In nearly every city and town of the United Kingdom, except those where the gas and water undertakings are the property of the urban authority, the town surveyor is constantly annoyed by having some portions of his streets broken up and greatly damaged by the action of the gas or water companies of the district.

With regard to the lasting character of the damage caused to the street by this disturbance of its surface, I shall have something to say in this chapter, but it is first necessary to see what legal powers the companies have to break up the streets, and what powers the surveyor has to enforce the work being properly carried out.

It will be found that the sections bearing upon this point are almost precisely similar in their wording in the following Acts:

“The Gas Works Clauses Act 1847” (10 & 11 Vic. c. 15).

“The Water Works Clauses Act 1847” (10 & 11 Vic. c. 17).

“The Electric Lighting Act 1882” (45 & 46 Vic. c. 56).

but with regard to the powers of the Government to lay telegraph and telephone wires, &c., the clauses are different, and are contained in,

“The Telegraphs Act 1863” (26 & 27 Vic. c. 112).

As the clauses on this subject of “the Water Works Clauses Act” are those which are incorporated with the Public Health Act 1875, I shall select the sections from that Act, the first of importance being as follows:

“The undertakers, under such superintendence as is hereinafter specified, may open and break up the soil and pavement of the several streets and bridges within the limits of the special Act, and may open and break up any sewers, drains, or tunnels, within or under such streets or bridges, and lay down and place within the same limits pipes, conduits, service pipes, and other works, and engines, and from time to time repair, alter, or remove the same, and for the purposes aforesaid remove and use all earth and materials in and under such streets and bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water[125] to the inhabitants of the district included within the said limits; doing as little damage as can be[126] in the execution of the powers hereby or by the special Act granted, and making compensation for any damage which may be done in the execution of such powers” (10 & 11 Vic. c. 17 s. 28).

The next clause deals only with the powers of laying pipes, &c., in private property, and here it will be well to remark that if the water undertaking is in the hands of the urban authority they have much more power of entry for these purposes than companies possess (Vide ss. 16, 18, 32, and 54, 38 & 39 Vic. c. 55), but this is a matter which does not affect the questions dealt with in this chapter.

The next clause is upon the subject of giving the necessary notices, and is as follows:

“Before the undertakers[127] open or break up any street, bridge, sewer, drain, or tunnel, they shall give to the persons under whose control or management the same may be, or to their clerk, surveyor, or other officer, notice in writing of their intention to open or break up the same, not less than three clear days before beginning such work, except in cases of emergency arising from defects in any of the pipes or other works, and then so soon as is possible after the beginning of the work or the necessity for the same shall have arisen” (10 & 11 Vic. c. 17, s. 30).

The next clause is of great importance, as it gives the surveyor the necessary powers to dictate the manner in which the interference with his streets is to be conducted.

“No such street, bridge, sewer, drain, or tunnel shall, except in the cases of emergency aforesaid, be opened or broken up except under the superintendence of the persons having the control or management thereof, or of their officer, and according to such plan[128] as shall be approved of by such persons or their officer, or in case of any difference respecting such plan, as shall be determined by two justices; and such justices may, on the application of the persons having the control or management of any such sewer or drain, or their officer, require the undertakers to make such temporary or other works as they may think necessary for guarding against any interruption of the drainage during the execution of any works which interfere with any such sewer or drain. Provided always, that if the persons having such control or management as aforesaid, and their officer fail to attend at the time fixed for the opening of any such street, bridge, sewer, drain, or tunnel, after having such notice of the intention of the undertakers as aforesaid, or shall not propose any plan for breaking up or opening the same, or shall refuse or neglect to superintend the operation, the undertakers may perform the work specified in such notice without the superintendence of such persons or their officer” (10 & 11 Vic. c. 17, s. 31).

There are several points to which it is necessary to draw attention whilst considering the above clause. I am afraid that the “attendance” of the surveyor “at the time fixed for the opening” or even of one of his assistants could not always be managed, nor would it be practicable to prepare a “plan” for every opening that might be made by a gas or water company for new services, leaks in mains, &c.; but where it is proposed to carry out any extensive works, such as laying a considerable length of new main or removing an old one, it is certainly necessary that there should be some “plan” of the manner in which such work is proposed to be carried out by the company.

On referring to the clause it is evident that the first “plan” mentioned must be prepared by and on behalf of the company proposing to carry out the work, and this plan must show the exact position on each street of the proposed excavations, and their depth, &c., which “shall be approved of by such persons (having the control of the streets) or their officer,” their officer really being the surveyor.

Lower down in the clause another “plan” is referred to in the following words: “or shall not propose any plan for breaking up or opening the same.” This plan, or more correctly speaking, a specification of the manner in which the company shall proceed with the work, must be prepared by the surveyor, and if it meets with the approval of his corporation it can be enforced.

In order to assist town surveyors who may be required to act under this clause, I now give a verbatim copy of a “plan” or specification under which I compelled a gas company to work after they had given me the usual statutory notice of their intention to break up certain macadamised streets for the purpose of removing some disused mains.

Plan of the manner in which the Gas Light and Coke Company shall take up and remove the old mains in street, commencing at or near street.

A trench to be excavated of not greater width than inches and of no greater length than feet at a time.

Great care must be taken to keep the top facing metal separate from the lower formation of the roadway, so that they may not become mixed together; no metal is on any account to be removed from the street.

The mains must be taken up with all possible speed and instantly conveyed away, without being allowed to remain at the sides of the streets.[129]

The trench to be then at once filled in, care being taken to replace all the materials of which the roadway is formed in their proper positions. All extra filling in that may be required owing to the removal of the mains shall be done on the surface with the best stone, broken so as to pass all ways through a ring of 2¹/2 inches internal diameter, the top of the trench being always kept flush with the surface contour of the roadway. No earth, rubbish, or other material shall be allowed to be brought on to the ground by the gas company for the purpose of filling in, nor shall any material of any kind be allowed to be brought from any other excavations that may be being made by the gas company in other parts of the town for the purpose of laying or removing mains.

The filling in to be done in the proportion of one man filling to two men ramming with punners of not less weight than lbs. each. During dry weather a plentiful supply of water must be allowed to run into the trench whilst the filling in is in progress, for the purpose of consolidating the ground.

The traffic must not in any case be impeded, and planks must be placed across the excavations, where necessary, for the convenience of foot passengers.

The work shall if necessary be suspended on market days, or any other days that the surveyor may deem proper for the convenience of the public.

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The next clause of the Act deals with the manner in which the companies shall reinstate and make good the road or pavement, and is as follows:

“When the undertakers open or break up the road or pavement of any such street, or bridge, or any sewer, drain, or tunnel, they shall with all convenient speed complete the work for which the same shall be broken up, and fill in the ground and reinstate and make good the road or pavement, or the sewer, drain, or tunnel so opened or broken up, and carry away the rubbish occasioned thereby; and shall at all times whilst any road or pavement shall be so opened or broken up cause the same to be fenced and guarded, and shall cause a light sufficient for the warning of passengers to be set up, and kept there against every night during which such road or pavement shall be continued open or broken up, and shall after replacing and making good the road or pavement which shall have been so broken up, keep the same in good repair for three months thereafter, and such further time, if any, not being more than twelve months in the whole, as the soil so broken up shall continue to subside” (10 & 11 Vic. c. 17, s. 32).

The conditions embodied in the above clause are easier written than carried out.

It is well known that a trench cut longitudinally through a street takes a very long time to heal. Asphalte shows it the least if there is a good backing of concrete, but all other pavements suffer considerably in the process, as it is almost impossible to maintain their strict contour, and with macadamised roadways the result is simply disastrous.

Opening a macadamised roadway does it more harm than the heaviest and most persistent traffic, and it is surprising for what a length of time the surface will show the treatment it has received.

It is unfortunately the practice generally for the men in the employ of a gas or water company, after laying a pipe, to try and ram into the trench all the material they have removed, without allowing for the cubical contents taken up by the pipe, or if they do condescend to cart anything away it is generally the metal, which they think will come in nicely for the repairs of the trench during their liability for such repairs. What ought to be done is that no filling of ordinary earth, &c., should be allowed to come within at least six inches of the top of the trench, which should then be filled in with good road metal, and as this wears down it should be brought up to the proper level with more metal. In the former plan a hump is seen over the trench, and this hump is a mass of mixed dirt and road-metal for which there is no cure but its entire removal to a depth of at least six inches, and the substitution of good clean road-metal, which would have been the best and most economical plan in the first place.

The clauses following those I have quoted are “penalty clauses” for non-compliance with the provisions of the Act, and need not be here given, but there is one more clause of the Water Works Clauses Act 1847, dealing with the powers of private individuals to break up streets for the purpose of laying service pipes, which it is necessary to give in extenso.

On the question of similar powers to private individuals to break up streets for drains, &c., I shall speak later on in this chapter:

“Any such owner or occupier may open or break up so much of the pavement of any street as shall be between the pipe of the undertakers and his house, building or premises, and any sewer or drain therein, for any such purpose as aforesaid, doing as little damage as may be and making compensation for any damage done in the execution of any such work; provided always, that every such owner or occupier desiring to break up the pavement of any street or any sewer or drain therein, shall be subject to the same necessity of giving previous notice, and shall be subject to the same control, restrictions, and obligations in and during the time of breaking up the same, and also reinstating the same, and to the same penalties for any delay in regard thereto, as the undertakers are subject to by virtue of this or the special Act” (10 & 11 Vic. c. 17, s. 52).

It would also seem that the consent of the urban authority must be obtained (as well as notice given to them) before a street is broken up (38 & 39 Vic. c. 55, s. 149).

Very often, however, the companies prefer to execute all this work themselves, as they do not like anyone else to interfere with their mains or put in services which may be unfitted for the purpose; consequently they give the necessary notices, execute the work themselves, and charge the owner or occupier with the expense.

The powers under which streets are broken up for telegraphic or telephonic purposes are, as I have previously stated, contained in the “Telegraphs Act 1863,” the following being the clauses which refer to this subject:

“The company shall not place a telegraph under any street within the limits of the district over which the authority of the Metropolitan Board of Works extends, or of any city or municipal borough or town corporate, or of any town having a population of thirty thousand inhabitants or upwards (according to the latest census), except with the consent of the bodies having the control of the streets within such respective limits” (26 & 27 Vic. c. 112, s. 9).

“Where the company has obtained consent to the placing, or by virtue of the powers of the company under this Act intends to proceed with the placing of a telegraph under a street or public road, the depth, course and position at and in which the same is to be placed shall be settled between the company and the following bodies:

“The body having the control of the street or public road.

“The body having the control of the sewerage or drainage thereunder.

“But if such settlement is not come to with any such body, the following provisions shall take effect:

“(1.) The company may give to such body a notice specifying the depth, course and position which the company desires.

“(2.) If the body to whom such notice is given does not, within 28 days after the giving of such notice, give to the company a counter-notice objecting to the proposal of the company, and specifying the depth, course and position which such body desires, they shall be deemed to have agreed to the proposal of the company.

“(3.) In the event of ultimate difference between the company and such body, the depth, course and position shall be determined in England or Ireland by two Justices, and in Scotland by two Justices or the Sheriff” (26 & 27 Vic. c. 112, s. 10).

“Subject to any special stipulations made with a company by the body having the control of a street or public road, and to any determinations, orders, or directions of the Justices, or Sheriff, as aforesaid, where the company proceeds to open or break up a street or public road, the following provisions shall take effect.

“(1.) The company shall give to the bodies between whom respectively and the company the depth, course and position of a telegraph under such street or public road are hereinbefore required to be settled or determined, notice of their intention to open or break up such street or public road, specifying the time at which they will begin to do so, such notice to be given in the case of an underground work ten days at least, and in the case of an above-ground work five days at least before the commencement of the work, except in case of emergency, in which case notice of the work proposed shall be given as soon as may be after the commencement thereof.

“(2.) The company shall not (save in case of emergency) open or break up any street or public road except under the superintendence of the bodies to whom respectively notice is by the present section required to be given, unless such bodies respectively refuse or neglect to give such superintendence at the time specified in the notice for the commencement of the work or discontinue the same during the work.

“(3.) The company shall pay all reasonable expenses to which such bodies respectively may be put on account of such superintendence” (26 & 27 Vic. c. 112, s. 17).

It will be seen by the above section that the time required before the work is commenced after service of the notice is considerably longer than that for gas or water mains or for electric lighting wires, and subsection 3 authorises a payment for the services of the surveyor or other officer attending to superintend the work, which is not the case in the other Acts.

The next clauses are as follows:

“Subject to any such special stipulations as aforesaid, after the company has opened or broken up a street or public road they shall be under the following further obligations:

“(1.) They shall with all convenient speed complete the work on account of which they opened or broke up the same, and fill in the ground and make good the surface, and generally restore the street or public road to as good a condition as that in which it was before being opened or broken up, and carry away all rubbish occasioned thereby:

“(2.) They shall in the meantime cause the place where the street or public road is opened or broken up to be fenced and watched, and to be properly lighted at night:

“(3.) They shall pay all reasonable expenses of keeping the street or public road in good repair for six months after the same is restored, so far as such expenses may be increased by such opening or breaking up” ... (26 & 27 Vic. c. 112, s. 18).

“Whenever the permanent surface or soil of any street or public road is broken up or opened by the company it shall be lawful for the body having the control of the street or road, in case they think it expedient so to do, to fill in the ground, and to make good the pavement or surface or soil so broken up or opened, and to carry away the rubbish occasioned thereby, instead of permitting such work to be done by the company; and the cost and expenses of filling in such ground and making good the pavement or soil so broken up or opened, shall be repaid on demand to the body having the control of the street or road by the company, and in default thereof may be recovered by the body having the control of the street or road from the company, as a penalty is or may be recoverable from the company” (26 & 27 Vic. c. 112, s. 19).

“The company shall not stop or impede traffic in any street or public road, or into or out of any street or public road, further than is necessary for the proper execution of their works. They shall not close against traffic more than one third in width of any street or public road or of any way opening into any street or public road at one time; and in case two-thirds of such street or road are not wide enough to allow two carriages to pass each other, they shall not occupy with their works at one time more than fifty yards in length of the one-third thereof except with the special consent of the body having the control thereof” (26 & 27 Vic. c. 112, s. 20).

It will be seen that these are much more elaborate clauses, restricting the rights of the telegraph companies than those of the gas and water companies, &c., and as the Telegraphs Act containing these strict clauses was passed in the year 1863 and the Water Works Clauses Act in 1847, it is fair to assume that the clauses of the Telegraphs Act 1863 were framed to meet certain objections to these clauses and upon experience of their working, and are consequently better and more adapted for the case in point.

To obviate all the difficulties and complications arising out of this constant breaking up of streets, with the attendant inconvenience to the public and damage to the surfaces of the roadways, it was suggested many years ago that subways should be constructed under the surface of the principal streets, in which should be placed all the gas and water mains then existing.

There is no doubt that there are many advantages in this plan as well as some disadvantages. It must be recollected that probably the subways would have been constructed of sufficient capability to carry all the mains and wires then existing, with a margin for future extensions of size, but when we see the enormous growth of many towns, notably that of the metropolis, and the consequent increase necessary in the number and diameters of the mains, it is to be feared that sufficient space would not have been left, and competition between rival gas and water companies might consequently have been crippled.

Still there would be great convenience in many respects if all water and gas mains, telegraph and telephone wires could be carried in subways, as they would be easily accessible for repairs, and hidden leaks would be unknown. With regard to the one great objection so constantly urged, that in the case of a leaky gas main or service a most terrible and damaging explosion might take place, it is true that this is a very grave and serious objection, but it must also be recollected that although this danger may be enhanced by the necessarily solid masonry of which the subway is constructed, still there would be every precaution taken to prevent leakage of gas, and in the present system liability to explosion is not altogether remote. In Percy Street, Tottenham Court Road, only a year or two ago, there was a terrible explosion in trenches and mains which had become full of gas and atmospheric air in the proportions of one volume of gas to fifteen volumes of air, and if gas mains were laid in subways greater precautions would no doubt be taken.

There would be also great danger in conveying the wires used for electric lighting purposes in these subways, as they might fuse and thus cause danger, and at all events they would have some considerably disturbing influence upon the wires of the telegraph and telephone systems, if laid too near.

I will now pass on to consider the powers of individuals to break the surface of public streets for the purpose of putting new drains to their premises or of repairing existing drains.

With regard to the former question I have given full particulars with regard to new drains or connections with sewers in the chapter upon “house drainage,” but with regard to the latter question it will be necessary to make a few remarks.

There is no doubt that the public streets vest in the urban authority, and it is contended that the following clause of the Public Health Act 1875 prevents any person from breaking up any street without their permission, although it is sometimes questioned whether the words “wilfully displaces” do not mean the doing of an illegal act, such as taking up a stone in a street to annoy or injure a neighbour or from sheer mischief, rather than that of a legal act for a proper purpose; the clause in question is as follows:

“All streets being or which at any time become highways repairable by the inhabitants at large within any urban district, and the pavement stones and other materials thereof and all building implements and other things provided for the purposes thereof, shall vest in and be under the control of the urban authority. ... Any person who without the consent of the urban authority wilfully displaces or takes up, or who injures the pavement, stones, materials, fences or posts of or the trees in any such street, shall be liable to a penalty not exceeding five shillings for every square foot of pavement, stones or other materials so displaced taken up or injured; he shall also be liable in the case of any injury to trees to pay to the local authority such amount of compensation as the court may award” (38 & 39 Vic. c. 55, s. 149).

Even, however, granting that application must be made before any individual can break up a street, the urban authority would not be likely to withhold their consent if it was for a legitimate purpose, and having disturbed the street, a person must light and guard the opening, and the “hole,” as it is called in the clauses following must be “filled up or otherwise made secure;” but it is very doubtful if he can be called upon to keep the surface of the road in repair for any length of time, as can be done in the case of water and gas companies, &c.; the following are the clauses in question:

“When any building materials, rubbish or other things are laid or any hole made in any of the streets, whether the same be done by order of the commissioners or not, the person causing such materials or other things to be so laid or such hole to be made, shall at his own expense cause a sufficient light to be fixed in a proper place upon or near the same, and continue such light every night from sun-setting to sun-rising while such materials or hole remain. And such person shall at his own expense cause such materials or other things and such hole to be sufficiently fenced and enclosed until such materials or other things are removed or the hole filled up or otherwise made secure” ... (10 & 11 Vic. c. 34, s. 81).

“In no case shall any such building materials or other things or such hole be allowed to remain for any unnecessary time.” ... (10 & 11 Vic. c. 34, s. 82).

“If any building, or hole, or any other place near any street be for want of sufficient repair, protection or inclosure, dangerous to the passengers along such street, the commissioners shall cause the same to be repaired, protected, or inclosed, so as to prevent danger therefrom, and the expenses of such repair, protection, or inclosure shall be repaid to the commissioners by the owner of the premises so repaired, protected or inclosed, and shall be recoverable from him as damages” (10 & 11 Vic. c. 34, s. 83).

These three sections are incorporated in the Public Health Act 1875, by 38 & 39 Vic. c. 55, s. 160, and the last clause undoubtedly gives power to the urban authority to repair a “hole” which for want of “sufficient repair” is “dangerous to passengers” but not otherwise, in however unsightly a manner the trench may have been repaired.

The result of this uncertainty has been that a great many towns have inserted in their private improvement Acts, clauses making it compulsory upon all persons to give them from 3 to 7 days’ notice of their intention to break up the streets, specifying the manner in which the work shall be done, and also compelling them to deposit a sum of money in order to secure that the repairs of the street are properly executed.[130] A better method than this is to insert in any private improvement Act a clause giving powers to the urban authority to execute all drain-work themselves and charge it upon the owners of the property, thus ensuring that any interference with the surface of the street shall be done in a proper manner by men accustomed to the work, and also that the drain itself shall be of perfect workmanship.

Where the town surveyor has no private improvement Act dealing with this question, it is well to frame some regulations as to the manner in which the notice of intention to break up the surface of the street shall be given to him by the person intending to do the work, and if possible to obtain a deposit of a few shillings as a guarantee that the surface of the street shall be kept in something like decent repair. Although this may not be strictly legal, it is a very universal practice amongst town surveyors.

The following forms of notices are given as specimens of the description of notice now in use, and are copied verbatim from those which are now enforced in a very large borough in this country:

Borough of .

To the Borough Surveyor,

I hereby apply for permission to break up the footway or roadway, and make excavations in for the purpose of , and I hereby undertake to light, watch and fence the place during the progress of the works, to temporarily make good the surface of the footway or roadway, to remove all rubbish, and to execute and complete the work to the satisfaction of the borough surveyor. I also deposit the sum of five shillings for the repair of the surface, and agree to pay the balance if it should cost more than that sum.

Witness and receiver .

Received by accountant 188.

Surface repaired 188.

At a cost of .