of sect. 35. And, independently of the provisions of the later statute, it seems only reasonable that a parish should not be liable to have such claims raked up against it at any distance of time. Upon the other point, I entirely agree with the opinion of the Lord Chief Justice, and with the reasons which he has given for it. Order quashed, without costs. 1860. HILL V. THORNCROFT. The QUEEN against BODKIN and others, Justices Monday, of MIDDLESEX. HONYMAN had obtained a rule, calling upon three of the justices of Middlesex and Thomas Beall to shew cause why the said justices should not issue their warrant to levy by distress and sale of the goods of the respect said Thomas Beall the sum assessed upon him in or near Maynard Street, in the parish of Hornsey, in the November 19th. By The Nuisances 1855, 18 & 19 8. 22., whenever any drain used for the conveyance of sewage from any house, buildings, or premises, is a nuisance, and said county, by the Local Authority in the said parish for executing The Nuisances Removal Act for England, cannot, in the opinion of the Local Autho rity, be rendered innocuous without the laying down of a sewer, the Local Authority are empowered and required to lay down such sewer, and are authorized and empowered to assess every house, building, or premises using the same, to such payment as they shall think just and reasonable. Under this Act the parish of H. was, in the first instance, divided into four districts. The Local Authority, in 1855, constructed a sewer in one of these, in order to render a nuisance there innocuous; B.'s house, situated there, was assessed to the expense of the construction; and B. paid an agreed composition on the assessment. In 1856 the Local Authority constructed another sewer in a second district, in order to render a nuisance in that district innocuous. These two sewers brought down the sewage from the two districts into a third, in such quantities as to greatly increase a pre-existing nuisance there: in order to render which innocuous, the Local Authority, in 1859, constructed a further sewer, running through the third and fourth districts, and, upon its completion, resolved that the drainage of all four districts should form one system, the total costs of the different works be ascertained, and the houses &c., through all four districts, using the sewers, be equally assessed towards the expenses incurred. Held that B.'s house, above mentioned, was liable to be re-assessed to such expenses as a house" using" the whole sewerage system, within the meaning of sect. 22. 1860. The QUEEN V. BODKIN. 1855, by an assessment, dated 19th December, 1859, upon all houses, buildings and premises in the village of Hornsey and Crouch End, in the said county, using, for the purposes mentioned in the said Act, the sewers, drains, &c., constructed by the said Local Authority. It appeared from the affidavits on which the rule was obtained that, for the purposes of drainage under The Nuisances Removal Act for England, 1855, the parish of Hornsey had been divided into four districts: Hornsey Village District, Muswell Hill District, Crouch End District and Maynard Street District; in the last of which the house and premises of Thomas Beall were situate. In the year 1855 certain drainage works were executed by the Local Authority in that district, for the conveyance of the sewage, &c., from that district, and in order to render innocuous a certain ditch used for the conveyance of sewage. The houses and premises in the district were assessed, and Beall was charged with the annual payment of 15s. The Local Authority resolved that the assessment of houses, &c., in the district might be redeemed by the payment within a certain time of four annual payments. Accordingly, and in pursuance of such resolution, Beall paid a sum of 3l., and also a further sum of 47., in respect of houses and premises for which he had been charged; and he received a receipt for that amount "in full discharge and acquittance of all sums and payments charged and assessed, and at any time payable for and in respect of the said premises, under the order of assessment made on 17th December, 1855." During the year 1856, the said Local Authority, under the powers given by the said Act, constructed another sewer or drain at or near Muswell Hill; which, in the opinion of the said Local Authority, was necessary to render innocuous a certain ditch or watercourse at or near Muswell Hill, for the conveyance of water, filth, &c., and which was a nuisance. The houses using this sewer or drain were assessed to defray the expense thereof. These sewers, constructed in the Muswell Hill and Maynard Street Districts, resulted in greatly increasing a nuisance which before existed in the village of Hornsey; inasmuch as the sewage, in greater quantities, was brought down from the two former districts to the open ditches in the village; and, to remove such nuisances, works on a larger scale became necessary. In the year 1859 divers drains and watercourses in the Crouch End District and in the village of Hornsey, used for the conveyance of water, filth, &c., became and were nuisances, and could not, in the opinion of the Local Authority, be made innocuous without the laying down of a sewer and other structures along the same; and thereupon the said Local Authority did lay down a sewer at the village of Hornsey and at Crouch End, and on the completion thereof it was resolved by the said Local Authority that the drainage of Maynard Street, Muswell Hill and Crouch End, and in the village of Hornsey, should be considered as one system; that the total cost of the different works should be ascertained; and that all persons using, for the purposes mentioned in the said Act, the sewers, drains, &c., should be assessed at an equal rate towards the expenses incurred. Accordingly, all the houses, buildings and premises in all the four districts, which were alleged to use, for the purposes mentioned in the Act, the sewers, drains, &c., were assessed by an assessment dated 19th December, 1859. Among others, the said Thomas Beall was assessed, and, as he refused to 1860. The QUEEN V. BODKIN. 1860. V. BODKIN. pay, he was summoned before the justices named in the The QUEEN rule, who, after hearing the evidence, refused to grant a distress warrant. There were counter affidavits as to whether Beall did or did not use the new sewer or drain made in 1859, he swearing that he did not, and the surveyors for the Local Authority swearing that he did. It appeared, however, that the village of Hornsey was situated on a lower level than Muswell Hill and Maynard Street, and that the waters, &c., from the two latter districts ran down towards the village. Montagu Smith and Aspland now shewed cause. The Local Authority exceeded their powers in assessing Mr. Beall in December, 1859. The Nuisances Removal Act for England, 1855, 18 & 19 Vict. c. 121. s. 22., enacts that "Whenever any ditch, gutter, drain, or watercourse used or partly used for the conveyance of any water, filth, sewage, or other matter from any house, buildings, or premises, is a nuisance within the meaning of this Act, and cannot, in the opinion of the Local Authority, be rendered innocuous, without the laying down of a sewer, or of some other structure along the same or part thereof, or instead thereof, such Local Authority shall and they are hereby required to lay down such sewer or other structure, and to keep the same in good and serviceable repair;"" and such Local Authority are hereby authorized and empowered to assess every house, building, or premises then or at any time thereafter using, for the purposes aforesaid, the said ditch, gutter, drain, watercourse, sewer, or other structure, to such payment" "as they shall think just and reasonable." It appears from the affidavits that Mr. Beall's house and premises, in respect of which it is now sought to assess him, are situate in Maynard Street District; that the nuisance in that district was rendered innocuous by the Local Authority in the year 1855; and that Mr. Beall was then assessed to and compounded for his share of the expense of the drainage works necessary for that purpose. The power of the Local Authority to assess him, under sect. 22, was therefore fully exercised in 1855; and he is not liable to assessment in respect of the cost of drainage works made four years afterwards in an entirely distinct district. [Cockburn C. J. The Local Authority having resolved that the drainage of all the districts shall be considered as one system, what is there to prevent the assessment of all houses using that system for drainage purposes?] Houses situate in Maynard Street District cannot be said to use the system, inasmuch as the drainage of that district was completed before the system was formed and the drainage works in the other districts executed. In Regina v. Tatham (a) this Court held that the Local Authority has no power, under sect. 22, to assess property beyond the limits of their local jurisdiction. The question whether houses situate within the jurisdiction could be said to use a sewer beyond its limits was mooted but not decided. Lord Campbell C. J., however, appears to have thought that they could not, inasmuch as they derived no benefit from the sewer. He said "I have great doubts whether it is made out that these houses used the sewer within the meaning of the section. The sewage from them flowed to an open ditch, where it was a nuisance, but no nuisance to them. That ditch is now covered up, and the sewage flows through it as it formerly did. I do not see how the situation of these houses is improved at all; and if they are to be considered as using the (a) 8 E. & B. 915, 1860. The QUEEN v. BODKIN. |