CT. OF APP.]

(Before LINDLEY, LOPES, and RIGBY, L.JJ.) Re MONTAGU; DERBISHIRE v. MONTAGU. (a)

APPEAL FROM THE CHANCERY DIVISJON.

Settled land-Trustees-Expenditure of money in pulling down houses and rebuilding—Jurisdiction of court to sanction scheme.

The trustees of a settlement of land, which was vested in them upon trust for a tenant for life, and after his death for his children, who were infants, proposed to raise a large sum of money by mortgage of the property comprised in the settlement, and to expend the money in pulling down the buildings then standing thereon, and erecting others in their places. It was admitted that this scheme was not authorised by any provision in the settlement; and, further, that it did not fall within any class of improvements authorised by the Settled Land Acts. It was not shown that such expenditure was necessary by way of salvage, but only that the value of the property would be increased thereby to an amount greatly exceeding the amount to be expended, and that the rental would be increased in still greater proportion.

Held, that the court had no jurisdiction to sanction the scheme; and that the fact that it would be for the benefit of the cestuis que trusts was not enough to justify the court in making any order. Decision of Kekewich, J. (76 L. T. Rep. 289) affirmed.

APPEAL by the defendants, the tenant for life and his wife, from a decision of Kekewich, J. (76 L. T. Rep. 289).

Warrington, Q.C. and H. E. Wright, for the appellants, substantially repeated the arguments adduced by them in the court below, and referred again to the authorities there cited.

T. A. Nash, for the respondents, the infants, supported the appeal.

B. B. Rogers, for the respondents, the trustees, took no part in the argument.

LINDLEY, L.J.-I do not think that any of us can see his way to hold that there is jurisdiction to make this order. It is very desirable that the court should have such a jurisdiction, but Parliament has never gone so far as to cure what is felt to be a blot on, or a defect in, the jurisdiction of the court. No doubt it would be a judicious thing to do what is wanted in this case, and, if the persons interested were all of full age, it would probably be done. But they are not of full age, and, unless the trustees are sanctioned, and properly sanctioned, to do it, it cannot be done. None of the authorities goes the length of saying that such an expenditure can be sanc(a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

[CT. OF APP.

tioned. Frith v. Cameron (24 L. T. Rep. 791; L. Rep. 12 Eq. 169), which goes somewhat far, is intelligible when one knows that the house, on the rebuilding of which the expenditure of trust money was authorised in that case, was coming down owing to the foundation having given way. That is the explanation of what was done in that case. As to Hibbert v. Cooke (1 Sim. & Stu. 552), I do not think that I know enough about it to see upon what principle it was decided, but it was not a case like the present. In that case, the tenant for life of real estate had spent money in finishing a mansion-house, which the testator had begun but left unfinished; and the question was as to providing for such expenditure. I think that, in the present case, the decision appealed from was right, and that the appeal must therefore be dismissed.

LOPES, L.J.-I have very little doubt that, if what the appellant wishes to be done were done, both the income and the capital value of the property would be increased. It is clear that there is no provision in the settlement which would authorise the works in question, and it is also clear that they do not fall under any of the improvements sanctioned by the Settled Land Acts. The question is, whether the court has jurisdiction to accede to the application, and make an order to the effect desired. It is said that it has, because it would be vastly for the benefit of the persons interested that it should do so. That is not enough. If it were a case of buildings which were falling down-when it would be a case of actual salvage-it would be different. But even in cases of repairs, we see how careful the court has been in the exercise of its jurisdiction. In Re Jackson; Jackson v. Talbot (21 Ch. Div. 786),.. Kay, J., in dealing with a case of repairs, said: "I think that this jurisdiction should be jealously exercised, and only in cases which amount to actual salvage." This case cannot be said to be a case of actual salvage, and the learned judge was right in refusing to exercise a jurisdiction which he, in fact, did not possess.

RIGBY, L.J.-I am of the same opinion. I agree that it might be very convenient and desirable that the Chancery Division of the High Court should have power to direct a sale or mortgage of property where it would be beneficial to the persons interested to do so; but, if it is to have that power, it must be given by Act of Parliament. It cannot now be assumed at this late day, without some plain authority, that it has got it. Sect. 70 of the Conveyancing Act 1881 was not intended to make the court less careful than before in exercising its jurisdiction. I am not sure that that section is applicable in a case of this kind, but I am quite certain that the court should not, in reliance on that section, attempt to exercise a jurisdiction which it has not got when there is danger that the mortgagees might. be thereby prejudiced. The appeal must be dismissed with costs.

Appeal dismissed.

Solicitors for the appellants, Cree and Son. Solicitors for the respondents, Wood, Bigg, and Nash; Cree and Son.

CHAN. DIV.]

The plaintiffs were the owners of an estate in the neighbourhood of Bournemouth, part of which was laid out for building, and which included a part of the course of the small stream called the Bourne. Three roads upon this estate originally laid out by the plaintiffs had been taken over by the defendants, the Branksome Urban District Council, after constructing a system of drains and sewers for them under the powers of the Private Streets Works Acts 1892. In the scheme originally proposed by the council the surface water from these roads was allowed to flow into the sewers, but the local board having refused to sanction any scheme which did not provide a separate system for carrying off the surface water, the defendants had provided such a system by drains which discharged the surface water into the Bourne. The plaintiffs objected that the water so discharged carried with it a great quantity of sand and silt, washed off the roads, and was much more in quantity than would have naturally flowed into the stream, and that its discharge into the stream would injure the plaintiffs by causing floods and silting up the stream. They brought this action to restrain the defendants from permitting any water, sand, silt. or other solid matter to flow through their drains into the Bourne. The streets in question were situated within the natural watershed of the Bourne. The defendants' drains were furnished with catch-pits, the best known method of intercepting sand and silt.

Held, that the council had a right to drain the surface water from their roads into the stream which formed its natural outlet, provided that they observed the restrictions of sect. 17, which forbids the conveying sewage or filthy waters into a natural watercourse; that water

charged with sand or silt was not filthy water within the meaning of that section, and that if the plaintiffs had suffered any damage their remedy was to apply for compensation under sect. 308.

THE plaintiffs in this action were the trustees of the will of Mr. Durrant, the late owner of an estate in the neighbourhood of Bournemouth, including the bed of the small stream called the Bourne, for about a mile. Part of this estate had been laid out for building, and Mr. Durrant had laid out certain private roads known as the Gasworks-road, Princess-road, Surrey-road, and Branksome Wood-road. The Gasworks-road crossed the Bourne by a bridge known as the Gasworks bridge, and the Branksome Wood-road also crossed the stream by a bridge. The surface water from the lower part of the Gasworks-road was drained into the Bourne by pipes put down (a) Reported by J. R. BROOKE, Esq., Barrister-at-Law.

CHAN. DIV.]

by Mr. Durrant. The surface water on the other roads and the upper part of the Gasworks-road was either left to get away as it could or found its way into the Bournemouth sewers as hereinafter mentioned. Part of the estate and the bed of the Bourne for about half a mile was within the district of the Branksome Urban District Council, who succeeded in 1895 to the powers and duties of the Kinson Local Board. The sewage from the houses on these roads was by an agreement with the Bournemouth Local Authority carried into the Bournemouth system of sewers. The agree ment contained a stipulation that so far as possible the surface water should be excluded from the sewers. As a matter of fact, until the construction of the works complained of in this action, no were taken to prevent the surface water from these roads flowing into the sewers, and most of it did so.

means

In 1893 the Kinson Local Board passed resolutions to make up Gasworks-road and Princessroad by works done under the Private Street Works Act 1892 (which they had adopted), and approved plans and specifications according to which the surface water was to be allowed to flow into the sewers as before. The local board, however, objected that this was a breach of the agree ment with the Bournemouth Local Authority, and refused to sanction any scheme which did not provide a separate system for the disposal of the surface water. The plans were then amended by making a complete system of surface water drainage discharging into the Bourne stream at the Gasworks bridge. These works were carried out, and the Gasworks-road and Princess-road were declared public highways on the 10th Sept. 1895 and the 21st Jan. 1896 respectively. Plans were also approved for making up Surrey-road and Branksome Wood-road with similar surface water sewers discharging into the Bourne or into the sewers which so discharged, but these works were not completed at the time of the commencement of this action.

The defendants had also connected the surface water sewers from a part of the Poole road-an ancient highway under the control of the Dorset County Council-with the surface water sewers of Princess-road, but this was done at the expense, and by the order of, the Dorset County Council, and under their statutory powers.

The Bourne brook was the natural outlet for surface water from the whole district containing the streets above mentioned, but a part of the Poole-road so connected was outside the natural watershed.

The plaintiffs complained that the water flow. ing through the defendants' surface water sewers carried in suspension considerable quantities of sand, silt, and other solid matter washed off the roads, and that the effect of this, and of the greatly increased quantity of water which was poured into the stream by these surface water sewers would cause floods, and would silt up the bed of the stream, and cause expense to the plaintiffs in keeping the stream and its bed in order. The defendants' surface water sewers were provided with catch-pits to intercept the silt.

The plaintiffs, on the 20th Feb. 1896, commenced this action for an injunction restraining the defendants from causing or permitting any water, or sand, silt, or other solid matter, to flow or be carried through any channels, pipes, drains,

CHAN. DIV.]

or other artificial works constructed by the defendants into the stream called the Bourne, in or above that part of the stream which belongs to the plaintiffs, and from constructing or maintaining any pipe, drain, channel, or other artificial work for the purpose of conveying any water, or sand, silt, or other solid matter into the stream in or about that part of it aforesaid, and from otherwise trespassing upon the plaintiffs' lands, bridges, and other property.

The sections of the Acts of Parliament on which the argument principally turned were:

The Public Health Act 1875 (38 & 39 Vict. c. 55):

Sect. 15. Every local authority shall keep in repair all sewers belonging to them, and shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of this Act.

Sect. 17. Nothing in this Act shall authorise any local authority to make or use any sewer, drain, or outfall for the purposes of conveying sewage or filthy water into any natural stream or watercourse, or into any canal, pond, or lake, until such sewage or filthy water is freed from all excrer entitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse, or in such canal, pond, or lake.

The Private Streets Works Act 1892 (55 & 56 Vict. c. 57):

Sect. 9.-(1.) The urban authority may include in any works to be done under this Act with respect to any street or part of a street any works which they think necessary for bringing the street or part of a street, as regards sewerage, drainage, level, or other matters, into conformity with any other streets (whether repairable or not by the inhabitants at large), including the provision of separate sewers for the reception of sewage and of surface water respectively.

There was considerable conflict of evidence as to the effect of what the defendants had done, and also as to the plaintiffs' acquiescence, but the judge came to the conclusion that the plaintiffs had failed to prove any appreciable damage up to the present time, and had done nothing which amounted to acquiescence.

Swinfen Eady, Q.C. and E. A. Hadley for the plaintiffs.-The works of which the plaintiffs complain were constructed under the Private Streets Works Act (55 & 56 Vict. c. 57), which enables the defendants to exercise the powers of the Public Health Act in private roads and provides for the expenses of so doing. But those Acts do not give any power to the local authority to pour water from their surface sewers into natural watercourses, and they will be restrained by the court from doing anything not expressly within their powers, which, independently of the Act, would give anyone a cause of action:

Glossop v. Heston and Isleworth Local Board, 40
L. T. Rep. 736; 12 Ch. Div. 102.

The evidence shows that some nuisance and damage has been caused to the plaintiffs, and that much more will certainly be caused in the future. That is sufficient ground for the interference of the court:

Goldsmid v. Tunbridge Wells Improvement Commissioners, 14 L. T. Rep. 54; L. Rep. 1 Ch. 349. It is no defence for the defendants to say that it is difficult to get rid of the water any other way: Attorney-General v. Colney Hatch Lunatic Asylum, 19 L. T. Rep. 708; L. Rep. 4 Ch 146.

[CHAN. DIV.

Vernon Smith, Q.C. and Bowden for the defendants. The plaintiffs had full notice of the plans for these works long before they were constructed, and the procedure under the Private Streets Works Act gave them full opportunities of objecting; the whole of the defendants' correspondence with the Local Government Board was communicated to them, but they never made any objection to the plans. If they ever had any remedy, they have lost it by acquiescence. But we are acting within our statutory powers. Sect. 15 of the Public Health Act requires us to drain our district, which includes disposing of the surface water; and sect. 15 forbids us to drain sewage or filthy water into a natural stream, clearly showing that we may so drain water which is not filthy:

Ainley v. Kirkheaton Local Board, 60 L. J. 734, 736,
Ch.

crosses

In the next place, the council are riparian proprietors, for the Gasworks-road the Bourne by a bridge which is vested in them, and as riparian proprietors they are entitled to drain their surface water into the stream: (Angell on the Law of Watercourses, 7th edit., p. 120). And we are entitled to a reasonable use of the stream, and are not confined to draining into it the water from the bridge:

Earl of Sandwich v. Great Northern Railway
Company, 10 Ch. Div. 707.

The streets are within the watershed of the stream, and the council have a right to use the natural drain of the district, and to assist the water to get there. The evidence shows no actual damage, and the action is merely a quia timet action. There is no evidence of any danger of serious increase in the quantity of water sent down, and as to silt, the water from the roads is not more heavily charged with silt than that which gets into the stream from the land on each side, and water charged with silt is not filthy within the meaning of sect. 17 of the Public Health Act. The council are a public body discharging an important public duty, and the court will scrutinise the evidence closely, and will not interfere unless substantial damage is proved :

Lillywhite v. Trimmer, 16 L. T. Rep. 318; 36 L. J. 525, Ch.

In any case of a quia timet action, which this is, the plaintiff is not entitled to an injunction unless he shows substantial damage, or that the anticipated damage will be irreparable:

Salvin v. North Brancepeth Coal Company, 31
L. T. Rep. 154; L. Rep. 9 Ch. App. 705;
Fletcher v. Bealey, 52 L. T. Rep. 541; 28 Ch. Div.
689.

Swinfen Eady, Q.C. in reply. Cur. adv. vult.

· April 10, 1897.-NORTH, J., after stating the facts as above, proceeded:-In the sewers for the surface water which the defendants had been laying, there are gulleys provided in the usual way to give the water access from the roads to the sewers, and they are all provided with catch-pits which, according to the evidence before me, are of the best kind that is known, and are used in those places where the greatest pains are taken with work of this sort. It is said that the defendants will be discharging sand and silt into the brook. The object of these catch-pits is to arrest any.

CHAN. DIV.]

thing of that sort, to catch it in the pits, and prevent it flowing onwards towards the brook. There is a deposit left in them, and that deposit it is the duty of the persons who have the charge of the roads to clean out from time to time. They are cleaned out according to the usual practice something like once a fortnight. The result of the work, as shown by the cleaning that takes place, is that a considerable portion of the sand and silt that goes down the gulleys is arrested by these catch-pits and goes no further, but of course it is obvious, if there is heavy rain and the stream is strong, it is impossible that all the sand and silt can be arrested in catch-pits of this sort so that the water goes out clean at the other side; and although no doubt the catch-pits do arrest a considerable quantity, they cannot in time of flood prevent the water that passes out of the catchpits being to some extent charged with sand and mud. The Bourne is a stream which at the Gasworks bridge and at the bridge in the Branksome Wood-road is about four feet wide and somewhat wider lower down. The banks are in some parts low and in others higher. The water, when there is a normal flow, is only a few inches in depth, but in high flood the water in parts rises in the brook and flows on to the lawns and gardens on each side. The soil of the whole district is very sandy and friable, with some little gravel. The soil being loose, a good deal of sand and silt is carried down by th stream. The plaintiffs say that at the present time whenever the water is high the stream is rendered turbid and dirty, in consequence of the sand and silt held in suspension in the water. The plaintiffs and Mr. Durrant have been in the habit, from time to time, of clearing the sand out of the stream, and they have, in certain places, what are called stops in the stream to facilitate the collection of the sand. Then, as regards the rainfall of the district, it is said that part of it is evaporated, and that a good deal is taken up by the soil. But, though there is some dispute about it, I think that the evidence shows that some part of 'it clearly does flow down the brook.

Of course,

that which is taken up by the soil does not go to the brook directly, but the brook is the lowest part of the district, and whatever sinks into the soil does, to some extent at any rate, find its way through the strata and get down to the brook. Now, the defendants are so arranging the surface drains as to carry the water down into the brook, and the plaintiffs complain of that, and say that the defendants cannot do it. Well, what is to be done with it? It cannot be left to stand on the roads, because one knows what the evil effects produced by that have been down to the present time, and when the roads are made up they must be drained. The Public Health Act says what the defendants are to do. [His Lordship read the 15th section of that Act.] This water which gets on to the roads has to be got away, and that can only be done by making channels and sewers for carrying it off. Then the question is, Where is it to go? In the natural course it flows into the stream directly or indirectly, because that is the natural drain-if I may use such a term-which carries off the water of the district. Now, anyone who is familiar with the banks of a stream when heavy rains begin, know well enough that the very first thing you see go into the stream, and the first thing which is visible, is the drainage from

[CHAN. DIV.

the road. Whenever a road gets near a stream, you find at that point the dirty water begins to pour down the stream. If the stream is a small one, it very soon makes the whole of it muddy; if it is a larger one, you will see there will be a muddy line down near the banks, which, as the rain goes on, increases till the whole of the water is dirty. The witnesses say the course invariably adopted in cases of this sort is to turn the surface drainage into the stream, and it certainly would be a startling thing to be told now that it was the duty of the sanitary authorities all over England to keep the rainfall out of the natural streams by some artificial arrangements made for the purpose. I think that is contrary to the Public Health Act itself. I have read the 15th section. The 16th section is not material for this purpose, and then follows the 17th, which seems in two or three cases to have been held to be a sort of proviso to the previous section. [His Lordship read sect. 17 and continued:] I think that section recognises in the clearest way that, subject to complying with the provisions of that section, the local authority have a right to empty their drains into a natural stream, or canal, pond, and so on. observing of course, as I said, the provisions of that section. It is clear from that, to my mind, that they may turn clean water, or what I may call cleaned water, into a stream. They may even turn sewage or filthy water into a stream if they free it from such particular matters as are mentioned as would deteriorate the stream itself. Then it is said the result of turning these sewers into the stream will be to add a great deal of additional water to the stream, and it will flow over more readily than it did before. [His Lordship then examined the evidence of the plaintiffs' principal witness, and stated his conclusion that there had been no appreciable increase either in water or sand in the brook in the past year, and that this was not wholly accounted for by the dryness of the year.] Then there is this to be borne in mind also: This is a draining of the district, and it is notorious wherever drainage takes place more water is brought into the stream than there was before. I do not say on the average through the year, but at a particular time. Everyone knows that where thirty or forty years ago a stream would take three or four days to run down, now by the increased drainage it will run down in twenty-four hours, and a large stream the water of which would have held up for a fortnight in old times nowadays runs down in three or four days. The result is that, wherever there is drainage, it necessarily increases and accelerates the flow from the land into the stream, and causes more to be there at one time than would be the case but for the drainage. Yet it is perfectly lawful for persons to drain land the water from which runs into a stream, though the result is to swell the stream more particularly at times than it would have been swollen but for that drainage. Then it is said also in this case what is brought in is not the natural flow from the land. but water brought in from different places, and in different quantities. That is true, no doubt; but, when a local board is making sewers to drain its district, it necessarily tends to produce some alteration in the way of drainage before that time. As an illustration, I may refer to places where what are known as sewage farms are used. The