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48
water main at the cost of the Board, on the ground
that the lowering of the footpath would render the
main more likely to be frozen. This the Board declined
to do, being of opinion that if the main required
lowering the cost should fall upon the Company. The
Company thereupon applied for an injunction. Upon
the hearing of the application, on the 8th July, 1898,
Mr. Justice Kekewich granted an injunction restraining
the Board from " lowering the surface of the streets
"and footways in their district whereunder the pipes
"and mains of the plaintiffs are laid in any manner
"which will leave such pipes or mains without a suffi"cient
covering of soil or other material to protect them
"from injury from frost or otherwise, without first alter"ing
the position of the said pipes and mains by
"placing them at such depth below the proposed new
"surface of such streets or footways as will not expose
" them to greater danger from frost or otherwise than
"they are at present." The Board appealed. The
appeal was heard on the 27th and 28th July, 1898, by
the Master of the Rolls, Lord Justice Chitty, and
Lord Justice Collins, who, after taking time to consider
their judgment, unanimously reversed, on the 8th
August, the decision of Mr. Justice Kekewich. The
Master of the Rolls stated in his judgment that
underlying the Company's contention was the assumption
that they were entitled to have a certain amount
of soil over their pipes ; he could find no warrant for
that assumption, and as the Board were clearly empowered
by section 98 of the Metropolis Management
Act, 1855, to remove the soil above the pipes, he saw
no ground for saying that the additional power conferred
upon the Board of altering the position of the
pipes imposed the duty of lowering them in order to
protect them from injury. The Company paid nothing
for the privilege of laying their pipes down in a public