they think fit, may cause the ditches at the sides of or across public roads and byeways and public footpaths to be filled up, and to substitute pipe or other drains alongside or across such roads and ways, with appropriate shoots and means of conveying water from such roads and ways thereunto, and from time to time to repair and amend the same; and the surface of land gained by filling up such ditches may, if the local board so think fit and direct, be thrown into such roads and ways and be repairable as part thereof, and be under the control of the local board." 6. The defendants, intending to act under the provisions of that Act, on or about the 1st of February, 1869, caused the ditch to be filled up and the wooden posts and rails to be removed, and directed that the surface of the land gained by filling up the ditch should be thrown into Upton Lane. Before filling up the ditch they caused to be laid down 9-inch drain-pipes in the bed of the ditch from the point D. to join a then-existing brick drain at or near the northern point B. These pipes also communicated with other drain-pipes laid across the road from D. 7. Afterwards, the plaintiff caused to be erected other posts and rails on the site of those which had been removed: but the defendants, on or about the 14th of May, 1869, caused these posts and rails also to be removed. The question for the opinion of the Court was, whether the defendants were justified in causing the ditch to be filled up and the posts and rails to be removed. If the Court should be of opinion in the affirmative, judgment was to be entered for the defendants, with costs. If the Court should be of opinion in the negative, judgment was to be entered for the plaintiff for 57. as damages, with costs. The Court was to be at liberty to draw any inferences of fact which a jury ought to have drawn or found, and was also to have the power of granting all usual certificates. Day, Q.C. (Lanyon with him), for the plaintiff. The question arises upon s. 16 of the Local Board of Health Act for West Ham (30 Vict. c. lvi.), set out in the case, which authorizes the local board to cause the ditches "at the sides of or across public roads and bye-ways and public footpaths" to be filled up, and to sub 1873 TUTILL v. WEST HAM BOARD OF HEALTH. 1873 TUTILL v. WEST HAM BOARD OF stitute pipe or other drains. This, it is submitted, means such ditches as are immediately adjacent to and not separated from the highway; not such as are within the inclosure of the adjoining owner. The case is not very clearly stated as regards the question of ownership; but the presumption would be that the strip of land belonged to the adjoining owner: Grose v. West. (1) [HONYMAN, J. As between the adjoining owner and the lord of the manor.] In Steel v. Prickett (2), Abbott, C.J., ruled that the presumption was, that the waste land which adjoins a road belongs to the owner of the adjoining freehold, and not to the lord of the manor. Such being the presumption of law, it was for the defendants to make out a dedication to the public. [KEATING. J. Is not that rebutted by the posts and rails? HONYMAN, J., referred to Reg. v. United Kingdom Electric Telegraph Co. (3), where Crompton, J., says, that, “primâ facie, the high road is not confined to the metalled part, but extends to the fences or boundaries of the said high road."] That leaves untouched the question what is the fence or boundary of the high road. The plan shews that here it is the posts and rails. Prentice, Q.C. (H. Tindal Atkinson with him), for the defendants. It is not contended that the soil of this ditch may not be presumed to be the property of the plaintiff. If it had formed part of the highway, it would not have been necessary to pray in aid the Act of Parliament to justify the board in dealing with it. It may also be conceded that, if there be a strip of land (belonging to the adjoining freeholder) between the highway and the ditch, the provision in question would not apply. The object was to enable the board to remove or prevent nuisances. [KEATING, J. The case of a nuisance is provided for by the next preceding section. If the posts and rails were put up by the plaintiff or those under whom he claims, and have substantially been maintained by them ever since, would you contend that this was a ditch "at the side of the public road" within s. 15?] (1) 7 Taunt. 39. (2) 2 Stark. 463. (3) 31 L. J. (M.C.) 166, 169. Yes. The strip of greensward between the ditch and the roadway is merely the bank of the ditch. [KEATING, J. But for the posts and rails I should have had no difficulty in assenting to your argument.] The posts and rails are there merely to prevent persons passing along the road from falling into the ditch. Between A. and A., where the ditch had ceased to exist, the posts and rails had been removed. The narrow green strip between the ditch and the roadway is either part of the road or part of the ditch. [HONYMAN, J. If the strip of green between the road and the ditch is to be taken as part of the ditch, would you say that the 3-foot strip between the ditch and the 8-foot fence was part of the ditch? The arbitrator does not treat the strip on either side as part of the ditch.] It is not found that the posts and rails were put up by the plaintiff or his predecessors in title. All is left to inference: and the fair inference from the whole of the case is that the whole space at all events up to the ditch was part of the highway. Day, Q.C., was not called upon to reply. KEATING, J. This case is involved in some difficulty from the imperfect findings of the arbitrator. We are left to draw the best inferences we can from the facts as found. The defendants claim the right to fill up the ditch in question under the powers of s. 16 of the West Ham Local Board of Health Act, 30 Vict. c. lvi., which enacts that "the local board, when they think fit, may cause the ditches at the sides of or across public roads and bye-ways and public footways to be filled up, and to substitute pipe or other drains alongside or across such roads and ways, with appropriate shoots and means of conveying water from such roads and ways thereunto, and from time to time to repair and amend the same; and the surface of land gained by filling up such ditches may, if the local board so think fit and direct, be thrown into such roads and ways, and be repairable as part thereof, and be under the control of the local board." The simple question, therefore, is, whether the ditch in question was a ditch "at the side of" Upton Lane, within the meaning of that section. It appears from the case as stated that between the metalled part of the lane and the ditch 1873 TUTILL v. WEST HAM BOARD OF 1873 TUTILL v. WEST HAM BOARD OF there was a fence consisting of posts and rails two feet high, then a small strip of greensward averaging a foot in width, then the ditch in question, of the average width of five feet, which was divided from the plaintiff's inclosed estate by another strip of greensward about three feet wide. The difficulty I feel in holding this to be a ditch" at the side of the public road" is, the existence of the posts and rails, continued as shewn in the plan in front of the adjoining property from B. to C. If it had clearly appeared that these posts and rails had originally been put up by the surveyor of the highways merely for the purpose of protecting persons passing along the road, I should have had no difficulty in giving to the 16th section the construction contended for by Mr. Prentice. But the case shews that the posts and rails had existed for about forty years, and that they had from time to time been repaired by the owner of the adjoining land, though the surveyor of the highways had on two or three occasions (without the knowledge of the owner) done some repairs to them,-the repair by the former, it would seem, being habitual, by the latter occasional. The defendants, it is conceded, could not exercise the powers they claimed to exercise under s. 16 of the statute without removing the posts and rails; and they have done so. It appears to me that this was not a ditch within the contemplation of that section. It manifestly contemplated open ditches lying by the side of the road, not separated from it by any fence or land belonging to the adjoining owner, and which could be filled up without interfering with or trespassing upon private property. It is not an immaterial fact that a similar fence was continued along the front of the adjoining land. That fact tends to strengthen the inference that it was originally put up by the owner of the land. If so, the local authorities clearly had no right to interfere with it. If the ditch had been a nuisance, it would have come within s. 15. But, for the reasons I have stated, upon the best construction I can put upon the imperfect statements of this case, I am of opinion that the act of the defendants was not justified under s. 16, and therefore that the plaintiff is entitled to judgment. HONYMAN, J. I entirely agree. The only justification the defendants could have for the trespass complained of is, that their act was authorized by s. 16 of the local Act. That section impowers them to fill up and add to the highway any open ditch at the side thereof, but not to take from the adjoining owner a strip of land,whether one foot or ten feet wide is immaterial,-between the highway and the ditch. To enable the local board to act under that section, the ditch must be one which adjoins the road. If, as Mr. Prentice urged, the greensward adjoining the road was either part of the road or part of the ditch, it lay on the defendants to make that out. Sitting here as a jury, and drawing the best inference I can from the facts stated, the onus being on the defendants, they cannot complain if the inference I draw from those facts is against them. The arbitrator's statement shews that there is no pretence for saying that the strip of land in which the posts stood was part of the ditch. It is equally clear that it did not form part of the highway. If the posts and rails had been shewn to have been put up by the surveyor of the highways, I agree that that might have shewn it part of the highway: but the finding negatives that; they had been up about forty years, and repaired by the owners of the adjoining land, except upon two or three occasions when the surveyor, without the knowledge of the owner, repaired them. The plaintiff's case is strengthened by the continuance of the posts and rails (though without the ditch) from B. to C. The arbitrator does not state under what circumstances the posts from A. to A. had been removed. The case seems to me to resemble Doe d. Barrett v. Kemp (1), as to the presumption of ownership. The statements in the case clearly repel any presumption that this strip of land ever was part of the highway. Judgment for the plaintiff. Attorneys for plaintiff: Mills & Lockyer. (1) 2 Bing. N. C. 102. END OF EASTER TERM, 1873 |