Catoh against The Board of works for the Lewisham Distriot

[115] [catou against the board of works for the lewisham Distmcrr. [Monday, November 28th], 1864.-Metropolis Local Management Act, 18 & 19 Viet e. 120. District Board. Pollution of water in land of another person. Action. Compensation.-1. A District Board of Works, constituted under The Metropolis Local Management Act, 18 & 19 Viet. c. 120, are not empowered by that Act to pollute water flowing through the land of another person, and are therefore liable to ati action at the suit of the owner of the land through which it! flows, who is consequently not bound to proceed for redress by seeking compensation under that statute. Per the Exchequer Chamber, consisting of Erie C.J. Byles and Keating JJ., and Channell and Bramwell BB.; diss. Pollock C.B. and Piggott B.-2. It makes no difference in this respect that the works executed by the District Board were necessary for the abatement of a nuisance, even in the land of the party injured. Id.-3. Nor that the water thus polluted lay outside the district over which the authority of the District Board extended. Id,; reversing the decision of the Queen's Bench, consisting of Cockburn C.J. and Blackburn J.-4. Qusere, whether the Metropolitan Board of Works are so empowered by the Act 1 [8. C. 34 L. J. Q. B. 74; 13 L. T. 212; 11 Jur. N. S. 340; 13 W, R. 254.] This action, commenced on the 3rd June, 1862, was for permanently fouling and polluting a certain stream and a certain watercourse, in the county of Kent, called The Poole River and The County Bridge Stream respectively, flowing through certain land the reversion of which was in the plaintiff, to his injury as such reversioner. The defendants pleaded not guilty: that the plaintiff was not possessed of the reversion : that he was not entitled to the flow of the stream and watercourse without being fouled or polluted : and a justification under The Metropolis Local Management Act, 18 & 19 Viet. c. 120. The plaintiff joined issue on the first three pleas: and to the fourth new assigned for grievances committed in excess of the alleged rights and powers in that plea [116] mentioned, and on other occasions, and for other purposes than those therein referred to. The defendants pleaded not guilty to the new assignment, and issue was joined upon it. At the Kent Summer Assizes in 1862, a verdict was by consent entered for the plaintiff, subject to a case to be settled by a barrister, by whom the following special case was settled accordingly. The plaintiff is owner of the reversion of certain lands through which flow a stream called The Poole River, and of a watercourse which is known by the name of The County Bridge Stream, The defendants are the Board of Works for the Lewisham District, constituted, on the 1st January, 1856, under The Metropolis Local Management Act, 18 & 19 Viet. c. 120. The Poole River is a natural stream of considerable width and depth. The County Bridge Stream flows in a deep dyke or ditch, and except in wet weather is narrow and shallow. The plaintiffs lands are not within the defendants' district, nor within the area to which The Metropolis Local Management Act applies. The injury of which the plaintiff complains is the pollution of The County Bridge Stream and The Poole River, by the discharge through sewers constructed by the 776 CATOB V. LE WISH AM BOARD OF WORKS JB.ftB.U7. defendants o! large quantities of filth into the watercourse called The County Bridge Stream, which joins The Foole River at a point about 400 yarda from tha outfall of the severs. It is admitted that the flow of filth into the plaintiffs watercourse and stream i* such an injury to the reversion as would entitle him to maintain this action if the rcmdy by action be not taken away by The Metropolis Local Management Act, 1835. [117] Prior to the year 1852, but few bouses had been built in the district over which the jurisdiction of the defendants as a Board of Works now extends. The sewage from some of those houses escaped either by open drains cut for the purpose, or by percolation through the soil into open watercourses. These watercourses had a common outfall through a culvert, which has existed for more than twenty years, into The County Bridge Stream, and a small quantity of the sewage which escaped into the watercourses was carried into The County Bridge Stream and thence into The Foole River, but without fouling either to any appreciable extent. In ithe year 1852, the erection of The Crystal Palace at Sydenham was commenced, and in that and the following years a great number of new houses were built within the defendants' district. A great portion of the sewage from The Crystal Palace and from the new houses was carried off in the same manner as the drainage of the house* previously built, viz., through the open watercourses and thence through the culvert before mentioned into The County Bridge Stream. The flow of sewage into The County Bridge Stream was in consequence increased, and the effect was to pollute the latter and also The Poola River to an appreciable, but not to a aerious extent. The open watercourses continued to be used for the drainage of a large number of buildings within the defendants' district down to the year 1859. About that time the condition of the watercourses had become a serious nuisance to the inhabitants of the district. Large quantities of filth accumulated in them, the effluvia from which were of the worst description, and in many places [118] the adjacent soil was overflown and saturated with offensive matter. In order to put an end to the further use of the open watercourses for purposes of drainage, and to provide efficient means for the drainage of the whole district, the defendant*, in the years 1859 and 1860, caused a number of underground sewers to be constructed, the operation of which, as regards the plaintiff's stream and watercourse, is the subject of complaint in this action. In many instances, the defendants' sewers run in the same direction and follow nearly the same course as the old watercourses. The outfall of both is the same, viz,, through the before mentioned culvert into The County Bridge Stream. The mouth of the culvert is within the area of the defendants' jurisdiction, but is very close to the boundary. In addition to the sewers constructed by the defendants, the defendants further adopted into their plan of drainage, and took under their control, certain underground sewers which had been constructed for the drainage of houses built by The Anerly Building Society on an estate within the defendant's district called The Anerly Building Estate. They had been originally constructed in the year 1856 with an outfall into one of the open watercourses before mentioned. In the year 1859 the defendants provided a new outfall for them into a sewer which they had substituted for the watercourse. The new system of sewers adopted by the defendants has prevented the accumulation and flow of filth in the open watercourses and has effectually provided for the drainage of the defendants' district, but the quantity of [119] filth carried into The County Bridge Stream and thence into The Poole River was, when this action was brought, and still is, vastly in excess of what had reached it before the new ewers wire constructed. The effect of the increased discharge from the sewers into The County Bridge Stream and The Poole River is to render them foul, stinking and wholly unfit for cattle or ordinary domestic purposes. The defendants contend that the plaintiff's remedy for the injury done to his stream and watercourse is not by action, but by proceedings to obtain compensation in the manner provided by the 18 & 19 Viet. c. 120. In support of their contention, the defendants rely on sections 68, 69, 86, 225 and 226 of the Act. The question for the opinion of the Court is, whether under the circumstances of this case the plaintiff can maintain this action against the defendants. SB.*8.1JO. GATOR V. THE LEWISHAM BOARD OP WORKS 777 The question turned on the two following sections of The Metropolis Local Management Aat, 18 & 19 Viet. o. 120. Seed;. 69. "The vestry of every parish mentioned in Schedule (A.) to this Act, and the Board of Works for every district mentioned in Schedule (B,) to thia Act, shall (subject to the powers by this Act vested in the Metropolitan Board of Works) from time to time repair and maintain the sewers under this Act vested in them, or such of them as shall not be discontinued, closed up, or destroyed under the powers herein eontained, and shall causa to be made, repaired, and maintained such sewers and work*, or such diversions or alterations of sewers and works, as may be necessary for effectually draining their parish or district, and shall cause all [120] banks, wharves, docks, or defences abutting on or adjoining any river, stream, canal, pond, or water-courae in such parish or district to be raised, strengthened, or altered or repaired, where it may be necessary so to do, for effectually draining, or protecting from floods or inundation such pariah or District; and it shall be lawful for any such vestry or District Board to carry any such sewers or works through, across, or under any turnpike road, or any street or place laid out as or intended for a street, or through or under any cellar or vault which may be under the pavement or carriageway of any street, and into, through, or under any lands whatsoever, making compensation for any damage done thereby as hereinafter provided; and it shall be lawful for any luch vestry or District Board from time to time to enlarge, contract, raise, lower, arch over, or otherwise improve or alter all or any of the sewers, watercourses, and works which shall be from time to time vested in them or subject...