Ex.]

THE DUKE OF Buccleugh and Queensberry v. Metropolitan Board of Works.

Francis, Duke of Buccleugh and Queensberry, is interested as

hereinafter mentioned, and have shut up, removed, and obstructed the use and enjoyment of a landing place there, to which use and enjoyment the said duke is entitled as hereinafter mentioned. And whereas the said Walter Francis, Duke of Buccleugh and Queensberry has sustained damage by reason of the several premises, and has also sustained further large damage by the depreciation of the messuage and dwelling-house, lands, tenements, and hereditaments belonging to him as hereinafter mentioned, and by the otherwise injuriously affecting of the same by the execution by you of the works authorised by the said Act, and by the exercise of the powers of the said Act. Now, we, the undersigned, as the agents of the said W. F. Duke of Buccleugh and Queensberry, duly authorised by him in this behalf, do hereby give you notice that the said duke requires you to pay him compensation, as well for the entering upon and taking by you of the said causeway, pier, or jetty, as for the removal and obstruction of the use and enjoyment of the said landing place, and for all other damages sustained and to be sustained by him by such injurious affecting of his said messuage and dwelling house, and other lands, tenements, and hereditaments, and that the amount of compensation claimed by him by reason of the premises is 10,000. And we also further give you notice that the said duke is or claims to be the owner of the said causeway, pier, or jetty, and also of the said messuage or dwelling-house, and other lands, tenements, and hereditaments, as lessce thereof under or by virtue of a lease, dated the 19th April 1810, and granted by his late majesty King George III. to the most noble Henry, Duke of Buccleugh, and his trustees, and of two agreements, dated respectively 4th Feb. 1854 and 26th Oct. 1858, and made between the Queen's most excellent Majesty, the Hon. C. A. Gore, and the said W. F., Duke of Buccleugh and Queensberry, for a term whereof, at the time of the said entry and taking and of the said injuriously affecting, ninety years or thereabouts were unexpired; and that the said duke also claims to be entitled as such lessee, to the use and enjoyment, during the said term, of the said landing-place, and of the easements rights and privileges belonging thereto and connected therewith. And we further give you notice that, unless you are willing to pay to the said duke the said sum of 10,0007., and shall enter into a written agreement for that purpose within twenty-one days after the receipt of this notice by you, then the said duke desires to have the amount of such compensation settled by arbitration, according to the provisions of the Act or Acts of Parliament in that case made and provided-Dated this 14th Feb. 1867. Yours, &c.

NICHOLLS, BURNETT, and NEWMAN.

A similar notice of claim, under the hand of the duke himself, was served on the defendants on the 11th March 1867.

The board, not complying with the requisitions in the above notice, the duke's agent, on the 13th March 1867, served a notice on the defendants of the appointment by the duke of an arbitrator on his behalf in the matter of the said claim, and calling upon the defendants to nominate an arbitrator on their behalf, and on the 18th of the same month of March the defendants appointed an arbitrator on their behalf in the matter of the said claim, and the said arbitrators appointed the said C. E. Pollock as their umpire, and being unable to agree upon the amount of compensation to be awarded to the plaintiff, the matter came before the said umpire, who proceeded therein, and after hearing evidence, made and published his award as aforesaid, to enforce compliance with which on the part of the defendants the present action was brought by the plaintiff.

The trial of the action took place before Kelly, C. B., at the Middlesex Sittings after Hilary Term last, and the facts appeared to be shortly as follows: For a long series of years the present duke, and his predecessors, had been in the possession of the premises in question as lessees under the Crown; and, as appeared from the documents in evidence, and herein before set forth, the plaintiff, the present duke, in 1854, entered into an agreement with the Crown, whereby, upon the duke's surrendering the then existing lease of 1810, the Crown agreed to grant a new lease to him of the said premises, or the site thereof, for ninety-nine years, from the 5th June 1855, at an increase of rent of 2571. 14s. a year, upon its being certified to the Crown that the duke had expended 20,000l. in and about the rebuilding, altering, and improving the said mansion house and buildings. No new lease had in fact been granted, although there was no dispute that the plaintiff had expended the required amount, and much more, and was in a position to call upon the Crown to perform

[Ex.

their part of the agreement. At the back, or southern side of the plaintiff's premises, which abutted on the river, a staircase led down to a stone causeway or jetty, extending from the garden down to low water mark, and which jetty had always, and up to the time of the construction of the defendants' works, been exclusively used and repaired by the duke and his predecessors, occupants of Montaguhouse. It was proved also that the duke's coals, fruit, ice, and vegetables, and other matters of that sort, were always brought by water and landed at this jetty, and that linen for the wash was taken from Montagu-house by boats to his villa at Richmond, and brought back again to the jetty, and that when the duke went to Scotland all his luggage was sent by river and by sea from this jetty.

At the conclusion of the case for the plaintiff it was submitted by the counsel for the defendants that the plaintiff could have no property in the causeway without the licence of the Conservators of the river Thames, and even assuming his title to the use of the causeway to be good, his only remedy for its destruction was by mandamus to compel the board to construct a new one in its place; and that under the circumstances the loss of the causeway was not a subject of compensation. It was also objected that the arbitrator had included in his award certain heads of damage, in respect of which the plaintiff was not entitled to compensation, amongst others, for instance, the loss of prospect caused by the construction of the embankment, which, as there was no specific statement in the award of the elements on which the total amount of compensation was arrived at, the defendants were bound to assume was one of them. The defendants then proposed to call Mr. Pollock the umpire for the purpose of ascertaining from him the grounds upon which he had arrived at the amount of compensation awarded by him, a proceeding which was objected to by the plaintiff's counsel as unusual and inadmissible; nevertheless, after some discussion the learned Chief Baron admitted the evidence, subject to the opinion of the court above, as to its admissibility, and the following is the evidence in question given at the trial.

In answer to a question what the claim was, Mr. Pollock said, "The claim was put before me in this way-first, they said the duke's causeway is taken from him, and that lets him in, as taking an easement attached to his house, to claim for the loss and for general damage to the house, including all its amenities,' of whatever kind they might be."

Being asked whether the view or prospect was specifically mentioned among the "amenities," he answered "Yes, prospect; it is almost wrong to say loss of prospect, because it was the comfort and privacy of the house."

The Lord Chief Baron.-I need not tell you, Mr. Pollock, that that is a very different thing. Loss of comfort and privacy is one thing, and the substitution of a great public embankment, like this, for public purposes, instead of water or whatever it was before, producing loss of prospect-that is what the owner could see from the window-which was pleasant before, and which may be rendered unpleasant afterwards, is quite a different thing. Was there any specific claim made for loss of prospect?

Answer.-No, my Lord; in that sense there was none; not in the sense that there was a view from the house.

Kelly, C. B.-We all know the ordinary meaning attached to the term "a pleasant house with a very fine view;" then if you build a hospital or a church that obstructs it, that is a loss of prospect. If you saw the hills, or a lake, or a piece of water, and instead of being as before all clear in front, there is built up something to obstruct it, of course there

Ex.]

THE DUKE OF Buccleugh and QUEENSBERRY v. METROPOLITAN Board of Works.

[Ex.

is injury by loss of prospect. Was there claim of | costs, and leave was reserved to the defendants to that sort? move to set aside the verdict and enter a nonsuit or a verdict for them.

Answer.-No.

Philbrick.-I think it was put in this way: Having a roadway brought there which would bring large traffic, people on the tops of omnibuses and carriages would look over the wall as at present constructed.

Answer. It would be their prospect, not the duke's.

Question. Then, in order to remedy that, the duke would have to heighten the wall and, as it was then said that that would shut out his prospect of the river, to secure his own privacy he would have to shut off his prospect of the water?

Answer-I do not think it was only the prospect of the water. I think that the privacy was considered. It was said it was a question of taste. Some people might like it, and some might not. The privacy of the river frontage to some people would be of great value to the house. Then the next head was for actual structural injury by the subsidence of a portion of the kitchen and other parts of the house and offices. That was a very small matter.

Kelly, C. B.-Was there anything else? Answer.-No; that was the only mode in which the claim was put.

Question. -You took all these matters into consideration, and awarded 80007. or thereabouts ? Answer.-Yes.

Philbrick.-Will you tell us of what items the 8000l. was composed?

This question was objected to, but admitted, subject to objection.

Hawkins, Q. C., accordingly, in Easter Term last, moved for and obtained a rule nisi to set aside the plaintiff's verdict, and to enter a verdict for the defendants, or a nonsuit, or for a new trial, on the grounds:-1. That the umpire awarded compensation in respect of items of "injurious affection," the existence of which were not shown at the trial. 2. That no title to the jetty or causeway was proved. 3. That the taking, user, destruction, or obstruction of the jetty or causeway was not a matter in respect of which the plaintiff was entitled to compensation, and that, in awarding compensation in respect thereof, the umpire exceeded his jurisdiction. 4. That the umpire awarded compensation in respect of some one or more matters, in respect of which he had no jurisdiction to award compensation. 5. That the "injurious affection" of the premises, in respect of which the umpire made his award, was not proved at the trial, nor was the plaintiff's right or title to recover compensation in respect thereof proved. 6. That the verdict was against evidence. 7. That the Lord Chief Baron misdirected the jury in telling them that on the evidence given the plaintiff was entitled to the verdict, and to the full benefit of the award.

The argument, on the demurrer to the fourth plea, which had been directed to stand over until after the trial of the issues of fact, was now directed by the court to come on at the same time with the argument on the above rule, the argument on the demurrer being taken first.

Answer.-In order that your Lordship and the The following were the plaintiff's points on the jury may understand, I will tell you the mode in argument of the demurrer: 1. That inasmuch as it which, on the part of the board, they shaped their is admitted by the plea that the defendants had, as case. They said, true, the duke's house would be stated in the declaration, entered upon and taken injured if he did nothing, but the duke may, if he the causeway, pier, and jetty of the plaintiff and likes it, under the Act of Parliament, become a executed their works thereon, the further damage lessee of the Crown of, I think, nearly half an acre to the other lands and hereditaments of the plainof ground between the house and the river. Then tiff in the manner stated and admitted in the plea they said, you must assume that he will become the was an "injurious affecting" of such other lands and lessee thereof; and I may say at once that, if I hereditaments; and that the plaintiff was and is had assumed that he had no power to take that entitled to compensation in respect thereof, upon land, my damages would have been larger. I the principle laid down in the case of Re the Stockassumed that the duke would take, and that all who port, Timperley, and Altringham Railway Company, advised him would advise him to take, that piece of 33 L. J. 251, Q. B. 2. That the rule that compenland, as lessee of the Crown. There was no dis-sation, under the Lands Clauses Consolidation Act pute that, if he did, the capitalised rent of the garden, which the surveyor put on it, was 150 a year, and that, for the duke's remaining term, would be sixteen and a half years' purchase, and that would be capitalised at 24751. Adopting that as a datum, my award was this: loss of jetty 2001, structural damage done to the walls 507. -I think the kitchen was said to have been penetrated by water-then, capitalised rent of garden 2475, then the expense of building a wall to shut out the noise and dirt and dust of the traffic, &c., laying out the garden, and other matters he would have to do, would be 6007., and then I thought, after all that had been done, that the house would be of less value as a nobleman's or gentleman's residence by 50007, and these several sums added together

make 83251.

The Lord Chief Baron was of opinion, on the evidence, that the duke was entitled to the full benefit of the award, and consequently was entitled to the verdict; but if on any ground the defendants could show that the award had been given for something which the arbitrators or umpire had no power to give, that would be fatal to the award altogether. A verdict was consequently entered for the plaintiff for 88897. 11s. 5d., viz., 83251. amount of the award, 2087. for six months' interest, and 356l. 11s. 5d.

1845 can only be given for that which, unless sanctioned by that statute, would have been an actionable wrong, has no application to cases where the act occasioning the damage was done on the claimant's lands, or on land taken from him by force of the statute. 3. That, even apart from the fact that the defendants had entered upon and taken a part of the plaintiff's lands and hereditaments, the damage to the other lands and hereditaments of the plaintiff, in the manner stated and admitted in the plea, was an injurious affecting of such other lands and hereditaments, and that the plaintiff was and is entitled to compensation in respect thereof. 4. That the interference by the works executed by the defendants with the mode of access from the plaintiff's mansion-house and lands to the navigable river, was an act which, unless sanctioned by the statute, would have been an actionable wrong, and consequently was within the principle of the case of Reg. v. The Eastern Counties Railway Company, 2 Q. B. 347.

The defendant's points :-1. That the plaintiff is not legally entitled to compensation in respect of the matter in the fourth plea mentioned. 2. That the fact of the plaintiff's causeway being taken for the execution of the works does not entitle him to compensation in respect of the matters in the fourth plea alleged. 3. That the sum awarded being

Ex.] THE DUKE OF Buccleugh and QUEENSBERRY v. METROPOLITAN Board of Works. entire and unseverable for, among other things, those in the fourth plea alleged, the award is vitiated, and the plaintiff cannot recover thereon.

May 23.-Mellish, Q.C. (with him were Horace Lloyd, Q.C. and Dering) for the plaintiff in support of the demurrer to plea 4. [He read the declaration and the 3rd and 4th pleas, and then proceeded to argue.] In substance the duke's title to his house and garden bordering on the Thames, so that at high water the river came up to his premises, is admitted on the 4th plea. Moreover, that plea must be taken to admit the duke's ownership, as part of the demised premises, of the causeway, pier, and jetty running out from his garden, and their destruction by the embankment. [BRAMWELL, B. Is there not another admission also, namely, that by the substitution of this land way for the water way, the duke's premises are prejudicially affected ?] | That is so, if that in law can be a prejudicially affecting, which the defendants will say it cannot be, it being, as they contend, immaterial whether the highway be land or water. Ricket v. The Metropolitan Railway Company, in the House of Lords, affirming the judgment of the court of error, 16 L. T. Rep. N. S. 542; L. Rep. 2 App. 175; 36 L. J. 206, Q. B.; and Chamberlain v. The West End of London and Crystal Palace Railway Company, in the Queen's Bench, 8 L. T. Rep. N. S. 149; 33 L. J. 156, M. C.; 2 B. & S. 605 are governing cases on this subject, but the present case differs from them materially, and falls more within the more recent case of Beckett v. The Midland Railway Company, in the Common Pleas, 17 L. T. Rep. N. S. 499; 37 L. J. 25, C. P.; L. Rep. 3 C. P. 28. The injury in the present case, as in that case, was of a permanent character, and not like that in Ricket's case, temporary. [KELLY, C. B.-No court has held that the taking away the access by a navigable river to a house is not an "injuriously affecting" of the premises, and even, if the defendants had left the causeway standing, their works would have prevented the access to it by boats and barges. BRAMWELL, B.-The duke cannot be worse off than he would have been had he been a coal merchant, and the defendants had said to him, "True, you cannot bring your barges up, but we offer you a dry road." The answer would be, "I am much obliged to you, but I do not want it. I have got a dry road in front of me." It is found and taken as a fact that it is a prejudice to the plaintiff. Is it to be argued that it cannot be so in point of law? CHANNELL, B.-In many instances the substitution might be a benefit, but the defendants' argument must go the length of saying that it cannot, in point of law, be an injury.] Just so. This case falls within Beckett v. The Midland Railway Company (ubi sup.) where the road was narrowed and rendered less commodious, and is a clear case for compensation. (He was here stopped by the court.)

May 23 and 25.—Hawkins, Q. C. and Philbrick for the defendants, being called on to support their pleas, first of all objected to the declaration that it was narrower in its terms than the award. The declaration in substance sets forth that there are two matters of complaint in respect of which the plaintiff was entitled to compensation, and the umpire has awarded in respect thereof 83251., but the award shows that that sum was awarded in respect of three matters: 1. The taking away of the causeway, pier, or jetty. 2. The shutting up and obstruction of the landing-place; and 3. The "otherwise injuriously affecting" the premises, two only of such matters (the first and third) being alleged in the declaration to be made the subject of complaint. Reading therefore the fourth plea with the declaration, the latter conclusively was bad.

[Ex. The defendants have had no opportunity of traversing the existence of the right to the landingplace. [MARTIN, B.-The declaration alleges that the plaintiff was entitled to an interest in the causeway, pier, and jetty, and to compensation for the same, and also for his interest in certain other lands, &c., adjacent thereto, that were "injuriously affected" by the said works. The umpire awards 83251. for compensation for the interest in the causeway, pier, and jetty, and for the shutting up of the said landing-places; that is for the interest in the said causeway, pier, and jetty; that is for his right to make use of it as a landing place. KELLY, C. B.-Is it anything more than an amplified manner of stating it?] And now as to the demurrer to the fourth plea. The award, which is set out in extenso in the third plea is incorporated in plea 4 by reference, and then after such reference plea 4 proceeds as follows: (He read plea 4, concluding with the allegation, that the sum awarded was indivisible, and awarded (amongst other matters) "in respect of the mere fact of the defendants having, under the powers of the said Act, placed and substituted the said highway or land carriage road next to the plaintiff's said mansion house and lauds, on the river side thereof, in lieu of the said navigable river.") [KELLY, C. B.-That involves two propositions, one is the taking of the water; the other, which is subsidiary, may be rejected as immaterial, unless the substitution of a land highway is prayed in aid. Compensation was claimed and given for taking away a public highway by water. MARTIN, B.-You do not traverse the allegation that the plaintiff was entitled to an interest in a causeway, &c., which was taken away from him.] Not being traversed that must be admitted. The declaration having alleged a certain right, namely, to the causeway, &c., that is a private right appurtenant to the premises, and a public proprietary right enjoyed by the owner of the premises. It is conceded that the plaintiff is entitled to compensation; but the plea goes on to state that a lump sum was given, including in it compensation for the substitution of a public land carriage highway for the former public water highway. [KELLY, C. B.You must look not to the averment in the plea, for that may aver anything, but to the terms of the award, which you have set forth and must abide by; you must show that, on the face of the award, compensation has been awarded for something which by law is not the subject of compensation. CHAN NELL, B.-To raise the point contended for, the plea should have said that the 83257. included compensation for the mere fact of the substitution, under the powers of the Act, of the land highway for the water highway, and with respect to which the said mansion house and premises were not "inju riously affected." That it does not do, and you now call on the court to say that by no possibility could such substitution be an injury.] Nor could it be, independently of any special private right alleged by the plaintiff as peculiar to and distinguishing him from one of the public. [KELLY, C. B.-You had better first satisfy the court that you are entitled to go behind the award to show that it is false in fact, and that the sum is awarded for something not upon the face of the award, and not legally the subject of compensation.] I am bound to admit I cannot challenge the award in point of form; but I contend I am entitled to go behind it, to show in respect of what the umpire did award compensation. [KELLY, C. B.-The award is not conclusive evidence as against the defendants that the plaintiff was possessed of the jetty, or of the landing-place, or that his premises were "injuriously affected." You might have traversed the "injuriously affecting," but not having done so you cannot go behind the award,

Ex.]

[Ex.

THE DUKE OF BUCCLEUGH AND QUEENSBERRY v. METROPOlitan Board of Works. and show it to be false in fact. CHANNELL, B.- | injury done to his premises under this general Were this the case of an ordinary reference by con- language, "also for his interest in certain other sent of parties, and a lump sum awarded, I appre- lands and hereditaments adjacent thereto, being hend you might by plea show that that sum included injuriously affected by the execution of the said something not within the order of reference.] This works." Now, when we come to look at the is a stronger case. The arbitrators here are on a pleadings, the defendants, after setting out the level with a sheriff's jury. And, although named award, allege that this injuriously affecting consists by each of the parties, they are, in fact, forced upon in the mere substitution of a highway by land for us by process of law. The defendants' proposition the waterway of the river Thames, which existed is that they have a right to show that the umpire before; and they contend that that cannot be an has included matters not subjects of compensation injuriously affecting within the meaning of the Act at all; and that, although the plea admits the of Parliament; that the taking away of an access, plaintiff's title to compensation in respect of some by means of a navigable river, to a gentleman's matters, yet if we can show that in the lump sum premises, whether land is substituted for the water damages are included for an item not the subject of or not, that the taking away of that access by water compensation, and so beyond the umpire's jurisdic- is not an "injuriously affecting" of the premises, tion, then the award is vitiated. Now, the substi- any more than would be the taking away of an tution of a land for a river boundary, without the access by land, and substituting for it an access allegation of an express public right to have one as by water, although it may be that the one is more against the other, is not, upon the authorities, the injurious than the other. In the case hypothetisubject of compensation. [CHANNELL, B.-Putting cally put by my brother Bramwell in the course of a land highway in lieu of a water way may be con- the argument, where a coal merchant had an sidered a great advantage, and substituting a water extensive wharf, on which he landed coals from way for a land highway may injuriously affect' barges which came by water, and there was the the premises; but you want us to infer that by no substitution of land for water, that would be infipossibility, as a matter of law, can this be an "inju-nitely more injurious to him than the substitution riously affecting" of the premises.] Apart from any special and private right or easement peculiar to the plaintiff over the rest of the public, it cannot be. The plaintiff's right (excluding the causeway, pier, and jetty) to avail himself of this public navigable highway, by landing goods at the jetty, was publici juris; a right not in him as owner of the premises, but a right which he enjoyed in common with other subjects of the realm. [MARTIN, B. referred to Iveson v. Moore, 1 Lord Raym. 486; Rose v. Miles, 4 M. & S. 101; Rose v. Groves, 5 Man. & Gr. 613; 12 L. J., N. S., 251, C. P.; and Winterbottom v. The Earl of Derby, in the Exchequer recently, 16 L. T. Rep. N. S. 771; L. Rep. 2 Ex. 284; 37 L. J. 194, Ex.] [Sects. 50 and 51 of the Thames Conservancy Act 1858 (30 & 31 Vict. c. 187) were also referred to by Mellish, Q.C.]

May 25.—KELLY, C.B.-In this case everything that could occur to the mind of counsel, however learned and experienced, has been urged in support of this plea. The case, shortly stated, taking the declaration and the award, which is set out in the third and the fourth pleas together is this: The plaintiff, the Duke of Buccleugh, is the proprietor, under a very long lease, of a mansion house and garden and back premises, which back premises abutted upon the river Thames, and the tide at high water formerly ran up to the wall and afforded a waterway, or access by water, to the whole line of the back premises of the plaintiff. The defendants, under the powers of their Act of Parliament, have taken away the whole of that access by water, and have converted the whole waterway of the river Thames, between high and low water mark, into an embankment, and a road has been, or is in course of being, made on that embankment. The consequence is that the plaintiff, as he shows by his declaration, has been deprived of the causeway or jetty to which he was entitled, and which ran from high water mark to low water mark, and at which he was able to land fruit, vegetables, ice, and other commodities, brought from his villa at Richmond, and at which he was able to land coals and so forth for the use of his household. That pier, jetty, or landing place has been annihilated. In consequence of this alteration he claims damages for the loss of that jetty. Now, besides that, it appears that, by annihilating the whole waterway and substituting dry land, the whole access by water to the premises of the plaintiff has disappeared; and he claims compensation, in his declaration, for the

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of water for land, where there was a highway by means of which he could have access to his premises. It requires only a statement of the case to show that the taking away of this access by water to the plaintiff's premises not only may be, but must be, and the umpire has correctly found it to be, an injurious affection of his premises, and attended with more or less substantial damage. Under those circumstances, that being all that appears on these pleadings, whether we consider the allegation in the declaration, which is for "injuriously affecting" the premises in the language of the Act of Parliament, or whether we look to the award as set forth in the third plea, whereby compensation is expressly given for the taking away of the jetty and the landing place, and next for the "injuriously affecting" of the premises; or whether we look to the language of the defendants' plea, where they say that the "injuriously affecting" is, in fact, neither more nor less than the substitution of a land highway for a water highway upon the whole of that line of the plaintiff's premises; in either case, I think both the claims are equally within the Act of Parliament. The award, which assesses compensation at the sum of 83251., is made strictly in pursuance of the submission and Act of Parliament. Under these circumstances, I am of opinion that the plaintiff is entitled to our judgment on this demurrer.

MARTIN, B.-I am also of opinion that this is a bad plea. There have been two objections taken to it, or rather there were two statements made in support of it. In the first place it is said that the defendants have a right to consider this plea as simply setting out the award, and nothing more. Mr. Hawkins argued on Saturday that, taking the award simpliciter, and nothing more, an allegation that such was the award, and taking it in connection with the averments in the declaration, that made the declaration bad. He was in error in supposing that it arises simply on the declaration, because, in raising that point, it was necessary for him to have recourse to his fourth plea, which is demurred to, and the award is not set out in that plea. As to that matter, the declaration alleges that the defendants entered upon "a certain causeway, pier, and jetty" of the plaintiff's, and did execute certain works. It then proceeds to aver that he was entitled to a certain interest in the said "causeway, pier, and jetty," and entitled to compensation for the same being so taken, and also for his interest in certain other lands and hereditaments adjacent

THE DUKE OF BUCCLEUGH AND QUEENSBERRY v. METROPOLITAN BOARD OF WORKS.