answer to a question left them by the judge, found that the contractors had, in making the sewer, acted bonâ fide under the orders and directions of the commissioners, it was held that the contractors were absolved from all personal liability for the nuisance. "The object of the Legislature," observes Wightman, J., "seems to have been in such a case not to leave the complaining party remediless, but to oblige him to bring his action against the commissioners as a body in the name of their clerk, in which case the liability would not be personal; and any damages that might be recovered would be payable out of funds at their disposal under the provisions of the 125th section, which provides for the payment of the damages and costs recovered against the clerk in any such action "(u). Here there was no evidence of any negligence on the part of the contractors, the sewer having been properly constructed by them under the orders of the commissioners, and the nuisance to the plaintiff being the natural and necessary result of the making of the sewer.

Whenever the mischief is the natural and necessary result of the doing of the act ordered to be done, and not the result of some collateral or negligent act not ordered, the maxim respondeat superior applies(). 1049 Pollution of streams and injuries to docks, wharfs, towing-paths, etc., in the exercise of statutory powers.-By the Public Health Act (11 & 12 Vict. c. 63), s. 145, it is enacted, that nothing contained in the Act shall be construed to authorize a local board of health to use, injure, or interfere with any watercourse, stream, river, dock, basin, wharf, quay, or towing-path, in which the owner or occupier of any lands, mills, mines, or machinery, or the proprietors or undertakers of any canal or navigation, shall or may be interested, without consent in writing first had and obtained. Where, therefore, a local board of health constructs drainage works and pours the filth from public sewers into streams or watercourses running through the private grounds of adjoining landowners, they cannot shelter the ratepayers or the public funds at their disposal from the consequences of the creation of the nuisance by showing that they acted in the exercise of the statutory powers conferred upon them(x). Generally speaking, where local boards are authorized and required to execute drainage works in a particular district, and to make compensation to parties sustaining injury therefrom, they have no power to collect together the sewage

(u) Ward v. Lee, 7 Ell. & Bl. 430.

(v) Hole v. Sittingbourne, etc., Rail. Co., 30 Law J., Exch. 81.

(x) Att-Gen. v. Luton Local Board, 2 Jur. N. S. 180. Manchester, Sheff., etc., Rail. Co. v. Worksop Board of Health, 23 Beav. 198.

and pour it into streams which were previously pure, so as to create a nuisance and deteriorate the value of the adjoining land. A power to take possession of streams, and to cover over open watercourses for drainage purposes, and to give compensation therefor, gives to the board no power by implication to pollute water which was previously substantially pure(y).

Although the inhabitants of a town may have a right to open their sewers into a river, in the natural course of drainage, this does not entitle them to foul the water with the contents of water-closets, and convert a sweet and limpid stream into a stinking sewer. The ordinary right of sending house-drainage into streams and natural watercourses, is like the right of drainage which exists in the case of adjoining mines upon different levels. "From the necessity of the case, every owner of a mine must submit to the inconvenience of having the water of an adjoining mine upon a higher level descend upon his mine, so long as it descends in the natural course of drainage (ante, p. 71); but that does not entitle the owner of the adjoining mine to throw upon him, in some other and more objectionable way, water which might be allowed to descend upon him in a modified form, not occasioning the same amount of injury to his property "(2). 1050 Creation of nuisances in the exercise of the statutory powers contained in the Towns Improvement Clauses Act.-By 10 & 11 Vict. c. 34, s. 24, power is given to commissioners and public bodies intrusted with the execution of the powers of the Act, to construct sewers for the drainage of towns, and to carry such sewers through inclosed and other land, making full compensation to the owners and occupiers thereof, and to cause such sewers to empty themselves into the sea or any public river, or to cause the refuse from such sewers to be conveyed to a convenient site for sale, for agricultural or other purposes, but so that the same shall in no case become a nuisance. And by s. 107 it is further enacted, "that nothing in the Act contained shall be construed to render lawful any act or omission on the part of any person which is, and but for the Act would-be deemed to be, a nuisance at common law." If, therefore, commissioners, trustees, or any body corporate, intrusted with the exercise of the powers of this statute, create a nuisance by their system of drainage, they may be restrained by injunction from continuing the nuisance(a).

(y) Cator v. Lewisham Board of Works, 34 Law J., Q. B. 75.

(z) Wood, V.-C., Att.-Gen. v. Borough of Birmingham, 4 K. & J. 512.

(a) Att.-Gen. v. Borough of Birmingham, 4 Kay & J. 543. Att. Gen. v. Corporation of Leeds, L. R., 5 Ch. App. 583.

1051 The Metropolis Local Management Act, 18 & 19 Vict. c. 120(6), provides (s. 86), that where any work by any vestry or district board, done, or required to be done, in pursuance of the provisions of the Act, interferes with, or prejudicially affects, any ancient mill, or any right connected therewith, or other right to the use of water, full compensation shall be made to all persons sustaining damage thereby, in manner thereinafter provided; or it shall be lawful for the vestry or board, if they think fit, to contract for the purchase of such mill, or any such right connected therewith, or other right to the use of water. If any vestry or district board, in the exercise of the powers conferred upon them by this statute, cause work to be done which is negligently and unskilfully done, and damage is thereby caused to another, it is a proper case for an action or an injunction; but if the work is properly done, and the injury is the natural and necessary result of the doing of the work, it is then a proper case for the statutory compensation(c).

1052 Of the power to take lands and streams for public purposes.-By the Waterworks Clauses Act, 10 & 11 Vict. c. 17, it is enacted (s. 6), that where by the special Act the undertakers shall be empowered to take or use any lands or streams otherwise than with the consent of the owners or occupiers thereof, they shall, in exercising the power so given to them, be subject to the provisions and restrictions contained in the Lands Clauses Consolidation Act, 1845, and shall make to the owners and occupiers of, and all other parties interested in, any lands or streams taken or used for the purposes of the special Act, or injuriously affected by the construction or maintenance of the works thereby authorized, or otherwise by the execution of the powers thereby conferred, full compensation for the value of the lands and streams so taken or used, and for all damage sustained by such owners, occupiers, and other persons by reason of the exercise, as to such lands and streams, of the powers vested in the undertakers, the amount, except where otherwise directed, to be determined in the manner provided by the Lands Clauses Consolidation Act.

If, therefore, a company, under the powers conferred by this statute, takes the whole stream, it must pay the whole price of it; if it injuriously affects it, compensation must be made in the ordinary way. Before an entire stream can be taken, the company must proceed to have the amount of compensation assessed, and paid or deposited, or

(b) See 25 & 26 Vict. c. 102.

(c) Stainton v. Woolrych, 23 Beav. 233; 6 Law J., Ch. 300. Coats v. Clarence Rail. Co., 1 Russ. & M. 181.

security given, in the mode prescribed by the statute; and the court will by injunction restrain them from diverting the stream unless they have complied with the statutory requirements(d).

If a company or public board, acting under the powers of the Lands Clauses Act, require only part of a building, etc., they may be compelled to take the whole, and have the value thereof assessed, and paid into court before they take possession of part(e). All fixtures, whether they be tenant's or landlord's fixtures, form part of the premises which the company may be required to value and take(ƒ). 1053 Licenses to enter upon land authorized to be taken for public works.Where the owners and occupiers of land authorized to be taken for public works have licensed the entry of a public board or company for the purpose of commencing the construction of the works, they cannot revoke the consent once given, and treat their licensees as trespassers, but must resort to the statutory mode for compensation(g). 1054 Seizure and detention of goods by custom-house officers acting in the execution of statutory powers.-Revenue-officers, acting under an authority given them by statute to examine goods and merchandise, in order to ascertain the amonnt of duty payable upon them, or whether they are goods that may lawfully be imported, are not liable to an action for the seizure or the unlawful detention of the goods, unless the goods are taken and kept an unreasonable time, and there has been a clear abuse of authority on the part of the officers. If they, fairly and honestly believing that goods are liable to seizure, take and detain them, and the decision of the matter is referred to the proper authorities, they are not responsible for the detention of the property, although it may turn out that their judgment in the matter was erroneous, and that the goods ought to have been examined and passed (h). By the 8 & 9 Vict. c. 87, s. 116, it is enacted, that if any information or suit shall be commenced or brought to trial on account of the seizure of any vessel, boat, or goods, etc., as forfeited by any act relating to the customs, wherein a verdict shall be found for the claimant, and it shall appear to the judge or court, before whom the same shall have been tried, that there was a probable cause of seizure, such judge or court

(d) Ferrand v. Corporation of Bradford, 21 Beav. 412.

(e) Giles v. Lond., Chat., etc., Rail. Co., 30 Law J., Ch. 603.

() Gibson v. Hammersmith Rail. Co., 32 Law J., Ch. 337.

(g) Doe v. Leeds and Bradford Rail. Co., 16 Q. B. 796; 20 Law J., Q. B. 486. Knapp v. Lond., Chat. and Dover Rail. Co., 32 Law J., Exch. 236.

(A) Jacobsohn v. Blake, 7 Sc. N. R. 784; 13 Law J., C. P. 89. As to detention for freight. see 22 & 23 Vict. c. 37, s. 2.

shall certify on the record that there was such probable cause, and in such case the person making the seizure shall not be liable to an action on account of such seizure.

SECTION II.

OF STATUTORY REMEDIES FOR THE RECOVERY OF COMPENSATION FOR
INJURIES AUTHORIZED BY STATUTE.

1055 Injuries establishing a right to statutory compensation.-Where land has been taken under the provisions of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), and the usual warrant has been issued to assess compensation for the land taken, and for severance, and for the land being otherwise injuriously affected, the claimant, the land-owner, is entitled to compensation in respect of the residue of his land being injuriously affected by the execution of the works, although the injury may be of such a nature that an action for damages would not have been maintainable in respect of it, for where the owner is turned out of his property by a company under compulsory powers of purchase, the company is bound to compensate him for all the loss occasioned by the expulsion, as in trespass for expulsion(i). But where no land has been compulsorily taken from the plaintiff under statutory powers, but the injury complained of has arisen from something done on land which has not been taken by them from the claimant, and the injury would not have formed a ground of action against an ordinary proprietor, if done by him, such injury cannot be made a ground for compensation under the statute().

Where, therefore, the New River Company, in the exerciee of its statutory powers, constructed some underground works on their own land which drew off the water from the plaintiff's well, it was held that the plaintiff was not entitled to compensation under the statute, as the company, in drawing off the water from the well, had not infringed any right of the plaintiff, or done anything which would

(i) Jubb v. Hull Dock Co., 9 Q. B. 457. Re Stockport, etc., Rail. Co., 33 Law J., Q. B. 251. See Duke of Buccleuch v. Metrop. Board of Works, L. R., 3 Exch. 307; 5 Exch. 221; 5 Eng. & Ir. App. 418.

(j) See Ricket v. Metrop. Rail. Co., post, p. 903; City of Glasgow Union Rail. Co. v. Hunter, L. R., 2 Sc. App. 78.