within the same curtilage, and made merely for the purpose of communicating therefrom with a cesspool, or other like receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed." All other drains, except drains vested in or under the control of a road authority, which is not also a local sanitary authority, are included under the term "sewer." In every case it must be decided as a question of fact whether premises are to be considered as one building or as more. A pair of semi-detached houses may be one building or separate buildings (Hedley v. Webb, [1901] 2 Ch. 126; Humphrey v. Young, [1903] 1 K. B. 44).

If a pipe is merely used for the drainage of one building or premises within the same curtilage, and conveys the sewage into a cesspool or a sewer, it is a drain. The distinction is important, as the occupier or owner of the premises is responsible for a drain, while sewers vest in and are under the control of the local sanitary authority (s. 13).

In urban districts no house newly erected or rebuilt since the year 1848 may be occupied unless it has a proper covered drain communicating with a public sewer, if there is one within 100 feet, or else with a covered cesspool, which must not be under the house. The drain must be of such size and materials, and at such level, and with such fall as the urban authority consider necessary (P. H. Act, 1875, s. 25). It has been decided that the urban council can only consider whether the proposed drain is sufficient for the drainage of the house. They cannot require it to be made so as to fit in with their system of sewers, e.g. they cannot require two drains, one for sewage and another for rain-water (Matthews v. Strachan, [1901] 2 K. B. 540). They may, however, require a separate drain to be provided for each house, and are not obliged to sanction a combined drain, i.e. sewer, for two or more houses (Woodford D. C. v. Stark, 1902, 86 L. T. 685). Besides this, if a sanitary authority consider any house within their district to be without a drain sufficient for effectual drainage, they may require the owner or occupier to provide one to their satisfaction; and, if their notice is not complied with, may provide it themselves at his expense (ibid., s. 23). The local authority are the judges of what constitutes a sufficient drain; and their decision can seldom be reviewed by any legal tribunal (Austin v. Lambeth Vestry, 1858, 27 L. J. Ch. 677).

Similar provisions as to sanitary conveniences for new houses erected since 1848, and as to requiring them in other cases where it is considered necessary, are contained in secs. 35-38.

By sec. 21 the owner or occupier of any premises within the district of a local authority is entitled to cause his drains to empty into their sewers, on giving proper notice of his intention to do so, and complying with their regulations as to the mode in which the communication is to be made. This, however, gives no right to connect or use a drain in defiance of the regulations (Charles v. Finchley Board, 1883, 23 Ch. D. 767). There is no right to turn sewage into any sewers but those which are vested in the local authority (L. & N.-W. Rly. Co. v. Runcorn D. C., 1898, 1 Ch. 562). There is no right to connect a house drain, conveying sewage properly so called, with a sewer constructed to carry off rain and slop-water only (Graham v. Wroughton, [1901] 2 Ch. 451). If the sewer is in an adjoining district, and therefore vested in another local authority than that under whose jurisdiction the premises are situate, the drain may still communicate with it, but only on such terms and

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conditions as may be agreed on, or may be settled by arbitration or by justices in case of difference (s. 22). In such cases the local authority can, and usually does, insist on payment for the privilege.

The cleansing and repairing of house drains is prima facie the duty of the occupier of the premises to which they belong (Russell v. Shenton, 1842, 3 Q. B. 449; 61 R. R. 249). Every local authority must provide that all drains, closets, etc., within their district are constructed and kept so as not to be a nuisance or injurious to health (P. H. Act, 1875, s. 40). On written complaint that any drain, etc., is a nuisance or injurious to health, they may empower their officers to enter and examine the premises complained of. If the drain, etc., on examination appears to be in bad condition, or to require alteration or amendment, the local authority shall forthwith give the owner or occupier of the premises notice to do the necessary work; and, in default, may themselves do the work at the expense of the owner (ibid., s. 41). The local authority seem to be the sole judges of what works are necessary (Hargreaves v. Taylor, 1863, 3 B. & S. 54). Among the things enumerated in sec. 91 as nuisances, which may be dealt with summarily, are-any cesspool, drain, or ashpit, so foul or in such a state as to be a nuisance or injurious to health." The local authority, on being satisfied of the existence of the nuisance, are to serve a notice on the person by whose act, default, or sufferance the nuisance arises or continues, or, if such person cannot be found, on the owner or occupier of the premises on which the nuisance arises, requiring him to abate the nuisance, and to execute such works and do such things as may be necessary for that purpose (s. 94). If the notice is not complied with, the case is brought before a Court of summary jurisdiction, who, if satisfied that the nuisance exists, or is likely to recur, shall make an order requiring the abatement of the nuisance, and the execution of any works necessary for that purpose (s. 96). These powers have frequently been invoked for the purpose of remedying nuisances arising from defective drains; and, when properly enforced, are effective.

In London the definition of sewer is the same as that given by the P. H. Act; but sometimes a drain may serve more than one house, as that word includes "any drain for draining any group or block of houses by a combined operation under the order of any vestry or district board" (18 & 19 Vict. c. 120, s. 250; vide infra).

It has frequently been decided that where a pipe, supposed to be a private drain, takes the sewage of two or more houses, it ipso facto becomes a sewer (Humphries v. Cousins, 1877, 2 C. P. D. 239; St. Martin's Vestry v. Bird, [1895] 1 Q. B. 428). In such cases the drain becomes a sewer from the point where it receives the sewage of the additional house (Kershaw v. Taylor, [1895] 2 Q. B. 471). The result of this state of the law was found to be that builders, by making a drain serve two or more houses-often without the sanction or even the cognisance of the sanitary authority-were enabled to get rid of the liability to keep such drain in repair, which would properly attach to themselves or to those who should subsequently become owners of such houses, and to shift the burden on to the local authority, ie. the ratepayers of the district generally. A partial remedy for this anomaly has been provided by the P. H. Act, 1890, 53 & 54 Vict. c. 59, s. 19, in districts. where Part III. of that Act has been adopted by the local authority. For the purpose of that section, the definition of the word "drain" is extended so as to include a drain used for the drainage of more than one

building, which would otherwise be deemed a sewer; and it is enacted that where two or more houses belonging to different owners are connected with a public sewer by a single private drain, the local authority may, in cases where such drain is a nuisance or injurious to health, require the owner or occupier of the premises to do the necessary works to put it right; and, if they have to do such works themselves, may recover the expenses of so doing from the owners of the houses, in such shares and proportions as shall be settled by their surveyor or (in case of dispute) by a Court of summary jurisdiction. The meaning of the section has been much discussed in the Courts. It may now be taken as settled that it only takes drains which serve more than one house out of the definition of sewers, for the purpose of the section, i.e. for the purpose of charging the cost of their repair on the owners of the property in which they are situate, instead of the local authority (Bradford v. Mayor of Eastbourne, [1896] 2 Q. B. 205; Thomson v. Mayor of Eccles, [1905] 1 K. B. 110). The case of the drain serving several houses belonging to one owner is not provided for; it is a sewer, as it is only for the purposes of sec. 19, and so far as that section applies, that such a pipe is to be considered a drain (Bradford v. Mayor of Eastbourne, Jackson v. Wimbledon U. D. C., [1905] 2 K. B. 27).

If pipes connected with several houses belonging to one owner, which by the definition are sewers and not drains, discharge into a pipe which would be a drain within the meaning of this section, and so communicate with the main sewer, the pipe is not to be considered a drain, but must be repaired by the local authority as a sewer (Wood Green D. C. v. Joseph, [1907] 1 K. B. 152). Many judges have pointed out that this legislation requires amendment. When Parliament will put matters on a rational footing remains to be seen.

Sewers. By sec. 13 of the P. H. Act, 1875, all existing and future sewers (as defined by sec. 4, supra) within the district of a local authority-together with all buildings, works, materials, and things belonging thereto vest in, and are under the control of, that authority. The local authority thus become owners of so much of the soil as is occupied by the sewer, so long as it is so occupied (Taylor v. Oldham Corporation, 1876, 4 Ch. D. 395); if, however, the sewer should cease to exist, the property in the ground which it had occupied would revert to the landowner (Rolls v. St. George's, Southwark, 1880, 14 Ch. D. 785). Pipes laid for sewers, but which, for want of outfall, cannot carry off sewerage, are not sewers, and so do not vest in the local authority (Meader v. West Cowes Board, 1892, 67 L. T. 454); and the Act excepts from the sewers which so vest (1) sewers made by any person for his own profit, or by a company for the profit of the shareholders; (2) sewers made for the purpose of draining, preserving, or improving land, under a local or private Act of Parliament, or for irrigating land; (3) sewers under the authority of any commissioners of sewers (see infra). By sec. 14 a local authority may purchase or acquire any sewer or any right of making, or of user, or other right in or respecting a sewer; and by sec. 18 they may from time to time enlarge, lessen, alter the course of, cover in, or otherwise improve any sewer belonging to them; they may also discontinue, close up, or destroy any sewer that in their opinion has become unnecessary, on condition of providing another for the use of any person served by the one so discontinued. By sec. 16 a local authority may carry their sewers through, across, or under any street, public or private, within their district, and also, after giving

reasonable notice, through private lands, wherever it appears to their surveyor necessary to do so. They are not obliged to purchase any land for the purpose (Hill v. Wallesey Board, [1894] 1 Ch. 133), but must, of course, compensate the landowner for any injury caused by the construction of the sewer. This power does not extend to works for disposal of sewage, e.g. a pumping station. For such purposes land must be acquired by purchase (King's College v. Uxbridge D. C., [1901] 2 Ch. 761).

Sec. 15 enacts that 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; and sec. 19, that they shall cause all sewers belonging to them to be constructed, covered, ventilated, and kept, so as not to be a nuisance or injurious to health, and to be properly cleansed and emptied. The meaning of these sections has been frequently discussed in cases where plaintiffs have sought to make local authorities responsible for failure to discharge the duties so imposed. Sec. 299 provides that the Local Government Board may interfere, where complaint is made that a local authority have made default in providing their district with sufficient sewers, or in the maintenance of existing sewers, and may order the necessary works to be carried out within a limited time. Obedience to the order may be enforced by a writ of mandamus, or the Local Government Board may appoint some person to perform the duty at the expense, and with the powers of, the defaulting local authority. The discretion of the Local Government Board in making or refusing these orders is unfettered. If they refuse to make an order, the Courts will not grant a mandamus to compel them to do so (R. v. Tottenham Board, 1893, 9 T. L. R. 414); and where an order has been made, the Courts consider themselves practically bound to grant a mandamus to enforce obedience to it (R. v. Staines Board, 1893, 69 L. T. 714). In case default is made by a rural district council, there is an alternative appeal to the County Council instead of to the Local Government Board, under secs. 16 and 19 of the Local Government Act, 1894, 56 & 57 Vict. c. 73. The County Council in such cases may assume the powers and duties of the defaulting district council for the purpose of the matter complained of, or may make an order similar to that which the Local Government Board can make, and enforce compliance with it as they can. The County Council can only act on complaint by Parish Council or meeting; while the Local Government Board can act on any complaint which they consider well founded, from whatever source it comes. No one, except the Local Government Board, has control over an urban sanitary authority. An individual who is aggrieved by reason of adequate sewers not being provided, cannot maintain an action for damages against the local authority for their neglect to perform this statutory duty, even though he can show that this neglect has caused pecuniary loss to himself (Robinson v. Mayor of Workington, [1897] 1 Q. B. 619). Nor can he invoke the assistance of a Court of justice, instead of the Local Government Board, by an action claiming a mandamus to the local authority to perform their statutory duty (Peebles v. Oswaldtwistle Urban District Council, [1897] 1 Q. B. 625; Passmore v. Oswaldtwistle D. C., [1898] A. C. 387). A local authority may, however, on an information filed in the name of the Attorney-General, be restrained from allowing their sewers to cause a permanent and serious nuisance (A.-G. v. Mayor of Basingstoke, 1876, 45 L. J. Ch. 726); but cannot be restrained in pro

ceedings at the suit of a private individual. Where, however, injury is caused by reason, not of the nonfeasance or failure of a local authority to perform their statutory duty, but of negligence in its performance, an aggrieved individual has a right of action (White v. Hindley Board, 1875, L. R. 10 Q. B. 214; Hammond v. St. Pancras Vestry, 1874, 9 L. R. Q. B. 157; Blackmore v. Mile End Vestry, 1882, 9 Q. B. D. 451).

The construction and management of sewers and drains in the metropolis is regulated by different statutes (the Metropolis Management Acts, 1855 to 1898). Their provisions are in most respects similar to those of the P. H. Acts, but are not identical. By the definition clause of the Act of 1855, 18 & 19 Vict. c. 120, s. 250, drain shall mean and include any drain of, and used for the drainage of, one building only, or premises within the same curtilage, and made merely for the purpose of communicating with a cesspool or other receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed, and shall also include any drain for draining any group or block of houses, by a combined operation, under the order of any vestry or district board; and the word "sewer" shall mean and include sewers and drains of every description, except drains to which the word "drain," interpreted as aforesaid, applies. Power to approve of houses being drained by a combined operation is given by the Act. Questions have frequently arisen as to whether a pipe conveying sewage from several houses was a combined drain repairable by the owners of the premises or a sewer repairable by the local authority. The result of the cases seems to be that such a pipe is a sewer and not a drain, unless it can be shown that it was constructed as a combined drain with the sanction and approval of the authority having jurisdiction at the time of its construction (Bateman v. Poplar Bd., 1886, 33 C. D. 360; Kershaw v. Taylor, [1895] 2 Q. B. 471). The subsequent connection of another drain, even if unauthorised, may convert such combined drain into a sewer (Green v. Newington Vestry, [1898] 2 Q. B. 1).

The law was carefully considered, and the effect of the previous decisions collated by Channell, J., in the case of Heaver v. Fulham Borough Council, [1904] 2 K. B. 383. When a plan for the erection of several houses drained by one drain had been approved by the vestry, he drew the inference that the combined drain had been constructed with their approval. He also held that if a pipe had been wrongfully connected with a drain by the owner of the property, that fact would not entitle him to claim that the drain was thereby converted into a sewer, whatever rights it might confer on an innocent purchaser.

Cesspools. The drains of all houses may now be required to communicate with a public sewer, where there is one within 100 feet of the house; and if there is none, then into such covered cesspool or other place, not being under a house, as the sanitary authority direct (P. H. Act of 1875, s. 23). In urban districts sewers are usually available, but in rural districts drains still commonly communicate with cesspools. They are private property; but sanitary authorities have ample powers and duties for preventing them from becoming nuisances. It is their duty to provide that all cesspools within their district be so constructed and kept as not to be a nuisance or injurious to health (s. 40). For this purpose they can empower their surveyor or inspector of nuisances to enter premises and cause the ground to be opened, and examine any cesspool reported to be a nuisance or injurious to health; and if the

VOL. V.

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