UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE 
 
 PEIVATE STKEET WORKS 
 ACT, 1892 
 
 BEING 
 
 BY 
 
 JOSHUA SCHOLEFIELD, 
 
 CERTIFICATE OF HONOUR C.L.E., 
 OF THE MIDDLE TEMPLE AND NOBTH-EASTERN CIRCUIT, BARRISTER-AT-LAW, 
 
 AND 
 
 GERARD R. HILL, M.A., 
 
 SOME TIME EXHIBITIONER OF BALL. COLL., OXFORD, 
 OF THE INNER TEMPLE AND NORTH-EASTERN CIRCUIT, BARBISTER-AT-LAW 
 
 (.Tiritit Authors of " Appeals from Justices of the. Peace."*) 
 
 LONDON : 
 
 BUTTERWORTH & CO., 12, BELL YARD, TEMPLE BAR, W.C. 
 
 Xaw fmblfsbers. 
 
 1902.
 
 f 
 
 BRADHUBY, AGNEW, & CO. LD., PBINTKBS, 
 LONDON AND TONBHIDOE.
 
 j PREFACE. 
 
 hk 
 
 IN view of the wide powers conferred by the Private 
 Street Works Act, 1892, and of the extent to which 
 sanitary authorities have already availed themselves of 
 such powers, it is somewhat surprising to find that there 
 is in existence no work dealing fully and exclusively with 
 the provisions of the Act. 
 
 The bulky and expensive treatises on Public Health 
 Law in general include, of course, some reference to this 
 statute, as one of the many which have been from time 
 to time passed for the amendment and extension of the 
 principal Act of 1875. In none of them, however, has 
 the subject received the full consideration which, in the 
 judgment of the Authors, its importance deserves. 
 Moreover, such treatises are inaccessible to many persons 
 officially concerned in the practical working of the Act, 
 or (as owners of property) pecuniarily interested in its 
 operation. 
 
 The present work is an attempt to supply a practical 
 and self-contained manual for the use primarily of those 
 members of the legal profession who may be called upon 
 to consider the subject, and of clerks to the various 
 local authorities, who may have to advise their boards 
 as to the desirability of preceding under the Act, and 
 as to the procedure to be followed in subsequently 
 putting it into effect. The Authors venture to hope,
 
 iv PREFACE. 
 
 however, that it may also be found intelligible by 
 laymen, interested in property as owners or agents, who 
 may desire to understand their own rights, and the 
 powers of a local authority, and, possibly, to oppose 
 proposals for private street improvements. 
 
 The importance of the Act, and the number of local 
 authorities already working under it, may be judged from 
 the following facts : In their circular letter to local 
 authorities, dated 31st January, 1893, the Local Govern- 
 ment Board, after discussing its provisions, concluded 
 thus: "It will be seen that in several important par- 
 ticulars the provisions of the new Act differ very 
 materially from those of the Acts of 1875 and 1890, 
 which, when the Act is adopted, it will supersede ; and 
 the Board may suggest that the sanitary authority 
 should consider whether it might not be advantageous 
 that they should adopt the Act, and thus secure the 
 additional powers which its adoption would confer 
 upon them." Between that date and March, 1902, 
 437 urban district councils adopted the Act, and 156 
 Orders were issued empowering rural district councils 
 to avail themselves of its provisions. During the years 
 1898 1901 a sum averaging no less than 1 millions 
 of pounds per annum was spent on private street and 
 other similar improvements, exclusive of sums repaid in 
 respect of loans and interest on loans. 
 
 A perusal of the Table of Contents will enable the 
 
 reader to understand the method in which the Authors 
 
 \ 
 
 have attempted to deal with their subject. In the 
 Appendix will be found a full collection of Forms and 
 Precedents, together with a copy of the Act. Eelevant
 
 PREFACE. v 
 
 sections of other statutes have also been set out verbatim, 
 either in the Appendix, or in their appropriate context in 
 the body of the work. 
 
 The Authors will be obliged to any gentleman who will 
 send them a note of any error, or suggestions for a 
 future edition. 
 
 J. S. 
 G. E. H. 
 
 1, KING'S BENCH WALK, E.G. 
 July, 1902.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 PREFACE iii 
 
 TABLE OF CASES CITED . . . . . xv 
 
 TABLE OF STATUTES . . . . . . . . . . . . xix 
 
 CHAPTEE I. 
 
 OBJECT AND SCOPE OF THE PRIVATE STREET 
 WORKS ACT, AND ITS ADVANTAGES OVER 
 PREVIOUS LEGISLATION ON THE SUBJECT. 
 
 Need for legislation on the subject . . . . . . . . 1 
 
 Due to the rapid growth of towns . . . . . . . . 1 
 
 Earlier attempts to meet this need . . . . . . . . 2 
 
 Public Health Act, 1848, s. 69 . . . . . . 2 
 
 Public Health Supplemental Act, 1852, s. 13 . . . . 2 
 
 Public Health Act, 1875, s. 150 2 
 
 Building bye-laws alone not sufficient . . . . . . . . 2 
 
 Their deficiencies . . . . . . . . . . . . 2 
 
 Public Health Act, 1875, ss. 150 152 3 
 
 Practical defects in these sections . . . . . . . . 3 
 
 How far such defects cured by the present Act . . . . 4 
 
 Its practical advantages over earlier Acts . . . . . . 4, 5 
 
 Its general scope . . . . . . . . . . . . . . 5 
 
 It is a Public Health Act . . . . . . . . . . 5 
 
 Where in force it excludes ss. 150 : 152 . . . . . . 6 
 
 Powers conferred by it are cumulative . . . . . . 6 
 
 CHAPTER II. 
 
 WHAT AUTHORITIES MAY TAKE ADVANTAGE OF 
 THE ACT. 
 
 It applies to England, Wales, and Berwick . . . . . . 7 
 
 I. In urban districts : 
 
 The urban district council may adopt it by resolution . . 7 
 
 (i.) Notice of meeting . . . . . . . . . . 7 
 
 (ii.) Procedure at meeting . . . . . . . . 8 
 
 (iii.) Publication of resolution . . . . . . 8 
 
 Evidence of due adoption . . . . . . . . . . . . 9
 
 viii TABLE OP CONTENTS. 
 
 PAGE 
 
 II. In rural districts : 
 
 The Local Government Board may by Order apply the Act 9 
 
 Application for such Order by the rural district council . . 10 
 Such Order usually made only in respect of specified 
 
 streets . . . . . . . . . . . . . . 11 
 
 And usually excludes " sewering" powers . . . . 11 
 
 CHAPTEE III. 
 
 POWERS CONFERRED BY THE PRIVATE STREET 
 WORKS ACT. 
 
 Section 6(1) ' .. .. .. 12 
 
 What streets an authority may deal with . . . . . . 12 
 
 " Street "definition of . 12,13 
 
 Includes places in all respects private . . . . . . 14 
 
 May include a strip added to old highway . . . . 15 
 " Highivay repairable by the inhabitants at large" 
 
 (i.) What is a highway? .. 16 
 
 Kinds of highways . . . . . . . . . . 16 
 
 Need not be a thoroughfare . . . . . . . . 16 
 
 (ii.) How may a highway be created ? 
 
 A. By prescription . . . . . . . . . . 17 
 
 B. By dedication and user . . . . . . . . 18 
 
 Dedication a question of fact . . . . . . 18 
 
 Proof of dedication . . . . . . . . . . 19 
 
 Evidence of user . . . . . . . . 20 
 
 ,, ,, repairs, etc. .. .. .. 21 
 
 ,, ,, reputation . . . . . . 22 
 
 ,, as to gates, bars, notices, etc. . . 22 
 
 Length of user . . . . . . . . . . 24 
 
 Who can dedicate a highway ? 
 
 The Crown . . .25 
 
 Corporate body . . . . . . . . 25 
 
 Private individuals , . . . . . . . 26 
 
 Limited owners . . . . . . . . 26 
 
 Unknown owners . . . . . . . . 27 
 
 An " awarded" private road may be dedicated . . 27 
 
 Also a turnpike road when the Act has expired . . 28 
 
 How far a dedication may be limited or qualified 28 
 
 User, as evidence of adoption . . . . . . 29 
 
 C. Creation under statutory powers . . . . . . 29 
 
 Width of highway 30 
 
 Extinction of highway . . . . . . . . 31
 
 TABLE OF CONTENTS. ix 
 
 (iii.) What highways are repairable by the inhabitants at 
 
 large ? 
 
 Common law liability of the parish . . . . 31 
 Exceptions: (i.) Customary liability of a township 31 
 (ii.) Liability of individiial or corpora- 
 tion ratione dausurce, by pre- 
 scription, or under statute . . 32 
 (iii.) Highways repairable by no one . . 32 
 
 Highway Act, 1835, s. 23 32 
 
 Its effect 34 
 
 The required formalities may in a proper case 
 
 be presumed . . . . . . . . . . 35 
 
 Statutory duty to repair . . . . . . . . . . . . 36 
 
 Two classes of highways repairable by the inhabitants at large 37 
 
 " Part of a street" meaning of . . . . . . . . 38 
 
 Do the words contemplate a transverse or longitudinal 
 
 section? .. 39 42 
 
 " To the satisfaction of the urban authority : may from time 
 
 to time resolve " : effect of these words . . 42 
 
 (i.) Exercise of sewering powers . . . . . . 43 
 
 (ii.) Exercise of other powers . . . . 45 
 
 What work an authority may do . . . . 46 
 
 How far a street may be altered . . . . . . . . 46 
 
 Incidental works . . . . . . . . . . . . 47 
 
 Compensation to adjoining owners. . .. .. .. 47 
 
 Expenses of private street works 
 
 How to be defrayed (s. 23) . . . . . . . . . . 48 
 
 By urban authorities . . . . . . . . . . 48 
 
 By rural authorities . . . . . . . . . . 48 
 
 Borrowing powers . . . . . . . . . . . . 49 
 
 Accounts, etc. . . . . . . . . . . . . . . 50 
 
 The authority may contribute towards the cost (s. 15) .. 50 
 
 Apportionment on premises and owners. . . . . . . . 51 
 
 (a) Special exemptions 
 
 Churches, etc. (s. 16) . . . . . . . . . 51 
 
 Railway and canal companies (s. 22) . . . . . . 52 
 
 Thames Conservancy (s. 26) . . . . . . 53 
 
 (b) Liability apart from special exemptions . . 53 
 Basis of apportionment (s. 10) . . . . . . . . 54 
 
 "Premises": "oivner": definitions of .. .. 55 
 
 Premises which are, or are not, included 56, 57 
 
 Crown, exemption of . . . . . . . . . . 58 
 
 " Owner " : . . . . . . . . . . . . 58 
 
 A trustee, or agent, may be . . . . . . 59 
 
 Who is, in the case of leases . . . . . . 59
 
 x TABLE OF CONTENTS. 
 
 PAGE 
 
 " Fronting, adjoining, or abutting " . . . . . . 60 
 
 Difficulties in construing . . . . . . . . 60 
 
 " Access to which is obtained, etc" . . . . . . 62 
 
 What premises are included . . . . . . 62 
 
 CHAPTER IV. 
 
 PROCEDURE. 
 
 I. Preliminary 
 
 (1) The first resolution . . . . . . . . . . 64 
 
 Its form . . . . . . . . . . . . . . 64 
 
 (2) The surveyor's duties . . . . . . . . . . 65 
 
 (i.) Specification . . . . . . . . . . 65 
 
 (ii.) Estimate . . . . . . . . . . 65 
 
 (iii.) Provisional apportionment . . . . . . 65 
 
 (3) Resolution of approval . . . . . . . . . . 66 
 
 (4) Publication and notice thereof .. .. .. .. 66 
 
 Mode of service . . . . . . . . . . . . 67 
 
 II. Objections, determination of objections and appeals . . 68 
 
 (1) Objections under s. 7 . . . . . . . . . . 69 
 
 Who can object . . . . . . . . . . . . 69 
 
 Notice of objections . . . . . . . . . . 69 
 
 Grounds of objection open . . . . . . 69 72 
 
 Determination of objections . . . . . . . . 73 
 
 The hearing . . . . . . . . . . . . 74 
 
 Costs . . . . . . . . . . . . . 75 
 
 Appeals by special case and to sessions . . . . 75 
 
 (2) Objections under s. 12 (2) 76 
 
 (3) Objections not specifically provided for . . . . 76 
 Appeal by memorial to the Local Government Board 77 
 Position of an owner not served with notices . . 79 
 
 III. Subsequent proceedings down to final apportionment . . 79 
 Amendment of scheme by authority (s. 11) .. .. 79 
 Final apportionment . . . . . . . . . . . . 80 
 
 Objections to it under s. 12 (2) . . . 80 
 
 How to be determined . . . . . . . . . . 81 
 
 CHAPTER V. 
 
 RECOVERY OF PRIVATE STREET WORKS 
 EXPENSES. 
 
 Various modes of recovery . . . . . . . . . . 82 
 
 As private improvement expenses (s. 12) . . . . . . . . 82 
 
 (i.) Rate upon occupier .. .. .. .. .. 82 
 
 Occupier's remedy against owner . . . . . . 83
 
 TABLE OF CONTENTS. xi 
 
 PAGE 
 
 Redemption of rate . . . . . . . . . . 84 
 
 Recovery of rate by summary proceedings . . . . 85 
 
 (ii.) Payment by instalments . . . . . . . . 85 
 
 Recovery from owner or occupier . . . . . . 86 
 
 (a) Summarily . . . . . . . . . . 86 
 
 Time for proceedings . . . . . . . . 86 
 
 (b) In county court . . . . . . . . 87 
 
 Time for proceedings . . . . . . . . 87 
 
 Recovery summarily or by action under s. 14 . . . . . . 88 
 
 The period of limitation applicable . . . . . . . . 88 
 
 From what date it runs 
 
 (a) In summary proceedings . . . . . . . . 89 
 
 (ft) In other proceedings . . . . . . . . . . 90 
 
 Effect of s. 14 upon s. 12 90 
 
 Must an authority elect between them . . . . . . 91 
 
 CHAPTER YE. 
 THE CHARGE AND ITS INCIDENCE. 
 
 When it attaches . . . . . . . . . . . . . . 94 
 
 How enforced . . . . . . . . . . . . . . 95 
 
 Register of charges to be kept . . . . . . . . . . 96 
 
 Limited owners 
 
 Their power to charge the premises . . . . . 96 
 
 Landlords and tenants . . . . . . . . . . . 97 
 
 Vendors and purchasers . . . . . . . . . . . . 97 
 
 CHAPTER VII. 
 ADOPTION OF PRIVATE STREETS. 
 
 (a) Powers of an authority . . . . . . . . . 99 
 
 Interference with private rights . . . . . 100 
 
 Compensation . . . . . . . . . . . . . 103 
 
 (b) Duties of an authority . . . . . . . . . . 103 
 
 APPENDIX A. 
 
 PRIVATE STREET WORKS ACT, 1892 105 
 
 LOCAL GOVERNMENT ACT, 1894, s. 25 (1) 115 
 
 PUBLIC HEALTH ACT, 1875 
 
 s. 4 .. .. .. .. ..116 
 
 s.13 117 
 
 s.lo 117 
 
 s. 18 .. ..118 
 
 s. 144 . . . . 118 
 
 s. 146 118
 
 xii TABLE OF CONTENTS. 
 
 PAGE 
 
 PUBLIC HEALTH ACT, 1875 continued. 
 
 s.149 119 
 
 s. 150 119 
 
 s. 152 . . 120 
 
 s. 161 121 
 
 s. 207 121 
 
 s. 208 122 
 
 s. 213 122 
 
 s. 214 123 
 
 s. 215 123 
 
 s. 229 . . . . 124 
 
 s. 230 125 
 
 s. 232 127 
 
 s. 233 127 
 
 s. 234 128 
 
 s. 236 129 
 
 s. 237 129 
 
 s. 242 129 
 
 s. 243 129 
 
 s. 251 130 
 
 s. 256 130 
 
 s.257 131 
 
 s. 2*9 132 
 
 s. 261 132 
 
 s. 262 132 
 
 s. 266 132 
 
 s. 267 132 
 
 s. 268 133 
 
 s. 269 133 
 
 s. 276 . . . . 135 
 
 s. 294 135 
 
 s. 295 135 
 
 s. 306 135 
 
 s. 308 135 
 
 APPENDIX B. 
 FORMS AND PRECEDENTS. 
 
 A. URBAN AUTHORITIES 
 
 1. Notice to clerk of members' intention to move 
 
 adoption of Act . . . . . . . . . . 137 
 
 2. Notice of meeting at which adoption is to be moved 137 
 
 3. Form of resolution 138 
 
 4. Notice of resolution (for publication) . . . . 138
 
 TABLE OF CONTENTS. xiii 
 
 B. EURAL AUTHORITIES 
 
 5. Notice of intention to move that application be made 
 
 to Local Government Board . . . . . . 139 
 
 6. Notice of meeting . . . . . . . . . . 139 
 
 C. URBAN AND EURAL AUTHORITIES 
 
 7. Eesolution to do private street works . . . . 139 
 
 8. Specification and .estimate . . . . . . . . 140 
 
 9. Provisional apportionment . . . . . . . . 140 
 
 10. Eesolution approving specifications, &c. . . . . 143 
 
 11. Notice thereof (for service) . . . . . . 143 
 
 12. Notice of objections to provisional apportionment 143 
 
 13. Notice of hearing of objections . . . . . . 144 
 
 14. Final apportionment . . . . . . . . . . 145 
 
 15. Notice thereof . . . . . . . . . . . . 146 
 
 16. Notice of objections to final apportionment . . 146 
 
 17. Notice of hearing of objections . . . . . . 146 
 
 18. Declaration by authority under s. 19 .. .. 147 
 
 19. Application to authority under s. 20 . . . . 147 
 
 20. Declaration by authority under s. 20 . . . . 148 
 
 INDEX 149
 
 TABLE OF CASES. 
 
 PAGE 
 
 Aberdeen, City of v. Watt ... 66 
 Angell v. Paddington ... 56 
 
 Angus v. Dalton ... ... 17 
 
 Arnold v. Blaker ... 29, 100 
 Attorney-General r. Bidder 100, 
 
 103 
 
 v. Horner 28 
 
 v, "Wands- 
 worth ... ... ... 50 
 
 Austerberry i: Oldham Cor- 
 poration 29, 38 
 
 Bacup Corporation v. Smith 59 
 
 Barraclough r. Johnson ... 22 
 Barry and Cadoxton Local 
 
 Board v. Parry ... ... 45 
 
 Bateman v. Bluck ... ... 16 
 
 Belmore v. Kent County 
 
 Council ... 30 
 
 Bermondsey Vestry v. Brown 28 
 Birmingham Corporation r. 
 
 Baker 95 
 
 Blackburn Corporation v. 
 
 Sanderson 87,88 
 
 Bonella v. Twickenham 
 
 Local Board 43,45 
 
 Bourke v. Davis 17 
 
 Bowditch v. Wakefield Local 
 
 Board 57, 59 
 
 Bo wen r. James ... ... 59 
 
 British Museum v. Finnis ... 24 
 
 Broadbent v. Shepherd ... 59 
 Butler v. Gravesend Urban 
 
 Authority 67 
 
 Campbell v. Lang and others 
 Carey v. Kingston-on-Hull... 
 Caudwell v. Hanson 
 
 PAGE 
 Chinnock f. Hartley Witney 
 
 Kural District Council ... 21 
 Christ Church Enclosure Act, 
 
 He 58 
 
 Clacton Local Board v. 
 
 Young 39,40 
 
 Cook v. Montague 59 
 
 Cubitt v. Maxse 29,30 
 
 Davies v. Stephens 21,24 
 
 Da wes v. Hawkins ... ...24,28 
 
 Deponthieu v. Pennefeather 36 
 Derby Corporation v. Grudg- 
 ings... ... ... ... 79 
 
 Dryden v. Putney Overseers 50 
 
 Eccles v. Wirrall Rural 
 
 Sanitary Authority ... 79 
 Eddleston v. Francis ... 91 
 
 Empson v. Metropolitan 
 
 Board of Works 8 
 
 Evelyn v. Merrielees ... 30 
 Eyre t: New Forest Highway 
 Board 26,35 
 
 Fenwick r. Croydon Rural 
 
 Sanitary Authority ...11, 14 
 Fisher v. Prowse ... 28, 100 
 
 Foster v. L. C. & D. Ry. Co. 25 
 Foulger r. Arding ... ... 97 
 
 Fulham Vestry r. Minter ...55, 57 
 
 Gibson t: Preston Corporation 38 
 
 Gonty v. M. S. & L. Ry. Co. 25 
 
 Gould c. Bacup Corporation 91 
 Grand Junction Canal v. 
 
 Petty 25,28 
 
 G. E. Ry. tr. Hackney Board of 
 
 Works 56
 
 XVI 
 
 TABLE OF CASES. 
 
 PAGE 
 
 G. W. Ry. r. Solihull Rural 
 
 District Council 26 
 
 Greece v. Hunt ... ... 89 
 
 Greenwich Board of Works 
 r. Maudsley 20,29 
 
 Handsworth Local Board r. 
 Taylor ... 40,42,44,45 
 
 Handsworth Urban District 
 Council c. Derrington ... 44 
 
 Harper r. Charlesworth ... 26 
 
 Healey v. Batley 24,35 
 
 Heston and Isleworth Urban 
 Council r. Grout ... ... 6 
 
 Higgins r. Harding 56 
 
 Holland (Lady) r. Kensing- 
 ton Vestry ... ... ... 60 
 
 Homsey Local Board v. Davis 43 
 
 r. Mon- 
 arch 94 
 
 Hornsey Urban District Coun- 
 cil r. Hennell 58 
 
 Hornsey Urban District Coun- 
 cil r. Smith 57, 95 
 
 Huggins r. Ward ... ... 74 
 
 Jowett v. Idle Local Board... 14 
 
 Leigh-on-Sea Urban District 
 
 Council r. King 35,36 
 
 Le Neve v. Mile End ... 28 
 
 Lethbridge v. Winter ... 23 
 Lightbound r. Higher Beb- 
 
 ington Local Board ...61,62 
 L. & N. W. Ry. r. St. Pancras 56, 60 
 London School Board tr. St. 
 Mary, Islington 57 
 
 Manchester . Chapman ... 62 
 
 Mann v. Brodie 18 
 
 Mansfield Corporation r. 
 
 Butterworth 71 
 
 Maude v. Baildon Local 
 
 Board 14 
 
 Mercer r. Woodgate... 29, 100 
 
 Meyrick v. Attorney-General 58 
 
 Midland Ry. Co. v. Watton... 15 
 
 PAGE 
 
 Mile End Vestry v. White- 
 chapel ... 40 
 
 Morant v. Chamberlain ... 28 
 
 Neeld v. Hendon Urban Dis- 
 trict Council ... ... 30 
 
 Newport Urban Sanitary 
 Authority v. Graham ... 60 
 
 North London Ry. Co. v, St. 
 Mary, Islington ... ... 24 
 
 Paddington Vestry . N. Met. 
 
 Ry. Co 40 
 
 Pelham v. Pickersgill ... 29 
 
 Piggott v. Goldstraw ... 21 
 
 Plumstead Board of Works v. 
 
 British Land Co. ... ... 57 
 
 Poole v. Huskinson ... 17, 22, 28 
 Poplar Board of Works v. 
 
 Lowe ... 59 
 
 Pound and Lord Northbrook 
 
 r. Plumstead ... ... 57 
 
 Property Exchange Co. v. 
 
 Wandsworth 62 
 
 R. v. Barr 26 
 
 r. Bradfield 27 
 
 Brightside Bierlow ...22,37 
 Burnup... ... ... 14 
 
 Chorley 24 
 
 Dukinfield ... 33, 104 
 
 East Mark 25,27 
 
 v. Hawkhurst ... ... 22 
 
 v. Holt 96 
 
 v. Hudson ... 24 
 
 v. Hutchins 70, 76 
 
 r. Leake ... ... ...25, 29 
 
 v. Lloyd 20 
 
 v. Local Government Board 
 
 78, 89, 90 
 
 v. Lordsmere 30,37 
 
 r. Netherthong 37 
 
 v. Newport Local Board... 56 
 r. Northamptonshire . ..21, 28 
 r. Petrie ... 18, 20, 26, 27 
 
 v. St. George, Hanover 
 
 Square 37 
 
 r. Sheffield 31
 
 TABLE OF CASES. 
 
 xvn 
 
 PAGE 
 
 R. r. Thomas ...28,35 
 
 r. United Kingdom Tele- 
 
 graph Co 30 
 
 r. Vice-Registrar of Land 
 
 Registry 90 
 
 r. Wallasey Local Board ... 4 S 
 Richards v. Kessick... H, 15, 62 
 Rishton r. Haslingden Cor- 
 poration 44, 74, 76 
 
 Roberts r. Hunt 34 
 
 r. Karr 23 
 
 Robinson v. Barton Local 
 
 Board 13 
 
 Robertson v. Bristol Corpora- 
 tion 47, 102 
 
 Rugby Charity r. Merry- 
 weather ... ... ... 24 
 
 Rundle r. Hearle ... 21 
 
 St. Giles', Cambervvell v. 
 
 London Cemetery Co. ... 57 
 St. Helens r. Kirkham ... 59 
 St. Mary. Islington r. Cob- 
 
 bett 58 
 
 Nevvingtou r. 
 
 Jacobs 102 
 
 Scott r. Lowe 71 
 
 Seabrooke r. Grays Thurrock 
 
 Local Board ... ... 79 
 
 Sheffield r. Alexander ... 71 
 r. Fulham Board of 
 
 Works 62 
 
 Simcox r. Handsworth Local 
 
 Board 90 
 
 Smith, Re 97 
 
 Souch r. East London lly. Co. 16 
 Southwark, etc., Co. v. 
 
 Hampton Urban Council 76 
 Stock r. Meakin . . .79, 94, 95, 97 
 Surtees v. Woudhouse ... 98 
 Swansea Improvement Co. 
 
 v. Glamorganshire ... 37 
 
 PAGE 
 
 Taylor r. Oldham Corpora- 
 tion... ... 14 
 
 Tottenham Local Board v. 
 
 Rowell 87,94 
 
 Tottenham Local Beard r. 
 Williamson ... ... 59 
 
 Truman, Hanbury <fc Buxton, 
 
 Ltd. v. Kerslake 60 
 
 Turner r. Walsh 25,27 
 
 Twickenham Urban District ' 
 Council r. Munton ... 75 
 
 Vernon v. St. James' Vestry 16 
 
 Wakefield Corporation r. 
 
 Cooke ... 71 
 
 Local Board i: Lee 61 
 
 Urban Sanitary 
 
 Authority r. Mander 
 Walford i: Hackney 
 Walthamstow Local Board r. 
 
 Staines 42,79 
 
 Warner v. Wandsworth Board 
 
 of Works 28 
 
 West London Commercial 
 Bank r. Reliance Building 
 Society ... ... ... 95 
 
 Whitchurch r. Fulham 
 
 Vestry 42 
 
 White v. Fulham Vestry ... 62 
 
 Williams r. Eyton 35,36 
 
 r. Wandsworth 
 
 Board of Works (10 
 
 Wilson r. Bolton Corporation 91 
 Winterbottom r. Lord Derby 26 
 
 Wood r. Veal 26 
 
 Wood ford Urban District 
 
 Council r. Kenwood ...67,69 
 Woodyer r. Hadden... ... 24 
 
 Wortley r. St. Mary, Isling- 
 ton 90 
 
 Yarmouth r. Simmons ... 31 
 Young v. Cuthbertson ... 16 
 
 P.S.
 
 TABLE OF STATUTES. 
 
 PAOE 
 
 20 Geo. 2, c. 42. (Wales and Berwick Act, 1746), s. 3 7 
 
 5 & 6 Will. 4, c. 50. (Highway Act, 1835) 
 
 s. 6 102 
 
 s. 23 30, 32,33,36, 104 
 
 ss. 84 92 31,36 
 
 8 & 9 Viet. c. 18. (F.ands Clauses Consolidation Act, 1845), s. 7 97 
 
 10 & 11 Viet. c. 34. (Towns Improvement Clauses Act, 1847), 
 
 ss. 09, 70 102 
 
 11 & 12 Viet. c. 43. (Summary Jurisdiction Act, 1848), s. 11 ... 85, 
 
 87, 88, 89 
 
 11 & 12 Viet. c. 63. (Public Health Act, 1848), s. 69 2 
 
 13 & 14 Viet. c. 90. (Public Health Supplemental Act, 1850),s. 13 2 
 25 & 26 Viet. c. 61. (Highway Act, 1862) 
 
 s. 36 30 
 
 s. 44 31 
 
 27&2S Viet. c. 101. (Highway Act, 1864), ss. 47, 48 102 
 
 31 & 32 Viet. c. 37. (Documentary Evidence Act, 1868), s. 2 ... 74 
 34 & 35 Viet. c. 70. (Local Government Board Act, 1871), s. 5 ... 74 
 38 & 39 Viet. c. 55. (Public Health Aet, 1875) 
 
 s. 4 13,14,55,116 
 
 s. 13 117 
 
 s. 15 117 
 
 s. 18 118 
 
 s. 144 102, 118 
 
 s. 146 30, 118 
 
 s. 149 102, 119 
 
 s. 150 ... 2, 3, 14, 33, 39, 40, 43, 45, 70, 119 
 
 s. 151 3, 5 
 
 s. 152 3, 99, 100, 120 
 
 s. 161 19,121 
 
 s. 207 48, 121 
 
 s. 208 122 
 
 s. 213 83, 122 
 
 s. 214 83, 123 
 
 s. 215 84, 123 
 
 s. 229 48, 124 
 
 s. 230 49, 125 
 
 s. 232 127 
 
 s. 233 50,127
 
 xx TABLE OF STATUTES. 
 
 38 & 39 Viet. c. 55. (Public Health Act, 1875) 
 
 s.234 50, 128 
 
 s.236 50, 129 
 
 s.237 50, 129 
 
 s. 238 50, 129 
 
 s.239 50, 129 
 
 s. 242 50, 129 
 
 s.243 50, 129 
 
 s. 251 86, 130 
 
 s. 256 8.",, 130 
 
 s.257 55.85,86,89,93,131 
 
 s. 259 132 
 
 s.261 87, 132 
 
 s. 262 132 
 
 s.266 132 
 
 s. 267 10, 67, 74, 132 
 
 s.268 77,80, 133 
 
 s.269 75, 133 
 
 s. 276 10, 135 
 
 s.294 135 
 
 s.295 135 
 
 s. 299 104 
 
 s.306 65, 135 
 
 s.308 47, 103, 135 
 
 Sch., Pt. 1 8. 10 
 
 44 & 45 Viet. c. 41. (Conveyancing and Law of Property Act, 
 
 1881), ss. 18 24 94,95 
 
 45 & 46 Viet. c. 9. (Documentary Evidence Act, 1882), s. 2 ... 74 
 45 & 46 Viet. c. 50. (Municipal Corporations Act, 1882) 
 
 s. 22 8 
 
 Sch. II 8 
 
 51 & 52 Viet. c. 51. (Land Charges Registration and Searches 
 
 Act, 1888) 96 
 
 53 & 54 Viet, c. 59. (Public Health Acts Amendment Act. 1890), 
 
 s. 41 3,99,100 
 
 55 & 50 Viet. c. 57. (The Private Street Works Act, 1S92) 
 
 s.l 5,7,48,75.105 
 
 s.2 6,7,105 
 
 s. 3 (1) 6,7,105 
 
 s. 3 (2) 6.8,9,105 
 
 s.3(3) 6.9,106 
 
 s. 3 (4) 6,9,74,106 
 
 s. 4 6,9,106 
 
 s. 5 12,46,106 
 
 s. 6(1) ... 12,40,53,64,107 
 
 s. 6 (2) 53, 64, 65, 66, 107 
 
 s. 6(3) 66,107 
 
 s.7 4,46,68,6979,107 
 
 s. 8(1) 73,74,75,108
 
 TABLE OF STATUTES. xxi 
 
 PAGE 
 
 55 & 56 Viet. c. 57. (The Private Street Works Act, 1892) 
 
 s. 8 (2) 69,108 
 
 s. 8 (3) 75, 108 
 
 s. 9 (1) 4, 47, 109 
 
 s. 9 (2) 53, 65, 109 
 
 s. 10 4,51,54,64,109 
 
 s. 11 73,79,109 
 
 s. 12 (1) 80, 82, 90,94, 110 
 
 s. 12 (2) 68, 76, 80, 110 
 
 8.12(3) 76,81,110 
 
 s. 13 (1) 5, 55, 82, 91, 93, 110 
 
 8.13(2) 93,96,111 
 
 s. 14 4, 55, 87, 88, 90, 91, 94, 111 
 
 s. 15 4,50,111 
 
 s. 16 5, 51, 111 
 
 s. 17 82, 96, 111 
 
 s. 18 5,49.112 
 
 s. 19 4,99,112 
 
 s. 20 4, 103, 112 
 
 s.21(l) 50,112 
 
 s. 21(2) 50,112 
 
 s. 22 5,52,112 
 
 8.23 48,75,113 
 
 s.24 6,113 
 
 8.25 3,6,113 
 
 8.26 53,113 
 
 Sch., Pt. 1 53, 65, 114 
 
 Sch., Pt, II 66, 114 
 
 56 & 57 Viet. c. 73. (Local Government Act, 1894) 
 
 s. 25(1) 30,115 
 
 s. 59 10 
 
 P.S.
 
 THE PRIVATE STREET WORKS 
 ACT, 1892, 
 
 CHAPTEE I. 
 
 THE OBJECT AND SCOPE OF THE ACT, AND ITS 
 ADVANTAGES OVER PREVIOUS LEGISLATION 
 ON THE SUBJECT. 
 
 THE Private Street Works Act, 1892 (55 & 56 Viet. Need for 
 c. 57), is the latest attempt of the Legislature to solve 
 one of those problems connected with Public Health 
 and Sanitation, to which the rapid growth of urban 
 communities during the last century has compelled 
 attention. 
 
 Throughout the country, villages have developed, and 
 are still developing, with a mushroom-like rapidity of 
 growth into populous manufacturing towns ; and, in the 
 great majority of such cases, the new population has 
 been housed, not along the old highways, but in new 
 streets laid out by the owners of land with the intention 
 of converting their property into remunerative building 
 estates. The result was, and to a certain extent (in 
 spite of building bye-laws) still is, inevitable. The 
 original owner, or the speculative builder (as the case 
 may be), being chiefly concerned to secure the greatest 
 possible return in the shape of rents with the least 
 possible outlay, has in too many instances contented 
 
 p.s. B
 
 OBJECT AND SCOPE OF THE ACT. 
 
 CHAP. I. 
 
 Public Health 
 Act, 1848, 
 s. 69. . 
 
 Public Health 
 Supplemental 
 Act, 1852, 
 s. 13. 
 
 Public Health 
 Act, 1875, 
 s. 150. 
 
 Building bye- 
 laws alone not 
 sufficient : 
 
 their 
 deficiencies. 
 
 himself with crowding into his property the maximum 
 number of dwellings, regardless of the sanitary require- 
 ments of his tenants and the condition of the streets so 
 formed. 
 
 The evil consequences of such a state of affairs, and 
 its injurious effects upon the health of the poorer classes 
 (who were mainly, but by no means exclusively, affected 
 by it), was brought to the notice of Parliament in 1848 ; 
 and the Public Health Act of that year contained a 
 section enabling the Local Board of Health to charge the 
 owners of premises fronting upon any street, " not being 
 a highway," with the cost of properly sewering, levelling, 
 paving, flagging, and channelling such street the inten- 
 tion being to bring home to owners their responsibilities 
 towards the tenants from whom they derived their 
 income. Four years later these powers were extended 
 by being made applicable to any street, "not being a 
 highway repairable by the inhabitants at large," and 
 again in 1875 by the inclusion of the word " lighting." 
 
 Eeference has been made above to the building bye- 
 laws, which are now in operation in almost all urban, 
 and many rural, sanitary districts : it might be thought 
 that such bye-laws, if carefully framed and enforced, 
 would dispense with the necessity for the statutory 
 powers of compulsory paving, etc., with which we are 
 now concerned. Such, however, is not the case ; in 
 the first place, many rural sanitary districts have, or 
 until a recent date had, no bye-laws in force ; secondly, 
 even in sanitary districts (both urban and rural) which 
 have bye-laws, the development of a mere occupation 
 lane into a " street" has often been very gradual, with 
 the result that in the early stages of such development 
 the authority, not realising that a new " street " was in 
 process of formation, has omitted to insist upon work, 
 which subsequent development has shown to be neces- 
 sary ; lastly, bye-laws make no provision for mainten- 
 ance ; and, though sewers once made to the satisfaction
 
 ITS PKACTICAL ADVANTAGES. 3 
 
 of the local authority are thenceforth repairable by the CHAP. I. 
 public, the statutes, which we are now considering, 
 enable an authority to charge upon the owners the 
 cost, not merely of "making up " a road, but also of 
 maintaining it until it is formally adopted as a public 
 highway. 
 
 Eeturning now to the Public Health Act, 1875, we Public Health 
 find that ss. 150 152 (as amended by s. 41 of the Public ss i5o_i,52; 
 Health Acts Amendment Act, 1890, in those districts 
 where the third part of that Act has been adopted), 
 contain a complete code of provisions defining the powers 
 of a sanitary authority (a) in respect of private street 
 works (b), and prescribing the procedure to be adopted : 
 these provisions are (in general) still operative, and a 
 local authority may, if it thinks fit, proceed under them ; 
 but they no longer apply to any district in which the 
 Private Street Works Act is in force (c). Consequently 
 an authority, which is contemplating the execution of 
 private street works, must first consider carefully under 
 which statute it will proceed ; and it is therefore pro- 
 posed to briefly contrast the provisions of the two Acts, 
 and explain the object of the Legislature in passing the 
 later one. 
 
 During the years 1875 1892 defects were found to defects in 
 exist in the working of the above-mentioned sections of 
 the Public Health Act, which gave rise to a large quantity 
 of litigation, and led local authorities to spend consider- 
 able sums of money which they eventually failed to 
 recover from the property owners. In consequence of 
 such defects in the existing general law, it became 
 
 (a) Throughout this work the words " authority " and " local authority " 
 are used as denoting the sanitary authority of the particular district within 
 the meaning of the Public Health and Local Government Acts. 
 
 (b) This convenient term is used for the sake of brevity, as including 
 any or all of the street works which may be carried out at the owners' 
 expense, either under the Public Health Act, or under the Private Street 
 Works Act. 
 
 (c) Section 25. Apparently an adoption of the later Act is an irrevocable 
 step. 
 
 B2
 
 OBJECT AND SCOPE OF THE ACT. 
 
 CHAP. I. 
 
 how far met 
 
 Act, 1892. 
 
 'urther ad- 
 the later Act. 
 
 not unusual for boroughs to obtain private Acts of 
 Parliament enabling them to adopt a better and more 
 economical mode of procedure ; and ultimately in 1892 
 the present statute was passed, modelled largely upon 
 such private Acts, with the intention of providing an 
 alternative code upon the subject for the benefit of 
 authorities who might choose to work under it in 
 preference to that contained in the previous Public 
 Health Acts. 
 
 The chief and glaring defect in the older enactments 
 was that the various owners had no means of contesting 
 the proposals of the authority until the works had been 
 completed : the result was that the authority, after 
 having expended a large sum of money, might at the 
 last moment be met by some fatal objection (e.g., that 
 the street in question was a highway repairable by the 
 inhabitants at large), and might in consequence fail to 
 recover a single penny of the expense incurred by them. 
 The present Act provides for the raising and determina- 
 tion of objections at the outset (s. 7) ; therefore, if 
 ordinary care be exercised in giving the required notices, 
 there is little danger of the authority finding itself 
 saddled with any unforeseen expense (see pp. 67, 68). 
 
 provisions are also inserted in the Private Street 
 Works Act which enable the local authority to themselves 
 contribute to the expenses of the works (s. 15), to 
 recover apportioned expenses by action at any time 
 within six years (s. 14), to secure uniformity as regards 
 drainage, level, etc., between the various streets of a 
 town (s. 9) , and also (where desirable) to take into account 
 in making their apportionment the varying amount 
 of benefit derived by the respective premises (s. 10). 
 Moreover, their powers as to "taking over" streets are 
 more extensive under the later statute (ss. 19, 20). 
 Apparently the only sections which place a local authority 
 in a worse position than they would be under the Public 
 Health Act are s. 7 (d), which allows the justices to
 
 ITS PRACTICAL ADVANTAGES. 
 
 consider the sufficiency and reasonableness of the proposed CHAP. 
 works and the estimated costs, and s. 16, which, whilst 
 repeating the exemption of incumbents and ministers 
 in respect of churches, chapels, etc., conferred by s. 151 
 of the Act of 1875, extends such exemption to trustees of 
 such places, and further provides that the local authority 
 shall bear the share of the property so exempted. There 
 is also a provision (s. 22) exempting railway and canal 
 companies from liability in certain cases ; but, as the 
 cost of this exemption is directed to be borne by the 
 other owners, the authority itself is not affected thereby : 
 this section, however (see pp. 52, 53), appears likely to 
 press most unfairly upon the other owners, and, in cases 
 in which it would apply, it may be a matter for the 
 consideration of the authority whether they should not 
 proceed under the Public Health Act for the express 
 purpose of bringing the company within their net. 
 
 Under either statute (s. 18) the cost of private street 
 works may be spread over a number of years by means 
 of a loan raised with the sanction of the Local Govern- 
 ment Board; and under either statute (s. 13) the share 
 of the cost apportioned on any premises becomes a 
 charge upon such premises ; the Private Street Works 
 Act, however, dispenses with the necessity for an action 
 to enforce such charge, and gives the authority the powers 
 of mortgagees under the Conveyancing Act. 
 
 The result of the foregoing comparison appears to be ComparatiTc 
 that a local authority will as a rule be well advised to the 
 proceed under the later statute, and not under the 
 corresponding sections of the Public Health Acts. 
 
 In the following chapters the provisions of the Private 
 Street Works Act are dealt with in detail in accordance 
 with the scheme of arrangement set out in the Table of 
 Contents. The attention of the reader is here drawn 
 generally to the following facts : the Act is to be con- 
 strued as one with the Public Health Acts (s. 1) ; it
 
 OBJECT AND SCOPE OF THE ACT. 
 
 CHAP. l. is, as regards urban districts, adoptive only, and as 
 regards rural districts can only be applied by an order of 
 the Local Government Board (ss. 2 4) ; where in force 
 it excludes the corresponding portions of the Public 
 Health Acts (e) (s. 25) ; but otherwise the powers con- 
 ferred by it are cumulative, and additional to those 
 conferred by local Acts (s. 24). 
 
 (e) Its adoption does not, however, invalidate a notice previously given 
 under s. 150 : Heston and Isleworth Urban Council v. Grout (1897), 2 Ch. 
 306 ; 66 L. J. Ch. 647 ; 77 L. T. 118 ; 45 W. R. 697 ; affirming 61 J. P. 
 454.
 
 CHAPTEK II. 
 
 WHAT AUTHORITIES MAY TAKE ADVANTAGE OF 
 THE ACT. 
 
 THE Private Street Works Act applies only to England (a) 
 (including, of course, Wales, and the town of Berwick- 
 upon-Tweed) (6). As pointed out in the preceding 
 chapter, it is adoptive, or applicable by order of the 
 Local Government Board, according as the district is 
 urban or rural; and the earlier sections prescribe the 
 conditions upon compliance with which a local authority 
 may take advantage of its provisions. The requirements 
 differ according as the authority is an urban or rural 
 district council (within the meaning of the Public Health 
 and Local Government Acts). 
 
 1. An Urban District Council. The method of adoption Adoption by 
 and procedure are laid down in ss. 2 and 3 : the former "i 
 provides that 
 
 " This Act shall extend and apply to any urban 
 sanitary district in which it is respectively adopted 
 under the provisions of this Act." 
 
 The adoption of the Act is therefore a question of 
 expediency to be decided by the authority itself, and it is 
 carried out by means of a formal resolution. 
 
 The following provisions as to notices, meetings, and 
 publication must be complied with : 
 
 (i.) Section 3 (1) 
 
 "The adoption shall be by a resolution passed Notice of 
 at a meeting of the urban authority ; and one 
 calendar month at least before such meeting 
 
 (a) Section 1. 
 
 (b) 20 Geo. 2, c. 42, s. 3.
 
 APPLICATION OF THE ACT. 
 
 CHAP. II. 
 
 Procedure at 
 meeting. 
 
 Publication of 
 resolution. 
 
 special notice (c) of the meeting, and of the 
 intention to propose such resolution, shall be 
 given to every member of the authority, and the 
 notice shall be deemed to have been duly given 
 to a member of it if it is either 
 
 (a) Given in the mode in which notices to attend 
 meetings of the authority are usually given ; or 
 
 (b) Where there is no such mode, then signed by 
 
 the clerk of the authority, and delivered to the 
 member or left at his usual or last known place 
 of abode in England, or forwarded by post in 
 a prepaid registered letter, addressed to the 
 member at his usual or last known place of 
 abode in England." 
 
 (ii.) In passing the resolution, regard must be had to 
 the standing orders (if any) of the authority, and to the 
 statutory rules governing their proceedings : the latter 
 are to be found in Schedule I. of the Public Health Act, 
 1875, in the case of an urban or rural district council, 
 and in the Municipal Corporations Act, 1882, s. 22 and 
 Schedule II. in the case of a borough council. 
 
 (iii.) The resolution having been duly passed it must 
 be published in the manner prescribed by s. 3 (2) : 
 
 " Such resolution shall be published by advertisement 
 in some one or more newspapers circulating 
 within the district of the authority, and by causing 
 notice thereof to be affixed to the principal 
 doors (d) of every church and chapel (e) in the place 
 
 (c) To enable this notice to be given, some member must first give to the 
 clerk notice of his intention to move the adoption of the Act, and in giving 
 such notice of motion regard must be had to the standing orders, or 
 regulations, of the council. 
 
 (d) Publication on a proper notice board at, or near, the door would 
 appear to be sufficient : Empson v. Metropolitan Board of Works (1861), 
 25 J. P. 677 ; 3 L. T. 624. 
 
 (e) If it be the local custom to post notices on the doors of Noncon- 
 formist chapels, the usual practice must be followed, although as a general 
 rule the words " church or chapel " may be taken as including only those 
 of the Church of England.
 
 URBAN DISTRICT COUNCILS. 9 
 
 to which notices are usually fixed, and otherwise CHAP. II. 
 in such manner as the authority think sufficient 
 for giving notice thereof to all persons interested." 
 
 And by s. 3 (3) : 
 
 " A copy of the resolution shall be sent to the Local 
 Government Board." 
 
 The foregoing requirements having been complied 
 with, the resolution becomes operative at such time, not 
 less than one month after the first publication of the 
 advertisement, as may have been fixed by the resolu- 
 tion ; and thereupon the Act comes into force within the 
 district of the authority (s. 3 (2) ). 
 
 With regard to the formalities required, two points Evidence of 
 must be noticed ; by s. 3 (4) : ado ^ OIi - 
 
 (a) "A copy of the advertisement shall be conclusive 
 
 evidence of the resolution having been passed, 
 unless the contrary be shown." 
 
 (b) " No objection to the effect of the resolution on the 
 ground that notice of the intention to propose the 
 same was not duly given, or on the ground that 
 the resolution was not sufficiently published, shall 
 be made after three months from the date of the 
 first publication of the advertisement." 
 
 2. A Rural District Council. Such an authority cannot Application to 
 merely by resolution adopt the Act ; but by s. 4 :- 
 
 " The Local Government Board may declare that the 
 provisions contained in this Act shall be in force 
 in any rural sanitary district, or any part thereof, 
 and may invest a rural sanitary authority with 
 the powers, rights, duties, capacities, liabilities, 
 and obligations which an urban authority may 
 acquire by adoption of this Act, in like manner 
 and subject to the same provisions as they are 
 enabled to invest rural sanitary authorities with
 
 10 APPLICATION OF THE ACT. 
 
 CHAP. IT. the powers of urban sanitary authorities under 
 
 the provisions of section two hundred and seventy- 
 six of the Public Health Act, 1875." 
 
 Procedure. The course to be adopted when a rural authority desire 
 
 the Local Government Board to confer on them the 
 powers given by the Act is as follows. Some member 
 of the council must give to the clerk notice of his inten- 
 tion to move that application be made to the Local 
 Government Board to put the Act into operation, specify- 
 ing what particular street, or streets, or part of a street, 
 or streets, the notice of motion refers to. When giving 
 such notice of motion regard must be had to any standing 
 orders, or regulations, which may have been made by 
 the council in pursuance of Schedule I. of the Public 
 Health Act, 1875, for by s. 59 of the Local Government 
 Act, 1894, the rules contained in such schedule are made 
 applicable to rural district councils. 
 
 If the council pass the resolution the application will 
 be made to the Local Government Board in the ordinary 
 manner by letter forwarding a copy of the resolution. 
 
 The Local Government Board are to exercise the 
 powers conferred on them by this section " in like manner 
 and subject to the same provisions as they are enabled 
 to invest rural sanitary authorities with the powers of 
 urban sanitary authorities, under the provisions of s. 276 
 of the Public Health Act, 1875." By this section 
 (see p. 135) the powers in question may be granted "by 
 order, to be published in the London Gazette, or in such 
 other manner as the Local Government Board may 
 direct," upon the application of 
 
 (a) " The authority of any rural district; " or, 
 
 (b) " Persons rated to the relief of the poor, the assess- 
 
 ment of whose hereditaments amounts at the least 
 to one-tenth of the net rateable value of such 
 district, or of any contributory place therein."
 
 RURAL DISTRICT COUNCILS. 11 
 
 In practice the application will almost invariably be CHAP. II. 
 made by the authority. 
 
 The section provides that " the provisions " of the Act 
 may be declared to be in force in any " rural sanitary 
 district, or part thereof : " as a rule, however, the Local 
 Government Board do not give a general authority to a 
 rural district council to put the Act in force in the whole 
 of the district, but confine their order to one or more 
 specified streets (/) (or parts thereof). It is also their 
 practice in many cases to declare only certain portions 
 of the Act to be in force ; thus, a rural district council 
 may be invested only with the powers conferred by s. 19 
 as to some particular street, which they are thereby 
 enabled to adopt as a highway repairable by the inhabi- 
 tants at large (see as to this power chapter VII., post) ; 
 and in the majority of cases the provisions with regard 
 to "sewering" are specially excepted from the order 
 declaring the Act to be in force. 
 
 (/) Such an order is not in any way conclusive that the way named in 
 it is in fact a "street" within the meaning of the Act: Fenwick v. 
 Croydon Eural Sanitary Authority (1891), 2 Q. B. 216 ; 60 L. J. M. C. 
 161 ; 40 W. R. 124 ; 55 J. P. 470.
 
 CHAPTER III. 
 
 POWERS CONFERRED BY THE PRIVATE STREET 
 WORKS ACT. 
 
 PAGE 
 
 1 . What streets an authority may deal with - - - 12 
 
 2. What ivork they may do ----- 46 
 
 3. Provision for expenses and apportionment - - 48 
 
 THE gist of the statute is contained in s. 6 (1) which 
 provides that : 
 
 " Where any street or part of a street is not sewered, 
 levelled, paved, metalled, flagged, channelled, 
 made good, and lighted to the satisfaction of the 
 urban authority, the urban authority may from 
 time to time resolve with respect to such street 
 or part of a street to do any one or more of the 
 following works (in this Act called private street 
 works) ; that is to say, to sewer, level, pave, 
 metal, flag, channel, or make good, or to provide 
 proper means for lighting such street or part of a 
 street ; and the expenses incurred by the urban 
 authority in executing private street works shall 
 be apportioned (subject as in this Act mentioned) 
 on the premises fronting, adjoining, or abutting 
 on such street or part of a street. Any such 
 resolution may include several streets or parts of 
 streets, or may be limited to any part or parts of 
 a street." 
 
 The various words and expressions used in this section 
 must be carefully considered in detail ; and the first 
 point to determine is the meaning of the word " street." 
 What is a The interpretation section (s. 5) enacts that 
 
 " street " P 
 
 " The expression ' street ' means (unless the context
 
 STREET. 
 
 otherwise requires) a street as defined by the CgAP - IIL 
 Public Health Acts, and not being a highway 
 repairable by the inhabitants at large." 
 
 The only definition of street contained in the Public 
 Health Acts is to be found in s. 4 of the Public Health 
 Act, 1875, and is to the following effect : 
 
 " In this Act, if not inconsistent with the context, the 
 following words and expressions have the mean- 
 ings hereinafter respectively assigned to them ; 
 that is to say ' Street ' includes any highway 
 (not being a turnpike road), and any public bridge 
 (not being a county bridge), and any road, lane, 
 footway, square, court, alley or passage, whether 
 a thoroughfare or not." 
 
 The use in this definition of " includes " (not " means ") 
 gave rise to a good deal of litigation, for the word " street " 
 is used in the Public Health Act in a variety of contexts, 
 to some of which the ordinary and popular sense of the 
 word is more appropriate than the extended sense ; and 
 Lord SELBORNE laid down (a) that such an interpretation 
 clause does not prevent the word " street " receiving its 
 ordinary, popular, and natural sense whenever that would 
 be properly applicable ; but is meant to enable the word, 
 as used in the Act, when there is nothing in the context 
 or the subject-matter to the contrary, to be applied to 
 some things to which it would not ordinarily be applic- 
 able ; that the meaning of this portion of the interpreta- 
 tion clause was that the provisions contained in the Act 
 as to streets (new or old) should, unless there is some- 
 thing in the subject-matter and the context to the con- 
 trary, be read as applicable to these different things. 
 It being therefore settled that the word " street " may have 
 either of two meanings in the Public Health Act, the 
 courts were from time to time engaged in determining 
 
 (a) Robinson v. Barton Local Board (1883), 8 A. C. 798 ; 53 L. J. Ch. 
 226 ; 50 L. T. 57 ; 32 W. R. 249 ; 48 J. P. 276.
 
 14 
 
 To WHAT STKEETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 It includes 
 
 whether in s. 150 it was used in its ordinary and popular 
 sense, or in the extended sense contemplated by s. 4. 
 
 After considerable fluctuations of opinion (b) it was 
 eventually held (c) , and may now be regarded as settled 
 law (d), that the extended sense of the word is the one 
 applicable in s. 150 ; and there can be no doubt that the 
 same meaning is to be given to it in the present statute. 
 How wide that meaning is will be judged from an 
 examination of a few decisions. In Taylor v. Corporation 
 of Oldham (e), JESSEL, M.E., pointed out that the word 
 " street " clearly extends to places which are in all 
 respects private, and over which the public have no 
 right ; and in the course of the case, his lordship made 
 some observations on the Public Health Act which are 
 well worthy of perusal: "What is the Act for? It is 
 a public health Act. The owners of these private courts 
 and alleys are, of all people in the world, the most averse 
 to laying out money in sanitary works. It is in these 
 places that the poor live, the very people who suffer most 
 from the want of sewerage and drainage, which are so 
 requisite for public health. Is it to be imagined that the 
 Legislature intended to except such places as these from 
 the operation of the Act ? I should say, if the Act were 
 passed for anybody, it must have been meant to include 
 these owners, who, for the sake of gain and acquiring 
 high rents in proportion to the annual value of the 
 wretched tenements they allow the poor, to occupy, 
 neglect ordinary and necessary sanitary precautions. 
 If I were to interpret it by what I might think to be the 
 mind of the Legislature, I should suppose that the first 
 
 (b) See Maude v. Baildon Local Board (1883), 10 Q. B. D. 394 ; 48 L. T. 
 874 ; 47 J. P. 644 ; R. v. Burnup (1886), 50 J. P. 598. 
 
 (c) Jowett v. Idle Local Board (1888), 57 L. T. 928 ; 36 W. R. 138, 530. 
 
 (d) Fenwick v. Croydon Rural Sanitary Authority (1891), 2 Q. B. 216 ; 
 60 L. J. M. C. 161 ; 65 L. T. 645 ; 40 W. R. 124 ; 55 J. P. 470 ; 7 
 T. L. R. 594 ; following the last case and Richards v. Kessick (1888), 52 
 J. P. 756 ; 57 L. J. M. C. 48 ; 59 L. T. 318, and reviewing all the earlier 
 cases. 
 
 (e) (1876), 4 C. D. 395 ; 46 L. J. Ch. 105 ; 35 L. T. 696 ; 25 W. R. 178.
 
 STREET TURNPIKE ROAD HIGHWAY. 15 
 
 people to be included would be the owners of these CHAP. III, 
 crowded courts and alleys, over which the public have no 
 strict rights whatever, but which are intended to be used 
 for the dwellings of the poor, and are unprovided with 
 what, according to modern science, is known to be 
 absolutely necessary for their well-being." 
 
 In one case, where an owner of the soil of a road put 
 up a bar at either end of it, and took tolls from persons 
 using it, it was held that the road might yet be a 
 " street " (/). Again, if a strip of land be thrown open 
 and added to an old highway repairable by the inhabi- 
 tants at large, the justices may hold the added strip to be 
 a street within the meaning of the Act, and this although 
 the particular old highway is within the jurisdiction of 
 another local authority (g). 
 
 In its original form, the incorporated definition of 
 the word " street " was cut down by two provisoes : " not 
 being a turnpike road," and "not being a highway 
 repairable by the inhabitants at large." 
 
 The first exception was repealed (as obsolete) by 
 61 & 62 Viet. c. 22. A turnpike road meant a road 
 which was the subject of a turnpike Act (/). 
 
 The second must be considered carefully and at some What is a 
 length, partly on account of its difficulty, and partly ^airableb 
 because the objection most frequently taken to proposals the inhabitants 
 of a local authority in regard to private street works is, a 
 that the street in question is a highway repairable by the 
 inhabitants at large. The subject may be divided under 
 three heads : 
 
 (1) What is a highway ? 
 
 (2) How may a highway be created ? 
 
 (/) Midland Rail. Co. v. Watton (1886), 17 Q. B. D. 30 ; 55 L. J. M. C. 
 99 ; 55 L. T. 482 ; 50 J. P. 405 ; 34 W. R. 524. 
 
 (g) Richards v. Kessick (1888), 52 J. P. 756 ; 55 L. J. M. C. 48 ; 59 
 L. T. 318.
 
 16 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. (3) "When is a highway repairable by the inhabitants 
 at large ? 
 
 I. WHAT is A HIGHWAY? 
 i.) What is a A highway is a road over which the public at large 
 
 highway ? i . , , T , , 
 
 nave a right of passage. It may be 
 
 Kinds of 
 highway. 
 
 Need not be a 
 thoroughfare. 
 
 A footway only, i.e., a right of passage for pedestrians. 
 
 A pack and prime and drift way, frequently called a 
 bridle way, i.e., a right of passage both for horses and 
 cattle and pedestrians. 
 
 A cart or carriage way, i.e., a right of passage for 
 all purposes. 
 
 It need not, in every case, be a thoroughfare, for, as 
 was pointed out by Lord CAMPBELL, C.J., " There may 
 be a large square with only one entrance to it, and if the 
 owner allows the public to use it without restriction for 
 a great many years, he cannot afterwards turn round 
 and say they were all trespassers " (h) ; and MALINS, V.-C., 
 speaking of a cul-de-sac consisting of a road running 
 between two rows of houses, said " These houses have 
 been built more than twenty years, and the passage has 
 been left open to the public, who have been allowed to 
 enter night and day, whenever they thought fit. That 
 amounts to a dedication to the public, and it makes a 
 way or street so opened a public one " (i). Possibly this 
 statement of the law should be slightly qualified in view 
 of the following passage from a judgment of KAY, J. 
 (which however appears to stand alone) : " But it is 
 argued that a cul-de-sac may be a highway. That is so 
 in a street in a town into which houses open and which 
 is repaired, sewered, and lighted by the public authority 
 
 (h) Bateman v. Bluet; (1852), 21 L. J. Q. B. at p. 409 ; 18 Q. B. 870. 
 
 (i) Souck v. East London Rail. Co. (1873), 16 Eq. at p. 109 ; 42 L. J. Ch. 
 477 ; 21 W. R. 590 ; 37 J. P. 644. See also Vernon v. Vestry of St. James, 
 Westminster (1880), 16 Ch. D. 449 ; 50 L. J. Ch. 81 ; 44 L. T. 229, where 
 the same learned judge reviewed all the previous cases and re-affirmed the 
 above principle ; see also the Scotch cases. Campbell v. Lang and Others, 
 1 Macq. 451, and Young v. Cuthbertson, 1 Macq. 455. 

 
 CREATION OF HIGHWAY BY PRESCRIPTION. 17 
 
 at the expense of the public, ... but I am not aware CtiAr - m - 
 that this law has ever been applied to a long tract of land 
 in the country on which public money has never been 
 expended " ( j). 
 
 II. How A HIGHWAY MAY BE CREATED. 
 A highway may be created either (ii.) How a 
 
 highway may 
 
 A. By prescription. be created. 
 
 B. By dedication and user. 
 
 C. By or under power contained in an Act of 
 Parliament. 
 
 This mode of creating a highway is of little importance A. Prescrip- 
 for the reasons stated in the following extract from a 
 judgment of Lord BLACKBURN, to which it is unnecessary 
 to add anything for the purpose of the present work : 
 " A right of public way may be acquired by prescription 
 . . . the common law period of prescription was time 
 immemorial, and any claim by prescription was defeated 
 by proof that the right claimed had originated within 
 the time of legal memory, that is, since A.D. 1189. This 
 was, no doubt, an unreasonably long period. And some- 
 times by legal fictions of presumed grants, and in part 
 by legislation, the period required for prescription as to 
 private rights has, in many cases, been practically cut down 
 to a much shorter definite period (see Angus v. Dalton) (k). 
 
 " But this has never been done in the case of a public 
 right of way. And it has not been required, though in 
 the way in which the evil of the period of prescription 
 being too long has been avoided, an opposite evil of 
 establishing public rights of way on a very short 
 usurpation has sometimes been incurred. 
 
 "In Poole v. Huskinson (I) Baron PARKE says: 'In 
 
 (j) In BourJce v. Davis (1889), 44 Ch. D. 122 ; 62 L. T. 34 ; 38 W. R. 167. 
 (k) (1881), 6 App. Cas. 740, at p. 750 ; 50 L. J. Q. B. 689 ; 44 L. T. 
 484 ; 30 W. R. 191 ; 46 J. P. 132. 
 (1) (1843), 11 M. & W. 830. 
 P.S. C
 
 18 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 B. Dedication 
 and user. 
 
 order to constitute a valid dedication to the public of a 
 highway by the owner of the soil, it is clearly settled that 
 there must be an intention to dedicate there must be 
 an animus dadicandi, of which the user by the public is 
 evidence, and no more ; and a single act of interruption 
 by the owner is of much more weight upon a question of 
 intention than many acts of enjoyment.' 
 
 "But it has also been held that where there has been 
 evidence of a user by the public so long and in such a 
 manner that the owner of the fee, whoever he was, must 
 have been aware that the public were acting under the 
 belief that the way had been dedicated, and has taken no 
 steps to disabuse them of that belief, it is not conclusive 
 evidence, but evidence on which those who have to find 
 the fact may find that there was a dedication by the 
 owner, whoever he was. It is therefore, I may say, . . . 
 never practically necessary to rely on prescription to 
 establish a public way " (m). 
 
 We now come to the second and (for the present 
 purpose) most important mode in which a highway may 
 be created viz., dedication and user. 
 
 (i.) Dedication A correct idea of the meaning of the word " dedication " 
 may be gathered from the words of Lord BLACKBURN, 
 quoted above, and from other judgments dealing with the 
 question. When an owner in fee (n) of land gives permis- 
 sion to the public to use it as a highway, and the public do 
 so use it, the land is dedicated and becomes a highway ; 
 and, where there is evidence that a road has been for 
 several years actually used by the public, a dedication may 
 be inferred from such user, and it is for a jury, or magis- 
 trates, to say whether they draw such inference, and at 
 what time and by whom such dedication was made (o). 
 
 Whether a piece of ground has, or has not, been 
 
 is a question 
 of fact. 
 
 (m) Mann v. Brodie (1885), 10 App. Gas. at pp. 385, 386. 
 (n) As to who can dedicate, see post, p. 25. 
 (o) R. v. Petrie (1855), 4 E. & B. at p. 743.
 
 CREATION OF HIGHWAY BY DEDICATION AND USEK. 19 
 
 dedicated as a highway, is a question of fact. In deter- CHAP. III. 
 mining this question no difficulty can well arise where 
 there has been an express dedication, e.g., by deed. In the 
 majority of cases, however, the dedication is implied, i.e., 
 is to be inferred as a fact from other facts proved in 
 evidence. 
 
 It is proposed to first indicate some heads of evidence Evidence as to 
 most frequently relied on as (1) warranting a presump- dedication - 
 tion of dedication, (2) tending to rebut such presumption, 
 and then to quote extracts from a few decisions as to the 
 proper value to be attached to such evidence. 
 
 (1) IN FAVOUR OF DEDICATION. 
 
 (a) Uninterrupted user of a way, openly and as of 
 right, for a considerable period, by all persons without 
 distinction. 
 
 (b) Eepairs to a way by a parish. 
 
 (c) Eeputation, i.e., evidence of witnesses who have 
 heard deceased persons make statements as to a way. 
 
 (d) Public lighting of a way ; but this is of less im- 
 portance now that authorities have in many cases 
 power to light private ways, e.g., under s. 161 of. the 
 Public Health Act. 
 
 (e) The existence of stiles in a footway. 
 
 (2) AGAINST DEDICATION. 
 
 (a) Absence of repair of a way by the parish. 
 
 (b) Eepairs by the owner of the soil. 
 
 (c) The placing of a bar or gate across the way by the 
 owner. 
 
 (d) Protests and the turning back of people who have 
 attempted to use the way. 
 
 (e) Notice-boards cautioning people against using 
 the way. 
 
 (f) A user under agreement or license. 
 
 c 2
 
 20 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. l n jfj. v. Petrie (p) WIGHTMAN, J., said, " Now I think 
 User~ *kat user ky tne publ* 6 f r a sufficient length of time, 
 
 as of right and openly, of an easement over land, is 
 evidence from which assent on the part of the owner, 
 whoever he may be, is primd facie to be inferred. There 
 is a public right inferred to exist from the public user ; 
 and it is not necessary, for a primd facie case, to inquire 
 into the state of the title at the time." CROMPTON, J., in 
 the same case said (q), " There is evidence ... of user 
 sufficient to raise an inference of a dedication. I take 
 it that, when such user is proved, the onus lies on the 
 person who seeks to deny the inference from such user 
 to show negatively that the state of the title was such 
 that that dedication was impossible, and that no one 
 capable of dedicating existed " (r). 
 
 In another case (s) Lord ELLENBOROUGH said, " I think 
 that if places are lighted by public bodies, this is strong 
 evidence of the public having a right of way over them. 
 ... If the owner of the soil throws open a passage, and 
 neither marks by any visible distinction that he means 
 to preserve all his rights over it, nor excludes persons 
 from passing through it by positive prohibition, he 
 shall be presumed to have dedicated it to the public. 
 Although the passage in question was originally intended 
 only for private convenience, the public are not now to 
 be excluded from it after being allowed to use it so long 
 without any interruption." 
 
 So, too, Lord BLACKBURN said(0, "It is necessary 
 to show, in order that there may be a right of way 
 established, that it has been used openly as of right, 
 and for so long a time that it must have come to the 
 knowledge of the owners of the fee that the public were so 
 
 (p) (1855), 4 E. & B. at p. 747. 
 (q) At p. 749. 
 
 (r) As to this, see p. 26, post, 
 (s) A', v. Lloyd (1808), 1 Camp. 260. 
 
 (t) Greenwich Board of Works v. Maud-slay (1870), L. R. 5 Q. B. at 
 p. 404 ; 39 L. J. Q. B. 205 ; 23 L. T. 121 ; 18 W. K. 948.
 
 CREATION OF HIGHWAY BY DEDICATION AND USER. 21 
 
 using it as of right, and from this apparent acquiescence CHAP - in - 
 of the owners a jury might fairly draw the inference 
 that they chose to consent, in which case there would 
 be a dedication." 
 
 The following dictum of COZENS-HARDY, J. (), is also 
 worthy of notice : " In my judgment, user by the 
 public over land belonging to a non-resident owner is 
 less cogent evidence of dedication than where the user is 
 necessarily brought to his personal notice ; and, further, 
 the weight to be attached to user must depend somewhat 
 upon the nature of the land itself, whether it is culti- 
 vated land or rough and unproductive land." 
 
 The fact that cleaning and repairing have, or have Repairs, etc. 
 not, been done by the public, or by the landowner, is 
 some evidence on the question of dedication ; see per 
 Lord DENMAX, C.J., " The fact of no repairs having 
 been ever known to be done to the road by the parish is 
 a circumstance from which you may infer that it is not 
 a public road, as the parish is bound to repair all public 
 roads " (x) ; and per Lord ELLENBOROUGH, " Repairs done 
 by an individual are primd facie rather to be ascribed to 
 motives of private interest in his own property, than as 
 done for the public benefit "(?/). The value of such 
 evidence depends entirely upon the facts of each case ; 
 it is always open to the parties to show that the repairs, 
 etc., were done under circumstances raising no presump- 
 tion as to the road or path being a highway or not (z) . 
 An individual may frequently for his own convenience 
 do slight repairs to a road or path near his house or 
 land, whilst recognising it to be a highway repairable 
 by the public (a) ; and on the other hand there may be 
 
 (u) Chinnock v. Hartley Witney Rural District Council (1899), 63 J. P. 
 327. 
 
 (a;) Davics v. Stephens (1836), 7 C. & P. 571. 
 
 (y) R. v. Northamptonshire (1814), 2 M. & S. 264. 
 
 (z) Piggott v. Goldstraw (1901), 84 L. T. 94 : 65 J. P. 259 ; Chinnock v. 
 Hartley Witney, supra. 
 
 (a) Rnndle v. Hearle (1898), 2 Q. B. 83 ; 67 L. J. Q. B. 741 ; 78 L. T. 
 561 ; 46 W. R. 619.
 
 22 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. Ill 
 
 Reputation. 
 
 Notices, bars, 
 gates, etc. 
 
 some good reason to account for a public authority repair- 
 ing a road which is private property (b) ; still, in the 
 absence of explanation, evidence as to repair is at any 
 rate of some value in cases of disputed dedication. 
 
 Evidence of reputation was admitted in Barraclough v. 
 Johnson (c). There, on an issue whether or not certain 
 land, in a district repairing its own roads, was a common 
 highway, it was held that it was admissible evidence of 
 reputation (though slight) that the inhabitants held a 
 public meeting to consider the repairing of such way, 
 and that several of them, since dead, signed a paper on 
 that occasion, stating that the land was not a public 
 highway, there being at the time no litigation on the subject. 
 It was in this case further held that in determining 
 whether or not a way has been dedicated to the public, 
 the proprietor's intention must be considered. If it 
 appear only that he has suffered a continual user, that 
 may prove a dedication ; but such proof may be rebutted 
 by evidence of acts showing that he contemplated only a 
 license revocable in a particular event. On the question 
 of highway or not, proof of an indictment against an 
 adjoining township, either submitted to or prosecuted to 
 conviction, for non-repair of a portion of highway in 
 continuation of the way in question was held to be 
 admissible evidence (cl). 
 
 The following cases deal more particularly with the 
 effect of notices and obstructions : in Poole v. Huskin- 
 son (e) Lord ABINGER said, " The user by the public with 
 carriages since the award is no doubt evidence of a 
 dedication by the owner to the public ; and the notices 
 which were fixed on posts, and which may be presumed 
 to have been done with the consent of the owner of the 
 
 (b) R. v. Hawk-hurst (1862), 7 L. T. (N.S.) 268 ; 26 J. P. 724 ; 11 
 W. R. 9. 
 
 (c) (1838), 8 A. & E. 99. Other cases on this subject will be found at 
 p. 350 of Sm. L. C., vol. 2 (10th ed.). 
 
 (d) K. v. Brightside Bierlow (1849), 13 Q. B. 933. 
 
 (e) (1843), 11 M. & W. 827, 830.
 
 CREATION OF HIGHWAY BY DEDICATION AND USER. 23 
 
 soil, are strong evidence to the contrary. The interrup- CHAP. III. 
 tions also by the overseers who had the herbage are very 
 material in the case." And in the same case PARKE, B., 
 when pointing out that there must be an intention to 
 dedicate, of which the user by the public is evidence, and 
 no more, said " a single act of interruption by the owner 
 is of much more weight, upon a question of intention, 
 than many acts of enjoyment." 
 
 In Roberts v. Karr (1808), 1 Camp. 262, it appeared 
 that some years previously a street was made over the 
 locus in quo, which had been before an inclosed field ; 
 that soon after the houses were finished a bar was placed 
 across the street to prevent carriages from passing through 
 it ; but that the bar was soon knocked down, since which 
 time it had been used as a thoroughfare. On the part 
 of the defendant it was contended that this amounted to 
 a dedication to the public, at least as a footpath. But 
 HEATH, J., observed that the pulling up of a bar rebutted 
 the presumption of a dedication to the public. Such a 
 dedication must be made openly and with a deliberate 
 purpose. 
 
 In Lethbridge v. Winter (1808), 1 Camp. 263, a gate 
 (the pulling down of which was the trespass complained 
 of) was put up in a place where a similar gate had for- 
 merly stood, but where for the last twelve years there 
 had been none. It was thereupon contended for the 
 defendant, that from suffering the gate to be down so 
 long and permitting the public to use the way without 
 obstruction for so many years, the plaintiff and those 
 under whom he claimed must be considered as having 
 completely dedicated the way to the public, and that the 
 gate could not be replaced. The plaintiff, however, under 
 the direction of the judge, had a verdict, which the Court 
 of King's Bench declined to set aside. 
 
 The fact, however, that a gate has been put across a 
 way is by no means conclusive, for it may be that the 
 object of the owner was to prevent cattle straying, that
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 Length of 
 user. 
 
 is to say, it might be that he intended to dedicate the 
 way as a highway with a reservation of the right of 
 keeping a gate across it (/). 
 
 There is no fixed period during which user must be 
 proved in order to justify the presumption of dedication. 
 In one case (g) eight years was held to be sufficient, and 
 in the course of his judgment Lord KENYON mentioned 
 that in another great case six years had been held to 
 suffice. In R. v. Hudson (li) four years was held to be 
 too short a time ; but in that instance the origin of the 
 way was clearly accounted for, and where an express 
 intention to dedicate was proved, eighteen months was 
 regarded as sufficient length of user (t) . 
 
 The true principle to be applied in gauging the value 
 of evidence as to length of user may be gathered from 
 the judgment of Lord DENMAN, C.J., in a case (k) the 
 point of which was whether or not the defendant had 
 released or abandoned a private easement over a public 
 footway inconsistent with the public user: " It is not 
 so much the duration of the cesser, as the nature of the 
 act done by the grantee of the easement, or of the adverse 
 act acquiesced in by him, and the intention in him which 
 either the one or the other indicates, which are material 
 for the consideration of the jury. The period of time 
 is only material as one element from which the grantee's 
 intention to retain or abandon his easement may be 
 inferred against him ; and what period may be sufficient in 
 any particular case must depend on all the accompanying 
 circumstances." 
 
 (/) Davies v. Stephens (1836), 7 C. & P. 570. As to such limited 
 dedication, see post, p. 28. The reader may also refer to E. v. Hudson 
 (1732), 2 Str. 909 ; British Museum v. tiunis (1833), 5 C. & P. 460 ; 
 Healey v. Bathy (1875), L. R. 19 Eq. 375, as to obstructions, etc. 
 
 (g) Rugby Charity v. Mcrrywcather (1790), 11 East, 376. 
 
 (h) (1732), 2 Str. 909. 
 
 (i) North London Ry. Co. v. St. Mary, Islington (1873), 27 L. T. 672 ; 
 37 J. P. 341 ; 21 W. R. 226. See also Dawes v. Hawkins (1860), 29 
 L. J. C. P. 343 ; 8 C. 13. (N.S.) 848 ; and Woodyer v. Hadden (1813), 5 
 Taunt. 125, 137, per CHAMBRE, J. 
 
 (k) R. v. Chorley (1848), 12 Q. B. at p. 519.
 
 CREATION OF HIGHWAY BY DEDICATION AND USER. 25 
 
 An intention to dedicate a piece of ground as a high- CHAP. III. 
 way may (subject to the restrictions mentioned in the who can 
 following pages) be inferred against either the Crown, a dedicate a 
 corporate body, or a private owner. 
 
 This proposition is clearly laid down in the case of R. The Crown, 
 v. East Mark (I), and was approved by the Judicial Com- 
 mittee of the Privy Council in Turner v. Walsh (?). In 
 the earlier case LordDENMAN, C.J., said, " The law as 
 lately laid down has led the courts into very inconvenient 
 inquiries. If a road has been used by the public 
 between forty and fifty years without objection, am 1 
 not to use it unless I know who has been the owner of 
 it ? The Crown certainly may dedicate a road to the 
 public, and be bound by long acquiescence in public 
 use. I think the public are not bound to inquire whether 
 this or that owner would be more likely to know his 
 rights and to assert them ; and that we have gone quite 
 wrong in entering upon such inquiries. Enjoyment for 
 a great length of time ought to be sufficient evidence of 
 dedication, unless the state of the property has been such 
 as to make dedication impossible." 
 
 The fact that the soil belongs to a public body does Corporate 
 not of itself preclude a jury from inferring a dedication. bod J"' 
 in such cases the following appears to be a correct state- 
 ment of the law : If land be vested by an Act of Parlia- 
 ment in some public body, even though they are thereby 
 bound to use it for some special purpose, yet, if the 
 use of part of it by the public as a highway be not 
 incompatible with the objects prescribed by the Act, 
 they may make a dedication of such part of it (n) : secus, 
 however, if the special purpose be incompatible with the 
 use of the land by the public as a highway (n). 
 
 (I) (1848), 11 Q. B. 877. 
 
 (m) (1881), 6 A. C. at p. 639 ; 50 L. J. P. C. 55 ; 45 L. T. 50. 
 
 (n) R. v. Lcake (1833), 5 B. & Ad. 476, per PARKE, J. ; Grand Junction 
 Canal v. Petty (Ib88), 57 L. J. Q. B. 572 ; 59 L. T. 767 ; 21 Q. B. D. 273 ; 
 36 W. R. 795 : 52 J. P. 692 ; Foster \. L. C. <L- D. Ky. Go. (1895), 1 Q. B. 
 711 ; 64 L. J. Q. B. 65 ; 71 L. T. 855 ; 43 W. R. 116 ; In re Gonty v.
 
 26 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 Private 
 individuals. 
 
 Limited 
 owners. 
 
 The general rule is that dedication in order to be 
 effectual must be by an owner in fee simple ; therefore 
 dedication by a tenant for life, or by a lessee, will not 
 suffice. In other words, the state of the title must be 
 such as to render possible a valid dedication at the time 
 when the jury are asked to infer dedication (o). But this 
 general rule is subject to two qualifications which must 
 be noticed : 
 
 (a) Obviously a reversioner or remainderman may 
 consent to a dedication by the owner of the particular 
 estate, i,e., to the user of the road by the public (p) ; 
 and such consent need not be express, but may be 
 inferred. Where the public for fifty years used a road 
 running over land which was occupied by a succession 
 of tenants, one of whom frequently complained of the 
 user to the agent of the owner of the land, who how- 
 ever took no action ; Lord ELLENBOROUGH said (g), " After 
 a long lapse of time and a frequent change of tenants, 
 from the notorious and uninterrupted use of a way by 
 the public, I should presume that the landlord had 
 notice of the way being used, and that it was so 
 used with his concurrence. In this case however, we 
 have express evidence of notice ; for notice to the steward 
 was notice to the landlord." And in a later case, where 
 evidence was given of acts of user extending over nearly 
 seventy years, the judge was held justified in directing 
 the jury that, though the land had been on lease for the 
 whole of that period, they were at liberty, if they thought 
 proper, to presume a dedication by the owner in fee, or his 
 ancestor, at a time anterior to the land being leased (r). 
 
 M. S. & L. Ry. Co. (1896), 2 Q. B. 439 ; 65 L. J. Q. B. 625 ; 75 L. T. 239 ; 
 45 W. K. 83 ; G. W. 11. v. Solihull E. D. C. (1902), 18 T. L. R. 707. 
 
 (o) Wood v. Veal (18'22), 5 B. & Aid. 454; . v. Peirie (1855), 4 
 E. & B. 743, 749; Eyre v. New Forest Highway Board (1892), 56 J. P. 
 517. See, however, ss. 16, 25 of tlie Settled Land Act, 1882. 
 
 (p) Harper v. Charlesworth (1825), 4 B. & C. at p. 591. 
 
 (q) E. v. Barr, 4 Camp. 16. 
 
 (r) Wintcrbottom v. Lord Derby (1867), L. R. 2 Ex. 316; 36 L. J. 
 Ex. 194.
 
 CREATION OF HIGHWAY BY DEDICATION AND USER. 27 
 
 (b) After an uninterrupted user of a road by the public CHAP. HI. 
 for many years a dedication may be inferred, even though Unknown 
 it may not be known in whom the fee simple is, or was owner. 
 at any crucial period, vested (s) . In such a case a proper 
 direction to a jury would appear to be that " although 
 there must be an intention on the part of the owner to 
 dedicate, such user is so strong an evidence of his 
 intention that the jury ought to find in favour of the 
 dedication, unless there be some evidence that he did 
 not consent " (t) : and the jury might find a dedication 
 in a given year by whoever was then the owner in fee, 
 without proceeding to find who actually was such 
 owner () . 
 
 This doctrine may be of advantage to persons seeking 
 to establish a public highway, for it will enable them to 
 take advantage of any hiatus, during which the owner 
 cannot, in order to rebut the inference to be drawn from 
 user, prove affirmatively that the state of the title was 
 such as to render a valid dedication impossible (u). 
 
 It may be useful to mention a case (x) in which a An "awarded" 
 road had been originally set out in 1789 as a private road JJJJ!^* 01 
 by an award under an Inclosure Act, and the adjoining dedicated as 
 landowners or occupiers were ordered by the award ever a lg way * 
 after to keep the road in repair. Sufficient evidence was 
 given of user by the public prior to 1836 to support the 
 presumption of a dedication in an ordinary case, and the 
 court held that there was nothing in the fact of the road 
 having been set out by the award, and the direction that 
 repairs were to be done by the adjoining landowners or 
 occupiers, to prevent the road becoming a highway 
 repairable by the inhabitants at large. 
 
 (s) K. v. TJut Inhabitants of East Mark (1848), 11 Q. B. 877 ; 11, v. 
 Petrie (1855), 4 E. & B. 737. 
 (t) Per ERI.E, J., in R. v. East Mark, siqrra, at p. 884. 
 
 (u) See K v. Petrie, supra; Turner v. Walsh (1881), 6 A. C. 636 ; 50 
 L. J. P. 0. 55 ; 45 L. T. 50. 
 
 (a;) S. v. Bradfield (1874), L. R. 9 Q. B. 552 ; 43 L. J. M. C. 155 ; 22 
 W. R. 693.
 
 28 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. Similarly, where a road made under a temporary 
 
 "turn Turnpike Act was used by the public and repaired by 
 
 pike road after the parish both before and after the expiration of the 
 
 the expiry of ^ c j. ft was hg^ that a dedication by the owner might 
 
 tri 6 XurnpiK.6 i i 
 
 Act. be presumed so as to make the road a highway in 
 
 perpetuity (y). 
 
 How far A road, if dedicated as a highway, must be so dedicated 
 
 b 6d i' Ca ^ted "r^ * n P er P e ^ u ^y ( z )> an d to the whole public (a). An attempt 
 
 qualified. to dedicate it for a limited number of years, or for an 
 
 uncertain period, or to a limited portion of the public 
 
 (e.g., the inhabitants of one parish), would be entirely 
 
 void (a). 
 
 It was indeed at one time doubtful whether there 
 could be a valid dedication subject to any limitation 
 whatever ; but this doubt no longer exists, and it is now 
 well settled that a highway may be dedicated for a 
 limited purpose (b), or subject to certain restrictions. 
 Thus it may be dedicated (in the case of a bridge) for 
 use only when an adjacent public ford is dangerous (c) , 
 or subject to the exercise of market rights (d), or subject 
 to a pre-existing right of user by adjoining owners for the 
 purpose of depositing goods thereon (<?). 
 
 Again, a canal company may dedicate a towing path as 
 a footway with the limitation that the user must be such 
 as will not interfere with the ordinary use of the towing 
 path by the company (/). Similarly a footpath may 
 
 (y) R. v. Thomas (1857), 7 E. & B. 399. 
 
 (z) Dawes v. Haickins (1860), 8 C. B. (N.S.) 848. 
 
 (a) Poole v. Huskinson (1843), 11 M. & W. at p. 830 ; Bcrmondsnj 
 Vestry v. Brown (1865), L. R. 1 Eq. 204 ; 13 L. T. 574 : 30 J. P. 118. 
 
 (b) Fisher v. Proiuse (1862), 31 L. J. Q. B. 212 ; 2 B. & S. 780. 
 
 (c) R. v. Northampton (1814), 2 M. & S. 262. 
 
 (d) A.-G. v. Homer (1885), 11 A. C. 66; 55 L. J. Q. B. 193 ; 54 L. T. 
 281 ; 34 W. R. 641 ; 50 J. P. 564. 
 
 (c) Morant v. Chamberlain (1861), 6 H. & N. 541 ; 30 L. J. Ex. 299 ; 
 Le Neve v. Mile End Old Town (1858), 8 E. & B. 1054 ; Warner v. 
 Wandsworth Board of Works (1889), 53 J. P. 471. 
 
 (/) Grand Junction Canal Co. v. Petty (1888), 21 Q. B. D. ; Lord 
 ESHEII. M.R., at p. 276 ; 57 L. J. Q. B. 572 ; 59 L. T. 767 ; 52 J. P. 692 ; 
 36 W. R. 795.
 
 CREATION OF HIGHWAY BY DEDICATION AND USER. 29 
 
 exist along the top of a sea wall subject to the right of CHAP. III. 
 the commissioners (or other public body empowered by 
 statute to construct and maintain the wall) to interrupt 
 the highway when taking proper steps to repair the 
 wall(</). And there may be a dedication of a foot- 
 path across a field subject to the right of the owner of 
 the soil to plough it up in due course of husbandry, and 
 destroy all trace of it for the time (/). 
 
 Whether or not a private person can dedicate a high- 
 way subject to payment of a toll by all who use it is 
 doubtful. The general opinion appears to be that a right 
 to take toll must have its origin in a charter or statute ; 
 and, if this be so, an attempted dedication subject to a 
 toll will amount to no dedication at all, and the so-called 
 toll will amount only to a wayleave payable to the owner 
 of a private way. 
 
 The point was, to a certain extent, discussed in Auster- 
 berry v. Oldham Corporation (i), but the court expressly 
 reserved it. There are some dicta in an earlier case (k) 
 which seem to suggest the possibility of such a dedication. 
 
 An intention to dedicate a highway is not sufficient () User - 
 unless the public in fact use the road, such user proving 
 the acceptance or adoption of the way by the parish. 
 Where, however, dedication is to be inferred from user, no 
 further proof of adoption is necessary (/) 
 
 Familiar instances of this mode of creating a highway c. Creation of 
 are supplied by the old Turnpike Acts, and by awards or g u ^er S a J 
 made under Inclosure Acts. Eeference may also be statute. 
 
 (g) Greenwich Board of Works v. Maudsley (1870), L. R. 5 Q. B., per 
 BLACKBURN, J., at p. 403; 39 L. J. Q. B. 205 ; 23 L. T. 121 ; 18 W. R. 948. 
 
 (/*) Mercer v. Woodgate (1870), L. R. 5 Q. B. 26 ; 39 L. J. M. C. 21 ; 
 21 L. T. 458 ; 18 W. R. 116; Arnold v. Blakcr (1871), L. R. 6 Q. B. 433 
 40 L. J. Q. B. 185 ; 19 W. R. 1090. 
 
 (i) (1885), 29 C. D. 750 ; 55 L. J. Ch. 633 ; 53 L. T. 543 ; 53 "\V. R. 
 807 ; 49 J. P. 532. 
 
 (k) Lord Pclham v. Pickersgill (1787), 1 T. R. 660. 
 
 (I) Cubitt v. Maxse (1873), L. R. 8 C. P. 714 ; 42 L. J. C. P. 278 ; 29 
 L. T. 244 ; 21 W. R. 789 ; R. v. Leake (1833), 5 B. & Ad. 469.
 
 30 To WHAT STKEETS THE ACT APPLIES. 
 
 CHAP. III. made to the powers conferred on an urban (m) district 
 council by s. 146 of the Public Health Act, 1875, and 
 to the provisions of s. 23 of the Highway Act, 1835, 
 and s. 36 of the Highway Act, 1862. Where a road pur- 
 porting to have been set out under a Turnpike Act had been 
 opened and used by the public for many years, its status 
 as a highway was held not to be affected by proof that it 
 was not made in the prescribed manner or of the prescribed 
 width (n). On the other hand, where a road was set out 
 by the commissioner under an Inclosure Act, but was never 
 completely formed, and was not used by the public, the 
 court held that it never became a public highway (o). 
 
 Width of Primd facie, when a highway runs between two fences, 
 
 highway. unless there is something to show the contrary, the public 
 
 have a right to the whole space, and are not confined to 
 
 the metalled part ( p). 
 
 It was pointed out in a recent case (q) in the Court of 
 Appeal that in making such presumption regard must be 
 had to the circumstances of each case. Lord KUSSELL, 
 C.J., said that something must depend upon the general 
 state of the particular district, whether enclosed or 
 unenclosed, upon the regularity or irregularity of the 
 margins, and on the relative levels of the various parts 
 of the strips of land adjoining the metalled road. And 
 apparently the presumption may be easily rebutted so as 
 to throw upon the local authority the burden of proving 
 that the margins have in fact been dedicated to the 
 public as part of the highway (q). 
 
 (m) Applied to rural district councils by s. 25 (1) of the Local 
 Government Act, 1894. 
 
 (n) B. v. Lordsmere (1850), 19 L. J. M. C. 215. 
 (o) Cubitt v. Lady Caroline Maxse, supra. 
 
 (p) Beg. v. The United Kingdom Electric Telegraph Co. (1862), 31 
 L. J. M. C. 166 ; 6 L. T. 378 ; 10 W. R. 538 ; Evelyn v. Merriclees, Times, 
 14th December, 1900. 
 
 (q) Neeld v. Hendon Urban District Council (1899), 16 T. L. R. 50 ; 63 
 J. F. 724. See also Countess of Belmore v. Kent County Council (1901), 1 
 Ch. 873 ; 70 L. J. Ch. 501 ; 17 T. L. R. 360 ; 84 L. T. 523 ; 49 W. R. 
 459 ; 65 J. P. 456.
 
 EXTINCTION OF A HIGHWAY. 31 
 
 The common law rule is, " Once a highway, always CHAP. III. 
 a highway "; but of course an Act of Parliament may Extinction of 
 expressly put an end to a highway ; and when the a highway. 
 Legislature clearly and distinctly authorises the doing of 
 a thing which is physically inconsistent with the con- 
 tinuance of an existing public right of way, the right is 
 impliedly extinguished (r). 
 
 A highway may, as to a portion of it, become extin- 
 guished as the effect of a diversion being allowed by 
 quarter sessions under ss. 84 92 of the Highway Act, 
 1835, or s. 44 of the Highway Act, 1862 ; and a highway 
 may under the provisions of the last-mentioned statutes 
 be entirely stopped up. 
 
 III. WHEN A HIGHWAY is BEPAIRABLE BY THE 
 
 INHABITANTS AT LARGE. 
 
 We must now consider what highways are " repairable (iii.) What 
 by the inhabitants at large," for to such the Private ^aSleb' 6 
 Street Works Act has no application. the inhabitants 
 
 at large. 
 
 At common law the liability to repair every highway Common law 
 has always rested, and still rests, primd facie upon the ^^y of 
 inhabitants (s) of the parish in which it lies (t) . It is, 
 however, open to such inhabitants to show that the 
 liability does not in fact rest upon them, and this they 
 can do in several ways : Exceptions: 
 
 FIRSTLY, they may show that the inhabitants (s) of some (i.) Customary 
 township within the parish are by custom liable to repair 
 all highways within that township. This exception is, 
 however, not material for the present purpose, the liability 
 of a township being a liability of the inhabitants at 
 large no less than the liability of a parish. 
 
 (r) Yarmouth v. Simmons (1878), 10 Ch. D. 518 ; 47 L. J. Ch. 792 ; 
 38 L. T. 881 ; 26 W. R. 802. 
 
 (s) I.e., occupiers of land. To the lay reader the idea of the liability of 
 the " inhabitants at lar^e " (whether of a parish or township) may be a 
 revelation. Such liability, however, still exists in respect of all highways 
 repairable at the public expense, and has not (from a legal standpoint) 
 been affected by the creation from time to time of various authorities 
 charged with the practical administration of highways. 
 
 (t) H. v. Sheffield Inhabitants (1787), 2 T. R. 106.
 
 32 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAI>. in. SECONDLY, it may be shown that the liability rests upon 
 (ii ) Liability some individual, or corporate body, either (a) ratione 
 of individual dausurce, (b) by prescription, or (c) under the provisions 
 
 or corporation. <. 
 
 of some statute : 
 
 (a) Ratione 
 clausurce. 
 
 (b) Prescrip- 
 tion. 
 
 (c) Statutory 
 duty. 
 
 (iii.) No one 
 liable to 
 repair. 
 
 Highway Act, 
 1835, s. 23. 
 
 (a) Liability to repair ratione clausurce arises when 
 the owner of open land alongside a highway encloses 
 such land, and it ceases if the enclosure is abolished : 
 
 (b) Either a corporation or an individual may be liable 
 to repair a highway by prescription. In the case of an 
 individual some consideration must be shown, e.g., a 
 right of toll, or the tenure of land. The latter is the 
 usual consideration, and the liability is then spoken of 
 as existing ratione tenures : 
 
 (c) Where a statute imposes upon a person or corpora- 
 tion the duty of repairing a highway, it depends upon 
 the terms of the statute whether or not the liability of 
 the inhabitants is extinguished. As to this the reader is 
 referred to p. 36, post. 
 
 THIRDLY, it may be shown that no one is liable to 
 repair the highway in question ; but this is only possible 
 where such highway has been dedicated since 1836 (see 
 p. 34, post}. 
 
 We must now consider the effect of the Highway Act, 
 1835. As matters stood at the date of this statute, every 
 highway was repairable by someone, and was repairable 
 by the inhabitants at large, unless they could prove 
 someone else to be liable either ratione clausurce, by 
 prescription, or under some statute ; and this state of 
 the law laid a heavy burden upon the various com- 
 munities, for they were saddled with the expense of for 
 ever repairing any road which a landowner might 
 choose to dedicate, and which the public adopted by 
 user. In order to remedy this hardship the statute 
 in question imposed limitations upon the power of 
 an owner to thus render the parish liable to repair 
 any road dedicated as a highway in the future, s. 23 
 providing that
 
 HIGHWAYS "REPAIRABLE BY THE INHABITANTS AT LARGE." 33 
 
 " No road or occupation way made or hereafter (u) to be CHAP. III, 
 made by and at the expense of any individual or 
 private person, body politic or corporate, nor any 
 road already set out or to be hereafter set out as 
 a private driftway or horsepath in any award of 
 commissioners under an inclosure Act, shall be 
 deemed or taken to be a highway which the 
 inhabitants of any parish shall be compellable 
 or liable to repair, unless the person, body politic 
 or corporate, proposing to dedicate such highway 
 to the use of the public, shall give three calendar 
 months' previous notice in writing to the surveyor 
 of the parish of his intention to dedicate such 
 highway to the use of the public, describing its 
 situation and extent, and shall have made or 
 shall make the same in a substantial manner, and 
 of the width required by this Act, and to the satis- 
 faction (x) of the said surveyor, and of any two 
 justices of the peace of the division in which such 
 highway is situate, in petty sessions assembled, who 
 are hereby required, on receiving notice from such 
 person, or body politic or corporate, to view the 
 same, and to certify that such highway has been 
 made in a substantial manner, and of the width 
 required by this Act, at the expense of the party 
 requiring such view, which certificate shall be 
 enrolled at the quarter session holden next after 
 the granting thereof, then and in such case, after 
 the said highway shall have been used by the 
 public, and duly repaired and kept in repair, by 
 the said person, body politic or corporate, for the 
 space of twelve calendar months, such highway 
 
 (u) The Act came into force on 20th March, 1836. 
 
 (x) In approving the condition of a proposed new highway the authority 
 should consider s. 150 of the Public Health Act, 1875, or s. 6 (I) post; 
 E. v. Dukinfield (1863), 32 L. J. M. C. 230 ; 4 B. & S. 158 ; 27 J. P. 805 
 (decided on s. 68 of the Public Health Act, 1848) : "substantial manner" 
 means substantial having regard to the situation, for what would suffice in 
 a rural district would be insufficient in a town, and paving, channelling, 
 etc., might reasonably be required. 
 
 P.S. D
 
 84 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. shall for ever thereafter be kept in repair by the 
 
 parish in which it is situate: Provided, never- 
 theless, that on receipt of such notice as aforesaid 
 the surveyor of the said parish shall call a vestry 
 meeting of the inhabitants of such parish, and if 
 such vestry shall deem such highway not to be of 
 sufficient utility to the inhabitants of the said 
 parish to justify its being kept in repair at the 
 expense of the said parish, any one justice of the 
 peace, on the application of the said surveyor, 
 shall summon the party proposing to make the 
 new highway to appear before the justices at the 
 next special sessions for the highways to be held 
 in and for the division in which the said intended 
 highway shall be situate ; and the question as to 
 the utility as aforesaid of such highway shall be 
 determined at the discretion of such justices." 
 
 The effect of this section, as explained in Roberts v. 
 Hunt (?/), is that there may be highways for the repair of 
 which no one is liable, viz., roads (within the meaning 
 of this section) which have been dedicated as highways 
 since 1836, without compliance with the prescribed 
 formalities. But it must not be too hastily assumed 
 that, because a road has been dedicated since the Act 
 and informally, it cannot be repairable by the inhabitants 
 at large ; on this question the following points must be 
 considered : 
 
 (1) The section has been held (z) not to apply to every 
 highway dedicated after 1836; and in respect to any 
 highway not contemplated by it the common law liability 
 of the inhabitants remains. Thus it was held not to 
 apply to a road made by turnpike trustees, and there- 
 fore, when a dedication by user was presumed after the 
 turnpike Act had expired, the absence of the justices' 
 
 (y) (1850), 15 Q. B. 17. 
 
 (z) Notice also that it does not (at least in express terms) include 
 "awarded " carriage roads.
 
 HIGHWAYS "KEPAIRABLE BY THE INHABITANTS AT LAEGE." 85 
 
 certificate did not prevent the road from becoming CHAP. III. 
 
 repairable by the inhabitants at large (a). And in a 
 
 later case (b) BACON, V.-C., laid down that the " section 
 
 has no application to the case of a person who has not 
 
 made the road at his own expense, who does not propose 
 
 to dedicate the highway to the use of the public, and who 
 
 does not intend, or undertake, to make it, or to keep it, 
 
 in repair at his own expense for twelve months, in order 
 
 at the end of that period to throw the future care and 
 
 expense of the highway on the surveyor and the general 
 
 rate." 
 
 This statement is, however, generally regarded as 
 too wide, and the summing up of WILLS, J., in Eyre v. 
 New Forest Highivay Board (c), which was characterised 
 by the Court of Appeal as " a complete exposition of the 
 law," would appear to negative the possibility of a 
 private individual dedicating a highway so as to make it 
 repairable by the public except by following the provisions 
 of this section. 
 
 (2) The maxim omnia prcesumuntur rite et solemniter 
 esse acta will warrant the justices in presuming (in a 
 proper case) that the necessary formalities were in fact 
 observed, although no record of the fact can be found. 
 In Williams v. Eyton (d) an award, after setting out 
 certain new roads, directed the existing roads to be 
 stopped up, which under the provisions of the General 
 Enclosure Act could only be done on an order of justices : 
 forty years after the allotment the court presumed that 
 such an order had been made on proof that the comple- 
 tion of the new roads had been certified by two justices, 
 and that a gate (which had since been kept locked) had 
 been put up across the old road in question, a small fee 
 
 (a) R. v. Thomas (1857), 7 E. & B. 399. 
 
 (b) Healey v. Satlcy Corporation (1875), L. R. 19 Eq. at p. 393 ; 44 
 L. J. Ch. 642 ; 39 J. P. 423 ; and see the judgment of PHILLIMORE, J., in 
 Leigh-on-Sea Urban District Council v. King, infra. 
 
 (c) (1892), 56 J. P. 517. 
 
 (d) (1858), 2 H. & N. 771 ; affirmed 4 H. & N. 357. 
 
 D 2
 
 36 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. ill. being charged for the use of the road by any but foot 
 passengers. In a recent case (e) the court had to decide 
 whether there was any evidence on which the justices 
 could find that a road made in 1842 was a highway 
 repairable by the inhabitants at large. It appeared that 
 in 1842 a vestry meeting resolved to stop up a road, and 
 in lieu thereof to open a new road, and such new road 
 was substituted accordingly. There was evidence of 
 repairs on the new road on one occasion, many years 
 prior to the trial of the action, by the surveyor for the 
 parish (whether as surveyor or otherwise did not appear), 
 and also of repairs by the parish council to the footpath 
 in the new road. Ever since 1842 the new road had 
 been open to the public, but at the hearing before the 
 magistrates no evidence was given as to any certificate 
 having been enrolled, or steps taken under s. 23 or s. 84 
 of the Highway Act, 1835. The magistrates found as a 
 fact that the new road was a highway repairable by 
 the inhabitants at large, and stated a case asking the 
 Divisional Court whether there was evidence to justify 
 such finding. The court held that there was evidence 
 to justify such finding. Both of the judges were of 
 opinion that, whether the case was one of the dedication 
 of a new highway within s. 23, or of the substitution of 
 a new highway for an old one within ss. 84 92, it was 
 open to the justices to presume that all necessary formali- 
 ties had been observed. They based this opinion upon 
 the cases of Deponthieu v. Pennefeather (1814), 5 Taunt. 
 634, and Williams v. Eyton (supra), and upon the fact 
 that it is the duty of judges in matters of ancient 
 possession or public right to presume in favour of long, 
 open and continuous usage. 
 
 Liability to In considering the various ways in which a parish 
 
 repair under m ight get rid of its liability to repair, reference was 
 
 80H16 StUlUtC, ^ T i i j i A j 
 
 made to cases in which the liability was by some Act 
 
 (e) Leigh-on-Sea Urban District Council v. King (1901), 1 K. B. 747 ; 70 
 L. J. K. B. 313 ; 83 L. T. 777 ; 65 J. P. 243 (PHILLIMOKE and BRUCE, JJ.).
 
 HIGHWAYS "BEPAIRABLE BY THE INHABITANTS AT LARGE." 87 
 
 of Parliament (turnpike or other) imposed upon some CHAP. III, 
 individual or corporation. Unless the Act in question in 
 express terms, or by necessary implication, exempts the 
 public from liability, the common law liability remains, 
 and may be enforced in the event of the persons primarily 
 liable neglecting their duty : thus where a statute enacted 
 that the paving of a particular street should be under 
 the care of commissioners, and provided a fund to be 
 applied to that purpose, and another statute passed for 
 paving the streets of the parish contained a clause that 
 it should not extend to the particular street, the inhabi- 
 tants of the parish were held not to be exempted from 
 their common law liability to keep that street in repair (/) : 
 and where a local turnpike Act, after empowering the 
 trustees under it to take tolls, directed that the roads 
 should from time to time be repaired by the trustees out 
 of the money arising by virtue of the Act, it was held 
 that this only made the tolls an auxiliary fund in the 
 hands of the trustees, and that the inhabitants were 
 nevertheless liable to be indicted for non-repair of the 
 road (g). 
 
 It would appear also (h) that, where an individual 
 is liable to repair a highway ratione clausurce, the parish 
 is not relieved from its primary liability. If, however, 
 his liability arises ratione tenures, the parish is com- 
 pletely exonerated. 
 
 The result of this is that we have two classes of 
 "highways repairable by the inhabitants at large," 
 viz., (a) those for which the public are primarily (and 
 solely) liable, (b) those for which they are secondarily 
 liable ; and it is not quite clear whether both of these 
 classes (or only the first) are excluded from the scope of 
 the Private Street Works Act. In one case (i), FRY, J., 
 
 (/) Hex v. St. George, Hanover Square (1812), 3 Camp. 222. 
 (g) Hex v. Netherthong (1818), 2 B. & Aid. 179. See also E. v. 
 Lordsmere (1850), 19 L. J. M. C. 215. 
 
 (h) See the arguments in E. v. Srighiside Bierlow (1849), 13 Q. B. 933. 
 (i) Swansea Improvement Co. v. Glamorganshire (1880), 41 L. T. 583.
 
 38 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. held that a turnpike road was not "a highway repair- 
 able by the inhabitants at large"; but it was apparently 
 assumed that under the particular Act then in question, 
 the public were relieved from all liability : in an earlier 
 case (k), a strong court had ruled that the words 
 " repairable by the inhabitants at large " in the Public 
 Health Acts were used in contradistinction to " repair- 
 able ratione tenurce." The authors submit that a high- 
 way, for the repair of which the inhabitants at large are 
 liable (even only secondarily), cannot be dealt with by a 
 local authority under this statute (I). 
 
 Part of a "Part of a Street." A "street" within the meaning of 
 
 street. fo e j^ c ^ mav itself be "part of a street" in the popular 
 
 sense of the term, i.e., it may be a strip, or new footpath, 
 added to an old highway (see p. 15, and p. 61, post, as 
 to the apportionment in such a case). The Act, how- 
 ever, contemplates a possible subdivision of a " street " 
 (technically so called), and an attempt must therefore be 
 made to understand what principle of division is intended. 
 Apparently, three possible meanings may be given to the 
 words " part of a street." They may be read as con- 
 templating : (1) a transverse section, i.e., a certain 
 "length " of a street for its full breadth, (2) a longitudinal 
 section, i.e., a "strip" (e.g., one pavement) for the entire 
 length of the street, or, (3) sections both transverse and 
 longitudinal, i.e., a "patch," or local part, the actual 
 area to be repaired. 
 
 In the authors' view, the second alternative may be 
 rejected. Suppose (for an example) a street 400 yards 
 long with a pavement on one side ; if 50 yards of such 
 pavement needed repair, this interpretation would require 
 the cost to be apportioned on the whole 400 yards of 
 
 () Gibson \. Preston Corporation (1870), L. R. 5 Q. B. 218:; 39 L. J. Q. B. 
 131 ; 22 L. T. 293 ; 18 W. R. 689 ; 34 J. P. 342. 
 
 (1) The arguments and judgments in Austcrberry v. Oldham Corpora- 
 tion (1885), 29 C. D. 750 ; 55 L. J. Ch. 633 ; 53 L. T. 543 ; 33 W. R. 807; 
 49 J. P. 532, appear to support this view.
 
 "PART OF A STREET." 39 
 
 frontage to this " strip " ; in the words of POLLOCK, B., CHAP - Hi. 
 "owners could be taxed at a point where no improve- 
 ment was being made " (m). 
 
 This reduces the choice to the first and third interpre- 
 tations ; and in considering their respective claims to 
 acceptance, it will be convenient to look first at the 
 wording of the older provision in s. 150 of the Public 
 Health Act, 1875. So far as is material, that section 
 runs : " When any street, or the carriageway, footway, 
 or any other part of such street, is not sewered . . . 
 paved . . . such authority may, by notice ... to the 
 respective owners or occupiers of the premises fronting, 
 adjoining, or abutting on such parts thereof as may 
 require to be sewered . . . paved . . ." etc. 
 
 A local authority, acting under the above section, 
 executed certain repairs to the footway and channel on 
 the south side of a street, and apportioned the expenses 
 on the owners of property on that side of the street only. 
 The court held that the word "parts" could not be taken 
 to mean transverse sections of a street, but rather the 
 local parts to which the repairs were done ; and after 
 pointing out that the section imposes liability on the 
 owners of premises fronting, adjoining, or abutting, not 
 on "such street," but on "such parts thereof as require 
 repair," said, the meaning of that expression is to make 
 the premises adjoining the part repaired liable (ri). 
 
 The subject-matter of the case was " a definite part of 
 the street, viz., one of the footways ; it could be cut off 
 from the rest of the street, and the owners of houses 
 abutting on the footway might be called on to do 
 the whole of the work required, the word ' footway ' 
 being specially mentioned in the section as one of the 
 definite parts of a street which may require repair "(o). 
 
 (m) Clacton Local Board v. Young (1895), 1 Q. B. 395 ; 64 L. J. M. C. 
 124 ; 71 L. T. 877 ; 43 W. R. 219 ; 59 J. P. 581. 
 
 (ri) Wakefield Urban Sanitary Authority v. Mander (1880), 5 C. P. D. 
 248 ; 28 W. R. 922 ; 44 J. P. 522. 
 
 (o) Ibid., p. 252, per DENMAN, J.
 
 40 To WHAT STEEETS THE ACT APPLIES. 
 
 CHAP. III. I n this case, as the whole length of pavement was 
 being repaired, no question arose as to dividing the road 
 transversely also, and the court had not to consider how 
 the apportionment would have had to be made, if only 
 one-half (in length) of the southern pavement had needed 
 repair; but in a later case, KOMER, J. (p), clearly regarded 
 the same section as allowing a transverse division. 
 
 On turning to s. 6 (1) of the Private Street Works Act, it 
 will be observed that the Legislature have used language 
 materially differing from that used in s. 150 of the 
 Public Health Act, 1875. They have omitted the words 
 "carriageway, footway, or any other part," which clearly 
 pointed to longitudinal division ; and the liability is 
 now imposed, not on premises fronting, adjoining, or 
 abutting on such parts of the street as may require 
 to be sewered, etc., but " on the premises fronting, 
 etc., on the street or part of the street" with respect 
 to which it has been resolved to execute private street 
 works. The alteration can hardly have been other than 
 intentional, and in the view of the authors, a local 
 authority under the present Act must deal with a whole 
 street, or a "length" of it for the full width, and 
 apportion the cost on the frontagers on both sides. In 
 support of this view may be cited a dictum of JESSEL, 
 M.E. (q), to the effect that the primary meaning of " part 
 of a street " is a part ascertained by a transverse section. 
 If this be so, there is, it is submitted, nothing in the Act 
 calling for a different meaning ; in fact the general idea 
 of the Act appears to contemplate such an interpretation. 
 
 Having formed some idea as to the probable meaning 
 of the words, we must now consider the only case (r) so 
 
 (p} Handsworth Local Board v. Taylor (1893), repd. (1897), 2 Ch. 
 442, n. ; 69 L. T. 798 ; 58 J. P. 9. 
 
 (q) Mile End Vestry v. Whitechapel Union (1877), 1 Q. B. D. 680 ; 
 46 L. J. M. C. 138 ; 35 L. T. 354 ; 24 W. R. 719 ; 40 J. P. 565. See also 
 Paddington Vestry v. N. Met. Rail. Co. (1894), 1 Q. B. 633 ; 63 L. J. Q. B. 
 316 ; 58 J. P. 413. 
 
 (r) Clacton Local Board v. Young (1895), 1 Q. B. 395 ; 64 L. J. M. C. 
 124 ; 71 L. T. 877 ; 43 W. R. 219 ; 59 J. P. 581.
 
 " PART OF A STREET." 41 
 
 far decided upon them. It was proposed to make up, under CHAP. III, 
 the Private Street Works Act, a street with a roadway 
 and a 12-ft. footpath upon the north side only, and the 
 surveyor had apportioned the expenses of paving and 
 kerbing such footpath among the owners of premises 
 abutting on the north side of the street only. The street 
 had buildings on the north side, being bounded almost 
 entirely on the south side by land of the local authority, 
 which land was open to the public and used for pedestrian 
 traffic. The other expenses of the proposed works were 
 apportioned among the owners of properties abutting on 
 both sides of the street, including the local authority 
 themselves. The owners of the premises on the north 
 side of the street contended that the apportionment 
 was incorrect in principle and that the whole of the 
 expenses of the works should have been added together 
 and apportioned among all the owners on both sides 
 according to frontage. POLLOCK, B., in delivering the 
 judgment of the court said : " In the present case the 
 street is entirely a new street, and it seems to me that it 
 must be dealt with as a whole, and that all persons are 
 liable to contribute to the expenses, whose premises front, 
 adjoin, or abut on the street. The only thing which 
 militates against this view is the use of the expression 
 'or part of a street,' but here we are dealing with a 
 new road, and we cannot read those words as implying 
 a longitudinal division, for in that case owners could be 
 taxed at a point where no improvement was being made." 
 
 It must be confessed that the reasoning in this judg- 
 ment is not easy to follow ; and in any case it can only 
 be regarded as conclusive in the case of a new road. It 
 would seem, however, that if in the future a second 
 footpath were added on the south side, the expenses 
 ought in fairness to be borne by the owners on both 
 sides ; and further there is no obvious reason for treating 
 in different ways, (1) a new road requiring at present 
 only a roadway and one pavement, and (2) an old road
 
 42 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 " Satisfaction 
 of the 
 authority." 
 
 " From time 
 to time." 
 
 requiring for the moment repairs to the roadway and one 
 of two pavements only, or even to one pavement only. 
 
 The authors therefore venture to repeat the opinion 
 already expressed that " part of a street " must be read 
 as meaning any given length of a street from side to side, 
 admitting of no longitudinal division, except where part 
 of the street is already a highway, repairable by the 
 inhabitants at large (as to this, see p. 61), in which case 
 the new portion is really a " street " in itself. 
 
 It must be remembered that an authority who have 
 resolved to deal with a street as a whole cannot afterwards 
 divide it into sections for the purpose of the apportion- 
 ment (s} . Circumstances, however, may render it desirable 
 to deal with a street by sections, instead of undertaking 
 all the necessary repairs throughout the street at once. 
 Such a course was apparently contemplated by EOMER, J., 
 in Handsivorth Local Board v. Taylor (t), where he 
 said : " If a part of the street be sewered to the 
 satisfaction of the board, as the sewering of part of the 
 street, then the board cannot under the section (s. 150), 
 put on the frontagers of that part the expense of 
 sewering the rest of the street, or of making a new 
 sewer for the whole street, or of altering the sewers of 
 that part of it." 
 
 "To tlie satisfaction of the urban authority "; "May from 
 time to time resolve." To entitle the local authority to act 
 under the Act, it must appear that a street is not sewered, 
 made good, etc., to their satisfaction. This is a question 
 of fact (u) , and one which goes to the root of their 
 jurisdiction to execute work at the expense of the 
 frontagers. 
 
 The questions of " satisfaction " and the exercise of 
 
 (s) WMtchurch v. Fulham (1866), L. R. 1 Q. B. 233 ; 30 J. P. 229 ; 35 
 L. J. M. C. 145 ; 13 L. T. 631 ; 14 W. R. 277. 
 
 (t) (1893), reported (1897), 2 Ch. 442, n. ; 69 L. T. 798 ; 58 J. P. 9. 
 
 (u) Walthamstow Local Board v. Staincs (1891), 2 Ch. 606 ; 60 
 L. J. Ch. 738 ; 65 L. T. 430 ; 7 T. L. R. 446.
 
 " SATISFACTION " " FROM TIME TO TIME." 43 
 
 the powers " from time to time," must be considered CHAP, ill, 
 under two heads : 
 
 (1) SEWERING. 
 
 It was decided under s. 150 of the Public Health Act, (i.) Sewering. 
 1875, that having regard to the duties as to sewers 
 imposed upon the local authority by that Act, owners 
 could not be called upon to again sewer a street, if 
 the authority had once approved it as being properly 
 sewered. 
 
 In 1887, in the leading case (#) upon the point, the 
 Court of Appeal laid down, that after a sewer has been 
 made in a street by owners of property and has become 
 vested in the local authority, it is the duty of the local 
 authority to see whether the sewer be sufficient for the 
 drainage of the street for the purposes of which it was 
 then used ; that the local authority are entitled to a 
 reasonable time within which to make up their minds 
 whether the sewer be sufficient, but if, after the lapse of 
 such reasonable time, they have done nothing, and 
 expressed no view on the subject, their silence must be 
 taken to be conclusive as a matter of fact that at that 
 time they were satisfied with the sewer for the purposes 
 for which it was then used. And in 1893 the same 
 tribunal refused to accept the contention that there 
 could be no such binding approval in the case of a sewer 
 not complete as a whole, or not effective for want of an 
 outfall (y) : in this instance an owner had laid down 
 his section of a sewer according to a building scheme 
 submitted to the local authority, who expressed their 
 satisfaction (which, as the Court pointed out, they need 
 not have done) ; it was held that having expressed 
 themselves satisfied with the work, they could not go 
 back upon their decision, because somebody else had not 
 
 (a;) Bonella v. Twickenham Local Board (1887), 20 Q. B. D. 63 ; 57 
 L. J. M. C. 1 ; 58 L. T. 299 ; 36 W. R. 50 ; 52 J. P. 356. 
 
 (y) Hornsey Local Board v. Davis (1893), 1 Q. B. 756 ; 62 L. J. Q. B 
 427 ; 68 L. T. 503 ; 57 J. P. 612.
 
 44 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. done that which was necessary to make the work an 
 effective sewer. 
 
 These decisions, however, must be read subject to one 
 qualification, viz., that an authority may approve a sewer 
 as sufficient for the present needs of one or more houses 
 without necessarily intending to approve it as a satis- 
 factory sewer for the street in question (z) . In the words 
 of KEKEWICH, J., "I think it would be wrong to say that 
 a street is ' sewered ' when there is nothing more than 
 a series of sewers draining some of the houses on one 
 side in one direction, and some of the houses on the 
 other side in another direction, and not forming parts of 
 one system." But, as the learned judge pointed out, 
 that was a matter for the authority to decide, and the 
 question for him was, had they in fact approved the 
 street as properly sewered ? And he proceeded : ". . . It 
 seems to me, therefore, that, remembering that this street 
 was in the meantime growing, the local authority had 
 not exhausted the time allowed them ; for in such cases, 
 the time within which the local authority are to deter- 
 mine whether a street has been sufficiently sewered or 
 not, must be an elastic one depending upon the circum- 
 stances. Here the local authority cannot be taken in 
 law to have come to the conclusion that this street was 
 sufficiently sewered. As I have already mentioned, they 
 certainly never came to that conclusion in fact. On the 
 contrary, when first the matter is brought before them, 
 they are clearly of opinion that it is not sufficiently 
 sewered, and they take proceedings on that footing. It 
 seems to me they were strictly right, and that they acted 
 within the provisions of the statute " (a). 
 
 In another case (b), CHANNELL, J., in a considered 
 
 (2) Handsworth Local Board v. Taylor (1893), reported (1897), 2 Ch. 
 442, n. ; 69 L. T. 798 ; 58 J. P. 9. 
 
 (a) Handsicorth District Council v. Derrington (1897), 2 Ch. 433 ; 61 
 J. P. 518 ; 66 L. J. Ch. 691 ; 77 L. T. 73. 
 
 (b) Rishton v. Haslingden Corporation (1898), 1 Q. B. 294 ; 67 L. J. Q. B. 
 387 ; 62 J. P. 85 ; 77 L. T. 620.
 
 "SATISFACTION" "FROM TIME TO TIME." 45 
 
 judgment of himself and HAWKINS, J., expressed an opinion CHAP, ill. 
 
 (unnecessary to the decision of that case) that where a 
 
 street was in fact sewered, although very imperfectly, 
 
 but there had been no change whatever in the street for 
 
 seventy years, and the authority had been content with 
 
 it ever since they became an authority, they could not 
 
 say they were dissatisfied with it. He added, " We think 
 
 that the decision of EOMER, J., in Handsworth Local Board 
 
 v. Taylor (supra), applies only to a ' growing ' street, and 
 
 in the present case, if there had been new buildings 
 
 fronting this street, the authority might have said they 
 
 had never been satisfied with the sewering of the street, 
 
 which it had become. They have, however, been satisfied 
 
 with the sewering of the street, which in fact it is." 
 
 It follows from the above cases and particularly from 
 the judgment of Lord ESHER, M.R., in Bonellav. Twicken- 
 ham (supra}, that, if a local authority at any time think 
 it desirable with regard to the general requirem ents of 
 the district to alter their system of sewerage, they cannot 
 call upon the frontagers in a private street to construct 
 a new sewer in relation to such general requirements, 
 when they have expressed themselves as satisfied, or 
 owing to lapse of time must be deemed to have been in 
 fact satisfied, with the existing sewer as a sewer for the 
 particular street. 
 
 The above decisions are all apparently applicable to 
 the Private Street Works Act. 
 
 (2) WORKS OTHER THAN SEWERING. 
 
 On s. 150 of the Public Health Act, 1875, it has been (ii.) Works 
 decided that so long as a street is not a highway repair- otter . tliai1 
 
 o r 
 
 able by the inhabitants at large, and is not paved, etc., to 
 the satisfaction of the local authority, the local authority 
 may call on the frontagers to pave, etc., from time to 
 time as occasion may require (c) . The court again 
 repeated their opinion that this principle does not apply 
 
 (c) Barry aiid Cadoxton Local Board \. Parry (1895), 2 Q. B. 110 ; 64 
 L. J. Q. B. 512 ; 72 L. T. 692 ; 43 W. R. 504 ; 59 J. P. 421.
 
 46 
 
 To WHAT STREETS THE ACT APPLIES. 
 
 CHAP. III. 
 
 "What work 
 may be done. 
 
 How far a 
 
 street may 
 be altered. 
 
 to sewering. Lord KUSSELL, C.J., also said : " I think 
 that if a private street is put into a condition in respect 
 of paving, etc., with which the local authority ought in 
 reason to be satisfied, they cannot lawfully express dis- 
 satisfaction and require the work to be done all over again 
 before it falls again into disrepair. Upon this point, 
 however, I understand my learned brother (CHARLES, J.), 
 is not prepared to go so far." 
 
 The decision in the last-mentioned case and the 
 insertion in the Private Street Works Act of the words 
 "from time to time," enable a local authority to execute 
 private street works (except sewering) from time to time 
 as occasion may require unless and until the street has 
 been declared to be a highway repairable by the inhabi- 
 tants at large. 
 
 The authors further, with great respect, submit that 
 the principle enunciated in the dictum of the late Lord 
 KUSSELL, C. J., that if a local authority ought in reason to 
 be satisfied with any of the works mentioned in the 
 Private Street Works Act, they cannot lawfully express 
 dissatisfaction, is sound law, and that if justices were to 
 find, upon a sufficiency of evidence, that a local authority 
 were acting unreasonably, their finding would not be 
 disturbed ; in fact s. 7 (d) appears to be expressly intended 
 to meet such a case. 
 
 " To sewer, level, pave, metal, flag, channel, or make 
 good, or provide proper means for lighting." It is provided 
 by s. 5 that : 
 
 "Words referring to 'paving, metalling, and flagging' 
 shall be construed as including macadamising, 
 asphalting, gravelling, kerbing, and every method 
 of making a carriageway or footway." 
 
 " Means for lighting" will not of course include the 
 provision of gas, or electric power. 
 
 Under s. 150 of the Public Health Act it was held 
 that an authority must deal with a " street as they find
 
 WHAT WORK AN AUTHORITY MAY DO. 47 
 
 it" (d). Further, they could not require an owner to level CHAP. III. 
 
 a street, upon which his property fronted, so as to bring 
 
 it into conformity with the level of other streets (e) . 
 
 And again, where it appeared that, at the time of a 
 
 street being laid out by a building owner, an authority 
 
 had approved plans showing the respective widths of 
 
 the intended roadway and pavement, the Court of Appeal 
 
 held (d) that s. 150 gave them no power to widen the 
 
 one at the expense of the other ; that the street was 
 
 laid out in accordance with the plans which had been 
 
 approved, and it was that street which the local authority 
 
 had power to make good, and they had no power to alter 
 
 the proportions of carriageway and footway and make 
 
 good a street different from that which was approved. 
 
 The present statute is, however, wider in its terms : it Incidental 
 contains a section (9 (1)) providing for "incidental 
 works " : 
 
 " 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 inhabi- 
 tants at large), including the provision of separate 
 sewers for the reception of sewage and of surface 
 water respectively." 
 
 This section is evidently intended to avoid the diffi- 
 culty experienced in Carey's Case : how far it enables an 
 authority to alter a street has yet to be decided. 
 
 It should be pointed out that any alteration causing Compensation 
 damage to an adjoining owner will render the local 
 authority liable to pay compensation under s. 308 (/) of 
 
 (d) Robertson v. Mayor, &c. of Bristol (1900), 2 Q. B. 198 ; 64 J. P. 389. 
 
 (e) Careij v. Kingston-on-Hull (1865), 34 L. J. M. C. 7 ; 29 J. P. 116 ; 
 13 W. E. 143 ; 11 L. T. 339. 
 
 (/) See Appendix for this section.
 
 48 WHAT WORK AN AUTHORITY MAY DO. 
 
 CHAP.JU. the Public Health Act, 1875, for by s. 1 of the Private 
 Street Works Act, that Act is to be construed as one 
 with the Public Health Acts, including the Public 
 Health Act, 1875 (g). Cases therefore decided as to 
 injuries done by a local authority when acting under 
 s. 150 of the Public Health Act, 1875, or the correspond- 
 ing section of the Public Health Act, 1848, are equally 
 applicable to injuries done when acting under the Private 
 Street Works Act. As an instance of the kind of damage 
 most likely to be caused may be cited the case of R. v. 
 Wallasey Local Board (h), where a local board acting 
 under the Act of 1848 altered the level of a street, and 
 thereby rendered the access to an adjoining house difficult 
 and dangerous : it was held that the owner was entitled to 
 compensation. 
 
 Nature of Expenses of Private Street Works. Section 23 provides 
 
 expenses. 
 
 "All expenses incurred or payable by an urban 
 authority and a rural sanitary authority respec- 
 tively in the execution of this Act, and not other- 
 wise provided for, may be charged and defrayed 
 as part of the expenses incurred by them respec- 
 tively in the execution of the Public Health Acts." 
 
 The mode of defraying the expenses of an urban 
 authority is prescribed by s. 207 of the Public Health 
 Act, 1875, for which vide the Appendix. 
 
 The expenses of a rural authority are provided for by 
 s. 229, for which also see the Appendix. 
 
 In a rural district, however, it would be manifestly 
 unfair for, say, nineteen out of the twenty contributory 
 places comprised in the district to be called upon to pay 
 towards the expenses of private street improvements in 
 the twentieth. To obviate this injustice it is the practice 
 of the Local Government Board, in their Order putting 
 
 (g) Short Titles Act, 1892 (55 & 56 Viet. c. 10). 
 
 (h) (1869), L. E. 4 Q. B. 351 ; 38 L. J. Q. B. 217 ; 21 L. T. 90 ; 17 
 W. R. 766 ; 33 J. P. 677.
 
 NATURE OF THE EXPENSES. 49 
 
 the Act in force in any contributory place in a rural CHAP. III. 
 district, to provide that " the expenses incurred or pay- 
 able by a rural district council in the execution of the 
 powers conferred upon them by the Order, except so far 
 as such expenses may relate to their establishment 
 and officers, shall be deemed to be ' special expenses ' 
 within the meaning of the Public Health Act, 1875, and 
 shall be charged as such upon the contributory place." 
 
 The mode of raising special expenses in any con- 
 tributory place is prescribed by s. 230 of the Public 
 Health Act, 1875, for which vide Appendix. 
 
 Seeing that an authority cannot recover anything from How a local 
 the adjoining owners until the works have been completed, providfLr" 11 
 and the final apportionment made and settled, it is meeting the 
 necessary to consider what they must do in the meantime 
 to enable them to meet the expenses. 
 
 1. They may treat the expenses as current and draw 
 on their treasurer in the ordinary course. 
 
 2. (a) If an urban authority, they may borrow the 
 money ; for s. 18 provides that 
 
 " The urban authority may from time to time, with 
 the sanction of the Local Government Board, 
 borrow, on the security of the district fund and 
 general district rates or other rate out of which 
 the general expenses incurred under the Public 
 Health Act, 1875, are payable, moneys for the 
 purpose of temporarily providing for expenses of 
 private street works, and the powers of the urban 
 authority to borrow under the Public Health Acts 
 shall be available as if the execution of private 
 street works under this Act were one of the 
 purposes of the Public Health Act, 1875." 
 
 (b) If a rural authority, the order of the Local Govern- 
 ment Board may invest them with the necessary 
 borrowing power. 
 
 p.s. E
 
 50 
 
 PROVISION FOR THE EXPENSES. 
 
 CHAP. III. 
 
 How a local 
 authority are 
 to deal with 
 the expenses in 
 their accounts. 
 
 Authority may 
 contribute 
 towards the 
 expenses. 
 
 The sections relating to borrowing (applicable alike 
 to urban and rural councils) contained in the Public 
 Health Act are 233 243, and they will be found set out 
 in the Appendix. 
 
 It is obvious that a local authority should resort to 
 the expedient of borrowing, wherever they do not 
 propose to recover the whole of the expenses from 
 the owners forthwith after the settling of the final 
 apportionment. 
 
 Section 21 provides 
 
 " (1) The urban authority shall keep separate accounts 
 of all moneys expended and recovered by them in 
 the execution of the provisions of this Act relating 
 to private street works. 
 
 (2) All moneys recovered by the urban authority 
 under this Act in respect of street works shall be 
 applied in repayment of moneys borrowed for the 
 purpose of executing private street works, or if 
 there is no such loan outstanding then in such 
 manner as may be directed by the Local Govern- 
 ment Board." 
 
 Section 15 provides that 
 
 " The urban authority, if they think fit, may at any 
 time resolve to contribute the whole or a portion 
 of the expenses of any private street works, and 
 may pay the same out of the district fund or 
 general district rate or other rate out of which 
 the general expenses incurred under the Public 
 Health Act, 1875, are payable." 
 
 The object of this section was no doubt to get over the 
 difficulties presented by such cases as Dryden v. Over- 
 seers of Putney (i), and Attorney -General v. Wandsworth. 
 
 (i) (1877), 1 Ex. D. 223 ; 34 L. T. 69 ; 40 J. P. 263.
 
 CHURCHES, RAILWAYS, CANALS, THAMES CONSERVANCY. 51 
 
 District Board of Works (j), wherein it was held that it CHAP. ill. 
 was compulsory upon a local authority to obtain payment 
 of expenses, of the nature of private street works 
 expenses, from the adjoining owners. 
 
 Having pointed out that the authority may, if they HOW far the 
 think fit, themselves contribute towards the expenses, we autho "ty can 
 
 f apportion the 
 
 must now consider how far they can recover such expenses expenses on 
 from the adjoining owners or other persons benefited. 
 
 The ground may be to some extent cleared by referring 
 at once to three sections of the statute which either 
 partially relieve, or entirely exempt, certain individuals 
 and corporations. 
 
 16. The incumbent or minister or trustee of any ( a ) Special 
 church, chapel, or place appropriated to public statutor .y 
 
 T lu- t- u * At - u exemptions. 
 
 religious worship, which is for the time being (i , Exemption 
 by law exempt from rates for the relief of the from expenses 
 poor, shall not be liable to any expenses of 
 private street works as the owner of such church, 
 chapel, place, or of any churchyard or burial 
 ground attached thereto, nor shall any such 
 expenses be deemed to be a charge on such 
 church, chapel, or other place, or on such church- 
 yard or burial ground, or to subject the same to 
 distress, execution, or other legal process, but the 
 proportion of expenses in respect of which an 
 exemption is allowed under this section shall be 
 borne and paid by the urban authority. 
 
 Apparently, in a fit case, e.g., where a church has no 
 access to any particular street, the authority could, 
 subject to objection being made by other owners to the 
 adoption of this course, avoid the bearing of the share 
 of the cost which would have been apportioned upon 
 the premises so exempted, if they proceed upon the 
 " benefit " basis under s. 10 and assess the benefit to 
 the exempted premises as " nil." 
 
 (j) (1877), 6 Ch. D. 539 ; 46 L. J. Ch. 771. 
 
 E 2
 
 52 
 
 RECOVERY OF THE EXPENSES. 
 
 CHAP. III. 
 
 (ii.) Railways 
 and canals 
 abutting but 
 not communi- 
 cating with 
 streets not to 
 be chargeable 
 with private 
 street expenses. 
 
 22- No railway or canal company shall be deemed 
 to be an owner or occupier for the purposes of 
 this Act in respect of any land of such company 
 upon which any street shall wholly or partially 
 front or abut, and which shall at the time of 
 the laying out of such street be used by such 
 company solely as a part of their line of railway, 
 canal, or siding, station, towing path, or works, 
 and shall have no direct communication with such 
 street ; and the expenses incurred by the urban 
 authority under the powers of this Act which, 
 but for this provision, such company would be 
 liable to pay, shall be repaid to the urban 
 authority by the owners of the premises included 
 in the apportionments, and in such proportion as 
 shall be settled by the surveyor ; and in the event 
 of such company subsequently making a com- 
 munication with such street they shall, notwith- 
 standing such repayment as last aforesaid, pay to 
 the urban authority the expenses which, but for 
 the foregoing provision, such company would in 
 in the first instance have been liable to pay, and 
 the urban authority shall divide among the owners 
 for the time being included in the apportionment 
 the amount so paid by such company to the urban 
 authority, less the costs and expenses attendant 
 upon such division, in such proportion as shall 
 be settled by the surveyor, whose decision shall 
 be final and conclusive. This section shall not 
 apply to any street existing at the date of the 
 adoption of this Act. 
 
 This section, which applies only to streets not existing 
 at the date of the adoption of the Act (k), will in many 
 cases press hardly upon the other owners, and it will be 
 noticed that in the event of any repayment the person to 
 benefit will be the owner for the time being and not 
 
 post. 
 
 As to the liability of railways and canals in other cases see p. 56,
 
 APPORTIONMENT. 53 
 
 necessarily the person who bore the original burden ; CHAP. III. 
 moreover there appears to be no means of questioning 
 the decision of the surveyor as to the division of the sum 
 repaid by the company. 
 
 26. This Act shall not extend to prejudice or (iii.) Protec- 
 
 derogate from the estates, rights, and privileges servators of* 
 
 of the Conservators of the River Thames, or the River 
 
 render them liable to any charges or payments ames ' 
 in respect of any of their works on or upon the 
 shores of the River Thames. 
 
 Apart from the special exemptions just dealt with, the (b) Liability 
 liability to contribution depends upon the provisions of ^e^seTVfart 
 ss. 6, 9, and 10, and decisions upon them, or upon similar from such 
 provisions in other statutes. exemptions. 
 
 (The method of raising objections to an apportionment 
 of expenses is dealt with later (I).) 
 
 Section 6 (1) of the Act provides that the expenses 
 incurred by the authority in executing private street 
 works shall be apportioned (subject as in the Act men- 
 tioned(w) ) on the premises fronting, adjoining or abutting 
 on the street or part of a street in respect of which 
 private street works are carried out. 
 
 Section 6 (2) (b) and (c) provide respectively that the 
 surveyor shall prepare an estimate of the probable 
 expenses of the works, and also a provisional apportion- 
 ment of the estimated expenses among the premises 
 liable to be charged therewith under the Act, and the 
 section then goes on to provide that such estimate and 
 provisional apportionment shall comprise the particulars 
 prescribed in Part I. of the Schedule to the Act, and 
 further provides for their approval by the authority. 
 
 Section 9 (2) provides that the authority in the estimate 
 may include a commission not exceeding five pounds per 
 
 (0 See chap. IV. 
 
 (in) I.e., subject to s. 10, infra.
 
 54 EECOVERY OF THE EXPENSES. 
 
 CHAP. III. centum"7(m addition to the estimated actual cost) in 
 respect of surveys, superintendence and notices, such 
 commission when received to be carried to the credit of 
 the district fund. 
 
 Basis of Section 10 is the one actually providing for the manner 
 
 apportionment. Q j ma ] im g ^he apportionment of expenses, and is as 
 follows : 
 
 10. In a provisional apportionment of expenses of 
 private street works the apportionment of expenses 
 against the premises fronting, adjoining, or 
 abutting on the street or part of a street in 
 respect of which the expenses are to be incurred 
 shall, unless the urban authority otherwise 
 resolve, be apportioned according to the frontage 
 of the respective premises ; but the urban autho- 
 rity may, if they think just, resolve that in 
 settling the apportionment regard shall be had to 
 the following considerations ; (that is to say,) 
 
 (a) The greater or less degree of benefit to be 
 
 derived by any premises from such works ; 
 
 (b) The amount and value of any work already 
 
 done by the owners or occupiers of any such 
 premises. 
 
 They may also, if they think just, include any premises 
 which do not front, adjoin, or abut on the street 
 or part of a street, but access to which is obtained 
 from the street through a court, passage, or other- 
 wise, and which in their opinion will be benefited 
 by the works, and may fix the sum or propor- 
 tion to be charged against any such premises 
 accordingly. 
 
 "Premises" Premises; Owners. It now becomes necessary to 
 
 and "owners." examine more closely the words and phrases used in the 
 
 sections just referred to. First in order comes the word 
 
 " premises " ; and, since the inquiry as to what premises
 
 "PREMISES" "OWNERS." 55 
 
 are within the scope of the Act involves the consideration CHAP. III. 
 of who is an " owner " within the Act, both points will 
 be dealt with at the same time. 
 
 According to the definition contained in s. 4 of the 
 Public Health Act, 1875, and therefore applicable to this 
 Act, the word premises is to " include messuages, build- 
 ings, lands, easements and hereditaments of any tenure." 
 This wide definition has been somewhat narrowed by 
 judicial decisions upon the Public Health Acts, and 
 similarly worded statutes (e.g., the Metropolis Manage- 
 ment Acts). The combined effect of ss. 13 and 14 of 
 this Act and s. 257 of the Public Health Act, 1875, is 
 that the statute has no application to premises which 
 have no " owner," and owner is denned by s. 4 of the 
 Public Health Act, 1875, as meaning (not including) 
 
 "the person for the time being receiving the rack 
 rent of the lands or premises, in connection with 
 which the word is used, whether on his own 
 account or as agent or trustee for any person, or 
 who would so receive the same if such lands or 
 premises were let at a rack rent ; " 
 
 and rack rent 
 
 " means rent which is not less than two-thirds of the 
 net annual value of the property out of which the 
 rent arises " () 
 
 Now some lands and premises are for all time physi- 
 cally and legally incapable of profitable and beneficial 
 enjoyment (o) ; in such a case there can be no rack rent 
 and therefore no owner, and therefore the Act does not 
 apply. In the words of Lord WATSON, " the person 
 vested with the property of heritable subjects which have 
 been placed extra commercmm, or are subject in perpetuity 
 
 (n) For the meaning of " net annual value," see the definition in extcnso, 
 on p. 116. 
 
 (o) FuUiam v. Mintcr (1901), 1 K. B. 501 ; 70 L. J. K. B. 348 ; 84 L. T. 
 49 ; 49 W. R. 415 ; 65 J. P. 180.
 
 56 
 
 RECOVEKY OF THE EXPENSES. 
 
 Railways and 
 canals. 
 
 CHAP. III. to the burden of a public right, which deprives him of 
 their beneficial use, is not an owner of land within the 
 meaning of the 77th section of the Act of 1862 " (Metro- 
 polis Management Act) (p\. The following decisions 
 illustrate the working of this exception : 
 
 Churches, etc. (a) A church was held not to fall within the scope of 
 the Metropolis Management Acts (q). Now, however, 
 churches and chapels are specially provided for by s. 16 
 (p. 51). 
 
 (b) Speaking generally, railway and canal companies 
 were liable to an apportionment in respect of any of their 
 premises which abutted upon the street in question, 
 whether such premises were on the same level as (?), or 
 higher, or lower than the street ; thus they were held to 
 be " owners of premises " in respect of the retaining 
 walls of a cutting () and of an embankment (t), where such 
 walls formed the boundary of a street. In one case (?<), 
 however, property of a railway company was held to be 
 excluded from the operation of similar Acts : it was 
 sought to make the company liable in respect of their 
 ownership of the parapets of a bridge built and main- 
 tained by them in order to carry a highway across their 
 line, which at the spot ran in a deep cutting. The 
 House of Lords, whilst approving the above-mentioned 
 cases, decided in favour of the company on the ground 
 that these parapet walls were not necessary for the con- 
 struction of the line and the protection of the traffic 
 upon it, and did not in fact form any part of the works 
 from which the company was deriving profit. 
 
 (p) G. E. Hail. v. Hackney Board of Works (1883), 8 A. C. 687 ; 52 
 L. J. M. C. 105 ; 49 L. T. 509 ; 31 W. R. 769 ; 48 J. P. 52. 
 
 (q) Angell v. Paddington (1868), L. R. 3 Q. B. 714 ; 37 L. J. M. C. 171 ; 
 32 J. P. 742. 
 
 () R. v. Newport Local Board (1863), 32 L. J. M. C. 97 ; 11 W. R. 263. 
 
 (s) L. tfc N. W. Rail. v. St. Patterns (1868), 17 L. T. (N.S.) 654. 
 
 (1) Higgins v. Harding (1873), L. R. 8 Q. B. 7 ; 42 L. J. M. C. 31 ; 27 
 L. T. 483 ; 21 W. R. 191 ; 37 J. P. 677. 
 
 (M) G. E. Rail. v. Hackney Board of Works, supra.
 
 " PREMISES " " OWNERS." 57 
 
 These decisions as to railway and canal companies CHAP, ill. 
 are applicable to the Private Street Works Act, except in 
 the case of a street which did not exist at the date of the 
 adoption of the Act : see s. 22, supra, at p. 52. 
 
 (c) It has been decided that the proprietor of the soil Cross streets. 
 of a cross street running into the street to be paved is 
 
 not an owner liable to be charged in respect of the abut- 
 ment of such cross street, provided that it has been 
 dedicated to the public (x). He is, however, liable if he 
 has merely laid out such street as a private road, for it is 
 still in his power to resume possession, or charge his 
 tenants a rent for using it (?/). 
 
 (d) Schools are "premises" within the meaning of Schools, 
 the Act, whether they are board schools (z) , or are vested 
 
 in trustees (a) : in the latter case the trustees are the 
 " owners." 
 
 (e) A cemetery belonging to an incorporated company Cemeteries. 
 was held liable for paving expenses under the Metropolis 
 Management Acts (b). 
 
 (f) A recreation and pleasure ground, the absolute Recreation 
 property of a vestry, was ruled to be not incapable of 
 becoming a source of profit (e.g., from the sale of 
 refreshments, etc.), and therefore liable for paving 
 expenses (c) ; and a similar decision was given where 
 
 (x) Plumstcad Board of Works v. British Land Co. (1875), L. R. 10 
 q. B. 203 ; 44 L. J. Q. B. 38 ; 32 L. T. 94 ; 23 \V. R. 634 ; 39 J. P. 376. 
 
 (y) Pound and Lord Northbrook \. Plumstcad Board of IVorks (1872), 
 L. R. 7 Q. B. 183 ; 41 L. J. M. C. 51 ; 25 L. T. 461 ; 20 W. R. 177 ; 36 
 J. P. 468. 
 
 (z) London School Board v. St. Mary, Islington (1876), 1 Q. B. D. 65 ; 
 45 L. J. M. C. 1 ; 33 L. T. 504 ; '24 W. R. 137 ; 40 J. P. 310. 
 
 (a) Bowdilch v. Wakefidd Local Board (1871), L. R. 6 Q. B. 567 ; 40 
 L. J. M. C. 214 ; 25 L. T. 88 ; 36 J. P. 197 ; Hornsey Urban District 
 Council v. Smith (1897), 1 Ch. 843 ; 76 L. T. 431 ; 45 W. R. 581 ; 61 
 J. P. 811. 
 
 (1) St. Giles, Cambcnccll v. London Cemetery Co. (1894), 1 Q. B. 699 ; 
 63 L. J. M. C. 74 ; 70 L. T. 734 ; 42 W. R. 446 ; 58 J. P. 382. 
 
 (c) Fulham Vestry v. JJinter (1901), 1 K. B. 501 ; 70 L. J. K. B. 348 ; 
 84 L. T. 49 ; 49 W.'R. 415 ; 65 J. P. 180.
 
 58 
 
 EECOVEKY OF THE EXPENSES. 
 
 CHAP. III. a vestry had purchased for the residue of a term the 
 centre portion of a square to be used as a pleasure 
 ground (d). 
 
 Commons. (g) The lord of a manor has been held liable to con- 
 
 tribute to paving expenses in respect of land which had 
 originally been common, but had become vested in him 
 by an Inclosure Act subject (as regarded the surface) to 
 the rights of certain cottagers (e). 
 
 The Crown. It is a principle of the common law that statutes 
 
 do not impose pecuniary burdens upon Crown property 
 unless the Crown is expressly named, or has by necessary 
 implication agreed to be bound. Thus where there is an 
 ownership and occupation solely for and on behalf of the 
 Crown, the premises are outside the scope of the present 
 or similar statutes. This principle has been held to 
 apply to premises occupied by a volunteer corps as store- 
 houses, mess-room, etc., and vested in the commanding 
 officer for the time being of the corps (/) ; in this case the 
 court spoke of ownership and occupation : it would seem, 
 however, that the exemption ought to attach, wherever 
 the Crown is the statutory " owner " of the premises, no 
 matter who occupies them, for part of the burden must 
 in any case fall on the owner. 
 
 " Owner." Owner. On p. 55, ante, the reader will find the statutory 
 
 definition of the word " owner " : the test of liability is, 
 " who receives the rack rent of the premises, or who 
 would receive it in the event of the premises being 
 let at a rack rent?" It must be remembered that 
 some premises cannot be let at a rack rent (p. 55), 
 and have therefore no owner within the meaning of, 
 the statute. 
 
 (d) St. Mary, Islington v. Cobbctl (1894), 64 L. J. M. C. 36 ; 71 L. T. 
 573 ; 43 W. R. 44 ; 58 J. P. 716. 
 
 (e) Re Christ Church Enclosure Act, Meyrick v. Attorney-General (1894), 
 3 Ch. 209 ; 63 L. J. Ch. 657 ; 71 L. T. 122 ; 42 W. R. 614 ; 58 J. P. 556. 
 
 (/) Hornscy Urban District Council v. Hcnnell (1902), 2 K. B. 73 ; 18 
 T. L. R. 512.
 
 " PKEMISES " " OWNEBS." 59 
 
 The reader will notice that agents (/*) and trustees are CHAP. III. 
 included in the liability for the expenses of private street A tg etc 
 works : it makes no difference that the agent has been 
 appointed since the final apportionment, and has not in 
 fact received any rents (i), or that the trustee holds the 
 premises for public purposes, e.g., a school (k). A re- 
 ceiver appointed by the court is not within the terms of 
 the definition (/), but it includes a second mortgagee who 
 has taken possession and collects the rent (m) . 
 
 Difficulties have arisen in determining who is the Lessees. 
 "owner" of premises where a yearly tenant has sublet. 
 The rule appears to be that such tenant becomes the 
 owner (), unless he merely sublets the whole of the 
 demised premises at exactly the same rent as he him- 
 self pays, in which case the freeholder is still in receipt 
 of the "full" rack rent and is to be regarded as the 
 "owner " (o). 
 
 In the case of a lease, or of an agreement to grant a 
 lease, for a long term of years, the fact that the free- 
 holder is receiving a substantial ground rent is not 
 sufficient to constitute him the " owner "(p). Thus 
 a builder who is in occupation of land under such a 
 lease or agreement is the "owner " of the premises (^>), 
 
 (A) See Eroadbent v. S/iepJterd (1901), 2 K. B. 274 ; 70 L. J. K. B. 628 : 
 84 L. T. 844 ; 49 W. R. 521 ; 65 J. P. 499. 
 
 (i) St. Helens v. Kirklutm (1886), 16 Q. B. D. 403 ; 34 W. R. 440 ; 5u 
 J. P. 647. 
 
 (k) Bowditch v. Wakcfield Local Board (1871), L. R. 6 Q. B. 567 ; 40 
 L. J. M. C. 214 ; 25 L. T. 88 ; 36 J. P. 197. 
 
 (1) Bucup Corporation v. Smith (1890), 44 C. D. 395 ; 59 L. J. Ch. 518 ; 
 63 L. T. 195 ; 38 W. R. 697. 
 
 (m) Tottenham Local Board v. Williamson (1893), 62 L. J. Q. B. 322 ; 
 69 L. T. 51 ; 57 J. P. 614 ; 9 T. L. R. 372. 
 
 () Cook v. Montague (1872), L. R. 7 Q. B. 418 ; 41 L. J. M. C. 149 ; 
 37 J. P. 53. 
 
 (o) Bowen v. James (1882), 10 L. R, Ir. 26 ; Walford v. Hackney 
 (1894), 11 T. L. R. 17 ; 43 W. R. 113. 
 
 (p) Poplar Board of Works v. Lowe (1874), 29 L. T. 915 ; CaudiccM v. 
 Hanson (1872), L. R.' 7 Q. B. 55 ; 41 L. J. M. C. 8 ; 25 L. T. 525 ; 20 
 W. R. 202 ; 36 J. P. 470.
 
 60 EECOVEKY OF THE EXPENSES. 
 
 CHAP. III. unless there be some provision in the agreement stipu- 
 lating that he is to have no interest in the premises 
 until the happening of some event which has not yet 
 occurred, e.g., completion of the building (q). 
 
 Where a lessee for a long term parts with the whole of 
 such term (less a few days) to a third person at a rent 
 which is not a rack rent, the assignee is the only person 
 who has it in his power during the currency of the term 
 to let the premises at a rack rent, and he is to be 
 regarded as the " owner," although he may see fit to 
 occupy them himself (r) . 
 
 Fronting, adjoining, or abutting. The liability attaches 
 although there may not be in fact any means of access 
 to the street from the premises in question. Thus a 
 railway company were held liable in respect of their 
 lines, which were 18 feet below the level of a street 
 bounded by the retaining wall of a cutting (s) ; and so 
 was the owner of a garden which was 5 feet above the 
 level of the footpath to be paved and separated from it 
 by a 12-foot wall (t). It was pointed out in the latter 
 case that, if the wall had not belonged to the owner of 
 the garden, or a strip of land had intervened (so that he 
 had no right of access), he would not have been liable. 
 So, too, where a man owned a strip of land alongside a 
 street, 265 feet long, and 4 inches wide, upon which 
 he had covenanted to maintain a fence for ever, he was 
 held liable for his share of paving expenses (//). 
 
 In all the above cases the premises in question were 
 in actual contact with the street ; and, if the words 
 
 (</) Lady Holland v. Kensington Vestry (1S78), L. R. 2 C. P. 565 ; 36 
 L. J. M. C. 105 ; 31 J. P. 758. 
 
 (r) Truman, H anbury and Buxton, Ld. v. Kcrslake (1894), 2 Q. B. 
 774 ; 63 L. J. M. C. 222 ; 43 W. R. Ill ; 58 J. P. 766. 
 
 (s) L. & N. W. Rail. v. St. Pancras (1868), 17 L. T. 654. 
 
 (t) Newport Urban Sanitary Authority v. Graham (1883), 9 Q. B. ]). 
 183 ; 47 L. T. 98 ; 31 W. R. 121 ; 47 J. P. 133. 
 
 (u) Williams v. Wandsworth Board of Works (1884), 13 Q. B. D. 211 ; 
 53 L. J. M. C. 187 ; 32 W. R. 908 ; 48 J. P. 439.
 
 "FRONTING, ADJOINING, AND ABUTTING." 61 
 
 "front," "abut," and "adjoin" are to be construed CHAP. III. 
 according to their strict meaning, it would seem that 
 such actual contact is a necessary condition of liability 
 under s. 6 (1). In one case (x), however, premises were 
 held liable where a narrow beck ran between them and 
 the street to be paved; and in a later case it was 
 suggested that possibly the word " adjoin " might be 
 stretched so far as to include premises standing behind 
 the houses actually fronting the street, if access was 
 obtained to them by a roadway leading out of the street 
 through an opening in the intervening houses (y). 
 
 It would appear that the concluding portion of s. 10 
 is due to these two cases, and in view of the enactment 
 of a definite provision for such cases, the authors submit 
 that the words "fronting," etc., must now be construed 
 strictly, and that premises not in actual contact with 
 the street, or with such part as is being dealt with, can 
 only be included on the ground of " having access." 
 
 The correctness, or otherwise, of the view put forward 
 above will be of especial importance in two cases: 
 
 (1) Where an existing road needs repairs to one footpath 
 only : assuming that the opinion expressed on p. 42 is 
 incorrect, and that such footpath can be treated by itself 
 as a " part of a street," the liability of frontagers on the 
 opposite side will depend (apart from the concluding 
 words of s. 10, as to which see p. 62) upon whether the 
 intervening roadway prevents their being regarded as 
 fronting, etc., on the part of the street to be repaired. 
 
 (2) Where a strip (whether for a footway or carriage- 
 way) is added to an old highway repairable by the public, 
 in which case the new strip may be itself a " street," the 
 same point arises. Under such circumstances it was 
 held in construing the Metropolis Management Acts that 
 
 (x) Wakcjield Local Board v. Lee (1867), 1 Ex. D. 336 ; 35 L. T. 481 ; 
 41 J. P. 54. 
 
 (y) LigMbound v. Higher Bebington Local Board (1886), 16 Q. B. D. 
 577 ; 55 L. J. M. C. 94 ; 53 L. T. 812 ; 34 W. R. 219 ; 50 J. P. 500.
 
 62 RECOVERY OF THE EXPENSES. 
 
 CHAP. III. the expenses must be apportioned only on the premises 
 actually abutting on the added strip (z). 
 
 It must be remembered that cross streets abut (to the 
 extent of their width) upon a street into which they lead 
 (p. 57), and also that the premises at the end of a 
 cul-de-sac " abut " thereon as well as those along its 
 sides (a). 
 
 Access to ichicJi is obtained from the street through a 
 court, itassage or otherwise. These words have not yet 
 been considered by the court ; and it is therefore impos- 
 sible to say with certainty how far they empower an 
 authority to include in their apportionment premises not 
 fronting, adjoining, or abutting upon the particular 
 length of street in respect of which the expenses are 
 being incurred. In at least one instance, however, an 
 authority has, in reliance upon this clause, and without 
 objection being made, included in an apportionment 
 premises abutting upon a street at a point outside the 
 limits of the proposed work. 
 
 The authors submit with deference that such a course 
 cannot be justified. Applying the ordinary rule of con- 
 struction, "otherwise" must imply some means of access 
 ejusdem generis with court or passage, and can hardly 
 include the ordinary means of access by a door or garden 
 gate opening direct into the street. The provision seems 
 to be based upon the suggestions of the Court in Light- 
 hound's Case, and to be intended to apply to premises lying 
 back from a street, yet having their proper access from 
 such street, and benefited by works carried out in it. 
 
 Further difficulty is caused by the fact that the language 
 of the statute changes suddenly from " the street or part 
 
 (z) White v. Fnlham Vestry (1896), 74 L. T. 425 ; 60 J. P. 327 ; Pro- 
 perty Ex. Co. v. Wandsworth (1902). 2 K. B. 61. 86 L. T. 481 ; see, too, 
 Richards v. Kessick (1888), 52 J. P. 756 ; 57 L.' J. M. C. 48 ; 59 L. T. 
 318 (under s. 150 of the P. H. Act). 
 
 (a) Manchester v. Chapman (1868), 37 L. J. M. 0. 173 ; 18 L. T. 640 ; 
 16 W. K. 974 ; 32 J. P. 582 ; Sheffield v. Fulham Board of Works (1876), 
 1 Ex. D. 395.
 
 " ACCESS." 63 
 
 of a street" to " the street." If this distinction is insisted CHAP, ill, 
 upon, the result will be that, if the northern end of a 
 street is to be paved, premises having access to the street 
 by an alley leading into the southern half can be made 
 liable as having access to " the street," whilst houses 
 actually abutting upon the street (but not on " the part 
 of the street"), on either side of the entrance to the alley, 
 will be exempt. 
 
 In the view of the authors, the intention of the framers 
 of the statute was that every owner of premises should 
 be liable to contribute towards the expense of paving the 
 street, or portion of a street, from which he derives most 
 benefit, and not that he should be called upon to pay 
 first for paving the part of a street upon which his 
 property abuts, and then for another part of the same 
 street on the ground of benefit. If this be correct, the 
 words " from the street " must be read as equivalent to 
 " street or part of a street," and will apply only to cases 
 where the alley or other means of access leads into the 
 street within the limits of the work.
 
 CHAPTER IV. 
 
 PROCEDURE. 
 
 I. Preliminary _--_-___ 54. 
 II. Objections to provisional apportionment, determination 
 
 thereof by justices, appeals ----- 68 
 III. Subsequent proceedings, final apportionment and objections 
 
 thereto ---------79 
 
 I. PRELIMINARY. 
 
 The first (1) The first resolution. When an urban authority 
 
 who have adopted the Private Street Works Act, or a 
 rural authority who have been invested by the Local 
 Government Board with power to put the Act in force 
 within their district, consider it desirable to carry out 
 some " private street works " contemplated by the Act, 
 the first step is to pass a formal resolution that the 
 works in question shall be done (s. 6 (1) ). 
 
 The statute does not provide for any particular notice 
 of the intention to move the resolution being given to 
 the various members of the authority. Presumably, 
 therefore, it will be sufficient to give the notice required 
 by the standing orders (if any) of the authority, or 
 ordinarily given to members in the case of non-routine 
 Its form. business. The resolution should specify clearly the 
 street or streets affected by it and the nature of the 
 proposed works, and should provide for the necessary 
 instructions being given to the surveyor to prepare the 
 various documents required by s. 6 (2) . If it is intended 
 to apportion the expense otherwise than according to 
 frontage, or to include in the apportionment premises 
 not actually fronting, adjoining, or abutting on the street 
 or part of a street in question, the resolution should 
 contain a provision to this effect (s. 10).
 
 THE FIRST RESOLUTION. 65 
 
 A specimen form of resolution will be found in the CHAP. IV. 
 Appendix. 
 
 Care must be taken that, in passing this or any other 
 statutory resolution, the proper formalities are observed 
 (see p. 8, ante). 
 
 (2) The surveyor's duties. The authority having The surveyor's 
 formally resolved to carry out works in respect of one 
 or more street or streets, or part or parts thereof, the 
 surveyor must proceed to prepare in respect of each 
 street, or part of a street, the following papers for the 
 approval of the authority (s. 6 (2), sched. pt. I) : 
 
 (i.) A specification of the works referred to in the Specification. 
 resolution, with plans and sections (if applicable). The 
 specifications must describe generally the works and 
 things to be done, and in the case of structural works 
 must specify as far as may be the foundation, form, 
 material, and dimensions thereof. The plans and sections 
 must show the constructive character of the work, and 
 the connections (if any) with existing streets, sewers, or 
 other works, and the lines and levels of the works, subject 
 to such limits of deviation (if any) as shall be indicated 
 on the plans and sections respectively. 
 
 (ii.) An estimate showing the particulars of the probable Estimate, 
 cost of the whole works, including the commission (not 
 exceeding 5 per cent.), which may be added to the 
 estimated cost, in respect of surveys, superintendence 
 and notices (s. 9 (2)). 
 
 (iii.) A provisional apportionment of the estimated Provisional 
 expenses among the premises liable to be charged there- appor 
 with under this Act. It must show in detail the amounts 
 charged on the respective premises, the names of the 
 respective owners or reputed owners (a), and also whether 
 the apportionment is made according to the frontage of 
 the respective premises or not, and the measurements of 
 
 (a) By s. 306 of the Public Health Act occupiers of premises can be 
 compelled to disclose the owners' names. 
 
 P.S. F
 
 PROCEDURE : PRELIMINARY. 
 
 CHAP. IV. 
 
 Resolution of 
 approval. 
 
 Publication 
 and notice. 
 
 Inspection of 
 plans, etc. 
 
 the frontages, and the other considerations (if any) on 
 which the apportionment is based. 
 
 As to what premises may be included, who are owners 
 of premises within the meaning of the Act, and the 
 principles upon which the apportionment must be made, 
 the reader is referred to the previous chapter. 
 
 A suggested form of apportionment will be found in the 
 Appendix. 
 
 (3) Tlie second resolution. The necessary plans, etc., 
 having been prepared, notice must be given to the 
 various members of the authority of the day upon which 
 they are to be considered. The Act contains no special 
 provisions as to such notice. 
 
 The authority may make such modifications or addi- 
 tions as may seem desirable, and a formal resolution of 
 approval must be passed (s. 6 (2) ). 
 
 For a form of resolution see Appendix, No. 10. 
 
 (4) Publication and notice of the resolution. The 
 resolution of approval must next be published in the 
 manner prescribed, i.e., by inserting the same " once in 
 each of two successive weeks (aa) in some local newspaper 
 circulating within the district, and also by publicly 
 posting the same in, or near, the street to which it 
 relates (s. 6 (3), sch. pt. II.) once at least in each of 
 three successive weeks." 
 
 For the period of one month (i.e., calendar month) 
 from the date of such first publication the approved 
 specifications, plans, and sections (if any), estimates, and 
 provisional apportionments (or copies thereof certified 
 by the surveyor) must be kept deposited at the offices of 
 the authority (b) for the purpose of inspection at all 
 reasonable times (s. 6 (3)). It is desirable that all 
 
 (aa) The insertions need not be a whole week apart : Aberdeen, City of, 
 v. Watt (1901), 3 F. 787. 
 
 (b) Where the surveyor's office is apart from the general offices of the 
 authority, deposit of plans at his office will presumably be sufficient.
 
 PUBLICATION AND NOTICES. 67 
 
 notices and advertisements of the resolution should CHAP. iv. 
 
 draw attention to the opportunities of inspection thus 
 
 given. 
 
 For form of notice see Appendix, No. 11. 
 
 Within seven days of the first publication a copy of 
 the resolution must be served on every owner of pre- 
 mises shown as liable to be charged in the provisional Mode of 
 apportionment. Upon the proper service of these copies semce - 
 depends the power of the authority to ultimately recover 
 the expenses incurred by them, and it is therefore neces- 
 sary to consider here the provisions of s. 267 of the Public 
 Health Act, 1875, as to service. By this section any 
 notice required to be given to the owner of any premises 
 may be addressed by the description of the " owner " of 
 the premises (naming them) in respect of which the 
 notice is given, without further name or description : and 
 the section also provides that a notice may be served by 
 delivering it to, or at the residence of, the person to 
 whom it is addressed ; or, where it is addressed to the 
 "owner" of premises, by delivering it, or a true copy 
 thereof, to some person on the premises, or, if there is no 
 person on the premises who can be so served, by fixing the 
 same on some conspicuous part of the premises. Advan- 
 tage may be taken of this last provision even though 
 the real owner's residence be known, and the notice be 
 addressed to him (by name) "or other the owner" (c). 
 
 As a further alternative a notice may be served by 
 post by a prepaid letter, and shall then be deemed to 
 have been served at the time when the letter would be 
 delivered in the ordinary course of post, and in proving 
 such service it will be sufficient to prove that such letter 
 was properly addressed and stamped and put into the post. 
 
 The effect of these provisions is that the authority can 
 absolutely protect themselves if all the notices are 
 
 (c) Woodford Urban District Council v. Henwood (1900), 64 J. P. 148 ; 
 Butler v. Gravescitd Urban Authority (1894), 58 J. P. 446. 
 
 F 2
 
 68 OBJECTIONS AND DEFENCES. 
 
 CHAP. IV. addressed " to A. B. (i.e., the reputed owner), or other the 
 owner of the premises known as. etc.," and served upon 
 the premises in the prescribed manner, according as they 
 are occupied or not. This course should be invariably 
 followed : duplicates can be served upon the reputed 
 owners if it be desired to do so as a matter of courtesy. 
 
 Whatever mode of service be adopted, the person 
 delivering or posting the notice should make some note 
 or memorandum, with which he may in the future 
 refresh his memory, when formal proof of service becomes 
 necessary. 
 
 II. OBJECTIONS, DETEKMINATION OF OBJECTIONS, AND 
 APPEALS. 
 
 Objections. Under this head we propose to deal with the various 
 
 grounds upon which an aggrieved owner can contest the 
 proposals of the authority, and the mode in which such 
 objections must be taken and determined. 
 
 It was, as has been pointed out in chapter L, the chief 
 defect in the corresponding provisions of the Public 
 Health Act, 1875, that the authority were liable to be 
 met at the last moment by some fatal objection, which 
 prevented them recovering from the property owners the 
 money which they had already expended. The present 
 statute to a great extent, though not entirely, gets rid of 
 this difficulty. Section 7 provides for the raising and 
 determination by justices of certain objections upon 
 the provisional apportionment, before any expense is 
 incurred ; and s. 12 (2) provides for the raising of others 
 upon the final apportionment. There are, however, one or 
 two possible grounds of objection as to which no provision 
 is made. 
 
 We propose to first discuss objections under s. 7, and 
 then those for which no provision is made. Objections 
 under s. 12 (2) can be more conveniently treated at a 
 later stage (see p. 80).
 
 OBJECTIONS. 69 
 
 1. By s. 7, " any (d) owner of any premises shown in a CHAP - IV > 
 provisional apportionment as liable to be charged" may obiections 
 object to the authority's proposals on one or more of the under s. 7. 
 grounds there set out; and by s. 8 (2), if he does not 
 raise such objection at the time and in the manner pro- 
 vided, he waives all right to rely thereon (e) (provided, of 
 course, that a copy of the resolution of approval has 
 been duly served so as to affect him with notice of the 
 proposals (/)). 
 
 It has been suggested that no owner can be heard as Who can 
 an objector unless his or her name appears hi the ob J ect - 
 apportionment : the more natural meaning of the section 
 appears to be that any one, who is in fact an owner of 
 premises which are included in the apportionment, may 
 give notice of objection, whether or not he or she is 
 named in the apportionment as the reputed owner, or 
 has been served with a copy of the resolution. 
 
 An owner, wishing to object under s. 7, must do so Notice of 
 within one month (g) of the first publication of the resolu- ob i ection8 
 tion approving the specifications, etc., by serving upon 
 the authority a written notice (h) specifying the ground 
 or grounds upon which he relies. 
 
 The following are the grounds of objection open to an 
 owner under this section : 
 
 (a) That an alleged street or part of a street is not, or 
 does not form part of. a street within the meaning of this 
 Act. As to this, see p. 12, ante. 
 
 (b) That a street or part of a street is (in whole or in 
 
 (d) Joint tenants or tenants in common may object through one of their 
 number authorised in writing under the hands of a majority of them. 
 
 (e) And see Woodford Urban District Council v. Hemmed (1900), 64 
 J. P. 148. 
 
 (/) As to the position of an owner who has not been duly served with 
 the notice, see post, p. 79. 
 
 (</) I.e., calendar month. 
 
 (A) Presumably it should be addressed to the authority (not to the chair- 
 man, as is sometimes done), and left at their office, or sent by prepaid 
 letter.
 
 70 OBJECTIONS AND DEFENCES. 
 
 GHAP. IV. part) a highway repairable by the inhabitants at large. 
 As to this, see p. 15, ante. 
 
 With regard to this objection it is necessary to consider 
 how far the authority and an objector are bound by an 
 earlier finding of a court of summary jurisdiction, that 
 the street in question is, or is not, a highway repairable 
 by the inhabitants at large. The argument in favour of 
 such earlier finding being conclusive may be put in two 
 forms : (i.) that it is a judgment in rein, the adjudication 
 of a competent tribunal upon the status of the street in 
 question, and therefore final and conclusive as against 
 all the world ; or (ii.) that, being a judgment inter paries, 
 it creates an estoppel between the parties to it and their 
 respective successors in title. 
 
 The validity of this argument has been considered in 
 two cases, in the first of which the earlier decision had 
 been given in proceedings under s. 150 of the Public 
 Health Act, whilst in the second it had been given in 
 proceedings under a Local Act identical in its terms with 
 the Private Street Works Act. 
 
 In the first-mentioned case (i) Lord SELBORNE, sitting 
 in the Court of Appeal, laid down that : (i.) there had 
 been no proceeding in rein, or adjudication upon status ; 
 (ii.) the order of a court of summary jurisdiction cannot 
 operate between the parties as an estoppel, (a) as to any 
 matter as to which that court had no authority to 
 adjudicate directly and immediately between the parties, 
 (b) as to any matter incidentally coming in question, as 
 to which a finding, if held to be conclusive between the 
 parties, would operate in prejudice of the rights of others 
 not parties to the proceeding. He then went on to hold 
 that there was in that particular case no estoppel, for 
 the justices upon the earlier hearing had, under s. 150, 
 no jurisdiction to adjudicate directly or immediately upon 
 the status of the street their jurisdiction being merely 
 
 (i) R. v. Hutcliins (1881), 6 Q. B. D. 300 ; 50 L. J. M. C. 35 ; 44 L. T. 
 364 ; 29 W. R. 724 ; 45 J. P. 504.
 
 OBJECTIONS. 71 
 
 to make, or refuse, an order for payment of apportioned CHAP. IV. 
 expenses; and that the question was at most one "inci- 
 dentally cognisable " by them, the decision of which might 
 if held to be conclusive, prejudice other persons. 
 
 In the later case (k) it was argued that the wording of 
 the sections in the Local Act, corresponding to ss. 7, 8 
 of the Private Street Works Act, had now given the 
 justices authority to adjudicate directly upon the status 
 of the street, and that their finding created an estoppel. 
 A Divisional Court has decided against this contention, 
 holding that the true jurisdiction of the justices is con- 
 fined to quashing, amending, or confirming the proposals 
 of the authority, and that the effect of the sections 
 referred to was merely to enable and compel owners to 
 raise certain specified objections at a preliminary stage 
 of the proceedings. 
 
 Doubts have been thrown upon the correctness of this 
 ruling, and the reader will therefore do well to look for the 
 decision of the Court of Appeal, to which (it is believed) 
 the case is to be taken. As the law stands at present, 
 however, a finding of justices, either under s. 150 of the 
 Public Health Act, or under ss. 7, 8 of the Private Street 
 Works Act, may be contested on the same, or additional, 
 evidence in subsequent proceedings before the justices. 
 
 (c) That there has been some material informality, 
 defect, or error in or in respect of the resolution, notice, 
 plans, sections, or estimates. As to this, see chapter II. 
 and chapter IV., part I. This sub-section does not 
 include errors in the apportionment. 
 
 (d) That the proposed works are insufficient or 
 unreasonable, or that the estimated expenses are exces- 
 sive. The words " insufficient " and "unreasonable" 
 have been judicially interpreted (/). Insufficient points 
 
 (it) Walcefield Corporation v. Cooke (1902), 1 K. B. 188 ; 18 T. L. E, 193 ; 
 see also Scott v. Lowe (1902), 86 L. T. 421. 
 
 (1) Mansfield Corporation v. Buttencorth (1898), 2 Q. B. 274 ; 62 J. P. 
 500 ; 67 L. J. Q. B. 709 ; 78 L. T. 527 ; 46 W. R. 650 ; Sheffield Corpora- 
 tion v. Alexander (1895), 64 L. J. M. C. 44 ; 72 L. T. 242.
 
 72 OBJECTIONS AND DEFENCES. 
 
 CHAP. IV. exclusively to a comparison between the work to be done 
 and the means of effecting it. A scheme is not insufficient 
 merely because a more comprehensive one would be an 
 advantage to the neighbourhood in general: thus a 
 sewering proposal might be held insufficient on the 
 ground that the proposed pipes were of too small a 
 diameter, but not on the ground that the street in ques- 
 tion also needed paving or widening. " Eeasonable " is 
 a much wider term, and includes the consideration of 
 whether the scheme is reasonable as a whole or not e.g., 
 whether any sewer at all is required. It would appear 
 that under this head an owner might object to the pro- 
 priety of the proposals on such general grounds as that 
 the work was not needed ; and (semlle) this sub-section 
 might enable him to take the point that the street has 
 already been sewered to the satisfaction of the authority. 
 See p. 43, ante, and p. 76, post. 
 
 (e) That any premises ought to be excluded from or 
 inserted in the provisional apportionment. As to this 
 see chapter III., pp. 51 63. This sub-section enables 
 an owner to procure the insertion of premises which have 
 been omitted in error, and so reduce the proportion due 
 from himself and all other owners. It is submitted, 
 however, that it applies only to premises wrongly 
 inserted or omitted, having regard to the basis upon 
 which the authority have determined to make the 
 apportionment ; and that it does not enable an owner 
 (or the justices) to question the decision of the authority 
 to include or omit such premises as in fact have access 
 from the street, but do not actually abut on it. 
 
 (f) That the provisional apportionment is incorrect in 
 respect of some matter of fact to be specified in the 
 objection, or (where the provisional apportionment is 
 made with regard to other considerations than frontage 
 as thereinafter provided (m)), in respect of the degree of 
 benefit to be derived by any persons, or the amount or 
 
 (ni) See p. 54.
 
 DETERMINATION BY JUSTICES. 73 
 
 value of any work already done by the owner or occupier CHAP. IV. 
 of any premises. Apparently there is no power to object 
 that the apportionment ought to be made on the basis of 
 frontage alone and is not, or vice versa (n). 
 
 Errors of measurement or calculation are contem- 
 plated by the first part of the sub-section, and such 
 errors must be specified. It will also be desirable 
 (although perhaps not necessary) in other cases to give 
 some details, e.g., to specify the work claimed to have 
 been done and its value, and the persons alleged to be 
 benefited. 
 
 Determination of objections under s. 7. The tribunal Determination 
 
 . . of obiections. 
 
 for determining such objections is " a court of summary 
 
 jurisdiction, i.e., presumably the court within whose 
 district the street is situated. 
 
 If no objection is lodged within the prescribed period, 
 there is of course no need to go before the justices. 
 Assuming, however, that objections are raised, the 
 authority should consider whether any one of them is 
 necessarily fatal to the scheme, in which case further 
 expense can be avoided by allowing the matter to drop. 
 If the objections appear to be well founded, but not of 
 a fatal character, and can be met by amendments under 
 s. 11, the authority might, after the expiration of the 
 month, make the required alterations, and give fresh 
 notices to any owners affected thereby : in this case, if 
 no objection is lodged against the amended proposals, 
 a hearing before the justices will be rendered unneces- 
 sary. If the authority determine to proceed, they must 
 take the initiative by applying to the court to fix a day 
 for the hearing. Such application may be made at any 
 time after the expiration of the period allowed for lodging 
 objections (s. 8 (1)). 
 
 No summons or information is required, but a notice 
 of the time and place appointed must be published, and 
 
 (n) As to how (if at all) such an objection may be taken, see p. 76, post.
 
 74 
 
 OBJECTIONS AND DEFENCES. 
 
 CHAP. TV. 
 
 The hearing. 
 
 a copy served upon each of the objectors. The statute 
 prescribes no mode of publication ; it is not unusual for 
 the justices to embody in their order some directions on 
 the point, and, if this is not done, part II. of the 
 schedule should be complied with. The copies of the 
 notice should be addressed to the objectors by name, and 
 served in accordance with the provisions of s. 267 of the 
 Public Health Act (see p. 67). 
 
 The hearing. At the hearing the burden of proof is 
 upon the authority (o), who must be prepared to prove 
 the adoption of the Act, and the passing of the resolution 
 of approval. With regard to the latter, it would appear 
 that no objection can be raised unless notice has been 
 given under s. 7 (c). With regard to the former, it will, 
 in the case of an urban council, as a rule, be sufficient 
 (s. 3 (4)) for the clerk to produce a copy of the newspaper 
 containing the advertisement. In the case of a rural 
 council he may produce a copy of the Gazette containing 
 the order of the Local Government Board, or a copy of 
 the order purporting to be printed by the Government 
 Printer, or under the superintendence of H.M.'s Stationery 
 Office (p). The authority must then proceed to call 
 evidence to meet the various objections raised, and it 
 will, of course, be convenient to begin with such objec- 
 tions (e.g., under s. 7 (a) and (b)) as go to the root of the 
 whole scheme, and to conclude with those under s. 7 (f). 
 
 The justices have power, at the request of either party, 
 to quash, in whole or in part, or to amend, the resolution, 
 the plans, the sections, the estimates, and the apportion- 
 ment, or any of them (s. 8 (1)). If any amendments are 
 made, the authority can carry out the amended scheme 
 without it being necessary for them to begin their pro- 
 ceedings de novo, or to pass a resolution approving the 
 
 (o) Rishton \. Haslingden Corporation (1898), 1 Q. B. 294 ; 67 L. J. Q. B. 
 387 ; 77 L. T. 620 ; 62 J. P. 85. 
 
 (p) Documentary Evidence Act, 1868, s. 2 ; Local Government Board 
 Act, 1871, s. 5 : and Documentary Evidence Act, 1882, s. 2, See 
 Huggins v. Ward (1873), L. R. 8 Q. B. 521.
 
 DETERMINATION BY JUSTICES. 75 
 
 amended scheme (q). Where, however, any material CHAP - IV - 
 amendment is made, it is desirable (?) that the justices 
 should exercise the power given them by s. 8(1), and 
 adjourn in order that further notices may be given to all 
 persons affected, for in many cases an owner, who was 
 content with the original scheme, might desire to contest 
 the amended one. Still, the question of adjournment is 
 one for the discretion of the justices, and the Court will 
 treat their decision upon the point as final. 
 
 The costs are in the discretion of the justices (s. 8 (3)) : Costs. 
 if they are given against the authority, they must be 
 defrayed as provided for by s. 23 (see p. 48, ante), i.e., 
 they must not be added to the expenses of the scheme, 
 and thus apportioned upon the owners. Where costs 
 are awarded to the authority, the justices have power to 
 direct the authority to bear such costs in the first instance, 
 and apportion them as part of the expenses upon the 
 objectors' premises in such proportions as may appear just. 
 
 Appeals, etc.(s). Section 8 expressly empowers the Appeals: 
 justices to state a special case in accordance with the by special case, 
 provisions of the Summary Jurisdiction Acts. 
 
 Section 269 of the Public Health Act, 1875, gives a right to sessions, 
 of appeal to quarter sessions " where any person deems 
 himself aggrieved by any . . . order, conviction, judg- 
 ment, or determination of, or by any matter or thing done 
 by, any court of summary jurisdiction." The authors 
 submit that the combined effect of this section and s. 1 
 of the present statute is to give a right of appeal 
 against decisions of justices both upon objections under 
 s. 7 or s. 12, and in summary proceedings by an authority 
 for the recovery of expenses. The authority, as well as 
 an owner, appear to have a right of appeal : the general 
 rule is that in criminal matters a complainant is not a 
 
 (q) Twickenham Urban District Council v. Munton (1899), 2 Ch. 603 : 
 68 L. J. Ch. 601 ; 81 L. T. 136 ; 47 W. R. 660. 
 
 (r) Ibid., per Lord LINDLEY. 
 
 (s) The practice and procedure upon special cases and appeals will be 
 found fully dealt with in the authors' work on "Appeals from Justices."
 
 76 OBJECTIONS AND DEFENCES. 
 
 CHAP. IV. " person aggrieved " ; but proceedings under the present 
 statute are not criminal (ss). 
 
 Objections 2. Objections under s. 12 (2) to the final apportion- 
 
 under S. 12. , , . i-i ^^x , -i , -i . 
 
 ment (as to which see p. 80) are to be determined in 
 the same manner as those under s. 7, and there will be 
 the same right of appeal. 
 
 Objections not 3. AS pointed out previously, there are certain obiec- 
 
 providedfor. . *. V . . J 
 
 tions which an owner may desire to raise, but which are 
 not specifically provided for by the Act. Three possible 
 grounds of complaint may be suggested : 
 
 (a) That the authority have no power to charge the 
 owners with sewering expenses, inasmuch as the street 
 in question has been already sewered to their satisfaction 
 (see p. 43, ante). 
 
 (b) That the authority have wrongly decided to adopt, 
 or not to adopt, the benefit " basis " of apportionment, 
 or have not considered the question at all. 
 
 (c) That the authority have amended a provisional 
 apportionment to his prejudice without giving him an 
 opportunity of objecting before the justices (see p. 80). 
 
 It is not easy to say what opportunity an owner will 
 have of taking these objections. 
 
 (a) With regard to (a), this objection scarcely seems 
 to come within s. 7, for it is a question not of reason- 
 ableness, but of want of jurisdiction, and as such it will 
 apparently afford a good defence, when the authority 
 proceed to enforce payment. Nevertheless an owner 
 would be well advised to attempt to raise the point upon an 
 objection under this head ; for, if it were well founded, the 
 authority would hesitate to go on with the probability of 
 failing eventually to recover any of their expenses ; and 
 in Risldon v. Haslingden (supra, p. 74) the court, on a 
 special case, considered an objection of this character. 
 
 (ss} See Southward, die., Co. v. Hampton U. C. (1899), 1 Q. B. 273 ; 
 68 L. J. Q. B. 207 ; 79 L. T. 512 ; 63 J. P. 100 ; 15 T. L. R. 95 : in 
 R. v. Hutchins (1880), 5 Q. B. D. 353 ; 49 L. J. M. C. 64 ; 42 L. T. 766 ; 
 44 J. P. 522 ; the Court assumed the existence of such a right.
 
 MODES OF APPEAL. 77 
 
 (b) In the authors' opinion, this point cannot be raised CHAP. IV. 
 before the justices under s. 7, and clearly it would form 
 
 no defence when the authority seek to enforce payment. 
 The only (if any) way of raising it will therefore be an 
 appeal to the Local Government Board. 
 
 (c) Here also the only remedy (if any) will be an 
 appeal to the Local Government Board. 
 
 It is therefore now necessary to consider s. 268 of the Memorial to 
 
 Public Health Act, 1875, and its applicability to the Government 
 
 objections which we are considering. That section pro- Board, 
 vides that 
 
 "Where any person deems himself aggrieved by the 
 decision of the local authority in any case in 
 which the local authority are empowered to re- 
 cover in a summary manner any expenses incurred 
 by them, or to declare such expenses to be private 
 improvement expenses, he may, within twenty- 
 one days after notice of such decision, address a 
 memorial to the Local Government Board, stating 
 the grounds of his complaint, and shall deliver a 
 copy thereof to the local authority ; the Local 
 Government Board may make such order in the 
 matter as to the said Board may seem equitable, 
 and the order so made shall be binding and 
 conclusive on all parties. 
 
 " Any proceedings that may have been commenced 
 for the recovery of such expenses by the local 
 authority shall, on the delivery to them of such 
 copy as aforesaid, be stayed ; and the Local 
 Government Board may, if it thinks fit, by its 
 order, direct the local authority to pay to the 
 person so proceeded against such sum as the said 
 Board may consider to be a just compensation 
 for the loss, damage, or grievance thereby 
 sustained by him." 
 
 The words "the decision of the local authority"
 
 78 OBJECTIONS AND DEFENCES. 
 
 CHAP. IV. ra i se a difficulty. In the leading case (t) as to the eftect of 
 s. 268 upon s. 150, the Court of Appeal held that there 
 is no decision within the meaning of s. 268 until the 
 time arrives at which the authority decide whether the 
 amount due from an owner shall be recovered in a 
 summary manner, or shall be declared to be a private 
 improvement expense. It was contended that there had 
 been two earlier " decisions," one when the authority 
 called upon the owners to do the work, and another when 
 notice of apportionment was served : the court disposed 
 of these contentions by saying that the first was not a 
 decision, for it did not commit the authority in any 
 way to the execution of the specified works, and that the 
 second was only a notice by the surveyor. In view of 
 the different procedure under the present statute, it may 
 well be argued that the resolution approving the plans, 
 etc., is a "decision" within the meaning of the section. 
 On the whole, however, the authors incline to the view 
 that the case cited above is applicable to the present Act, 
 and that the right of appeal does not arise until the 
 final decision of the authority as to the method to be 
 adopted for recovering the expenses, notice of which 
 decision will be conveyed to the owners by a demand for 
 payment, or issue of process. 
 
 The powers of the Local Government Board on such 
 an appeal are very wide. In the words of BRETT, L.J. (u), 
 they "have power to inquire into every circumstance, 
 however remote, which could reasonably determine the 
 question whether it was inequitable or not that a 
 particular sum should be paid." It would seem, there- 
 fore, that, if an owner chooses to do so, he can appeal to 
 the Local Government Board upon either of the two 
 grounds, (b) or (c), now being considered, or indeed 
 upon any ground not included in ss. 7 and 12. The fact that 
 he has failed to do so will not, however, prejudice his 
 
 (t) . v. Local Government Board (1832), 10 Q. B. D. 309 ; 52 
 L. J. M. C. 4 ; 48 L. T. 173 ; 31 W. R. 72 ; 47 J. P. 228. 
 (u) It. v. Local Government Board, supra.
 
 MODES OF APPEAL. 79 
 
 position when the authority take proceedings against CHAP. iv. 
 him (x), assuming that his objection is one which can be 
 raised at that point. 
 
 The section appears to contemplate that the decision 
 of the Local Government Board shall be final (y). It will, 
 however, only be so as to points actually submitted to 
 them (z). 
 
 Before leaving the subject of objections and defences a Position of an 
 word must be said as to the position of an owner whose ^ces'not 
 premises are included in an apportionment, but upon served, 
 whom the required notices have not been served. Whether 
 he is, or is not, otherwise aware of the proposals of the 
 authority, would appear to be immaterial ; he will have 
 a good defence when the authority seek to recover 
 payment from him. It must be pointed out, however, 
 that it is not easy for an owner to make certain that 
 a notice has not been served in such a way as to satisfy 
 the statute ; therefore, if he knows of the proposals, and 
 has some valid objection to offer, it may be advisable for 
 him to raise it at the proper stage in the proceedings. 
 
 III. SUBSEQUENT PROCEEDINGS DOWN TO FINAL Subsequent 
 APPORTIONMENT. proceedings. 
 
 The justices having approved the scheme, either in 
 its original or in an amended form, the authority may 
 proceed to execute the works (a). They have, however, 
 
 , - ., . , . , , . ' Authority may 
 
 power under s. 11 to make further amendments in the amend their 
 scheme in either the specifications, plans, sections, P r P sals - 
 estimates, or provisional apportionment subject only 
 to the proviso that if the total amount of the estimate in 
 respect of any street, or part of a street, is increased, 
 
 (a;) Ecclesv. fPirrall Rural Sanitary Authority (1886), 17 Q. B. D. 107 ; 
 55 L. J. M. C. 106 ; 34 W. R. 412 ; 50 J. P. 596 ; Derby Corporation v. 
 Grudgings (1894), 2 Q. B. 496 ; 63 L. J. M. C. 170 ; 43 \V. R. 74 ; 58 
 J. P. 685 ; 10 T. L. R. 455 ; Walthamstow Local Board v. Staines (1891), 
 2 Ch. 606 ; 60 L. J. Ch. 738 ; 65 L. T. 430 ; 7 T. L. R. 446. 
 
 (y) Eccles v. Wirrall Rural Sanitary Authority, supra. 
 
 (z) Se.dbrooke v. Grays Thurrock Local Board (1891), 8 T. L. R. 19. 
 
 (a) The authority cannot safely begin the work before such approval : 
 Stock v. Meakin (1900), 1 Ch. at p. 693.
 
 80 
 
 SUBSEQUENT PROCEEDINGS. 
 
 CHAP. IV. 
 
 Final appor- 
 tionment. 
 
 Objections 
 to it. 
 
 such estimate and the provisional apportionment must 
 be published and deposited for inspection, and copies 
 served upon the owners of the premises affected thereby. 
 Objections may then be made to the increase in the 
 estimate and apportionment, and are to be dealt with in 
 the same way as objections to the original estimate and 
 apportionment. 
 
 It will be noticed that, so long as the total estimate is 
 not increased, no opportunity is given to an owner of 
 objecting to such amendments. There is apparently no 
 provision in the Act which will prevent an authority 
 rearranging an apportionment so as to deliberately 
 override decisions of the justices upon the original 
 hearing. Apparently, however, in such an event, an 
 aggrieved owner could appeal to the Local Govern- 
 ment Board under s. 268 of the Public Health Act (see 
 p. 77, ante). 
 
 Upon completion of the work the surveyor must 
 ascertain the actual total cost of the work (s. 12 (1) ). 
 He is then to make a final apportionment (b) " by dividing 
 the expenses in the same proportions in which the 
 estimated expenses were divided in the original or 
 amended provisional apportionment (as the case may be)." 
 Notice of the final apportionment must be served upon 
 the owners of all premises affected, and at the expiration 
 of a month from such service the apportionment becomes 
 conclusive for all purposes (c), unless notice of objection 
 be lodged by some owner within that period. 
 
 The grounds of objection open to an owner at this 
 stage of the proceedings are three in number : 
 
 (a) That the actual expenses have without sufficient 
 reason exceeded the estimated expenses by more than 
 fifteen per cent. 
 
 (b) That the final apportionment has not been made 
 in accordance with s. 12. 
 
 (b) For form, see Appendix. 
 
 (cj I.e., conclusive as to the amount (if any) due, not as to the liability.
 
 FINAL APPORTIONMENT. 81 
 
 (c) That there has been an unreasonable departure CHAP, iv, 
 from the specification, plans and sections. 
 
 The statute goes on to provide that objections under Determination 
 this section are to be determined in the same manner as (>f ob i ectlons - 
 objections to the provisional apportionment ; but it gives 
 no indication as to how the justices are to deal with the 
 apportionment if they find an objection under (a) or (c) 
 to be proved. 
 
 Presumably they must determine what portion of the 
 total cost has been unreasonably incurred, and leave the 
 authority to pay such sum out of the rates, apportioning 
 the balance upon the various premises in accordance with 
 s. 12. 
 
 p.s.
 
 CHAPTER V. 
 
 RECOVERY OF PRIVATE STREET WORKS 
 EXPENSES. 
 
 A. Recovery 
 as private 
 improvement 
 expenses. 
 
 (i.) A rate 
 upon occupier. 
 
 A. Recovery as private improvement expenses 
 
 B. Recovery summarily or by action 
 
 C. Charge (see chapter VI.}. - 
 
 PAGE 
 
 82 
 88 
 93 
 
 APABT from the charge created by s. 13 (1), consideration 
 of which is postponed to chapter VI., there are two 
 modes of recovering private street works expenses open 
 to an authority. 
 
 A. Recovery as private improvement expenses. 
 
 They may resolve to proceed under s. 12 (1), which 
 provides that the sums apportioned 
 
 " Shall be recoverable in manner provided by this 
 Act (a), or in the same manner as private 
 improvement expenses are recoverable under the 
 Public Health Act, 1875, including the power to 
 declare any such expenses to be payable by 
 instalments." 
 
 The result of this provision is that, if the authority 
 elect to treat the expenses as private improvement 
 expenses, two courses are open to them : 
 
 (i.) They may make a private improvement rate under 
 s. 213 of the Public Health Act, which enacts that 
 
 (a) I.e., summarily, or by action. See (B), post, p. 88.
 
 PKIVATE IMPROVEMENT KATE. 88 
 
 " Whenever an urban authority have incurred, or become CHAP. v. 
 liable to, any expenses which by this Act are, or 
 by such authority may be declared to be, private 
 improvement expenses, such authority may, if 
 they think fit, make, and levy, on the occupier 
 of the premises in respect of which the expenses 
 have been incurred, in addition to all other rates, 
 a rate, or rates, to be called private improvement 
 rates, of such amount as will be sufficient to 
 discharge such expenses, together with interest 
 thereon at a rate not exceeding five pounds per 
 centum per annum, in such period not exceeding 
 thirty years as the urban authority may in each 
 case determine. 
 
 " Provided, that whenever any premises, in respect of 
 which any private improvement rate is made, 
 become unoccupied before the expiration of the 
 period for which the rate was made, or before the 
 same is fully paid off, such rate shall become a 
 charge on, and be paid by, the owner for the 
 time being of the premises so long as the same 
 continue to be unoccupied." 
 
 This section is (in effect) a power to make the expenses 
 payable by instalments : it also gives the authority a 
 remedy against the occupier of any premises which may 
 be inhabited, though such occupier has never been con- 
 sulted about the proposed works. The next section 
 (214), however, whilst leaving the occupier liable to the 
 authority, gives him a remedy over (to a certain extent) 
 against the owner : it provides that 
 
 " Where the occupier by whom any private improve- Occupier's 
 
 " -J i_ u ii_ e remedy against 
 
 ment rate is paid holds the premises in respect of owner. 
 which the rate is made at a rent not less than the 
 rack rent, he shall be entitled to deduct three- 
 fourths of the amount paid by him on account of 
 such rate from the rent payable by him to his 
 
 G 2
 
 84 EECOVERY OF EXPENSES. 
 
 CHAP. V. landlord ; and, if he hold at a rent less than the 
 
 rack rent, he shall be entitled to deduct from the 
 rent so payable by him such proportion of three- 
 fourths of the rate as his rent bears to the rack 
 rent ; and, if the landlord from whose rent any 
 deduction is so made is himself liable to the 
 payment of rent for the premises in respect of 
 which the deduction is made, and holds the same 
 for a term of which less than twenty years is 
 unexpired (but not otherwise), he may deduct 
 from the rent so payable by him such proportion 
 of the sum deducted from the rent payable to 
 him as the rent payable by him bears to the 
 rent payable to him, and so in succession with 
 respect to every landlord (holding for a term of 
 which less than twenty years is unexpired) of the 
 same premises both receiving and liable to pay 
 rent in respect thereof. 
 
 " Provided, that nothing in this section shall be con- 
 strued to entitle any person to deduct from the rent 
 payable by him, more than the whole sum deducted 
 from the rent payable to him." 
 
 Section 215 provides for the redemption of the rate at 
 the option of the owner or occupier : 
 
 Redemption " At any time before the expiration of the period for 
 
 which any private improvement rate is made, 
 the owner or occupier of the premises assessed 
 thereto may redeem the same, by paying to the 
 urban authority the expenses in respect of which 
 the rate was made, or such part thereof as may 
 not have been defrayed by sums already levied in 
 respect of the same : 
 
 " Provided, that money paid in redemption of any 
 private improvement rate shall not be applied by 
 the urban authority otherwise than in defraying
 
 PRIVATE IMPKOVEMENT RATE. 85 
 
 expenses incurred by them in works of private CHAP. V. 
 improvement, or in discharging the principal of 
 any moneys borrowed by them to meet those 
 expenses, whether by means of a sinking fund or 
 otherwise." 
 
 The method of recovering such rates is prescribed by Recovery 
 
 S. 256: of rate by 
 
 summary 
 proceedings. 
 
 " If any person assessed to any rate made under this 
 Act by any urban authority fails to pay the same 
 when due, and for the space of fourteen days 
 after the same has been lawfully demanded in 
 writing, or if any person quits, or is about to 
 quit, any premises without payment of any such 
 rate then due from him in respect of such pre- 
 mises, and refuses to pay the same after lawful 
 demand thereof in writing, any justice may 
 summon the defaulter to appear before a court 
 of summary jurisdiction to show cause why the 
 rate in arrear should not be paid (b) ; and if 
 the defaulter fails to appear, or if no sufficient 
 cause for non-payment is shown, the court 
 may make an order for payment of the same, 
 and, in default of compliance with such order, 
 may by warrant cause the same to be levied 
 by distress of the goods and chattels of the 
 defaulter. 
 
 " The costs of the levy of arrears of any rate may be 
 included in the warrant for such levy." 
 
 (ii.) Instead of making a rate, the authority may (U.) Payment 
 declare the private improvement expenses to be payable b ^^ " 
 by instalments under s. 257 : 
 
 (b) Presumably the "six months" limitation imposed by s. 11 of the 
 Summary Jurisdiction Act, 1848, will apply to these proceedings, the 
 time beginning to run from the expiration of the fourteen days after the 
 demand.
 
 86 EBCOVERY OF EXPENSES. 
 
 CHAP. V. "... The local authority may, by order, declare any 
 such expenses (c) to be payable by annual instal- 
 ments within a period not exceeding thirty years, 
 with interest at a rate not exceeding five pounds 
 per centum per annum until the whole amount 
 Recovery is paid ; and any such instalments and interest, 
 
 thereof from , , . , -, 
 
 owneror or any part thereof, may be recovered in a 
 
 occupier. summary manner from the owner or occupier for 
 
 (a) Summarily. fo e ^ me Dem g o f SU ch premises, and may be 
 
 deducted from the rent of such premises, in the 
 
 same proportions as are allowed in the case of 
 
 private improvement rates under this Act " (d). 
 
 With regard to such summary recovery, s. 251 pro- 
 vides that 
 
 "All . . . costs and expenses under this Act directed 
 to be recovered in a summary manner, or the 
 recovery of which is not otherwise provided for, 
 may be prosecuted and recovered in manner 
 directed by the Summary Jurisdiction Acts before 
 a court of summary jurisdiction. The court of 
 summary jurisdiction, when hearing and determin- 
 ing an information or complaint under this Act, 
 shall be constituted of two or more justices of 
 the peace in petty sessions, sitting at a place 
 appointed for holding petty sessions, or of some 
 magistrate or officer for the time being empowered 
 by law to do alone any act authorised to be done 
 by more than one justice of the peace sitting 
 at some court or other place appointed for the 
 administration of justice." 
 
 The question of limitation is dealt with in s. 257 : 
 
 Time for " In all summary proceedings by a local authority for 
 
 proceedings. fa & recovery of expenses incurred by them in 
 
 works of private improvement, the time within 
 
 (c) I.e., expenses of private improvement works. 
 
 (d) Section 214. at p. 83, ante.
 
 INSTALMENTS. 87 
 
 which such proceedings may be taken shall be CHAP - v - 
 reckoned from the date of the service of notice of 
 demand." 
 
 The period of limitation will be six months (Summary 
 Jurisdiction Act, 1848, s. 11). This section appears to 
 contemplate a separate demand as each instalment falls 
 due. It will be safer, however, to commence the pro- 
 ceedings within six months after the instalment falls 
 due irrespective of the date of demand. 
 
 An alternative mode of recovering such instalments (b) In county 
 is provided by s. 261 as follows : court - 
 
 " Proceedings for the recovery of demands below fifty 
 pounds which local authorities are empowered to 
 recover in a summary manner, may, at the 
 option of the local authority, be taken in the 
 county court as if such demands were debts 
 within the cognisance of such courts." 
 
 It has been held (e) that the six months' limitation Time for 
 imposed in the case of summary proceedings is also pr 
 applicable to proceedings in the county court : a recent 
 case (/), however, has thrown doubt upon the correct- 
 ness of this decision ; and, although it would be unwise 
 to allow the six months to elapse before suing, the 
 authors believe that six years is now the period 
 applicable. 
 
 The reader is referred to p. 90 for a consideration of 
 the questions, (1) whether having declared expenses to 
 be private improvement expenses the authority can 
 change their mind and proceed under s. 14; and 
 (2) whether having failed to recover the amount due under 
 s. 14, they can still exercise their option of declaring 
 the expenses to be private improvement expenses. 
 
 (e) Tottenham Local Board v. Eowell (1877), 1 Ex. D. 514 ; 46 L. J. Q. B. 
 432 ; 35 L. T. 887 ; 25 W. K. 135. 
 
 (/) Blackburn Corporation v. Sanderson, post.
 
 88 
 
 BECOVERY OF EXPENSES. 
 
 CHAP. V. 
 
 B. Recovery 
 of expenses 
 summarily, or 
 by action. 
 
 (1) Period of 
 limitation . 
 
 B. Recovery summarily or by action. 
 
 Section 14 provides that 
 
 "The urban authority, if they think fit, may from 
 time to time (in addition and without prejudice 
 to any other remedy) recover summarily in a 
 court of summary jurisdiction, or as a simple 
 contract debt by action in any court of competent 
 jurisdiction, from the owner for the time being 
 of any premises in respect of which any sum is 
 due for expenses of private street works the 
 whole or any portion of such sum, together with 
 interest at a rate not exceeding four pounds per 
 centum per annum, from the date of the final 
 apportionment till payment thereof." 
 
 In addition to the two questions above-mentioned, 
 and postponed for future consideration, two points arise 
 upon this section : 
 
 (1) What is the period of limitation applicable ? 
 
 (2) From what date does it run ? 
 
 (1) With regard to the first point it seems to follow 
 from a recent decision (g) of the Court of Appeal that, 
 where the local authority proceed in the High Court or 
 county court, the period is six years. That case was 
 decided upon the Blackburn Improvement Act, 1882, 
 which enacted that the expenses incurred by the 
 corporation in paving any street under the provisions 
 of that Act shall be recoverable either by summary pro- 
 ceedings before justices, or, if the corporation think fit, 
 in the superior courts or any court of competent 
 jurisdiction. It was held that the corporation had the 
 option of proceeding either by complaint before justices, 
 or, alternatively, by action in the superior courts, or 
 in any court of competent jurisdiction ; and that s. 11 
 of the Summary Jurisdiction Act, 1848, which requires 
 proceedings to be commenced within six months from 
 
 (g) Blackburn Corporation v. Sanderson (1902), 1 K. B. 794 ; 66 J. P. 
 194 ; 18 T. L. R. 436.
 
 UNDER SECTION 14. 89 
 
 the time of the cause of action arising, applies only to a CHAP - v - 
 proceeding under the summary jurisdiction, and not to 
 any of the alternative proceedings. 
 
 In the course of his judgment VAUGHAN WILLIAMS, L.J., 
 said, "In my judgment, if you find in an Act of Parliament 
 the power to take the remedy in divers courts, that remedy 
 will, in each court, be subject to the lexfori of that court, 
 and the lexfori includes the limitation of actions, which 
 goes to the remedy and not to the right." 
 
 It may, therefore, be safely assumed that for High 
 Court and county court actions the period is six years, 
 and for summary proceedings six months (Summary 
 Jurisdiction Act, 1848, s. 11). 
 
 (2) (a) There appears to be no doubt that in the case (2) From what 
 of summary proceedings the time begins to run from the 
 service of a demand for payment. It will be remembered (a) Summary 
 that s. 257 of the Public Health Act, 1875, runs proceedings/ 
 
 "In all summary proceedings by a local authority for 
 the recovery of expenses incurred by them in 
 works of private improvement, the time within 
 which such proceedings may be taken shall be 
 reckoned from the date of the service of notice of 
 demand." 
 
 In construing a similar section (21 & 22 Viet. c. 98, 
 s. 62) the court held that the words " incurred in works of 
 private improvement" were used in the general sense of 
 works executed upon private property, and tending to 
 improve it, and were not limited to expenses declared to 
 be private improvement expenses ; that a demand for 
 payment was therefore necessary ; and that a notice of 
 apportionment is not a sufficient demand (/). And in a 
 later case (i), in construing s. 257, supra, BRETT, L.J.,said, 
 " Until the authority have given that notice of demand 
 
 (h) Greece v. Hunt (1877), 2 Q. B. D. 389 ; 46 L. J. Q. B. 202 ; 36 L. T. 
 404 ; 25 W. R. 543 ; 41 J. P. 356. 
 
 (i) Reg. v. Local Government Board (1882), 10 Q. B. D. at p. 324 ; 52 
 L. J. M. C. 4 ; 48 L. T. 173 ; 31 W. R. 72 ; 47 J. P. 228.
 
 90 
 
 EECOVEKY OF EXPENSES. 
 
 (b) Proceed- 
 ings in other 
 courts. 
 
 AP^V. they are not in a position to recover anything by way of 
 summary process." 
 
 Apparently the demand may be delayed as long as the 
 authority choose without in any way prejudicing their 
 rights (k). On the other hand, a valid demand cannot be 
 made before the end of the period allowed for lodging 
 objections, or the determination of such objections (as 
 the case may be) (I). 
 
 (b) There would appear to be no provision in the Act of 
 1892, or the Public Health Act, 1875, rendering necessary 
 any formal demand for payment, except where the 
 authority desire to proceed summarily ; and this view is 
 to some extent supported by a dictum of BKETT, L.J.,who 
 (in dealing with s. 257, supra), after referring to the notice 
 of demand required in summary proceedings, said that 
 such notice was the only one which a local authority has 
 to give (m). If this be so, the authority must commence 
 an action in the High Court or county court within the 
 usual period, viz., six years from the date when their 
 right to sue first accrues, i.e., at the expiration of one 
 month after service of notice of a final apportionment, if 
 it is not disputed, or if disputed, from the settlement of 
 the dispute by the justices. 
 
 At the same time, although a demand is probably 
 unnecessary, and has no effect upon the question of 
 limitation, it is certainly undesirable for an authority to 
 commence proceedings without making a formal claim 
 for payment. 
 
 Effect of s. 14 It now remains for us to consider how far (if at all) 
 upon s. 12. proceedings under s. 14 are inconsistent with the 
 
 recovery of expenses as private improvement expenses. 
 
 The question falls under two heads : firstly, can an 
 
 (k) Worthy v. St. Mary, Islington (1887), 51 J. P. 167. 
 (1) Simcox v. Handsworth Local Board (1882), 8 Q. B. D. 39 ; 51 
 L. J. Q. B. 168 ; 30 W. R. 723 ; 46 J. P. 260. 
 (TO) E. v. Local Government Board, supra.
 
 UNDER SECTION 14. ( 
 
 authority, after trying and failing to recover expenses CHAP - v - 
 
 under s. 14, declare them to be private improvement 
 
 expenses ? The Public Health Act, 1848, provided that 
 
 similar expenses might be recovered in a summary 
 
 manner, or might be declared to be private improvement 
 
 expenses, and in a case (n) decided upon this statute the 
 
 court held that an authority was not entitled to adopt 
 
 both modes of obtaining payment, and that there must 
 
 be a time when their election to take one course would 
 
 be considered irrevocable. The present statute, however, 
 
 expressly says that proceedings under s. 14 are to be 
 
 " in addition and without prejudice to any other remedy." 
 
 Unless these words are to be read in a very restricted 
 
 sense, as referring only to the charge created by s. 13, 
 
 the above case cannot (so far as this Act is concerned) be 
 
 regarded as good law, and it would appear that there can 
 
 be no longer any objection to an authority first proceeding 
 
 under s. 14, and then (in the event of failure) declaring 
 
 the expenses to be private improvement expenses. 
 
 Secondly, can an authority, after declaring the expenses 
 to be private improvement expenses, take proceedings 
 under s. 14 ? In cases (o) under the earlier statutes it 
 was held that they could not, on the ground that having 
 informed an owner of their intention to take one cour se 
 they were estopped from withdrawing from that position. 
 But it must be noted that under those statutes they 
 could (if allowed to proceed) have recovered summarily 
 the whole expenses in a lump sum, though they had 
 decided to make them payable by instalments. Under 
 the present statute no such injustice would be done, for 
 s. 14 only entitles them to recover from time to time 
 such sum as is due, i.e., presumably, only such instal- 
 ments as are in arrear (assuming the expenses to have 
 
 (n) Wilson v. Bolton Corporation (1871), L. R. 7 Q. B. 105 ; 41 
 L. J. M. C. 4 ; 25 L. T. 597 ; 36 J. P. 405. 
 
 (o) Eddleston v. Francis (1861), 7 C. B. (N.S.) 568 ; 3 L. T. 270 ; 
 25 J. P. 135 ; Gould v. Bacup Corporation (1881), 50 L. J. M. C. 44 ; 44 
 L. T. 103 ; 29 W. R. 471 ; 45 J. P. 325.
 
 92 BECOVEKY OF EXPENSES. 
 
 CHAP. V. been declared private improvement expenses). It would 
 appear, therefore, reasonable to give to the words " in 
 addition, etc.," their natural meaning, and to allow an 
 authority, after declaring the expenses to be private 
 improvement expenses, to recover under s. 14 any arrears, 
 the only practical result of which will be to enable them 
 to have recourse to an " owner " where an occupier is in 
 arrear with an improvement rate.
 
 ( 93 ) 
 
 CHAPTER VI. 
 
 THE CHARGE, AND ITS INCIDENCE. 
 
 SECTION 13 provides that 
 
 " (1) Any premises included in the final apportionment, 
 and all estates and interests from time to time 
 therein, shall stand and remain charged (to the 
 like extent and effect as under section two hundred 
 and fifty-seven of the Public Health Act, 1875) 
 with the sum finally apportioned on them, or if 
 objection has been made against the final appor- 
 tionment with the sum determined to be due as 
 from the date of the final apportionment, with 
 interest at the rate of four pounds per centum 
 per annum, and the urban authority shall, for 
 the recovery of such sum and interest, have all 
 the same powers and remedies under the Con- 
 veyancing and Law of Property Act, 1881, and 
 otherwise as if they were mortgagees having powers 
 of sale and lease and of appointing a receiver. 
 
 " (2) The urban authority shall keep a register of 
 charges under this Act and of the payments made 
 in satisfaction thereof, and the register shall be 
 open to inspection to all persons at all reasonable 
 times on payment of not exceeding one shilling in 
 respect of each name or property searched for, 
 and the urban authority shall furnish copies of 
 any part of such register to any person applying 
 for the same on payment of such reasonable sum 
 as may be fixed by the urban authority." 
 
 Section 257 of the Public Health Act, 1875, so far as 
 it is here referred to, is as follows : 
 
 "Where any local authority have incurred expenses
 
 94 THE CHARGE, AND ITS INCIDENCE. 
 
 CHAF. VI. f or the repayment whereof the owner of the 
 
 premises, for or in respect of which the same are 
 incurred, is made liable under this Act, or by any 
 agreement with the local authority, such expenses 
 may be recovered, together with interest at a 
 rate (a) not exceeding five pounds per centum per 
 annum, from the date of service of a demand (b) 
 for the same till payment thereof, from any 
 person (c) who is the owner of such premises 
 when the works are completed for which such 
 expenses have been incurred, and until recovery 
 of such expenses and interest the same shall be a 
 charge on the premises in respect of which they 
 were incurred . . . . " 
 
 The sections of the Conveyancing Act, 1881, above 
 referred to, are ss. 18 24. 
 
 The charge upon the premises created by this section 
 is distinct from, and independent of, the provisions of 
 ss. 12 and 14. Consequently an authority may have 
 recourse to this remedy at any time, though, as a rule, 
 they will only need to do so when other methods of 
 recovery have failed. The only restrictions appear to 
 be, (1) the ordinary period of limitation applicable to 
 such a charge, viz., twelve years dating from the comple- 
 tion of the works (d) ; and (2) that, where the authority 
 have elected to recover as improvement expenses, the 
 charge can only be enforced in respect of such payments 
 as may from time to time be in arrear (e). 
 
 From what The charge takes effect as from the date of the 
 
 date. 
 
 (a) Under the present statute, fixed at four per cent. (s. 13, supra). 
 
 (b) Under the present statute, from the date of the final apportionment 
 (Stock v. Meakiri), post. 
 
 (c) Under the present statute, from the owner for the time being (s. 14). 
 
 (d) Hornsey Local Board v. Monarch (1890), 24 Q. B. D. 1 ; 59 L. J. Q. B. 
 105 ; 61 L. T. 867 ; 38 W. R. 85 ; 54 J. P. 391. 
 
 (e) Tottenham Local Board v. Rowdl (1880), 15 C. D. at p. 394 ; 50 
 L. J. Ch. 99 ; 43 L. T. 616 ; 29 W. R. 36.
 
 ENFORCEMENT, ETC. 95 
 
 completion of the works, but interest is to be reckoned CHAP. VI. 
 from the date of the final apportionment (/). 
 
 Under the Public Health Act it was necessary to Enforcement 
 bring an action in order to enforce such a charge. This 
 is no longer necessary under the provisions of the present 
 statute. It must, however, be remembered that the power 
 of sale will not arise so long as interest is duly paid, or 
 until a notice has been served requiring payment of the 
 principal sum, and default has been made for three 
 months (Conveyancing Act, s. 20). The power of 
 appointing a receiver will probably be the one found 
 most useful in practice : it is exercisable under the 
 same conditions as the power of sale (Conveyancing 
 Act, s. 24 (1) ). The power of leasing can only be 
 exercised by mortgagees in possession (Conveyancing 
 Act, s. 18). 
 
 The charge takes precedence over all other incum- 
 brances, and is a charge, not on the interest of any 
 particular owner of the premises, but on the total owner- 
 ship, i.e., on the respective interest of every owner for 
 the time being in proportion to the value of his interest (g). 
 Where an authority enforce a charge by sale, they are 
 trustees of the balance of the purchase price, and are 
 responsible for its payment to the persons entitled (1i). 
 If, therefore, there is any doubt as to the respective pro- 
 portions due to such persons, or as to the person really 
 entitled, the authority should pay the balance into court 
 under the provisions of the Trustee Belief Act. 
 
 In the case of premises which cannot be sold in con- 
 sequence of some statutory enactment, e.g., a school 
 within the provisions of the School Sites Act, 1841 (i), 
 
 (/) Stock v. MeaUn (1900), 1 Ch. 683 ; 82 L. T. 248 ; 48 W. R. 420. 
 (g) Birmingham Corporation v. Baker (1882), 17 C. D. 782 ; 46 J. P. 52. 
 
 (h) West London Commercial Bank v. Reliance Building Society (1885), 
 29 Ch. D. 954. 
 
 (i) Eornsey Urban District Council v. Smith (1897), 1 Ch. 843 ; 66 
 L. J. Ch. 476 ; 76 L. T. 431 ; 45 W. R. 581, reversing 61 J. P. 311.
 
 96 
 
 THE CHARGE, AND ITS INCIDENCE. 
 
 CHAJP. VI. 
 
 Register of 
 charges. 
 
 Limited 
 owners. 
 
 although the charge attaches, it cannot be enforced by 
 sale ; but the authority can, of course, proceed against 
 the trustees of such premises personally (k). 
 
 The local authority must carefully observe the pro- 
 visions of s. 13 (2), supra, as to keeping a register of 
 charges. This provision is most valuable to intending 
 purchasers of property, for it has been decided that a 
 similar charge under the Public Health Act, 1875, does 
 not require registration under the Land Charges Regis- 
 tration and Searches Act, 1888 (51 & 52 Viet. c. 51) (I), and 
 apparently this decision is applicable to charges created 
 under the present Act. 
 
 A few words may be added as to the position of limited 
 owners, landlords and tenants, and persons under a con- 
 tract to purchase premises. 
 
 As regards limited owners, an important provision is 
 contained in s. 17, to the effect that 
 
 " All owners of buildings or lands, being persons who 
 under the Lands Clauses Acts are empowered to 
 sell and convey or release lands, may charge such 
 buildings or lands with such sum as may be 
 necessary to defray the whole or any part of any 
 expenses which the owners of or any persons 
 in respect of such buildings or lands for the time 
 being are liable to pay under this Act and the 
 expenses of making such charge, and for securing 
 the repayment of such sum with interest may 
 mortgage such buildings or lands to any person 
 advancing such sum, but so that the principal due 
 on any such mortgage shall be repaid by equal 
 yearly or half-yearly payments within twenty 
 years." 
 
 (k) See p. 57, ante. 
 
 (1) Reg. v. Vice-Registrar of Office of Land Registry (1890), 24 Q. B. D. 
 178 ; 62 L. T. (N.S.) 117 ; S. C. nom. Reg. v. Holt, 59 L. J. Q. B. 113 ; 
 54 J. P. 120.
 
 LIMITED OWNERS. 97 
 
 The section applicable is s. 7 of the Lands Clauses CHAP. VI. 
 Consolidation Act, 1845, which confers a power of sale 
 upon 
 
 " All corporations, tenants in tail or for life, married 
 women seised in their own right, or entitled to 
 dower, guardians, committees of lunatics and 
 idiots, trustees or feoffees in trust for charitable 
 or other purposes, executors and administrators, 
 and all parties for the time being entitled to the 
 receipts of the rents and profits of any such lands 
 in possession, or subject to any estate in dower, 
 or to any lease for life, or for lives and years, or 
 for years, or for any less interest." 
 
 It was held in Re Smith (1901), 1 Ch. 689 ; 70 L. J. Ch. 
 273, that a tenant for life could under s. 11 of the 
 Settled Land Act, 1890, raise a sum due under s. 150 of 
 the Public Health Act, 1875, by mortgage of the settled 
 estate. Apparently this right is now restricted by s. 17 
 (supra) . 
 
 In the case of landlords and tenants, or vendors and Landlords and 
 purchasers, the ultimate incidence of the expenses must J 
 
 f Vendors and 
 
 depend upon the covenants (express or implied) between purchasers, 
 the parties. The question has been considered in two 
 recent cases : in the earlier one (m) an authority com- 
 pleted certain works on July 26th ; on October 10th the 
 owner of premises affected agreed to sell them, the 
 purchase to be completed on November llth, and all 
 outgoings to be apportioned up to that date : the final 
 apportionment by the local authority was not made till 
 December. The Court of Appeal held that the expenses 
 were an "outgoing" () in respect of the premises as 
 from the date of completion of the works, and must be 
 borne by the vendor under his contract ; and, further, 
 that the charge was (as from the same date) an incum- 
 
 (m) Stock v. Meakin (1900), 1 Ch. 683 ; 82 L. T. 248 ; 48 W. R. 420. 
 
 (n) Apparently the word "impositions" will also include such expenses : 
 Foulger v. Arding (1902), 1 K. B. 700 ; 18 T. L. R. 422. 
 
 P.S. H
 
 98 THE CHARGE, AND ITS INCIDENCE. 
 
 CHAP. VI. brance within the vendor's covenant implied by his 
 conveying as "beneficial owner." In the second case (o) 
 a distinction was drawn between "outgoings" and 
 "present and future outgoings," and it was held that 
 a lessee, who had agreed to pay "present and future 
 outgoings," was liable for the expenses of works completed 
 before the date of his lease, if the final apportionment 
 was not made until afterwards, on the ground that 
 such expenses were present outgoings payable in futuro, 
 and therefore within the covenant. 
 
 (o) Surtees v. Woodhouse (1902), 18 T, L. R. 222.
 
 ( 99 ) 
 
 CHAPTER VII. 
 
 ADOPTION OF PRIVATE STREETS (a). 
 
 THE statute contains two sections dealing with the 
 powers and duties of a local authority as to " taking 
 over " streets. 
 
 (A) POWERS EXERCISABLE BY THE AUTHORITY AT THEIR ( a ) Powers of 
 DISCRETION. an authority. 
 
 Section 19 provides that 
 
 "Whenever all or any of the private street works 
 in this Act mentioned have been executed in a 
 street or part of a street, and the urban authority 
 are of opinion that such street or part of a street 
 ought to become a highway repairable by the 
 inhabitants at large, they may by notice to be 
 fixed up in such street or part of a street declare 
 the whole of such street or part of a street to be a 
 highway repairable by the inhabitants at large, 
 and thereupon such street or part of a street as 
 defined in the notice shall become a highway 
 repairable by the inhabitants at large." 
 
 It will be seen that under this section an urban Previous 
 authority who have adopted the Act, or a rural 
 authority who have been authorised to put in force the 
 whole Act, or this particular section (see p. 11, ante), 
 have much ampler powers than if they proceed under 
 the Public Health Act, 1875, or the Public Health Acts 
 Amendment Act, 1890. 
 
 (i.) Under s. 152 of the Act of 1875 all the works 
 
 (a) The marginal note to s. 19 has been taken as the heading of this 
 chapter. The wording of it is not, however, felicitous, for the term private 
 street is hardly appropriate to a public highway, which may yet be adopted, 
 if not already repairable by the inhabitants at large. 
 
 H 2
 
 100 
 
 CHAP. VII. 
 
 Interference 
 with private 
 rights. 
 
 i. Streets 
 
 dedicated as 
 highways. 
 
 ADOPTION OF PRIVATE STREETS. 
 
 therein specified must be done before the street can be 
 adopted (b). Section 41 of the Act of 1890, and the 
 present section, both authorise adoption when any of 
 them have been done. 
 
 (ii.) Under the Act of 1890 the work must have been 
 done by the local authority. Under this section it will 
 be sufficient that the work has been done, no matter by 
 whom. 
 
 (iii.) The owners cannot object ; whereas under both 
 s. 152 of the Act of 1875, and s. 41 of that of 1890, the 
 owner, or the majority (in number or value) of the owners, 
 of the street could refuse to consent to the adoption. 
 
 The power to thus interfere with the rights of property 
 may obviously have very serious consequences to the 
 owners ; and yet it is difficult to say with certainty what 
 will be the exact legal result of the compulsory adoption 
 of a street under these provisions. 
 
 In view, however, of the great importance of the 
 subject to owners of the soil of streets, it is felt that 
 some attempt should be made to deal with the question. 
 For this purpose streets may be divided into two classes : 
 
 i. Those which have previously been dedicated as 
 highways. 
 
 ii. Those which have hitherto been essentially private. 
 
 i. Here the question of limited or qualified dedication 
 is involved. As previously stated (p. 28), it has long 
 been settled law that an owner may dedicate a highway 
 to the public, subject to a reservation or obstruction. In 
 the words of Lord BLACKBURN (c), " The question still 
 remains whether an erection, or excavation, already 
 existing and not otherwise unlawful, becomes unlawful 
 
 (b) Attorney-General v. Bidder (1881), reported (1883), 47 J. P. 263. 
 
 (c) Fisher v. Prowse, and Cooper v. Walker (1862), 31 L. J. Q. B. 212 ; 2 
 B. & S. 780. See also Mercer v. Woodgate (1869), L. R. 5 Q. B. 26, 
 followed in Arnold v. Blaker, 6 Ibid. 433 ; 40 L. J. Q. B. 185 ; 19 W. R. 
 1090.
 
 POWERS OF AN AUTHORITY. 10 
 
 when the land on which it exists, or to which it is CHAP. VII. 
 immediately contiguous, is dedicated to the public as a 
 way, if the erection prevents the way from being so con- 
 venient, and safe, as it otherwise would be ; or whether, 
 on the contrary, the dedication must not be taken to be 
 made to the public, and accepted by them, subject to the 
 inconvenience, or risk, arising from the existing state of 
 things. We think that the latter is the correct view of 
 the law. It is, of course, not obligatory on the owner 
 of land to dedicate the use of it as a highway to the 
 public. It is equally clear that it is not compulsory on 
 the public to accept the use of a way when offered to 
 them. If the use of the soil as a \vay is offered by the 
 owner to the public 'under given conditions, and subject 
 to certain reservations, and the public accept the use 
 under such circumstances, there can be no injustice 
 in holding them to the terms on which the benefit was 
 conferred. On the other hand, great injustice and hard- 
 ship would often arise if, when a public right of way 
 has been acquired under a given state of circumstances, 
 the owner of the soil should be held bound to alter that 
 state of circumstances to his own disadvantage and loss, 
 and to make further concessions to the public altogether 
 beyond the scope of his original intention. More 
 especially would this be the case when public rights of 
 way have been acquired by mere use. For instance, the 
 owner of the bank of a canal, or sewer, may, without 
 considering the effect of what he is doing, permit pas- 
 sengers to pass along until the public have acquired a 
 right of way there. It is often hard upon him that the 
 public right should have been thus acquired ; it would 
 be doubly so if the consequence was that he was bound 
 to fill up, or fence off, his canal." 
 
 Such being the general law upon the point, the 
 question arises whether the local authority have any 
 statutory power enabling them to remove any obstruc- 
 tion, or abrogate any condition subject to which the
 
 102 ADOPTION or PRIVATE STREETS. 
 
 CHAP. VI i, highway may have been dedicated at an earlier date (d). 
 So far as the authors are .aware, they have no such 
 power given to them, either as the successors of high- 
 way surveyors under s. 6 of the Highway Act, 1835, 
 and s. 144 of the Public Health Act, 1875; or as 
 successors of a highway board (where they happen to be 
 such) under ss. 47, 48, of the Highway Act, 1864, or 
 under such statutes as the Towns Improvement Clauses 
 Act, 1847, ss. 69, 70, or the Public Health Act, 1875, 
 s. 149. This view is to some extent supported by a 
 decision of the Court of Appeal (e) to the effect that an 
 authority when paving and making good a street (a 
 highway, but not one repairable by the public) under 
 s. 150 of the Public Health Act, 1875, have no power to 
 alter the respective widths of the footway and carriage 
 way, originally dedicated, and laid out in accordance 
 with plans approved by them. It would, at least, involve 
 an absurdity if an authority must deal with such a street 
 as dedicated, but then, having declared it a highway 
 repairable by the inhabitants at large, might convert it 
 as they pleased. Eeference may also be made to a 
 case (/) in which it was held that the provisions of the 
 Highway Acts and Metropolis Local Management Acts, 
 so far as they apply to roads and streets, are subordinate 
 to the paramount rights reserved by the owner. In this 
 instance it was proved that certain property could not 
 be reasonably enjoyed without a cart road across the 
 adjoining footway. The vestry had refused to allow the 
 owner to replace the flags by setts, and he had therefore 
 carted goods across the flags, and, in so doing, broke 
 some flags. The court approved the decision of the 
 magistrate, who dismissed a summons for wilfully 
 
 (d) Sucli obstruction or condition might take the form of a gate across 
 the highway, or a right to take toll (if such be possible, as to which see 
 p. 29, ante). 
 
 (e) Robertson v. Bristol Corporation (1900), 2 Q. B. 198 ; 64 J. P. 389 ; 
 69 L. J. Q. B. 590 ; 82 L. T. 516 ; 48 W. R. 498. 
 
 (/) Vestry of St. Mary, Newington v. Jacobs (1871), L. R. 7 Q. B. 47 ; 
 41 L. J. M. C. 72 ; 25 L. T. 800 ; 20 W. R. 249 ; 36 J. P. 119.
 
 DUTIES OF AN AUTHORITY. 
 
 damaging the highway, on the ground that the rights 
 of ownership and those of the public might be jointly 
 exercised consistently with the general welfare. 
 
 In the authors' opinion, a declaration that what is 
 already a highway, is in future to be a highway repair- 
 able, etc., cannot amount to anything more than a formal 
 adoption of liability to repair that highway, such as it is. 
 
 It would appear therefore that in order to remove, or 
 purchase, some obstruction, or toll, subject to which a 
 highway has been dedicated, special statutory powers 
 will be necessary. 
 
 ii. Where, however, a street has never been dedicated, ii. Streets noi 
 the position is apparently different. It would seem that, dedicated^ 
 in enabling an authority to declare such a street to be 
 a highway repairable by the inhabitants at large, the 
 Legislature has conferred upon them the power to transfer 
 what was private property from the owners thereof to 
 themselves, and then to dedicate it themselves to the use 
 of the public free from any obstruction or restriction (g). 
 
 Such a power will seriously affect an owner who has 
 (inter alia) (1) allowed no one but his tenants (living 
 therein) and their friends to use a private street; 
 (2) allowed it to be used only in consideration of a way- 
 leave ; or (3) dedicated it to the public as a footway only, 
 reserving for himself the right of user for carriages. 
 
 If the authors are correct, such owner must acquiesce 
 in the street being thrown open for all purposes, and seek 
 compensation under s. 308 of the Public Health Act, 1875, 
 for the loss of his way leave, or deterioration of his property. 
 
 (fi) DUTIES OF AN AUTHORITY. 
 
 Section 20 provides that 
 
 " If any street is now or shall hereafter be sewered, 
 levelled, paved, metalled, flagged, channelled, and 
 made good (all such works being done to the 
 
 (g) Attorney-General v. Bidder (1881), reported (1883), 47 J. P. 263.
 
 L04 ADOPTION OF PRIVATE STREETS. 
 
 CHAP. VII. satisfaction of the urban authority), then, on the 
 
 application in writing of the greater part in value 
 of the owners of the houses and land in such 
 street, the urban authority shall, within three 
 months from the time of such application, by 
 notice put up in such street declare the same to be 
 a highway repairable by the inhabitants at large, 
 and thereupon such street shall become a highway 
 repairable by the inhabitants at large." 
 
 This section needs little comment : it will be noticed 
 that 
 
 1. All the works specified must be first done to the 
 satisfaction of the authority. 
 
 2. If the application be in order, the authority can 
 exercise no discretion ; and if they decline to do their 
 duty, complaint may be made to the Local Government 
 Board under s. 299 of the Public Health Act, 1875. 
 
 3. The section speaks of " owners of houses and land 
 in such street." Presumably this means "along each 
 side of a street," with the result that, when the soil of 
 the street itself (as sometimes happens) belongs to a 
 person who does not own land or houses at the side of 
 the street, he will have no say in the matter. 
 
 4. There is no provision as to how the value of the 
 houses and land is to be ascertained : presumably it 
 means capital value. 
 
 5. The same considerations as to the invasion of 
 private rights and compensation may arise under this 
 section as under the previous one. 
 
 The present statute does not in terms mention s. 23 of 
 the Highway Act, 1835. An owner, however, cannot get 
 rid of his liability to repair any more lightly under that 
 section, for under either statute the authority may 
 require the same amount of repairs, etc., before adopting 
 the street (li). 
 
 (h) E. v. Dukinfield (1863), 32 L. J. M. C. 230 ; 4 B. & S. 158 ; 27 
 J. P. 805.
 
 ( 105 ) 
 
 APPENDIX A. 
 
 STATUTES. 
 
 THE PEIVATE STKEET WOEKS ACT, 1892. 
 (55 & 56 VICT. c. 57.) 
 
 An Act to amend the Public Health Acts in relation to Private 
 Street Improvement Expenses. [28th June, 1892.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : 
 
 1. This Act may be cited as the Private Street Works Act, 1892, Short lit l e > 
 and shall be construed as one with the Public Health Acts, and andVxtent"' 
 shall extend only to England ; and this Act and the Public Health 
 
 Acts may be cited together as the Public Health Acts. 
 
 2. This Act shall extend and apply to any urban sanitary district Adoption of 
 in which it is respectively adopted under the provisions of this Act. 
 
 3. The following provisions shall have effect with regard to the 
 adoption of this Act by urban authorities : 
 
 (1.) The adoption shall be by a resolution passed at a meeting of 
 the urban authority ; and one calendar month at least before such 
 meeting special notice of the meeting, and of the intention to propose 
 such resolution, shall be given to every member of the authority, 
 and the notice shall be deemed to have been duly given to a member 
 of it if it is either 
 
 (a.) Given in the mode in which notices to attend meetings of the 
 
 authority are usually given ; or 
 
 (b.) Where there is no such mode, then signed by the clerk of the 
 authority, and delivered to the member or left at his usual 
 or last known place of abode in England, or forwarded by 
 post in a prepaid registered letter, addressed to the member 
 at his usual or last known place of abode in England. 
 (2.) Such resolution shall be published by advertisement in some 
 one or more newspapers circulating within the district of the autho- 
 rity, and by causing notice thereof to be affixed to the principal 
 
 Act. 
 
 Adoption of 
 Act by xirbaii 
 authorities.
 
 106 
 
 STATUTES. 
 
 APVENDIX A. doors of every church and chapel in the place to which notices are 
 usually fixed, and otherwise in such manner as the authority think 
 siifficient for giving notice thereof to all persons interested, and 
 shall come into operation at such time not less than one month 
 after the first publication of the advertisement of the resolution as 
 the authority may by the resolution fix, and upon its coming into 
 operation this Act shall extend to that district. 
 
 (3.) A copy of the resolution shall be sent to the Local Govern- 
 ment Board. 
 
 (4.) A copy of the advertisement shall be conclusive evidence of 
 the resolution having been passed, unless the contrary be shown ; 
 and no objection to the effect of the resolution on the ground that 
 notice of the intention to propose the same was not duly given, or 
 on the ground that the resolution was not sufficiently published, 
 shall be made after three months from the date of the first publi- 
 cation of the advertisement. 
 
 Local Govern- 
 ment Board 
 may extend 
 Act to rural 
 districts. 
 
 Interpretation. 
 
 4. The Local Government Board may declare that the provisions 
 contained in this Act shall be in force in any rural sanitary district, 
 or any part thereof, and may invest a rural sanitary authority with 
 the powers, rights, duties, capacities, liabilities, and obligations 
 which an urban authority may acquire by adoption of this Act, in 
 like manner and subject to the same provisions as they are enabled 
 to invest rural sanitary authorities with the powers of urban sani- 
 tary authorities under the provisions of section two hundred and 
 seventy-six of the Public Health Act, 1875. 
 
 5. In this Act, if not inconsistent with the context, 
 
 The expression "urban authority" means an urban sanitary 
 authority under the Public Health Acts. 
 
 The expressions " urban sanitary district" and "rural sanitary 
 district " mean respectively an urban sanitary district and a 
 rural sanitary district under the Public Health Acts, and 
 " district" means the district of an urban sanitary authority 
 or of a rural sanitary authority as the case may require. 
 
 The expressions "surveyor," "lands," "premises," "owner," 
 " drain," " sewer," have respectively the same meaning as in 
 the Public Health Acts. 
 
 The expression "street" means (unless the context otherwise 
 requires) a street as defined by the Public Health Acts, and 
 not being a highway repairable by the inhabitants at large. 
 
 Words referring to " paving, metalling, and flagging" shall be 
 construed as including macadamising, asphalting, gravelling, 
 kerbing, and every method of making a carriageway or 
 footway.
 
 THE PRIVATE STREET WORKS ACT, 1892. 107 
 
 6. (1.) Where any street or part of a street is not sewered, APPKKDIX A. 
 levelled, paved, metalled, flagged, channelled, made good, and 
 lighted to the satisfaction of the urban authority, the urban autho- Private street 
 rity may from time to time resolve with respect to such street or worlis - 
 part of a street to do any one or more of the following works (in 
 this Act called private street works) ; that is to say, to sewer, level, 
 pave, metal, flag, channel, or make good, or to provide proper 
 means for lighting such street or part of a street ; and the expenses 
 incurred by the urban authority in executing private street works 
 shall be apportioned (subject as in this Act mentioned) on the 
 premises fronting, adjoining, or abutting on such street or part of 
 a street. Any such resolution may include several streets or parts 
 of streets, or may be limited to any part or parts of a street. 
 
 (2.) The surveyor shall prepare, as respects each street or part of 
 a street, 
 
 (a.) A specification of the private street works referred to in the 
 resolution, with plans and sections (if applicable) ; 
 
 (b.) An estimate of the probable expenses of the works ; 
 
 (c.) A provisional apportionment of the estimated expenses among 
 the premises liable to be charged therewith under this Act. 
 
 Such specification, plans, sections, estimate, and provisional 
 apportionment shall comprise the particulars prescribed in Part I. 
 of the Schedule to this Act, and shall be submitted to the urban 
 authority, who may by resolution approve the same respectively 
 with or without modification or addition as they think fit. 
 
 (3.) The resolution approving the specifications, plans, and sections 
 (if any), estimates, and provisional apportionments, shall be 
 published in the manner prescribed in Part II. of the Schedule to 
 this Act, and copies thereof shall be served on the owners of the 
 premises shown as liable to be charged in the provisional apportion- 
 ment within seven days after the date of the first publication. 
 During one month from the date of the first publication the 
 approved specifications, plans, and sections (if any), estimates, and 
 pi'ovisional apportionments (or copies thereof certified by the 
 surveyor), shall be kept deposited at the urban authority offices, 
 and shall be open to inspection at all reasonable times. 
 
 7. During the said month any owner of any premises shown in Objections to 
 a provisional apportionment as liable to be charged with any part proposed 
 of the expenses of executing the works may, by written notice works - 
 served on the urban authority, object to the proposals of the urban 
 authority on any of the following grounds ; (that is to say,) 
 
 (a.) That an alleged street or part of a street is not or does not 
 form part of a street within the meaning of this Act ;
 
 108 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Hearing and 
 determination 
 of objections. 
 
 (b.) That a street or part of a street is (in whole or in part) a 
 highway repairable by the inhabitants at large ; 
 
 (c.) That there has been some material informality, defect, or 
 error in or in respect of the resolution, notice, plans, sections, 
 or estimate ; 
 
 (d.) That the proposed works are insufficient or unreasonable, or 
 that the estimated expenses are excessive ; 
 
 (e.) That any premises ought to be excluded from or inserted in 
 the provisional apportionment ; 
 
 (f.) That the provisional apportionment is incorrect in respect 
 of some matter of fact to be specified in the objection or 
 (where the provisional apportionment is made with regard to 
 other considerations than frontage as herein -after provided) 
 in respect of the degree of benefit to be derived by any 
 persons, or the amount or value of any work already done 
 by the owner or occupier of any premises. 
 
 For the purposes of this Act joint tenants or tenants in common 
 may object through one of their number authoiised in writing 
 under the hands of the majority of such joint tenants or tenants in 
 common. 
 
 8. (1.) The urban authority at any time after the expiration of 
 the said month may apply to a court of summary jurisdiction to 
 appoint a time for determining the matter of all objections made as 
 in this Act mentioned, and shall publish a notice of the time and 
 place appointed, and copies of such notice shall be served upon the 
 objectors ; and at the time and place so appointed any such court 
 may proceed to hear and determine the matter of all such objections 
 in the same manner as nearly as may be, and with the same powers 
 and subject to the same provisions with respect to stating a case, 
 as if the urban authority were proceeding summarily against the 
 objectors to enforce payment of a sum of money summarily recover- 
 able. The court may quash in whole or in part or may amend 
 the resolution, plans, sections, estimates, and provisional apportion- 
 ments, or any of them, on the application either of any objector or 
 of the urban authority. The court may also, if it thinks fit, adjourn 
 the hearing and direct any further notices to be given. 
 
 (2.) No objection which could be made under this Act shall be 
 otherwise made or allowed in any court proceeding or manner 
 whatsoever. 
 
 (3.) The costs of any proceedings before a court of summary 
 jurisdiction in relation to objections under this Act shall be in the 
 discretion of the court, and the court shall have power, if it thinks 
 fit, to direct that the whole or any part of such costs ordered to be
 
 THE PRIVATE STREET WORKS ACT, 1892. 109 
 
 paid by an objector or objectors shall be paid in. the first instance APPENDIX A. 
 by the urban authority, and charged as part of the expenses of the 
 works on the pi-emises of the objector or objectors in such pro- 
 portions as may appear just. 
 
 9. (1.) The urban authority may include in any works to be Incidental 
 done under this Act with respect to any street or part of a street wor ks- 
 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. 
 
 (2.) The urban authority in any estimate of the expenses of 
 private street works may include a commission not exceeding five 
 pounds per centum (in addition to the estimated actual cost) in 
 respect of surveys, superintendence, and notices, and such com- 
 mission when received shall be carried to the credit of the district 
 fund. 
 
 10. In a provisional apportionment of expenses of private street Apportionment 
 works the apportionment of expenses against the premises fronting, ^ expenses, 
 adjoining, or abutting on the street or part of a street in respect of 
 
 which the expenses are to be incurred shall, unless the urban 
 authority otherwise resolve, be apportioned according to the frontage 
 of the respective premises ; but the urban authority may, if they 
 think just, resolve that in settling the apportionment regard shall 
 be had to the following considerations ; (that is to say,) 
 
 (a.) The greater or less degree of benefit to be derived by any 
 premises from such works ; 
 
 (b.) The amount and value of any work already done by the 
 owners or occupiers of any such premises. 
 
 They may also, if the}' think just, include any premises which do 
 not front, adjoin, or abut on the street or part of a street, but 
 access to which is obtained from the street through a court, 
 passage, or otherwise, and which in their opinion will be benefited 
 by the works, and may fix the sum or proportion to be charged 
 against any such premises accordingly. 
 
 11. The urban authority may from time to time amend the Amendment 
 specifications, plans, and sections (if any), estimates, and provi- of plan, etc. 
 sional apportionments for any piivate street works, but if the total 
 
 amount of the estimate in respect of any street or part of a street is 
 increased, such estimate and the provisional apportionment shall be 
 published in the manner prescribed in Part II. of the Schedule to
 
 110 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Filial appor- 
 tionment and 
 recovery of 
 expenses. 
 
 38 & 39 Viet, 
 c. 55. 
 
 Charge on 
 premises. 
 
 this Act, and shall be open to inspection at the urban authority 
 offices at all reasonable times, and copies thereof shall be served on 
 the owners of the premises affected thereby ; and objections maybe 
 made to the increase and apportionment, and if made shall be dealt 
 with and determined in like manner as objections to the original 
 estimate and apportionment. 
 
 12. (1.) When any private street works have been completed, 
 and the expenses thereof ascertained, the surveyor shall make a 
 final apportionment by dividing the expenses in the same propor- 
 tions in which the estimated expenses were divided in the original 
 or amended provisional apportionment (as the case may be), and 
 such final apportionment shall be conclusive for all purposes ; and 
 notice of such final apportionment shall be served upon the owners 
 of the premises affected thereby ; and the sums apportioned thereby 
 shall be recoverable in manner provided by this Act, or in the same 
 manner as private improvement expenses are recoverable under the 
 Public Health Act, 1875, including the power to declare any such 
 expenses to be payable by instalments. 
 
 (2.) Within one month after such notice the owner of any pre- 
 mises charged with any expenses under such apportionment may, 
 by a written notice to the urban authority, object to such final 
 apportionment on the following grounds, or any of them : 
 
 (a.) That the actual expenses have without sufficient reason 
 exceeded the estimated expenses by more than fifteen 
 per cent. 
 
 (b.) That the final apportionment has not been made in accord- 
 ance with this section. 
 
 (c.) That there has been an unreasonable departure from the 
 specification, plans, and sections. 
 
 (3.) Objections under this section shall be determined in the same 
 manner as objections to the provisional apportionment. 
 
 13. (1.) Any premises included in the final apportionment, and 
 all estates and interests from time to time therein, shall stand and 
 remain charged (to the like extent and effect as under section two 
 hundred and fifty-seven of the Public Health Act, 1875) with the 
 sum finally apportioned on them, or if objection has been made 
 against the final apportionment with the sum determined to be due 
 as from the date of the final apportionment, with interest at the 
 rate of four pounds per centum per annum, and the urban authority 
 shall, for the recovery of such sum and interest, have all the same 
 powers and remedies under the Conveyancing and Law of Property 
 Act, 1881, and otherwise as if they were mortgagees having powers 
 of sale and lease and of appointing a receiver.
 
 THE PRIVATE STREET WORKS ACT, 1892. 
 
 Ill 
 
 summarily or 
 by action. 
 
 (2.) The urban authority shall keep a register of charges under APPENDIX A. 
 this Act and of the payments made in satisfaction thereof, and the 
 register shall be open to inspection to all persons at all reasonable 
 times on payment of not exceeding one shilling in respect of each 
 name or property searched for, and the urban authority shall 
 furnish copies of any part of such register to any person applying 
 for the same on payment of such reasonable sum as may be fixed 
 by the urban authority. 
 
 14. The urban authority, if they think fit, may from time to Kecovery 
 time (in addition and without prejudice to any other remedy) of expenses 
 recover summarily in a court of summary jurisdiction, or as a simple 
 contract debt by action in any court of competent jurisdiction, from 
 
 the owner for the time being of any premises in respect of which 
 any sum is due for expenses of private street works the whole or 
 any portion of such sum, together with interest at a rate not exceed- 
 ing four pounds per centum per annum, from the date of the final 
 apportionment till payment thereof. 
 
 15. The urban authority, if they think fit, may at any time Contribution 
 resolve to contribute the whole or a portion of the expenses of any by urban 
 private street works, and may pay the same out of the district au * aor i t y to 
 fund or general district rate or other rate out of which the general 
 expenses incurred under the Public Health Act, 1875, are 
 
 payable. 
 
 16. The incumbent or minister or trustee of any church, chapel, Exemption 
 
 or place appropriated to public religious worship, which is for the ^ r ,. om ex P enses 
 ,. i- v , , ,. ,. -, ,. . ,. ,, of incumbent 
 
 time being by law exempt from rates for the relief of the poor, of ch^ch. 
 
 shall not be liable to any expenses of private street works as the 
 owner of such church, chapel, or place, or of any churchyard or 
 burial ground attached thereto, nor shall any such expenses be 
 deemed to be a charge on such church, chapel, or other place, or on 
 such churchyard or burial ground, or to subject the same to distress, 
 execution, or other legal process, but the proportion of expenses in 
 respect of which an exemption is allowed under this section shall 
 be borne and paid by the urban authority. 
 
 17. All owners of buildings or lands, being persons who under Power for 
 the Lands Clauses Acts are empowered to sell and conveyor release limited owners 
 lands, may charge such buildings or lands with such sum as may 
 
 be necessary to defray the whole or any part of any expenses 
 which the owners of or any persons in respect of such buildings or 
 lands for the time being are liable to pay under this Act and the 
 expenses of making such charge, and for securing the repayment 
 of such sum with interest may mortgage such buildings or lands to 
 any person advancing such sum, but so that the principal due on 

 
 112 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Power for 
 urban authority 
 to borrow for 
 private street 
 works. 
 
 Adoption of 
 private streets. 
 
 On street bein 
 paved, &c., 
 urban 
 
 authority to 
 declare same 
 public 
 highway. 
 
 Separate 
 accounts of 
 expenses of 
 works. 
 
 Railways and 
 canals abutting 
 but not com- 
 municating 
 with streets not 
 to be charge- 
 able with 
 private street 
 expenses. 
 
 any such mortgage shall be repaid by equal yearly or half-yearly 
 payments within twenty years. 
 
 18. The urban authority may from time to time, with the sanc- 
 tion of the Local Government Board, borrow, on the security of the 
 district fund and general district rates or other rate out of which 
 the general expenses incurred under the Public Health Act, 1875, 
 are payable, moneys for the purpose of temporarily providing for 
 expenses of private street works, and the powers of the urban 
 authority to borrow under the Public Health Acts shall be a,vail- 
 able as if the execution of private street works under this Act were 
 one of the purposes of the Public Health Act, 1875. 
 
 19. Whenever all or any of the private street works in this Act 
 mentioned have been executed in a street or part of a street, and 
 the urban authority are of opinion that such street or part of a 
 street ought to become a highway repairable by the inhabitants at 
 large, they may by notice to be fixed up in such street or part of a 
 street declare the whole of such street or part of a street to be a 
 highway repairable by the inhabitants at large, and thereupon such 
 street or part of a street as defined in the notice shall become a 
 highway repairable by the inhabitants at large. 
 
 20. If any street is now or shall hereafter be sewered, levelled, 
 paved, metalled, flagged, channelled, and made good (all such works 
 being done to the satisfaction of the urban authority), then, on the 
 application in writing of the greater part in value of the owners 
 of the houses and land in such street, the urban authority shall, 
 within three months from the time of such application, by notice 
 put up in such street declare the same to be a highway repairable 
 by the inhabitants at large, and thereupon such street shall become 
 a highway repairable by the inhabitants at large. 
 
 21. (1.) The urban authority shall keep separate accounts of all 
 moneys expended and recovered by them in the execution of the 
 provisions of this Act relating to private street works. 
 
 (2.) All moneys recovered by the urban authority under this Act 
 in respect of street works shall be applied in repayment of moneys 
 borrowed for the purpose of executing private street works, or if 
 there is no such loan outstanding then in such manner as may be 
 directed by the Local Government Board. 
 
 22. No railway or canal company shall be deemed to be an 
 owner or occupier for the purposes of this Act in respect of any 
 land of such company upon which any street shall wholly or 
 partially front or abut, and which shall at the time of the laying 
 out of such street be used by such company solely as a part of their
 
 THE PRIVATE STREET WORKS ACT, 1892. 
 
 line of railway, canal, or siding, station, towing path., or works, and APPENDIX A. 
 shall have no direct communication with such street ; and the 
 expenses incurred by the urban authority under the powers of this 
 Act which, but for this provision, such company would be liable to 
 pay, shall be repaid to the urban authority by the owners of the 
 premises included in the apportionments, and in such proportion as 
 shall be settled by the surveyor ; and in the event of such company 
 subsequently making a communication with such street they shall, 
 notwithstanding such repayment as last aforesaid, pay to the urban 
 authority the expenses which, but for the foregoing provision, such 
 company would in the first instance have been liable to pay, and 
 the urban authority shall divide among the owners for the time 
 being included in the apportionment the amount so paid by such 
 company to the urban authority, less the costs and expenses atten- 
 dant upon such division, in such proportion as shall be settled by 
 the surveyor, whose decision shall be final and conclusive. This 
 section shall not apply to any street existing at the date of the 
 adoption of this Act. 
 
 23. All expenses incurred or payable by an urban authority and Expenses of 
 
 a rural sanitary authority respectively in the execution of this Act, ^ oca ^ authority, 
 and not otherwise provided for, may be charged and defrayed as 
 part of the expenses incurred by them respectively in the execution 
 of the Public Health Acts. 
 
 24. All powers given to a local authority under this Act shall Powers of Act 
 be deemed to be in addition to and not in derogation of any other cumulative, 
 powers conferred upon such local authority by any Act of Parlia- 
 ment, law, or custom, and such other powers may be exercised in 
 
 the same manner as if this Act had not been passed. 
 
 25. Neither sections one hundred and fifty, one hundred and Certain 
 fifty-one, and one hundred and fifty-two of the Public Health Act, sections of 
 1875, nor section forty-one of the Public Health Acts Amendment Acts 'not to 
 Act, 1890, shall apply to any district or part of a district in which apply, 
 this Act is in force. 
 
 26. This Act shall not extend to prejudice or derogate from the For protection 
 estates, rights, and privileges of the Conservators of the Eiver of f C nS f r +i e 
 Thames, or render them liable to any charges or payments in respect River Thames, 
 of any of their works on or upon the shores of the Eiver Thames. 
 
 P.S.
 
 114 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Section 6, 11. 
 
 THE SCHEDULE. 
 
 PRIVATE STREET WORKS. 
 
 PART I. 
 
 Particulars to le stated in Specifications, Plans and Sections, 
 Estimates, and Provisional Apportionments, 
 
 Specifications. These shall describe generally the works and 
 things to be done, and in the case of structural works shall specify 
 us far as may be the foundation, form, material, and dimensions 
 thereof. 
 
 Plans and Sections. These shall show the constructive character 
 of the works, and the connexions (if any) with existing streets, 
 sewers, or other works, and the lines and levels of the works, sub- 
 ject to such limits of deviation (if any) as shall be indicated on the 
 plans and sections respectively. 
 
 Estimates. These shall show the particulars of the probable cost 
 of the whole works, including the commission provided for by 
 this Act. 
 
 Provisional Apportionments. These shall state the amounts 
 charged on the respective premises and the names of the respective 
 owners, or reputed owners, and shall also state whether the 
 apportionment is made according to the frontage of the respective 
 premises or not, and the measurements of the frontages, and the 
 other considerations (if any) on which the apportionment is based. 
 
 PART II. 
 
 Publication of Notice. 
 
 Any resolution, notice, or other document required by this Act 
 to be published in the manner prescribed by this schedule shall be 
 published once in each of two successive weeks in some local news- 
 paper circulating within the district, and shall be publicly posted 
 in or near the street to which it relates once at least in each of 
 three successive weeks.
 
 LOCAL GOVERNMENT ACT, 1894. 115 
 
 APPENDIX A. 
 
 LOCAL GOVEENMENT ACT, 1894. 
 (56 & 57 VICT. c. 73.) 
 
 25. (1.) As from the appointed day, there shall be transferred to 
 the district council of every rural district all the powers, duties, 
 and liabilities of the rural sanitary authority in the district, and 
 of any highway authority in the district, and highway boards shall 
 cease to exist, and rural district councils shall be the successors of 
 the rural sanitary authority and highway authority, and shall also 
 have as respects highways all the powers, duties, and liabilities of 
 an urban sanitary authority under sections one hundred and forty- 
 four to one hundred and forty-eight of the Public Health Act, 
 1875, and those sections shall apply in the case of a rural district 
 and of the council thereof in like manner as in the case of an 
 urban district and an urban authority. Provided that the council 
 of any county may by order postpone within their county or any 
 part thereof the operation of this section, so far as it relates to 
 highways, for a term not exceeding three years from the appointed 
 day, or such further period as the Local Government Board may 
 on the application of such council allow. 
 
 i2
 
 116 STATUTES. 
 
 APPENDIX A. 
 
 PUBLIC HEALTH ACT, 1875. 
 (38 & 39 VICT. c. 55.) 
 
 Definitions. 4. l n this Act, if not inconsistent with the context, the 
 
 following words and expressions have the meanings herein-after 
 respectively assigned to them ; that is to say, 
 
 "Person" includes any body of persons, whether corpoi'ate or 
 unincorporate : 
 
 "Local authority" means urban sanitary authority and rural 
 sanitary authority : 
 
 " Surveyor " includes any person appointed by a rural authority 
 to perform any of the duties of surveyor under this Act : 
 
 "Lauds" and "Premises" include messuages buildings lands 
 easements and hereditaments of any tenure : 
 
 "Owner" means the person for the time being receiving the 
 rackrent of the lands or premises in connexion with 
 which the word is used, whether on his own account or 
 as agent or trustee for any other person, or who would 
 so receive the same if such lands or premises were let at 
 a rackrent : 
 
 "Eackrent" means rent which is not less than two thirds of 
 the full net annual value of the property out of which 
 the rent arises ; and the full net annual value shall be 
 taken to be the rent at which the property might 
 reasonably be expected to let from year to year, free from 
 all usual tenant's rates and taxes, and tithe commutation 
 rentchai-ge (if any), and deducting therefrom the probable 
 average annual cost of the repairs, insurance, and other 
 expenses (if any) necessary to maintain the same in a state 
 to command such rent : 
 
 "Street" includes any highway . . . and any public bridge 
 (not being a county bridge), and any road lane footway 
 square court alley or passage whether a thoroughfare or 
 not:
 
 PUBLIC HEALTH ACT, 1875. 117 
 
 ' Drain " means any drain of and used for the drainage of APPENDIX A. 
 one building only, or premises within the same curtilage, 
 and made merely for the purpose of communicating there- 
 from 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 : 
 
 'Sewer" includes sewers and drains of every description, except 
 drains to which the word "drain" interpreted as aforesaid 
 applies, and except drains vested in or vinder the control 
 of any authority having the management of roads and 
 not being a local authority under this Act : 
 
 PART III. 
 
 SANITAEY PKOVISIONS. 
 
 SEWERAGE AND DRAINAGE. 
 
 Regulations as to Sewers and Drains. 
 
 13. All existing and future sewers within the district of a local Sewers vested 
 authority, together with all buildings, works, materials and things m J c . 
 belonging thereto, 
 Except 
 (1.) Sewers made by any person for his own profit, or by any 
 
 company for the profit of the shareholders ; and 
 (2.) Sewers made and used for the purpose of draining, pre- 
 serving, or improving land under any local or private Act 
 of Parliament, or for the purpose of irrigating land; and 
 (3.) Sewers under the authority of any commissioners of sewers 
 
 appointed by the Crown, 
 shall vest in and be under the control of such local authority. 
 
 Provided that sewers within the district of a local authority 
 which have been or which may hereafter be constructed by or 
 transferred to some other local authority or by or to a sewage 
 board or other authority empowered under any Act of Parliament 
 to construct sewers shall (subject to any agreement to the 
 contrary) vest in and be under the control of the authority who 
 constructed the same, or to whom the same have been transferred. 
 
 15. Every local authority shall keep in repair all sewers belong- Maintenance 
 
 ing to them, and shall cause to be made such sewers as may be an< l making of 
 
 necessary for effectually draining their district for the purposes of sewers - 
 this Act.
 
 118 
 
 STATUTES. 
 
 APPKNDIX A. 
 
 Alteration and 
 discontinuance 
 of sewers. 
 
 Powers of 
 surveyors of 
 highways and 
 of vestries 
 under 5 & 6 
 Will. 4, c. 50, 
 vested in 
 urban 
 authority. 
 
 18. Any local authority may from time to time enlarge lessen 
 alter the course of cover in or otherwise improve any sewer 
 belonging to them, and may discontinue close up or destroy any 
 such sewer that has in their opinion become unnecessary, on 
 condition of providing a sewer as effectual for the use of any 
 person who may be deprived in pursuance of this section of the 
 lawful use of any sewer : Provided that the discontinuance 
 closing up or destruction of any sewer shall be so done as not 
 to create a nuisance. 
 
 ***** 
 
 PART IV. 
 
 LOCAL GOVERNMENT PROVISIONS. 
 
 HIGHWAYS AND STREETS. 
 
 As to Highways. 
 
 144 (). Every urban authority shall within their district 
 exclusively of any other person execute the office of and be 
 surveyor of highways, and have exercise and be subject to all 
 the powers authorities duties and liabilities of surveyors of high- 
 ways under the law for the time being in force, save so far as such 
 powers authorities or duties are or may be inconsistent with the 
 provisions of this Act; every urban atithority shall also have 
 exercise and be subject to all the powers authorities duties and 
 liabilities which by the Highway Act, 1835, or any Act amending 
 the same, are vested in and given to the inhabitants in vestry 
 assembled of any parish within their district. 
 
 All ministerial acts required by any Act of Parliament to be done 
 by or to the surveyor of highways may be done by or to the 
 surveyor of the urban authority, or by or to such other person 
 as they may appoint. 
 
 Power of 1^6 (). Any urban authority may agree with any person for the 
 
 urban making of roads within their district for the public use through the 
 
 authority to lands and at the expense of such person, and may agree that such 
 making 8 of new roa ^ s shall become and the same shall accordingly become on corn- 
 public roads. pletion highways maintainable and repairable by the inhabitants at 
 large within their district ; they may also, with the consent of two 
 thirds of their number, agree with such person to pay, and may 
 accordingly pay, any portion of the expenses of making such 
 roads. 
 
 ***** 
 
 (a) The powers of urban authorities under ss. 144 148 are conferred ou 
 rural district councils 56 & 57 Viet. c. 73, s. 25. See p. 115.
 
 PUBLIC HEALTH ACT, 1875. 
 
 Regulations of Streets and Buildings. 
 
 119 
 
 APPENDIX A, 
 
 149 (6). All streets, being or which at any time become high- y ,. ^ , 
 ways repairable by the inhabitants at large within any urban s treets&c. 
 district, and the pavements stones and other materials thereof, and in urban 
 all buildings implements and other things provided for the pur- authority, 
 poses thereof, shall vest in and be under the control of the urban 
 authority. 
 
 The urban authority shall from time to time cause all such 
 streets to be levelled paved metalled nagged channelled altered 
 and repaired as occasion may require ; they may from time to time 
 cause the soil of any such street to be raised lowered or altered as 
 they think fit, and may place and keep in repair fences and posts 
 for the safety of foot passengers. 
 
 Any person who without the consent of the urban authority 
 wilfully displaces or takes up or who injures the pavement stones 
 materials fences or posts of or the trees in any such street shall be 
 liable to a penalty not exceeding five pounds, and to a further 
 penalty not exceeding five shillings for every square foot of 
 pavement stones or other materials so displaced taken up or 
 injured; he shall also be liable in the case of any injury to trees to 
 pay to the local authority such amount of compensation as the 
 court may award. 
 
 150 (c). Where any street within any urban district (not being a Power to 
 highway repairable by the inhabitants at large) or the carriageway compel paving, 
 footway or any other part of such street is not sewered levelled private streets 
 paved metalled flagged channelled and made good or is not lighted 
 
 to the satisfaction of the urban authority, such authority may, by 
 notice addressed to the respective owners or occupiers of the 
 premises fronting adjoining or abutting on such parts thereof as 
 may require to be sewered levelled paved metalled flagged or 
 channelled, or to be lighted, require them to sewer level pave 
 metal flag channel or make good or to provide proper means for 
 lighting the same within a time to be specified in such notice. 
 
 Before.giving such notice the urban authority shall cause plans 
 and sections of any structural works intended to be executed under 
 this section, and an estimate of the probable cost thereof, to be 
 made under the direction of their surveyor, such plans and sections 
 to be on a scale of not less than one inch for eighty-eight feet for a 
 horizontal plan, and on a scale of not less than one inch for ten 
 
 (b) As to mines and minerals under highways, see 41 & 42 Viet. c. 77, 
 s. "27. 
 
 (c) Sections 150 152 do not apply to an}- district or part of a district 
 in which 55 & 56 Viet. c. 57, is in force. See s. 25 of that Act.
 
 120 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Power to 
 declare private 
 streets when 
 sewered, &c., 
 to be 
 highways. 
 
 feet for a vertical section, and, in the case of a sewer, showing the 
 depth of such sewer below the surface of the ground : such plans 
 sections and estimate shall be deposited in the office of the urban 
 authority, and shall be open'at all reasonable hours for the inspec- 
 tion of all persons interested therein during the time specified in 
 such notice; and a reference to such plans and sections in such 
 notice shall be sufficient without requiring any copy of such plans 
 and sections to be annexed to such notice. 
 
 If such notice is not complied with, the iirban authority may, if 
 they think fit, execute the works mentioned or referred to therein ; 
 and may recover in a summary manner the expenses incurred by 
 them in so doing from the owners in default, according to the 
 frontage of their respective premises, and in such proportion as is 
 settled by the surveyor of the urban authority, or (in case of 
 dispute) by arbitration in manner provided by this Act; or the 
 urban authority may by order declare the expenses so incurred 
 to be private improvement expenses. 
 
 The same proceedings may be taken, and the same powers may 
 be exercised, in respect of any street or road of which a part is 
 or may be a public footpath or repairable by the inhabitants at 
 large as fully as if the whole of such street or road was a highway 
 not repairable by the inhabitants at large. 
 
 #***# 
 
 152 (d}. When any street within any urban distiict not being 
 a highway repairable by the inhabitants at large has been sewered 
 levelled paved flagged metalled channelled and made good and 
 provided with proper means of lighting to the satisfaction of the 
 urban authority, such authority may, if they think fit, by notice in 
 writing put up in any part of the street, declare the same to be 
 a highway, and thereupon the same shall become a highway 
 repairable by the inhabitants at large ; and every such notice shall 
 be entered among the proceedings of the urban authority. 
 
 Provided that no such street shall become a highway so repair- 
 able, if within one month after such notice has been put up the 
 proprietor or the majority in number of proprietors of such street, 
 by notice in writing to the urban authority, object thereto, and in 
 ascertaining such majority joint proprietors shall be reckoned as 
 one proprietor. 
 
 [See p. 99 for the alteration effected by s. 41 of the Public Health 
 Act Amendment Act, 1890, where Part III. of that Act has been 
 adopted.] 
 
 # * * # # 
 
 (cl) Rep. on adoption of Part III. of 53 & 54 Viet. c. 59 ; see s. 41 of 
 that Act, which substitutes other provisions. See also note on preceding 
 page.
 
 PUBLIC HEALTH ACT, 1875. 
 
 Lighting Streets, &c. 
 
 121 
 
 APPENDIX A. 
 
 161. Any urban authority may contract with any person for the Powers 
 
 supply of gas, or other means of lighting the streets, markets, and * V^ n r 
 
 public buildings in their district, and may provide such lamps, for ijo-htm- 
 
 lamp posts, and other materials and apparatus as they may think their district, 
 
 necessary for lighting the same. 12 & 13 Viet. 
 
 c 94 s 8. 
 Where there is not any company or person (other than the urban 
 
 authority) authorised by or in pursuance of any Act of Parliament, 
 or any order confirmed by Parliament, to supply gas for public and 
 private purposes, supplying gas within any part of the district of 
 such authority, such authority may themselves undertake to 
 supply gas for such purposes or any of them throughout the whole 
 or any part of their district; and if there is any such company or 
 person so supplying gas, but the limits of supply of such company 
 or person include part only of the district, then the urban authority 
 may themselves undertake to supply gas throughout any part of the 
 disti ict not included within such limits of supply. 
 
 Where an urban authority may under this Act themselves under- 
 take to supply gas for the whole or any part of their district, a 
 provisional order authorising a gas undertaking may be obtained 
 by such authority under and subject to the provisions of the Gas and 
 Water Works Facilities Act, 1870, and any Act amending the same ; 33 & 34 Viet, 
 and in the construction of the said Act the term "the undertakers" c - " 0< 
 shall be deemed to include any such urban authority : Provided 
 that for the purposes of this Act the Local Government Board shall 
 throughout the said Act be deemed to be substituted for the Board 
 of Trade. 
 
 PART VI. 
 
 EATING AND BORROWING POWERS, &c. 
 EXPENSES OF URBAN AUTHORITY AND URBAN RATES. 
 
 207. All expenses incurred or payable by an urban authority in Mode of 
 
 the execution of this Act, and not otherwise provided for, shall be defrayiu o 
 
 charged on and defrayed out of the district fund and general ur b an 
 
 district rate leviable by them under this Act, subject to the authority, 
 following exceptions ; (namely,) 
 
 That if in any district the expenses incurred by an urban 
 authority (being the council of a borough) in the execution 
 of the Sanitary Acts were at the time of the passing of this
 
 122 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Power in 
 certain cases 
 by provisional 
 order to 
 alter mode. 
 
 Act payable out of the borough fund or borough rate, then 
 the expenses incurred by that authority in the execution of 
 this Act shall be charged on and defrayed out of the borough 
 fund or borough rate ; and 
 
 That if in any district the expenses incurred by an urban autho- 
 rity (being improvement commissioners) in the execution of 
 the Sanitary Acts, were at the time of the passing of this Act 
 payable out of any rate in the nature of a general district 
 rate leviable by them as such commissioners throughout the 
 whole of their district, then the expenses incurred by that 
 authority in the execution of this Act shall be charged on 
 and defrayed out of such rate ; and for the purposes of this 
 section the council of the borough of Folkestone shall be 
 deemed to be improvement commissioners ; and 
 
 That where at the time of the passing of this Act the expenses 
 incurred by an urban authority in the execution of certain 
 purposes of the Sanitary Acts were payable out of the borough 
 fund and borough rate, and the expenses incurred by such 
 authority in the execution of the other purposes of the said 
 Acts were payable out of a rate or rates leviable by that 
 authority throughout the whole of their district for paving- 
 sewers or other sanitary purposes, then the expenses incurred 
 by that authority in the execution of the same or similar 
 purposes respectively under this Act shall respectively be 
 charged on and defrayed out of the borough fund and borough 
 rate, and out of the rate or rates leviable as aforesaid. 
 
 208. Where at the time of the passing of this Act the 
 expenses incurred by an urban authority for sanitary purposes 
 are payable otherwise than in the manner provided by the Local 
 Government Acts, the Local Government Board may, on the appli- 
 cation of such authority, or of any ten persons rated to the relief of 
 the poor within the district, declare by provisional order that the 
 expenses of such authority incurred in the execution of this Act 
 shall be defrayed out of a district fund and general district rate to 
 be levied by them under this Act, subject to the provisions of this 
 Act with respect to the mode of defraying in certain cases the 
 expenses of the repair of highways. 
 
 Private Improvement Hate. 
 
 Power to make 213. Whenever an urban authority have incurred or become 
 private liable to any expenses which by this Act are or by such authority 
 
 may be declared to be private improvement expenses, such autho- 
 rity may, if they think fit, make and levy on the occupier of the 
 
 improvement 
 rates.
 
 PUBLIC HEALTH ACT, 1875. 
 
 123 
 
 Proportion of 
 private im- 
 provement 
 rate may be 
 deducted 
 from rent. 
 
 premises in respect of which the expenses have been incurred, in APPENDIX A. 
 addition to all other rates, a rate or rates to be called private 
 improvement rates, of such amount as will be sufficient to discharge 
 such expenses, together with interest thereon at a rate not exceed- 
 ing five pounds per centum per annum, in such period not 
 exceeding thirty years as the urban authority may in each case 
 determine. 
 
 Provided that whenever any premises in respect of which any 
 private improvement rate is made become unoccupied before the 
 expiration of the period for which the rate was made, or before the 
 same is fully paid off, such rate shall become a charge on and be 
 paid by the owner for the time being of the premises so long as the 
 same continue to be unoccupied. 
 
 214. "Where the occupier by whom any private improvement 
 rate is paid holds the premises in respect of which the rate is made 
 at a rent not less than the rackrent, he shall be entitled to deduct 
 three fourths of the amount paid by him. on account of such rate 
 from the rent payable by him to his landlord, and if he hold at 
 a rent less than the rackrent he shall be entitled to deduct from 
 the rent so payable by him such proportion of three fourths of the 
 rate as his rent bears to the rackrent ; and if the landlord from 
 whose rent any deduction is so made is himself liable to the 
 payment of rent for the premises in respect of which the deduction 
 is made, and holds the same for a term of which less than twenty 
 years is unexpired (but not otherwise), he may deduct from the 
 rent so payable by him such proportion of the sum deducted from 
 the rent payable to him as the rent payable by him bears to 
 the rent payable to him, and so in succession with respect to 
 every landlord (holding for a term of which less than twenty years 
 is unexpired) of the same premises both receiving and liable to pay 
 rent in respect thereof. 
 
 Provided that nothing in this section shall be construed to 
 entitle any person to deduct from the rent payable by him more 
 than the whole sum deducted from the rent payable to him. 
 
 215. At any time before the expiration of the period for which Redemption 
 any private improvement rate is made, the owner or occupier of 
 
 the premises assessed thereto may redeem the same, by paying to ra t es _ 
 the urban authority the expenses in respect of which the rate was 
 made, or such part thereof as may not have been defrayed by sums 
 already levied in respect of the same : 
 
 Provided that money paid in redemption of any private improve- 
 ment rate shall not be applied by the urban authority otherwise 
 than in defraying expenses incurred by them in works of private
 
 124 
 
 STATUTES. 
 
 APPENDIX A. improvement or in discharging the principal of any moneys 
 borrowed by them to meet those expenses, whether by means of a 
 sinking fund or otherwise. 
 
 * # * * * 
 
 Expenses of 
 rural authority. 
 
 EXPENSES OF EUBAL AUTHORITY. 
 
 229. The expenses incurred by a rural authority in the execution 
 o f fais Act shall be divided into general expenses and special 
 expenses. 
 
 General expenses (other than those chargeable on owners and 
 occupiers under this Act) shall be the expenses of the establishment 
 and officers of the rural authority, the expenses in relation to disin- 
 fection, the providing conveyance for infected persons, and all 
 other expenses not determined by this Act or by order of the Local 
 Government Board to be special expenses. 
 
 Special expenses shall be the expenses of the construction main- 
 tenance and cleansing of sewers in any contributory place within 
 the district, the providing a supply of water to any such place, and 
 maintaining any necessary works for that purpose, if and so far as 
 the expenses of such supply and works are not defrayed out of 
 water rates or rents under this Act, the charges and expenses 
 arising out of or incidental to the possession of property transferred 
 to the rural authority in trust for any contributory place, and all 
 other expenses incurred or payable by the rural authority in or in 
 respect of any contributory place within the district, and determined 
 by order of the Local Government Board to be special expenses. 
 
 Where the rural authority make any sewers or provide any water 
 supply or execute any other work under this Act for the common 
 benefit of any two or more contributory places within their district, 
 they may apportion the expense of constructing any such work, 
 and of maintaining the same, in such proportions as they think 
 just, between such contributory places, and any expense so appor- 
 tioned to any such contributory place shall be deemed to be special 
 expenses legally incurred in respect of such contributory place. 
 
 The overseers of any contributory place, if aggrieved by any such 
 apportionment, may, within twenty-one days after notice has been 
 given to them of the apportionment, send or deliver a memorial to 
 the Local Government Board stating their grounds of complaint, 
 and the said Board may make such order in the matter as to it 
 may seem equitable, and the order so made shall be binding and 
 conclusive on all parties concerned. 
 
 General expenses shall be payable out of a common fund to be 
 raised out of the poor rate of the parishes in the district according 
 to the rateable value of each contributory place in manner in this 
 Act mentioned.
 
 PUBLIC HEALTH ACT, 1875. 
 
 125 
 
 Special expenses shall be a separate charge on each contributory APPENDIX A. 
 place. 
 
 The following areas situated in a rural district shall be con- 
 tributory places for the purposes of this Act (that is to say) : 
 
 (1.) Every parish not having any part of its area within the limits 
 of a special drainage district formed in pursuance of the 
 Sanitary Acts or of this Act, or of an urban district ; and 
 
 (2.) Every such special drainage district as aforesaid ; and 
 
 (3.) In the case of a parish wholly situated in a rural district, and 
 part of which forms or is part of any such special drainage 
 district as aforesaid, such portion of that parish as is not 
 comprised within such special drainage district ; and 
 
 (4.) In the case of a parish a part of which is situated within an 
 urban district, such portion of that parish as is not comprised 
 within such urban district, or within any such special 
 drainage district as aforesaid. 
 
 230. For the purpose of obtaining payment from the several Mode of 
 
 contributory places within their district of the sums to be con- raisin , 
 
 , - i ji ii i ii. -j. i_ n : .LI contributions 
 
 tnbuted by them, the rural authority shall issue their precept to i aru ral district. 
 
 the overseers of each such contributory place requiring such over- 
 seers to pay, within a time limited by the precept, the amount 
 specified in such precept to the rural authority, or to some person 
 appointed by them, care being taken to issue separate precepts in 
 respect of contributions for general expenses and special expenses, 
 or to make such expenses respectively separate items in any precept 
 including both classes of expenses. 
 
 Where a contributory place is part of a parish as defined by this 
 Act, the overseers of such parish shall for the purposes of this Act 
 be deemed to be the overseers of such contributory place, and 
 where any part of a contributory place is part of a parish the over- 
 seers of such parish shall for the like purposes be deemed to be the 
 overseers of such part of such contributory place. 
 
 The overseers shall comply with the requisitions of such precept 
 by paying the contribution required in respect of general expenses 
 out of the poor rate of their respective parishes, and with respect to 
 special expenses by raising the contribution required by the levy 
 (in the case of an entire parish on the whole of such parish, and in 
 the case of a contributory place or part of a contributory place 
 forming part of a parish, by the levy on such place, or such part 
 thereof, exclusive of the rest of the parish) of a separate rate in the 
 same manner as if it were a rate for the relief of the poor, with this 
 exception ; (namely,) 
 
 That the owner of any tithes, or of any tithe commutation rent- 
 charge, or the occupier of any land used as arable meadow or
 
 126 STATUTES. 
 
 APPENDIX A. pasture ground only, or as woodlands [(e) orchards, allot- 
 
 ments], market gardens, or nursery grounds, and the occupier 
 of any land covered with water, or used as a canal or towing- 
 path for the same, or as a railway constructed under the powers 
 of any Act of Parliament for public conveyance, shall, where 
 a special assessment is made for the purpose of such rate, be 
 assessed in respect of one-fourth part only of the rateable 
 value thereof, or where no special assessmentis made, shall pay 
 in respect of the said property one-fourth part only of the rate 
 in the pound payable in respect of houses and other property : 
 Provided that where the amount required by any precept or precepts 
 from a contributory place in respect of special expenses is less than 
 ten pounds, or is so small that a rate less than one penny in the 
 pound would be required to raise the same, the overseers shall not 
 assess and levy any special rate for the same, but shall pay the 
 amount as if it formed part of the contribution required from them 
 in respect of general expenses. 
 
 A separate rate under this section shall, as respects the powers 
 of the overseers in relation to making assessing and levying such 
 rate, and as respects the appeal against such rate, and all other 
 incidents thereof except the purposes to which it is applicable, and 
 such exemption as aforesaid, and except the allowance of justices, 
 which shall not be required, be subject to the same provisions as 
 apply in law to a rate levied for the relief of the poor ; and the 
 overseers of a parish shall have the same powers of levying such 
 separate rate in a contributory place or part of a contributory place 
 forming part of their parish, as they would have if such contributory 
 place or such part thereof formed the whole of their parish. 
 
 Where a contribution for general expenses is required from a 
 contributory place or part of a contributory place which is part of 
 a parish, the overseers shall from time to time levy such increase 
 of rate from the contributory place or such part thereof as may be 
 sufficient to recoup the parish for the sum it has paid on account 
 of the contributory place or such part thereof in respect of general 
 expenses under this Act, and carry the same to the general account 
 of the parish, and such increase of rate shall be raised in such con- 
 tributory place or part of a contributory place by an addition to the 
 poor rate, or by a separate rate to be assessed, made, allowed, 
 published, collected, and levied in the same manner as a poor rate. 
 The officers ordinarily employed in the collection of the poor rate 
 shall, if required by the overseers, collect any separate rate made 
 under this section, and receive out of such separate rate such 
 
 (e) Words in brackets inserted by 53 & 54 Viet. c. 17, s. 1 ; 54 & 55 
 Viet. c. 33, s. 1.
 
 PUBLIC HEALTH ACT, 1875. 
 
 127 
 
 remuneration for the additional duty as the overseers with the APPENDIX A. 
 consent of the vestry may determine. 
 
 The overseers shall at the expiration of their term of office pay 
 any surplus in their hands arising from any separate rate levied in 
 pursuance of this Act, above the amount for which the rate was 
 made, to the rural authority or to such person as they may appoint, 
 to the credit of the contributory place within which or within part 
 of which such rate was made ; and such surplus shall go in reduc- 
 tion of the next call that may be made on such contributory place 
 or such part thereof for the purpose of defraying the expenses 
 incurred by the rural authority. 
 
 232. Whenever a rural authority have incurred or become liable As to private 
 to any expenses which by this Act are, or by such authority may improvement 
 be declared to be private improvement expenses, such authority 
 
 may make and levy a private improvement rate in the same manner 
 as private improvement rates may be made and levied by an urban 
 authority ; and all the provisions of this Act applicable to private 
 improvement rates leviable by an urban authority shall apply 
 accordingly to any private improvement rate leviable by a rural 
 authority. 
 
 BORROWING POWERS. 
 
 233. Any local authority may, with the sanction of the Local Power to 
 Government Board, for the purpose of defraying any costs charges b rr p w on 
 and expenses incurred or to be incurred by them in the execution 
 
 of the Sanitary Acts or of this Act, or for the purpose of dis- 
 charging any loans contracted under the Sanitary Acts or this Act, 
 borrow or re-borrow, and take up at interest, any Emma of money 
 necessary for defraying any such costs charges and expenses, or 
 for discharging any such loans as aforesaid. 
 
 An urban authority may borrow or re-borrow any such sums on 
 the credit of any fund or all or any rates or rate out of which they 
 are authorised to defray expenses incurred by them in the execu- 
 tion of this Act, and for the purpose of securing the repayment of 
 any sums so borrowed, with interest thereon, they may mortgage 
 to the persons by or on behalf of whom such sums are advanced 
 any such fund or rates or rate. 
 
 A rural authority may borrow or re-borrow any such sums, if 
 applied or intended to be applied to general expenses of such 
 authority, on the credit of the common fund out of which such 
 expenses are payable, and if applied or intended to be applied to 
 special expenses of such authority, on the credit of any rate or 
 rates out of which such expenses are payable, and for the purpose
 
 128 STATUTES. 
 
 API-KNDIX A. of securing the repayment of any sums so borrowed, with interest 
 thereon, they may mortgage to the persons by or on behalf of 
 whom such sums are advanced any such fund, rate, or rates. 
 
 Regulations 234. The exercise of the powers of borrowing conferred by this 
 
 as to exercise Act shall be subject to the following regulations ; (namely,) 
 
 of borrowing 
 
 powers. (1.) Money shall not be borrowed except for permanent works 
 
 (including under this expression any works of which the cost 
 ought in the opinion of the Local Government Board to be 
 spread over a term of years) : 
 
 (2.) The sum borrowed shall not at anytime exceed, with the 
 balances of all the outstanding loans contracted by the 
 local authority under the Sanitary Acts and this Act, in 
 the whole the assessable value for two years of the premises 
 assessable within the district in respect of which such money 
 may be borrowed : 
 
 (3.) Where the sum proposed to be borrowed with such balances 
 (if any) would exceed the assessable value for one year of 
 such premises, the Local Government Board shall not give 
 their sanction to such loan until one of their inspectors has 
 held a local inquiry and reported to the said board : 
 
 (4.) The money may be borrowed for such time, not exceeding 
 sixty years, as the local authority, with the sanction of the 
 Local Government Board, determine in each case ; and, 
 subject as aforesaid, the local authority shall either pay off 
 the moneys so borrowed by equal annual instalments of 
 principal or of principal and interest, or they shall in every 
 year set apart as a sinking fund and accumulate in the way 
 of compound interest by investing the same in the purchase 
 of Exchequer bills or other Government securities, such sum 
 as will with accumulations in the way of compound interest 
 be sufficient, after payment of all expenses, to pay off the 
 moneys so borrowed within the period sanctioned : 
 
 (5.) A local authority may at any time apply the whole or any 
 part of a sinking fund set apart under this Act in or towards 
 the discharge of the moneys for the repayment of which the 
 fund has been established : Provided that they pay into the 
 fund in each year, and accumulate until the whole of the 
 moneys borrowed are discharged, a sum equivalent to the 
 interest which would have been produced by the sinking 
 fund or the part of the sinking fund so applied : 
 
 (6.) Where money is borrowed for the purpose of discharging a 
 previous loan, the time for repayment of the money so 
 borrowed shall not extend beyond the unexpired portion of
 
 PUBLIC HEALTH ACT, 1875. 
 
 129 
 
 the period for which the original loan was sanctioned, unless APPENDIX A. 
 with the sanction of the Local Government Board ; and shall 
 in no case be extended beyond the period of sixty years from 
 the date of the original loan. 
 
 Where any urban authority borrow any money for the purpose 
 of defraying private improvement expenses, or expenses in respect 
 of which they have determined a part only of the district to be 
 liable, it shall be the duty of such authority, as between the rate- 
 payers of the district, to make good, so far as they can, the money 
 so borrowed, as occasion requires, either out of private improve- 
 ment rates, or out of a rate levied in such part of the district as 
 aforesaid. 
 
 ***** 
 
 236. Every mortgage authorised to be made under this Act shall Form of 
 be by deed, truly stating the date consideration and the time and mortgage, 
 place of payment, and shall be sealed with the common seal of the 
 local authority, and may be made according to the form contained 
 in Schedule IV. to this Act, or to the like effect. 
 
 237. There shall be kept at the office of the local authority a 
 register of the mortgages on each rate, and within fourteen days 
 after the date of any mortgage an entry shall be made in the 
 register of the number and date thereof, and of the names and 
 description of the parties thereto, as stated in the deed. Every 
 such register shall be open to public inspection during office hours 
 at the said office, without fee or reward ; and any clerk or other 
 person having the custody of the same, refusing to allow such 
 inspection, shall be liable to a penalty not exceeding five pounds. 
 
 238. [Transfer of mortgages.] 
 
 239. [Eeceiver may be appointed in certain cases.] 
 
 Register of 
 mortgages. 
 
 242. The Public Works Loan Commissioners may, if they 
 see fit, on the application of any local authority, make any loan to 
 such authority for any of the purposes of this Act on the security 
 of any fund or rate applicable to any of the purposes of this Act, 
 without requiring any further or other security. 
 
 243. The Public Works Loan Commissioners may, on the applica- 
 tion of any local authority, and on the recommendation of the 
 Local Government Board, make any loan to such authority in 
 pursuance of any powers of borrowing conferred by this Act, 
 whether for works already executed or yet to be executed, on the 
 security of any fund or rate applicable to any of the purposes of 
 
 P.S. K 
 
 Power of 
 Public Works 
 Loan Com- 
 missioners to 
 lend to local 
 authority. 
 
 Power of 
 Public Works 
 Loan Com- 
 missioners to 
 lend to local 
 authority on 
 recommenda- 
 tion of Local 
 Government 
 Board.
 
 130 
 
 APPENDIX A. 
 
 35 & 36 Viet. 
 c. 79. 
 
 Summary 
 proceedings 
 for offences, 
 penalties, ifcc. 
 
 STATUTES. 
 
 this Act, and without requiring any further or other security, such 
 loan to be repaid within a period not exceeding fifty years, and to 
 bear interest at the rate of three and a half per centum per annum, 
 or such other rate as may, in the judgment of the Treasury, be 
 necessary, in order to enable the loan to be made without loss to the 
 Exchequer : 
 
 Provided, 
 
 (1.) That, in determining the time when a loan under this section 
 shall be repayable, the Local Government Board shall have 
 regard to the probable duratio n and continuing utility of the 
 works in respect of which the same is required : 
 
 (2.) That this section shall not extend to any loan required for 
 the purpose of defraying expenses incurred by the Local 
 Government Board in the performance of the duty of a 
 defaulting local authority after the passing of the Public 
 Health Act, 1872. 
 
 In the case of a loan made before the passing of the Public 
 Health Act, 1872, to any local authority in pursuance of any 
 powers conferred by the Sanitary Acts, the Public Works Loan 
 Commissioners may reduce the interest payable thereon to the rate 
 of not less than three and a half per centum per annum. 
 ***** 
 
 PART VII. 
 LEGAL PEOCEEDINGS. 
 
 Prosecution of Offences and Recovery of Penalties, &c. 
 
 251. All offences under this Act, and all penalties forfeitures 
 costs and expenses under this Act directed to be recovered in a 
 summary manner, or the recovery of which is not otherwise pro- 
 vided for, may be prosecuted and recovered in manner directed by 
 the Summary Jurisdiction Acts before a court of summary juris- 
 diction. The court of summary jurisdiction, when hearing and 
 determining an information or complaint under this Act, shall be 
 constituted of two or more justices of the peace in petty sessions, 
 sitting at a place appointed for holding petty sessions, or of some 
 magistrate or officer for the time being empowered by law to do 
 alone any act authorised to be done by more than one justice of 
 the peace sitting at some court or other place appointed for the 
 administration of justice. 
 
 Summary 
 proceedings 
 for recovery 
 of rates. 
 
 256. If any person assessed to any rate made under this Act by 
 any urban authority fails to pay the same when due and for the 
 space of fourteen days after the same has been lawfully demanded
 
 PUBLIC HEALTH ACT, 1875. 
 
 131 
 
 in writing, or if any person quits or is about to quit any premises APPENDIX A. 
 
 without payment of any such rate then due from him in respect of 
 
 such premises, and refuses to pay the same after lawful demand 
 
 thereof in writing, any justice may summon the defaulter to appear 
 
 before a court of summary jurisdiction to show cause why the rate 
 
 in arrear should not be paid ; and if the defaulter fails to appear, 
 
 or if no sufficient cause for nonpayment is shown, the court 
 
 may make an order for payment of the same, and, in default of 
 
 compliance with such order, may by warrant cause the same to be 
 
 levied by distress of the goods and chattels of the defaulter. 
 
 The costs of the levy of arrears of any rate may be included in 
 the warrant for such levy. 
 
 257. Where any local authority have incurred expenses for the Recovery of 
 repayment whereof the owner of the premises for or in respect of expenses by 
 
 which the same are incurred is made liable under this Act or by i oca ^ aut hority 
 
 .., ,1 , , ,1 ., , , from owners 
 
 any agreement with the local authority, such expenses may be 
 
 recovered, together with interest at a rate not exceeding five pounds 
 per centum per annum, from the date of service of a demand for 
 the same till payment thereof, from any person who is the owner 
 of such premises when the works are completed for which such 
 expenses have been incurred, and until recovery of such expenses 
 and interest, the same shall be a charge on the premises in 
 respect of which they were incurred. In all summary proceedings 
 by a local authority for the recovery of expenses incurred by them 
 in works of private improvement, the time within which such pro- 
 ceedings may be taken shall be reckoned from the date of the service 
 of notice of demand. 
 
 Where such expenses have been settled and apportioned by the 
 surveyor of the local authority as payable by such owner, such 
 apportionment shall be binding and conclusive on such owner, 
 unless within three months from service of notice on him by the 
 local authority or their surveyor of the amount settled by the 
 surveyor to be due from such owner, he shall by written notice 
 dispute the same. 
 
 The local authority may, by order, declare any such expenses to 
 be payable by annual instalments within a period not exceeding 
 thirty years, with interest at a rate not exceeding five pounds per 
 centum per annum, until the whole amount is paid ; and any such 
 instalments and interest, or any part thereof, may be recovered in 
 a summary manner from the owner or occupier for the time being 
 of such premises, and may be deducted from the rent of such 
 premises, in the same proportions as are allowed in the case of 
 private improvement rates under this Act.
 
 132 
 
 STATUTES. 
 
 APPENDIX A. 
 
 Appearance 
 of local 
 authorities 
 in legal 
 proceedings. 
 
 259. Any local authority may appear before any court, or in any 
 legal proceeding by their clerk, or by any officer or member autho- 
 rised generally or in respect of any special proceeding by resolution 
 of such authority, and their clerk, or any officer or member so 
 authorised shall be at liberty to institute and carry on any pro- 
 ceeding which the local authority is authorised to institute and 
 carry 011 under this Act. 
 
 Demands 
 below 50Z. 
 may be 
 recovered in 
 county court. 
 
 Proceeding 
 not to be 
 quashed for 
 waut of form. 
 
 261. Proceedings for the recovery of demands below fifty pounds, 
 which local authorities are empowered to recover in a summary 
 manner, may, at the option of the local authority, be taken in the 
 county court as if such demands were debts within the cognizance 
 of such courts. 
 
 262. No rate order conviction or thing made or done or relating 
 to the execution of this Act shall be vacated quashed or set aside 
 for want of form, or (unless otherwise expressly provided by this 
 Act) be removable by certiorari or any other writ or process what- 
 soever into any of the superior courts : Provided that nothing in 
 this section shall prevent the removal of any case stated for the 
 opinion of a superior court, or of any rate order conviction or thing 
 to which such special case relates. 
 
 Notices. 
 
 Notices, &c. 266. Notices orders and other such documents under this Act 
 
 may be^pruited mav b e j n wr iting or print, or partly in writing and parti y in print ; 
 and if the same require authentication by the local authority, the 
 signature thereof by the clerk to the local authority or their 
 surveyor or inspector of nuisances shall be sufficient authentication. 
 
 or written. 
 
 Service of 
 notices. 
 
 267. Notices orders and any other documents required or 
 authorised to be served under this Act may be served by delivering 
 the same to or at the residence of the person to whom they are 
 respectively addressed, or where addressed to the owner or occupier 
 of premises by delivering the same or a true copy thereof to some 
 person on the premises, or if there is no person on the premises 
 who can be so served by fixing the same on some conspicuous part 
 of the premises ; they may also be served by post by a prepaid 
 letter, and if served by post shall be deemed to have been served at 
 the time when the letter containing the same would be delivered in 
 the ordinary course of post, and in proving such service it shall be 
 sufficient to prove that the notice order or other document was 
 properly addressed and put into the post.
 
 PUBLIC HEALTH ACT, 1875. 
 
 133 
 
 Any notice by this Act required to be given to the owner or APPENDIX A. 
 occupier of any premises may be addressed by the description of 
 the "owner" or "occupier" of the premises (naming them) in 
 respect of which the notice is given, without further name or 
 description. 
 
 Appeal. 
 
 268. Where any person deems himself aggrieved by the Appeal in 
 decision of the local authority in any case in which the local certain cases 
 authority are empowered to recover in a summary manner any Govermnent 
 expenses incurred by them, or to declare such expenses to be Board, 
 private improvement expenses, he may, within twenty-one days 
 
 after notice of such decision, address a memorial to the Local 
 Government Board, stating the grounds of his complaint, and 
 shall deliver a copy thereof to the local authority ; the Local 
 Government Board may make such order in the matter as to 
 the said Board may seem equitable, and the order so made shall 
 be binding and conclusive on all parties. 
 
 Any proceedings that may have been commenced for the 
 recovery of such expenses by the local authority shall, on the 
 delivery to them of such copy as aforesaid, be stayed; and the 
 Local Government Board may, if it thinks fit, by its order, 
 direct the local authority to pay to the person so proceeded 
 against such sum as the said Board may consider to be a just 
 compensation for the loss damage or grievance thereby sustained 
 by him. 
 
 269. Where any person deems himself aggrieved by any rate Appeal to 
 made under the provisions of this Act, or by any order conviction quarter 
 judgment or determination of or by any matter or thing done by 
 
 any court of summary jurisdiction, such person may appeal there- 
 from, subject to the conditions and regulations following: 
 
 (1.) The appeal shaU be made to the next court of quarter 
 sessions [(/ ) for the county division or place in which the 
 cause of appeal has arisen, holden not less than twenty-one 
 days after the demand of the rate or the decision of the 
 court from which the appeal is made : 
 
 (2.) The appellant shall, within fourteen days after the cause 
 of appeal has arisen, give notice to the other party and to 
 the authority or court of summary jurisdiction by whose 
 
 (/) Words in brackets and sub-ss. (6) (7), rep. 47 & 4S Viet. c. 43, s. 4, 
 so lar as relates to an appeal against an order or conviction of a court of 
 summary jurisdiction.
 
 134 STATUTES. 
 
 APPENDIX A. act he deems himself aggrieved, of his intention to appeal, 
 
 and the ground thereof : 
 
 (3.) The appellant shall, immediately after such notice, enter 
 into a recognizance before a justice of the peace, with two 
 sufficient sureties, conditioned personally to try such appeal, 
 and to abide the judgment of the court thereon, and to pay 
 such costs as may be awarded by the court, or give such 
 other security by deposit of money or otherwise as the 
 justice may allow : 
 
 (4.) Where the appellant is in custody the justice may, on the 
 appellant entering into such recognizance or giving such 
 other security as aforesaid, release him from custody] : 
 
 (5.) On appeals under this Act against any rate the court of 
 appeal shall have the same power to amend or quash any 
 rate or assessment, and to award costs between the parties 
 to the appeal, as is or may by law be vested in any court of 
 quarter sessions with respect to amending or quashing any 
 rate or assessment, or awarding costs, on appeals with 
 respect to rates for the relief of the poor; and the costs 
 awarded by the said court under this Act may be recovered 
 in the same manner in all respects as costs awarded on the 
 last-mentioned appeals : Provided that, notwithstanding the 
 quashing of any rate appealed against, all moneys charged 
 by such rate shall, if the court of appeal think fit so to 
 order, be levied as if no appeal had been made, and such 
 moneys, when paid, shall be taken as payment on account 
 of the next effective rate for the purposes in respect of 
 which the quashed rate was made : 
 
 (6.) (</) In the case of other appeals the court of appeal may if it 
 thinks fit adjourn the appeal, and on the hearing thereof 
 may confirm reverse or modify the decision of the court of 
 summary jurisdiction, or remit the matter to the court of 
 summary jurisdiction with the opinion of the court of appeal 
 thereon, or make such other order in the matter as the 
 court thinks just. The court of appeal may also make such 
 order as to costs to be paid by either party as the court 
 thinks just : 
 
 (7.) ((/) The decision of the court of appeal shall be binding on all 
 parties : Provided that the court of appeal may, if such court 
 thinks fit, state the facts specially for the determination of a 
 superior court. 
 
 (<y) See note (/), p. 133.
 
 PUBLIC HEALTH ACT, 1875. 
 
 135 
 
 276. The Local Government Board may, on the application of 
 the authority of any rural district, or of persons rated to the relief 
 of the poor, the assessment of whose hereditaments amounts at the 
 least to one tenth of the net rateable value of such district, or of 
 any contributory place therein, by order to be published in the 
 London Gazette or in such other manner as the Local Government 
 Board may direct, declare any provisions of this Act in force in 
 urban districts to be in force in such rural district or contributory 
 place, and may invest such authority with all or any of the powers 
 rights duties capacities liabilities and obligations of an urban autho- 
 rity under this Act; and such investment may be made either uncon- 
 ditionally or subject to any conditions to be specified by the Board as 
 to the time, portion of the district, or manner during at and in which 
 such powers rights duties liabilities capacities and obligations are 
 to be exercised and attach: Provided that an order of the Local 
 Government Board made on the application of one tenth of the 
 persons rated to the relief of the poor in any contributory place 
 shall not invest the rural authoritj" with any new powers beyond 
 the limits of such contributory place. 
 
 APPENDIX A. 
 
 Local Govern- 
 ment Board 
 may invest 
 rural authority 
 with powers 
 of urban 
 authority. 
 
 294. The Local Government Board may make orders as to the Orders as to 
 costs of inquiries or proceedings instituted by, or of appeals to the posts of 
 said Board under this Act, and as to the parties by whom or the mt l uu 
 rates out of which such costs shall be borne; and every such 
 order may be made a rule of one of the superior courts of law on 
 the application of any person named therein. 
 
 295. All orders made by the Local Government Board in pur- Orders of 
 suance of this Act shall be binding and conclusive in respect of ^. ar< J under 
 the matters to which they refer, and shall be published in such 
 manner as that Board ma}- direct. 
 
 this Act. 
 
 3O6. 
 
 If the occupier of any premises when requested by or Penalty on 
 
 on behalf of the local authority to state the name of the owner of the 
 premises occupied by him, refuses or wilfully omits to disclose or 
 wilfully mis-states the same, he shall (unless he shows cause to the 
 satisfaction of the court for his refusal) be liable to a penalty not 
 exceeding five pounds. 
 
 obstructin 
 
 308. Where any person sustains any damage by reason of the Compensation 
 exercise of any of the powers of this Act, in relation to any matter n case f 
 as to which he is not himself in default, full compensation shall be
 
 136 STATUTES. 
 
 APPENDIX A . made to such person by the local authority exercising such powers ; 
 and any dispute as to the fact of damage or amount of compensa- 
 tion shall be settled by arbitration in manner provided by this Act, 
 or if the compensation claimed does not exceed the sum of twenty 
 pounds, the same may at the option of either party be ascertained 
 by and recovered before a court of summary jurisdiction.
 
 ( 187 ) 
 
 APPENDIX B. 
 
 FORMS AND PRECEDENTS. 
 
 A. URBAN AUTHORITIES. 
 1. 
 
 Notice to Clerk of Member's Intention to move Adoption of 
 
 the Act. 
 
 To the Clerk to the Urban District [or, as the case -may be] 
 Council of 
 
 SIR, I beg to give you notice that, at the meeting of the council 
 to be held on the day of next, it is my intention 
 
 to move, 
 
 " That the Private Street Works Act, 1892, be adopted by the 
 council for the sanitary district of the council, and that the resolu- 
 tion of adoption shall come into operation at such date (not less 
 than one month after the first publication of the advertisement 
 thereof), as the council may by the resolution fix." 
 
 I shall be glad if you will therefore give to the members of the 
 council the notice requisite in this behalf. 
 
 Yours faithfully, 
 
 (Signed) A. B. 
 
 2. 
 Notice of Meeting at which Adoption is to be moved. 
 
 Urban District [or, as the case may ie] Council of 
 
 SIR, I hereby give you notice that a meeting of the above 
 council will be held at the council chamber [or, as the case may be~], 
 on the day of 190 , at o'clock in the 
 
 noon:
 
 138 FORMS AND PRECEDENTS. 
 
 APPENDIX B. And I further give you notice that Mr. A. B. has informed me 
 that it is his intention at such meeting to propose the following 
 resolution, viz., [see Form 1]. 
 
 Yours faithfully, 
 
 (Signed) C. D., Clerk. 
 To 
 
 3. 
 Resolution. 
 
 "That the Private Street Works Act, 1892, be adopted by the 
 council, for the sanitary district of the council, and that this 
 resolution shall come into operation on the , day of 
 190 ." 
 
 4. 
 
 Notice of Resolution (for Publication). 
 Urban Sanitary District of 
 
 Private Street Works Act, 1892. 
 
 NOTICE 
 
 is hereby given, that at a meeting of the Urban District [or, as 
 the case may be] Council of , being the sanitary authority for 
 
 the above-named district, held on the day of 190 , it 
 
 was resolved that the Private Street Works Act, 1892, be adopted 
 for the sanitary district of the said council, and that such resolu- 
 tion shall come into operation on the day of 190 . 
 Dated the day of 190 . 
 
 By order of the Council, 
 
 (Signed) 0. D., Clerk, 
 
 of [Address].
 
 EURAL AUTHORITIES. 139 
 
 B. EUBAL AUTHORITIES. 
 
 5. 
 
 Notice of Intention to move that Application be made to the 
 Local Government Board for an Order putting the Act 
 in force. 
 To the Clerk to the Rural District Council of 
 
 SIR, I beg to give you notice that at the next meeting of the 
 council it is my intention to move 
 
 " That application be made to the Local Government Board for 
 the issue of an order under s. 4 of the Private Street Works Act, 
 1892, putting in force the provisions of the said Act, in the con- 
 tributory place of in the district of the council, so far as 
 
 regards the streets, and parts of streets, hereinafter mentioned, 
 and investing the council with all the powers, rights, duties, 
 capacities, liabilities and obligations, which an urban district 
 council may, by the adoption of the said Act, acquire, under such 
 provisions, within the said contributory place so far as regards 
 such streets and parts of streets, viz., [set out streets and parts 
 of streets]." 
 
 Yours faithfully, 
 
 (Signed} A. B. 
 
 6. 
 
 Notice of Meeting at which Resolution is to be moved. 
 [This Notice can be easily framed from forms Nos. 2 and 5.] 
 
 C. UEBAN AND EUEAL AUTHOEITIES. 
 7. 
 
 Resolution to do Private Street Works. 
 
 "That in pursuance of the Private Street Works Act, 1892, 
 [that part of] Street [or Terrace] [lying between, specifying 
 
 'its termini] (the street, or part of a street, in question must be indi- 
 cated with sufficient clearness to enable persons interested to recognise 
 it), within the [contributory place of in the] sanitary district 
 
 of the council, be [set out the work, or works, which it is proposed to 
 execute] ;
 
 140 FORMS AND PRECEDENTS. 
 
 APPENDIX B. "And that the expenses of such works be apportioned upon the 
 premises fronting, adjoining, or abutting on the said [part of the 
 said] street [according to the respective frontages of such premises] 
 [regard being had to (a) the greater, or less, degree of benefit to 
 be derived by any premises from such works ; (b) the amount and 
 value of any work already done by the owners or occupiers, of any 
 such premises :] [and also upon any premises, access to which is 
 obtained from the said street through a court, passage, or other- 
 wise, and which will be benefited by the works]. 
 
 ' ' And that the surveyor do prepare, in conformity with this resolu- 
 tion, [as respects each street, or part of a street, if the resolution 
 includes more than one] 
 
 " (a) A specification of the above-mentioned works with plans and 
 
 sections (if applicable) ; 
 
 " (b) An estimate of the probable expenses of the works; 
 " (c) A provisional apportionment of the estimated expenses 
 among the premises liable to be charged therewith under 
 the Act." 
 
 8. 
 Specification. 
 
 The preparation of this specification is a point on which little 
 assistance can be given in a work like the present to a practical 
 surveyor. It should refer to the plans and sections (if any), and 
 should give all details necessary for the guidance of a person 
 desirous of tendering for the execution of the work. In particular, 
 it must show the depth of excavation required, the material (e.</., 
 setts, kerb, nature of flags) to be used, the curve and level of the 
 roadway and path, the size and position of sewers, gas-pipes, etc., 
 and the other matters specified in the Schedule, Part I. 
 
 Estimate. 
 
 This can be framed from the specification, and should show the 
 estimated cost of the various items, including the commission 
 under s. 9 (2). 
 
 9. 
 Provisional Apportionment. 
 
 The following form is suggested as being capable of adaptation 
 to any principle of apportionment, and any set of circumstances,
 
 URBAN AND RURAL AUTHORITIES. 141 
 
 contemplated by the Act. It is based upon the idea that the APPKNDIX B. 
 
 simplest method of working out a " benefit " apportionment is to 
 
 first determine the actual frontage, and then to add, or subtract, 
 
 some percentage (representing the greater, or less, degree of 
 
 benefit), the result being an artificial frontage, from which the 
 
 apportionment can be calculated. Other forms and methods will 
 
 no doubt suggest themselves to surveyors ; but, so far as the 
 
 authors can see, the one suggested will meet all requirements. 
 
 The method of working is as follows : First determine what 
 
 premises are liable either as abutting on the street, or having 
 
 access (if so resolved by the council) ; next (if so resolved) consider 
 
 the total amount to be credited to the various premises in respect 
 
 of work already done; add this sum (15 10s. O'/.) to the estimated 
 
 expenses of the new works (158 8s. (W.) ; the result (173 18s. Oc?.) 
 
 shows the total value of the works when completed. From this 
 
 must be deducted any sum (say 10) which the authority intend to 
 
 contribute at once under s. 15; the balance (163 18s. Qd.) has to be 
 
 distributed amongst the various premises as follows : First of all, 
 
 the sum, or proportion, to be paid by the various premises " having 
 
 access" must be determined, say one-eleventh of the whole 
 
 (14 18s. Oc?.), leaving 149 for the premises abutting. 
 
 The frontages of such premises being ascertained, the next point to 
 be considered is the greater, or less, degree of benefit (if so resolved) : 
 in the example, 50 per cent, is added to the f actor y premises, and 
 50 per cent, deducted from the land not built over : the result is 
 an "artificial" frontage of 745 feet; from these figures the pro- 
 portionate share of each property can be worked out, and inserted 
 as the " gross apportionment." In the next column appear the 
 amounts credited in respect of work done, which must be deducted 
 to arrive at the "net apportionment." The next column is for any 
 amounts (beyond the original 10) which the authority must bear. 
 If s. 22 is in operation, the last column but one may be required. 
 
 The result shows 103 8s. Od. apportioned on the various premises, 
 and 10 + 45 to be borne by the authority, amounting in all to 
 158 8s. Od., the estimated expenses.
 
 142 
 
 FORMS AND PRECEDENTS. 
 
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 URBAN AND EURAL AUTHORITIES. 143 
 
 10. APPBXDIX B. 
 
 Resolution approving Specifications, etc. 
 
 "That the specification of the works proposed to be done in 
 levelling [or, as the case may be], [that part of] Street [or 
 
 Terrace] [lying between, specifying its termini] (the street, or part of a 
 street must be indicated with sufficient clearness to enable persons 
 interested to recognise it), within the [contribute ly place of in 
 
 the] sanitary district of the council, and the plans, sections, 
 estimate, and provisional apportionment, relating to such works, 
 now submitted by the surveyor, be and the same are hereby 
 approved." 
 
 11. 
 
 Notice of Resolution of Approval (for Service on Owners). 
 Urban [or Rural] Sanitary District of 
 Private Street Works Act, 1892. 
 
 NOTICE 
 
 is hereby given that the Council of , being the sanitary 
 
 authority for the above-named district, did, on the day of 
 
 190 , in accordance with the provisions of the above- 
 mentioned Act, pass the following resolution, viz., [see the preceding 
 Form]. 
 
 And notice is further given that for a period of one month from 
 the day of 190 [copies (certified by the surveyor) of] 
 
 the specification, plans, sections, estimate, and provisional appor- 
 tionment, referred to in the above resolution, will be kept deposited 
 at the offices of the council, and will be open to inspection at all 
 reasonable times. 
 
 Dated the day of 190 . 
 
 By order of the Council, 
 To X. Y., or other the owner (Signed) C. D., Clerk, 
 
 of the premises known of [Address.~\ 
 
 as 
 
 12. 
 Notice of Objections to Provisional Apportionment. 
 
 To the Council of , being the sanitary authority for 
 
 the Urban [or Rural] District of 
 
 In the matter of the Private Street Works Act, 1892, and in 
 the matter of certain works proposed to be executed thereunder
 
 144 FOEMS AND PRECEDENTS. 
 
 APPENDIX K. in Street in accordance with your resolution dated the 
 
 day of 190 . 
 
 I beg to give you notice that I, the undersigned, being the owner 
 of certain premises described as in the provisional apportion- 
 
 ment, and therein shown as liable to be charged with part of the 
 expenses of the above-mentioned works, object to your proposals in 
 the matter on the following grounds, or some one or more of them, 
 viz., [set out dearly and in detail the objections relied on, as to 
 which see p. 69]. 
 
 Dated the day of 190 . 
 
 (Signed) X. Y., 
 
 of \_Address~\. 
 
 13. 
 
 Notice of Hearing of Objections to Provisional 
 
 Apportionment. 
 
 Urban [or Rural] Sanitary District of 
 Private Street Works Act, 1892. 
 
 NOTICE. 
 
 Whereas we, the Urban [or Rural] District Council [or as the case 
 may be] of , being the sanitary authority for the above- 
 
 named district, have resolved with respect to [that part of] the 
 street known as Street [or Terrace] [lying between, specifying 
 
 its tcrmini~\ (describe the street, or part of a street, as in the resolution) 
 within the said district to do certain private street works ; 
 
 And whereas certain objections to our proposals have been 
 lodged by owners of premises shown in the provisional apportion- 
 ment as liable to be charged with part of the expenses of executing 
 such works ; 
 
 Now therefore we do hereby give notice that the court of 
 summary jurisdiction acting in and for have, upon our 
 
 application in that behalf, appointed the hour of in the 
 
 noon of the day of 190 , at the Court house in 
 
 , for determining the matter of all objections made as in the 
 Act mentioned. 
 
 Dated the day of 190 . 
 
 By order of the Council, 
 
 (Signed) C. D., 
 To Clerk.
 
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 FOBMS AND PBECEDENTS. 
 
 15. 
 
 Notice of Final Apportionment. 
 Urban [or Eural] Sanitary District of 
 Private Street Works Act, 1892. 
 
 NOTICE 
 
 is hereby given that, the Private Street Works undertaken by the 
 Council of , as the sanitary authority for the above- 
 
 named district, in [that part of] Street [lying between, etc. ] 
 
 having been completed, the surveyor has, in pursuance of the 
 provisions of the above-mentioned Act, made a final apportionment 
 of the ascertained expenses of such works, and has apportioned the 
 sum of upon the premises known as No. 1, Street, 
 
 [or as the case may be~\. 
 
 Dated, etc. 
 
 By order of the Council, 
 To X.Y., or other the owner (Signed) C. D., Clerk, 
 
 of the premises known as of [Address']. 
 
 No. 1, Street. 
 
 16. 
 Notice of Objections to Final Apportionment. 
 
 To the Council of , being the Sanitary Authority for 
 
 the Urban [or Eural] District of 
 
 In the matter of the Private Street Works Act, 1892, and in the 
 matter of certain works executed by you thereunder in 
 Street. 
 
 I beg to give you notice that I the undersigned, being the owner 
 of certain premises affected by the final apportionment of the 
 expenses of such works, and therein described as , object to 
 
 such final apportionment on some one or more of the following 
 grounds, viz., [set out clearly the objections relied on, as to ivhich see 
 2>. 80]. 
 
 Dated, etc. 
 
 (Signed] X. Y., 
 
 of [Address], 
 
 17. 
 Notice of Hearing. 
 
 [This can be framed from A r o. 13.]
 
 URBAN AND EURAL AUTHORITIES. 147 
 
 ,g APPENDIX B. 
 
 Declaration of Authority under S. 19. 
 Urban [or Eural] Sanitary District of 
 
 Private Street Works Act, 1892. 
 NOTICE. 
 
 Whereas [that part of] the street known as Street [or Terrace] 
 
 [lying between, specifying its termini] (describe the street, or part of a 
 street, as clearly as possible), within the above-named district, being 
 a [part of a] street within the meaning of the above-mentioned Act, 
 has been [here specify the particular private street ivork, or works, 
 ivhich has, or have, been executed] ; 
 
 And whereas \ve, the Urban [or Rural] District Council [or as 
 the case may be] of being the sanitary authority for the said 
 
 district, are of opinion that the [said part of the] said street ought 
 to become a highway repairable by the inhabitants at large ; 
 
 Now therefore we do hereby declare the [said part of the] said 
 street to be a highway repairable by the inhabitants at large. 
 
 Dated the day of 190 . 
 
 By order of the Council, 
 
 (Signed) C. D., Clerk. 
 
 19. 
 Application to Authority under S. 20. 
 
 To the Urban [or Eural] District Council [or as the case 
 may be~] of 
 
 Whereas the street known as Street [or Terrace, or as the. 
 
 case may be], within your district, is a street within the meaning of 
 the Private Street Works Act, 1892, and is sewered, levelled, paved, 
 metalled, nagged, channelled, and made good, now we, the under- 
 signed, forming the greater part in value of the owners of the 
 houses and land in such street, hereby request you to declare such 
 street to be a highway repairable by the inhabitants at large. 
 
 Dated the day of 190 . 
 
 (Signed) E. R, of [Address]. 
 
 G.H.,of [Address]. 
 
 L 2
 
 148 FORMS AND PRECEDENTS. 
 
 APPENDIX B. 
 
 20. 
 
 Declaration of Authority under S. 20. 
 Urban [or Rural] Sanitary District of 
 
 Private Street Works Act, 1892. 
 NOTICE. 
 
 Whereas the street known as Street [or Terrace, or as the 
 
 case may be], within the above-named district, is a street within the 
 meaning of the above-mentioned Act, and is sewered, levelled, paved, 
 metalled, flagged, channelled and made good to our satisfaction ; 
 
 And whereas the greater part in value of the owners of the houses 
 and land in such street have made application in writing, dated the 
 day of 190 , requesting us to declare the said street 
 
 to be a highway repairable by the inhabitants at large ; 
 
 Now therefore we, the Urban [or Rural] District Council of , 
 
 being the sanitary authority for the above-named district, in com- 
 pliance with such application do hereby declare the said street to 
 be a highway repairable by the inhabitants at large. 
 
 Dated the day of 190 . 
 
 By order of the Council, 
 
 (Signed) C, D., Clerk.
 
 INDEX, 
 
 "ABUTTING, "GO. 
 
 " ACCESS," 
 
 within the meaning of s. 10... 6 2. 
 
 ADJOINING, 60. 
 
 ADOPTION OF ACT 
 
 by urban district councils, 7. 
 by resolution, 7. 
 
 notice of meeting for, 7. 
 
 procedure at meeting, 8. 
 
 publication of resolution, 8. 
 
 copy to be sent to Local Government Board, 9. 
 
 evidence in proof of, 9, 74. 
 excludes ss. 150 152, except where a notice has already 
 
 been given under these sections, 3, 6. 
 otherwise powers of Act are cumulative, G. 
 is an irrevocable step, 3. 
 See also APPLICATION. 
 
 ADOPTION OF PRIVATE STREETS. See STKEETS. 
 
 AGENTS 
 
 in receipt of rack-rent are " owners," 59. 
 
 AMENDMENTS IN SCHEME, 
 
 powers of authority to make, 79. 
 
 possible appeal to Local Government Board after making 
 of, 80. 
 
 APPEALS 
 
 from justices' determination on hearing of objections and 
 
 on summary proceedings for recovery of expenses, 75. 
 to Local Government Board, 7G, 77, 80.
 
 150 INDEX. 
 
 APPLICATION OF ACT TO RURAL DISTRICT 
 by Order of Local Government Board, 9, 10. 
 who may apply for Order, 9, 10. 
 publication of Order, 10. 
 evidence of Order, 74. 
 
 Order usually limited to particular streets, 11. 
 usually excludes " sewering," 11. 
 not conclusive as to the road named in t being a 
 "street," 1.1. 
 
 APPORTIONMENT OF EXPENSES, 
 
 how far allowable on adjoining owners, 51, 53. 
 special statutory exemptions or relief from, 
 
 incumbent, etc., of church, etc., 51. 
 
 railways and canals, 52. 
 
 conservators of the River Thames, 53. 
 basis of, 54. 
 
 "premises," "owners," 54, 58. 
 church, 50. 
 
 railways and canals, 5G. 
 
 cross-streets, schools, cemeteries, recreation grounds, 57. 
 commons, 58. 
 the Crown, 58. 
 agents, lessees, 59. 
 provisional apportionment, 65. 
 final apportionment, 80. 
 
 grounds of objection to, 80. 
 forms of, 142, 145. 
 method of working out, 140. 
 See also OBJECTIONS. 
 
 " AUTHORITY," 
 
 used as denoting sanitary authority within meaning of 
 Public Health and Local Government Acts, 3. 
 
 BENEFIT, 
 
 degree of, to be derived by premises may be taken into 
 
 consideration, 54. 
 premises which do not front, etc., but which have access, 
 
 etc., may be included, if benefited, 54. 
 degree of benefit may be made ground of objection, 72.
 
 INDEX. 151 
 
 B ENEFIT continued. 
 
 objection cannot be taken before justices that benefit basis 
 
 ought to have been adopted or vice versa, 73. 
 question might possibly be raised by memorial to the 
 
 Local Government Board, 70. 
 
 BORROWING, 
 
 powers of, possessed by local authorities to enable them to 
 meet expenses of private street works, 49, 50. 
 
 CASE, 
 
 may be stated by justices hearing objections, 75. 
 
 CEMETERIES, 57. 
 
 CHAPEL, 
 
 meaning of, 8. 
 
 exemption of ministers, trustees, etc., of, 5, 51, 50. 
 
 CHARGE 
 
 on premises in respect of expenses, 82, 93. 
 
 from what date it runs, 94. 
 
 enforcement of, 95. 
 
 register of charges to be kept by authority, 9G. 
 
 limited owners, 90. 
 
 landlords and tenants, 97. 
 
 vendors and purchasers, 97. 
 
 CHURCH, CHURCHYARDS, 
 
 exemption in respect of, 5, 51, 50. 
 
 COMMONS, 58. 
 
 COMPENSATION 
 
 to adjoining owner when street altered to his detriment, 
 47. 
 
 CONSERVATORS OF RIVER THAMES, 
 protection of, 53. 
 
 CONTRIBUTION 
 
 towards expenses by local authority, 50. 
 
 COURT OF SUMMARY JURISDICTION. See OBJECTIONS.
 
 152 INDEX. 
 
 CROSS-STREETS, 
 
 liability of owners of soil of, to bear expenses, 57. 
 
 CROWN, THE, 
 
 position of property of, 58. 
 
 CUL-DE-SAC, 
 
 may be a highway, 1G. 
 
 DECLARING PRIVATE STREETS TO BE HIGHWAYS. 
 
 See STREETS (PRIVATE), ADOPTION OF. 
 
 DETERMINATION OF OBJECTIONS, 73, 81. 
 See OBJECTIONS. 
 
 " DRAIN," 
 
 meaning of, 117. 
 
 ESTIMATE, 65. 
 ESTOPPEL, 70. 
 
 EVIDENCE 
 
 of due adoption of Act, !), 74. 
 See ADOPTION ; HIGHWAYS. 
 
 EXPENSES OF PRIVATE STREET WORKS, 
 nature of, 49. 
 
 how a local authority may provide for meeting, 49. 
 how to be dealt with in accounts, 50. 
 authority may contribute towards, 50. 
 charge created in respect of, 93. See CHARGE. 
 recoverable as private improvement expenses (which see), 82. 
 recoverable summarily, or by action, 82, 88. 
 periods of limitation, 88. 
 from what date time runs, 
 
 in summary proceedings, 89. 
 in proceedings in other Courts, 90. 
 effect of s. lions. 12. ..90. 
 See also APPORTIONMENT. 
 
 FINAL APPORTIONMENT, 80. 
 grounds of objection to, 80. 
 form of, 145.
 
 INDEX. 153 
 
 FORMS : 
 
 Urban Authorities 
 
 notice of intention to move adoption of Act, 137. 
 
 notice of meeting at which adoption is to be moved, 
 137. 
 
 resolution, 138. 
 
 notice of resolution (for publication), 138. 
 Rural Authorities 
 
 notice of intention to move that application be made 
 to the Local Government Board, 139. 
 
 notice of meeting at which resolution to be moved, 139. 
 Urlan and Rural Authorities 
 
 resolution to do private street works, 139. 
 
 specification, 140. 
 
 estimate, 140. 
 
 provisional apportionment, 140 142. 
 
 resolution approving specifications, etc., 143. 
 
 notice of resolution of approval (for service), 143. 
 
 notice of objections to provisional apportionment, 
 143. 
 
 notice of hearing of objections to provisional appor- 
 tionment, 144. 
 
 final apportionment, 145. 
 
 notice thereof, 146. 
 
 notice of objections thereto, 146. 
 
 notice of hearing of objections, 146. 
 
 declaration by authority under s. 19... 147. 
 
 application to authority under s. 20... 147. 
 
 declaration by authority under s. 20... 148. 
 
 "FRONTING, ADJOINING, OR ABUTTING," 60. 
 
 HEARING OF OBJECTIONS, 74. 
 
 burden of proof is on authority, 74. 
 
 procedure on, 74. 
 
 powers of justices on, 74. 
 
 costs on, 75. 
 
 appeals from justices' determination on, 75. 
 
 HIGHWAY, 
 
 what is a, 16. 
 kinds of, 16.
 
 154 INDEX. 
 
 HIGHWAY continued. 
 
 need not be a thoroughfare, 1(5. 
 how created, 1 7. 
 
 (A) prescription, 17. 
 
 (B) dedication and user, 18. 
 meaning of dedication, 18. 
 is a question of fact, 18. 
 
 evidence as to uninterrupted user repairs 
 reputation public lighting stiles absence 
 of repair by parish repair by owner of soil 
 obstructions by owner protests notice 
 boards user under agreement or licence, 
 1924. 
 
 who can dedicate, 25. 
 the Crown, 25. 
 corporate bodies, 25. 
 private individuals, 2G. 
 limited owners, 2G. 
 unknown owners, 27. 
 
 "awarded" private road may be dedicated, 27. 
 also turnpike road after expiry of Turnpike Act, 
 
 28. 
 
 how far dedication may be limited or qualified, 28. 
 user necessary to prove acceptance of way by 
 parish, 21). 
 
 (C) by or under statute, 29. 
 width of, 30. 
 
 extinction of, 31. 
 
 when repairable by inhabitants at large, 31, 37. 
 common law liability of parish, 31. 
 exceptions thereto, 
 
 customary liability of some township, 31. 
 liability ralioiw cluusurcv, 32, 37. 
 liability by prescription (ra/ione teimntt), 32, 37. 
 statutory duty, 32, 3(5. 
 no liability on anyone, 32. 
 Highway Act, 1835, s. 23... 32. 
 liability of inhabitants at large may be primary or 
 
 secondary, 37. 
 which liability the Private Street Works Act refers to, 37.
 
 INDEX. 155 
 
 " INSUFFICIENT," 
 
 what works are, 71. 
 
 LANDLORDS AND TENANTS, 
 
 incidence of charge as to, 97. 
 " LANDS," 
 
 meaning of, 116. 
 
 LESSEES, 51). 
 
 LIMITED OWNERS, 
 
 incidence of charge as to, 90. 
 
 " LOCAL AUTHORITY," 
 meaning of, 116. 
 
 LOCAL GOVERNMENT BOARD, 
 
 copy of resolution of adoption to be sent to, 9. 
 Order of, applying Act to rural district, 9, 10. 
 appeals to, 77, 80. 
 
 MEETING 
 
 of urban district council for adoption of Act, 7, 8. 
 of rural district council for application to Local Govern- 
 ment Board, 10. 
 MORTGAGEE 
 
 who has taken possession and collects the rent is an 
 " owner," 09. 
 
 NOTICE 
 
 of resolution of approval of plans, etc., publication and 
 
 posting of, 60. 
 
 service of copy resolution ou owners, 07. 
 of objections, 09. 
 
 of day fixed for hearing objections, 73. 
 publication and service of, 73, 74. 
 effect of non-service of, on owner, 79. 
 And see FORMS. 
 
 OBJECTIONS, 68. 
 under s. 7... 69. 
 who can object, 69. 
 notice of objection, 69.
 
 156 INDEX. 
 
 OBJECTIONS continued. 
 
 grounds of, under s. 7... 69. 
 
 that alleged street is not a street within meaning of 
 
 the Act, 69. 
 that street is highway repairable by the inhabitants 
 
 at large, 69. 
 effect of an earlier finding of justices on this 
 
 question, 70. 
 
 that there has been some material informality, etc., 71. 
 that proposed works are insufficient or unreasonable, 
 
 or estimated expenses excessive, 71. 
 objection that street has already been sewered may 
 
 come under this head, 72. 
 that any premises ought to be excluded from or 
 
 inserted in apportionment, 72. 
 that apportionment incorrect, 72. 
 determination of, 73. 
 
 to be determined by a court of summary jurisdiction, 73. 
 authority must obtain appointment of a day for 
 
 hearing from, 73. 
 
 time for making application for, 73. 
 notice to be given of day fixed for hearing-, 73. 
 publication and service of, 73, 74. 
 hearing of, 74. 
 
 burden of proof is on authority, 74. 
 procedure at, 74. 
 powers of justices at, 74. 
 costs on, 75. 
 
 appeals from justices' determination on, 75. 
 under s. 12. ..76, 80. 
 
 determination of, 81. 
 not provided for, 76. 
 
 appeal to Local Government Board in respect of, 77. 
 See also BENEFIT. 
 
 " OWNER," 
 
 meaning of, 54, 58, 116. 
 
 OWNER, 
 
 position of an, when not served with notices, 79. 
 See also OBJECTIONS.
 
 INDEX. 157 
 
 "PERSON," 
 
 meaning of, 116. 
 
 PLANS, 
 
 deposit of, GG. 
 inspection of, 66. 
 
 POWERS 
 
 conferred by Act, 12. 
 
 PRECEDENTS. See FORMS. 
 
 " PREMISES," 
 
 meaning of, 54, 116. 
 
 PRIVATE IMPROVEMENT EXPENSES, 82. 
 recoverable by rate upon occupier, 83. 
 occupiers' remedy against owner, 83. 
 redemption of private improvement rate, 84. 
 recovery of rate by summary proceedings, 85. 
 may be declared to be payable by instalments, 85. 
 recoverable from owner or occupier, 86. 
 by summary process, 86. 
 time for proceedings, 86. 
 in county court, 87. 
 
 time for proceedings, 87. 
 how far expenses may be declared to be, after failure to 
 
 recover under s. 14... 91. 
 
 can authority after declaring expenses to be, take pro- 
 ceedings under s. 14... 91. 
 
 PRIVATE IMPROVEMENT RATE. See PRIVATE IM- 
 PROVEMENT EXPENSES. 
 
 PRIVATE STREET WORKS. 
 
 what are, 46. 
 incidental works, 47. 
 
 PRIVATE STREET WORKS ACT, 1892, 
 text of, 105. 
 
 And see TABLE OF STATUTES for the various sections.. 
 object and scope of, 1. 
 advantages of, 4, 5. 
 to be construed as one with the Public Health Acts, 5.
 
 158 INDEX. 
 
 PRIVATE STREET WORKS ACT, IBM continued. 
 adoptive only, 6, 7. 
 where in force excludes ss. 150 152. ..6. 
 
 but otherwise its powers are cumulative, 0. 
 what authorities may take advantage of, 7. 
 powers conferred by, 12. 
 
 PRIVATE STREET WORKS EXPENSES. 
 
 See EXPENSES, and see also APPORTIONMENT ; 
 OBJECTIONS, etc. 
 
 PRIVATE STREETS, 
 adoption of, 99, 
 See STREETS. 
 
 PROCEDURE, 
 
 at meetings of rural district council, 10. 
 urban district council, 8. 
 other urban authorities, 8. 
 in connection with the carrying out of private street 
 
 works, G4. 
 
 the first resolution, (54. 
 form of. See APPENDIX. 
 surveyor's duties, 65. 
 specification, 65. 
 estimate, 65. 
 
 provisional apportionment, 65. 
 resolution of approval, 66. 
 
 form of. See APPENDIX. 
 publication and notice of, 66. 
 amendment of scheme, 79. 
 final apportionment, 80. 
 See also OBJECTIONS ; APPEALS ; FORMS. 
 
 PROVISIONAL APPORTIONMENT, 65. 
 form of, 142. 
 
 method of working out, 140. 
 See OBJECTIONS. 
 
 PUBLICATION 
 
 of resolution of adoption by urban district council, 8. 
 of Order of Local Government Board applying Act to 
 rural district, \ 0.
 
 INDEX. 159 
 
 PUBLICATION continued. 
 
 of resolution approving plans, etc., 66. 
 of notice of day fixed for hearing objections to an autho- 
 rity's proposals, 73. 
 
 PUBLIC HEALTH ACT, 1875. 
 
 And see TABLE OF STATUTES. 
 provisions of, in respect of private street works, 2, 3. 
 defects in such provisions, 3. 4. 
 
 "RACK RENT," 
 
 meaning of, 55, 116. 
 
 RAILWAYS AND CANALS, 
 
 relief of, from expenses in certain events, 52. 
 position of otherwise, 56. 
 
 RECEIVER 
 
 appointed by the Court not an "owner," 51). 
 
 RECOVERY OF PRIVATE STREET WORKS EXPENSES. 
 
 See EXPENSES. 
 
 RECREATION GROUNDS, 57. 
 
 REGISTER OF CHARGES, 
 
 to be kept by authority, 96. 
 
 REPAIRABLE BY THE INHABITANTS AT LARGE. 
 
 See HIGHWAY. 
 
 RESOLUTION 
 
 of adoption by Urban District Council, 7 9. 
 
 by Rural District Council to apply to Local Government 
 
 Board, 10. 
 
 that private street works shall be done, 64. 
 of approval of plans, etc., 66. 
 
 publication and notice of, 66. 
 
 service of copy of, on owners, 67. 
 
 RURAL DISTRICT COUNCIL. See RURAL SANITAEY 
 AUTHORITY. 
 
 RURAL SANITARY AUTHORITY, 
 
 application of Act to district of. See APPLICATION. 
 procedure at meetings. See PROCEDURE.
 
 160 INDEX. 
 
 SATISFACTION OF THE AUTHORITY," 
 
 meaning of, 42. 
 
 sewering, 43. 
 
 works other than sewering, 45. 
 
 SCHOOLS, 57. 
 
 " SEWER," 
 
 meaning of, 117. 
 
 SEWERING, 
 
 owners cannot be called upon to sewer more than once, 43. 
 whether a street has already been sewered to the satisfaction 
 
 of a local authority is a question of fact, 42. 
 but a local authority can be taken in law to have come to 
 
 the conclusion that a street has been sufficiently sewered,. 
 
 43, 44. 
 
 SPECIAL CASE. See CASE. 
 SPECIFICATION, 65, 140 
 
 STREET, 
 
 definition of, 12, 116. 
 
 may include places in all respects private, 14. 
 
 even though public excluded by a bar, 15. 
 may include a new strip added to old highway, 15. 
 but does not include a highway repairable by the- 
 
 inhabitants at large, 13, 15. 
 " part of a," meaning of, 38 42. 
 alteration of, how far allowable, 40. 
 
 STREETS (PRIVATE), 
 
 adoption of, 99. 
 
 (a) powers of an authority as to, 99. 
 previous powers extended, 99. 
 interference with private rights, 100. 
 
 in so far as streets already dedicated as highways 
 
 are concerned, 100. 
 
 in so far as streets not previously dedicated are- 
 concerned, 103. 
 (//) duties of an authority as to, 103 
 
 all works specified must first be done, 104. 
 
 if application in order no discretionexercisable,104. 
 
 owner of soil of roadway itself has no say, 104.
 
 INDEX. 101 
 
 STREETS (PRIVATE) continued. 
 
 (b) duties of an authority as to continued. 
 
 "value" of houses and land presumably means 
 
 "capital value," 104. 
 same considerations as to invasion of private rights 
 
 as arise under (a), 104. 
 
 position of a dedicating owner under s. 23 of Highway 
 Act, 1835, not necessarily benefited by the Private 
 Street Works Act, 104. 
 
 SURVEYOR, 
 
 meaning of, 116. 
 his duties, 65. 
 And see PROCEDURE. 
 
 " TIME TO TIME," 
 from, 42. 
 
 as to sewering, 43. 
 as to other works, 45. 
 
 TRUSTEES 
 
 in receipt of rack rent are " owners," 59. 
 
 URBAN DISTRICT COUNCIL. See URBAN SANITARY 
 AUTHORITY. 
 
 URBAN SANITARY AUTHORITY, 
 
 adoption of Act by. See ADOPTION. 
 procedure at meetings. See PROCEDURE. 
 
 " UNREASONABLE," 
 what works are, 71. 
 
 VENDORS AND PURCHASERS, 
 incidence of charge as to, 07. 
 
 WORKS, 
 
 what may be done, 46. 
 incidental works, 47. 
 nature of expenses of, 48. 
 
 "insufficient" or "unreasonable," what are within meaning 
 ofs. 7...71. 
 
 BKADBUBY, AGNEW, & CO. LD., PRINTERS, LONDON AND TONBRIDGE. 
 
 P.S. M
 
 Published 1902. Sixth Edition, in 2 Vols. 
 
 Price 3 12s. 6d. ; for Cash with order, 59s. 5d., carriage free. 
 Half calf, 10s. net, extra. 
 
 LUMLEY'S 
 
 PUBLIC HEALTH, 
 
 THE PUBLIC HEALTH ACTS ANNOTATED. 
 
 With Appendices containing the various Incorporated Statutes 
 and Orders of the Local Government Board, etc. 
 
 Siytb Mtfcm, 
 
 BY 
 
 ALEXANDER MACMORRAN, K.C., 
 
 AND 
 
 S. Gr. LUSHINGTON, M.A., B.C.L. 
 
 Of tlie Inner Temple, Barrister-at-Law. 
 
 To obviate any inconvenience that might otherwise arise from the 
 size of the work, it has been divided into two volumes - 
 
 Vol. I. containing the Public Health Acts strictly so called. 
 
 Vol. II. the Appendices of incorporated Statutes and a complete set 
 of the Orders of the Local Government Board on Sanitary 
 matters. 
 
 Each volume contains a copy of the General Index. 
 
 The last edition, which has long been out of print, was published in 
 April, 1896, and since that date there has been much legislation affecting 
 Sanitary matters. Amongst the new Acts included in the present 
 edition will be found : 
 
 The Local Government (Determina- The Housing of the Working 
 
 tion of Differences) Act, 1896. Classes Act, 1900. 
 
 The Public Health Act, 1896. 
 
 In addition to these statutes there have been more than a score of 
 statutes indirectly affecting Sanitary Authorities, which will be found 
 in Vol. II. These include the Locomotives Act, 1898 ; the Electric 
 Lighting Clauses Act, 1899 ; the Sale of Food and Drugs Act, 1899 ; 
 and the Factory and Workshop Act, 1901. 
 
 A very large number of cases have also been decided since the issue 
 of the last edition, upon points arising under the old as well as under 
 the new statutes. 
 
 SHAW & SONS, 7 & 8, FETTER LANE, B.C. 
 BUTTERWORTH & CO., 12, BELL YARD, LONDON, W.C.
 
 Second Edition, 1901. Price 7s. 6d. ; Cash, post free, 6s. 
 
 1890-1900, 
 
 ANNOTATED AND EXPLAINED, 
 
 TOGETHER WITH THE STATUTORY FORMS AND INSTRUCTIONS. 
 
 CHARLES E. ALLAN, M.A., LL.B., 
 
 Of the Inner Temple, and Western Circuit; Sarrister-at-Law. 
 JOINT AUTHOR OF BROWNE AND ALLAN'S " LAW OF COMPENSATION." 
 
 ASSISTED AS TO THE PRACTICE BY 
 
 FRANCIS J. ALLAN, M.D., D.P.H., 
 
 Medical Officer of Health to tlie City of Westminster. 
 
 Seconfc Etntion. 
 
 PRESS OPINIONS. 
 
 Law Times. " A complete, useful, and handy work." 
 
 Justice of tlie Peace. " We are able to congratulate the author and 
 his assistant on having produced a practical manual for the use of 
 lawyers and of members and officials of local authorities." 
 
 Lancet. "Well arranged with clearly expressed explanatory notes." 
 
 Law Quarterly Review. " The Introduction contains a clear and 
 concise summary of the leading provisions of the statutes." 
 
 Public Health. " The work is arranged in a very handy form, and 
 there is a useful table of statutes and cases. The work is published at 
 such a moderate price that every official should possess himself of a 
 copy." 
 
 Globe. " Mr. Allan states and explains its provisions with fulness 
 and clearness, and has produced a work which will prove not less 
 useful to members and officials of local authorities than to lawyers." 
 
 BUTTERWORTH & CO., 12, BELL YARD, LONDON, W.C.