Under s. 149 of the Public Health Act, 1875, which provides for the vesting in the urban authority of the streets within their district, the question how much above and below the surface of the street vests in the urban authority is determined by reference to what is necessary for the user of the street qua street, without regard to the circumstances under which the site of the street was originally acquired.
Where, therefore, the site of a street which ultimately vested in the defendants as the urban authority under this section was originally conveyed to turnpike trustees in fee simple for the purposes of making a road under the Turnpike Roads Acts,
Held: That the property of the defendants in the site of the street was not thereby enlarged, so as to entitle them to prevent electric wires being carried over the street at a height above the area required for the user of the street.
Decision of Farwell J. reversed
The question was whether the defendant as local highway authority could restrain the running of a power cable by the plaintiff at a height of 34 feet above Regents Park Road in London. The council had acquired property rights in relation to the road by automatic vesting under section 149 of the Public Health Act 1875, the previous owners having been turnpike trustees, who had acquired it for the construction of a road. The fact that the council’s predecessors in title were turnpike trustees did not permit the Court of Appeal to do otherwise than apply the Baird principle to the automatic vesting achieved by section 149, even though the turnpike trustees had acquired their title by conveyance in unqualified terms, so as to have been the owners of the whole of the vertical plane above and below the location of the road. Collins MR said: ‘It seems to me that the standard which determines this question is, not how much the owner has to give, but how much the local authority under the Public Health Act have the right to take.’
[1903] UKLawRpCh 23, (1903) 1 Ch 437
Commonlii
Public Health Act 1875 149
England and Wales
Cited by:
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 10 December 2021; Ref: scu.670329