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110
Court of Appeal. March 18th, 1903.
Before Yaughan Williams, Stirling, and Mathew, L. JJ.
Prcctor v. Metropolitan Borough of Islington.
Public Health (London) Act, 1891, Section 3.—Notice on Owner—Drain—
Sewer—Liability of Borough Council to Owner.
Where an inspector of nuisances of a Metropolitan Borough Council served
an intimation notice upon an Owner of premises under Section 3 of the Public
Health (London) Act, 1891, and requested the owner to abate a nuisance in a
drain, and the owner did so, and towards the completion of the work it was
found that the pipe in question was a sewer, it was held that the owner could
recover from the Council the expenses properly incurred in abating the
nuisance.
This was an action to recover a sum of £71 spent by the plaintiff in abating
a nuisance served by an inspector of nuisances of the defendant Council
pursuant to Section 3 of the Public Health (London) Act, 1891. The
defendant had done the work required by the notice, but towards its completion
it was found that the pipe in connection with which the work had been mainly
done was a sewer and not a drain. The plaintiff claimed a return of the
money so expended by her on the ground that it was the duty of the Council
to have done the work, and that she at the Council's request, and under
compulsion, had done work which the Council were legally liable and compellable
to do.
The Council contended that the notice in question was not a request by them,
but a notice served as required by statute, and further, that the plaintiff was
not bound to obey it. They also contended that the plaintiff had done other
work than was necessary.
Wright, J., who tried the case, decided in favour of the defendants, on the
ground that the notice was an intimation which the plaintiff was not bound to
obey, and that therefore she was not compelled to do the work.
On appeal, the plaintiff appeared in person, and Courthope Munroe appeared
for the defendants.
The court allowed the appeal on the ground that the plaintiff had been
compelled to incur expense which ought to have been borne by the local
authority. No formal judgment was delivered, but the court intimated that
they thought there had been sufficient legal compulsion by the Council, as the
inspector was the Council's servant, and the notice stated that if default was
made in complying with it a statutory notice would be served, and the costs of
so doing recovered. By consent of the parties the court assessed the amount
due for work done on the sewer at £40, and gave judgment for that sum with
-costs of the action, but not of the appeal.
King's Bench Divisional Court. 4th February, 1904.
Before Lord Chief Justice Alverstone, Mr. Justice Wills, and Mr. Justice
Kennedy.
Treasure & Son v. Bermondsey Borough Council.
Judgment.
The Lord Chief Justice:—"I am very anxious indeed to repeat what I
have said more than once when giving Judgment with regard to these