CT. OF APP.] GAS LIGHT, &C., COMPANY v. VESTRY OF ST. MARY ABBOTTS, KENSINGTON. [CT. OF APP. March 17 and May 4, 1885. for neglect of this duty penalties were imposed (Before Lord COLERIDGE, C.J., Sir J. HANNEN, and by the statute upon the plaintiffs. LINDLEY, L.J.) THE GAS LIGHT AND COKE COMPANY v. THE VESTRY OF ST. MARY ABBOTTS, KENSINGTON. (a) Highway-Repair of streets-Steam rollers-Injury to gas pipes-Statutory rights. The roads and streets within the district of the defendants' authority were vested in the defendants by certain statutes which imposed upon the defendants the duty of repairing them, but did not prescribe any particular method of repair. The defendants used, as the most approved method of repair, both as regards the ratepayers and as regards the public, heavy steam rollers for the repair of the streets. The plaintiffs, a gas company, laid down under the surface of the said streets certain pipes for the purpose of supplying the streets and houses within the district with gas, as they were bound by statute to do. These pipes were laid sufficiently below the surface to support the ordinary traffic, and even ordinary methods of repairing the streets, without iniury, but the steam rollers used by the defendants for the purposes of repair were so heavy as frequently to injure the plaintiffs' pipes. Held, that the plaintiffs were entitled to an injunc tion to restrain the defendants from using steam rollers in such a way as to injure the plaintiffs' pipes. Judgment of Field, J. affirmed. THIS was an appeal from a judgment of Field, J. The plaintiffs, a gas company, brought an action against the Vestry of St. Mary Abbotts, Kensington, for damages for injuries sustained by the mains and pipes of the plaintiffs, laid under the streets within the authority of the defendants, by the negligent and improper use of steam rollers by the defendants in repairing the said streets. The plaintiffs also claimed an injunction to restrain the defendants, their servants, agents, and workmen, from using, or causing to be used, any steam or other roller in such a way as to fracture, damage, or injure, the mains, pipes, or works of the plaintiffs. Certain roads and streets within the parish of St. Mary Abbotts, Kensington, were vested in the defendants, as the vestry of such parish, by various Acts of Parliament, including the Towns Improvement Act 1847 (10 & 11 Vict. c. 34), the Metropolis Local Management Act 1855 (18 & 19 Vict. c. 120), and the Metropolitan Local Management Act 1862 (25 & 26 Vict. c. 102), and under those statutes the defendants were the surveyors of highways within their district, and were bound to maintain and repair the streets and roads within their district, but no particular method of repairing the streets was prescribed by the statutes. Under the surface of such roads and streets the plaintiffs had lawfully laid down certain gas mains and pipes and other works, under the powers contained in various Acts of Parliament, including among others the Gas Works Clauses Act 1847 (9 & 10 Vict. c 15), and the Metropolis Gas Act 1860 (23 & 24 Vict. c. 125), and the plaintiffs were bound by sects. 14, 17, and 22 of the last-mentioned statute to lay pipes and supply gas to the householders along the streets, and also to light the streets of the district, and (a) Reported by A. A HOPKINS, Esq., Barrister-at-Law. For the purposes of convenient access the plaintiffs' pipes were laid at a depth of from twenty to twenty-four inches below the surface of the street, and this depth was found sufficient to enable them to bear without injury the ordinary traffic on the streets, and also ordinary modes of repairing the streets if the steam rollers used for that purpose were not of very great weight. It appeared, however, that about the year 1872 the defendants used a steam roller of fifteen tons in weight, and another steam roller of ten tons in weight, and these rollers, or others of a like weight, they continually used for the purpose of repairing the streets, believing that the use of such steam rollers was the quickest, best, and most economical mode of fulfiling their duty to repair. In consequence of the great weight of these rollers the plaintiffs' pipes frequently sus tained fracture, and finally this action was brought. The action was tried before Field, J., without a jury, in May 1884, and that learned judge gave judgment for the plaintiffs for 51. damages, and granted an injunction in the terms prayed. The defendants appealed. Sir F. Herschell, Q.C. and Muir Mackenzie for the defendants.-The defendants were bound to repair the streets. and to use the best and most economical methods of repair known. This they have done, and if in consequence of performing this lawful act in pursuance of a duty cast upon them by statute they have done some injury to the plaintiffs, the plaintiffs can have no right of action in respect of such injury. It is true the plaintiffs have a statutory right to have their pipes in the streets, but that right must be subordinate to the rights of the defendants, whose duty it is to maintain the streets in a condition fit for use as such, and in whom the soil is vested for that purpose. H. Davey, Q.C. and Webster, Q.C. (Stirling and Danckwerts with them) for the plaintiffs.-The defendants are liable unless they can point to some statutory authority enabling them to do what they have done. It is not enough to point to a general duty to repair the streets. Such powers must be used reasonably; and such a general duty to repair does not enable the defendants to use steam rollers of this abnormal weight. If so, what limit is to be placed on the methods of repair? When some one invents a steam hammer which will repair roads better and more economically than the steam rollers, but which will inevitably break all the gas and water pipes beneath, are the defendants then to be allowed to use it because it may be the best method of repair then known? During the arguments the following cases were cited: Coverdale v. Charlton, 40 L. T. Rep. N. S. 88; 4 Rolls v. Vestry of St. Southwark, George, 13 L. T. Geddes v. Proprietors of Bann Reservoir, 3 App. Hill v. Metropolitan Asylum District Board, 6 App. Truman v. London, Brighton, and South Coast Rail- CT. OF APP.] GAS LIGHT, &c., COMPANY v. VESTRY OF ST. MARY ABBOTTS, KENSINGTON. [CT. OF APP. Powell v. Fall, 43 L. T. Rep. N. S. 562; 5 Q. B. Div. Wallington v. Hoskins, 43 L. T. Rep. N. S. 597; May 4.-The judgment of the Court was read by LINDLEY, L.J.-The plaintiffs in this case seek an injunction to restrain the defendants from using steam rollers so as to injure their pipes, which are laid under the surface of the roads and streets in the defendants' district. Under certain statutes, to which it is not necessary particularly to refer, the roads and streets in question are vested in the defendants, and it is their duty to repair them. No particular method of repairing is prescribed, and, subject to the rights of other people, it may be taken that it is lawful for the defendants to adopt any mode of repairing which they think proper. It appears that since 1872 heavy steam rollers have been used for this purpose, and it is said, we will assume correctly, that their use is advantageous and beneficial both to the ratepayers who have to pay for repairing the streets, and to the public who use them; beneficial to the ratepayers in point of expense, and beneficial to the public because the metalling of the roads is better and more quickly consolidated by steam rollers than by any other known means. Under certain other statutes, to which it is not necessary particularly to refer, the plaintiffs, or their predecessors, have both before and since 1872 lawfully laid down gas pipes under the surface of the defendants' roads and street, and the plaintiffs are entitled to have those pipes there for the purpose of supplying gas to such persons as may desire to be so supplied, and it is material to bear in mind that, although the profits, not exceeding a certain amount, derived by the plaintiffs from the manufacture and supply of gas are divisible amongst the shareholders of the plaintiff company, yet the plaintiffs are bound to supply gas to persons who live in the streets along which their pipes are laid. Speaking generally, the plaintiffs' pipes are laid from twenty to twentyfour inches below the surface of the streets along which they are laid, and this depth is found sufficient to enable them to sustain without injury the ordinary traffic, light and heavy, along the street. The same depth is also sufficient to enable the pipes to remain uninjured by the ordinary modes of repair, if heavy steam rollers are not used. It appears, however, that the steam rollers used by the defendants are so heavy as frequently to injure the pipes of the plaintiffs over which the rollers pass, and this circumstance has given rise to the controversy which we have now to consider. It is obvious from the foregoing statement that the rights of the plaintiffs and of the defendants are to a certain extent conflicting. On the one hand, it is plain that the plaintiffs' right to lay their pipes and have them uninjured is subordinate to the right of the public to use the streets and to have them kept in repair; on the other hand, it is equally plain that the duty of the defendants to the public and their right as against the plaintiffs is to repair the streets and keep them fit for traffic. Now, there is no dispute that the defendants can perform their duty without using steam rollers of such a weight as to injure Solicitors for plaintiffs, Bedford and Williams. Pitt. CHAN. DIV.] TEULIERE AND OTHERS. THE VESTRY OF ST. MARY ABBOTTS, KENSINGTON. [CHAN. DIV. HIGH COURT OF JUSTICE. CHANCERY DIVISION. Aug. 6 and 7, 1885. (Before PEARSON, J.) TEULIERE AND OTHERS . THE VESTRY OF ST. MARY ABBOTTS, KENSINGTON, (a) Metropolis Improvement Act (57 Geo. 3, c. xxix.), s. 20 -Widening street-Part of building required Power of vestry to take whole. The K. vestry passed a resolution that the whole of the buildings and grounds of an orphanage adjoining C.-street prevented their carrying out an improvement consisting in widening the said street, and gave notice to the trustees to treat for the whole. The trustees contended that the vestry were not entitled to take more than they actually intended to throw into the street, and moved for an injunction to restrain the vestry from proceeding under their notice to treat. The orphanage consisted of buildings occupying about a quarter of an acre, and a garden occupying another quarter of an acre. The vestry required to throw into C.-street a strip about thirty feet wide. The exact amount which was so required was disputed, but it was admitted that it would be necessary to cut into and take part of the main building of the orphanage. Held, that, the trustees being willing to sell part of their buildings, the vestry, whether or not they would have had power against an unwilling owner to take part of a building without the whole, could not compel them to sell the whole. ON the 4th July 1883 the Kensington Vestry, acting under the Metropolis Improvement Act (57 Geo. 3, c. xxix.), duly passed a resolution: That for the improvement of Church-street, Kensing ton, it is desirable to widen so much of the said thoroughfare as lies between Duke's-lane and Vicarage-gardens, and the vestry hereby adjudge that the houses, walls, buildings, lands, tenements and hereditaments, or portions thereof, respectively situate on the east side of Church-street, and coloured red and blue on the plan A annexed to the resolution, prevent the widening of the said street, and that the possession, occupation, and purchase of the said respective houses, walls, buildings, lands, and hereditaments, will be necessary for carrying out the said improvement, and that notices be therefore served on the several owners and occupiers of all such properties of whatsoever tenure, kind, or quality, for the purposes aforesaid, as provided by 57 Geo. 3, c. xxix. The hereditaments coloured red on the plan included the whole of the buildings and garden of the St. Vincent's Orphanage. These occupied together an area of about half an acre, bordering on Church-street for about 130 feet. The main building of the orphanage did not extend to the edge of the street, but the space between was occupied with somewhat lower buildings, communicating with the main building, and used as a washhouse and for other purposes of the orphanage. The vestry had not fixed by any resolution the exact distance by which the street was to be widened, but it was asserted and not denied that they would require so much as to compel them to cut into the main portion of the building. On the 20th Aug. 1883 the vestry gave the usual notice to the trustees of the orphanage to treat for the whole of their property. (a) Reported by J. R. BROOKE, Esq., Barrister-at-Law. The trustees refused to convey the whole, insisting that the vestry could not compel them to sell more than the strip which they intended actually to throw into the street. They brought this action on the 8th Sept. 1883, for an injunction restraining the vestry from proceeding under their notice to treat, and now moved for an injunction. The Act of 57 Geo. 3, c. xxix., is intituled, “An Act for better paving, improving and regulating the streets of the metropolis, and removing and preventing nuisances therein." Sect. 80 provides as follows: That for the improvement of the streets and public places in the parochial or other districts within the jurisdiction of this Act, and for the public advantage, it shall and may be lawful to and for the commissioners or trustees, or any other person having the control of the pavements of any parochial or other district, from time to time, and at all times hereafter, to alter, widen, turn, or extend any of the streets or other public places within any such parochial or other district (except turnpike roads), and to lengthen and continue or open the same from the sides of any streets or public places within such or any other parochial or other district, and to raise, level, lower, drain, ballast, gravel, or pave such new part or parts of any such streets or public places so altered, widened, extended, opened, or lengthened as aforesaid, and that if any houses, walls, buildings, lands, tenements, and hereditaments, or any part thereof, shall be adjudged by the said commissioners, or trustees, or other persons as aforesaid, to project into, obstruct, or prevent them from so altering, turning, widening, extending, lengthening, continuing, or opening the said streets or public places within the said parochial or other district, and that the possession, occupation, and purchase of such houses, walls, buildings, lands, tenements, or hereditaments, will be necessary for that purpose, it shall and may be lawful to and for the said commissioners, or trustees, or other person as aforesaid, and that they shall have full power and authority to treat, contract, and agree, or to employ any person or persons to treat, contract and agree with the several owner or owners, occupier or occupiers, of all such houses, walls, buildings, lands, and hereditaments of whatever nature, tenure, kind, or quality, for the purposes aforesaid, and to pay for the same such sum and sums of money as shall be agreed upon by the said commissioners, or trustees, or other persons as aforesaid, and the owner or owners, occupier or occupiers thereof, out of the money to arise and be raised, and to be received by them either by virtue of any local Act or Acts of Parliament relating to such parochial or other district, or of this Act, and to pull down, use, sell, or dispose of such houses, walls, and buildings, and the materials thereof, and lay the sites thereof, and also such other lands, tenements, or hereditaments, or so much thereof as they the said commissioners, or trustees, or other persons as aforesaid shall think proper, into the said streets or other public places, and all such new parts of such streets or public places; and the owners and occupiers of houses and buildings, thereto, shall be subject and liable to all the rates, messuage and other hereditaments therein and adjoining assessments, powers, provisions, orders, clauses and things to be made by virtue of or contained in any local Act or Acts of Parliament relating to such parochial or other district, or by virtue of or contained in this Act, in the same manner as the present streets and public places included in any such local Act or Acts, or within the jurisdiction of this Act, and the owners and occupiers of houses or buildings, and messuages or other hereditaments therein and adjoining thereto. Sect. 96 authorises the commissioners from time to time to sell and dispose of all or any of the freehold or leasehold estates, lands, houses, hereditaments, and premises which shall be conveyed to them in pursuance of the Act or otherwise, provided the said freehold or leasehold estates, &c., so purchased were first offered for sale to the respective person or persons of or from CHAN. DIV.] TEULIERE AND OTHERS v. THE VESTRY OF ST. MARY ABBOTTS, KENSINGTON. [CHAN. DIV. whom the premises respectively were purchased by the commissioners. If such persons elect to purchase, the price, in case of difference, is to be ascertained by a jury. Montague Cookson, Q.C. and Theobald for the plaintiffs.-The vestry have never yet determined how much they mean to widen the street. They must definitely decide on its width before they can possibly determine whether it is better to take the whole of this property or not. But the main question is whether the vestry can give notice to take the whole of a house when they only want a part; and, if so, how large a part they must want to enable them to do so. The case stood over for the decision of Gard v. The Commissioners of Sewers (52 L. T. Rep. N. S. 827; 28 Ch. Div. 487); but the point as to a house was left undecided. The court there decided that the commissioners could not take the whole of a piece of land when they only wanted part, and the notice of the vestry in this case is plainly within that case, so far as it relates to the garden behind the orphanage. As to the house, the adjudication required by the section has two branches. The vestry must first adjudge that part of the house obstructs or prevents the widening, and then, how much of it they ought to take. We cannot say that there could not be a case in which they might fairly adjudge that it was necessary to take the whole; but it is absurd to decide, as they have done, that the whole of this property prevents the widening of the street. We say that they cannot take the whole unless the part they want for the widening includes a vital part of the house, or they are obliged to take the whole in order to pull down the part they want. In Thomas v. Daw (15 L. T. Rep. N. S. 200; L. Rep. 2 Ch. App. 1) the exact point is not decided; but the Lord Chancellor's opinion is clear. He says the words any part thereof" in the section are to be applied to houses as well as to land. This Act was passed merely for parochial purposes, and gives powers to numerous bodies, most of them wholly unknown; it cannot have been intended to give them powers which are practically unlimited. The powers of the vestry are not, as in Galloway v. Corporation of London (14 L. T. Rep. N. S. 865; L. Rep. 1 E. & Ir. App. 34), confined to scheduled lands. 66 Cozens-Hardy, Q.C. and Methold for the defendants. The point has been avoided in all the cases cited; they are none of them in point. Sect. 80 of the Act makes a clear distinction between lands and houses. It empowers the commissioners, or other authority, to pull down the whole of the houses, then lay into the street so much of the sites as they think proper, not as they shall have previously adjudged to be necessary. There is nothing, therefore, in the argument that the vestry cannot take because they have not fixed the exact line for the width of the street. This is not a mere Act for the abatement of nuisances; it is the Act under which all the improvements in the streets of London have been made. It would be remarkable if the plaintiffs' contention prevails. In this case they ask 80001. compensation if the vestry take only the slip, and only 14,000l. if the whole is taken. As to the garden, it is legally part of the house, and if the vestry took the house and left the garden, there would be no access to it. The Act gives an owner no option to insist on the vestry taking the whole, and therefore makes the vestry the sole judges of the amount to be taken. The court will not interfere with the exercise of their powers unless there is mala fides: Stockton and Darlington Railway Company v. Brown, 3 L. T. Rep. N. S. 131; 9 H. of L. Cas. 246. PEARSON, J.-It is unnecessary for me to say that, if I had any hope that I should better understand this Act of Parliament after longer argument than I do now, I would hear further argument. I am not ashamed to say I do not clearly understand it; when the late Lord Chelmsford, Kindersley, V.C., and the Lords Justices of the present Court of Appeal have all found the greatest difficulty in construing this section, I may, I think, shelter myself under what they have said, and say that I find not less but even greater difficulty than they did in construing it. I am not going to read it because it has already been read, and I should not make matters clearer if I read it again. The question here is this: The vestry of St. Mary Abbotts, Kensington, desiring to improve and widen Church-street, and acting under the Act of the 57 Geo. 3, c. xxix. which gives to them powers to widen streets within their district, have given notice to the trustees of the Orphanage of St. Vincent, which the whole of the orphanage for the purpose of abuts upon Church-street, that they desire to take widening the street. The orphanage is a large building running along Church-street for a distance of 133 feet and part of it, that is to say, the part which is used as a washhouse actually abuts upon the street, but what are called the main buildings of the orphanage are at some little distance from the street varying from 11 feet to 14 feet. Behind these buildings are other buildings, and behind these other buildings there are a chapel and garden standing, I think I was told, upon half an acre of land. vestry have given notice that they require the whole of this property, including the garden. It fairness, that the whole of this property is wanted is not alleged, nor could it be alleged with any The to be thrown into the site of the street when the street is widened. All that is wanted, so far as I can make out from the plans before me, does not exceed some 20 or 25 feet. I give credit to the vestry for intending to act with the greatest possible fairness towards the owners of this orphanage. I take it for granted that they have said to themselves: We want so much of these buildings, and a large portion of the buildings must come down. When that has come down, the portion of the orphanage not taken down will be so much less commodious for its present purposes, by the destruction of a large part of the building in which the children are now placed. Under those circumstances, it will only be reasonable to give notice to take the whole of the property, including the whole of the garden at the back. On the other hand, the trustees of the orphanage say: We do not require you to take the whole of this property; it will no doubt be inconvenient to us to be deprived of a portion of the house that we have at present, but we have so much ground behind that we can alter the premises when you have taken down part of the house and still make it suit our requirements. If it will not enable us to take in all the children that we take in at CHAN. DIV.] TEULIERE AND OTHERS 2. THE VESTRY OF ST. MARY ABBOTTS, KENSINGTON. [CHAN. DIV. present, it will, at all events, enable us to take in a considerable number, and we shall possibly be content to reduce the number of children we now take in. The resolution of the vestry is in these words: [his Lordship read it.] Then in the minutebook of the vestry there is a plan which shows the parts coloured red and blue, the part coloured red includes the whole of the property of the orphanage. Now, the owners of the orphanage being willing to sell so much of the buildings and the ground between the buildings and Church-street as are required by the vestry for the purposes of the improvements they are about to make, the question is, are the vestry entitled to take the whole, or must they be content to take the part of the buildings which they actually want, and which the owners are willing to sell. Looking at the section itself only, I should have been at sea as to how I ought to decide this case. But I am assisted by two decisions in the Court of Appeal. One is the decision in Thomas v. Daw (ubi sup.) by Lord Chancellor Chelmsford, and the other is a decision by the present Court of Appeal in Gard v. The Commissioners of Sewers of the City of London (ubi sup.); and by both of these I need not say I am bound. Baggallay, L.J., in dealing with this section, says: "Now in the first place what was the object of the 80th section? We are told by its introductory words that it was passed for the improvement of the streets and public places within the jurisdiction of the Act, and for the public advantage.' Now one can hardly think it was for the improvement of the street, or for the public advantage, that more land should be taken than was wanted for the purpose of improving the streets, and these introductory words appear to indicate the intention of the Legislature." Then I am told by Lord Chelmsford, in his decision of Thomas v. Daw, that "This section is rather obscurely worded, but it appears to me to give the commissioners power, if they please, to take part only of a house or building which may project into, obstruct, or prevent them from altering or widening any street. The words or any part thereof' in the early part of the section clearly apply to houses and buildings as well as to lands. But it is said that those words are dropped as the section proceeds; that, in stating the persons with whom the commissioners are to treat, they are called the owners or occupiers of all such houses, walls, buildings, lands, and hereditaments, without these additional words; and that the commissioners are empowered to pull down, use, sell, or dispose of such houses, walls, buildings and the materials thereof, which it was said must mean the entire houses, &c., not only from there being no qualification of the general words, but from the distinction which is made in what immediately follows between houses and lands by the words and lay the sites thereof (that is of the houses), and also such other lands, &c., or so much thereof as the commissioners shall think proper, into the street or other public places.' I cannot help thinking, however, that, imperfectly as it may be expressed, the words or so much thereof' must be construed to apply to houses as well as to lands, otherwise this absurdity would follow, that the commissioners would be imperatively bound to lay the whole of the sites of the houses into the streets. It appears to me that the subsequent parts of the section do not affect 6 the preceding part so as to strike out altogether the words or any part thereof,' or to render them of no effect." Bowen, L.J., in Gard v. The Commissioners of Sewers, when commenting on that passage in Lord Chelmsford's judgment, says this: "Mr. Graham Hastings contends that they are necessarily bound to adjudicate the whole of this land to be necessary even if they only want a part, while the case of Thomas v. Daw on the other hand, reads into the latter part of the section, the words which occur in its earlier part, or any part thereof.' I do not like saying that they were dropped out per incuriam. I prefer to say that, in my opinion, the general words in the latter part of the section, though different from the general words in the earlier part of the section by the omission of these words or any part thereof,' are nevertheless so wide as to embrace in themselves the part as well as the whole. I admit that this construction is not clear, but it seems to me that the opposite construction is not clear. It would be a very strong thing to clothe the commissioners with an uncontrolled power of taking the whole of the property when they want only an infinitesimal part of it." Then Bowen, L.J. no doubt go on to say: "Our present decision only applies to lands, and it is not necessary for us to decide whether the same rule applies to a house. There may be this distinction between the two cases, that in the case of land nobody can reasonably say it is necessary to take the whole when they only want a part. But it may be that in the case of a house or building it may be necessary to take down all when they only want to use part for the improvements. That will be a question of fact in each case, and I must be understood as reserving myself perfectly free if that question arises hereafter for consideration." Now the use of the word "fact" there is to my mind very material. The Lord Justice does not say there, as he might have said, that the section authorises the commissioners to take the whole of the house, and not part of the house, but he says that in each case it is a question of fact, by which I understand him to mean that from the circumstances of the case you are to judge whether or not a part of the house may be taken, or whether the whole of the house must be taken. In the present case I have not the difficulty which I might have had if the vestry had offered to take part of this house, and the owners of the orphanage required them to take the whole. But, on the contrary, the vestry requiring for the purposes of their improvements only a part of the house, and the owners being willing to let them take that part -only so much as they want and no more—the question which I put to myself is this, Is not this the very case to which Bowen, L.J. refers when he says that in all cases of this kind "it is a question of fact in each case?" If it be a question of fact in each case, then I confess that I have no difficulty in deciding this case, because I think that the owners of the orphanage having so large a space of ground as they have beside the house, and being willing to sell part of the house, so much as the vestry require for the improvement. are entitled to say to the vestry, "We will sell you that part, but not only do we not require you to take the whole, but we forbid you to take the whole." It is to be noticed that in the present case there is nothing but a question of pounds, shillings, and pence between the parties, because |