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109
Court of Appeal. April 7th, 1903.
Before Yaughan "Williams, Stirling, and Mathew, L. JJ.
Silles v. Fulham Borough Council.
Metropolis Management Act, 1855, Section 250.—Sewer.—Drain. Where
the rainwater of two houses is drained into the same pipe as drains the sewage
of one of the houses, that pipe becomes in consequence a sewer.—Holland v.
Lazarus, 66, L. J. Q. B. 85, affirmed.
This was an appeal from a decision of Wright, J., in an action brought by
the owner of two houses against the Fulham Borougli Council, to recover a
sum of money expended by him in abating a nuisance which had arisen in an
underground pipe. The money had been expended by him on a threat of
proceedings by the Borough Council. The question in issue was whether the
pipe was a drain or sewer. The plaintiff contended that it was a sewer, and
that the defendant Council should have done the work. The determination of
the question depended on the interpretation of the word " drain " in Section
250 of the Metropolis Management Act, 1855 (18 & 19 Vict., C. 120), which
provides as follows :—" The word ' drain ' shall mean and include any drain of
and used for the drainage of one building only, or premises within the same
curtilage, and made merely for the purpose of communicating with a cesspool
or other like receptacle for drainage, or with a sewer into which the drainage
of two or more buildings or premises occupied by different persons is conveyed,
and shall also include any drain for draining any group or block of houses by
a combined operation under the order of any vestry or district board ; and the
word ' sewer ' shall mean and include sewers and drains of every description
except drains to which the word ' drain' interpreted as aforesaid, applies." In
this case the two houses were built in one block, and had a gutter running
along under the eaves, which carried a portion of the rain-water from the roofs
of both houses into a down-pipe, into which also flowed the slops and bathwater
of one of the houses. The down-pipe discharged into a gully, and from
thence into the pipe in question, which communicated with a main sewer.
Wright, J., on the authority of Holland v. Lazarus, 66 L. J. Q. B. 85, held
that the pipe was a sewer, and gave judgement for the plaintiff. On appeal it
was contended that that case was wrongly decided. Green v. St. Mary,
JNewington (1898) 2 Q.B. 1, was referred to. Mattinson, K.C., and L M.
Richards appeared for the plaintiff ; Macaskie, K.C., and Sylvian Mayer for
the defendants. The Court without calling upon counsel for the plaintiff,
dismissed the appeal.
Lord Justice Yaughan Williams said that it was admitted that the facts in
this case were substantially identical with the facts in the two cases of Holland
v. Lazarus, decided by Mr. Justice Bruce, and Green v. Yestry of St. Mary,
Newington, decided by the Divisional Court. It was held in those cases that
where there were two drains carrying sewage matter, which ran into one
another and served two buildings and not a block of houses drained by a
combined operation sanctioned by the vestry, those two drains so running into
one another came to be a sewer within the meaning of the definition of
"sewer" in Section 250 of the Metropolis Management Act, 1855. And it
was further established that it made no difference if one of the two drains
happened to be a drain which only carried rain-water; such a case came
equally within the definition. These cases he considered to be rightly decided.
Stirling and Matthew, L. JJ., concurred.