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at law or

equity.

18 & 19 Vict. c. 121, s. 30.

Proceedings restraining the Staffordshire Copper Extracting Company from carrying on the copper works recently established by them within the township, so as to occasion the emission of any vapours, gases, or smoke to the injury or damage of the inhabitants of the township or any of them, Wood, V.C., held upon the frame of the suit that the bill was improperly filed, and that proceedings for the purpose of restraining a nuisance to the inhabitants within the area of the jurisdiction of the Board should be by information at the relation of the Local Board or by indictment. He therefore dismissed the bill, but without costs; and in dealing with the merits of the case, regarding it as a suit by information only, he said it was not a case requiring the assistance of a jury (as had been suggested) after he had the evidence of no fewer than 260 witnesses, all speaking to the existence of the nuisances; upon the evidence he said the question was beyond dispute, and that he could not conceive anything more fallacious than the decision of a jury after a single view of the premises. If the jurymen had been living on the spot for six months there might have been some use in referring the matter to such a tribunal; but, as was clearly shown by some of the scientific evidence, everything would depend upon the particular day on which they were taken to view the premises, the emanations being much stronger and reaching further on some days than on others. (1)

Periodical removal of manure in

The natural question in all such cases is whether the annoyance created is such as materially to interfere with the ordinary comfort of human existence. Where, therefore, the smoke and annoyance proceeding from works are a material addition to what previously existed in the neighbourhood, and do materially interfere with comfort, the Court will grant an injunction to restrain smoke or effluvia issuing from a factory so as to occa sion nuisance, disturbance, or annoyance, and so also with regard to noise occasioned by the process of manufacture. (2)

Generally with regard to the carrying on of noxious trades in places under a Local Board of Health, see 11 & 12 Vict. c. 63, s. 64, ante p. 320.

§14. REMOVAL OF MANURE AND REFUSE.

Where notice has been given by the nuisance authority, or their officer or officers, for the periodical removal of manure or other refuse matter from mews, stables, or other premises news30 Vict. (whether such notice shall be by public announcement in the locality or otherwise), and subsequent to such notice the person or persons to whom the manure or other refuse matter belongs shall not so remove the same, or shall permit a further accumu

c. 90, s. 53.

(1) Attorney-General v. Staffordshire Copper Extracting Company, I Weekly Notes, 258.

(2) Crump v. Lambert, 15 L. T,

(N. s.) 600; L. R. 3 Eq. 409. Affirmed on appeal, 17 L. T. (N. S.) 133 (see ante, p. 328).

lation, and shall not continue such periodical removal at such Periodical intervals as the nuisance authority, or their officer or officers, removal of shall direct, he or they shall be liable, without further notice, to manure in a penalty of 20s. per day for every day during which such mews, etc. 29 & 30 Vict. manure or other refuse matter shall be permitted to accumulate, c. 90, s. 53. such penalty to be recovered in a summary manner. This, however, does not apply to any place where the Board of Guardians or overseers of the poor are the nuisance authority.

$15. OVERCROWDED DWELLING-HOUSES.

ment of.

The next provision of the Nuisances Removal Act relates Proceedings to the prevention of the overcrowding of houses containing for abatemore than one family. Whenever the medical officer of health, 18 & 19 Vict. if there be one, and if there be no such officer, then whenever c. 121, s. 29. two qualified (ie., duly registered) medical practitioners certify to the local authority that any house, containing more than one family, is so overcrowded as to be dangerous or prejudicial to the health of the inhabitants, the local authority is to cause proceedings to be taken before the justices to abate such overcrowding, and the justices are thereupon to make such order as they may think fit, and the person permitting the over- Penalty. crowding is to forfeit a sum not exceeding 40s.

It will be remembered that by the Sanitary Act, 1866, s. 19, p. 503, the word "nuisances" under the Nuisances Removal Acts shall include "any house or part of a house so overcrowded as to be dangerous or prejudicial to the health of the inmates."

Ib.

Ib.

The Act gives no authority to appoint a medical officer of Proceedings health; as to the appointment of such an officer, however, in for abateplaces under Local Boards of Health, see 11 & 12 Vict. c. 63, ment. s. 40. In districts where no such officer exists, the provision can only be carried into effect on the certificate of two "duly qualified medical practitioners." The local authority cannot take any steps without the proper certificate; but when they receive a proper certificate, the Act is imperative in requiring that they shall cause proceedings to be taken to abate the overcrowding of the house named in it. The house need not be what is commonly understood by the term "common lodging-house;" for the Act applies to any house the inhabitants whereof shall consist of more than one family. The proceedings are to be taken before "the justices," who may make such order as they may think fit, that is, they may order whatever they consider the exigencies of the case require. It is not, however, very apparent what justices are referred to. In the case of a stipendiary magistrate no difficulty will arise in this respect; but generally it would be safest for the "justices" not to act except in petty sessions. The Act does not indicate the nature of the proceedings which are to be taken by the local authority; but as they would be in the nature of a com

for abate

ment.

18 & 19

Vict. C. 121, s. 29.

Proceedings plaint of an offence having been committed against the Act, it would seem that they should be taken under the 11 & 12 Vict. c. 43, the keeper or occupier of the house being in the first instance summoned to answer the complaint of the local authority. A difficulty, however, will arise in enforcing whatever order the justices may make. So far as it may order the keeper or occupier of the house to pay a penalty, it may be enforced by distress and sale; but if it be disobeyed in any other respects, there appears to be no mode of enforcing it, except by indictment. Practically, therefore, the provision will be inoperative, except in so far as upon every fresh certificate proceedings may be had against "the person permitting the overcrowding" for cumulative, or rather successive penalties for successive offences in permitting the overcrowding.

Common lodginghouses.

Occupation of cellars, etc.

11 & 12 Vict. c. 63, s. 67.

As regards the overcrowding of common lodging-houses, and the means to be taken to prevent such overcrowding, see the Common Lodging-Houses Acts, 14 & 15 Vict. c. 28, and 16 & 17 Vict. c. 41; the 11 & 12 Vict. c. 63, s. 66, and 29 & 30 Vict. c. 90, s, 41, ante, p. 263.

$16. CELLAR DWELLINGS.

By the Sanitary Act, 1866, s. 42, the 67th section of the Public Health Act 1848, relating to cellar dwellings, shall apply to every place in England where such dwellings are not regulated by any other Act of Parliament, and in applying that section to places where it is not in force at the time of the passing of the 29 & 30 Vict. c. 90, the expression "this Act" shall be construed to mean the Sanitary Act, 1866, and not the said Public Health Act, 1848. In construing the 67th section as applied by the 29 & 30 Vict. c. 90, nuisance authority shall be substituted for the Local Board.

The following is the provision above referred to in the Public Health Act, 1848, with regard to cellar dwellings :

No vault, cellar, or underground room built or rebuilt after the passing of the Public Health Act, 1848, or which shall not have been so let or occupied before the passing of that Act, is to be let or occupied separately as a dwelling; and no vault, cellar, or underground room whatsoever, can be let or occupied separately as a dwelling unless it be in every part at least seven feet in height, measured from the floor to the ceiling; nor unless it be at least three feet of its height above the surface of the street or ground adjoining or nearest to it; nor unless there be outside of and adjoining, and extending along the entire frontage, and upwards from six inches below the level of the floor up to the surface of the street or ground, an open area of at least two feet and six inches wide in every part; nor unless it be well and effectually drained by means of a drain, the uppermost part of which is one foot at least below the level of the floor; nor unless there be appurtenant the use

of a water-closet or privy and an ashpit, furnished with proper Occupation doors and coverings, kept and provided according to the proof cellars, etc. visions of the Act (see ante, p. 154); nor unless it have a fire- 11 & 12 Vict. c. 63, s. 67. place with a proper chimney or flue; nor unless it have an external window, of at least nine superficial feet in area clear of the sash-frame, and made to open in such manner as shall be approved by the surveyor, except in case of an inner or back vault, cellar, or room let or occupied along with a front vault, cellar, or room as part of the same letting or occupation, in which case the external window may be of any dimensions not being less than four superficial feet in area clear of the sash-frame. Whosoever lets, occupies, or continues to let, or knowingly suffers to be occupied, for hire or rent any vault, cellar, or underground room, contrary to the above-mentioned provisions, is liable for every offence to a penalty not exceeding Penalty. 205. for every day during which the premises continue to be so Ib. let or occupied after notice in writing from the Local Board. In any area adjoining a vault, cellar, or underground room Steps. there may be steps necessary for access thereto, if so placed as Ib. not to be over, across, or opposite to the external window, and so as to allow between every part of the steps and the external wall a clear space of six inches at the least, and that over or across any such area there be steps necessary for access to the building above to which the area adjoins, if so placed as not to be over, across, or opposite to any external window.

Every vault, cellar, or underground room in which any person What a passes the night is to be deemed to be occupied as a dwelling dwelling. within the meaning of the Act.

Ib.

dwellings.

The provisions of the Act, with respect to the letting and How in case occupation of vaults, cellars, and underground rooms, so far as of cellars, etc. they relate to vaults, cellars, and underground rooms which already have been let or occupied as dwellings before the passing of occupied as the Act, were not to come into force or operation until the Ib. expiration of one year from the passing of the Act; nor within any district until the expiration of six months from the time when the Act shall have been applied to such district.

All churchwardens and overseers of the poor from time to Churchtime are to cause public notice of its provisions with respect to wardens, the letting and occupation of vaults, cellars, and underground etc., to give rooms, to be given in such manner as may appear to them to be best calculated to make them generally known.

notice of
enactment.
Ib. s. 67.

have occurred

Where two convictions against the provisions of any Act Cases in relating to the occupation of a cellar as a separate dwelling which two place shall have taken place within the period of three months, convictions whether the persons so convicted were or were not the same, it within three shall be lawful for any two justices to direct the closing of such months. premises for such time as they may deem necessary, and, in the 29 & 30 Vict. case of cellars so occupied, to empower the nuisance authority c. 90, s. 36. to permanently close the same, in such manner as they may

deem fit, at their own cost.

Services of notices, etc.,

on the

premises.
18 & 19 Vict.

C. 121, s. 31.

By post.
Ib.

Proof of orders or

resolutions of

local authority.

Ib. s. 32.

Legal proceedings by local authority at law or in equity.

CHAPTER III.

§ 1. SERVICES OF NOTICES, ETC., AND PROOF OF
RESOLUTIONS OF LOCAL AUTHORITY.

WITH regard to procedure under the Nuisances Act, as before
observed (p. 519), notices, summonses, and orders under it, may
be served by delivering them to or at the residence of the
persons to whom they are respectively addressed. Where they
are addressed to the owner or occupier of the premises, they
may also be served by delivering the original, or a true copy
thereof, to some person upon the premises; if there be no person
upon the premises who can be so served, they may be delivered
by affixing them upon some conspicuous part of the premises.
If, however, the person upon whom they are to be served shall
reside at a distance of more than five miles from the office of
the inspector, they may be served by a registered letter through
the post.

With regard to notices served by post, especially such notices as are contemplated by sect. 25 of the Act, it is to be observed that the computation of the time for the services of notices in this manner must commence from the time when by the ordinary course of the post office the letter containing the notice would be received by the person to whom it is addressed. (1)

It has already been observed (p. 509) that the distance of five miles from the office of the inspector must be measured in a straight line from point to point in a horizontal plane, ie, "as the crow flies."

The Act also provides that copies of any orders or resolutions of the local authority or their committee (appointed under sect 5), purporting to be signed by the chairman of such body or committee, shall, unless the contrary be shown, be received as evidence thereof, without proof of their meeting or of the official character or signature of the persons signing such copies.

§ 2. LEGAL PRocedure,

The local authority, within the area of their jurisdiction, may direct any proceedings to be taken at law or in equity, in cases coming within the purview of the Act. They may also order proceedings to be taken for the recovery of any penalties, and

(1) Reg. v. Slawston, 21 L. J. 145; 16 Jur. 1066.

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