CHAN.] GOLDSMID V. THE TUNBRIDGE WELLS IMPROVEMENT COMMISSIONERS. tify the view that when an old building is once down any re-erection should be considered as within the meaning of the section of the Act now under review. Savile-house, then, was a building-an old building- which has been pulled down within the meaning of the Act. I now come to the third point, which is as to how the cubical contents of a building should be measured. I should have thought this plain enough, according to the calculation of height, length, and breadth in the usual way. I cannot but say that, as it seems to me, a good deal of somewhat perverse ingenuity has been employed in making that obscure which is sufficiently clear. I am not here to inquire into the methods of calculation employed by professional men, save in so far as I ask myself if they or any of them carry out the intentions of the Legislature. If they do this, I am satisfied. If not, I reject them. I say that what must be calculated is not the solid contents of the containing limits, less the roof and floor, but it must include the space contained within these limits. Take advantage of the shell as an instrument of calculation; it is little more. The methods propounded by the district surveyor and Mr. Nelson, the architect of the building, appear to me equally faulty, inasmuch as both of them ignore the portions of the building contained within the walls, as floors, roofs, staircases, &c. The district surveyor, has, I think, withdrawn his calculation, as based on a faulty method, and he has done well. Of Mr. Nelson's plan it is sufficient to say that its result is a reductio ad absurdum. That gentleman appears to have proved to his own satisfaction that half of Savile-house is standing. I can only say that I was there last week. I saw several large portions of the building represented by walls in a ruinous condition. One portion of a party wall had received a new facing, but I cannot say I had any very robust confidence as to what lay beneath. The fire must have acted very partially indeed if it treated three of the walls in so unhandsome a way, and left the fourth in a sound condition. But to return to our more immediate subject, the method propounded by Mr. Reeves, the surveyor to the Metropolitan Commissioners of Police, has this advantage, that it actually takes account of the cubical contents of the building, and does so in a satisfactory and scientific way, which cannot, as I think, be impeached. If, then, I am right in the view that the term " building " in the Act means the "entire building," and not merely the shell, it is obvious that upon Mr. Reeve's method very considerably more than half the building is gone. Savile-house must be reconstructed according to the conditions imposed by the Act of Parliament, and every portion of such building which is not in conformity with the provisions of the Act now under review must be taken down. Judgment must then go for the district surveyor, which will be in the form of an order to comply with the requisition of the summons in the usual way. [CHAN. Jan. 24, 25, 26, and March 24, 1866. GOLDSMID v. THE TUNBRIDGE WELLS IMPROVEMENT Ancient stream-Sewage-Discharge into stream-Prescriptive right to--Injury-Scientific evidence. When a man has a right to the use of an ancient stream flowing through his land, and sewage matter is so discharged into it as to cause him either present permanent injury, or such injury as from the nature of the case is likely to continue and increase so as to become serious and permanent, the Court will grant an injunction to restrain the discharge. In determining whether the injury is serious or not, the Court will regard all the circumstances that may arise from it; and important amongst these is the effect of the nuisance upon the value of the estate, and the The commissioners under local Acts for such purposes as prospect of dealing with it to advantage. above mentioned have no authority to commit a nuisance upon property lying beyond their jurisdiction under those Acts. And assuming that a right so to discharge sewage might be acquired by prescription, it can only be acquired by a discharge which should prejudicially affect the estate of twenty years' duration. Observations of Turner, L. J. upon scientific evidence in such cases. This was an appeal by the defts. from a decree of the M. R., reported 13 L. T. Rep. N. S. 352, where the circumstances are sufficiently stated. Rolt, Q. C., Baggallay, Q. C., and Renshaw, in support of the decree on behalf of the plt., referred to The Birmingham Canal Company v. Lloyd, 18 Ves. 515; Wood v. Waud, 3 Ex. 748; The Attorney-General v. The Sheffield Gas Consumers' The Attorney-General v. The Mayor, Aldermen, &c., The Attorney-General at relation of the Trustees of Selwyn, Q. C. and John Pearson supported the appeal, and referred to Elmhirst v. Spencer, 2 De G. M. & G. 45; Sleigh said he would take a case under the 106th to show that there is a distinction between a public section. Mr. KNOX.-You are at liberty to do so provided the points raised are purely points of law. The only point before me is as to the meaning of the words "taken down." The builder will, of course, give security for costs, and an undertaking to desist in the meanwhile from all works being the subject of discussion on the present summons. and a private plt. in cases of nuisance. On the question as to the degree of injury upon which this court will interfere, they cited Clarke v. Clark, 13 L. T. Rep. N. S. 482; 1 Law Durell v. Pritchard, 13 L. T. Rep. N. S. 545; At the conclusion of the arguments judgment was reserved until the 24th March, when CHAN.] GOLDSMID V. THE TUNBRIDGE WELLS IMPROVEMENT COMMISSIONERS. [CHAN. are commissioners under local Acts for (amongst | greatly increased as well by the continuance of the other purposes) cleansing and improving that town emptying of the present sewage as by the increased A considerable part of the town is built upon a hill. quantity to be so emptied, as the town of Tunbridge at the foot of which runs a brook called Calverley, Wells increases. And the bill prays an injunction Brook. Some of the drainage from this part of the to restrain the defts. from causing or permitting the town appears to have found its way into this brook sewage to be discharged or flow into the brook, or before the passing of the local Acts; and some time to pollute the water of the plt.'s lake and millafter the passing of those Acts the defts. covered stream, or to injure the health of or injuriously over the brook where it was opposite the town and affect the plt., his family, servants, and tenants. for some little way further down, and built a large The cause was heard before the M. R. in the month sewer there into which the whole drainage of this of November last, and on the 24th of that month part of the town has ever since been and is now his Lordship, after considering the evidence, of carried. The number of houses in this part of which there is a great deal on both sides, made the the town has of late years very much increased, following decree-That an injunction be awarded and in consequence there has been a much greater to restrain the defts. from causing or permitting the quantity of sewage brought into this sewer sewage and other offensive matters draining from than there formerly used to be. This sewage is the town of Tunbridge Wells to be discharged or discharged into the brook, and the quantity so flow into Calverley brook in such manner as indischarged is now very large, amounting at juriously to affect the water of the brook as it flows times to from 200 to 300 gallons per minute. through the plt.'s land, and that the defts. should It is admitted on all hands that at the mouth pay the plt.'s costs, with liberty to apply. It is of the sewer the smell from the drainage thus dis- from this decree that the present appeal has been charged from the brook is most foul and offensive. brought by the defts. The brook thus charged with the sewage runs from the mouth of the sewer for the distance of about a mile and a half through an estate called Colebrook Park Estate, down to a place called the Great Lodge, and in this part of its course it is at some points diverted by means of penstocks (a) or carrier ditches into some meadows by the side of the brook, for the purpose of irrigating and fertilising the meadows. By this process of irrigation much of the sewage is, of course, deposited upon the meadows, but all which is not so deposited returns into the brook, and this process of irrigation is not continued throughout the year. It is discontinued for about two or three months in the summer. At Great Lodge the brook enters the plt.'s estate, and flows across it for a short distance to a mill called Powder Mill, which is worked by it. At the Powder Mill the brook leaves the plt.'s estate and flows for a short distance across other lands; but it then re-enters the plt.'s estate and flows through it down to a lake in the park belonging to the estate, which is distant about three miles and a half from Tunbridge Wells. After passing through this lake it flows down to another mill in the estate called the Priory Mill, which it also works, and soon after passing this mill it leaves the estate and passes down to a place called the Postern, whence it ultimately finds its way into the river Medway. In the month of June 1864 the plt. was informed by his resident agent that the water of the lake was less clear than it ought to be, and that this was considered to be attributable to the Tunbridge Wells sewage being emptied into the Calverley brook. The plt. then instituted inquiries upon the subject, and applied to the defts. to discontinue emptying the sewage into the stream, but without effect, and thereupon, in the month of Nov. 1864, he filed the bill in this cause. The bill charges that the defts. refuse to stop the discharge of the sewage and other offensive matters into the brook, and they allege and pretend that the outfall of the drainage has flowed in the same direction from time immemorial; but the plt. charges that, by reason of the increase of the town and of the improved system of drainage, the drainage flowing into the brook has become loaded with feculent and offensive matter, whereby the water of the brook, and of the plt.'s lake and millstream, has become fouled and contaminated; that previously the water was pure and wholesome, fit for drinking and other domestic purposes, and that the injury has been gradually increasing for the last three or four years, and such injury will be (a) PESSTOCK, a sort of sluice placed in the water of a millpond; a flood-gate.-Todd's Johnson's Dictionary, edit, of 1827. The argument in this appeal turned mainly upon the question whether the discharge by the defts. amounted to or occasioned a nuisance presently affecting the plt.'s estate; and if it did not, then whether the continuance of the discharge would result in producing such a nuisance; and, in either case, whether the nature and extent of the nuisance, present or prospective, was such as that this court ought now to interfere by injunction to prevent the discharge. But in the course of the arguments upon these points it was suggested on the part of the plt. that, unless this court interposed, a prescriptive_right_to discharge the sewage into the stream, to the prejudice of the plt.'s estate, might be acquired by the defts.; and to this argument the answer on the part of the defts. was, that such a prescriptive right, if it could be acquired at all, had been already acquired by them. It will be convenient, therefore, first to dispose of this point, and I am of opinion that the defts. have not acquired any such prescriptive right. I assume, but without meaning to give any opinion upon the point, that such a right might well be acquired; but I think that it could be acquired only by a continuance of the discharge of the sewage prejudicially affecting the estate, at least to some extent, for the period of twenty years; and I think that the evidence sufficiently shows that the discharge has not prejudicially affected the estate for so long a period. This point may, therefore, be laid out of the case. In disposing of the case we may also assume that the fouling of the stream by the defts. amounts to a nuisance at law, and that if this nuisance seriously affects the estate this court ought to interfere to prevent it. There is not, so far as I can find, anything in the provisions of the Acts of Parliament under which the defts. are acting to authorise them to commit a nuisance upon property beyond the range of their jurisdiction. They could not possibly, so far as I can see, be justified in discharging the whole of the sewage of Tunbridge Wells bodily upon land not belonging to them, and lying immediately beyond the limits to which their powers extend; and if they have no right to do this, neither can they, as it seems to me, have the right to send down the sewage upon an estate which, although more distant, would be prejudicially affected by it. We come then to the questions I have already proposed, the first of which-the question of a present nuisance-is properly a question of fact depending upon the weight of the evidence upon one side and upon the other. There are two distinct branches of this evidence: first, what may be called the scientific evidence; and secondly, the evidence which points to the facts as they actually stand. Speaking CHAN.] GOLDSMID V. THE TUNBRIDGE WELLS IMPROVEMENT COMMISSIONERS. [CHAN. liquid sewage passes on and befouls the stream as well above as below the Powder-mill. Then looking to the scientific evidence in connection with the facts that are proved, it seems to me that the evidence of the scientific witnesses on the part of the plt. tends much to corroborate these facts,and that the evidence of the scientific witnesses on the part of the deft. certainly does not displace them. The defts. have attempted to refer the foulness of the water of the brook to other causes; but, in my opinion, the evidence on the part of the plt. far outweighs that upon the part of the defts. upon this branch of the case. Upon the whole, therefore, my opinion is, that the plt. has established the case of nuisance presently affecting the estate by the water of the brook being befouled by the sewage discharged by the defts. into it. Then as to the second question, that of prospective nuisance, I am satisfied upon the evidence that the nuisance in this case has been, and is, increasing, and in all probability will continue to increase; and although I am not prepared to say that if this case rested upon prospective nuisance only, enough is proved to warrant the interference of this court, I am by no means disposed to think that, when some degree of nuisance is proved to exist, and to have been increasing, the court, in determining whether it should interfere, ought not to have regard to the prospect of its further continuance and increase. The interference of the court in cases of prospective injury very much depends, as I conceive, upon the nature and extent of the apprehended mischief, and upon the certainty or uncertainty of its arising or continuing, and the fact of the nuisance having commenced raises a presumption of its continuance. with all possible respect to the scientific gentlemen | before it reaches the Great Lodge; but that the who have given their evidence in this case, and as to whom it is but just to say that they have dealt with the case most ably and most impartially, I think that in cases of this nature much more weight is due to the facts which are proved than to conclusions drawn from scientific investigations. The conclusions to be drawn from scientific investigations are, no doubt, in such cases of great value in aid or in explanation and qualification of the facts which are proved; but, in my judgment, it is upon the facts which are proved, and not upon such conclusions, that the court ought, in these cases, mainly to rely. | I think so the more strongly in this particular case, because it is obvious that the scientific examinations which have been made of the water of this brook must have depended much upon the state of circumstances which existed at the time when these investigations took place. They might well have been affected by the force of the stream at the time of the investigations, and probably by the state of the weather, as tending, or not tending, to the diffusion or dispersion of noxious smells. In my view of this case, therefore, the scientific evidence ought to be considered as secondary only to the evidence as to the facts. How then does this case stand as to the facts in proof? There are many witnesses on the part of the plt., who depose to the fact that, until within the last few years, the water of this brook was fit to be used, and was used, by them for drinking and for domestic purposes, and that it cannot now be so used. Some of these witnesses speak to the state of the water above, and others of them to its state below, the Powder-mill. Three of these witnesses have been cross-examined on the part of the defts., namely, Seabrook, Lower, and Crowhurst. Seabrook's evidence may, I think, be laid out of the case; he speaks to the state of the water at the Priory-mill, and I am not satisfied that the state of the water there to which he speaks can be connected with the sewage. Lower may certainly be said to have been proved by his cross-examination to have gone too far in his affidavit, but the evidence of the other witness, Crowhurst, does not seem to me to have been in any way displaced; but then his evidence, it is to be observed, applies only to the state of the water above the Powder-mill. Other witnesses, however, who speak to the state of the water below that point have not been crossexamined, and I see nothing whatever to affect their testimony, which in my opinion is of much importance, more especially the affidavit of Beecher, who speaks to the state of the water at the Postern. On the part of the defts. there is but little direct evidence as to the state of the water. The Barnetts by their affidavit say that the water of the brook has never been fit for drinking or domestic purposes; but they appear to have lived at Colebrook, and one of them admits that the water is now worse than it used to be. Two others of the witnesses on the part of the defts., who speak to the state of the water at the Powder-mill, say that there has been no difference in it during the last seven years, and that they have not seen any night soil or matter of that description on the pond of the mill. As to the direct evidence on the part of the defts., therefore, it is to be observed that that of the Barnetts does not apply to the former state of the water below Colebrook, and that that of the witnesses as to its state at the Powder-mill does not extend to its state between that point and the Great Lodge. Upon the fair result of the evidence on both sides it appears to me that the just conclusion to be drawn from it is that the solid sewage is almost, if not wholly, deposited before the stream reaches the Powder-mill, if not This brings us to the question whether the nature and extent of the nuisance in this case is such that this court ought to interfere by injunction to prevent it. I have throughout felt this point to be one of some difficulty. I adhere to the opinion which was expressed by the L. C. and myself in the case of the Attorney-General and the Sheffield Gas Consumers' Company, referred to in the argument, that it is not in every case of nuisance that the court will interfere. I think that it ought not to do so in cases in which the injury is merely temporary and trifling; but I think it ought to do so in cases in which an injury is permanent and serious; and in determining whether the injury is serious or not, I think that regard must be had to all the consequences which may flow from it. In this particular case I think that regard must be had not merely to the comfort or convenience of the occupier of the estate, which may only be interfered with temporarily and in a partial degree, but that regard must also be had to the effect of the nuisance upon the value of this estate, and upon the prospect of dealing with it to advantage; and I cannot but think that the value of this estate, and the prospect of advantageously dealing with it, is, and will be, affected by the continuance of this nuisance. Upon this ground, and upon the ground of the water of the brook being rendered unfit for the use of the tenants and occupiers of the estate, I think that the interference of the court in this case was due. The defts. relied, not only by way of bar to the relief, but as evidence of there being no substantial injury, upon the plt. not having earlier applied to the court: but I think the delay in applying to the court is sufficiently accounted for by the evidence. The defts. also relied much upon the case of Elmhirst v. Spencer (ubi supra); but that case seems to me to be quite distinguishable from the present. In that case, as I understand it, the court was of opinion that, as there had been no trial at law, which was necessary according to the then course V.C. K.] THOMAS v. Daw. [V.C. K. of the court, the nuisance was not established, ↑ red line on a tracing inclosed, and on what terms; and, further, that no injury had been proved; but the commissioners also asked whether the plts. were in this case I think there is proof both of the the freeholders, and for other information. The plan nuisance and of the injury. Upon these grounds inclosed showed a strip of seven feet frontage, as my opinion agrees with that of the M.R. in this being the part required by the commissioners. case, and I think that this appeal ought to be dismissed, and dismissed with costs. After some negotiations the commissioners, on the 4th Aug. 1865 sent a notice to treat for No. 49 under the compulsory powers of their Act, whereby they stated that for the improvement of the public thoroughfare, and for the public advantage, they intended to lay into the street part of the land chase the whole site of No. 49; they further required whereon No. 49 lately stood, and intended to pura claim to be sent in in the usual way on the 15th Aug. The plts. accordingly sent in a claim for 6000%. In consequence of the commissioners subsequently serving the freeholder and the plts. with other notices to treat, this bill was filed against their officer, praying as above. The motion for injunction in the course of the argument was turned into a motion for decree. The 80th section of the above Act was as follows: City of London Improvement Commissioners—57 Geo 3, the parochial and other districts within the jurisdiction of this c. xci.-Land required for widening street. The commissioners appointed under the provisions of 57 Geo. 3, c. xci., for the improvement of the City of London, have no power to take a greater extent of ground than they actually require for the purposes contemplated in their Act; although where a house projects into the street, and a portion of it is required by the commissioners for the purpose of widening the street, they may take the whole of that house; but where a portion only of a piece of uncovered ground is similarly required, they can take only the portion required. They have no right to make a profit out of such transactions, in order to benefit the ratepayers. Motion for an injunction to restrain the commissioners of sewers and for the improvement of the City of London from issuing their war rant to the sheriff to impannel a jury to assess the value of the plts.' estate and interest in premises situate at 49 and 50, Threadneedle-street, and from taking any other proceeding under two notices to treat, or either of them. The prayer of the bill also asked that it might be declared that the defts. were not entitled without the consent of the plts. to take possession of the premises or any part thereof. The plts. had been lessees of 50, Threadneedlestreet, from the freeholder, for seventy years; in Nov. 1864, the plts. requiring larger premises, a memorandum of agreement was entered into between the freeholder of both the houses and the plts., whereby the plts. agreed with their lessors that on and after the 25th Dec., when and so soon as the messuages were covered in and finished to the satisfaction of the lessor's surveyors, the lessors would grant a lease of Nos. 49 and 50 to the plts. for sixty years, the lessees covenanting to cover in the messuages within two years, according to the plans, to be approved of by the lessor's surveyor. Under this agreement the plts. commenced pulling down No. 49. The commissioners for making improvements in the city of London, acting under 57 Geo. 3, c. xci., having already widened Threadneedle-street at the east end, wrote by their surveyor to the plts. on the 21st Dec. 1864, and stated that as they were informed that the premises Nos. 49 and 50 were about to be pulled down and rebuilt, they considered that occasion to be a favourable opportunity for further prosecuting the improvements of the public way commenced at the east end of the street, and that they would be glad to know whether the plts. were willing to dispose of so much of the premises as was shown by a Act, and for the public advantage, it shall and may be lawful for the commissioners, or trustees, or other persons having the control of the pavements of any parochialo r other district from time to time and at all times hereafter, to alter, widen, within any such parochial or other district (except turnpiketurn, or extend any of the streets or other public places roads), and to lengthen, continue, or open the same from the sides or ends of any streets or public places within any parowithin such or any other parochial or other district, to raise, chial or other district, into any other street or public place 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 house, wall, buildings, lands, tenements, or hereditaments, or any part thereof, shall be adjudged by the 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, or purchase of such houses, necessary for the purpose, it shall and may be lawful to and wall, buildings, lands, tenements, or hereditaments, will be for the said commissioners, or trustees, or other persons as aforesaid, and they shall have full power and authority to treat, contract, and agree, or to employ any person or persons to treat, contract, or agree with the several owners or owner, occupiers or occupier, of all such houses, walls, buildings, lands, tenements, and hereditament, of whatsoever nature, tenure, kind, and 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 be received by them, either by virtue of any local Act or Acts of Parliament relating to such parochial or other districts or of this Act, and to pull down, use, sell, or dispose of such houses, walls, or buildings, and the material thereof; and buy the sites thereof also, and other lands, tenements, and hereditaments, or so much thereof as the said commissioners, or trustees, or other persons shall think proper, into the said streets or public places; all such new parts of such streets or public places, and the owners or occupiers of the houses, buildings, messuages, and other hereditaments thereon and adjoining thereto, shall be subject and liable to all rates, assessments, powers, provisions, rights, claims, or 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 are within the jurisdiction of this Act, and the owners or occupiers of houses or buildings, messuages, or other hereditaments thereon or adjoining thereto. Glasse, Q. C. and Speed, for the plts., maintained that the commissioners had no power to take more than they wanted for the purpose of widening the street. The court would always restrain public bodies from exercising the powers vested in them unreasonably, and from improper motives. Baily, Q. C. and Pontifex, for the defts.-If this were a question under the Lands Clauses Act, the plts. would no doubt be right in their contention, but the defts. are commissioners for a public improvement, and the intention of the Legislature V.C. K.] THOMAS V. Daw. was in their case different, and sect. 80 of the Act gave them full power to act as they had done. They alleged, in their answer, that they had entered into a pre-contract with St. Thomas's Hospital to sell them the residue of the ground. Glasse, Q. C. in reply. Webb v. Manchester and Leeds Railway Company, 4 Simpson v. South Staffordshire Waterworks, 12 L. T. Jan. 18.-The VICE-CHANCELLOR stated the facts of the case and proceeded:-The plts. do not, nor can they, dispute the right of the commissioners to take so much of the houses as was necessary to effect the widening of the street, and it is agreed between the parties that all that was wanted to be thrown into the street was about seven feet; and, indeed, there is no dispute about any fact in the case; but the plts. say that the commissioners have no right to take more than they really require for the purpose of widening the street; and, on the other hand, the commissioners, admitting they only require the seven feet, still insist that by the powers of their Act they can take the whole of the premises, and having taken the whole and appropriated the strip of seven feet, that they can sell the residue; it being made no secret, but avowed in substance, that by selling the rest, they intend to some extent to recompense themselves, so that no more money than is absolutely necessary may be required of the ratepayers. It is contended that that is their right, and that it was the intention of the Legislature to give them that power. The question, therefore, really turns on the construction of the 80th, 82nd, and 96th sections of the Act; the 80th being that chiefly for consideration. One thing is clear, that that section is most clumsily worded, and, moreover, that at that time of day the Legislature had not got into the practice, as they have of late years, in the case of railways, of making particular provisions on this question, such as that contained in the 92nd section of the Lands Clauses Act. When this Act was passed it was not usual to make such a provision; but whatever was the intention, upon reading the section the clumsiness of the framing is apparent. It extends to all places within the bills of mortality. [The V. C. read the section.] It is contended by the defts. that if the section be taken strictly, it comes to this, that if there be a house, one corner of which projects into the street, the commissioners can take the whole; and so, with respect to any other of the matters specified in the section, such as walls, &c.; and when we come to land where there is no house, and the seven feet is required, the commissioners are authorised, by virtue of the language of this section, in taking the whole, even if it is an acre, and, whatever is on it, or whatever its condition, appropriating the seven feet to widen the street and selling the rest, like a person making a bargain to put money into his pocket. I may observe that, if the commissioners do take the whole of a house or piece of land, the 96th section | [V.C. K. authorises them to sell, and gives a right of preemption to the person from whom it is taken, very much the same as the provision in the Lands Clauses Act and the special railway Acts; but in this Act, so far as I can discover, there is no provision requiring them to sell within a given period; so that the commissioners might hold the surplus land for any time, and it would certainly not be for the future indefinite period, when, perhaps, after all, it advantage of the owner to purchase back at any was not wanted. [Glasse, Q. C.-There is a period of five years limited by a subsequent Act.] Therefore, substantially the right of pre-emption would amount to very little in value, by reason that an occupier under a lease for sixty years might be turned out of his house in the City, and for five years, at least, not be certain whether he would ever get it back; and, if he did, it might probably be saddled with a lease for twenty-one years; so that the compensation for being turned out would become of an inappreciable value, it being at the pleasure of the commissioners. The 82nd section merely prescribes the mode of proceeding if the parties cannot agree, the language being the same, so far, as that in the 80th. Under any circumstances, therefore, it is clear that it is absolutely necessary to have possession for the purpose of selling the surplus lands, as there may be such. Am I therefore to put the construction on the 80th section that the commissioners, knowing that they want the seven-feet strip, and no more, are entitled to proceed to take the whole, in order to make a good bargain, as is avowed by the whole tenor of this case? I do not say that they intend anything wrong; they think it is in the interest of the ratepayers, having no personal interest. I admit, from the clumsiness of the wording of the 80th section, that there is some degree of justification for their contention; but it appears to me that one portion of the section governs the construction, and that the necessity of the property being required for the purpose of widening, embraces and expresses the whole intention of the Legislature, and governs the construction; and I think that, where a house projects partially into a street which is directed to be widened, the Legislature seem to have considered that it is for the interest of the public that the whole should be taken; but where a piece of land is in question-what then is the true meaning of the Legislature? Having regard to the language here used, suppose a man has a strip of land, as he might have, in the outskirts of London, though it might not be abutting on a turnpike-road-it may be an acre or more-and used perhaps by a dairyman who keeps cows, or connected with some trade or manufacture, and suppose it desirable to widen the road to the extent of seven feet or more; it is impossible to say that the Legislature intended that the commissioners, for the benefit of the ratepayers, should have a right to take the whole piece of land and destroy the man's business, not to widen the street, but to ease the pecuniary burden of the ratepayers. Such an extravagant piece of legislation could hardly be intended. It is justly said that there is no distinction between houses, walls, buildings, lands, &c., and no doubt they are all jumbled together, but it appears to me that justice requires that a reasonable construction should be put upon the words with respect to pieces of land which the commissioners can take possession of, and I cannot accede to the argument that the intention of the Legislature was to give them this power in order to make a pecuniary bargain. It is further contended that the commissioners do not stand in the position of a railway company, and should be dealt with in a different manner. I agree that a railway company has not so large a discretion, and |