What is not refuse. Keeping waste water c. 63, s. 59. 29 & 30 Vict. c. 90, s. 54. Removal of filth on certificate of inspector of nuisances. 11 & 12 Vict. c. 63, s. 59. Accumula ashes a further quantity of metal, it was held that the ashes, being available for a commercial purpose, were not "dust, cinders, or ashes," within the meaning of the same Act (1). On the other hand, it has been held that the Commissioners under a Local Improvement Act were not compellable to remove from a manufactory, dust, ashes, and rubbish arising from the combustion of coal, and otherwise in the course of the manufacture of edge tools within the limits of the district of the Commissioners, as the intention of the act was that only the rubbish arising from the domestic use of houses should be removed (2). Whosoever keeps any swine or pigsty in a dwelling-house, or so as to be a nuisance to any person, or suffers any waste or stagnant water to remain in any cellar or place within any dwelling-house for twenty-four hours after written notice to him from the Local Board to remove the same, and whosoever allows the contents of any watercloset, privy, or cesspool to overflow or soak therefrom, for every such offence is liable to a penalty not exceeding 40s., and to a further penalty of 5s. for every day during which the offence is continued. The Local Board are to abate or cause to be abated every such nuisance; and the expenses incurred in so doing are to be repaid to them by the occupier of the premises, and be recoverable from him in summary manner. The provision in the 11 & 12 Vict. c. 63, s. 59, as to the keeping of swine, applies not merely to the place of keeping but to the manner of keeping the animals, and therefore, an information and conviction for keeping swine upon premises, and also pigsties thereon, so as to be a nuisance to the inhabitants of the dwelling-houses and premises near and adjoining thereto, were held to be good (3). Moreover, if the swine be kept so as to be a nuisance to any person, the statute will apply though the locality of the nuisance may not be near any dwelling-house. If at any time it appear to the inspector of nuisances that any accumulation of manure, dung, soil, or filth, or other offensive or noxious matter, ought to be removed, he must give notice to the person to whom it belongs, or to the occupier of the premises whereon it exists, to remove it; and if at the expiration of twenty-four hours after such notice the same be not complied with, the manure, dung, &c., or matter referred to, shall be vested in and be sold or disposed of by the Board, and the proceeds carried to the district fund account. Where a stableman kept dung accumulating so that the tion of dung. neighbouring inhabitants had to shut their windows, he was held liable to be convicted under a local Act which imposed a (1) Law v. Dodd. 1 Exch. 845; 17 L. J. M. C. 65. (2) Lyndon v. Standbridge, 2 H. & N. 45; 26 L. J. Exch. 386. penalty on offensive matter being kept so as to be a nuisance. Per Cockburn, C. J., " a dunghill may or may not be a nuisance, according to the way in which it is kept. If the dung is kept accumulating so long that a stench arises, and annoyance to the neighbouring inhabitants, then I think the case comes within the enactment, and the party may be convicted" (1). c. 98, s. 32. Whenever the Local Board have removed any noxious or Recovery of offensive accumulation as above mentioned, the expenses of expenses. removal, so far as they are not covered by the sale of the 21 & 22 Vict. accumulation, are recoverable in a summary manner from the 29 & 30 Vict. occupier, or, where there is no occupier, from the owner of c. 90, s. 54. the premises on which the accumulation existed, or from the person causing the accumulation; or may, by order of the Board, be declared to be private improvement expenses. If When in they amount to less than £20, instead of proceeding in a sum- County Court. 24 & 25 Vict. mary manner the Local Board may recover them in the County c. 61, S. 24. Court. law as to nuisances. Nothing in the Public Health or Local Government Act is Act not to to be construed to render lawful any act, matter, or thing affect present whatsoever which, but for these Acts, would be deemed to be a nuisance; nor to exempt any person from any liability, prose- 11 & 12 Vict. cution, or punishment to which he would have been otherwise c. 63, s. 65. subject in respect thereof. (1) Smith v. Waghorn, 27 J. P. 744. CHAPTER V. HOUSE DRAINAGE, SEWERAGE, AND PURIFICATION. THE Local Board must see and provide that all drains, and the waterclosets, privies, cesspools, and ashpits within their district, are constructed and kept so as not to be a nuisance or injurious to health; and their surveyor may, by their written authority (to be granted upon the written application of any person showing that the drain, watercloset, privy, cesspool, or ashpit, in respect of which application is made, is a nuisance or injurious to health, but not otherwise), and, after twenty-four hours' notice in writing, or in case of emergency without notice, to the occupier of the premises to which the drain, watercloset, privy, cesspool, or ashpit is attached or belongs, enter the premises, with or without assistants, and cause the ground to be opened, and examine and lay open the drain, &c. If it be found to be in proper order and condition, he must cause the ground to be closed, and any damage done to be made good as soon as can be, and the expenses of the works are to be defrayed by the Local Board: if, on the other hand, upon examination, the drain, &c. appear to be in bad order and condition or to require alteration or amendment, the Local Board are to cause notice in writing to be given to the owner or occupier of the premises, requiring him forthwith, or within such reasonable time as shall be specified in the notice, to do the necessary works; and if the notice be not complied with, the person to whom it is given is liable to a penalty not exceeding 10s. for every day during which he continues to make default, and the Local Board may execute the works and the expenses incurred in so doing are recoverable by them from the owner in a summary manner, or may be declared to be private improvement expenses, and be recoverable as such. With reference to the foregoing, it is to be observed that the power to determine the nature and extent of the works required by 11 & 12 Vict. c. 63, s. 54, is vested in the Local Board; and when proceedings are taken before justices to recover penalties for non-compliance with the notices of the Local Board under that provision, the justices have no power to review the determination of the Local Board. (1) (1) Hargreaves v. Taylor, 32 L. J. M. C. 111; 8 L. T. (N. S.) 149; 9 Jur. (N. s.) 1053; 3 B. & S. 613. The 54th section of the Public Health Act, 1848, as amended Inspection by any subsequent Act "providing that the Local Board of of drains, Health shall see that drains, waterclosets, privies, and ashpits sewers, etc. within their district do not become a nuisance," is by the 31 & 32 Vict. c. 115, s. 4, extended to the district of every sewer authority in which there is no enactment in any public or private Act of Parliament to the like effect in force. The Public Health Act, 1848, required the surveyor to cause 21 & 22 Vict. the ground to be closed before the necessary works are set c. 98, s. 33. about; but it is not now necessary for him to do so, provided that the necessary works are undertaken forthwith. It would seem, however, that if the necessary works are not undertaken forthwith, that is, within a reasonable time, it will be the duty of the surveyor to cause the ground to be closed, in accordance with the 11 & 12 Vict. c. 63, s. 54. The occupier, and not the owner, is primâ facie liable for the Liability of repair of the drains and sewers of the premises in his occupa- owner and tion; and a declaration against an owner for not cleansing the occupier. drains or sewers, not alleging that he was the occupier, or showing a reason for the alleged liability, was held to be bad. (1) The owner in some cases may, however, be liable, as in the case of Rex v. Pedley, (2) in which it was held that if the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the land, he is liable to an indictment for the nuisance being continued or created during the term, owing to his not having taken effectual means to prevent it. So also if he let a building which requires particular care to prevent the occupation from being a nuisance, and the nuisance occur from want of that care on the part of the tenant. It is necessary to observe here that this portion of the work is confined to an exposition of the law contained in the Public Health and Local Government Acts, and that the subject of the removal of nuisances injurious to health, and the prevention of diseases, will be found treated at length in a subsequent part of the work. II & 12 Vict. No house can be erected, or, if it has been pulled down to or Drains, below the ground floor, rebuilt, nor occupied, until a covered privies, etc., drain or drains shall have been constructed in such a manner to new house. as upon the report of the surveyor shall appear to be necessary c. 63, s. 49. and sufficient. If the sea, or a sewer of the Local Board, or a sewer which they are entitled to use, be within one hundred feet of any part of the site of the house to be built or rebuilt, the drains to be constructed must lead from and communicate with such one of those means of drainage as the Local Board may direct; if however no such means of drainage be within (1) Russell v. Shenton, 11 L. J. Q. B. 289. (2) 1 A. & E. 822: 3 L. J. M. C. 119. Drains, privies, etc., Construction of works of drainage by Local Board. Ib. Ib. House defined. Ib. s. 2. that distance, then the drains must be made to communicate with and be emptied into such covered cesspool or other place, not being under any house, and not being within such distance from any house as the Local board may direct. Whosoever erects or rebuilds any house or constructs any drain contrary to these requirements is liable to a penalty not exceeding £50, which may be recovered by any person, with full costs of suit, by action of debt. If at any time, upon the report of the surveyor, it appear to the Local Board that any house, whether built before or after the time when the Act is applied to the district in which it is situate, is without any drain, or without such a drain or drains communicating with the sea or a sewer as may be sufficient, and if the sea, or a sewer of the Local Board, or a sewer which they are entitled to use, be within one hundred feet of any part of the house, they are to cause notice in writing to be given to the owner or occupier, requiring him forthwith, or within a reasonable time to be specified, to construct and lay down, in connection with the house and one of those means of drainage, one or more covered drain or drains of such material and size, and at such level and with such fall as upon the report of the surveyor may appear necessary. If the notice be not complied with, the Local Board may, if they think fit, execute the necessary works, and the expenses incurred by them in so doing are recoverable by them from the owner in a summary manner, or, by order of the Local Board, be declared to be and be recoverable as private improvement expenses. may It would seem from Austin v. Lambeth (1) that the Local Board have the exclusive power to determine whether their directions have been carried out with regard to the materials to be used in the construction of the covered drain. For the purposes of the Act the word "house" includes schools, factories, and other buildings in which more than twenty persons are employed at one time; but other definitions of the word "house" are not excluded, for the term "include " is not exhaustive, and does not exclude other definitions. "New buildings" are defined by the 21 & 22 Vict. c. 98, s. 34, post, p. 221. In a case where the Local Commissioners had paved a footway extending from certain premises to certain other premises, and called upon the owner to pay for the same under the Local Act, his liability to do so depended upon whether the length of footway paved was less than thirty yards from "house to house." The length so paved exceeded thirty yards to the next dwelling-house, but less than thirty yards to the next "house," if a coach-house can be called or considered to be a Coach-house. part of a "house." The Court said that they had no doubt (1) 22 Jur. 274. |