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proprietor of divers drains and sewers, but neither alleged that he was in occupation of the premises, nor showed the reason of his liability, the Court held the declaration bad on general demurrer. (Russell v. Shenton, 11 L.J. Q.B. n.s. 289; Alston v. Grant, 3 E. and Bl. 128; Cawkwell v. Russell, 26 L.J. Ex. 35.)
This idea has been in no way followed by local authorities, and although the law permits a local authority to serve the notice on either owner' or 'occupier,' the practice is mostly to serve a notice for either the repair of old, or the construction of new, drains on the owner.' New drains certainly are structures of the nature of permanent improvements, and, looked at in a common-sense way, drainage generally should be a matter for the
Another practical question arises as to the mean- What is the ing of the word 'site.' If by 'site' is meant the site'? ground on which the house stands, together with any ground enclosed by the fence wall of the house, the measurement would then be up to the nearest fence wall, and, in the case of houses surrounded by extensive grounds, much more than 100 feet would be compulsory.
This could scarcely be the intention of the Legislature, and the generally accepted definition is that 'site' means the ground on which the house actually stands, and does not include any surrounding land; hence the 100 feet will be measured from the sewer to the nearest wall of the house.
Size and materials of pipes.
Alterations in the course of sewers
The materials and size of the pipes are matters entirely to be regulated by the local authority. In the case in which a local authority ordered 'stone-ware pipes of the best quality,' and, contrary to the notice, Aylesford pipes were laid down, the local authority proceeded to remove them, on the ground that they were not stone-ware pipes. Stuart, V.C., held that it was for the local authority to determine the question, and refused an injunction. The decision was confirmed on appeal. (Austen v. The Vestry of Lambeth, 4 Jur. n.s. 274.)
Hence the local authority has power to order iron, or stone-ware, or any other kind of pipe; they have also power to regulate the size, the fall, and the level; in short, according to the section, there are four matters with regard to drains under the control of the local authority, viz., materials, size, fall, level.
It frequently happens that alterations in the course of sewers are necessary; a sewer in a growing district may not be adapted to the general system, and the authority may desire to do away with it, and to cause the drains of the houses draining into the particular sewer to drain into some other sewer. If the house drains draining into the sewer are defective, I think there is little doubt but that the local authority may compel the owner at his own expense to drain into the new sewer at his own expense, and to cut off his drainage from the sewer which it is proposed to abolish; but, if the
drain in question is sufficient for the effectual drainage of the house, the whole expense of the diversion falls on the local authority, and they may do the work. Section 24, P.H., 1875.
must be pro
Section 25 of the same Act makes it illegal to New houses erect any house in an Urban District, or to rebuild perly drained. a house which has been pulled to or below the ground-floor, without having a drain to the satisfaction of the surveyor communicating with the sewer, if within the statutory distance (100 feet), or, if there is no sewer, then into a covered cesspool 'or other place, not being under a house,' as the urban authority direct, penalty for default being £50, or less. It is also declared to be unlawful to occupy a house erected or rebuilt without a drain, but the Section provides no penalty for such occupation.
A duty, as before stated, is laid on the authority by Section 40, to see that all drains within their district are in such a state as not to be a nuisance, but, unlike the powers possessed by Metropolitan Authorities, they have no right to uncover and examine a drain unless there is a written complaint. Section 41 enacting
'On the written application of any person to a local authority, Power to stating that any drain, water-closet, earth-closet, privy, ash-pit, or cesspool on or belonging to any premises within their district, is a nuisance, or injurious to health (but not otherwise), the local authority may by writing empower their surveyor or inspector of nuisances, after twenty-four hours' written notice to the occupier of such premises, or, in case of emergency without notice, to enter such premises with or without assistants, and
Connection between sewer and house
cause the ground to be opened, and examine such drain, watercloset, earth-closet, privy, ash-pit, or cesspool. If the drain, water-closet, earth-closet, privy, ash-pit, or cesspool, on examination is found to be in a proper condition, he shall cause the ground to be closed, and any damage done to be made good as soon as can be, and the expenses of the work shall be defrayed by the local authority. If the drain, water-closet, earth-closet, privy, ash-pit, or cesspool, on examination appear to be in bad condition, or to require alteration or amendment, the local authority shall forthwith cause notice in writing to be given to the owner or occupier of the premises, requiring him forthwith, or within a reasonable time therein specified, to do the necessary works; and, if such notice is not complied with, the person to whom it is given shall be liable to a penalty not exceeding ten shillings for every day during which he continues to make default; and the local authority may, if they think fit, execute such works, and may recover, in a summary manner from the owner, the expenses incurred by them in so doing, or may by order declare the same to be private improvement expenses.'
The communication of the drain with the sewer is most properly done by the local authority, and, in the majority of urban districts, this is the custom. Local authorities may also adopt the 18th Section of the Public Health Acts Amendment Act, 1890, which expressly sanctions the authority making the connection. It is also enacted (ibid. subs. 3), 'that a local authority may agree with the owner of any premises that any sewer or drain which such owner is required or desires to make, alter, or enlarge, or any part of such sewer or drain, shall be made, altered, or enlarged by the local authority.'
There are, of course, advantages to the individual if the local authority care to adopt the course of making private drains, for the drainage will be then
constructed at the cost price of materials and of labour, but any extensive use of such powers would interfere with legitimate enterprise, and such occupations as that of the sanitary engineer and expert, besides which, if once the local authorities begin to do what has always been considered private work, it is difficult to say where the system is to end.