Oldaker v Hunt

JurisdictionEngland & Wales
Judgment Date29 July 1854
Date29 July 1854
CourtHigh Court of Chancery

English Reports Citation: 43 E.R. 1279



S. C. 1 Jur. N. S. 785; 3 Eq. Rep. 671; 3 W. R. 297.

oldakeh v. hunt. Before the Lords Justices and Mr. Justice Cresswell and r. Justice Vaughan Williams. August 3, Dec. 18, 1854 ; Feb. 12, 27, 1855. [S. C. 1 Jur. N. S. 785 ; 3 Eq. Rep. 671; 3 W. R. 297.] Under the 45th, 46th and 145th sections of the " Public Health Act, 1848," providing that the local boards may make necessary sewers through or under any lands whatever, and cause them to be emptied into such places as may be fit and necessary, provided that nothing in the Act shall authorize the boards to use, injure or interfere with any watercourse, stream, river, &c., in which the owner of any lands may be interested, without the consent of such owner: Held, 1. That persons having a right to watering-places in a river adjoining their lands for the use of their cattle, are interested in the river within the meaning of the pro viso, but would not be able to maintain an action for an interference with their rights, unless they were injured by such interference. 2. That works of a local Board of Health, producing an outfall of the sewage of a town above such a watering-place, was such an interference as to cause injury to the landowners, but that whether this was established or not, it ought (if not con sented to by them) to be restrained by injunction, being the act of a public body exceeding its powers. 3. By Cresswell and Williams, Js., dutitante Turner, L.J., that a right of fishing is within the term " land " according to the interpretation clause of the Public Health Act, 1848. This was an appeal from an order made upon motion by the Master of the Rolls, restraining the local Board of Health for the district of Stratford-upon-Avon from, among other things, commencing, continuing or prosecuting the construction of a sewer, so designed as to have an outfall or discharge into any part of the river Avon, between a bridge called Mill Bridge, and the beginning of a certain meadow called Weir Meadow. The case is reported below in the 19th Volume of Mr. Beavan's Reports, p. 485. The question on the appeal turned upon the construction of the following sections of the Public Health Act, 1848 (11 & 12 Viet. c. 63). Sect. 45. " That the local Board of Health shall, from time to time, repair the sewers vested in them by this Act, and shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of this Act, and the said local Board may carry [377] any such sewers through, across or under any turnpike road, or any street or place laid out as or intended for a street or under any cellar or vault which may be under the pavement or carriage-way of any street, and, 1280 OLDAKER V. HUNT 6DE0. M. & G. 378. after reasonable notice in writing in that behalf (if upon the report of the surveyor it should appear to be necessary), into, through or under any lands whatsoever," Sect. 46. " That the local Board of Health shall cause the sewers vested in them by this Act to be constructed, covered and kept so as not to be a nuisance or injurious to health, and to be properly cleared, cleansed and emptied; and for the purpose of clearing, cleansing and emptying the same, they may construct and place either above or under ground such reservoirs, sluices, engines and other works as may be necessary, and may cause all or any of such sewers to communicate with and he emptied into such places as may be fit and necessary, or to cause the sewage and refuse therefrom to be collected for sale for any purpose whatsoever, but so as not to create a nuisance." Sect. 144. " That full compensation shall be made out of the general or special district rates, to be levied under this Act, to all persons sustaining any damage by reason of the exercise of any of the powers of this Act; and, in case of dispute as to amount, the same shall be settled by arbitration in the manner provided by this Act; or, if the compensation claimed do not exceed the sura of 20, the same may be ascertained by and recovered before Justices in a summary manner." Sect. 145. " That nothing in this Act shall be construed to authorize the local Board of Health to use, injure or interfere with any sluices, floodgates, sewers, groynes, sea defences or other works already or hereafter made under the authority of any commissioners of sewers [378] appointed by the Crown, or any sewers or other works already or hereafter made and used for the purpose of draining, preserving or improving land under any local or private Act of Parliament, or for the purpose of irrigating lands, or to use, injure or interfere with any watercourse, stream, river, dock, basin, wharf, quay or towing path in which the owner or occupier of any lands, mills, mines, or machinery, or the proprietors or undertakers of any canal or navigation, shall or may be interested, without consent in writing first had and obtained; and that nothing herein contained shall prejudice or affect the rights, privileges, powers or authorities given or reserved to any person under any local or private Act of Parliament, for the drainage, preservation or improvement of land, or for or in respect of any mills, mines, machinery, canal or navigation as last aforesaid." The interpretation clause (sect. 2) provides, that the word " lands " shall include messuages, buildings, lands and hereditaments of any tenure. By order in Council, dated the 8th of March 1850, and confirmed by statute 13 & 14 Viet. c. 32, the borough and parish of Stratford-upon-Avon was duly constituted a district for the purposes of "The Public Health Act, 1848." The Plaintiffs claimed a right of free fishery in the river Avon under certain indentures of lease and release, dated respectively the 23d and 24th of March 1787, whereby Lord Beauchamp, in consideration of 3300, conveyed unto William Oldaker, his heirs and assigns (amongst other hereditaments), certain pieces or parcels of ground called the Brick Kiln Close and Fence Meadow, and the Lower Ham and Upper Ham, and also all [379] that free fishery in the river Avon belonging to the hereditaments and premises conveyed by the deed. In 1831 William Oldaker sold and conveyed to the proprietors of the Avon Navigation the piece of land called the Upper Ham, and all his estate in the bed of the river in front of a portion of the Upper Ham, and in front of all of the Lower Ham as far as the middle of the stream, reserving however, out of the conveyance, to himself, his heirs and assigns for ever, the sole and several right or other privilege, as then or theretofore used and enjoyed by him the said William Oldaker, of fishing in such part of the bed and soil of the said river, his right to which was thereby released and conveyed, and also the liberty and privilege of entering upon the said pieces or parcels of land thereby conveyed, or any part thereof, at all reasonable times, for the purpose of fishing, and to land his and their nets thereon. By a subsequent conveyance of October 22, 1835, other parts of the lands comprised in the deeds of 1787, including other parts of the bed of the river were conveyed to the use of Mr. Charles Lucy, with an exception, in favour of the owners for the time being of Brick Kiln Close and Fence Meadow, of watering-places of sufficient length, width and depth in the river adjoining those fields, for the use of the cattle or stock at any time thereafter to be kept therein, or in any part thereof 6 DB 0. M. * O. 380. OLDAKER V. HUNT 1281 respectively, with the right and liberty at all times of clearing, cleansing, deepening and widening all such watering-places, and of removing the soil, gravel and earth from the bed of the said river, for the purpose of obtaining a constant and sufficient supply of water for the use of such cattle and stock, and also a reservation of the free fishery in the water of the said river, whereof the bed or ground was thereinbefore conveyed. [380] The Plaintiffs claimed to be entitled as tenants in common to five-sixth shares in the Brick Kiln Close and Fence Meadow, and to the watering-places in the river adjoining those closes, and to the rights and liberties reserved by the indenture of the 22d of October 1835, and also to so much of the free fishery granted by Viscount Beauchamp as extended from a bridge called the Mill Bridge southward to the beginning of a meadow called the Weir Meadow. In April 1854, the local Board of Health for the district of Stratford-upon-Avon served a notice on the Plaintiffs, therein described as owners of Fence Meadow and Brick Kiln Close...

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