(Secs. 49.50) other Rights re becoming High as to the Cesser of Two Thirds of Rentcharges herein contained. XLIX. That, notwithstanding any Street is hereby declared to Pipeway and be or shall at any Time under this Act become a Highway, the served in Streets Right of any Person to Mineral or other Wells, or to Pipes for ways. the Conveyance of Water, or to Sewers, excepted out of the Forty-third Section (a.) of “The Public Health Act, 1848," running under such Street, shall continue to exist, and with Liberty to renew or repair the same Wells, Pipes, or Sewers, and to make Communications therewith, as fully as if such Street had not become a Highway, the Person so renewing, repairing, or making Communications as aforesaid forthwith repairing the Street to the Satisfaction of the Commissioners Surveyor; nevertheless the Drainage of surCommissioners at all Times cause the Surface Water from reserved sewers. the Highways to be drained into the said Sewers, they making good any Damage occasioned in making or repairing the Communications for this Purpose; and that all Covenants entered into by any Person or Persons for the Maintenance or Repair of pants to repair any Street which is hereby declared to be or shall become a Highway as aforesaid shall, after such Dedication, except as to past Breaches of such Covenants, cease. may face water into Cesser of cove Streets becoming nected with Gas, age under 59 G. c. 132., 2 and 3 and 3 and 4 W. done under the of Commissioners under this Act. L. That all Works, Acts, and Operations in the Streets or All Works conWays in the Borough which under the Act passed in the Fifty- water, and Sewninth Year of King George the Third, intituled An Act for light- 3. c. 17., 5 G. 4. ing with Gas the Town and Parish of Cheltenham and Precincts Vict. c. 25., &c. thereof in the County of Gloucester, or under an Act passed in the 4. c. 21. are to be Fifth Year of King George the Fourth, intituled An Act for bet- Superintendence ter supplying the Town and Neighbourhood of Cheltenham in the County of Gloucester with Water, or under any Act extending the Powers of the last-mentioned Act, or under an Act passed in the Third Year of King William the Fourth, intituled An Act for the better Sewage, cleansing, and draining of the Town of Cheltenham in the County of Gloucester, are required to be done under the Direction, Inspection, or Superintendence or to the Satisfaction or with the Consent or Approval of the Commissioners acting under the Act hereby repealed, or their Surveyor, or of the Trustees of any Turnpike Roads, or of the Surveyor of such Roads or of the Highways, or of the Parish Officers, or other Persons, not being Owners or Occupiers of Lands, shall be done, after the passing of this Act, (so far as they lawfully may be done,) under the Direction, Inspection, or Superintendence and to the Satisfaction or (a.) Incorporated by Sec. 32, ante page, 46. (Sections 51. 52. 53.) with the Consent or Approval of the Commissioners acting in Cheltenham Gas 59 G. 3. c. 17. execution of this Act. Saving Rights of LI. That nothing in this Act contained shall alter or affect Company under the Powers or Provisions of the Act passed in the Fifty-ninth Year of the Reign of His late Majesty King George the Third, intituled An Act for lighting with Gas the Town and Parish of Cheltenham and Precincts thereof in the County of Gloucester, but that the Powers thereby vested in the Cheltenham Gaslight and Coke Company shall and may be available and executed, and be carried into execution and effect, with respect to this Act, as the same was or were or might have been with respect to the Act hereby repealed, or the Commissioners thereby appointed, or as if the Commissioners hereby appointed, or to be appointed by virtue of this Act, had been mentioned in the said Act of the Fiftyninth Year of the Reign of King George the Third, and the said last-named Commissioners shall have such and the like Powers and Authorities with respect to the said Cheltenham Gaslight and Coke Company as the Commissioners appointed or who might have been appointed by or under the said repealed Act would have had in case the same Act had remained unrepealed: Prosewer into Chelt vided always, that it shall be lawful for the Cheltenham Gaslight and Coke Company to carry their waste Refuse and Sewage, at the Expense of the Company, into the Chelt Main Sewer to be Not to drain into constructed under the Provisions of this Act; and when and so Brooks, &c. after soon as such Sewer shall have been made and completed it shall main sewer made not be lawful for the Cheltenham Gaslight and Coke Company to carry their waste Refuse and Sewage into any Cesspool, or into any River, Brook, or Stream within the said Borough. Company may main sewer. Cesspool, or Surface Cleansing. Section 55 of 11 And with respect to Surface Cleansing, be it enacted, LII. That so much of the Section numbered 55 of "The Public and 12 Vict. c. Health Act, 1848," as relates to Street Cleansing and the like, shall be incorporated with this Act. 63. incorporated with this Act. Cleansing and LV. And be it enacted, That the Local Board of Health shall from Time to Time and at all convenient Times provide that all Streets within their District, including the Foot Pavements thereof, are properly swept, cleansed, and watered, and that all Dust, Ashes, Rubbish, Filth, Dung, and Soil thereon are collected and removed; (a) LIII. That the following Sections of "The Towns Improve97, of 10 & 11 Vic. ment Clauses Act, 1847," shall be incorporated with this Act: Sections 95, 96, & c. 34. incorpo rated with this Act. (a) See the rest of this Sec: incorporated by Sec: 72 Post. The Section numbered 95 of the said Act: (Secs. 53.54) appoint Scaven for cleansing, duties. XCV. The Commissioners shall appoint and employ a sufficient Commissioners to Number of Scavengers, or contract with any Company or other gers or contract Person to employ Scavengers, for sweeping, cleansing, and water- watering, &c. ing the Streets, and for removing all Dust, Ashes, Rubbish, and streets. Filth therefrom, and from the Houses and Tenements therein, and for emptying Privies and Cesspools, in the Manner by this or the special Act directed; and such Scavengers shall, on such Days Scavengers and at such Hours, and in such Manner as the Commissioners from Time to Time appoint, sufficiently execute all such Works and Duties as they have respectively contracted or been employed to perform; and every such Contractor who fails to sweep and Penalties on neglect, &c. by properly cleanse or water any Street which he has contracted to Contractors. sweep, cleanse, or water, or who fails to clean out and empty any Privy, Cesspool, or Sewer which he has contracted to clean out and empty, at the Time and in the Manner appointed by the Commissioners, or to collect or remove any Dirt, Ashes, or Rubbish which he has contracted to remove at the Time and in the Manner prescribed by the Commissioners for that Purpose, or who lays any of such Soil, Dust, Ashes, Rubbish, or Filth in any other Place than such as are appointed by the Commissioners for that Purpose, shall for every such Offence be liable to a Penalty not exceeding Five Pounds. And the Section numbered 96 of the same Act: structing Sca XCVI. Every Occupier of any Building or Land within the said Penalty for obLimits, and every other Person, who refuses to permit the said Sca- vengers. vengers to remove such Dirt, Ashes, or Rubbish as by this or the special Act they are authorized to do, or who obstructs the said Scavengers in the Performance of their Duty, shall for every such Offence be liable to a Penalty not exceeding Five Pounds. And the Section numbered 97 of the same Act. Scavengers re XCVII. Every Person, other than the Person employed by the Com- Penalty on Permissioners, or by some Person contracting with the Commissioners sons other than for that Purpose, who collects or carries away any Night Soil, moving Dirt. Dust, Ashes, Rubbish, or Filth by this or the special Act directed to be removed by Persons employed by the Commissioners, from any Street or public Place within the Limits of the special Act, shall be liable to a Penalty not exceeding Forty Shillings for every such Offence. And with respect to public Lighting, be it enacted, Public Lighting. LIV. That the Section numbered 8 of "The Public Health Section 8 of 12 & Supplemental Act, 1849," shall be incorporated with this Act. 13 Vict. c. 94. incorporated with this Act. (Secs. 54.55) Commissioners may contract for lighting. And provide Lamp Posts and VIII. And whereas it is expedient that the Local Boards of Health for the Execution of the Public Health Act, 1848, should be invested with certain Powers not included in that Act: Be it therefore enacted, That the said Local Boards constituted under the said Public Health Act may contract for any Period not exceeding Three Years at any One Time with any Company or Person for the Supply of Gas or Oil, or other Means of lighting the Streets, Roads, and other open Places, Markets, and public Buildings within their respective Districts, and may provide such Lamps, Lamp Posts, and other Materials and Apparatus as such Local Boards respectively may think necessary for lighting the same; and the Expenses incurred by any such Local Board in so doing shall be defrayed out of the general or special District Rates (as the Nature of the Case may require) levied under the said Public Health Act. LV. That the Commissioners may direct Lamp Posts and Lamp Power to affix Irons to be affixed and set up against or upon the Palisades of Houses, or against Walls, as well as in or upon the Streets, and may cause such Posts and Irons to be altered, taken down, and renewed from Time to Time; the Commissioners may cause the Lamps to be lighted with Gas, Oil, or otherwise, at and for such Hours and Seasons as to them seems fit; and for the PurGas-works, &c. pose of public Lighting, the Commissioners may of their own Authority make and manufacture Gas, and purchase Ground, and erect the necessary Buildings, Apparatus, and Machinery, and lay Pipes, Plugs, and Branches in the Streets, and do all other Things necessary thereto : Provided always, that nothing herein private premises contained shall authorize the Commissioners to lay down or carry on any Pipe or Works through or against any Buildings, Yards, or enclosed Grounds or Lands not dedicated to the public Use, for the Purpose of lighting the Streets, without the Consent of the Owner and Occupier thereof, unless the same be in Renewal or Reparation of a Pipe already lawfully laid down and placed in such Premises; and if any Person should take away, destroy, or injure any Pillar, Lamp Post, Plug, Lamp, Pipe, or other Apparatus for lighting, belonging to the Commissioners, or any Part thereof, such Person shall pay to the Commissioners Compensation for the Damage occasioned by such Misfeasance, and, if the same were wilfully or maliciously done, a Penalty not exceeeing Five Pounds in addition thereto. Power to erect Not to carry without consent. Penalty for damaging Lamps &e. Highways. And with respect to Highways and Turnpike Roads, be it enacted, (Section 56. LVI. That the Section numbered 117 of the "Public Health Sect. 117 of 11 Act, 1848," shall be incorporated with this Act. 12 Vict. c. 63. incorporated with this Act. CXVII. And be it enacted, That the Local Board of Health within Powers transferred, &c. be rated for yond limits. the Limits of their District shall, exclusively of any other Person Commissioners to whatsoever, execute the Office (a.) of and be Surveyor of High- be Surveyors of Highways; ways, and have all such Powers, Authorities, Duties, and Liabilities as any Surveyor of Highways in England is now or may hereafter be invested with or be liable to by virtue of his Office by the Laws in force for the Time being, except in so far as such Powers, Duties, or Authorities are or may be inconsistent with the Provisions of this Act; and the Inhabitants of any District shall not in re- Borough not to spect of any Property situate therein be liable to the Payment of Highways beHighway Rate or other Payment, not being a Toll, in respect of making or repairing Roads or Highways within any Parish, Township, or Place, or Part of any Parish, Township, or Place, situate beyond the Limits of such District: Provided always, that the several Persons who at the Time when this Act is applied Existing Surto any District are Surveyors of Highways within the same Dis- cover Rates in trict may recover any Highway Rate made in respect of the said and apply same, District, and then remaining unpaid, in the same Manner as if this Act had not been passed; and the Money so recovered shall be applied, in the first place, in reimbursing themselves any Expenses incurred by them as such Surveyors, and in discharging any Debts legally owing by them on account of the Highways within their Jurisdiction; and the Surplus (if any) shall be paid (a.) It has been considered, and by many taken for granted, that this section confers and imposes on the Commissioners the powers, and authorities, and duties, and liabilities conferred and imposed on Surveyors of Highways by the General Highway Act, 5 & 6 William 4. c. 50. and the amending and enlarging Acts; but the 112th section of the Highway Act enacts "That nothing in this Act contained shall be construed to abridge, repeal, alter, amend, or interfere with the powers and provisions contained in any Act relating to any parish or place for any of the purposes in this Act mentioned;" and the section 113 enacts, "That nothing in this Act contained shall apply to any Turnpike Roads, except where expressly mentioned, or to any Roads, Bridges, carriage ways, cart ways, horse ways, bridle ways, foot ways, cause ways, church ways, or pavements, which now are or may hereafter be paved, repaired, or cleansed, broken up, or diverted, under or by virtue of the provisions of any local or personal Act or Acts of Parliament." Now it is clear the Town of Cheltenham comes under the words of both these Sections, and therefore, no person acting as or doing the duties of the Surveyor of Highways in Cheltenham, or any part, could it should seem be invested with, or liable to any of the "powers, authorities, duties, or liabilities" conferred, or imposed by the General Highway Act. If such be so, (and it can hardly be contended that the words of this 117th sec. are strong enough to repeal the 112th and 113th Sections of the Highway Act) it seems to follow, that the Commissioners are also not invested with, or liable to any of such powers, authorities, duties, or liabilities. The application of this 117th Section no doubt was intended for Parishes, and Places with no local acts, or powers, and to which the Provisional order simply would apply. The above suggestion may not be law, but if not, so many Treatises on Highways exist, that it has been thought unnecessary to encumber this work with copies of the Highway Acts, &c. &c. See Section 6 of the Nuisances Removal Act post appendix No. 3. made thereby part of the General Highway Act, and compelling Surveyors to cleanse ditches, &c. in connection with sec. 58 of the Public Health Act, post sec. 72, this is a duty imposed generally on all Surveyors acting under the Highway Act. See also section 7 of the Nuisances Act prohibiting certain drainage into open ditches, &c. veyors to re arrear; |