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77
exercised. It is sometimes contended that in exercising this authority
resort is being had to an old Act which is obsolete and arbitrary, but in
relation to this I would point out that it is often the only fair way of
treating a drain. Many cases arise where it is necessary to ascertain
whether a drain is defective or not, in which no inspection chamber
exists, therefore the water test cannot be applied and the smoke test
may be utterly unreliable to demonstrate many of the serious defects
which exist. In addition to this the examination under this Section is
an essential preliminary to subsequent action under this Act, and does
not necessarily involve opening the ground.
In relation to the water test I would point out that there are cases
where the application of such a severe test is undesirable and unfair to
the drain, and where the actual condition of the drain can only be safely
ascertained by a direct inspection of the pipes.
Drain and Sewer.
If the whole of the records of Law and Equity were searched, it is
doubtful if any more flagrant instance could be discovered, where the
one conflicts with the other to a greater extent, than is the case of the
liabilities involved in the question of "drain and sewer." The defective
statutory definitions of words which have occupied a place in the English
language, as far back as, if not prior to, the Great Fire of London, has
resulted in a financial burden being placed upon the shoulders of the
unfortunate ratepayer, which ought to have been borne by owners of
private property. In London alone it is safe to say that a sum amounting
to more than £500,000 has been involved; and, taking the country
as a whole, if the figures were available, they would be found to be
approximately four times that amount.
The words "drain" and "sewer" were terms that had distinctive
meanings, which were well understood, and if the Legislature in framing
Drainage and Sanitary Acts had refrained from incorporating definition
clauses no difficulty would have arisen. The intention of Parliament
seems to have been perfectly clear, and was, that the sewers which run
under the middle of the road should be vested in and maintained by the
local authority out of the rates, and that the drains from private property
which discharge into them should be kept in order by the owners of the
property to whom they belong.