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Q.B. Div.]

LEIGH DISTRICT COUNCIL (apps.) v. KING (resp.).

never heard it laid down that all roads were included in the enactment in sect. 23." They also referred to

Healey v. Corporation of Batley, L. Rep. 19 Eq. 375.

Macmorran, Q.C. in reply.—The road came into existence after 1836, and therefore the presumption is rebutted that it is repairable by the inhabitants at large, and the burden of proof shifts to the respondent. The acts of the vestry showed that they meant to proceed under sect. 84 of the Highway Act 1835, but the respondent cannot show that all the formalities of that

section have been complied with. Cur. adv. vult.

BRUCE, J.-I agree with my learned brother in the result at which he has arrived. There was, as it seems to me, sufficient evidence to justify the justices in finding that the road in question was repairable by the inhabitants at large. I think it is clear that the old highway, known as Chesslane, was repairable by the inhabitants at large. I think the reasonable conclusion upon the evidence is, that the new highway, known as Rectorygrove, was in the year 1842, by a resolution of the vestry, substituted for Chess-lane under the provisions of sect. 84 of the General Highway Act. The difficulty arises because there is no direct evidence of a view by two justices of the peace, and of the other formal steps necessary to be taken in order to comply with the provisions of sect. 85, and the following sections of the General Highway Act. But if these provisions were complied with, then it is clear that under sect. 92 of the General Highway Act the new highway became repairable by the inhabitants at large just as the old highway was repairable. The question is whether in the circumstances the justices were justified in finding that the formal steps had been duly taken. It is clear that since 1842 the old highway has been stopped up and has ceased to be used, and the new highway has in fact been substituted for it. It is, I think, a very violent presumption that the public should acquiesce in the stopping up of the old road unless it were done in a regular way, and I think the justices may well have presumed that the certificate of the justices was duly granted, and the formal proceedings duly taken to comply with the provisions of sect. 85. After so long a period a certificate of the justices may have been lost, and although it is difficult to presume that the certificate was enrolled among the records of quarter sessions, yet the provisions as to enrolment are apparently directory only, and the neglect to enrol would not affect the validity of the proceedings: (see Deponthieu v. Pennyfeather, 15 R. R. 603; 5 Taunt. at p. 634). It is further difficult to assume that the order of quarter sessions was duly made, but I think that the dictum of Wightman, J. in the case of Williams v. Eyton (4 H. & N. 358) that the inclosure of a road for a period of about twenty-eight years is sufficient to warrant the court standing in the place of a jury in presuming that everything was rightly done, and that an order of two justices was obtained, afford a guide to assist us to a conclusion in the present case. Here the period of time was much longer than twenty-eight years --a little short of fifty years-and although the facts are not the same as the facts in Williams v.

[Q.B. DIV.

Eyton, yet the principle laid down in the dictum I have quoted appears to me to apply. There was further the evidence that the new road had been repaired by the surveyor of the district. It did not appear in what capacity the surveyor repaired the road, but in the absence of evidence I think it would be unreasonable to presume that the surveyor had paid for the expenses of repair out of his own pocket. For these reasons I am of opinion that the court cannot disturb the finding of the justices.

PHILLIMORE, J.-In this case the appellant district council seeks to make the respondent liable for a proportion of the expenses of converting Rectory-grove into a paved and made-up street, and the respondent contests his liability upon the ground that Rectory-grove was, before it was so made up, already a highway repairable by the inhabitants at large. There seems little doubt that the road called Rectory-grove was laid out about the year 1842, and has ever since been used as a highway, and that when it was so laid out an older highway on the other side of the rectory ground was closed. This older highway must be taken upon the facts stated in the case to have been one repairable by the inhabitants of the parish. The appellants say, however, that the new highway never became repairable by the inhabitants of the parish, because it was laid out after the passing of the Highway Act (5 & 6 Will. 4, c. 50), and that since that Act a new highway only becomes so repairable if the conditions either of sect. 23 of that Act (applicable to additional highways) or sects. 84-92 (applicable to substituted highways) have been fulfilled, and that there is no proof that these have been fulfilled, or alternatively, that there is proof that they have not been fulfilled. I do not think that it follows that in every case where an additional highway is laid out the conditions of sect. 23 must be fulfilled. I think this is generally the case, but there are exceptions, of which Reg. v. Thomas (7 E. & B. 399) gives an instance where the section does not apply. I think it only applies when the road is "made by and at the expense of any individual or private person, body politic or corporate," and it is clear that if the parish itself through its surveyor made a road, it would not come under this section as the later provisions of the section itself show. It may be that a surveyor so employing the parish funds would be acting ultra vires, but I can quite conceive that in days when there was less centralisation and no outside audit, the makimg up of a short piece of road, say to cut off a loop, might be deemed to come within the power of repair which a surveyor acting under the orders of the vestry would possess. I agree, however, with counsel for the appellants that it is more probable that this highway was intended to be a substituted one, to which sects. 84-92 would apply. If sect. 23 applied, a certificate by two justices, which ought to be enrolled at quarter sessions, is a necessary condition before the highway can become repairable by the inhabitants. But I do not think that the actual enrolment is a necessary condition. If it be a substituted highway, the consent of the vestry, a certificate by two justices, an order of quarter sessions, and a further certificate by two justices of the good condition of the new road, which certificate ought also to be enrolled, are necessary conditions before the substitution can

Q.B.] SOUTHALL Norwood URBAN DISTRICT COUNCIL v. MIDDLESEX COUNTY COUNCIL. [Q.B.

be accomplished and the old highway stopped. I am, however, not sure that an incomplete substitution made with the assent of the vestry, might not, though no order of quarter sessions were obtained, operate as the making of a new road under sect. 23 though as the substitution were incomplete the old highway would remain unclosed. This being the law, the facts as found by the case are a resolution of the vestry expressed in language which looks as if the parishioners were rather active instead of mere consenting parties to the de facto opening and using of the new highway, and the de facto closing of the old one, acquiesced in apparently by everybody since 1842, and one act of repair of the new highway by a person who was surveyor and probably acted in his capacity of surveyor. Against this evidence in favour of the new highway being one repairable by the inhabitants is to be set the fact that no certificate of justices or order of quarter sessions is forthcoming. Upon this evidence the justices, who have stated the case have found that Rectorygrove is a highway repairable by the inhabitants at large; and if there is any evidence to support their decision it must stand. I think there is. Indeed, I think I should have found the same way. Assuming that this case must come under either sect. 23 or under sects. 84-92, and I have stated that it may not come under either group of sections, all that is required by sect. 23 is a certificate by two justices, which ought to be enrolled, but which, as I have said, need not be. It is quite possible that such a certificate may be lost; I can conceive it having been handed to the then rector as a sort of title-deed and perhaps not handed on to his successor. If the case necessarily comes under sects. 84-92 no doubt there is much more difficulty in supposing the loss of an order of quarter sessions. But the duty of the judges on matters of ancient possession or of the exercise of public rights, is to presume in favour of long, open, and continuous usage. Many cases referred to in the course of the argument show this; and others could be quoted. The contention of the appellants is far reaching. Not only is the new highway not repairable by the inhabitants, though they have used it since 1842, but the old closed highway ought to be opened and could now be opened. The owner of the soil who has enjoyed undisturbed possession of the soil of the old highway for the same period would have his property seriously injured, and the parishioners or the subsequent highway board (if there was one) and the present appellant district council itself would have been and be now indictable for suffering the old highway to go out of repair. I am of opinion that my judgment should be for the respondent. Appeal dismissed.

Solicitors: G. E. Wright-Motion; Kingsford, Dorman, and Co., for Gregson, Southend.

Monday, Jan. 21, 1901.

(Before BRUCE and PHILLIMORE, JJ.) SOUTHALL NORWOOD URBAN DISTRICT COUNCIL (apps.) v. MIDDLESEX COUNTY COUNCIL (resps.). (a)

River-Pollution-Agreement-Breach of agreement-Liability of local authority-" Causing or suffering to flow" Middlesex County Council Act 1898 (61 & 62 Vict. c. cci.), s. 13. By an agreement made between the predecessors of the appellants, the local board, and the owner of a margarine factory, it was agreed that the owner of the factory, subject to certain conditions, should be entitled to discharge the liquids and effluent from the factory into the sewers of such board.

A sewage farm, owned by the board, became vested in the appellants, and, owing to a breach of the agreement by the factory owner, the soil of the farm became clogged and rendered less capable of filtering the sewage in the appellants' district. By reason thereof sewage and other offensive matter flowed into the river B. from the appellants' sewage works.

Held, that the appellants" caused or suffered to flow or pass" sewage and other injurious matter into the river B. within sect. 13 (1) of the Middlesex County Council Act 1898.

CASE stated on a summons charging the appellants with having, contrary to the Middlesex County Council Act 1898, caused and suffered sewage and other offensive matter to flow and pass from land and premises known as the Southall Norwood Sewage Farm, and owned and occupied by them, into the Grand Junction Canal, a canalised portion of the river Brent.

1. Prior to 1891 the rural sanitary authority of Hillingdon had acquired for the purposes of a sewage farm seventeen acres of land adjoining and abutting on a canalised portion of the river Brent at the junction of the parishes of Norwood, Isleworth, and Hanwell, and had constructed thereon sewage works upon which the sewage of the precinct of Norwood was treated, the effluent therefrom being discharged into the river.

2. In the year 1891 the precinct was formed into an urban sanitary district and a local board was constituted for such district, and the farm and works were vested in that board, which by virtue of the Local Government Act 1894 became and is now known as the appellants in this case.

3. In 1894 the local board, the predecessors in title of the appellants, was required by the owners of land within its district upon which it was intended to erect a margarine factory to afford facilities for carrying the liquids and effluent proceeding from the factory into the sewers of the board, and an agreement, dated the 23rd Jan. 1894, was entered into between the board and the owner whereby it was agreed that, subject to the conditions therein mentioned, the owner for the time being of the factory should be entitled to discharge the liquids and effluent from the factory into the sewers of the board.

4. One of the conditions mentioned in the agreement was that the owner of the factory should erect or cause to be erected and maintained in good and proper working condition at his own expense to the reasonable satisfaction of the board

(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

Q.B.] SOUTHALL NORWOOD URBAN DISTRICT COUNCIL v. MIDDLESEX COUNTY COUNCIL. [Q.B.

on part of the land upon which the factory was to be erected a settling tank or settling tanks for the purpose of extracting so far as might be practicable all solid fat or fatty matters in suspension from the liquids and effluent.

5. The factory having been erected and disputes having arisen between the board and the owner of the factory as to his compliance with the above condition of the agreement, on the 14th May 1896 an action was commenced by the board against him in the Chancery Division of the High Court of Justice, wherein the board claimed an injunction restraining the owner of the factory and his servants, agents, and workmen from discharging the effluent from the works at Southall into the sewers of the board until such effluent had been properly purified, and from causing or permitting the liquids and effluents from the works to flow into or remain in the sewers or drains of the board so as to become or cause a nuisance, damage, or annoyance to the board, and from committing a breach of the contract of the 23rd Jan. 1894, and for damages.

6. The action came on for trial on the 1st June 1897, and upon the third day of the trial an order, by consent, was made by Byrne, J., the defendant in the action expressing his intention to execute on or before the 7th Nov. 1897 further works, and in case the board should not be satisfied with what should have been done by such date, it was ordered that it be referred to the arbitrator mentioned in the order to say whether there was a settling tank or settling tanks sufficient when efficiently worked for the purpose of extracting so far as might be practicable all solid fat or fatty matters in suspension from the liquid and effluent discharged from the factory into the sewers of the board, and that if the arbitrator was of opinion that they were not sufficient, then the arbitrator was to say what settling tank or tanks would be sufficient for the purpose aforesaid and that his award should be binding on the parties to the action.

7. The board not being satisfied with the further works executed pursuant to the order of Byrne, J., the question whether or not there was on the factory a settling tank or settling tanks sufficient when efficiently worked for the purpose of extracting so far as was practicable all solid fat or fatty matters in suspension from the liquid and effluent discharged from the factory into the sewers of the board was submitted to the arbitrator specified in the order for his decision, and the arbitrator, after hearing the parties to the reference, on the 25th July 1898 made and published his award whereby he awarded that the settling tank or settling tanks and other alterations in the defendants' plant in his award specified would be sufficient for the purpose of extracting so far as might be practicable all solid fat or fatty matters in suspension from the liquid and effluent referred to in the order of court.

8. Notwithstanding the award the liquid and effluent discharged from the factory into the sewers of the board and of the appellants still contained solid fat or fatty matter in suspension which is in itself objectionable and difficult to treat, and which when mixed with sewage in the appellants' sewers renders it more difficult for the appellants to effectually purify the sewage, and the effect has been to clog the land in the appellants' farm, which is used for filtering the sewage,

and it has become saturated with sewage and is rendered less capable of effectually filtering the sewage of the appeilants' district.

9. On the 15th Aug. 1899 the respondents gave the appellants notice under the Middlesex County Council Act 1898 requiring them to discontinue, within three months, the flow or passage into the river Brent of sewage or any other offensive or injurious matter from their sewage works.

10. In Sept. 1899 the appellants discovered that the drain of certain chemical works in their district had without their knowledge or consent been connected with a sewer belonging to them by means of which large quantities of effluent were discharged from the chemical works into the appellants' sewer.

11. The effect of the discharge of the effluent from the chemical works into the appellants' sewers being while it lasted to render it still more difficult to purify the sewage discharge from such sewers upon the appellants' farm, notice was (after negotiations had taken place between the appellants and the owners of the chemical works) served by the appellants upon the owners of these chemical works on the 10th Dec. 1899 requiring them to disconnect from the appellants' sewers the drains by means of which the effluent was discharged from the chemical works into the sewers, and the drains were disconnected in accordance with such notice.

12. It was proved that sewage and other offensive and injurious matters had flowed or passed into the river Brent from the appellants' sewage works subsequently to the expiration of three months from the date of the notice of the 15th Aug. 1899, but the justices were satisfied that such flow or passage would contain sewage and other offensive and injurious matters so long as the reception of effluent from the margarine factory and from the chemical works and the infusion of such effluent into their system of sewage continued.

13. On behalf of the appellants it was contended that they had not under the circumstances herein before stated caused or suffered sewage or other offensive or injurious matter to flow or pass into the river Brent within the meaning of sect. 13 of the Middlesex County Council Act 1898, and that the justices had therefore no power to require them under sect. 34 of that Act to abstain from carrying or suffering to flow or pass into the river Brent any sewage or any other offensive or injurious matter.

14. On behalf of the respondents it was contended that an offence had been committed by the appellants within the meaning of sect. 13 of the Act, and, further, that the evidence mentioned in pars. 3 to 8 inclusive and pars. 10 and 11 was inadmissible and afforded no defence to the

summons.

15. The justices held that such evidence was admissible, but they were of opinion that the appellants were persons causing or suffering sewage or other offensive and injurious matter to flow or pass into the river Brent from the farm and works, and they accordingly ordered them to discontinue such flow or passage, but suspended the operation of their order for a period of six months.

16. The questions for the opinion of the court are: (1) Whether or not the evidence mentioned in pars. 3 to 8 inclusive and in pars. 10 and 11 was

Q.B.] SOUTHALL NORWOOD URBAN DISTRICT COUNCIL v. MIDDLESEX COUNTY COUNCIL. [Q.B.

admissible; (2) whether or not the appellants were, under the circumstances herein before stated, persons causing or suffering sewage or other offensive or injurious matter to flow or pass from their farm and works into the river Brent?

By the Middlesex County Council Act 1898 (61 & 62 Vict. c. cci.), s. 13:

(1) Whenever any sewage or any other offensive or injurious matter is caused or suffered to flow or pass into any stream, then and in every such case, even though such sewage or matter aforesaid had been lawfully so caused or suffered to flow or pass before the passing of this Act, the council may, under the hand of the clerk of the council, give notice in writing to the person causing or suffering the same to so flow or pass requiring him within a time to be specified to discontinue such flow. (2) The council may in like manner if they think fit at any time extend the time specified in such notice by another notice in writing. (3) If any person to whom any such notice is given thinks himself aggrieved by reason of the time allowed either by the original or any subsequent notice not being sufficient he may, not later than one month before the expiration of the time or extended time so allowed, by writing delivered to the clerk to the council demand an extension of such time, and in case the council refuse to comply with such demand, the question of such extension shall be referred to an arbitrator appointed by agreement, or, failing agreement, by the Board of Trade on the application of either party. (4) Any person to whom any notice is under this section given by the council shall notwithstanding anything in any other Act within the time allowed by such notice, subject to any extension of such time as in this section provided, discontinue the flow or passage of the sewage or matter to which the notice refers, and in default of so doing shall for every such offence be liable to a penalty not exceeding one hundred pounds, and to a daily penalty not exceeding fifty pounds.

And by sect. 34:

(1) A court of summary jurisdiction before which any person is summoned under this Act for any act or default causing or contributing to or alleged to cause or contribute to the pollution or obstruction of any stream may (in lieu of inflicting a penalty, or in addition to any penalty it may have inflicted for such offence) by order require such person to abstain from the commission of such offence, and, where such offence consists in default to perform a duty under this Act, may require him to perform such duty in manner in the said order specified. The court may insert in any order such conditions as to time or mode of action as it may think just, and may suspend or rescind any order on such undertaking being given or condition being performed as it may think just, and generally may give such directions for carrying into effect any order as to the court seems meet. (2) Any person making default in complying with any requirement of an order of the court under this section shall be liable to such a penalty not exceeding fifty pounds a day for every day during which he is in default as the court may order.

R. Cunningham Glen for the appellants.Upon the facts set out in the case it is clear that the appellants are not causing or suffering sewage or injurious matter to flow into the river. No offence has been committed under sect. 13 (1) of the Middlesex County Council Act 1898. Sanitary authorities are bound to afford facilities to factories for draining into sewers under sect. 7 of the Rivers Pollution Prevention Act 1876 (39 & 40 Vict. c. 75). He referred to Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 13, 27. Where there are no sufficient sewers, the remedy is given by sect. 299 of that Act. The proper remedy is a prerogative writ of

mandamus, not a penal proceeding as here. In Reg. v. Staines Local Board (60 L. T. Rep. 261) it' was held that where a local board have not them. selves constructed sewers which are a nuisance, but only have permitted them to be used by persons who have a right to use them, they did not " cause or suffer sewage to flow. Where all that is possible has been done by a local authority to abate a nuisance, it was held that they were not responsible, but that the remedy is against the person causing the nuisance :

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Ogilvie v. Blything Union Rural Sanitary Authority, 67 L. T. Rep. 18.

He referred to

Brown v. Dunstable Corporation, 80 L. T. Rep. 650; (1899) 2 Ch. 378.

The local authority here could not have cut off the connection with their sewer. That was decided in Eastwood Brothers Limited v. Honley Trban Council (1900) 1 Ch. 781). In that case the discharge of trade effluent prejudicially affected the disposal of sewage matter conveyed through the sewer. He referred to

Peebles v. Oswaldtwistle Urban District Council, 76 L. T. Rep. 315; (1897) 1 Q. B. 384; sub nom. Pasmore v. Oswaldtwistle Urban District Council, 78 L. T. Rep. 569; (1898) A. C. 387.

The margarine and chemical factories could be stopped by the respondents from discharging into the sewers, but we, the appellants, cannot do so.

Lord Robert Cecil, Q.C. and Herbert Smith for the respondents.-On reading the preamble to the Middlesex County Council Act 1898 we see the reason for that statute. It there states that the river Brent becomes so polluted by sewage as to be a nuisance, and that further powers should be given the county council to enable them to improve the condition of the river. The flow of this sewage into the river Brent is admitted, but the appellants contend that they cannot prevent it. The appellants are not bound to receive margarine refuse into their sewers, but even if they do receive it, it can be effectually treated. The powers of the local authorities are dealt with by the Public Health Act 1875 and other statutes. They referred to

Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 15,
17, 19, 21, 91, 94, 95, 96;

Rivers Pollution Prevention Act 1876 (39 & 40
Vict. c. 75), s. 7;

Public Health Acts Amendment Act 1890 (53 & 54
Vict. c. 59), s. 17:

Peebles v. Oswaldtwistle Urban District Council, 76 L. T. Rep. 315; (1897) 1 Q. B. 384. The appellants have power to proceed against these works and factory under sect. 94 of the Public Health Act 1875 by serving a notice requiring an abatement of the nuisance. Although to some extent they may have contributed to the existence of this nuisance, they would not be precluded from proceeding against the works or factory :

St. Helens Chemical Company v. Corporation of St. Helens, 34 L. T. Rep. 397; 1 Ex. Div. 196. They contend they cannot take proceedings because of the agreement of Jan. 1894, but if that is so, then the agreement must be bad, as it would be against public policy. They referred to Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623. The case of Attorney-General v. Dorking Guar

Q.B. SOUTHALL NORWOOD URBAN DISTRICT COUNCIL v. MIDDLESEX COUNTY COUNCIL. [Q.B.

dians (46 L. T. Rep. 573; 20 Ch. Div. 595) is an entirely different case to the present one. The same must be said of Brown v. Dunstable Corporation (80 L. T. Rep. 650; (1899) 2 Ch. 378). Here the appellants are not bound to receive trade refuse, but if they do they can treat it. Ogilvie v. Blything Union Rural Sanitary Authority (67 L. T. Rep. 18) proceeded entirely upon Attorney-General v. Dorking Guardians (ubi sup.). They referred to

Wycombe Rural Sanitary Authority v. Parsons, 71 L. T. Rep. 428; (1894) 2 Q. B. 780. Reg. v. Staines Local Board (ubi sup.) is the strongest case against us. Here it is the grease coating that prevents the sewage going into the land. In that case there were no means of stopping the sewage from coming into their sewers, but here the appellants can prevent the margarine and grease from coming. It is said that we should have proceeded against the factory, but if the appellants felt aggrieved they could have proceeded under sect. 13 (3) of the Middlesex County Council Act 1898.

R. C. Glen in reply.

PHILLIMORE, J.-My learned brother has asked me to deliver the first judgment. We both think this conviction should stand. Section 13 of the special Act of Parliament under which the pro. ceedings are taken says: "Whenever any sewage or any other offensive or injurious matter is caused or suffered to flow or pass into any stream, then and in every such case "-I omit the next words - "the council may under the hand of the clerk of the council give notice in writing to the person causing or suffering the same so to flow or pass requiring him within a time to be specified in such notice, but not being less than three months, to discontinue such flow or passage." The person so notified has the power of demanding an extension of time, and, if an extension of time is not assented to, can go to arbitration before an arbitrator appointed by the Board of Trade in order to obtain such extension of time as the arbitrator should think proper. I have omitted the words "Even though such sewage or matter aforesaid had been lawfully so caused or suffered to flow or pass before the passing of this Act" because upon the whole I do not think that those words apply to the particular case, at any rate as regards the district council now convicted. Here there was a sewage farm, constructed by the predecessors in title of the present appellant board, to which the sewage of the district was led, and on which it was treated, and from which it passed out by an effluent. We know what an effluent is. It is a modern word meaning the pure residuum, or as near as possible the pure residuum, after some impure substance has been deposited; and we may take it the effluent from the sewage farm -indeed no suggestion has been made to the contrary-was a pure effluent until the circumstances which I am now going to mention happened. It turns out that latterly the effluent is no longer pure. It carries sewage and other offensive matter into the river Brent, and if there is anybody who causes or suffers sewage or other offensive matter to flow or pass into the stream, then such person or body comes within the purview of sect. 13 of the Act. Now, it is said by the Middlesex County Council that the Southall

Norwood Urban District Council, who are the owners, occupiers, and managers of this sewage farm, are persons who " cause or suffer" this noxious matter to flow into the stream, and they have given them the proper notice provided under the section. The notice does not seem to have been appealed against, and after the lapse of time prescribed by the notice, the offensive matter continuing to pass into the stream, a summons was issued against the body, and the county council obtained a conviction. Now, Mr. Glen has said (and his argument was well worthy of attention, and has given my learned brother and myself a great deal of trouble)-and it is a satisfactory way of putting it on behalf of his clients-that you do not cause or suffer if you are merely acting ministerially; and he cited to us a number of cases of public bodies who had been held not to cause or suffer sewage to reach a river when all they have done has been not to interfere with the user of the pipes which they took over from some prior body, and into which pipes individuals have a right of passing their sewage. They do not use the pipes, but they simply leave them there; they do not make the pipe, and therefore it was suggested they do not "cause or suffer," because they could only stop the sewage passing through the pipes in one of two ways— either by a physical obstruction, which probably in the first instance would be a breach of their statutory duty, and, secondly, would create an intolerable nuisance, or by bringing actions against every individual who drained into their sewers, which would be an intolerable burden upon the local board, and apparently that is a burden which is not cast upon any one of Her Majesty's subjects without express words by the law of England. Those cases I quite understand. The result is, if there are existing sewers, and existing rights of draining into sewers, which communicate with the river, apparently there is no way of stopping that draining except by the provisions of sect. 299 of the Public Health Act 1875 and an order of the Local Government Board making a mandamus issue. There may be others, but there is no other way which, for the moment, is suggested to us. That is in cases where there is a passage of impure liquid into the river. But the existing defendant body has nothing to do with it; what is suggested is that the existing defendant body, having a right to pass, or duty to pass, certain filthy liquid into the river, are to be compelled to stop the passage of all filthy liquid into the river, either, as I say, by physical obstruction or by action. The courts have held they are not bound so to do; neither can an action lie, nor can they be indicted for using it. But that does not apply to this case at all. In this case there is a channel sending clean water into the river, and what the board have done, or their predecessors, and they have kept it so, is that they collect all the sewage of the district upon a sewage farm, and have then, when the sewage failed to be properly treated on the farm, issued the filthy effluent from the farm into the river. It seems to me that is a case in which they may well be said to have "caused or suffered "it to pass. I think one might say "caused," but certainly" suffered " if any meaning is to be attached to the word "suffered." I agree that "suffered" reasonably imports some act of

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