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on his estate and so out on to the Ditton Marsh by the turnpike road, and that the person by whose act, default, permission or sufferance the nuisance complained of arose or continued, within the meaning of sect. 12 of stat. 18 & 19 Vict. c. 121., was the owner of the Sandown Place Estate and not the appellant.

The justices decided that they could not regard any private rights between the appellant and the owner of the Sandown Place Estate, and held that the appellant was the person by whose act or default the nuisance complained of arose; and they made an order requiring him to abate the nuisance by cutting off all connexion between the drains of the premises belonging to him used for sewage purposes and the drain or sewer leading to and entering the ditch or watercourse.

The questions for the opinion of the Court were. First. Whether the order was properly made upon the appellant. Second. Whether the order made on the appellant to cut off his drains for sewage purposes was a valid order.

By The Nuisances Removal Act for England, 1855, 18 & 19 Vict. c. 121. s. 8., "The word 'nuisances' under this Act shall include

"Any premises in such a state as to be a nuisance or injurious to health :

"Any pool, ditch, gutter, watercourse, privy, urinal, cesspool, drain, or ashpit, so foul as to be a nuisance or injurious to health:

"Any animal so kept as to be a nuisance or injurious to health:

"Any accumulation or deposit which is a nuisance or injurious to health:

"Provided always, that no such accumulation or deposit

1868.

BROWN

V

BUSSELL.

1868.

BROWN

V.

BUSSELL,

as shall be necessary for the effectual carrying on of any business or manufacture shall be punishable as a nuisance under this section, when it is proved to the satisfaction of the justices that the accumulation or deposit has not been kept longer than is necessary for the purposes of such business or manufacture, and that the best available means have been taken for protecting the public from injury to health thereby."

Sect. 12. "In any case where a nuisance is so ascertained by the local authority to exist, or where the nuisance in their opinion did exist at the time when the notice was given, and, although the same may have been since removed or discontinued, is in their opinion likely to recur or to be repeated on the same premises or any part thereof, they shall cause complaint thereof to be made before a justice of the peace; and such justice shall thereupon issue a summons requiring the person by whose act, default, permission, or sufferance the nuisance arises or continues, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before any two justices, in Petty Sessions assembled at their usual place of meeting, who shall proceed to inquire into the said complaint; and if it be proved to their satisfaction that the nuisance exists, or did exist at the time when the notice was given, or, if removed or discontinued since the notice was given, that it is likely to recur or to be repeated, the justices shall make an order in writing under their hands and seals ou such person, owner, or occupier for the abatement or discontinuance and prohibition of the nuisance as hereinafter mentioned, and shall also make an order for the payment of all costs incurred up to the time of hearing or making the

order for abatement or discontinuance or prohibition of the nuisance."

Sect. 22. "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."

Field (Pearce with him), for the respondent.-The appellant is a person who contributes to the nuisance, and therefore the order was properly made on him under sect. 12 of stat. 18 & 19 Vict. c. 121. [Blackburn J. Stat. 13 & 14 Vict. c. 21. s. 4. enacts, that in all Acts the singular shall be deemed and taken to include the plural unless the contrary" is expressly provided;" therefore the word "person" in stat. 18 & 19 Vict. c. 121. s. 12. may mean "persons."] Sect. 33 of this Act provides for the case where a nuisance is caused by the joint act or default of several persons, and empowers the justices to make an order upon all or any number of them. [Cockburn C. J. Suppose three persons contribute to a nuisance, an order on one of them to abate it would be pro tanto useful; and the justices are not confined to making an order upon the person on whose premises the nuisance crops up.] This is not a case within sect. 22, which empowers the local authority to enter upon private land and cover a drain or sewer and cause the

1868.

BROWN

V. BUSSELL.

1868.

BROWN

V.

BUSSELL.

owners or occupiers of the houses which drain into it to contribute to the expense. Also this is not a public sewer, for in 1855 the turnpike trustees cut off the drain from the appellant's premises into it.

Day, for the appellant.-The appellant does not cause the nuisance at the Sandown turnpike gate within sect. 12 of stat. 18 & 19 Vict. c. 121. [Mellor J. The definition of "nuisances" in sect. 8 includes " any accumulation or deposit which is a nuisance or injurious to health." [Blackburn J. Also "any pool, ditch, &c., so foul as to be a nuisance or injurious to health :" this ditch is foul with sewage the principal part of which comes from the appellant's premises.] Further, where several persons contribute to cause a nuisance an order cannot be made upon one of them to abate it. The appellant is exercising his right of drainage into a public sewer. The drain along the turnpike road is public, and must have been constructed by some public authority, for no other would have had a right to make it under a public highway; and it is used generally by the inhabitants. The local authority should have proceeded under sect. 22, and covered over the sewer.

[Cockburn C. J. The

appellant does more than use it for household drainage.] Cur. adv. vult.

FRANCOMB, appellant, FREEMAN, respondent.

At a Petty Sessions held at Abergavenny, in the county of Monmouth, an information was preferred by the respondent, the inspector of nuisances for the Abergavenny Union, against the appellant, that in and upon certain premises situate at &c. the following nuisance existed, namely, a drain so foul as to be a nuisance and

injurious to health; and that the nuisance was caused by the act or default of the appellant, the owner of the premises, contrary to the statute.

The drain in question conveyed the waste water, soap suds, slops and filth from five or six houses and pigsties belonging to the appellant into a small watercourse: at the mouth of the drain was an accumulation of filth, and the water of the watercourse was polluted.

In November, 1867, the appellant made the drain to carry the refuse from the houses and pigsties under a private road into the stream instead of allowing it to flow over the surface of the road as it had done for forty years and upwards. The road was a private one and not his property, but he had the consent of the owner to make the drain. The houses and pigsties were let to yearly tenants. The appellant claimed a right to drain the refuse into the stream.

The watercourse originated in a spring in the neighbouring mountain, and after running through the appellant's property pursued a course down the opposite side of the road leading by the houses. At a point a few yards below the houses the drain passing underneath the road joined the watercourse, which then immediately entered premises belonging to a Mr. Warr, and, after passing through his other property, fell into a brook. Mr. Warr had constructed two wells in the watercourse on his premises, from which his tenants had for five or six years obtained water for drinking purposes. The stream was several years ago diverted by Mr. Warr from its original course, which was alongside of his property, and made to pass through the middle of it.

The inspector of nuisances had given the appellant notice to remove the nuisance.

1868.

FRANCOMB

V.

FREEMAN.

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