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104
contained.' The said lease contains the following covenant
(inter alia) on the part of the said Elizabeth Nowell Jordain:—
"And also that the tenant will at her own expense within six
months from the date hereof complete and finish the demised
messuage and buildings fit for habitation . . . . . . .
with proper and sufficient garden walls, sewers, drains, flagging
and paving, and other things necessary to the premises to the
satisfaction of the landlord's surveyor." The drainage system
was constructed as shewn on the plan annexedhereto and marked
"A" at the time when the said premises were originally built.
(h) On the 15th November, 1888, the Respondent sold his
reversionary interest in the said premises to the Prudential
Assurance Company, and since that date the rent due under
the said lease has been paid by the Respondent, who has also
received the rack rent from the occupying tenant of the said
premises.
4. On behalf of the Appellant it was contended before me:—
(a) That the line of pipes referred to in paragraph 3 (b) hereof
constituted a "drain" within the meaning of the definition of
that term in section 250 of the Metropolis Management Act,
1855. In support of this contention the case of Heaver v.
The Fulham 13orough Council (1904) 2. K. B. 383 was
referred to.
(b) That having regard to the history of the said premises and the
terms of the said lease, the Respondent was estopped from
alleging that the said line of pipes constituted a "sewer"
repairable by the llainpstead Borough Council. In support of
this contention the following cases were referred to:—
Heaver & Others v. The Fulham Borough Council (1904)
2. K. B. 383.
Wilson's Music & General Printing Company v. The
Finsbury Borough Council (1908) 1. K. 13. 563.
Kershaw v.Smith (1913) 11. L. G. R. 519.
5. On behalf of the Respondent it was contended before me:—
(a) That the said line of pipes was a sewer because it carried off
the rainwater from the roofs of Nos. 153 & 157, Sumatra
Road, as well as the sewage of No 155, and no order had been
made by the predecessors of the Council for the drainage of
No. 155 with any other premises by a combined operation.
(b) That the Respondent was not responsible for carrying out, and
had not carried out, the drainage of No. 155, Sumatra Road,
and had no notice that the said William Brittain had
committed a wrongful act in relation thereto.
(c) That it was owing to the default and negligence of the
predecessors of the Council that the rainwater from the roofs
of Nos. 153 and 157, Sumatra Road, had been allowed to be
carried off by the said line of pipes, and that the Council was
estopped from saying the same was not a sewer.