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THE distinction between drains and sewers has already been explained.
Existing and future sewers are vested in, under the control of, the local authority, with exceptions, viz.—
and sewers are
(1) Sewers made by any person for his own profit, or by any company for the profit of the shareholders, e.g., a sewer made by a landowner for the benefit of his estate, and not yet dedicated to the public.
(2) Sewers made for the purpose of draining, preserving, or improving land, under any local or private Act of Parliament, or for the purpose of irrigating land.
(3) Sewers under the authority of any commissioners of sewers appointed by the Crown (P.H., 1875, sect. 13).
This vesting of sewers does not confer any rights of absolute ownership, but only a modified and limited right; e.g., the local authority cannot, without reason, stop up a sewer. The vesting gives them an interest in land within the meaning of Section 68 of the Lands Clauses Act, 1845 (per Lord Esher, M.R., Mayor of Birkenhead v. London
and North-Western Railway Company, 15 Q.B.D., 578; 55 L.J. Q.B. 48).
Under the old Acts the local authority was supposed to have only an easement in the subsoil, and
this was found inconvenient, hence the above enactNature of the ment. The ownership is not only the barrel of the
Powers of laying sewers.
sewer, but the whole space enclosed by the barrel (per Jessel, M.R., in Taylor v. the Incorporation of Oldham, 4 Ch. D.).
Local authorities may also purchase sewers or otherwise acquire them, e.g., by gift, existing rights being respected (P.H., 1875, sect. 14).
Local authorities have extensive powers with regard to laying sewers, for they may carry any sewer through, across, or under any turnpike road or any street, or under any cellar or vault which may be under the pavement or carriage-way of the street, and, after reasonable notice to owner or occupier, 'into, through, or under any lands whatsoever.' For the purpose of distribution of the sewage, or for providing an outfall, they may also carry them outside their own district, and have the same power of entry on lands for the same purpose (P.H., sect. 16). It might be convenient occasionally for a sewer to go through a vault or cellar, but the Act distinctly says under and not through; hence, if this should be desired, it must be done by arrangement.
The Court of Exchequer Chamber laid it down in the case of The Earl of Derby v. The Bury Commissioners, 20 L.T. (n.s.) 927, that the necessity for
making a new sewer being ascertained as a matter of fact, it was for the local authority to exercise their judgment in what direction that new sewer should be made through the adjoining lands; and so long as they exercise an honest discretion without misconduct or negligence, they are not liable to have their judgment overruled in a court of law.
Powers of entry for the purpose of making plans Powers of and ascertaining the course of sewers and drains are given by Section 305 (P.H., 1875) as follows:
'Whenever it becomes necessary for a local authority, or any of their officers, to enter, examine, or lay open any lands or premises for the purpose of making plans, surveying, measuring, taking levels, making, keeping 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 authorising 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.'
Limitation of power of entry.
Duties of Sanitary Authorities.
The power given is strictly limited to the subjects definitely mentioned; that is to say, the purposes of preliminary examination in contradistinction to actually making the sewer. Should an authority propose to make a sewer, and the owner or occupier refuse to allow entry upon his private ground, the above section does not give power to apply to a Magistrate for an order. The remedy in such a case appears to be to take the case to a Superior Court. (Lamacraft v. St. Thomas, R.S.A., 42 L.T. (n.s.) 365, 44 J.P. 441 ; and also Wheatcroft v. Match Matlock Local Board, 52 L.T. (n.s.) 356.)
There are four definite duties laid upon Sanitary Authorities with regard to sewers, and a non-performance of these duties is a default under Section 299. These duties are
(1) To keep all sewers belonging to them in repair (P.H., 1875, sect. 15).
(2) To provide such sewers as may be necessary (ibid.).
(3) To so construct, repair, cover, and ventilate their sewers so as not to be a nuisance or injurious to health (ibid. sect. 19).
(4) To properly cleanse and empty their sewers (ibid.).
A system of sewers or sewage disposal which sewage cannot either actually creates a nuisance, or will probably
be abated summarily.
do so, is usually dealt with by the aggrieved person applying for an injunction, and the principles which guide the Court in such cases have been well ex
pressed by Malins, V.C., in Lillywhite v. Trimmer (36 L.J. Ch. 525; 16 L.T. n.s. 318).
In that case it was laid down as a settled rule of law that where a work, though of great public importance, can only be effected by interfering with private rights, the private rights must prevail, and the public work must be carried out as best it can without such interference; but where a great public object is to be attained, such as the drainage of a town, the Court should not unnecessarily put any difficulty in the way of carrying it into effect. He held further that, in considering questions of nuisance, the Court must have regard to the extent of the nuisance and to the balance of convenience, and if the extent of the inconvenience sustained is trifling, and such as may be readily compensated by money, the right of parties creating the nuisance must not be interfered with when the object they seek to obtain is of considerable importance, and that the Court should not interfere by injunction to prevent a nuisance in cases in which the injury was temporary and trifling, though it ought to do so in cases when it was permanent and
A sewer once made, the owner or occupier has a Right to drain right, if he live within the district, to drain into it (P.H., sect. 21). If he live in another district, and he should wish to drain into a sewer belonging to another district, then he may do so by agreement with the authority (ibid. sect. 22). He has to give proper notice of his intention, and in each case to