Places for time to be limited in such order. Unless the friends or relations of the deceased undertake to bury the body within the time so limited, and do bury the same, it shall be the duty of the relieving officer to bury such body at the expense of the poor rate, but any expense so incurred may be recovered by the relieving officer in a summary manner from any person legally liable to pay the expense of such burial. Any nuisance authority may provide a proper place (otherwise reception of than at a workhouse or at a mortuary house as provided for in dead bodies sect. 27 of the Act) for the reception of dead bodies for and during time during the time required to conduct any post-mortem examinarequired for post-mortem tion ordered by the coroner of the district or other constituted examination authority, and may make such regulations as they may deem may be fit for the maintenance, support and management of such provided. 29 & 30 Vict. place. Where any such place has been provided, any coroner or other constituted authority may order the removal of the body for carrying out such post-mortem examination and the reremoval of such body, such costs of removal and re-removal to be paid in the same manner and out of the same fund as the cost and fees for post-mortem examinations when ordered by the coroner. c. 90, s. 28. Duty of surveyor. 18 & 19 Vict. c. 121, s. 21. Compensation for damages. lb. How to be settled. 5 & 6 Will. IV. The fees for post-mortem examinations by order of the coroner are payable under 6 & 7 Will. IV. c. 89, s. 3, and 7 Will. IV. & 1 Vict. c. 68, s. 2, out of the county rates or borough fund as the case may be. § 8. DITCHES, DRAINS, ETC., ADJOINING HIGHWAYS. All surveyors of the highways and district surveyors may make, scour, cleanse, and keep open all ditches, gutters, drains, or watercourses in and through any lands or grounds adjoining or lying near to any highway, upon paying the owner or occupier of such lands or grounds, provided they are not waste or common, for the damages which he shall thereby sustain, which are to be settled and paid in such manner as the damages for getting materials in enclosed lands or grounds are directed to be settled and paid by the law in force for the time being with regard to highways. The power extends to any lands or grounds "adjoining or lying near to any highway;" the right to damages arising only in case the lands or grounds are not waste or common. The words "upon paying, etc.," do not make payment a condition precedent, (1) for the duty to pay does not arise until after the justices have at their special sessions settled the amount. The amount to be paid for damages done is to be settled and ascertained by order of justices at a special sessions for the highways, which are to be held by any two or more justices of the peace within their respective divisions, not less than eight, (1) Lister v. Lobley, 7 A. & E. 124; Peters v. Clarson, 7 M. & G. 548. nor more than twelve times in every year, for the purpose of executing the provisions of the Highway Act. The days of holding such sessions are to be appointed at a special session to be held within fourteen days after the 20th March in every year. In parishes and places within the district of the Metropolis How in the Local Management Act, special provision is made by that Act metropolis. for draining, cleansing, covering, or filling up all ponds, pools, 18 & 19 Vict. c. 120, ss. 86, open ditches, sewers, drains, and places containing or used for the collection of any drainage, filth, water, matter, or thing of an offensive nature or likely to be prejudicial to health. 87. cause offensive or covered. Every vestry and district Board within the limits of the Act District shall drain, cleanse, cover, and fill up, or cause to be drained, Board to cleansed, covered, or filled up, all ponds, pools, open ditches, sewers, drains, and places containing or used for the collection ditches, of any drainage, filth, water, matter, or thing of an offensive drains, etc., nature, or likely to be prejudicial to health, which may be to be cleansed situate in their parish or district. They shall cause written Ib. s. 86. notice to be given to the person causing any such nuisance or to the owner or occupier of any premises whereon the same exists, requiring him, within a time to be specified in such notice, to drain, cleanse, cover, or fill up such pond, pool, ditch, sewer, drain, or place, or to construct a proper sewer or drain for the discharge of such filth, water, matter, or thing, or to do such other works as the case may require. If the person to whom such notice is given fail to comply therewith, the vestry or Board shall execute such works as may be necessary for the abatement of such nuisance, and may recover the expenses thereby incurred from the owner of the premises in manner hereinafter mentioned: Provided always, that it shall be lawful for such vestry or Board, where they think it reasonable, to defray all or any portion of such expenses, as expenses of sewerage are to be defrayed under the Act: Provided also that where Where works any work by any vestry or district Board done or required to interfere be done in pursuance of the provisions of the Act interferes with any ancient mill, with or prejudicially affects any ancient mill, or any right con- etc., comnected therewith, or other right to the use of water, full com- pensation to pensation shall be made to all persons sustaining damage be made, or thereby, in manner provided by the Act; or it shall be lawful rights therein purchased. for the vestry or Board, if they think fit, to contract for the pur- b. chase of such mill, or any such right connected therewith, or other right to the use of water; and the provisions of the Act with respect to the purchases by the vestry or Board shall be applicable to every such purchase. Any vestry or district Board in the metropolis, where they Vestries and think fit, may cause the ditches at the sides of or across public district roads and bye-ways and public footways to be filled up, and to Boards to fill substitute pipes or other drains alongside or across such roads up ditches by and ways, with appropriate shoots and means of conveying roads, and water from such roads and ways thereinto, and from time to the side of substitute pipes. c. 120, s. 87. time to repair and amend the same; and the surface of land gained by filling up such ditches may, if the vestry or Board so 18 & 19 Vict. think fit and direct, be thrown into such roads and ways, and be repairable as part thereof, and be under the control of the surveyors of the highways, or other person in charge of such roads, bye-ways, or footways. With regard to watercourses and ditches on the sides of turnpike roads, the 3 Geo. IV. c. 126, provides that it shall be lawful for the surveyor of every turnpike road, and such person as he or they (sic) shall appoint, to remove and prevent all annoyances on every part of every turnpike-road, by filth, dung, ashes, rubbish or any other matter or thing whatsoever, being laid or thrown upon any turnpike road, or upon any open common or waste land within eighty feet of the centre thereof, and to dispose of the same for the benefit of such road, in case the owner thereof shall neglect to remove the same within twelve hours after notice in writing, signed by any two trustees, or the surveyor of such road, given to such owner for that purpose, or in case the owner is not known, then after a like notice affixed for three days on the nearest turnpike gate; and to turn any watercourses, sinks, or drains running into, along, or out of any turnpike road, or any part thereof, to the prejudice of the same, and to open, scour, and cleanse any watercourses or ditches adjoining to any turnpike road, and make the same as deep and large as he shall think proper and necessary, in case the owners or occupiers of the adjoining lands shall neglect to open, scour, or cleanse such watercourses or ditches, after seven days' notice in writing given for that purpose; and the charges thereof, and of removing any annoy ances, to be settled by any one or more justices of the peace the county or place where such part of the turnpike road shall lie, shall be reimbursed to the said surveyor by such owners or occupiers, and the same shall be recovered in such manner as the penalties and forfeitures are hereinafter directed to be recovered; and if after the removal of any of the said annoyances any person shall offend in the like kind, every such person shall, for every such offence, forfeit and pay any sum not ex ceeding £5. And further, that in all cases where any gutter, drain, sink, sewer, or under drain, made or hereafter to be made under or at the sides or near any turnpike road, shall be used as well for the conveyance of the water from such turnpiked, or conveying water, filth, or other matters from the houses or premises of the inhabitants of any town, hamlet, village, street, or place, and no specific mode of repair, or persons liable to the expense of maintaining the same, shall be appointed, the expense of maintaining and repairing such gutter, drain, sink, sewer, or under drain, shall be borne and defrayed equally or in propor tions by the trustees or commissioners of such turnpike road, and the inhabitants of the town, hamlet, village, street, or place of using the same; and in order to ascertain the proportion and recover such expenses the surveyor of the turnpike road under, at the sides, or near to which such gutter, drain, sink, sewer, or under drain shall be situated, shall, as often as shall be requisite, repair the same, and shall then make out an account of the costs and expenses of such reparation, and produce the same to any two or more justices of the peace acting for the county or place where such gutter, drain, sink, sewer, or under drain, or so much thereof as shall be repaired, shall lie; and it shall and may be lawful for the said justices, and they are hereby autho- Expenses of rized and empowered, to examine the accounts and statements repairs laid to be produced to them, and to inquire as to the persons using before two such gutter, drain, sink, sewer, or under drain, and to propor- shall proporjustices, who tion the amount to be paid by the trustees or commissioners tion amount of the turnpike road and by the inhabitants and persons using to be paid by such gutter, drain, sink, sewer, or under drain respectively, the parties. and to fix and ascertain the amount of such proportion as they 3 Geo. IV. (the said justices) shall deem just and reasonable, to be paid by the said several parties respectively; and if any person or persons shall neglect or refuse to pay the sum directed by the said If not paid, justices to be paid by him, her, or them, the same shall be levied distress. by distress and sale of the goods and chattels of the person or persons so neglecting or refusing, by a warrant under the hands and seals of any two or more justices of the peace acting for the county or place where such person or persons shall reside. The cleansing of ditches, etc., in places under Local Boards of Health is treated of in a former part of this work, ante, p. 147. With regard to the removal of nuisances on the highway, see Glen's Highway Laws, Second Edition, p. 389. § 9. NEW SEWers. c. 126, s. 115. Ib. Whenever any ditch, gutter, drain, or watercourse used, or New sewers. partly used, for the conveyance of any water, filth, sewage, or 18 & 19 Vict. other matter from any house, building, or premises, is a nuisance C. 121, s. 22, within the meaning of the Act, and cannot, in the opinion of the local authority, be rendered innocuous without the laying down of a sewer, or of some other structure along the same or part thereof, or instead thereof, the local authority are required to lay down such sewer or other structure, and to keep the same in good and serviceable repair. To enable them to do so Entry upon they are declared to have the same powers as to entering lands, premises. and to be entitled to recover the same penalties in case of inter- Ib. ference, as are contained in the 67th and 68th sections of the Highway Act, 5 & 6 Will. IV. c. 50. The local authority are Assessment. further authorized and empowered to assess every house, build- Ib. ing, or premises then or at any time thereafter using the said ditch, gutter, drain, watercourse, sewer, or other structure, to such payment, either immediate or annual, or distributed over a term of years, as they shall think just and reasonable. Assessment. 18 & 19 Vict. c. 121, s. 22. Mandamus to repair. Ib. Amount of assessment. Ib. Per Wood, V.C., with reference to the above enactment, the only thing they (the local authority) have vested in them is a certain sewer, or right of preventing nuisances in their own parish, and that only by constructing sewers for the purpose of arresting the nuisance. The sewers are to be constructed in such a manner as will enable people to drain into them, and they have also power to compel people to drain into them if they think fit. (1) Having regard to the Sewage Utilization Act, and the amending Acts, post, it may be a question how far the 22nd section of the 18 & 19 Vict. c. 121, is superseded by those Acts; yet as it is not expressly repealed it is necessarily retained in this work. The expression "repair" in 18 & 29 Vict. c. 121, s. 22, does not mean the reconstruction of a sewer which has been origi nally defectively made, but the keeping the original sewer in proper repair. Therefore, to a mandamus requiring the defendants as the local authority to put a sewer within their district in good and serviceable repair, it was held a sufficient return that the sewer which had originally been constructed by another authority had been defectively made; that it was not such a sewer as was required by the Act, and that in consequence of its defective structure it could not be put into good and serviceable repair. (2) The real effect of the finding was that this particular sewer could not be put into serviceable repair, or, that if it were so, it would be a nuisance. As to the deodorizing processes, th evidence was overwhelming that they were not practicable, and even if otherwise, they would hardly come within the definition of repair. There could hardly be a mandamus to deodorize the sewage; still less could that be asked for under a mandamus to repair. The truth was that it would require a large expendi ture, for which, under the Nuisances Removal Act, there were no funds. The Local Boards under that Act had no power to buy land and construct works of that kind. There would be such a power under the Public Health Act, but the parties did not desire to put the district under that Act, and therefore it was sought to effect the object by a sort of side wind. That, however, could not be done. The rule, therefore, was refused. The assessment to be made under this section shall in no case exceed a shilling in the pound on the assessment to the highway rate, if any. If a highway parish be co-extensive with a poor law parish, and be included in a highway district under 25 & 26 Vict. c. 61, no separate highway rate will be levied, as by 27 & 28 Vict. C. IOI, S. 33, the money called for by the Highway Board is to be paid by the overseers out of the poor rate. See Glen's Highway Laws, Second Edition, p. 32. (1) Attorney-General v. Richmond, 12 Jur. (N. S.) 544. (2) Reg. v. Epsom, 8 L. T. N, s.) 383. |