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90
The opinion of Mr. Alexander Macmorran was obtained as under
"I observe that the Surveyor in his report to the Vestry says that the old sewer at the back
was constructed according to the old plans by the Commissioners previous to the establishment of
Vestries. This is not a very clear statement. If it means that the old sewer was laid by the
Commissioners of Sewers themselves, then it is undoubtedly a sewer; but if laid by private persons
according to plans approved by the Commissioners, then it is a drain and not a sewer. (Sections 25
and 26 Vict.,c. 102 and 112.) If there is any doubt about this,enquiry should be made. Meantime,
for purposes of this opinion I shall assume it to be a sewer, and not a drain. Upon this assumption
I am of opinion that Section 73 does not enable the Vestry to close the old sewer and compel
the Owners to connect with the new. Section 73 applies only when a house is found to be without
'a sufficient drain communicating with some sewer.' In such a case the Vestry have undoubtedly
power to require a new drain to be laid, and they can prescribe the level, fall, etc., of the new
drain. But I have very great doubt whether they can require the Owner of the house to lay the
new drain so that it shall communicate with a different sewer from that into which the old drain
discharged. If the Vestry are right in their suggestion they would have power upon discovering
any defect, however trivial, in a house drain to require the house to be drained by another system
altogether. I do not think this is a reasonable interpretation of Section 73. That section was
really intended only to apply to cases where the house was not drained into any sewer. The
insufficient or defective condition of an existing drain is dealt with by Sections 82-85. Assuming,
however, that Section 73 does apply to a house which is now drained into a sewer, and the house
drains are in some way insufficient, it is by no means clear that the Vestry have the right to prescribe
the sewer into which the drain, when re-laid or made sufficient, shall go. The Vestry have
full discretion as to the drain, its materials, level, fall, etc., but the drain when laid or repaired may
lead into 'any such sewer.' The judgment in St. Marylebone (Vestry of) v. Vivet, 34 L.I.,
M.C. 214, confirm this view, though in that case the house drains were not found to be insufficient,
and the precise point in the present case did not arise.
"I may add that in my opinion the Owners would comply with the notices served upon them by
relaying their house drains from new houses to the old sewer.
It appears to me from the Surveyor's report that the real cause of complaint is the old sewer
itself, the insufficiency of the house drains being capable of easy remedy and probably of secondary
importance. If that sewer ought to be discontinued the procedure is under Section 69, which