The Queen against The Metropolitan Board of Works

JurisdictionEngland & Wales
Judgment Date21 February 1863
Date21 February 1863
CourtCourt of the Queen's Bench

English Reports Citation: 122 E.R. 266

IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER

The Queen against The Metropolitan Board of Works

S. C. 32 L. J. Q. B. 105; 8 L. T. 238; 9 Jur. N. S. 1009; 11 W. R. 492.

[710] the queen against the metropolitan board of works.-Saturday, February 21at, 1863.-Eight to water. Underground springs. Pond. Commissioners of sewers. Compensation. Metropolitan Sewers Act, 1848, 11 & 12 Viet, c. 112, sa. 50, 69.-A. was the owner of an estate, part of which was situate upon a deep bed of gravel, which itself was imbedded in a basin of clay extending under it and the lands adjoining. In the lower part of it was a pond of the depth of four feet, formed in the gravel bed, which had existed there from time immemorial, and in which the water rose naturally in a considerable quantity from several powerful springs at the bottom of it, and thence overflowed the western edge of the clay basin, and formed a rivulet which ran through the grounds and supplied ornamental ponds therein; and was used for the cattle and for supplying the garden of the house. The Metropolitan Commissioners of Sewers, in constructing a sewer along and under the centre of a highway, cut through the bed of gravel and the basin of clay which enclosed it, at a distance from A.'s estate varying from 17 to 153 yards. The immediate effect was to drain the springs rising in the bed of gravel, and prevent them from finding their way into the pond, so that it became dry, and the rivulet and other ponds ceased to be supplied with water. The Metropolitan Sewers Act, 1848, 11 & 12 Viet. c. 112, s. 50, contains a proviso that where any work done by the Commissioners in pursuance of the provisions of the Act "shall interfere with or prejndicially affect any ancient mill, or any right connected therewith, or other right to the use of water, full compensation shall be made to all persons sustaining damage thereby in manner herein provided concerning compensation to persons sustaining damage by reason of the exercise of any of the powers of this Act." Sect. 69 enacts that full compensation shall be made out of the rates to be levied under the Act " to all persons sustaining any damage by reason of the exercise of any of the powers of this Act." Held,-1. That independently of the statute A. was not entitled to compensation, as the effect of the sewer was only to intercept underground springs which would otherwise rise into the pond.-2. That A. was not entitled to compensation under sect. 69 of the statute; per Cockburu C.J., Wightman, and Mellor JJ. : nor under the proviso in sect. 50; per Wightman and Mellor JJ.; Cockburn C.J. dissentiente, on the ground that A. had a right to the water after it had risen to the pond, and that right had been interfered with and prejudicially affected. [S. C. 32 L. J. Q. B. 105; 8 L. T. 238; 9 Jur. N. S. 1009; 11 W. R. 492.] Mandamus to the Metropolitan Board of Works. The writ recited that, under and by virtue of The Metropolitan Sewers Act, 1848, 11 & 12 Viet. c. 112, and The Metropolitan Sewers Amendment Act, 1849, 12 & 13 Viet. c. 93 (which Acts were amended and continued by stats. 14 & 15 Viet. c. 75, 15 & 16 Viet. c. 64, and 16 & [711] 17 Viet. c. 125; and by The Metropolis Local Management Act, 18 & 19 Viet. c. 120, The Metropolitan Sewers Act, 1848, and the Acts amending the same, were further continued,) a commission of sewers was, on the 22d November, 1854, issued for the city and liberties of Westminster and the borough of Southwark, and certain other places and districts which comprised the parish of Lewisham, in the county of Kent; and that by that commission the persons therein named were duly constituted and appointed " The Metropolitan Commissioners of Sewers," and empowered to act as such Commissioners as well for the parish of Lewisham aa for the other places and districts in that commission mentioned, and to carry into effect the provisions of those statutes as the same were applicable and in force with reference to the parish of Lewisham and those other places and districts. The writ recited portions of sects. 38, 50, and 69 of stat. 11 & 12 Viet. c. 112; and then suggested the facts set forth in the special case hereinafter stated, among others the existence of a pond or pool containing large quantities of water rising from natural springs in its bed or basin to the use of which the prosecutors were entitled as of right, and the making of a drain 3 B. & 9. 711 THE QUEEN V. THE METROPOLITAN BOARD OF WORKS 267 or sewer by the Commissioners, by reason of which large quantities of that water had been permanently withdrawn from the pond or pool, so that the same became dry. The writ then recited that, by stat. 18 & 19 Viet. c. 120, it was enacted that, after the commencement of the Act, all dutiesl powers and authorities vested in the Metropolitan Commissioners of Sewers should cease to be so vested, and that all property, matters and things whatsoever vested in the Metropolitan Commissioners of Sewers (except certain sewers in the Act particularly excepted) should be vested in the defendants, [712] and that all moneys then clue or owing by or recoverable from the Commissioners should be paid by or recoverable from the defendants. And that the Act commenced and came into operation after the making of the drain or sewer, that is to say, on the 1st January, 1856 (sect. 251) ; arid thereupon the drain or sewer, the same having been theretofore vested in the Metropolitan Commissioners of Sewers and not being one of the sewers in the Act in that behalf excepted, thereby then became and was vested in the defendants, and the same had ever since been maintained and continued by the defendants; and all moneys then due and owing by or recoverable from the Metropolitan Commissioners of Sewers then became payable by or recoverable from the defendants. The writ further suggested that no compensation had been made either by the Metropolitan Commissioners of Sewers or by the defendants to the prosecutors, for the damage and injury they had sustained by reason of the making of the drain or sewer, or for any loss of water thereby occasioned; nor had any purchase of the right to the use of the water of the pond been made either by the Metropolitan Commissioners of Sewers or by the defendants : that the prosecutors were entitled to receive compensation, and since the commencement of The Metropolis Local Management Act required the defendants to make compensation, and, the same being of an amount exceeding 501., offered to have such compensation assessed by arbitration in manner authorized by The Lands Clauses Consolidation Act, 1845; and that they had, for that purpose, appointed an arbitrator, and required the defendants either to concur in his appointment on their behalf as well as on behalf of the prosecutors, or to appoint another person to act as arbitrator [713] on their behalf with him ; but the defendants neglected and refused to make compensation, or t3 have such compensation assessed by arbitration. The writ commanded the defendants to make compensation to the prosecutors for the damage, injury and loss sustained by them by reason of the construction of the drain or sewer, and for that purpose either to concur with them in the appointment of an arbitrator to act on their behalf as well as on behalf of the prosecutors, or to appoint another person to act on their behalf with the arbitrator appointed by them, and to assess compensation in the manner authorized and directed by The Land Clauses Consolidation Act, 1845. .Return. That the Metropolitan Commissioners of Sewers, under and by virtue of the commission in the writ mentioned and of the statutes enabling them in that behalf, in order effectually to drain a very large and populous portion of the area within the limits of the commission, in July, 1854, commenced the construction of a main sewer in the county of Kent, and the same was completed in July, 1855: [the return stated its direction and length :] that the main sewer was necessary for effectually draining the area through which it passed ; and was properly designed to attain the object proposed, and was constructed throughout with care and skill, and of sound and suitable materials : that this main sower is the drain and sewer mentioned in the writ: that the part of the main sewor mentioned in the wnt runs along the entire of the public high road leading through Lewisham: that the main sewer paises opposite the property of the prosecutors, at a distauue not nearer than 250 feet from the pond or pool in the writ mentioned, and at a distance of 50 feet from the nearest part of the premises [714] mentioned in the writ: that the main sewer, for a distance of 2000 feet, and iu part opposite to the premises of the prosecutors, is at a depth of 16 feet below the surface of the public highway : that no part of the soil of the public highway through which the sewer passes was or is the property of the prosecutors: that the main sewer in no part thereof touches the premises of the prosecutors, or in any way injures or prejudicially affects their premises: that the Commissioners of Sewers, in constructing the sewer, did not out into, divert, or interfere with any stream, pond, or pool of water whatever of the prosecutors, nor did they in any way interfere with, injure, or prejudicially affect any right of the prosecutors to the use of any 268 THE QUEEN V. THE METROPOLITAN BOARD OF WORKS 3 B. & S. 715. water, nor did they divert, subtract, or withdraw from the pond or pool any water which had ever formed an integral part thereof or of any stream of water or of any water whatever belonging to the prosecutors : that the prosecutors had not sustained any damage whatever from the construction of the main sewer entitling them to compensation from the Commissioners of Sewers or the defendants, &c. Plea. That the main sewer in the return mentioned (being the drain or sewer in the writ mentioned)...

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