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done thereby as hereinafter provided (1), and all sewers and works from time to time made by the said board, shall

pelled to purchase the land itself, or any easement in it, and the provisions of the 150th, 151st, and 152nd sections, enabling them to purchase land or rights or easements in land which they may deem necessary for the formation or protection of works, do not restrict the exercise of this power; North London Railway Company v. Metropolitan Board of Works, 28 L. J. (N. S.) Ch. 909; Hughes v. Metropolitan Board of Works, 25 J. P. 675, Ch.; and see Stainton v. Woolrych, and Stainton v. Metropolitan Board of Works, and Lewisham District Board, 26 L. J. (N. S.) Ch. 300. In the construction of powers conferred by Acts of parliament upon public bodies, the intention of the legislature is not to be measured by the more guarded powers given to public companies established for trading purposes; North London Railway Company v. Metropolitan Board of Works, ubi supra. The sole condition to the exercise of the power of the board therefore is to make compensation. The payment or tender of compensation is not a condition precedent to the right of entry on lands to execute works; Peters v. Clarson, 7 M. & G. 548; Lister v. Lobley, 7 Ad. & E. 124; North London Railway Company v. Metropolitan Board of Works, supra. Though the language of this part of the section giving compensation is somewhat different from that used in the 68th section of the Lands Clauses Act, 8 Vict. c. 18, it seems to be similar in effect, and it is probable that the same species of damage or injury would be considered the subject of compensation under both Acts. The compensation mentioned in the 68th section of the Lands Clauses Act, is "in respect of any lands or of any interest therein which shall have been taken for or injurionsly affected by the execution of the works," and the 6th section of the Railway Clauses Act directs full compensation for the value of the lands, &c. "and for all damage sustained by owners, &c." by reason of the exercise as regards such lands of the powers vested in the company. The last-mentioned Act is however not incorporated with the Metropolis Local Management Act. The decisions under the 68th section of the Lands Clauses Act, and other statutes containing compensation clauses, show that compensation can only be claimed for acts authorized by the statute; Broadbent v. Imperial Gas Company, 26 L. J. (N. S.) Ch. 276; In re Penny, 26 L. J. (N. S.), Q. B. 225; and it can only be claimed where the act occasioning the injury would, without the statute authorizing it, have been the subject of an action at common law. If the land is not taken, and nothing is done which would have afforded a cause of action before the Act passed, then, although it may produce a dete

vest in them; and the said board shall cause the sewers vested in them to be constructed, covered, and kept so

rioration of the property, it does not injuriously affect the land or constitute a ground for compensation; In re Penny, supra; Caledonian Railway Company v. Ogilvy, 2 Macq. H. L. Rep. 229; Broadbent v. Imperial Gas Company, 26 L. J. (N. S.) Ch. 276; Chamberlain v. West End of London and Crystal Palace Railway Company, 31 L. J. (N. S.) Q. B. 201; Glover v. North Stafford Railway Company, 20 L. J. (N. S.) Q. B. 376, and the authorities cited. The King v. The London Dock Company, 5 A. & E. 163, is overruled by the Queen v. The Eastern Counties_Railway Company, 2 Q. B. 347; Chamberlain v. West End, &c., and Crystal Palace Railway Company, supra. In the Caledonian Railway Company v. Ogilvy, supra, Lord Cranworth even guards himself against admitting that the claimant would have a right of compensation in some cases in which, if the Act had not passed, there might have been not only an indictment but also a right of action. In Stainton v. Woolrych, and Stainton v. Metropolitan Board and Lewisham District Board, supra, where the defendants had cut a sewer in a high road, contiguous to the plaintiff's land, and thereby withdrawn the water of an ancient spring, and laid dry a rivulet and series of ponds, the Master of the Rolls refused an injunction, holding that the plaintiff's only remedy was to claim compensation. The right suggested in the judgment in that case arose upon the proviso to the 50th section of the Metropolitan Sewers Act, 1848, 11 & 12 Vict. c. 112, giving compensation in the case of works prejudicially affecting any ancient mill or water rights, but it is observable that though the 86th section of the present Act, the Metropolis Local Management Act, describes in identical terms the works and subject matters of compensation mentioned in the 50th section of the Metropolitan Sewers Act, it is limited to the operations of vestries and district boards, and does not apply to those of the metropolitan board. Trying the injury sustained in the case last cited by the test furnished by the decisions above referred to, namely, whether or not it would be actionable without the statutes conferring the special powers occasioning the mischief, it is extremely doubtful whether the opinion given in the judgment that the plaintiff could claim compensation can be supported. See Chasemore v. Richards, 29 L. J. (N. S.) Ex. 81, where it was held that no action would lie for damage of this description. There the owner of an ancient mill on a river sought to recover against the owner of land adjacent, who had dug a well on his own land, and thereby diverted the underground waters

as not to be a nuisance or injurious to health, and to be properly cleared, cleansed, and emptied, and for the purpose of clearing, cleansing, and emptying the same, they

For

not known to flow in a defined channel, which otherwise would have percolated into the river, and it was held that the action could not be maintained. Water which diffuses itself over an indefinite surface is not the subject matter of a right by user. Briscoe v. Drought, 11 Ir. Com. Law R. 250, in error. acts which, notwithstanding the statute containing or incorporating the compensation clause, remain wrongful, the remedy by action is not taken away; Broadbent v. Imperial Gas Company, and the other cases cited, supra. The rules governing the liabilities of public bodies to actions in the construction of works, &c., may be collected from the decisions referred to below. A private individual can in general bring no action for a public nuisance; but if he has sustained damages thereby beyond the rest of the public he may maintain an action for the damage; Rose v. Groves, 5 M. & G. 613; Simmons v. Lillystone, 8 Ex. 431; and see Chamberlain v. West End of London and Crystal Palace Railway Company, 31 L. J. (N. S.) Q. B. 201. Corporate bodies, trustees, commissioners, &c., charged with the execution of public works for the benefit of the public, performing their duties gratuitously, not for profit, and not exceeding their authority, are not liable in damages for injuries resulting from the negligence or unskilfulness of their contractors or workmen; Hall v. Smith, 2 Bing. 156; Sutton v. Clarke, 6 Taunt. 29; Boulton v. Crowther, 2 B. & C. 703; Harris v. Butler, 4 M. & S. 57; Duncan v. Findlater, 6 Cl. & Fin. 894; Steel v. South Eastern Railway Company, 16 C. B. 550. In Holliday v. The Vestry of St. Leonard, Shoreditch, 30 L. J. (N. S.) C. P. 361, it was held that a vestry acting under the provisions of the present statute were not responsible for an injury arising from the negligence of workmen employed by their surveyor in paving one of the streets of their parish. But if such bodies or persons derive a profit from carrying on their works, their exemption from liability ceases; Scott v. Mayor of Manchester, 26 L. J. (N. S.) Ex. 406; Parnaby v. Lancaster Canal Company, 11 A. & E. 230. And it makes no difference whether the rates, tolls, or other profits received by them are applicable to beneficial or fiduciary purposes; Gibbs v. Liverpool Dock Company, 27 L. J. (N. S.) Ex. 321; Penhallow v. Mersey Dock and Harbour Board, 30 L. J. (N. S.) Ex. 329; and see Metcalfe v. Hetherington, 11 Ex. 257; 24 L. J. (N. S.) Ex. 314; and observation of Crompton, J., on that case, in Penhallow v. Mersey Dock and Harbour

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may construct and place, either above or under ground, such reservoirs, sluices, engines, and other works as may

Board, ubi supra. But if the trustees, &c., are personally cognizant of and parties to a wrongful act, or the damage arises from the nature of the works themselves, they are liable; Whitehouse v. Fellowes, 30 L. J. (N. S.) C. P. 105. The Proprietors of Itchin Bridge v. The Local Board of Health of Southampton, 27 L. J. (N. S.) Q. B. 128; Scott v. Corporation of Manchester, 1 H. & N. 59; Ruck v. Williams, 27 L. J. (N. S.) Ex. 357. As where the proceeding for want of compliance with a formality prescribed by an Act of parliament becomes an unlawful one; Brownlow v. Metropolitan Board of Works, 31 L. J. (N. S.) C. P. 140 (see note (i), p. 94, ante), and not the less so because the contractor may also be responsible for his own acts or defaults. Ibid. But a public body using ordinary caution is not responsible for damage arising from extraordinary causes ; Blyth v. Birmingham Water Company, 11 Ex. 781. Or for damage arising from the negligence of the plaintiff or of strangers; Holden v. Liverpool Gas Company, 3 C. B. 1. See as to responsibility of a contractor to commissioners of sewers for an injury resulting from the neglect to fence a trench, where access to a mews was obstructed by the works. Clayards v. Dethick, 12 Q. B. 439; and Jones v. Bird, 5 B. & Ald. 837, 844, as to the sufficiency of notice to secure property on the execution of sewerage works and the liability to shore up houses. In Ward v. Lee, 26 L. J. (N. S.) Q. B. 142, it was decided that the contractors of the metropolitan commissioners of sewers, who had broken into an old drain and damaged the property of the plaintiff, but who were found by the jury to have acted bona fide in carrying out the orders of the commissioners, were, by sect. 28 of the 11 & 12 Vict. c. 112 (the Metropolitan Sewers Act now expired), absolved from personal liability; but that the commissioners were liable for such an injury, and the damages that might be recovered against them would be payable out of the funds at their disposal under sect, 125 of the statute. But there is no such clause in the present statute. It may here be remarked that as between the board and contractor a properly framed contract for the construction of sewers should contain a stipulation requiring the contractor, at his own expense, to connect with the sewers in course of construction all sewers, gullies, house drains, &c., that are interfered with in the course of the works. See, as to the relative liabilities of town commissioners and waterworks company under a local Act, where an injury had resulted from a defective fireplug, Bayley v. Wolverhampton Waterworks Company, 30 L. J. (N. S.) Ex. 57; and see the

be necessary, and may cause the sewage and refuse from such sewers to be sold or disposed of as they may see fit, but so as not to create a nuisance (a), and the money arising thereby shall be applied towards defraying the expenses of such board (b).

for inter

commenced,

be submitted

[CXXXVI (c). Before the metropolitan board of Before works works commence any sewers and works for preventing cepting the the sewage from passing into the Thames as aforesaid, sewage are the plan of the intended sewers and works for the pur- plans, &c., to pose aforesaid, together with an estimate of the cost of to commiscarrying the same into execution, shall be submitted by sioners of such board to the commissioners of Her Majesty's works and public buildings; and no such plan shall be carried into effect until the same has been approved by such commissioners.]

works.

board may declare

CXXXVII. In case it appear to the metropolitan Metropolitan board of works that any sewers in the metropolis not hereinbefore vested in such board ought to be considered sewers to be

instance of an action against a district board of works constituted under this Act for neglecting to keep a sewer clean, whereby plaintiff's premises were flooded, Meek v. Whitechapel Board of Works, 2 F. & F. 144.

(i) See sect. 225 as to settlement and recovery of compen

sation.

(a) See 21 & 22 Vict. c. 104, s. 23, post, as to works and means for deodorizing sewage during the execution of works for the purification of the Thames. See sect. 24 as to execution of works so as not to create a nuisance, and sect. 31 as to proceedings by secretary of state on complaint of nuisance.

(b) See powers given to metropolitan board to take land for works for deodorization of sewage, 21 & 22 Vict. c. 104, s. 3, post. (c) This clause is repealed by the 21 & 22 Vict. c. 104, post, the first section of which directs the board to execute the works of main drainage "according to such plan as to them shall seem proper." The approval of the commissioners of works is no longer necessary; see sect. 25 of last-named Act; and by the 9th section the lords commissioners of the treasury are authorized to appoint inspecting engineers to inspect the main drainage works executed under this Act, and report to the commissioners in relation to the expenditure on such works.

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