The Queen against The Local Board of Health of the Borough of Godmanchester
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1866 |
| Date | 03 February 1866 |
| Court | Exchequer |
English Reports Citation: 122 E.R. 1078
IN THE EXCHEQUER CHAMBER.
For note see 5 B. & S. 886.
in the exchequer chamber. [936] the queen against the local board of health of the borough of godmanchester. [Saturday, February 3rd], [1866.]-Public Health Act, 1848, 11 & 12 Viet. c. 63, s. 43. Sewer. Drain or watercourse set out under Inclosure Acts. Mandamus.-A brook, the water of which was supplied by the drainage, natural and artificial, of a considerable area of cultivated soil belonging to private individuals, received at the lower end of it, near a river into which it flowed, the drains of two or three inhabited houses. By The General Inclosure Act, 41 G. 3, c. 109, s. 10, the Commissioners are to set out and appoint private roads, . . . drains, watercourses, &c., and the same shall be made and supported and kept in repair at the expense of the owner* of the lands, directed to be divided and inclosed, in such proportions as the Commissioners shall direct. In 1809, Commissioners acting under a local Inclosure Act by their award set out this brook, among' others, as a " public drain or watercourse," and directed that all such drains should be made, scoured, and kept in repair at the expense of the proprietors of the lands, divided and enclosed by virtue of the Act, in equal proportions. They also cleared out the channel of the brook, and in various places widened 6 B. 48.937. THE QUEEN V. GODMANGHESTEB LOCAL BOARD OF HEALTH 1079 and deepened it to render it more efficient as a means of draining a portion of the tract of land which was subject to the provisions of their Act. Afterwards two of the landowners, for their own convenience, altered the course of the stream, by cutting artificial channels for short distances. The brook is within the limits of [937] the Local Board of Q., and it having become a nuisance, a mandamus issued to them to clear, cleanse, empty and keep it.-1. Held, affirming the judgment of the Court of Queen's Bench, that it was not a "sewer" within the Public Health Act, 1848, 11 & 12 Viet. c. 63, and therefore was not vested in the Local Board of Health under sect. 43,-2. Qutere, whether, supposing the brook to be a sewer, it was within the exception in that section of " sewers made and used for the purpose of draining, preserving, or improving land under any local Act of Parliament."-3. Held, that a mandamus could not go to the Local Board of Health under sect. 46, to clear, cleanse, and empty and keep it. [For note see 5 B. & S. 886.] Error hating beeu brought upon the judgment given for the defendants in the Court below, see ante, p. 886, the case was argued before Erie C.J., Willes, Keating and Smith JJ., and Pollock C.B. and Pigott B. Keane (Douglas Brown with him), for the prosecutor.-First. Callis, p. 80, edit, by Broderip, p. 99, after referring to 20 H. 6, f. 1, where an action of waste was brought against tenant by the curtesy for suffering a sewer in part of the grounds tu be unrepaired, by reason whereof his grounds in L., which the defendant held by the curtesy of England, were surrounded, that is drowned ; says, "so that by this book it is made manifest that the sewer is a fresh water trench compressed in on both aides with a bank, and is a small current or little river." He adds " Hollingshead in his Chronicle terraeth the Fleet Dike in London a sewer ; and I am of opinion, that it is a, diminutive of; a river." Therefore, the interior of the country as well as the sea coast is within the juriidictlon of the Commissioners of sewers. [Willes J. referred to stat. 3 Jac. 1, c, 14, and Herne's Reading upon the Statute of Sewers, 23 H. 8, c. 5 (a).] In [938] Goulton v. Ambler (13 M. & W. 403) the Eau Brink Cut, for improving the drainage of lands adjoining the river Ouse, was held not to be a " public or parish drain " within a Turnpike Act, 4 G-. 4, c. Iv. s. 35, in which case the trustees had the right to make use of any public or parish...
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