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premises had always been the subject of a separate letting, and separately assessed
and rated in the poor and other rates. The drain or sewer in question was used
for the drainage of both houses. The Magistrates found as a fact that the two
houses were two separate buildings and not within the same curtilage, and were
of opinion, on the authority of "Travis v. Utley" (1894 1 Q.B., 233), that the
drain or sewer in question was a sewer within the meaning of the Public Health
Act, 1875, vested in the Local Authority, and that the respondent could not be
required to alter or amend it. The question for the opinion of the Court was
whether the Magistrates, in deciding that the two houses were in fact two buildings,
had come to a right decision in law.
Mr. It. Bray, K.C., and Mr. 01. Humphreys were for the appellant; Mr.
Macmorran, K.C., and Mr. Naldrett for the respondent.
Mr. Bray contended that the Magistrates had come to a wrong decision, Mr.
Justice Cozens-Hardy had decided, in the case of "Hedley v. Webb" (1901, 2
Ch., 126), that a pair of semi-detached houses constituted one building. That
case was an authority binding upon the Magistrates. The Magistrates had not
directed their minds to the proper question, as the question was not how the
buildings had been dealt with, as by a separate letting or otherwise, but whether
the houses were, in fact, one building. It was impossible to say that these
houses, built at the same time and being under one continuous roof, were two
separate buildings.
Mr. Macmorran, on behalf of the respondent, argued that the decision of Mr.
Justice Cozens-Hardy in "Hedley v. Webb" left it a question of fact in each
case whether or not a pair of semi-detached houses constituted one building.
The Magistrates had decided that the houses in question were two separate
buildings, and this decision on a question of fact should not be disturbed. The
Magistrates were right in deciding that the drain was a sewer. The case
of "Travis v. Utley" decided that a drain passing through private ground, but
receiving the drainage or more than one building, was a "sewer" within the
meaning of the Public Health Act.
The Lord Chief Justice, in delivering judgment on Monday, said that it
had been argued that a pair of semi-detached houses must be found to be one
building, because they were built at the same time and were under one continuous
roof. He doubted whether the word "building" in the Public Health Act
was intended to have so wide a meaning. Section 4 of the Act said, "Drain
means any drain of and used for one building only, or premises within the same
curtilage, &c." If it had been intended to deal with the question of structure
some more distinct definition would have been given. He thought that it must
come to a question of fact in each case. The Magistrates had found as a fact
that the houses formed two buildings, and that, therefore, the drain in question
was a sewer vested in the public authority. The case of "Travis v. Utley," in
which case the structure of the houses was somewhat similar, was an authority
for the proposition that each case must stand on its own merits. The decision
of Mr. Justice Cozens-Hardy in "Hedley v. Webb" went on many grounds.
He was of opinion that it must be a question of fact in each case, and that no
general rule could be laid down to the effect that a pair of semi-detached houses
must in all cases constitute one building. The decision of the Magistrates
could not be disturbed, and the appeal must be dismissed.