A.D. 1875. duties capacities liabilities obligations or property, or to the transfer thereof, and direct the parties by whom and to whom any moneys found to be due are to be paid, and the mode of raising such moneys; and any provisions contained in any order so made shall be deemed to have been made in pursuance of and to be within the powers conferred by this section, subject to this proviso, that where any such order directs any rate to be made, or other act or thing to be done, which the party required to make or do would not, apart from the provisions of this Act, have been enabled to make or do by law, such order shall be provisional only until it has been confirmed by Parliament. Any settlement or adjustment under this section may be included in any provisional order which gives rise to the same. PART X. MISCELLANEOUS AND TEMPORARY PROVISIONS. Miscellaneous. A.D. 1875. Act. 305. Whenever it becomes necessary for a local Entry on lands authority or any of their officers to enter examine or lay for purposes of open any lands or premises for the purpose of making P.H., s. 143. plans surveying measuring taking levels making keeping S.U. 1865, s. 5. in repair or examining works, ascertaining the course of sewers or drains, or ascertaining or fixing boundaries, and the owner or occupier of such lands or premises refuses to permit the same to be entered upon examined or laid open for the purposes aforesaid or any of them, the local authority may, after written notice to such owner or occupier, apply to a court of summary jurisdiction for an order authorizing the local authority to enter examine and lay open the said lands and premises for the purposes aforesaid or any of them. If no sufficient cause is shown against the application the court may make an order accordingly, and on such order being made the local authority or any of their officers may, at all reasonable times between the hours of nine in the forenoon and six in the afternoon, enter examine or lay open the lands or premises mentioned in such order, for such of the said purposes as are therein specified, without being subject to any action or molestation for so doing: Provided that, except in case of emergency, no entry shall be made or works commenced under this section unless at least twenty-four hours' notice of the intended entry, and of the object thereof, be given to the occupier of the premises intended to be entered. See the Introduction, ante, pp. lxvi, lxxxv. See also s. 41, ante, with regard to entry on lands for examining drains, &c.; ss. 98, 102. for abating nuisances, s. 118, for seizing unsound meat, &c., and s. 137, for prevention of epidemic diseases, and see s. 106, as to the powers of police officers to enter premises. 306. Any person who wilfully obstructs any member of Penalty on the local authority, or any person duly employed in the obstructing A.D. 1875. execution of Act. N.R. 1855, ss. Penalty on damaging execution of this Act, or who destroys pulls down injures or defaces any board on which any byelaw noitce or other matter is inscribed, shall, if the same was put up by authority of the Local Government Board or of the local authority, be liable for every such offence to a penalty not exceeding five pounds. Where the occupier of any premises prevents the owner thereof from obeying or carrying into effect any provisions of this Act, any justice to whom application is made in this behalf shall, by order in writing, require such occupier to permit the execution of any works required to be executed, provided that the same appear to such justice to be necessary for the purpose of obeying or carrying into effect the provisions of this Act; and if within twenty-four hours after the making of the order such occupier fails to comply therewith, he shall be liable to a penalty not exceeding five pounds for every day during the continuance of such non-compliance. If the occupier of any premises, when requested by or on behalf of the local authority to state the name of the owner of the premises occupied by him, refuses or wilfully omits to disclose or wilfully mis-states the same, he shall (unless he shows cause to the satisfaction of the court for his refusal) be liable to a penalty not exceeding five pounds. A person charged under 11 & 12 Vict. c. 63, s. 148, with obstructing the works of a Local Board of Health was not necessarily entitled to have the case dismissed by the justices because the obstruction took place in the assertion of a private right; nor were the justices warranted in refusing as frivolous an application to state a case under 20 & 21 Vict. c. 43. Reg. v. Pollard, 14 L. T. (N.S.) 599. Finality of order.-It should be borne in mind, that the justices having once made the order, i.e., put their hands and seal to the document, meaning it to be an order, cannot afterwards amend it in any way. Rex v. Cheshire JJ. 5 B. & Ad. 439. In this respect an order differs from a conviction, which may be returned to the sessions in a more formal shape when warranted by the facts, even though a copy of it has been delivered to the person convicted. Rex v. Barker, 1 East, 186. 307. Any person who wilfully damages any works or works, &c. of property belonging to any local authority shall, in cases local authority. where no other penalty is provided by this Act, be liable L.G., s. 66. to a penalty not exceeding five pounds. San. 1866, s. 45. Compensation in case of damage by local authority. P.H., s. 144. 308. Where any person sustains any damage by reason of the exercise of any of the powers of this Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the local authority exercising such powers; and any dispute as to S.U. 1865, s. 8. the fact of damage or amount of compensation shall be settled by arbitration in manner provided by this Act, or if the compensation claimed does not exceed the sum of twenty pounds, the same may at the option of either party be ascertained by and recovered before a court of summary jurisdiction. Under the 11 & 12 Vict. c. 63, s. 144, only disputes as to the amount of compensation were to be settled by arbitration or by justices, and not disputes as to the liability to make compensation at all. Reg. v. Burslem, 1 E. & E. 1077, affirmed in the Exchequer Chamber, Ib. 1088. So again where the Thames Embankment Act, 1862, authorized the Metropolitan Board of Works to execute certain works in connection with the embankment, "making compensation to all persons having any interest in any wharves, jetties, quays, or other property taken for, or injuriously affected by, such works, or other the exercise of the powers of the Act," it was held that the payment, ascertaining, or depositing the amount of compensation in such case was not a condition precedent to the commencement of the works which occasion the damage. Macey v. Metropolitan Board of Works, 33 L. J. Ch. 377; 10 L. T. (N.s.) 66; 10 Jur. (N.s.) 333. As to what can be recovered in respect of “damage,” see Southampton and Itchin Floating Bridge Company v. Southampton, post, p. 282. As regards damage arising from the obstruction of the flow of water by the construction of sewers, see ante, pp. 19-23. The right to enter upon lands is absolute, and it is not a condition precedent that the damage to be sustained shall first be measured and ascertained. With reference to a somewhat similar provision in the Highway Act, it was held that the words in that Act do not make payment for the damage a condition precedent, for the duty to pay does not arise until after the justices have at their special sessions settled the amount. Peters v. Clarson, 7 M. & G. 548. It is well settled that whenever the Legislature authorizes the doing of a certain thing, and damage results from it, the remedy is under the provisions of the statute legalizing what otherwise would be a wrong, and not by action at law. That rule was laid down by Lord Cairns in Hammersmith Railway Company v. Brand, L. R. 4 H. L. 215, and by Mr. Justice Blackburn in the Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 112. See also St. Pancras Vestry v. Batterbury, post, p. 285. But this only relates to works carefully and skilfully executed, and if there be a want of proper care and skill on the part of those executing the works, an action for the negligence, to recover damages for the injury thereby sustained will lie. Therefore where works were executed by the Metropolitan Board of Works, under the powers conferred by 18 & 19 Vict. c. 120, s. 135, whereby plaintiff's premises were injured, and the jury found that by proper care and skill the injury could have been avoided, it was held that to recover compensation for this injury an action would lie, and that the plaintiff was not precluded from maintaining the action by the provisions of sect. 225 of that Act. Clothier v. Webster 31 L. J. C. P. 316; 6 L. T. (N.s.) 461; 12 C. B. (N.s.) 790; 9 Jur. (N.S.) 231. So it will be no answer to an action for damages that the works causing it were executed under the powers of an Act of Parliament, if the damage be occasioned by the wrongful construction, negligence, and improper execution of the works, and the want of proper and sufficient drains. Brine v. Great Western Railway Company, 31 L. J. Q. B. 101. See also Lawrence v. Great Northern Railway Company, 20 L. J. Q. B. 293. A person who sustains injury from the execution of works authorized by a statute is not, generally speaking, entitled to compensation under the compensation clauses of the statute unless the injury sustained is such as, had the works not been authorized by the statute, would have given the claimant a right of action. Therefore where a company in the execution of works authorized by a Local Act which incorporated the Waterworks Clauses Act, 1847, intercepted water from percolating underground into a well, and also abstracted from the well water which had already so percolated into it, it was held that, inasmuch as, apart from the statute, no action would have lain against the persons who executed the works in A.D. 1875. A.D. 1875. respect of either the interception or the abstraction of such water, the statute gave no right to compensation in respect of either. New River Company, Apps., Johnson, Resp., 2 E. & E. 435. But if a person brings or accumulates on his land anything which if it should escape may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. Rylands v. Fletcher, in error, 19 L. T. (N.s.) 220; L. R. 3 Ch. App. 330. Smith v. Fletcher, 41 L. J. Exch. 193. See also Ross v. Fedden, 26 L. T. (N.s.) 966, which related to the escape of water from a higher to a lower floor of a house. Works planned by public Boards may it seems be carried out though they tend to the injury of neighbouring landowners; and notice to such landowners need not be given, and their rights purchased by the Board before commencing the works. Where, therefore, the Metropolitan Board of Works, in making a sewer, cut a high road contiguous to certain lands in such a manner that they withdrew the water of an ancient spring, and laid dry a rivulet and a series of ponds extending three-quarters of a mile, upon a bill filed by the landowners claiming an immemorial right to the spring, the Court would not restrain the defendants in the execution of the works, or compel them to make the sewer water-tight, or to do any act to restore the ancient flow of water. In such case the landowners were held to be without any remedy in equity, and their only remedy was an action at law, claiming compensation for the damage done to their property by the works of the Board. Stainton v. Woolrych, and Stainton v. Metropolitan Board of Works, 26 L. J. Ch. 300. The estate in the above case was situated upon a bed of gravel, which was itself imbedded in a basin of clay extending under the estate and under the lands adjoining, and the water which rose through the gravel bed by means of natural springs was collected in a pond, and thence overflowing the edge of the clay basin, formed a rivulet which supplied other ponds, and was used by the prosecutor for watering his gardens and horses. The defendants in the course of making their sewer, cut through two beds of gravel and clay at a short distance from the estate, and the effect of the cutting was to drain the springs in the gravel, and to prevent them from finding their way into the pond, and from supplying the rivulet and the other ponds. On application for a mandamus to assess compensation in the manner authorized and directed by the Lands Clauses Consolidation Act, 1845, the Court of Queen's Bench, on the authority of Chasemore v. Richards, held that the prosecutor was not at common law entitled to compensation in respect of the abstraction of the water. Reg. v. Metropolitan Board of Works, 32 L. J. Q. B. 105; 9 Jur. (N.s.) 1009; 3 B. & S. 710. Where a prescriptive right to foul a stream has been acquired, the fouling must not be considerably enlarged to the prejudice of other people, and the fact that the stream is fouled by others would not be a defence to a suit to restrain the fouling by one. Again, the mere suspension of a prescriptive right to foul a stream is not sufficient to destroy the right without some evidence of an intention to abandon it; but where works had not been used for more than twenty years, and had been allowed to go to ruin, the Court on appeal held that the right of fouling a stream attached to the works was lost. It was also held that the owner of land on the banks of the river can maintain a suit to restrain the fouling of the water of the river without showing that the fouling is actually injurious to him. Crossley and Sons (Limited) v. Lightowler, L. R. 2 Ch. App. 478; 16 L. T. (N.S.) 438; 36 L. J. Ch. 584. Unless an actual injury results to a private individual himself, from the excessive exercise of the powers of a Local Board, it would seem that he cannot restrain the Board by injunction from proceeding with the works; if, however, there be such an exercise of excessive powers, the AttorneyGeneral, on behalf of the public, may proceed against the Board for disregarding the provisions of the Act of Parliament. Ware v. Regent's Canal Company, 5 Jur. (N.s.) 25. |