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public who have a right to use it for the purpose of passage, not even though the soil
upon which it is made be the freehold of the encroacher, which here it was not
alleged to be, though, of course, by Act of Parliament the right of the public may be
destroyed for any reason which to the Legislature may seem good, even for the mere
benefit of a private individual.
It is, however, very difficult to suppose that an Act of Parliament having for its
sole object, as the Metropolitan Buildings Act undoubtedly had, the interests of the
public at large, would without adequate, indeed without any consideration or compensation,
and for the mere benefit of a private individual allow him to add to his
own land and appropriate to his own use land not belonging to himself, but which
had been devoted and dedicated to the use of the public, and thus deprive the public
of that the loss of which was calculated to cause inconvenience and annoyance to
thousands of Her Majesty's subjects.
Let us see whether Parliament has sanctioned so grave an interference with so
valuable and important a public right as a public footway in so populous a district as
this undoubtedly is.
By the enactment relied on for the Respondent—the 18th and 19th Victoria,
Chapter 120, Section 26—"The following rules shall be observed as to projections:
Sub-section 2: In streets or alleys of a less width than 30 feet any shop front may
project beyond the external wall of the building to which it belongs for 5 inches and
no more, and any cornice of any such shop-front may project 13 inches and no more;
and in any street or alley of a width greater than 30 feet any shop-front may project
10 inches and no more, and the cornice may project for 18 inches from the external
walls, but no more."
Now, does this Sub-section, for this is the only enactment pointed out or relied
on in support of the Respondent's contention, legalise the encroachment complained of?
The Appellants say it does not, and contend, and I think rightly, that it does not
authorise the making of any projections in cases in which they could not otherwise
be legally made; but only authorises them in cases in which they could be lawfully
made but for some restriction imposed by Act of Parliament—that is to say, upon the
party's own land or land which, irrespective of any Act of Parliament, he could
lawfully utilise for the purpose. In advancement of this view the 5th Sub-section of
Section 26 was read by the learned Counsel for the Appellants, such Sub-section
being as follows:—" Except in so far as is permitted by this Section, in the case of
shop fronts, and with the exception of window dressings and other like architectural
decorations, no projection from any building shall extend beyond the general line of
fronts in any street, except with the permission of the Metropolitan Board of Works."
What was the real object of these provisions is, to my mind, conclusively shown
by reference to some few sections of the Metropolis Local Management Act, 1855
(18 and 19 Victoria, Chapter 120), which received the Royal Assent on the same day
as the Building Act, and whioh must be read in conjunction with it.
Now, by the Metropolis Local Management Act, after providing for constitution
of Vestries and District Boards, and the incorporation of the Metropolitan Board of
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