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74
Nos. 11 and 13, Birchington Road was defective and a nuisance, and
made an order on the appellant to abate the nuisance. Mr. H. Courthope
Munroe, who appeared for the Council, stated that the facts,
about which there was no dispute, were as follows:—In July, 1878,
two applications, accompanied by plans, were made by Mr. Yerburgh,
a builder, to the Vestry of St. John, Hampstead, to drain, at his own
expense, and in accordance with the regulations of the Vestry, two
groups of six houses each in Birchington Road. The first application
related to six houses that were shown to drain by a combined
operation into the brick sewer in Mutrix Road, which runs at right
angles to Birchington Road ; the second related to six houses that
were shown to drain similarly into the brick sewer crossing Birchington
Road. The Surveyor to the Vestry reported on these two
applications, and stated that although the rule was to drain each
house separately and directly into the sewer, an exception could in
the present case be made with advantage because the proposed
system excluded all drains from the interior of houses, and at the
same time did not lessen their efficiency. The Vestry accordingly
made their order by passing a resolution that the Surveyor's report
be approved and adopted. The first application, as has been said,
showed six houses in Birchington Road, draining by a combined
drain into the sewer in Mutrix Road, but it appeared that in carrying
out the work, only two of these houses, namely Nos. 11 and 13, the
houses concerned in this case, were drained in this way and that the
remaining four houses had been drained in the opposite direction
into the main line of sewer crossing Birchington Road. Mr. Munroe
contended that the test to be applied in matters of this kind was
this: Had the work which was in fact done, as distinguished from
that which was authorised, thrown any additional burden of drainage
upon the pipe in question ? If not, then the pipe remained a drain
and not a sewer. Mr. Poley, who appeared for the appellant, contended
that the fact that only two houses drained into the sewer in
Mutrix Road, whereas the plan, as sanctioned, showed that six
houses should so drain, constituted a material deviation from the
order of the Vestry, and therefore that the pipe in question was a
sewer, although he admitted that the pipe had no added burden of
sewage to carry in consequence of this deviation, but that, on the
contrary, it had a less burden to carry than it would have had if the
order had been strictly complied with.