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101
During the year two very important cases in which the Borough
Council were concerned have been decided by the Divisional Court in
regard to this question. In the first of these (Hampstead Borough
Council (Kershaw) r. A. J. Smith & Co., Limited) the Council was
successful, and established the principle that where a drain had been
converted into a sewer by the wrongful act of a builder he can be made
liable to rectify his wrongful act irrespective of the time which may
have elapsed since he committed the act, provided always that proceedings
are taken within six months of its discovery. The full details of
the case as stated by the magistrate were set out in my last Annual
Report. In the second case, that of the Hampstead Borough Council
(Kershaw) r. Paine, the Court felt themselves bound by the judgment in
the case of Silles r. Fulham Borough Council, 1903, to decidc against
the Council, although they did so with considerable regret, and the
presiding judge expressed the hope that the Court of Appeal would one
day adopt one or both of the dictums to which he gave expression in
the case of Heaver v. Fulham Borough Council. The following
particulars taken from the case stated by the Magistrate explain the
details and circumstances, and I have no doubt will be of great
interest:—
CASE
Stated by Mr. Plowden, one of the Magistrates of the Police Court
of the Metropolis, sitting at the Marylebone Police Court:—
1. The Respondent was summoned before me to answer a complaint
preferred by the Appellant that at No. Sumatra Road, in
the district of the Mayor, Aldermen and Councillors of the
Metropolitan Borough of llainpstead there existed a nuisance,
namely, defective drains, and that the said nuisance was caused
by the act, default or sufferance of the said Respondent.
2. I, after hearing the case on the 30th day of May, 1913, and the
10th day of June, 1913, dismissed the said complaint. The
Appellant being dissatisfied with my determination as being
erroneous in point of law, has applied to me to state a special case,
and has duly entered into a recognisance. I accordingly state
this case for the opinion of the King's Bench Division of the
High Court of Justicc.
3. At, the hearing of the said complaint the following facts were
proved in evidence or admitted before me:—
(a) The Appellant is the Senior Sanitary Inspector of llainpstead
Metropolitan Borough Council (hereinafter referred to as
"The Council"), which is the sanitary authority for the
district comprising the Metropolitan Borough of llainpstead.
The Respondent, who carries on business as an estate agent