Moorabbin Shire v Abbott

[1914] HCA 18

17 C.L.R.] OF AUSTRALIA.

547

is so fixed these elements ai’e extraneous to the rent itself. See,

H. C. or A.

for instance, Cox v. Harper (1).

Besides the straining of the woi’ds which would be necessary to include such elements, it is clear that repairs, which connote

A p p e r l y

F e d e r a lV.

impi'oveinents, and rates and taxes, which depend to some extent COMMIS- upon them, cannot be the subject of simple addition to rent for la^ T ^ s

unimproved land.

-----

Then a further contention was raised, that in arriving at the cavan dubv j .

. . ®

Rich j .

immediate result of unimproved value of the leasehold, the.se elements should be borne in mind. Rates and taxes, .so far as the pos.sessor for sucli a term would be liable in respect of unimproved land, should be taken into account as already mentioned. Repairs are ex vi term ini outside the ambit of the problem.

So far it comes to tliis : that the net value of the leaseliold as already described is, in the ordinary course of things, the amount to be deducted from the total unimproved value of the land for the purpo.se of relieving the freeholder tantu of taxable liability, and of charging the lessee udth it.

When we say “ the ordinary course of things,” we mean that the legislature, regarding the matter from a busines.s aspect, recognizes that rent is ordinarily fixed upon what are sometimes conveniently called “ usual conditions,” or, at all events, upon terms and conditions which may fairly be regarded as compensa­ tion for the interest granted to the tenant.

In Hampshire v. Wiclcens (2) Jessel M.R., adoi^ting Davidson’s Precedents on this point, enumerates “ usual covenants,” which include payment of taxes except those expressly payable bj’ the landlord and also repairs.

We do not say that only those technically “ usual covenants ” are to be included as equivalent for rent within the intention of the legislature, because the proviso, which makes allowance for special circumstances, states expressly to what obligations they are to apply, and we have no power to extend them.

If the tenant is under the “ onerous conditions ” (in other words the burdensome obligations) enumerated, the Commissioner’s powers of allowance arise. If those stated conditions exist, they may or may not give the landlord a larger share of the land than

(1) (1910) 1 Ch., 480.

(2) 7 Ch. D., 555, at p. 561.

548 HIGH COURT

[1914.

H.C. OP A. is represented by the actual rent reserved. The Commissioner,

1914. then, is under an obligation to consider the circumstances, and if

Ap p e r l yhe finds that in his opinion the landlord does or will receive a

V.

F e d e r a l larger share of the land than is represented by the rent, or a more

Comm IS- valuable 23iece of laud than he has let, then the Commissioner is

-iiONER or

to estimate the capital value of the additional value, and add it

L a n d

T a x .

to the capitalized value of the rent already deductible.

Pro

Isaacs J.

Gavan Duffy J.

tanto that increases the taxable liability of the lessor by reducing

Rich J.

that of the lessee.

But the Commissioner is not left at large as to the nature of the onerous obligation to be so considered. I t is not every obligation which in fact enures to the landlord’s benefit, that he is to consider, but only those obligations enumerated.

And a covenant to repair is not in our opinion within those

terms.

The questions should be answered in the negative.

Questions ansivered in the negative.

Solicitors, for the appellant, N unn , Sm ith & Jeffreson.

Solicitor, for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.

B. L.

17 C.L.R.] OF AUSTRALIA.

549

[HIGH COURT OF AUSTRALIA.]

THE PRESIDENT &c. OF THE SHIRE

A p p e l l a n t s ;

OF MOORABBIN

D e f e n d a n t s ,

ABBOTT . .

R e s p o n d e n t .

P l a i n t i f f ,

ON a p p e a l f r o m t h e s u p r e m e c o u r t

o f

VICTORIA.

Local Ooi'ernmenl—Streets on private land—Formation by municipal council— H. C. or A.

Recovery of cost from adjoining owners—Scheme adopted by council—How fa r

1914.

binding—Local Government Act 1903 (Fict.) (Ho. 1893), secs. 526-532.*

M e l b o u r n e ,

* Sets. 526 to 532 of the Local Go­ vernment Act 1903, 8 0 far as material,

deem necessary ; (6) An estimate of the

-.j

i

cost and a scheme of distribution set-

'

provide as follows :—ting forth the names of the persons

.

intended to be made liable, and ap­

526. “ (f) 1“ case (a) Any street lane yard or passage or other premises

proximately the sizes of the pieces of Oav^^Duffy,

formed or set out on private property, land of which they are the owners and Powers JJ.

, . . whether the same respectivelyrespectively and the amounts charge­

is dedicated to the public as a highway

able to each.”

or not, or any part or parts of the 528.

“ (1) Only such of the owners of

same respectively is or are not formed premises fronting adjoining or abutting

. . . . or otherwise made good to on any street lane or passage as by

the satisfaction of the council of the themselves or their tenants have the

municipality, such council may form right to use or commoidy do use the

. . . . or otherwise make good the same shall be liable to pay any portion

same or any part or parts thereof to of the cost of any works executed by

their satisfaction and may either before the council of any municipality under

or after so doing reco\’tr the cost of the powers contained in this Division

so doing from the owners of the pre­with respect to such street lane or

mises fronting adjoining or abutting passage. (2) The owner of premises

upon such parts thereof as may re­which do not actually front adjoin or

quire to be formed . . . . or made abut upon any street lane or passage

good in manner hereinafter appearing.”

shall be liable to contribute to the cost

527. “ (1) The council shall cause to

of works executed by the council of

be prepared—(a) Such specifications the municipality with respect to such

maps plans . . . . as they may

street lane or passage if such owner by

VOL. XVII.

550 HIGH COURT

[1914.

H. C.OF A. Tlie adoption by the council of a municipality, under sec. 532 of the Local

Government Act 1903 (Viet.), of a scheme for apportioning the cost of nnaking a street is binding only upon such of the persons whose names are included in ilOORABBINthe scheme as, being owners of premises fronting, adjoining or abutting on

1914.

Sh ie e

the street, have the right to use or commonly do use the street.

V.•

A b b o t t .The council of a municipality desiring to form a street set out on private

property served the notice required by sec. 529 of the Act on the plaintiff, who was the owner of land abutting on the street but who had not the right to use, and did not commonly use, the street. The plaintiff by letter objected to the scheme and to his name being included in it, but did not attend at the meeting of the council mentioned in the notice. The scheme was adopted and the plaintiff’s name was included in it.

Held, that the plaintiff was not bound by the adoption of the scheme, and

was not liable to contribute to the cost of constructing the street.

Decision of the Supreme Court: Abbott v. President dkc. of the Shire oj

Moorabbin, (1913) V.L.R., 337 ; 35 A .L .T ., 31, affirmed.

A.

PPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by David Abbott, as executor and trustee of the estate of R. K. Bancroft, deceased, against the President, Councillors and Ratepayers of the Shire of

himself or his tenants has the right of sons will be considered as having ad­

using or commonly does use such street mitted that the council have complied

lane or passage as a means of access to with all the requirements of this Act

or drainage from such premises and the and also their respective liabilities as

same is in the opinion of the council

appearing by the said scheme and will

for his advantage or benefit.

(3) Any be in all respects then finally bound

person shall be liable as owner under

and concluded thereby.”

this section who would be liable as an

530. “ Any person interested in or

owner either under the provisions of affected by the proposed work may

any Act for the time being in force re­appear before the council on such date

lating to local government or to the . . . . and object to such specifica­

public health.”

tions maps plans . . . . estimate

529. “ The council shall cause to be

scheme or other particulars or any of

served on every such person intended

them.”

to be made liable notice in writing

531. “ (1) Upon the date so fixed

setting forth : (a) That such specifica­. . . . the council may (a) If no

tions maps plans . . . . estimate person so objects adopt the said specifi­

scheme and other particulars . . . . cations maps plans . . . . esti­

are open for inspection and the esti­

mate scheme and other particulars.”

mated amount of such person’s lia­

532. “ Upon such adoption every

bility ; (6) That on a date therein person upon whom notice has been

mentioned . . . . the council will served and whose name is included in

proceed to consider such specifications such scheme as adopted shall be con­

maps plans . . . . estimate scheme sidered as having admitted that the

and other particulars and the liability council have complied with all the

of such person in respect thereof; (c) requirements of this Act and also his

That any such person may appear on liability to contribute to the work in

such date before such council to raise the proportion adopted by the council

objections thereto ; (d) That in default and be finally bound and concluded

of any such person so objecting the by all the matters aforesaid.”

same will be adopted and all such per­

17 C.L.R.] OF AUSTRALIA.

551

Moorabbin, by which the plaintiff claimed a declaration that the H. C. or A.

defendants were not entitled under Part XIII. of the Local

Government Act 1903, or otherwise, to a charge upon certain land >ioorabbin

Sh ir e

of which the plaintiff was the registered proprietor in respect of

V.

the cost of making certain streets by the Council of the defen­

Ab b o tt .

dant municipality under the provisions of Division 2 of Part XVIII. of the Act; an order for the cancellation of a certain certificate signed by the municipal clerk of the defendants, and i.ssued under sec. 341 of the Act; and an injunction to restrain the Council of the defendant municipality from making or enforcing against the plaintiff, or against the land in question, any claim in respect of the charges for the making of the streets and interest, and from i.ssuing any certificate under sec. 341 wherein claim is made for the amount of such charges and interest. At the hearing Hodges J., with the consent of the parties, made the following reference to the Full Court;—

“ 1. The plaintiff is the owner within the meaning of the Local Government Act 1903, Part XVIII., Division 2, of certain land and premises at Sandringham which abut on Seaview Street and Royal Avenue and situate in the Shire of IMoorabbin, such laud and premises being particularly described in ” certain certificates of title.

“ 2. The said street and avenue were on I7th August 1905 streets set out on private property. The plaintiff had not then any right to use by way of easement, dedication or otherwise and did not commonly use the said streets or either of them by himself or his tenants, and the learned Judge found as a fact that the said street and avenue were not public highways before these pro­ ceedings.

“ 3. The defendants on the said 17th August 1905 duly served upon the plaintiff a notice pursuant to secs. 529, 530, 531 and 532 of the Lmcal Government Act 1903, which notice was put in in evidence and marked E.Khibit C.

“ 4. The plaintiff on 2nd September 1905 wrote to the defen­ dants a letter (wliich was received by the defendants prior to the meeting mentioned in par. 5), which letter was put in in evidence and marked Exhibit D.

“ 5. The defendants on 4th September 1905 duly held a

552 HIGH COURT

[1914.

H.C. OF A. meeting at which a resolution was duly passed for the adoption

1914. certain plans referred to in the said notice of 17th August 1905,

Mo o r a b b in oue appearing at such meeting either in person or a

Sh ir e

solicitor or agent to object to the specifications, maps, plans,

V.

A b b o t t .sections and elevations, scheme and other pai'ticulars, and the

liability of the persons served with the notice prescribed by sec. 529 of the said Act; and subsequently the streets referred to in the said plans were duly made and constructed by the defendants. “ 6. The defendants on 1st December 1905 served upon the plaintiff a notice stating {inter alia) tha t the defendants intended at a meeting to be held on 18th December 1905 to make a special improvement rate for the purpose of carrying out the works referred to in the said plans, which notice was put in in evidence and marked Exhibit E.

“ 7. The plaintiff on 4th December 1905 wrote to the defen­ dants a letter which was received by the defendants prior to the meeting mentioned in par. 8, which letter was put in in evidence and marked Exhibit F.

“ 8. The defendants on the said 18th December 1905 duly held a meeting at which a special impi’ovement charge was dul} ̂ made in accordance with the said notice on 1st December 1905 and in pursuance of Part XXXVI. of the said Act, no one appearing a t such meeting either in person or by a solicitor or agent to object thereto.

“ 9. The plaintiff did not appear persouall}’, or by his solicitor or agent, at either of the said meetings of the defendants.

“ 10. It is agreed that the Full Court is to be at liberty to refer to the said notices and letters, and to any other documents and evidence put in on the trial, and also the facts set forth in the admission of facts made by the parties herein, and the documents referred to in the admission of documents made by tlie parties herein, and to draw inferences of fact,

“ The question for the determination of the Full Court is whether under the circumstances above referred to, assuming that the plaintiff is not otherwise liable to contribute to the cost of forming the said Seaview Street and Royal Avenue, he neverthe­ less became so liable by virtue of the service upon him of the said notices, or of either of them.”

17 C.L.R.] OF AUSTRALIA.

553

Exhibit C, omitting formal parts, was as follows;—

H. C. OF A.

“ To Mr. David Abbott, Chancery Lane, Melbourne.

1914.

“ Notice is hereby given th a t—

Moo ka bbin

Sh ib e

“ 1. The specifications, maps, plans, sections and elevations of the works intended to be carried out by the Council in Royal

V.

Ab b o tt .

Avenue and Seaview Street and the estimate of the cost and scheme of distribution respectively, required by sub-sec. 1 (a) and (b) of .sec. 527 of the Local Government Act 1903, have been prepared in accordance with the provisions of the said section and are open for inspection at the office of tlie Council, South Brighton, during office hours, and will be so available for the inspection of all persons interested in or affected by the work therein mentioned until 4th September 1905.

“ 2. The e.stimated amount of your liability is £29 7s. 5d.

“ 3. The Council will proceed to consider the said specifications,

maps, plans, sections and elevations, estimate, scheme ami other

particulars of your liability in respect thereof, on IMondaj’, 4th

September 1905.

“ 4. You will be at liberty to appear personally, or by your solicitor or agent, before the Council, upon the said 4th September 1905, at 5.30 p.m., to raise objections to the said .specifications, maps, plans, .sections and elevations, estimate, scheme, and other particulars of your liability.

“ 5. In default of your objecting to the specifications, maps, plans, sections and elevations, estimate, scheme, and other par­ ticulars of your liability or any of them, the same will be adopted and you will be considered as having admitted that the Coi;ncil have complied with all the requirements of the Act, and also your liability as appearing by the said scheme, and you will be in all respects therein finally bound and concluded thereb}’.”

Exhibit D, omitting formal parts, was as follows :— instructed by our Mr. David Abbott, as executor of the will of the late Richard Kelsall Bancroft, to state in objection thereto:— “ 1. Your notice is addressed to ‘ Mr. David Abbott, Chancery Lane, Melbourne,’ whereas Mr. Abbott has no personal interest in the property, but is merely the executor of the will of the late

“ In connection with the notice given by you under the Local

554 HIGH COURT

[1914.

H. C. OF A. Richard Kelsall Bancroft, and is so described in the certificate of

title to the land.

̂

“ 2. Under the will of the late R. K. Bancroft his widow is the

Mo o ra bbin

Sh ir e

V.tenant for life, and under the definition of the word ‘ owner ’

A b b o tt .contained in the Local Government Act 1903 the executor is in

no way responsible.

“ 3. The said land, although abutting upon Sea View Street, does not posse.ss any legal right to use the street, and such street is not commonly used by the owner or his tenants, and by reason of sec. 528, sub-sec. 1, of the Local Government Act 1903 there is no liability for any part of the cost of the wmrk referred to. _

“ 4. The said David Abbott does not admit that your Council has complied with all the requirements of the Act, and disputes the scheme referred to in your notice.”

Exhibit E, omitting formal parts, was as follows :—

“ Notice to Owners tha t Council intends to make a Special

Improvement Charge.

“ Notice is hereby given that in order to carry out tlie under­ mentioned works the Council of the Shire of Moorabbin intend, at a meeting of the Council to be held on Monday, 18th December 1905, to make a special improvement charge for the purpose of carrying out the said works.

“ The locality of the property in respect to which the charge is intended to be made is Royal Avenue, Sea View Street, Sims, Tennyson, Ocean, Wave, Station, Service, Deakin Streets, Sand- rino'ham Road, Sandringham.

“ A statement of the proposed charge, together with the speci­ fications, map.s, plans and elevations of the said works and the estimate of cost and scheme of distribution required by sec. 662 of the Local Government Act 1903, has been prepared in accord­ ance with the provisions of the said section, and has been deposited for inspection at the Shire Hall, South Brighton, during office hours, until 18th December 1905.”

Exhibit F, omitting formal parts, was as follows :—

“ Our Mr. Abbott has to-day received notice of the Council’s

intention to make special improvement charge, and a similar

notice received by Mr. George Moir has also been handed to us

by him, as you are now aware that both properties belong to the

17 C.L.R.] OF AUSTRALIA.

555

above estate.

We have to refer you to the objections previously R-

made by us and not yet dealt with by your Council, and we

disclaim all liability for the road-making cost and give you m o o r a b b in

Sh ir e

notice tha t no charge must be imposed upon this property for

V.

such purposes.”

Ab b o t t .

The Full Court held, in answer to the question, that the plaintiff was not liable to the defendants : Abbott v. President &c. of the Shire o f Moorabbin (1).

From this decision the defendants now by special leave appealed to the High Court.

Hayes, for the appellants.

A. H. Davis and Given Dixon, for the respondent, were not called upon.

CrRIFFlTH C.J. Notwithstanding tlie able argument of Mr. Hayes and the dissenting view of Hood J., I confe.ss that I cannot feel any difficulty in coming to a conclusion as to the true inter­ pretation of tliis Act. TJie (juestion arises upon the provisions of the Local Government Act 1903 for making the owners of land benefited by the formation of new streets contribute towards the cost of formation. The scheme is contained in a group of sections, beginning with sec. 526, and being Division 11 of Part XVIII. of the Act, whicii is headed “ Making, &c., streets, lanes, &c., at cost of certain owners.” Sec. 526 provides that “ (1) In case—(a) Any street lane yard or passage or other premises formed or set out on private property, . . . whether the same respectively is dedi­ cated to the public as a highwaj^ or not, . . . is . . . not formed . . . to the satisfaction of the council of the munici­ pality, such council may form . . . the .same . . . to their satisfaction and may either before or after so doing recover the cost of so doing from the owners of the premises fronting adjoin­ ing or abutting upon such parts thereof as may require to be formed . . . ” I will refer next to sec. 528, which provides that “ (1) Only such of the owners of premises fronting adjoin­ ing or abutting on any street lane or passage as b}" themselves or

(1) (1913) V.L.R., 3.37 ; 35 A.L.T., 31.

556 HIGH COURT

[1914.

H. c . OF A. their tenants liave the right to use or commonly do use the same

shall be liable to pay any portion of the cost of any works

Mo o ra bbin executed by the council of any municipality under the powers

Sh ir e

V.contained in this Division with respect to such street lane or

A b b o tt . passage. (2) The owner of premises which do not actually front

Griffith C.J.adjoin or abut upon any street lane or passage shall be liable to

contribute to the cost of works executed by the council of the municipality with respect to such street lane or passage if such owner by himself or his tenants has the right of using or com­ monly does use such street lane or passage as a means of access to or drainage from such premises and the same is in the opinion of the council for his advantage or benetit. (3) Any person shall be liable as owner under this section who would be liable as an owner either under the provisions of any Act for the time being in force relating to local government or to public health.”

An illustration of the effect of sub-sec. 3 is that under the Healtli Acts an agent in receipt of the rents of land is liable as owner.

The effect, therefore, of sec. 528 is to qualify the class of owners mentioned in sec. 526 in three respects; first, it limits the class to such owners of land fronting, adjoining or abutting on the particular street, &c., as commonly use it, or have a right to use it; secondly, it enlarges the class by including certain owners of premises which do not front, adjoin or abut on the s tree t; and, thirdly, it includes another class of persons. Those owners only who come within sec. 528 are struck by sec. 526.

I will next refer to sec. 527, which provides that the council shall cause to be prepared such specifications, maps, plans, &c., as they think necessaiy, and an estimate of the cost and a scheme of distribution setting forth the names of “ the persons intended to be made liable,” and approximately the sizes of the pieces of land “ of which they are the owners respectively,” and the amounts chargeable to each. That provision certainly suggests that the council is limited in selecting the names of the persons intended to be made liable or persons who are the owners of the laud, particulars of which are to be set forth in the notices. The council has the power to include certain persons owning land not fronting the street, but are precluded from including

17 C.L.R.] OF AUSTRALIA.

557

persons wlio have no right to use, and do not commonly use, the H- C. of A.

street. I think that sec. 527, on a fair construction, entitles the council to select, but limits the selection to such persons within

m o o r a b b in

Shtre

the class as they think ought to be charged.

V.

Ab b o tt .

In the present case the respondent was the owner of land fronting two streets, but had not either by himself or his tenants

Griffith C.J.

any right to u.se and did not commonly use them at the time when the proceedings were taken. He did not, therefore, fall within the class described in sec. 528,

Sec. 529 requires notices to be served on “ every such person intended to be made liable.” The reference is to sec. 527. The notice is to set out that the specifications, &c., have been prepared and are open for inspection ; that the council will on a named day proceed to consider, amongst other things, “ the liability of such person in respect thereof that he may appear and object 5 that in default of objection the scheme will be adopted and “ all such persons will be considered as having admitted that the council have complied with all the requirements of this Act and also their respective liabilities as ajjpearing by the said scheme and will be in all respects then tinallj'^ bound and concluded thereby.” Such a notice was served upon the respondent, and he a t once informed the Council that he was not an owner liable within the meaning of sec. 528, because neither he nor his tenants had a right to use or did commonly use either of the streets. The Council disregarded his objection, and he paid no further heed to their notice. They proceeded to adopt the scheme, and thereupon came into operation sec. 532, which provides that “ Upon such adoption every person upon whom notice has been served and whose name is included in such scheme as adopted shall be considered as having admitted that the council have complied with all the requirements of this Act and also his liability to contribute to the work in the proportion adopted by the council and be finally bound and concluded by all the matters aforesaid.” The section does not say that the person shall be taken to have admitted his liability to contribute to the work in the abstract, but to contribute to the work “ in the proportion adopted by the council.” In my judgment that provision must be limited to persons upon whom the council liad the rivht to

558 HIGH COURT

[1914.

H. c. O F A. serve the notice. If the words had been “ to contribute to the work and in proportion ” &c., of course we should be bound to Mo o b a b b in effect to them. But the legislature has not said so, and it

Sh ir e

V.would seem very strange if the legislature, after first rigidly

A b b o tt . limiting the class of persons over whom the council had any Griffith C.J.authority, should then, by language which at best is ambiguous,

give the council authority over other persons not within the class if they did not object. The result in such a view would be that a person who under sec. 528 is not liable, would be made liable, if the council thought he ought to be liable. If the section means that, the council can inquire into the facts. It may be that the street so far from being a benefit to the person .sought to be charged is injurious to him, tha t he has never used it and has no right to use it. But if the council think that he has used it, contrary to fact, or that he has the right to use it, contrary to law, he is to be bound, and the exception contained in sec. 528 would be nugatory. That construction is so improbable that if the words are open to another meaning we should adopt it. So far from the words being capable of more than one meaning, I have come to the conclusion, after hearing the argu­ ments, that the plain meaning of the Act is that, in order that a person may be made liable, he must come within the class of persons from whom, under sec. 528, the council have the right to select, and all that is conclusive is the council’s apportionment of liability between persons who fall within that class.

I think, therefore, that the opinion of the majority of the Supreme Court is right, and that the appeal fails.

I sa a c s J. I quite agree with what has been said by the learned Chief Justice, and my difficulty is to see any real doubt as to the construction of the.se provisions. Division 11 of Part XVIII. is headed with words which are a part of the Act, for .sec. 1 divides the Act into Parts and Divisions. The heading is

“ Making, &c., streets, lanes, &c., at cost of certain owners.”

That

is a very good key to the meaning of the whole Division. The idea which runs through this Divi.sion is that in the case of streets, lanes, yards and passages which are on jJrivate property or are in fact a means of back access to, or of drainage from.

17 C.L.R.J OF AUSTRALIA.

559

property adjacent to them, they may get into such a condition as to be a public danger because they are not properly formed,

drained, paved, or otherwise made good.

Then there are two m o o r a b b is

Sh ir e

alternative methods provided by this Division of removing that

V.

danger. One is under sec. 526. The council may do the work Ab b o tt .

and may require the owners of premises which front, adjoin or

i s M c s .r.

abut upon those pieces of land to pay for doing it. For a moment I pass over the intermediate sections and point to alternative methods. That is provided by secs. 537 and 538. Sec. 537 pro­ vides that if any street, lane, &c., 33 feet wide at least is once formed, levelled, &c., or made good and has been dedicated to the public, then it shall thenceforth be under the care and manage­ ment of tlie council, “ and such owners shall cease to be under the liability imposed by this Division with respect thereto.” Sec. 538 provides as to .streets, &c., less than 33 feet wide or not dedicated to the public, that the council may repair them, &c., at the expense .of the owners of the premises fronting, adjoining or abutting. So that the owners of land, according to its nature, have two methods of meeting their liability. We are only con­ cerned with the first, and I only mention the second because it throws light upon the first. In sec. 526 the description of owners of premises fronting, adjoining or abutting on a street, though it indicates the persons upon whom this liability may justly be cast, is not a complete description. Sec. 527 enables the council to prepare specifications, plans, &c., and an estimate of the cost and a scheme of distribution setting forth the names of “ the persons intended to be made liable.” The persons whose names are to be set forth are to be “ the owners.” Besides them other per.sons may be interested in or affected bj’ the work, and they, by sub-sec. 2, have power to inspect the specifications, plans, &c., and the estimate. I t is contended that the words “ persons intended to be made liable ” may be wider than “ owners.”

But then comes sec. 528, which is almost a proviso upon sec. 526, and by sub-sec. I of it the legislature in effect s a y : “ Although we have just used very large words in sec. 526 to indicate the per.sons who are to be liable for the cost of the works it must be remembered that, in the first place, only such of those persons we have mentioned as have the I'ight to use the street or com-