Miscellaneous.

council and

[CXLI. ** And be it enacted (a), that Her Majesty may from time to Orders in time alter or amend any order in council made under or in pursuance provisional of the provisions of this Act, by any subsequent order in council, in orders may such manner as Her Majesty, by and with the advice of Her privy and districts be amended, council, may think proper ;

And if at any time it appear to the general board of health that any provisional order made by them under this Act should be altered or amended, or that the boundaries of any district should be altered or extended, they shall make a provisional order under their hands and seal of office accordingly:

Provided always, that no order in council or provisional order as last aforesaid shall be made until such proceedings have been taken in and with respect to the district and parts to be affected thereby as are herein-before required to be taken previously to the original constitution of a district under this Act ;

And no such provisional order shall be of any force or effect without the previous authority of parliament, as herein-before prescribed with respect to provisional orders made under this Act. **]

extended.

of orders in

CXLII. And be it enacted, that all orders in council under Publication this Act shall take effect and be in full force and operation council, &c. within the district to which they apply from and after a day which shall be specified in such orders for that purpose (b);

And a copy of every such order shall be published in the London Gazette, and shall be laid before parliament in the month of January in every year, if parliament be then sitting, or if parliament be not then sitting, then within one week after the next meeting thereof;

[And whenever any provisional order of the general board of health Report of is submitted to parliament for confirmation, the said general board shall superintending inspecpresent to both houses of parliament a copy of all reports of any su- tors, &c. to perintending inspector with respect to the parts to which the provisional be laid before parliament. order relates, and of all memorials forwarded to the said general board with respect to such reports] (c).

(a) Repealed by 21 & 22 Vict. c. 98, s. 77, which contains special provisions to carry out the object of this section.

(b) See in 21 & 22 Vict. c. 98, s. 20, when this Act comes into operation in any new district.

(c) This provision is at an end.

Entry upon

lands for

of this Act.

CXLIII. And be it enacted, that in case it shall become

the purposes necessary to enter, examine, or lay open any lands or premises for the purpose (d) of making plans, surveying, measuring, taking levels, examining works, ascertaining the course of sewers, or drains, or ascertaining or fixing boundaries (e), and the owner or occupier of such lands or premises shall refuse to permit the same to be entered upon, examined, or laid open for the purposes aforesaid or any of them, the local board of health may, upon notice (ƒ) to such owner or occupier, apply to two justices (g) for an order authorizing the members of such local board, and the superintending inspector, surveyor, and inspector of nuisances, or any of them, to enter, examine, and lay open the said lands and premises for the purposes aforesaid or any of them, and if no sufficient cause shall be shown against the same the said justices may make an order (h) authorizing the same accordingly, and thereupon any superintending inspector, the local board of health, or any member thereof, the surveyor, and inspector of nuisances, and any person authorized by any such superintending inspector, local board, surveyor, or inspector of nuisances, may, at all reasonable times between the hours of ten in the forenoon and four in the afternoon, enter, examine, or lay open the lands or premises mentioned in such order, for such of the said purposes as shall be spe

(d) Several causes in this Act contain special provisions for the entry upon premises for other purposes than those contained above.

(e) See sect. 41, ante.

(f) As to this notice, see sect. 150, post, and 21 & 22 Vict. c. 98, 8. 61.

(g) See as to these words sect. 2, ante. The Nuisances Removal Act, 1855, 18 & 19 Vict. c. 121, sect. 11, contains a provision by which a justice may issue an order to persons who have the custody of premises, to admit the local authorities or their officers to inspect such premises where nuisances are said to exist, to examine the course of drains, and to execute or inspect works ordered by justices to be done under that Act. This power has been extended by the 29 & 30 Vict. c. 90, s. 31, in the Appendix. The Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 84, incorporated herewith, contains an authority to enter without consent for particular purposes.

(h) Which order cannot be removed into the Court of Queen's Bench. See sec. 137.

cified in the said order, without being subject to any action or molestation for so doing:

Provided always, that, except in case of emergency (i), no entry shall be made, or works commenced under the powers of this enactment, unless twenty-four hours at the least previously thereto notice of the intended entry, and of the object thereof, be given to the occupier of the premises intended to be entered.

tion in case

by local

CXLIV. And be it enacted, that full compensation shall compensabe made, out of the general [or special] district rates to of damage be levied under this Act, to all persons sustaining any board. damage (i) by reason of the exercise of any of the powers of this Act (1);

(i) The person who enters must determine at his peril whether the case may be one of emergency. Therefore it will be the safest course to give this notice, unless the emergency be very clear.

(k) This means only damage, which the Act is required to excuse or justify. See note on sect. 68, ante, and 21 Jur. 221; 22 Jur. 1298.

In Brine v. The Great Western Railway Company, 2 B. & S. 402. Crompton, J., says, "the distinction is clearly established between damage from works authorized by statutes where the party generally is to have compensation and the authority is a bar to an action, and damage by reason of the works being negligently done as to which the owner's remedy by way of action remains." This is adopted by the judges in the case of The Mersey Docks Trustees v. Gibbs, Law Rep. 1 Eng. & Ir. App.

112.

If the Act is such that a private individual could have justified, the local board is not rendered liable by this clause to grant compensation for damage resulting from the Act. Hall v. Corporation of Bristol, 15 L. T. (N. s.) 572; 36 L. J. C. P. 110; L. R. 2 C. P. 322. R. v. Metropolitan Board of Works, 8 L. T. (N. s.) 238; 32 L. J. Q. B. 105. Where a local board, in default of the owners of the houses in a street, paved, sewered and levelled a street, and thereby damaged the house of one of such owners by obstructing the entrance to it, he was held to be entitled to compensation under this section. Q. v. The Wallasey Local Board, Law Rep. 4 Q. B. 351.

The clause does not apply to damage caused by negligent working. Clothier v. Webster, 6 L. T. (N. s.) 461; or by the improper acts of the agents of the local board. Coe v. Wise, L. R. 1 Q. B. 711.

Still less is it applicable to a case where the local board act without legal right and without any authority conferred by this or the subsequent statutes. Reg. v. Darlington Local Board, 33 L. J. Q. B. 305; 6 B. & S. 562.

(1) Where there has been damage, but the local board deny their

Sewers, &c.

of commis

sioners of

And in case of dispute as to amount (m) the same shall be settled by arbitration in the manner provided by this Act (n), or if the compensation claimed do not exceed the sum of twenty pounds, the same may be ascertained by and recovered before justices in a summary manner (0).

[CXLV. ** And be it declared and enacted (p), that nothing in this Act shall be construed to authorize the local board of health to use, injure, or interfere with any sluices, floodgates, sewers, groynes, sea

liability, the Court of Queen's Bench will grant a writ of mandamus to the board to make compensation on the application of the person aggrieved, in which proceeding both the liability and the amount of damage can be tried. Q. v. Burslem Board of Health, 28 L. J. Q. B. 345; 1 E. & E. 1077.

In such proceedings where it was proved that the board having denied their liability were liable, but the prosecutor had not claimed any specific sum nor taken steps to have the amount settled by arbitration, it was held that he was entitled to judgment, as it was not to be assumed that the amount was in dispute. Ib.

(m) If the local board do not dispute their liability for damage, if any, but deny that there is any damage, the case is one for arbitration under this clause. Bradby v. The Southampton Local Board of Health, 4 E. & B. 1014. The distinction is thus expressed by Erle, J.: "Where there is a dispute whether the act complained of was done by the local board, or as to something which would, if found for the local board, show that there was no liability to make compensation, then the dispute is not within the jurisdiction of the arbitrators, but when the dispute is as to whether the damage was more or less, or nominal, the case is within their jurisdiction."

In this case the local board made a sewer through the land of B., who claimed compensation. The board maintained that he was not damaged, and consequently not entitled thereto. B. called upon them to proceed to arbitration, which they refused to do. He took steps under sect. 123, and the arbitrator made an award, ex parte, which the Court of Queen's Bench upheld.

A similar opinion was expressed by Wood, V. C. in The Bradford Local Board of Health v. Hopwood, 23 J. P. 561; 6 W. R. 818, referred to in the judgment of Willes, J., 29 L. J. Q B. 243.

(n) See sect. 123, ante, and see the new provisions in 21 & 22 Vict. c. 98, s. 64, post.

(0) The recovery will be under sect. 129, ante.

(p) Repealed by 21 & 22 Vict. c. 98, s. 68, which, however, re-enacts similar provisions with amplifications. It will be remembered that though sect. 43 vests all sewers in the local board, there is an exception of sewers such as those described above. That and the subsequent sections relating to sewers, in conjunction with the above section, have

vate water

not to be used without

defences, or other works already or hereafter made under the authority sewers, priof any commissioners of sewers appointed by the crown, or any sewers courses, etc., or other works already or hereafter made and used for the purpose of draining, preserving, or improving land under any local or private consent. Act of parliament, or for the purpose of irrigating lands, or to use, injure, or interfere with any watercourse, stream, river, dock, basin, wharf, quay, or towing path in which the owner or occupier of any lands, mills, mines, or machinery, or the proprietors or undertakers of any canal or navigation, shall or may be interested, without

led to much discussion, and have produced considerable litigation. Local boards of health anxious for the public good, by their endeavours to extend their sewers and provide for their sewerage, have, in some cases, infringed the private rights of individuals, who have applied to the courts of law for redress or interference. Thus, in Oldacre v. Hunt, 1 Jur. (N. s.), 785; 6 De. G. M. & G. 376; 19 Beav. 485, a local board of health proposed to carry a sewer through certain fields into the river Avon at a certain spot. The owners of those fields which adjoined the river had watering places therein, they had also a several fishery in the river, though they were not otherwise interested in the bed of it; and they had not given their consent to the works. The Master of the Rolls granted an injunction to prevent the board of health from proceeding with the sewer, and this injunction was confirmed by the Lords Justices on appeal, assisted by Cresswell and Williams, JJ. The opinion of the court was, that the parties complaining were interested in the river by reason of their watering places, independently of their right to the fishery, which also appeared to the judges to be fairly included under the term land. See also Bidder v. The Local Board of Croydon, 6 L. T. (N. S.) 779. But with reference to the right to pollute streams gained by long user against individuals, see Rigby v. The Mayor of Bristol, 29 L. J. Ex. 359; Goldsmid v. The Tunbridge Wells Commissioners, L. R. 1 Eq. 169, 1 Ch. Ap. 352.

In the case of Attorney-General v. The Luton Local Board of Health, 2 Jur. (N. s.) 180, it appeared that the local board carried the whole drainage of the town of Luton into the river Lee, which flowed through the lands of the relator, who had a mill on its banks. Though it was not a public navigable river, there had been a drainage into it from a few houses previous to 1848, but the works of the local board greatly increased the sewerage, and polluted the water to such an extent that sheep could no longer be washed in it. It was held by Vice-Chancellor Wood that the local board could not justify their proceedings, and that as the relator was interested in the river, and had not given his consent, he was entitled to an injunction to restrain them from proceeding further with their works. He also held that the public nuisance was a sufficient ground for the injunction.

Reference must also be made to the case of the Att.-Gen. v. The Town Council of Birmingham, 4 Kay & J. 528, where a local board were restrained by the vice-chancellor from conveying their sewage into a river, and thereby polluting a stream in which private