and take effect as if this Act had not been passed; and all monies coming to such commissioners or body under any such contract, agreement, bond, covenant, security, action, suit, or proceeding, and which would have been applicable by them if this Act had not been passed for the purposes of any of the duties or powers hereby transferred to any vestry or district board, shall be paid over to such vestry or board, or as they may direct, and be applied for the like purposes; and all monies and liabilities which such commissioners or body, or officer, would have been liable to pay or discharge, under any such contract, agreement, bond, covenant, security, action, suit, or proceeding, out of any rates to be levied under any such powers as aforesaid, if this Act had not been passed, and all costs, damages, and expenses which such commissioners or body, or any of them respectively, might, if this Act had not been passed, have legally defrayed out of any such rates, shall be paid out of rates to be levied by such vestry or board as hereinafter provided.

commis

Acts con

office until

Act.

XCV. Where, under the provisions of any local Act Existing in relation to the paving, lighting, watering, cleansing, sioners, &c. or improving of any parish mentioned in either of the under local schedules (A.) and (B.) to this Act, or any part of any tinued in such parish, any election or appointment of any com- commencemissioners or persons whose powers are determined by ment of this this Act is appointed to take place at any time between the time of the passing of this Act and the time appointed for the commencement thereof, the commissioners or persons now acting under such local Act shall remain in office, and perform and exercise all the duties, powers, and authorities of such Act, until the commencement of this Act, anything in such local Act to the contrary notwithstanding.

duties of

XCVI. Every vestry and district board shall, within Powers and their parish or district (exclusively of any other persons surveyors of whatsoever), execute the office of and be surveyor of highways,

vested in

ferred to

vestries and

district boards.

and property highways, and have all such powers, authorities, and them, trans- duties, and be subject to all such liabilities as any surveyor of highways (a) in England is now or may hereafter be invested with or liable to by virtue of his office, under the laws for the time being in force, so far as such powers, authorities, duties, and liabilities are not inconsistent with this Act; but all expenses which under any such law ought to be defrayed by highway rates shall be defrayed by means of the rates to be raised under this Act, and all monies which would be applicable in aid of such highway rates shall be applied in aid of the said rates to be raised under this Act, and no such vestry or board shall be subject to any provisions concerning the accounts of surveyors of highways, or requiring any returns to be made to any special sessions; and all streets being highways (b), and the pavements, stones, and other materials thereof, and all other things provided for the purposes thereof by any surveyor of highways, or by any person serving the office of surveyor of highways, or by any vestry or district board under this Act, shall vest in (c) and be under the management and control of the

(a) See General Highway Act, 5 & 6 W. 4, c. 50; and see 4 & 5 Vict. c. 51; 8 & 9 Vict. c. 71; 12 & 13 Vict. c. 14; and 13 & 14 Vict. c. 99. The 25 26 Vict. c. 61, authorizing the formation of highway districts does not apply to the metropolis; see sect. 7 of that Act. A vestry elected under the Metropolis Local Management Act, and thereby required to execute the office of surveyor of highways, is not responsible for an injury occasioned to a passenger by the negligence of workmen employed by the surveyor of such vestry in paving a street in the parish, when the vestry has not given any direction for doing the work; Holliday v. The Vestry of St. Leonard, Shoreditch, 30 L. J. (N. S.), C. P. 361. A surveyor of highways appointed under 5 & 6 W. 4, c. 50, is not liable to an action for damages arising from the non-repair of the highway; Young v. Davis and another, 31 L. J. (N. S.) Ex. 250.

(b) A street which has been dedicated and used but has not been repairable by the parish in manner provided by 5 & 6 W. 4, c. 50, may nevertheless still be a highway; Roberts v. Hurst, 15 Q. B. 17; and see R. v. Dayman, 26 L. J. (N. S.)

M. C. 129.

(c) Where a railway company was empowered for public convenience to widen a bridge over a lane, but their compulsory

vestry or district board of the parish or district in which such highways are situate.

to rates

parishes

in schedule

(A.)

XCVII. Provided always, that all rates made pre- Provision as viously to the commencement of this Act for defraying already the expenses of executing any duties, powers, and made in authorities hereby transferred to any vestry or district mentioned board, and all highway rates made previously to such commencement, or so much of such respective rates as may not have been levied and paid, shall be levied and collected as if this Act had not been passed (d), and, subject to the payment or retainer thereout of any sum or expenses lawfully payable out of such respective rates,

powers had expired, the court of Chancery refused to interfere by injunction at the instance of the district board; for though the soil of the lane was said to be vested in the board, it was for the convenience of the public, and the inconvenience to the public from the works would be little or none; Board of Works of Wandsworth District v. London & South Western Railway Company, 8 Jur. (N. S.) 691. It is assumed in this judgment that the soil of the lane was vested in the board, but that seems subject to doubt. Ordinarily the freehold of the highway belongs to the owner of the freehold of the soil, Sir John Lade v. Shepherd, 2 Str. 1004, who is entitled to all trees upon it and mines under it; 1 Burr. 143; and may bring trespass or ejectment; Stevens v. Whistler, 11 East. 51; and ordinarily the soil of a turnpike road does not vest in turnpike trustees; Davison v. Gill, 1 East. 69; and not withstanding the above case, it is doubtful whether the words of this enactment will divest the owner of his property in the soil. The words here are similar in effect to those used in the 68th and 135th sections, vesting sewers in the metropolitan and district boards and vestries, and it was never suggested that the soil of tidal streams, river walls, &c., subject to the order and control of those bodies, was vested in them. See Stracey v. Nelson, 12 M. & W. 535, where it was decided that the 47th section of the 3 & 4 W. 4, c. 22, did not vest in the commissioners of sewers the property in lands under their view, cognizance, or management. See us to partial dedication of way, &c., Le Neve v. Vestry of Mile-end Old Town; note to sect. 119. See 25 & 26 Vict. c. 102, 8. 71, post, as to transfer of property of surveyors of highways to vestries and district boards, and as to payment to them of income of estates subject to trusts for repair of highways.

(d) The arrears must be collected by the new vestry; R. v. Ingham, 20 J. P. 772.

Vestry or district

board to

to be paved.

shall, where such rates are levied in a parish mentioned in schedule (A.) to this Act, be, accounted for and paid over to the vestry of such parish, and shall, where levied in any other parish, be accounted for and paid over to the board of works for the district in which such parish is comprised, and shall in every case be applied in aid of the rates to be raised for the like purposes under this Act in the particular parish or part in which the said rates so made previously to the commencement of this Act are levied.

XCVIII. It shall be lawful for every vestry and district board from time to time to cause all or any of the cause streets streets (e) within their parish or district, or any part thereof respectively, to be paved (f) or repaired when and as often and in such form and manner and with such materials as such vestry or board think fit, and to cause the ground or soil thereof to be raised or lowered, and the course of the channels running in, into, or through the same to be turned or altered, in such manner as they think proper, and to alter the position of any mains or pipes (g) in or under such street, such alteration to be made subject to the approval of the engineer of the company to which such mains or pipes belong.

Owners possessing freehold of courts, &c. to pave the same.

XCIX. Provided always, that whenever the freehold of any court, passage, or public place, not being a thoroughfare, is vested in the owner of any adjoining house, the paving of such court, passage, or public place

(e) By sect. 250, the word "street" is not to include the carriage-way of any turnpike road. The 244th section places the footpaths of turnpike roads under the management of vestries and district boards.

(f) By sect. 112 of 25 & 26 Vict. c. 102, post, the word "pave" includes the formation of the roadway or footway of any street. See, as to the extent of the powers given to vestries, &c., by this section, R. v. Train and others, 31 L. J. (N. S.) M. C. 169; and as to obstruction by the erection of posts by telegraph company, R. v. United Kingdom Telegraph Company, 31 L. J. (N. S.) M. C. 166; 26 J. P. 324.

(g) See regulations as to the breaking up of pavements by companies, sect. 109, et seq.

shall be done by such owner, if deemed expedient or necessary by the vestry or district board (h).

courts to

and keep the

C. The owner of any such court, passage, or public Owner of place, not being a thoroughfare, shall, if required by the drain them, restry or district board of the parish or district in which pavement, the same is situate, to the satisfaction of such vestry or &c. in repair. district board sufficiently pave, cover the surface of, or repair the same, and lay, at a proper level, through, over, under, or along such part thereof as such vestry or board may require, a drain, channel, or gutter, and keep such pavement or covering, and drain, channel, or gutter, in good repair, to the satisfaction of such vestry or board; and if any such owner of any court, passage, or public Penalty on place, not being a thoroughfare, do not sufficiently pave neglect. or cover the same as aforesaid, or do not lay down therein such drain, channel, or gutter, or do not repair the same respectively, to the satisfaction of such vestry or board, within fourteen days after notice in writing requiring him so to do has been given to him by such vestry or board, every such person so offending shall forfeit and pay any sum not exceeding 57. (i).

owners for

cellars under streets not

without the

CI. No vault, arch, or cellar shall be made under any Vaults and street without the consent of the vestry or district board of the parish or district in which the same is situate; to be made and all such vaults, arches, and cellars hereafter to be consent of made within any parish or district mentioned in either the vestry or of the schedules (A.) and (B.) to this Act shall be substantially made, and so as not to interfere or communicate with any drain or sewer under the control of any vestry

(h) See the 78th sect. of the 25 & 26 Vict. c. 102, post, as to flagging footways at the cost of the occupiers of property abutting on or next to such footways.

(i) The 25 & 26 Vict. c. 102, s. 81, post, enables the vestry, &e., in lieu of enforcing the penalty, to execute the works and recover the expenses from the owner.

(k) See note (a) to sect. 211 as to appeal against proceedings of vestries under this provision.

board (k).