upwards of three years then last past paid, and continuing to pay, the rent reserved by the said lease to the appellant, who received it as agent for the representatives of the said John Allen, deceased.

That on the 7th and 27th Feb. 1871, and during upwards of four years then last past, the said Richard Hancock had occupied the entrance or shop floor only of the said house and premises.

That by a verbal agreement the said Richard Hancock had during that time underlet the residue of the said house and premises (including the privy complained of) to one Mrs. Emily Kingston, as yearly tenant thereof to him at a rack rent, which she paid to him; and that on the several days aforesaid she continued to occupy the premises so underlet to her. That the privy complained of provided the only closet accommodation for the said Emily Kingston, her family and inmates, and that the said Richard Hancock had no access to and did not use it.

That in pursuance of directions given to him by the local board of health for the city and borough of Bath, acting upon reports made to them by the respondent after inspecting the condition of the said privy, the respondent on the 7th Feb. 1871, caused due notice to be served on the appellant to abate this nuisance within seven days.

And lastly, up to the day of the said complaint being heard before the justices, no steps had been taken subsequently to the service of the said notice to abate the nuisance or prevent its recurrence.

That

It was contended on the part of the appellant that the alleged nuisance did not arise from either the want or defective construction of any structural convenience, nor were structural works required so as to render it necessary that notice should be served on Mr. Cook, the appellant, who (it was contended) was a mere ground landlord. the works ordered to be performed and effected were not s'ructural works. That Mrs. Kingston the occupier and yearly tenant at rack rent under Hancock, was the person by whose act, default, permission, or sufferance the alleged nuisance arose and continued, and that as it was caused by her proximate act and default she was the proper party to be summoned; if not, then, that Hancock, as the lessee for twenty-one years, and the receiver of the rent from his tenant was

the " owner within the meaning of the said Acts

of Parliament; and that he, Hancock, as such, was the proper person to be summoned. And that he had, by his lease, duly executed and accepted by him, covenanted well and substantially to repair, uphold, amend, maintain, cleanse, and keep in repair, during the said term, the said privy, sinks, drains, &c., when and as often as need or occasion should require.

It was contended, on the part of the respondent,

"owner Parliament.

The justices were of opinion that the appellant came within the terms of that part of the interpretation clause of the Act 18 & 19 Vict. c. 121, s. 2, which enacts that "the word 'owner' includes any person receiving the rents of the property in respect of which that word is used from the occupier of such property on his own account, or as trustee or agent for any other person, or as receiver or sequestrator appointed by the Court of Chancery, or under any order thereof, or who should receive the same if such property were let to a tenant," and that therefore under the provisions of the statute he was, for the purpose of the proceedings before them, an “owner premises.

of the

The justices considered that the works which they found to be needful to abate the nuisance and to prevent its recurrence, and to the want of which they found the nuisance to be due, were structural works within the meaning of the Acts, and that the nuisance complained of arose from the want or defective construction of a structural convenience.

They considered that as the Sanitary Act 1866 (29 & 30 Vict. c. 90, s. 21, 1st proviso) enacts that where a nuisance arises from the want or defective construction of any structural convenience, notice under the section shall be served on the owner of the premises, the Legislature must be taken to have intended that some actual result should be obtained from the owner, and not that a mere formal and barren ceremony should be performed; and that it consequently must be taken that a statutory duty was cast by the notice under the stated circumstances upon the owner, and that a default in compliance with the duty so cast upon him was substantially such a default or sufferance on the part of the owner as was contemplated by the Nuisances Removal Act (18 & 19 Vict. c. 121, s. 12).

They were further of opinion that under the stated circumstances they were, by the enactments of the second Act, compelled to hold that the local board of health could only look to the owner and not to the occupier, and that they could not regard either the contents or conditions of the lease; and that the fact that the lessee Hancock did not actually occupy the part of the house to which the privy was attached, was immaterial.

And that as it was proved to them that the appellant was the receiver from Hancock of the rents of the premises, he was properly before them as owner within the meaning of the statute, and it was therefore competent for them to deal with him as such, and that even if it might be possible also to include Hancock, the lessee, within the meaning of the word "owner" in the interpretation clause, yet that they had no power to discharge one person from a liability which they considered to be cast upon him by statute, by reason only that a second person might be equally, or in some other way, liable to him.

They were, therefore, of opinion that the defendant in the case, the now appellant, was in

[Q. B.

default, and amenable to the provisions of the 12th and following sections of the Act 18 & 19 Vict. c. 121; and they made the order upon the appellant hereinbefore set forth.

The questions of law arising out of the above statement for the opinion of the court therefore

are:

First. Whether the works ordered to be effected are structural works?

Secondly. Whether the appellant was the statu tory "owner" of the premises on which the nuisance arose; and, if so, whether, under the stated circumstances, he was, as such, liable to an order to effect structural works for the abatement thereof ?

Thirdly. Whether they were correct in point of law in their determination, and had power to make the said order of the 13th April 1871 ?

Bailey for the appellant.-The justices have proceeded against the wrong person. By the Nuisances Removal Act 1855 (18 & 19 Vict. c. 121) s. 12, “In any case where a nuisance is so ascer tained by the local authority to exist, or where the nuisance in their opinion did exist at the time when the notice was given, and although the same may have been since removed or discontinued, is in their opinion likely to recur or to be repeated on the same premises, or any part thereof, they shall cause complaint thereof to be made before a justice of the peace; and such justice shall ther upon issue a summons requiring the person by whose act, default, permission or sufferance, the nuisance arises or continues; or if such pers cannot be found or ascertained, the owner occupier of the premises on which the nuisare arises, to appear before any two justices in petty sessions, assembled at their usual place of meeting. who shall proceed to inquire into the said com plaint; and if it be proved to their satisfaction that the nuisance exists, or did exist at the time the notice was given, or if removed or discontinued since the notice was given, that it is likely to recu or be repeated, the justices shall make an order writing under their hands and seals on such person, owner, or occupier, for the abatement or discontinuance and prohibition of the nuisance as hereinafter mentioned, and shall also make au order for the payment of all costs incurred up to the time of hearing or making the order for abatement or discontinuance or prohibition of the nuisance." By the Sanitary Act 1866 (29 & Vict. c. 90), which by sect. 14 is to be construed as one with the Act of 1855, it is provided in sect 21 that "the nuisance authority or chief officer of police shall, previous to taking proceedings before a justice under the 12th section of the Nuisance Removal Act 1855, serve a notice on the person by whose act, default, or sufferance the nuisance arises or continues, or if such person cannot be found or ascertained, on the owner or occupier of the premises on which the nuisance arises, to abate the same, and for that purpose to execute such works, and to do all such things as may be necessary within a time specified in the notice: Provided, first, that where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises, notice under this section shall be served on the owner. secondly, that where the person causing the nuisance cannot be found, and it is clear that the nuisance does not arise and continue by the Act,