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Co. effected another policy on the said ship also upon the body, &c. of the good ship or for 1,0001.
vessel called the Albemarle, . . . beginning 4. On the 4th of December 1862, they the adventure upon the said goods and mereffected another policy for 2,0001.
chandises from the loading thereof aboard 5. The said ship sailed from Liverpool the said ship as above upon the said ship, , on the 23rd of December 1862, and arrived &c., including collision clause, and shall so at Mazatlan, being a port in the Pacific continue and endure during her abode Ocean, and her last port of discharge, on the there, upon the said ship, &c., and further 25th of May 1863, at 7 P.M., and then until the said ship with all her ordnance, anchored there.
tackle, apparel, &c., and goods and mer6. The vessel remained anchored at Ma- chandises whatsoever, shall be arrived at as zatlan in safety until the 24th of June 1863, above upon the said ship, &c., until she and on that day, at 3:45 A. M., she was driven hath moored at anchor twenty-four hours in on shore in a gale of wind and was wholly good safety, and upon the goods and merlost.
chandises until the same be there discharged 7. The said B. & Co. immediately on and safely landed,” &c. (The clause as to hearing of the arrival of the said ship at the thirty days was in writing, that as to Mazatlan, proceeded to effect an insurance the twenty-four hours in print.) on the said ship, on her future voyage; and Sir G. Honyman (Mellish with him), for before any intimation of her loss, they, on the plaintiffs. — The policy underwritten by the 8th of July 1863, effected a policy with the defendant was in force when the ship the plaintiffs, a copy of which is hereunto was lost. The thirty days ought to be reckannexed.
oned from midnight on the 25th of May, 8. B. & Co. in like manner covered by according to the general rule which is laid insurance the sum of 2,0001., being the resi- down in Webb v. Fairmaner (1) and Young due of the sum at which the ship was valued. v. Higgon (2). Or if the time be reckoned
9. On hearing of the loss, B. & Co. applied from the actual time of her arrival, the time to the plaintiffs and the underwriters on the of the accident would also be covered, for last-mentioned policy, to pay them the the thirty days would not expire till 7 amount of the loss, and the plaintiffs and o'clock on the 24th of June. It will be said such underwriters thereupon paid to the that on the construction first suggested, owners of the said ship the several sums the ship would be uncovered from the insured by them respectively.
time of her arrival till midnight. That, how10. In this action the plaintiff seeks to ever, would not be the case, for the policy recover the sum of 471. 15s. 3d., being the in another part covers her until she has sum which the plaintiff contends the defen- moored at anchor twenty-four hours in good dant is liable to contribute in respect of the safety. sum of 1001., for which the said policy was Lush (Cohen with him), for the defendant. underwritten by him as aforesaid, upon the — The policy was not in force at 3:45 A.M. ground that such policy was in force at the on the 24th of June. In calculating the time of the loss of the said vessel.
thirty days stay at Mazatlan, the 25th of The question for the opinion of the Court May is to be included, for any other mode is, whether the policy of insurance so under- of calculation would render the ship uninwritten by the defendant as aforesaid, was sured for a portion of her first day's stay. in force at the time of the loss of the said It is a mistake to say that she would still vessel.
be insured under the other clause in the By the policy which was underwritten by policy, which is in printed words, for that the defendant, B. & Co. caused themselves part is not intended to have force when the “to be insured, lost or not lost, at and from parties have inserted in writing their own Liverpool to any port or ports in the South terms as to the thirty days. The proper and North Pacific Oceans, in any order mode of construing this policy is that the backwards and forwards, and during thirty thirty days should run from midnight predays stay in her last port of discharge, with ceding the time at which the ship arrived. leave to cruise off any port or ports in the Pacific, for a period of thirty days, upon
(1) 3 Mee. & W 473; 8. c. 7 Law J. Rep. (N.s.)
Exch. 140. any kind of goods and merchandise, and (2) 6 Ibid. 49; s.c. 9 Law J. Rer. (v.s.) M.C. 29.
BOARD OF HEALTH
[CROMPTON, J.-We must construe the first, that the watercourse was a policy so as to make all the parts of it avail- vested in the local board and that it was able, and I cannot see why we should not their duty to cleanse it. Secondly, that it read it as meaning that the thirty days was not made or used under the said local should run from the expiration of the act, nor ought it to be cleansed at the twenty-four hours after the ship had moored expense of the proprietors, &c. at anchor. COCKBURN, C.J.-I think that Issues were joined upon these pleas. is the right view.
At the trial, which took place at the
Summer Assizes for Huntingdon, 1863, the Per Curiam (3).—There must be judg- cause was referred to an arbitrator to settle ment for the plaintiffs.
and determine the question as to the origin, Judgment for the plaintiffs. nature, and extent of the Stonehill Brook;
what was done by the Inclosure Commis
sioners; what alterations, if any, what reTHE QUEEN V. THE LOCAL pairs, if any, were from time to time done, 1864.
and by whom. Th facts to be stated in a Nov. 19, 23.
special case, and the Court to draw concluMANCHESTER.
sions from the facts. The writ and return Sewer Drain -Watercourse Public
and pleading to form part of the case.
In the year 1802 the Godmanchester
Inclosure Act was passed, entitled an act A natural stream, supplied by natural and for dividing and inclosing certain open and artificial drainage of cultivated soil belong- common fields, meadows, lands, commons ing to private individuals, was cleared out and commonable places within the parish of and partially widened and deepened by Gumcester, otherwise Godmanchester, in the Commissioners acting under a private inclo- county of Huntingdon. This act may be sure act, powers being given to them to do so referred to as part of this case. The Comat the expense of the proprietors. In its pas- missioners appointed under the above act sage to the river into which it ultimately made their award under the same on the flowed, it passed through a town and received 23rd of June 1809, and by such award they the drainage of two or three inhabited did set out and appoint, order and direct houses. Semble—That this stream was not among, other things, “one other public a sewer within the meaning of the Public drain or watercourse, four feet wide, beginHealth Act, 1848.
ning at the London turnpike road into and But even if it were 0,- Held, that it came over an allotment to the Dean and Chapter within the exceptions in section 43, and that (meaning the Dean and Chapter of Westit was not vested in the local board of health, minster) and their lessee, along Shooter's and that they were not liable to cleanse and Hill, and thence through and over the allotrepair it.
ments to Samuel Bleckley's, Lady Olivia
Sparrow's and John Martin's, to and across Mandamus to the local board of health Gravelly Way, and thence over an allotment of the borough of Godmanchester, com- to George Maule, into an ancient watermanding them to cleanse a sewer or water- course leading into the town of Godmancourse, pursuant to the Public Health Act, chester, along part of the said town and 1848.
thence into the river Ouse.” And the said The defendants made a return, traversing Commissioners did by their award direct the allegations in the writ, and alleging (inter alia), “ That all such drains and that the watercourse was not a sewer which bridges shall be made and forever maintained, it was their duty to cleanse, and also that supported, scoured and kept in repair by it had been made under a local act, and and under the direction of the surveyor of that it ought to be cleansed at the expense the highways for the time being of the said of the proprietors of the lands through parish of Godmanchester, at the expense of which it flowed. The prosecutor pleaded, all the proprietors of land and grounds (3) Cockburn, C.J., Crompton, J., Mellor, J.
divided and inclosed by virtue of the act in and Shee, J.
equal proportions." The drain or watercourse is the one mentioned in the award of the nel, which commenced at the point where arbitrator hereinafter set out, and is known the said natural stream entered Bleckley's by the name of Stonehill Brook, and is the Farm from the Dean and Chapter's lands, one in question in this mandamus. Stone- and which artificial channel, after running hill Brook is situate within the corporate a length of about seven chains, re-entered the borough of Godmanchester, a district within old channel, the intervening portion of the the meaning of the Public Health Acts, ex- old channel having been filled up and declusively consisting of the whole of the said stroyed. For the same purpose and about corporate borough within and for which the the same period the owner of Lady Olivia defendants are the local board of health Sparrow's land also diverted the course of under the said acts. The arbitrator made the said natural stream, by making for it an award in writing, as follows :
an artificial channel, which commenced at - The Stonehill Brook runs in the course the point where the said natural stream which is delineated on the map hereto an- passed from Bleckley's Farm to Lady Olivia nexed, commencing at the road called the Sparrow's land, and which artificial chanLondon Road and passing from thence nel, after running a length of about 18 through land called and known as the Dean chains, re-entered the old channel very and Chapter's land; thence through land nearly at the further boundary of Lady called Bleckley's Farm; thence through land Olivia Sparrow's land, the old channel being called Lady Olivia Sparrow's land; thence partially filled up, but being left and still through the lands of various proprietors remaining capable of acting as an escape crossing a road called West Street, and ter- channel for surplus waters. The natural minating in the River Ouse. The whole channel of the said natural stream so altered length of its course between the London and affected as just described, constitutes Road and the River Ouse is about one the existing channel of Stonehill Brook. and a half mile. The water of Stonehill The width of the channel of Stonehill Brook between the London Road and West Brook varies from about 14 feet at its Street is solely supplied by the drainage, upper extremity to about 15 feet at its natural and artificial, of a considerable area lower, and its depth from about 3 feet to of cultivated soil; but at West Street the about 5 feet between the same limits. drains of two or three inhabited houses Before the inclosure under the said Incloempty themselves into the brook, and be- sure Act, Stonehill Brook was cleared out tween West Street and the river Ouse the and repaired, sometimes at the joint exwater of the brook stands at the level pense of all the owners of the land, subject of that of the Ouse; with the excep- to the provisions of that act, and sometion of the drains at West Street just times by paupers of the parish of Godmanmentioned, no drains other than the drains, chester, under the direction of the overseer underground and open, of purely agricul- of the poor of the said parish for the time tural land discharge themselves in the being, and paid by him out of the general brook. The channel of the brook is the poor-rates of that parish. After the said natural channel of a certain natural stream, inclosure, for a short time, Stonehill Brook except so far as its character is altered by was cleared out and repaired when necesthe facts next mentioned. The Inclosure sary by the paupers of the parish of GodCommissioners acting under a local inclo- manchester, under the direction of the sure act of the 43 Geo. 3, between the overseer of the poor of that parish for the years 1802 and 1809, cleared out the chan- time being, and paid by him out of the nel of the said natural stream, and in general poor-rates of the parish; but for various places along its course somewhat the last thirty years or thereabouts it has widened and deepened it, to render it more been cleaned out and repaired by the efficient as a means for draining a portion
of the lands through which it of the tract of land which was subject to passes, each doing that portion of it which the provisions of the said act. Afterwards, traverses his own land." the owner of Bleckley's Farm, for greater The special case further stated as folconvenience in subdividing his fields, lows: It is admitted that the said drain, diverted the course of the said natural sewer and watercouse, called Stonehill stream by cutting for it an artificial chan- Brook, was and is in a foul, unclean and
improper state and condition, so as to be or private act of parliament," but it is not a nuisance and injurious to health, as in so, inasmuch as it is a natural stream, and the writ of mandamus alleged. It is also was not “made" but only to some extent admitted that the said drain, sewer and widened and deepened under the Inclosure watercourse, for want of being properly Act. There are several sections following scoured, cleansed, emptied and kept, had the 43rd which give to the local board the become and was, before and at the time in requisite powers for purchasing, making and that behalf in the writ mentioned, and cleansing sewers. still is, liable to overflow and damage, and [CROMPTON, J. - It
become a then had overflowed and damaged the land "sewer” by use. MELLOR, J.-May it not
— of some of the Queen's subjects adjoining come within the interpretation clause (secand near to the said drain, sewer and tion 2.) under the head of "waterworks,” as watercourse, and the public way, called the being a "stream?"] Gravelly Way, as in the writ of mandamus The Court cannot decide in favour of the alleged.
defendants unless it holds that the alteraThe question for the opinion of the tion made by the board amounts to its being Court is, whether the prosecutor or the “made.” Nor can a brook passing through defendants is or are entitled to the verdict fields be a drain. The Local Government Act, on the first and second pleas to the return 1858 (21 & 22 Vict. c. 98), in s. 68, shews to the writ. The verdict on these pleas is that there may be “sewers” of another kind to be entered as the Court shall direct, it which the local board are not allowed to being agreed that the verdict is to be interfere with. Again, the word “made" in entered for the prosecutor on the third section 43. cannot be applied to this brook, and fourth pleas to the return.
inasmuch as it must mean something which Keane (Douglas Brown and Markby with the local act contemplated as to be made, him), for the Crown.—The defendants are and it was never intended that under the act bound to cleanse and repair the Stonehill the Commissioners should have power to do Brook. At the time of the Public Health more than set out and appoint roads, drains, Act, 1848, being applied to the borough, and watercourses-see 41 Geo. 3. c. 109. the brook existed as a sewer, and therefore s. 10. which is referred to in the local act; vested in the defendants under the 2nd and The Earl of Falmouth v. Richardson (1). and 43rd sections of that act. By the first Nor has it been used under the local act. of those sections, “the word "sewer'shall There is another reason for saying that this mean and include sewers and drains of was not a sewer which the local board were every description, except drains to which entitled to make. It is called one other drain, the word drain' interpreted as aforesaid &c. Further, this brook was not made for applies," and by section 43, “all sewers, the purpose of profit, and section 145. of whether existing at the time when this act the 11 & 12 Vict. c. 63, which prohibits the is applied, or made at any time thereafter, interference by the local board with sewers (except sewers made by any person or per- or other works, only applies to such as had sons for his or their own profit, or for the been made or used for the purpose of drainprofit of proprietors or shareholders, and ing, improving or irrigating lands, or for except sewers made and used for the pur- such purposes of profit. This last section pose of draining, preserving or improving was intended to prevent the interference land under any local or private act of par- with such sewers as under section 43. would liament, or for the purpose of irrigating not vest in the board. land, and sewers under the authority of any [CROMPTON, J.--I do not see how you Commissioners of Sewers appointed by the make it out to be a sewer at all.] Crown,) together with all buildings, . .. Yes, it comes within the interpretation shall vest in, belong to, and be entirely clause, and not within the exception in secunder the management and control of the tion 43; but even if not a sewer it is a drain local board of health.” This brook is not which is admitted to be offensive and injuwithin any of these exceptions. It may be rious, and if so, under section 58, the local said that it is within the exception, “sewers
board are bound to cleanse it. made and used for the
purpose of draining, J. Brown, for the defendants.—Accordpreserving or improving land under a local
(1) 3 B. & C. 837.
ing to the argument for the Crown, even sewer, and vested in the Board of Health. watercourses would vest in the local board. But it is not necessary to decide this point, But clearly that was not intended; the because the watercourse in question falls preamble of the act mentions “towns and within the second exception in the 43rd secpopulous places.” This is called a brook, and tion, if it is within that section at all. The there is nothing to shew that it was a sewer case finds that the Commissioners by their at all, and even if it were it would fall award directed that all such drains and within the second exception in the 43rd sec- bridges should be for ever maintained at tion of 11 & 12 Vict. c. 63, as being made the expense of the proprietors of lands and and used for the purpose of improving land grounds divided and inclosed by virtue of under the Godmanchester Inclosure Act. It the said act. But then it is said that this is clear also from the interpretation clause, is a drain which has been altered by widensection 2, that by “sewer” is intended some- ing and deepening it, as found in the award thing of the same kind as "drain.” Again, of the arbitrator; but it appears to me, the provisions in sections 44. and 58. apply sitting as a juryman to decide this case, that to sewers which are used for the purposes this was done by the Commissioners for the of drainage only in the district of the board, profit of the proprietors, and at their not to watercourses which are repairable by expense, as was directed to be done by their the owners and proprietors under 41 Geo. 3. own award, and as might legally be done. I c. 109. s. 10, which is incorporated with the am of opinion that it is within the second local act. It would be a great hardship on exception in section 43. the ratepayers in the town if they were CROMPTON, J.-It is difficult to come to obliged to contribute to the repair and clean- a clear understanding as to this case, but I ing of such a watercourse which is really have arrived at the same conclusion as my used for purposes of agriculture; the benefit Lord. The question is how a jury ought to which they derive from it is very small, and have found, and whether by reason of this yet they would under section 88. have to stream having vested in the board, the duty pay a proportion of the rate amounting to of repairing and cleansing had been thrown three-fourths, while the proprietors, for whose upon them. It is not shewn to my satisfacbenefit it would really be done, would only tion that it has so vested in the local board. pay one-fourth.
I cannot think that such a natural stream, Keane, in reply.The provision in section flowing through and draining agricultural 88. as to the occupiers being assessed in the districts, becomes a sewer simply because a proportion of one-fourth is in favour of the few houses have their drains running into contention for the Crown, inasmuch as it it. I can see nothing to make it a sewer shews that the board have power to levy except what was done by the Commissioners, rates in agricultural districts; and the argu- and that would be done under the act, and ment as to hardship would apply equally to therefore it would come within the second the rates assessed upon landowners for the exception. It would be rather strong to say, benefit of the towns.
that because the Commissioners widened it,
it was made under the local act, and I am COCKBURN, C.J.–Our judgment must be rather doubtful upon that. I should rather for the defendants. I entertain serious say it was done under the sanction of the doubts whether the enactment in section 43. proprietors of the lands. I think that if it was ever intended to include sewers which comes within the 43rd section at all, it also were private property, for we find that by comes within the second exception, and section 44, if the board think fit to take the therefore that the local board are not bound rights vested in any persons of making to repair it. sewers, they may purchase them, and it would SHEE, J.--I am of the same opinion; it be very strange if they could interfere with clearly was not a sewer, throughout the private rights without making any compen- whole of its length, which would vest in the sation for them. Such a power would be very local board under the 43rd section, and even dangerous, and I cannot think that, because if it was, it would be within the exception. a watercourse which passes through agricul
Judgment for the defendants. tural land is partly used for the purpose of draining houses, it becomes altogether a