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because the thing cannot be done without abrogating the right." In this preposition
I entirely agree, but it does not apply to the present case, for the Legislature in the
26th Section of the Building Act, 1855, has not clearly and distinctly authorised the
building upon the footway as suggested. On the contrary, I think the language of
the section is incapable, when properly considered, of bearing any such construction,
but is applicable only to such a projection as could have been lawful
before restraint was imposed by Parliament upon projections beyond the general
line of frontage, even though such projections were upon the builder's own
land ; and even if the words could be made to bear such a construction, I have
no hesitation in saying they are capable also of that constructien which I have
put upon them, and which I have no doubt the Legislature intended they should
bear; and even if the interpretation put upon the words were the natural interpretation
of the words when read alone, yet, having regard to the context or contemporaneous
enactments touohing upon the same matters (as the two Acts in question
of 1865 do), it is clear that the strict literal construction ought not to prevail against
the clear and obvious intentions of those who passed the enactment. See The King v.
The Birmingham Canal Company, 2nd Barnwell and Adolphus, page 581, Holroy d
Justice.
To sum up shortly the view I have endeavoured to explain, the case stands thus.
Before the passing of the Metropolis Local Management Act a building owner might
build upon his own land up to its extreme boundary, regardless of any general line of
building, but he could not build or otherwise encroach upon a public footpath so as
to obstruct the passage along it without rendering himself liable to an indictment for
a nuisance. By the 143rd Section of the Management Act he was compelled, even
within his own laud, to confine his building within the general line of building in the
street, unless he had the consent of the Metropolitan Board of Works to build beyond
it; but even with such consent, he could not extend his building beyond his own
boundary, nor infringe upon the right of the public or of other persons.
The 2nd Sub-section of Section 26 of the Building Act authorised him to
extend a shop front beyond the line of buildings to a limited extent without the
leave of anybody, but gave him no greater right or privilege than he would have had
if neither of these Acts had ever come into existence.
I am, therefore, clearly of opinion that the magistrate was wrong in holding
that the encroachments in question were authorised by Section 26 of the Building
Act.
No other question being submitted for our consideration, it is unnecessary to
travel through the various Acts of Parliament by which the parish of St. Mary,
Islington, became subject to the provisions of the Act 57th George III., chapter 29
or how far the powers of the paving authorities mentioned in that Act became vested
in the Appellants, nor to discuss critically the previsions of that Act, nor to point
out how or when the street and footway mentioned in the case became a public street
or footway, for it is found to be such in the case; nor laboriously to wade through
the many amending Acts which have been passed since 1855, and which do not affect