The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the fact that that act involved continued polluting of a river.
Held: There is no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention would be quite untenable. ‘it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships’ House in effect held in the Airdrie case to be a legal impossibility.’
Lord MacMillan said that a water channel may be a sewer though it may carry no sewage and its contents consist solely of innocuous surface drainage. Since any natural stream or watercourse which is still open will almost always contain some surface water, at any rate in or after wet weather, the fact that a flow of water does contain such surface water cannot show that it is a sewer, and cannot transform what was once a watercourse into a sewer.
Judges:
Lord Maugham, Lord Macmillan, Lord Atkin, Lord Roche
Citations:
[1938] AC 204
Statutes:
River Pollution Prevention Act 1876
Jurisdiction:
England and Wales
Citing:
Applied – Airdrie Magistrates v Lanark County Council 1910
Lord Loreburn LC said: ‘But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely . .
Cited by:
Cited – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
Followed – Hanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
Cited – Tinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Raglan Housing Association Ltd v Southampton City Council and Southern Water Services Ltd CA 30-Jul-2007
The claimant sought damages in nuisance from the defendants saying that a channel for which they were responsible flooded causing damage. The defendant appealed a finding that the culvert had become a sewer. It had been a natural stream, but had . .
Lists of cited by and citing cases may be incomplete.
Land, Limitation
Updated: 20 November 2022; Ref: scu.179842
