passing of "The Burnley Improvement Act, 1854," to wit, on the 16th of June, 1854, at the township of Burnley, in the said county, did build, erect, and place a certain building, erection, and thing, to wit, a weir or caul, within fifteen feet of the centre of the bed of the stream of the Brun there, the same being within the limits of the said Burnley Improvement Act, was heard and determined by the justices, the said parties respectively being then present; and, upon such hearing, the justices dismissed the information and complaint, and refused to grant the order so applied for.

Upon the application of the appellant, the following case was stated for the opinion of the Court:

Upon the hearing of the said information and complaint, the Queen's printer's copy of "The Burnley Improvement Act, 1854," was given in evidence; and *proof was given by the appellant, and the *247] fact was admitted by the respondent, that the locus in quo was within the limits prescribed by the Burnley Improvement Act, 1854: and it was further admitted by the respondent that the alleged building, erection, or thing so complained of was placed in the bed of the river Brun by him the said James Barnes, the respondent, since the passing of the said Act, namely, in or about Septembdr, 1859.

It was proved by the appellant that large stones of considerable size and weight had been, about the last-named period, placed by the respondent in the bed of the said river or stream, extending from one side of the said river or stream to the other. Such stones were not placed one upon another, nor cemented together either by lime or cement, or fastened together in any way, but only rested in the river by their own weight, side by side. Upon this state of facts, it was contended by the counsel who appeared on behalf of the appellant, that, according to the true construction of the Burnley Improvement Act, especially the 156th and 158th sections thereof, it was imperative on the justices, without going into any question of merits or damage, to grant an order under the 158th section, requiring the respondent to remove the alleged building, erection, or thing within a certain time, not exceeding one month from the date of the said order; and that they should also order the respondent to pay to the appellant his reasonable costs, to be ascertained and specified as directed by the 158th section of the said Burnley Improvement Act.

It was admitted by the appellant that the river at the point where the alleged building, erection, or thing so complained of was so placed, was and is now upwards of thirty feet wide, and that the said alleged

building, erection, or thing was so placed as aforesaid *about *248] September, 1859; and that no damage is done to the drains or sewers emptying themselves into the said river above the said alleged building, erection, and thing.

It was contended by the attorney on the part of the respondent,first, that the information and complaint ought to have been laid and made within six calendar months from the time when the matter of such complaint and information arose, that is to say, when the stones were so placed as aforesaid in the bed of the river, in accordance with the statute 11 & 12 Vict. c. 43, s. 11 (Jervis's Act), inasmuch as no time is limited by the Burnley Improvement Act, 1854, for making and laying such information and complaint: and, inasmuch as the

alleged building, erection, or thing was so placed about September, 1859, the respondent, by his attorney, contended that the information. and complaint ought to have been laid and made within six calendar months from that date.

Secondly, that the 158th section of the Burnley Improvement Act did not apply to any building, erection, or thing placed in the bed of the river extending from one side to the other; but that the said 158th section and the 159th section of the Burnley Improvement Act were intended only to prevent the owners of land on either side of the said river from encroaching from the sides thereof towards the centre of it, and contracting the said river to a less width than fifteen feet from each side of the river to its centre, or thirty feet in the whole.

Thirdly, that the said stones so laid by the respondent in the bed of the river did not form a building, erection, or thing within the meaning of the said 158th section of the Burnley Improvement Act, inasmuch as the stones were not built, erected, or placed *one upon another, but only laid down in the bed of the river, side [*249 by side.

Fourthly, that the respondent had a right to so place the said stones, because the bed of the river belonged to him; that he was the owner of the land on each side of the river; and that he had a right to take the water to his mill and works which were erected there; that, when the works were erected in 1845, the bed of the river was two feet six inches higher than it now is; and that it so continued until August, 1857, when a great flood occurred, and tore up the bed of the river, lowering such bed at and near the place where the said stones are so placed to the extent of two feet six inches, thereby preventing the water flowing into the respondent's premises for the purposes of his works; and that all that the respondent had done was to replace the bed of the river so washed away, with heavy stones, instead of gravel, which would have been again washed away, in order that the water might run into the respondent's goit as before; and that the said stones were so placed as to be several inches below what had been the bed of the river up to August, 1857, the time of the flood.

It was then proved on behalf of the respondent, that the respondent's mill and works at the locus in quo were at considerable expense erected in 1845, at which period the bed of the river was very nearly level, that he erected on the north side of the river a wall; that, in such wall he placed an iron grating for the water to run through into a goit and reservoir in respondent's adjoining land, for the purpose of admitting water to the mill; that the sill or bottom of such iron grating was nineteen inches below the then bed of the river, in order that the water might run from the river into the goit without any artificial means; and that the water did so run into the goit by simply *keeping the iron grating open, and for that purpose hollowing [*250 out a little a small portion of the bed of the river close to such iron grating for the purpose of admitting water through it to the said goit; that, about the month of August, 1857, whilst the respondent was erecting a shed on the south side of the river, there was a great flood in the said river; that it carried away the soil of the bed of the said river to the depth of about eighteen inches, commencing at a

point about six feet higher up the stream than the said iron grating of the said goit (the said stones so complained of as aforesaid being below the said iron grating), and about three feet in depth at and immediately below the place where the said stones are placed; that, in consequence of the said carrying away of the said soil, the water sank considerably below the sill of the iron grating of the said goit, and that he, the respondent, was therefore unable to obtain water for his said mill, and that thereupon he caused a quantity of loose stones and gravel to be placed in the bed of the said river, so as to replace and fill up what had been washed away, in order that the water might again run into the goit as before; that, from the time of the said flood in August, 1857, to September, 1859, loose stones and gravel were from time to time placed in the bed of the river, to replace such as had been and were continually being washed away by floods, but such deposits of stones and gravel did not raise the bed of the river higher than it was at the time the mill was built; that, to save the trouble of having to go into the water continually to replace such loose stones and gravel, the present large ashlar stones were put in the bed of the river extending from one side to the other, but in such manner as that the highest surface of such ashlar stones is several inches below the surface of the bed of the river as it existed before and up to the time of the said flood; that the said ashlar stones are simply *251] laid level, side by side, not the one upon another; that they are not fastened either with cramps, lime, cement, or any other thing; that they remain there by their own weight; that, if the said stones had not been so placed, the bed of the river would have got lower and lower, to the damage of the foundations of the respondent's works and buildings: and that there now is a considerable fall from the surface of the stones to the river below them, but that such stones did not and do not raise the bed of the river and the surface of the water, so as to interfere with the drainage of the town communicating with the river.

The appellant contended, in reply, that the evidence on the part of the respondent was sufficient in itself to prove the case of the appellant, and moreover that the effect of placing such a "thing" as aforesaid across the river must in the natural course of events prevent the scouring of the river, and be an interruption to the proper flow of the drainage and sewage of the town.

The magistrates were of opinion, as follows:-First, with regard to the first ground of contention on the part of the respondent, they were of opinion that the placing of the stones, if an offence at all, was a continuing one; and that the question could now be gone into by them, notwithstanding more than six months had elapsed since the said placing of the stones.

Secondly, with regard to the second ground of contention on the part of the respondent, they were of opinion that the 158th section of the Burnley Improvement Act only applied to a building, erection, or thing built, erected, or placed so as to make the river of less width in the whole than thirty feet, or so as to make the river of less width than fifteen feet from each side of it to its centre, or so as to obstruct the ancient *course of the stream by raising the bed above its original level.

*252]

Thirdly, with regard to the third ground of contention on the part of the respondent, they were of opinion that, according to the facts proved, what had been so placed in the bed of the river was not a building, erection, or thing within the meaning of the 158th section, inasmuch as the said stones were not and are not placed one upon another, nor are fastened or cemented together, but simply lie in the bed of the river, side by side, by their own weight.

Fourthly, with regard to the fourth ground of contention on the part of the respondent, they were of opinion that he had, under the facts and circumstances proved, a right to replace the bed of the river so proved to have been washed away, and to place the said stones in the then bed of the river in the manner and for the purposes he had done, inasmuch as he was the owner of the bed of the river, and the owner of land and buildings on each side of it, and inasmuch as the highest part of the surface of such stones is several inches below the bed of the river as it existed prior to 1845, and down to August,

1857.

Fifthly, with regard to the contention of the counsel for the appellant that it was imperative upon the magistrates to grant an order under the 158th section, requiring the respondent to remove the alleged building, erection, or thing, without going into any question of merits or damage, they were of opinion that they ought to hear all the facts and circumstances of the case, and to allow the respondent to show cause why such alleged building, erection, or thing should not be removed, and that it was not imperative upon them to grant an order without going into the facts and circumstances of the case; and they were of opinion that they were justified in refusing the application for an order, inasmuch as they were satisfied from

the said several grounds of contention on the part of the [*253 respondent that the alleged building, erection, or thing had not been built contrary to the said 158th section.

And, upon all the facts and circumstances proved, and upon the merits of the case, and for the several reasons above stated, the magistrates were unanimous in refusing the application for an order to remove the alleged building, erection, or thing.

The questions of law arising upon the above statement for the opinion of the Court are those involved in the first, second, third, fourth, and fifth points lastly mentioned, and upon which the magistrates formed their opinions as stated.

Whereupon the opinion of the Court of Common Pleas is asked, whether or not the justices were correct in their determination as firstly, secondly, thirdly, fourthly, and fifthly therein before set out, and as to what further should be done or ordered in the premises.

Manisty, Q. C. (with whom was Dwyer), for the appellant.(a)-The questions raised for the consideration of the Court upon this appeal turn mainly upon the construction of the 156th, 158th, and 159th sections of the Burnley Improvement Act, 1854 (17 Vict. c. lxvii).(a)

(a) The points marked for argument on the part of the appellant were as follows:"That the placing of large stones by the respondent in and across the river Brun in the manner stated in the case, was contrary to the provisions of the 158th section of the Burnley Improvement Act, 1854 (17 Viet. c. lxvii.); and that the justices ought to have granted an erder requiring the respondent to remove them."

The 156th section enacts "that the *Commissioners may

*254] cleanse and scour, as they think fit, the waterways or beds

and courses within the town of the Brun and the Calder." The 158th section, on which the information is laid,-enacts, "that, if any building, erection, or thing shall have been built, erected, or placed within fifteen feet of the centre of the bed of either of the streams of the Brun or the Calder since the 1st of January, 1854, or if any person, by himself or others, at any time hereafter, build, erect, or place any building, erection, or thing within such fifteen feet, the Commissioners shall summon such person to appear before two justices, to show cause why such building, erection, or thing should not be removed; and if the person so summoned fail to appear according to the summons, or fail to show to the satisfaction of the justices that such building, erection, or thing is or has not been built contrary to this enactment, the justices by writing under their hands shall order such person to remove the same within a time specified in the order, not exceeding one month after the date thereof, and shall also order such person to pay to the Commissioners their reasonable costs therein incurred, such costs to be ascertained by two justices, and the amount thereof to be specified in such order; and if such person fail to obey and fully carry out such order, every such person so failing shall forfeit not exceeding 101, and 40s. additional for every day during which such default continues; and the Commissioners may, if they think fit, and without prejudice to the liability of such person to such penalties, do the work required by the order, and recover the expenses as damages." And the 159th section enacts "that nothing in this Act contained shall prevent the owners of the lands adjoining the said streams from arching over the same; provided always that the span of each such arch shall not be of a less width than *thirty *255] feet." The question is whether a person who has placed stones

in the bed of the river in the manner set forth in the case, from side to side, can be said not to have built, erected, or placed a building, erection, or thing therein, within the meaning of the 158th section. It appears, that, in 1857, a violent flood occurred, which scoured the river and took away a considerable portion of the bed of the stream. That state of things continued down to the year 1859, when the defendant did the act complained of. The stones so placed, no doubt, are still some inches below what was the level of the bed of the river as it was before the flood in 1857. But it is submitted that it is no answer for the respondent to say that the bed of the river was at a former time higher than at the time of the committing of the illegal act complained of. [BYLES, J.-The saving clause, s. 196, is not immaterial. That enacts, that "nothing in this Act contained shall in anywise diminish, alter, or prejudicially affect the rights and interests of the owners of the lands adjoining the river Brun within the said town."] The 156th section enables the Commissioners to cleanse and scour the stream. They clearly might, therefore, remove the obstruction placed by the respondent in the bed of the river. The first point urged before the magistrates on the part of the respondent, was, that the information and complaint ought to have been laid within six calendar months from the time of the placing of the building, erection. or thing in the bed of the river. But the offence with