8 Sim. 272). Whether the damage is great or small, Daniell v. North, 11 East. 372-5; Moore v. Rawson, 3 B. & C. 339; Wedmore v. The Corporation of Bristol, 7 L. T. Rep. V.C. M.] Cook v. THE MAYOR, Aldermen, and Burgesses of the CITY, &C., OF BATH. [V.C. M. being along the lane. That the defendants had | & Div. App. Cas. 47, settles that (Sampson v. Smith, recently purchased No. 16, which they were pulling down, and intended to erect upon part of the site, a building intended for baths, which, if completed, according to the plan, which the defendants intended to act upon, would obstruct and render the lane impassable, and wholly and permanently destroy the communication between the plaintiff's back door and Stall-street. He also alleged that in March 1867, he heard of the contemplated erection and applied to the architects, and was informed that the plans were not completed; but they admitted the intended obstruction. The plaintiff thereupon gave notice to the architects of his objection to what was proposed, and that unless the plans were altered he should be compelled to take steps to prevent the obstruction. In Nov. 1867, the plaintiff perceiving placards in the windows of No. 16 as to the removal of the tenant, wrote to the corporation by their town clerk, protesting against their intention to close the lane to Stall-street or interfering with such lane, and to their pulling down Nos. 15 and 16 or altering their fronts in Bath-street, stating that he so protested in the hope that the plans might be altered, but that otherwise he would be under the disagreeable necessity of applying to the Court of Chancery to restrain their proceedings. To this letter the town clerk replied, that he had laid the matter before the Borough Property Committee, and he appointed an interview, which took place without any satisfactory result; the defendants declining to recognise the plaintiff's right both then and in a correspondence which subsequently took place. On the 19th Dec., the plaintiff, having ascertained that the defendants still intended pulling down No. 16, on the 20th served a notice on the town clerk objecting to the obstruction of the lane and the diminution of the light at present passing through his back windows, and stating that a bill would be filed. This was not replied to, and accordingly this bill was filed, alleging the plaintiff's title to free access along the lane, which was a great advantage to him and to his property, and that if it was stopped up he would be obliged to take a more circuitous route. That the present means of communication very materially increased the value of his house; that the lane was a public highway, and any obstruction of it would be injurious to the public, but the closing of it would be an injury to the plaintiff of a private and particular nature, and an irreparable damage, and the value of the property would be materially diminished, and that the defendants had no justification for their conduct. The bill then prayed for the injunction to restrain the building so as to obstruct, &c., and also for a mandatory injunction. Evidence was gone into to show that forty years ago the back door was built up and reopened in 1863, and that for a similar period high gates and doors were placed at either end and sometimes closed, but that the key was always accessible. Glasse, Q.C. and Charles Hall appeared in support of the motion.-There is no doubt that this was a public way, and the disuser is no destruction of the easement; it must be non-user with a manifest intention never to resume. There must be a case of actual abandonment. There is no evidence of any acts by the freeholder, they are all by the tenants. No doubt the door was shut up; but it being a question of public right, and having been opened four years ago and constantly used, that is sufficient to entitle us to open the door. If it is a public highway the plaintiff is one of the public, and has a right to use it; and, moreover, as one of the public, has a remedy for a special injury to himself. The Attorney-General might also file an information: Bickett v. Morris, L. Rep. 1 Scotch Morgan, 263, note to sect. 2; Lyon v. Dillimore, 14 L. T. Rep. N. S. 183; Freeman v. The Tottenham Railway Company, 13 W. R. Ward v. Ward, 7 Ex. 838. Cole, Q. C. and Ince for the defendants.-There must be a manifest intention to abandon; and what can be a more complete abandonment than building up with brick and allowing it so to remain for forty years? (Crossley v. Lightowler, 2 Ch. App. 478.) Moreover, the way has been actually shut up, and it was always necessary to obtain the key to get through, and that is a perfect destruction of the public nature of the way, and destroys the right to the easement: Attorney General v. The Conservators of the Thames, The Vestry of Bermondsey v. Brown, 35 Beav. 226; To show a right of way it must be on behalf of the Davis v. Williams, 20 L. J., N. S., 330, Q. B. The VICE-CHANCELLOR.-I am sorry that the good sense of the parties has not enabled them to settle this dispute, involving an amount utterly incommensurate with the length of the argument necessary in order to enable me to arrive at a conclusion, and to consider points of law by no means free from difficulty. The plaintiff was seised in fee of the house in question, the front abutting upon Bath-street, the back upon White Hart-lane, adjoining the well-known hotel. It is clear upon the evidence that for a century and a quarter, if not more, there has been an open space freely accessible by the public to pass through without obstruction, at all events until the erection of the gates forty years ago, and I must treat this lane as at that time a public way like any other in the city of Bath. Whilst it was so, the commissioners for the improvement of Bath, whose property (it is immaterial how) has become vested in the corporation, conveyed to the predecessors of the plaintiff the site of this house in 1793 (subject to a rentcharge of 20l. 16s. 6d.) in fee, and it was described as bounded on the south by Bath-street and on the north by White Hart-lane; that is seventy-four years ago. I am satisfied, on the evidence of old witnesses, V.C. M.] Cook v. THE MAYOR, Aldermen, and Burgesses of the CITY, &C., OF BATH. [V.C. M. many of whom speak of matters more than half a question of fact to be ascertained, sometimes by a century since, that this was just as much a public jury, and sometimes by this court, from certain way as Bath-street or Stall-street into which it led. circumstances, whether the act was itself an abanIt was dark, disagreeable, and no doubt dirty, and donment or intended to be so. If in this case the only used for the sake of a short cut; but it was defendants had commenced building before this undoubtedly a public way. The plaintiff's house door had been reopened, I should have been of does not appear to have been erected more than opinion that the plaintiff had, by allowing it so to seventy years ago, but beyond all doubt it had remain closed, shown that he intended to abandon a back door opening into this lane as well as a front his right, and that in that event he could not have door into Bath-street, and for many years after its sustained his bill. Now this distinctly appears by erection there was free access from both; and this is the case of Moore v. Ransom (supra), an analogous not denied by the defendant. It is also proved to case, and a very valuable authority, where the my satisfaction, and not denied, that about forty plaintiff having ancient windows pulled down the years ago this back door was closed by a former wall in which they were, and erected a blank wall, and occupier, although it does not distinctly appear allowed it so to remain for seventeen years, during whether that was with the consent of the freeholder; which period the defendants erected buildings which but as no objection appears to have been made I must they could not have done if the windows had reassume it to be the act of the tenant and also of the mained, and incurred expenses. Lord Tenterden, freeholder. The evidence is contradictory, but I in the Court of Queen's Bench, held that the consider it as proved that it was closed by a pawn- plaintiff could not maintain an action, and directed broker, his pledges being safer, as he considered, a nonsuit. But it is clear that if there had been without a back door. Accordingly, from about no building erected before the expiration of the forty years ago till 1864, the house was without a seventeen years, the plaintiff might have resumed back door, but it is distinctly proved that in the his windows and gained a new right of action. spring of 1864 the present occupier restored it as This also appears in Stokoe v. Singers (supra), much as possible to its former condition, and where Sir William (then Justice) Erle held, reopened the back door into White Hart-lane; that that if the defendant had incurred expense on is three years and a half before the bill was filed. the faith of windows being closed, the plaintiff When the dispute commenced he was in possession could not recover; that is a case of great of the house, having a free access into Bath-street importance. In Ward v. Ward (supra) Alderson and White Hart-lane. Another very material thing and Pollock, BB. held mere nonuser of a way no relied upon by the defendant is this: There is no abandonment by the party in the absence of the dispute that at least forty years ago this lane, never acquisition of rights by other parties in consequence, having been properly lighted or cleansed and being but only an inference that he had no occasion to use dark and the resort of disorderly persons, became ait. Mr. Cole referred to Crossley v. Lightowler (supra) nuisance, and the occupier of the hotel, as I collect, as to fouling a stream, the material circumstance with the concurrence of all the occupiers of the there being that within twenty-five years Crossley houses abutting upon it, for the purpose of abating had altered his position and erected large works in the common nuisance, erected, at the east end such a manner as to show an abandonment; but leading into Stall-street, very substantial doors Wood, V. C. held that there had been none, because or gates nine feet high. Some of the witnesses rights had not been acquired by other parties meansay these were sometimes closed in the daytime, time. That is my view of this case. Inasmuch as and constantly at night, the evidence is not this house, if originally erected (as I think it was) conclusive. We find, however, that if the closing was with a back door leading into the lane, conferred on remonstrated against they were immediately opened, the owner as much right to use such back door as and the freest access given. Now, one question is, he had to use the front door; while he had that did the erection of these gates alter the position of right no one could say "you shall only have one affairs? I am of opinion that, inasmuch as the door;" he could use either. It is clear that if this arrangement was satisfactory to all the inhabitants door had been open the whole time, but during that of the houses, it cannot be considered as the renun- whole time there had been nothing more than the ciation of any right, but as an arrangement for the right and no exercise of it, there was a continuing common advantage; and the plaintiff must be con- right in the plaintiff to re-open it, unless in the insidered as having the same rights as if the gates terval some other parties had acquired rights so that had never been erected. But even if that is not so, it would be a prejudice to them. And, on this printhe gates only being closed at night, if the ease- ciple, if the door had been closed to the last, the used only during the day, there plaintiff would have failed in this motion. But the would be no difficulty in law; for if the right defendants rely on his abandonment of the right, was exercised only during one part of a year when four years, or at least three years, before their or of a day-if a deed could be produced by which attempt to exercise any adverse rights, he actually the owners of the soil had contracted to open it reopened it; and, as far as I can tell on the dealings at all times from sunrise to sunset-that would have which took place, they knew perfectly well that this been conclusive. But, although there may be a door was used in the same manner as the doors of doubt as to any contract, if there be usage for more the other houses. This gentleman, therefore, who than twenty years the court presumes a grant as thought fit thus to re-open this door four years distinctly as if the right were proved to exist by before any adverse act, and who objected to such deed. I think, therefore, that the defence of the act, thereby showed his intention not to abandon corporation as to the erection of these gates, fails his right; and his contention that he had never fully as any defence of their acts in closing the access abandoned it whilst no other parties had acquired from Stall-street. Another very material point is adverse rights, must succeed; and he has preserved this:-The plaintiff (that is one of his predecessors) his right on the authority of Stokoe v. Singers and having closed this back door, and allowed it to the other cases. On these grounds I am of opinion remain so closed for at least thirty years, and only that there was no abandonment; it was a mere reopened it some four years since, must he be con- suspension of the right, and the plaintiff had a sidered to have abandoned his right? The law on right to re-open the door as he did in 1864, and as this point is not entirely free from difficulty; owner of the house, to have as theretofore two but, as I understand the principle upon which I entrances. The defendants suggest that, finding mean to act, it is this:-A right of way or a right this lane liable to be closed by gates at both ends, to light may be abandoned, and it is always a there was on the authorities the right to close it at ment were V.C. M.] EARL OF DERBY v. THE BURY IMPROVEMENT COMMISSIONERS. each end. But they found the plaintiff in possession; and the defendants having no legal power to interfere with a public way, and clearly none as to a private one, the plaintiff having a right to come into the lane, and finding also this house with the door in use, what possible right had the corporation to say, "We will close up the access, and he shall go the other way?" In this instance, on the question of the right of stopping up ways, this may be a small matter, and I am sorry that the good sense of the parties did not lead them to settle it by compensation; but I do not find that any was offered. The defendants say he only gave 1007. for it; that may be, but it turns out that 1207. more was laid out upon it by the tenant. At all events, he was owner in fee, and had a right to exercise the beneficial rights of an owner; and whether they be small or great no one has a right to stop up a path, and if he does it is at his own peril. If he finds a free access (there being one here as much as in any street in Bath), he must find some competent authority before he interferes with it, and cannot come to the Court of Chancery and set up a case depending on the value of the subject-matter. I was astonished at an attempt at first made to dispute the plaintiff's title. He was in possession in 1856, and being a solicitor was well known to the town clerk; but, notwithstanding that, the defendants thought fit to question his title. He having been in possession for ten years, paying ground-rent to this very corporation, they first deny his title, and then tyrannically take the matter into their own hands. But even assuming they were right, before taking such an unwarrantable step as stopping up his way they should have offered him compensation, and it seems that he made such a proposal. With respect to the remedy, the case of Spencer v. The London and Birmingham Railway Company (supra) is conclusive. There the plaintiff was owner of a livery-stable in the Hampstead-road, and Sir Lancelot Shadwell and Lord Cottenham, on appeal, laid down the rule that where there was a public nuisance, and at the same time a private injury, a bill would lie, and granted an injunction, although the case resulted in an arrangement. Here what has been done is unjustifiable, and whether it is a public or private way is immaterial. If it is a public matter, so that it is a nuisance, and the AttorneyGeneral could have instituted a suit, it is also one which materially affects the plaintiff as an individual, and he is therefore entitled to maintain his bill. With respect to the individual injury, Mr. Cole contended that that was wholly displaced by the second paragraph of the bill; but, so far from it, the plaintiff claims the right to go into the lane and along it into Stall-street; and as he has reopened the door, no adverse right having been meantime acquired, his right of reopening continued during every day of the last twenty years. The numerous authorities which have been cited all go on the general principle, and upon that the plaintiff is entitled to this back door, and by means of it to go into the back lane for any purpose, either right or left. He is also entitled (which may be important to him) to take a cart from one end to the other. I agree with Mr. Cole as to the narrowness of the question, and insignificance of the injury, and that the court need not have been troubled with it; but it involved matters of public consideration, although the contention has arisen from irritation on both sides, inducing the parties to stand upon their rights, whether as a public or a private question. The plaintiff is entitled to the injunction, at the same time it is entirely a case for compensation; although I agree with Mr. Glasse that under Lord Cairns' Act the court could not entertain the question of damages upon an interlocutory application. [Ex. Glasse, Q. C. said that they did not ask for the mandatory injunction. Solicitors for the plaintiff, Thomas White and Sons. Solicitors for the defendants, Clarke, Woodcock, and Ryland. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law. Jan. 20 and 22, and Feb. 28, 1868. EARL OF DERBY V. THE BURY IMPROVEMENT Nuisances Removal Act 1855 (18 & 19 Vict. c. 121), Held, per Kelly, C. B., and Channell, B. (dissentiente, Held, also, that although the plaintiff's close adjoined a highway, the defendants were not justified in constructing the sewer under the 67th and 68th sections of the 5&6 Will. 4, c. 50. The Bury Improvement Act, ss. 102 and 110, gives the commissioners a general power to make whatever sewers or drains they may think necessary, and if necessary to carry their sewers into or through any enclosed lands or other places not being a public way within the limits of the Act, but the exercise of this power is conditional upon the giving of a certain notice. No such notice had in this case been given, but, per Martin, B., the powers contained in the Nuisances Removal Act 1855, are not to be in any way affected by any provisions or restrictions contained in previously existing local Acts with reference to similar powers. In this action the plaintiff declared that the defendants injured his reversion in certain land in possession of the tenants of the plaintiff by cutting a trench, and constructing and keeping constructed a sewer therein. Ex.] EARL OF DERBY v. THE BURY IMPROVEMENT COMMISSIONERS. [Ex. The defendants pleaded: 1. Not guilty, by | trench and sewer. The questions for the court stat. 18 & 19 Vict. c. 121, s. 42; 11 & 12 Vict. c. 63, s. 139; 2. The plaintiff's leave; 3. A justification by the defendants under the powers conferred upon them by the Bury Improvement Act 1846 (9 & 10 Vict. c. ccxciii.), and particularly sect. 102 (hereinafter called the Special Act). The plaintiff replied: 1. Taking issue, 2, to the third plea, that the defendants made the sewer where no common sewer previously existed, and averring want of the notice specifying the work, &c., required by the 110th section of the Special Act. Joinder of issue and demurrer to the second replication. The case came on to be tried before Mellor, J., at the Manchester Spring Assizes 1867, when a verdict was entered by consent for the plaintiff, subject to the opinion of the court upon a special case. The facts of the special case, so far as material were as follows: The plaintiff was, at the time of the injuries complained of, entitled to the reversion of and in the land through and in which the trench and sewer in the declaration mentioned were cut and constructed. The defendants were the Bury Improvement Commissioners, and also the surveyors of highways within the limits of the Special Act under the 82nd section thereof. The said land was part of a farm called "Hartly Fold," and was then held by certain persons as tenants for lives, but was in the occupation of William Chadwick as underlessee, under a lease for fourteen years, from the year 1858. It appeared that prior to the construction of the trench and sewer in the declaration mentioned at the junction of two highways, called the Bury and Rochdale turnpike road and the Chesham Foldroad, three sewers met and discharged their contents into a brook or watercourse called the Hartly Brook. Complaints were made to defendants of the state of the brook, and in consequence of such complaints, and of the brook or watercourse being in point of fact a nuisance within the meaning of the Nuisances Removal Act 1855 (18 & 19 Vict. c. 121), the defendants cut and constructed the trench and sewer complained of, being a new trench and sewer averaging about ten feet deep, with an eighteen inch tile drain, where no common sewer before existed, through the land of the plaintiff, the same being enclosed land, and not a public way, and being within the limits of the Special Act. This new sewer was connected with the sewers before mentioned, and by means thereof the defendants intercepted and diverted away from the said Hartly Brook the whole of the sewage and drainage of the said several sewers respectively, and conveyed the same into and through the plaintiff's said lands. The new sewer did not follow the course of the brook, but diverged across the plaintiff's land until it reached a lane called Back-lane, down which it was continued, and was ultimately connected with a system of drainage and sewerage made by the defendants, communicating with the river Roche. The nuisance could not have been removed without constructing a new sewer, and the course pursued by the defendants was the most inexpensive and convenient for that purpose. No notice was given by the defendants under the 110th section of the Special Act before commencing the said trench and sewer through and on the plaintiff's land. Such trench and sewer were made with the consent of Chadwick the tenant in occupation, but not with the consent of the tenant for life or plaintiff. It was found that the defendants had injured the plaintiff's reversion by constructing the were, first, whether the defendants were justified under the Acts mentioned in the pleadings or any of them in constructing the said trench and sewer as in the declaration complained of; secondly, whether the defendants ought to have given notice under the 110th section of the Special Act before commencing the works. The Nuisances Removal Act 18 & 19 Vict, c. 121, ss. 21, 22, enacts as follows: : 21. All surveyors and district surveyors may make, scour, cleanse, and keep open all ditches, drains, gutters, or watercourses in and through any lands or grounds adjoining or lying near to any highway, upon paying the occupier of such lands or grounds, provided they are not waste or common, for the damages which he shall thereby sustain, to be settled and paid in such manner as the damages for getting materials in inclosed lands or grounds are directed to be settled and paid by the law in force for the time being with regard to high ways. 22. Whenever any ditch, gutter, drain, or watercourse, used or partly used for the conveyance of any water, filth, sewage, or other matter from any house, buildings, or premises, is a nuisance 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, such local authority shall, and they are hereby required to, lay down such sewer or other structure, and to keep the same in good and serviceable repair, and they are hereby declared to have the same powers as to entering land for the purposes thereof, and to be entitled to recover the same penalties in case of interference there with as are contained in the 67th and 68th sections of the Act passed in the 5th and 6th years of the reign of King William the Fourth, intituled, "An Act for Consolidating and such local authority are hereby authorised and empowered to Amending the Laws relating to Highways in England." And assess every house, building, or premises then or at any time thereafter using for the purposes aforesaid 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, and after fourteen days' notice at the least, left on the premises, so assessed, to levy and collect the sum or sums so assessed in the same manner and with the same remedies in case of default in payment thereof, as highway rates are by the law in force for the time being leviable and collectable, and the same right and power of appeal against the amount of such assesslaw for the time being in force shall be given. against any ment reserved to the person or persons so assessed, as by the rate made for the repair of the highway, and the provisions contained in the section shall be deemed to be part of the law relating to highways in England, &c. The 67th and 68th sections of the Highway Act (5 & 6 Will. 4, c. 50) enact as follows: 67. That the said surveyor, district surveyor, or assistant surveyor shall have power to make, scour, cleanse, and keep open all ditches, gutters, drains, or watercourses, and also to make and lay such trunks, tunnels, plats, or bridges as he shall deem necessary in or 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 sustain thereby, to be settled and paid in such manner as the damages for getting materials in inclosed lands are hereby directed to be settled and paid. 63. That if any owner, occupier, or other person shall alter, obstruct, or in any manner interfere with any such ditches, &c., after they shall have been made or taken under the charge of such surveyor, or district surveyor, and without his authority and consent, such owner, occupier, or other person shall be liable to reimburse all charges and expenses which may be occasioned by reinstating and making good the work so altered, obstructed, or interfered with, and shall also forfeit any sum not exceeding three times the amount of such charges and expenses. Ex.] EARL OF DERBY V. THE BURY IMPROVEMENT COMMISSIONERS. [Ex. cause to be made such sewers and drains as they | in the same course that existed before, or even if it shall think necessary for the effectual draining the limits of the Act, and in case it shall be found necessary for completing any of the aforesaid works to build, carry, or continue the same into and through any inclosed lands or other place, not being a public way, it shall be lawful for them to build, carry, and continue the same into or through the said lands or other place accordingly, making full compensation to the owners and occupiers thereof. The 104th section gives them power to alter, arch over, amend, clear, and scour out all or any of the sewers within the limits of the Act, and also to cleanse, drain off into any sewers, or otherwise abate, all stagnant ponds, ditches, and other receptacles of foul water and filth existing within the limits of the Act, and for these purposes to exercise the same powers as are vested in them with respect to making new sewers. The 110th section provides that Before commencing to level, make, pave, or flag any street under the provisions hereinbefore contained, which has not become a highway, and before making any sewer, under this Act where no common sewer previously existed, and before commencing to widen, deepen, embank, alter, arch over, or amend any sewer at present existing, and before abandoning any old sewer, the commissioners shall give notice Of their intention to level, make, pave, or flag any such street, or to make such new sewer, or to alter or amend such existing sewer, or to abandon such old sewer, as the case may be, by affixing, twenty-eight days at least before the commencment of such or any such work, to or near the principal door of the parish church of Bury, a printed or written notice specifying the works intended to be undertaken and the name or names of the places through or near which it is intended the said new sewer shall pass, or the existing sewer be altered or amended, or the old sewer stopped up, and also the places of the beginning and end thereof, and shall refer to a plan of such intended work which shall, &c; and such notice shall also set forth the time and place appointed for holding a meeting of the commissioners to consider any objections made against such intended works, and all persons who shall deem themselves interested therein, or likely to be aggrieved thereby, shall be entitled to be heard before the commissioners at such meeting, and thereupon the commissioners may abandon or make such alterations in the said intended works as they shall judge fit. Sect. 111 provides that persons aggrieved may appeal to the quarter sessions. By the 125th and 128th sections it is enacted that: 125. The commissioners shall, for the purposes of this Act have full power to enter into and upon any land or tenement within the limits of this Act without being liable to any action at law or suit in equity, or any other legal proceedings or molestation whatsoever, for or on account of such entry, or the works done or to be done in any part thereof in pursuance of this Act. 128. If by reason of the alteration of the level of any street, the making or altering of any sewer, or in otherwise carrying into execution the powers or authorities of this Act, any house, building, or other hereditament within the limits of this Act, shall be damaged or otherwise prejudicially affected, then and in every such case the commissioners shall make good such damage, and pay to the owner and occupier of such house, building, or other hereditament, such amount of compensation as shall be agreed on between such owner and Occupier and the commissioners; and if such owner and occupier and the commissioners cannot agree as to the amount of such compensation, and the proportion thereof to be paid to such owner and occupier respectively, then the amount of such compensation, and also the proportions which the persous claiming the same are entitled to, shall be settled and recovered before two justices in the manner hereinafter rovided. Temple, Q.C.(with him Jones, Q. C. and .J. A. Russell). | -The first question is, whether the defendants had power to do what they have done under the Nuisances Removal Act, sects. 21 and 22. There is nothing in those sections which gives them a right to divert a ditch or watercourse, and bring it upon land at a distance belonging to another person. The power given is for the purpose only of abating a Luisance, and, if it cannot be otherwise rendered innocuous, to "lay down a sewer or some other structure along the same, or part thereof, or instead thereof." It is a mere power of reconstruction, keeping to the same line. "Instead thereof " means must receive a wider meaning it can only entitle the local authority to bring the sewer upon land adjoining, and by the side of the highway, not upon any part of a private owner's land. A power of such magnitude as that would not be given in such doubtful words; a sewer like this would interfere with the use of the land for agricultural and building purposes. This is a mere power to cover over and improve open ditches. There is no provision for giving the owner adequate compensation. The only compensation given is that given by the Highway Act (5 & 6 Will. 4, c. 50), s. 67. That merely relates to temporary and surface damage. With respect to the Local Improvement Act, the 80th and 81st sections show that it never can have been intended to give this power, for they expressly provide that the powers of the Lands Clauses Consolidation Act as to taking land shall not be exercised without consent. By the 110th section notice is a condition precedent to carrying works under inclosed lands. Manisty, Q. C. (with him Holker).—It cannot have been intended that the consent of the owner should be necessary to the exercise of these powers by the local authority, for it would make all improvement of large towns almost impossible. The policy of the Legislature in such cases is that the private rights of individuals must give way for the benefit of the community at large, and that the individual shall receive compensation for any loss he may sustain. Looking to the intention of the Legislature unequivocally manifested in the enactments by which session after session increased powers are given to local authorities, the court will not put a narrow construction upon the words of the Acts now in question. The 21st and 22nd sections of the Nuisances Removal Act must clearly be taken together. The 21st section gives power to make drains and watercourses where none existed before, in lands adjoining the highway, upon paying the owner for damage sustained. Can anything be a narrower construction of the Act than to say that "adjoining the highway must mean "in the margin of the field running alongside of the highway?" Cases may occur in which no outlet could be procured for the sewage, and no means of abating a nuisance except by going on land of a private individual for a short distance away from the line of the highway. The 81st section of the local Act refers only to taking land, not to this case. It must, however, be admitted that notice was necessary under the local Act, but the defendants do not justify only under that Act. The powers given by that Act are superseded by the more general powers given by the Nuisances Removal Act. The 22nd section of that Act incorporates the provisions of the 67th section of the Highway Act by which the owner is to be compensated. He cited Reg. v. Bodkin, 6 Jur. N. S. 1370; 30 L. J. 38, Rex v. Gee, 5 Jur. N. S. 1348. Temple, Q. C. in reply.-The sewers are, by the Fitzgerald v. Champneys, 30 L. J. 779, Ch. ; 5 L. T. Feb. 28.-MARTIN, B. now read the judgments of KELLY, C. B. and CHANNELL, B.-The defendants in this case, who are at once commissioners for the improvement of the town of Bury, surveyors of the highways, and the local authority under the Nuisances Removal Act, are sued by the plain |