If a river should happen to be choked up with mud, that would not give the public a right to cut another passage through the adjoining lands. (Ball v. Herbert, 3 T. R. 263; Williams v. Wilcox, 8 Ad. & E. 330; per Denman, C. J.) As to the power of the surveyor of highways to make a road through grounds adjoining to any ruinous or narrow part of a highway, whilst the road is repairing or widening, see post, 528. 3. Of the ownership of the soil, &c. in highways. III. Of the Ownership of the Soil, &c. in Highways. The Queen has nothing but the passage for herself and her people; for the freehold and all profits belong to the owner of the soil, and all the profits, trees, and mines upon and under it. (Goodtitle v. Alker, 1 Burr. 143; 1 Roll. Ab. 392). In 5 & 6 Will. IV. c. 50, s. 82, there is a saving of mines to the owner of lands taken for widening narrow roads. Nor does the soil vest in turnpike trustees, unless there is a special clause in the statute for that purpose. (Davison v. Gill, 1 East, 69. See also R. v. Mersey Navigation, 9 B. & C. 95; Rex v. Thomas, Id. 114). The owner may maintain an ejectment for the soil; (Goodtitle v. Alker, 1 Burr. 133; Doe d. Jackson v. Wilkinson, 5 D. & R. 273; 3 B. & C. 413: and see Scales v. Pickering, 1 M. & P. 195; 4 Bing. 448); or trespass for any other wrongful act done to it or the profits. (Dovaston v. Payne, 2 Hen. Bla. 527; Stevens v. Whistler, 11 East, 51). Waste lands adjoining to public highways are presumed, in the first instance, to belong to the owner of the adjoining land, and not to the lord of the manor; but that presumption prevails only so long as proof to the contrary is wanting. (Steel v. Prickett, 2 Stark. 463). Such presumption arises whether such owner be a freeholder or copyholder. (Doe v. Pearsey, 7 B. & Cres. 304; 9 D. & R. 908, S. C.) Where strips of land lie between a highway and an adjoining inclosure, the prima facie presumption is, that such strips of land, as well as the soil of the highway ad medium filum vix, are the property of the owner of the inclosure, (Cooke v. Green, 11 Price, 736: and see Scoones v. Morrell, 1 Bear. 251; R. v. Edmonton, 1 M. & Rob. 24); but the presumption is to be confined to that extent; for, if the narrow strip be contiguous to, or communicate with, open commons or larger portions of land, the presumption is either done away or considerably narrowed; for the evidence of ownership, which applies to the larger portions, applies also to the narrow strip which communicates with them. (Grose v. West and others, 7 Taunt. 39). It seems that where the herbage of a road becomes vested, by the General Inclosure Act, (41 Geo. III. c. 109, s. 11), in the proprietors of allotments on each side, no presumption arises that the soil itself belongs to such proprietors. (Ŕ. v. Inhabitants of Hatfield, 4 Ad. & E. 156). În this case Lord Denman said, "I do not think that any legal presumption can arise as to the ownership of soil in a road, where the road is defined for the first time under a newly-created authority." (And see R. v. Edmonton, 1 M. & Rob. 24). In ejectment, the question was whether a slip of land between some ancient inclosures and a highway belonged to the owner of the adjoining land, or to the lord of the manor; held, that acts of ownership by the lord (grants of licenses to inclose) over slips skirting the same road, the continuity of which was only broken by a bridge and some ancient tenements, were admissible in evidence; but that grants, made by the lord, of waste lands in other parts of the manor, which were not To whom the freehold of a high way belongeth. Presumption of ownership of soil waste lands adjoining thereto. of highway, and of 4. Repeal of former statutes. Trespassing upon in pursuit of game. Encroachment on waste lands. Soil of navigable rivers. & 6 Will. 4, c. 50 in continuity with the spot in dispute, were not admissible in evidence. (Doe d. Barrett v. Kemp, 2 Scott, 9; 2 Bing. N. C. 102). But, perhaps, if it had appeared that the waste lands then granted by these grants adjoined the same road as the spot in dispute adjoined, and that such road terminated in a common, these latter grants would have been held admissible. (Id.; and see Doe d. Barrett v. Kemp, 5 M. & P. 173; 7 Bing. 332, S. C.) As to trespassing upon a highway, or upon waste lands adjoining thereto, in pursuit of game, see ante, tit. “Game," p. 250. If a person incloses part of the waste, and dies within twenty years, the part so inclosed (except as against the rightful owner) descends to his heir, and does not go to his executor. (Doe d. Pritchard v. Jauncey, 8 Car. & P. 99). If a person takes a farm, and then takes a bit of the waste and annexes it to the farm, he does not take this in for himself, but for his landlord. (Doe d. Harrison v. Murrell, 8 Car. & P. 134). Premises had been inclosed from the waste, with the knowledge of the lord, ten years before the action was brought. Three days before the action was brought, the lord brought down the fences:-Held, be a sufficient revocation of any license which could be presumed from previous acquiescence. (Doe d. Beck v. Parker, 6 Ad. & El. 495). Up to the point reached by the flow of the tide, the soil of navigable rivers was presumably in the Crown; and above that point, whether the soil at common law was in the Crown or the owners of the adjacent grounds, is a point, perhaps, not free from doubt. (See Williams v. W cox, 8 Ad. & E. 333, per Denman, C. J.; Com. Dig. Navigation A. See De Jure Maris, p. 9, post, tit.“ Rivers," Vol. V.) IV. Repeal of former Statutes by the General Highway Act, 5 & 6 Will. IV. c. 50.-Penalties and Contracts under repealed Act. By the 5 & 6 Will. IV. c. 50, intituled "An Act to consolidate and amend the laws relating to highways in that part of Great Britain called England," (31st August, 1835), reciting "whereas it is expedient to amend the laws relating to highways in that part of Great Britain called England, and to consolidate the same in one act, and make other Repeal of 6 Geo. 1, provisions respecting highways:" it is enacted, "That so much of an c. 6, in part, ex cept as to London. of act passed in the sixth year of the reign of King George the First, intituled 'An Act for preventing the carriage of excessive loads of meal, ma bricks, and coals, within ten miles of the cities of London and Westminster, as relates to the carriage of bricks, except so far as the same relates to the city of London; and also an act passed in the eighteenth year the reign of King George the Second, intituled 'An Act to repeal a clause made in the third year of the reign of King William and Queen Mary, relating to carts used by persons inhabiting within the limits of the way bills of mortality, and to allow such carts to be drawn with three horses, and to prevent the misbehaviour of the drivers of carts in streets within the 24 Geo. 2, c. 43, in said limits,' except so far as the same relates to the city of London; and 18 Geo. 2. c. 33, except as to London. part. except as to London. also so much of an act passed in the twenty-fourth year of the reign of King George the Second, intituled 'An Act for the more effectual preservation of the turnpike roads in that part of Great Britain called England, and for the disposition of penalties given by acts of Parliament relating to the highways in that part of Great Britain called England, and for enforcing the recovery thereof; and for the more effectual precenting the mischiefs occasioned by the drivers riding upon carts, drays, cars, and waggons in the city of London and within ten miles thereof,' as relates to the preventing mischief occasioned by the drivers riding upon carts, 4. Repeal of former statutes. 5 & 6 Will. 4, c. 50 30 Geo. 2, c. 22, London; drays, carrs, and waggons in the city of London or within ten miles thereof, except so far as the same relates to the city of London; and also an act passed in the thirtieth year of the reign of King George the Second, intituled An Act to explain and amend an act made in the eighteenth year of his present Majesty's reign, to prevent the misbehaviour of the drivers of carts in the streets in London, Westminster, and the except as to limits of the weekly bills of mortality, and for other purposes in this act mentioned,' except so far as the same relates to the city of London; and also an act passed in the thirteenth year of the reign of King George the Third, intituled 'An Act to explain, amend, and reduce into one act of 13 Geo. 3, c. 78. Parliament the statutes now in being for the amendment and preservation of the public highways within that part of Great Britain called England, and for other purposes;' and also an act passed in the thirty-fourth year of the reign of King George the Third, intituled 'An Act for the more 34 Geo. 3, c. 64. effectually repairing of such parts of the highways of this kingdom as are to be repaired by two parishes;' and also an act passed in the same thirty 42 Geo. 3, c. 90. fourth year of the reign of George the Third, intituled 'An Act for 34 Geo. 3, c. 74. varying some of the provisions in an act of the thirteenth year of his present Majesty's reign, respecting the public highways within that part of Great Britain called England, which relate to the performance of statute duty; and also so much of an act passed in the forty-second year of the reign of King George the Third, intituled 'An Act for amending the laws Part of relating to the militia in England, and for augmenting the militia, as relates to the exemption of any serjeant, corporal, drummer, or private of the militia from performing highway duty, commonly called statute duty; and also an act passed in the forty-fourth year of the reign of King George the Third, intituled 'An Act to alter and amend so much of an 41 Geo. 3, c. 52. act passed in the thirty-fourth year of his present Majesty as relates to the amount of the sums to be paid by persons compounding for the performance of statute duty; and also an act passed in the fifty-fourth year of the reign of King George the Third, intituled 'An Act to amend an act of the 54 Gen. 3, c. 109; thirteenth year of his present Majesty, to explain, amend, and reduce into one act the statutes now in force for the amendment and preservation of the public highways within England, and for other purposes;' and also an act passed in the fifty-fifth year of the reign of King George the Third, intituled 'An Act to amend an act of the thirteenth year of his present and Majesty, for the amendment and preservation of the public highways, in so 55 Geo. 3, c. 68. for as the same relates to notice of appeal against turning or diverting a public highway, and to extend the provisions of the same act to the stopping up of unnecessary roads;' shall be and the same are hereby repealed" (a). pealed acts. Recovery of penalties under offences pealed. against acts re II. "Nothing herein contained shall extend or be construed to ex- Not to revive retend so as to revive or give any force or effect to any act repealed by the said recited acts or any of them, but such acts shall be and continue repealed in such and the like manner as if this act had not been made." III. "Nothing herein contained shall extend or be deemed or construed to interfere with any acts done or contracts or agreements heretofore made under the authority of any of the said recited acts, or to extend to prevent the suing for or recovery of any penalty incurred by any offence committed against the provisions of the said recited acts or any of them previous to the repeal of the said acts in and by this act, or to prevent or defeat any prosecution commenced or to be brought for such offence; but all penalties and forfeitures incurred may be sued for and recovered, and all contracts and agreements may be enforced, and all encroachments, nuisances, and other offences made or committed previous to the repeal of the said acts, against the provisions of the said acts or any of them, may be abated or prosecuted by the (a) Mr. Woolrych questions whether the stat. 2 Edw. III. c. 6, is entirely abrogated by this act, as far as the former VOL. III. relates to the power of justices over cer- Contracts to remain in force. " 6. Repair of. surveyor appointed under this act, in the same manner to all intents and purposes as if this act had not been passed." 5 & 6 Will. 4, c. 50. Interpretation clause. Surveyor." "Parish." See sects. 101, 103, &c., as to the recovery of penalties and forfeitures, post, 608. V. Enterpretation Clause in 5 & 6 Will. IV. c. 50. By 5 & 6 Will. IV. c. 50, s. 5, "in construction of this act the word 'surveyor' shall be understood to mean surveyor of the highways, or waywarden; the word 'parish' shall be construed to include parish, township, tithing, rape, vill, wapentake, division, city, borough, liberty, market town, franchise, hamlet, precinct, chapelry, or any other place or district maintaining its own highways; and wherever anything in this act is prescribed to be done by the inhabitants of any parish in vestry assembled, the same shall be construed to extend to any meeting of inhabitants contributing to the highway rates in places where there shall be no vestry meeting, provided the same notice shall have been given of the said meeting as would be required by law for the assen bling of a meeting in vestry; and that the word highways' shall be understood to mean all roads, bridges (not being county bridges, carriageways, cartways, horseways, bridleways, footways, causeways, churchways, and pavements; and that the word 'justices' shall be understood to mean justices of the peace for the county, riding, division, shire, city, town, borough, liberty, or place in which the highway may be situate or in which the offence may be committed; and that the word 'church' shall be understood to include chapel; and that the word 'division' shall be understood to include limit; and that the word 'owner' shall be understood to include occupier; and ‘inhabitant' to include any person rated to the highway rate; and the words 'petty session' or petty sessions' to mean the petty session or petty sessioLs held for the division or place; and wherever in this act, in describing or referring to any person or party, animal, matter, or thing, the wer importing the singular number or the masculine gender only is used, the same shall be understood to include and shall be applied to severa persons or parties as well as one person or party, and females as well as males, and several animals, matters, or things, as well as one animal, matter, or thing respectively, unless there be something in the subject or context repugnant to such construction; and all the powers hereby given to, and notices, matters, and things required for, and duties, a bilities, and forfeitures imposed on, surveyors, shall be applicabi to all persons, bodies politic or corporate, liable to the repair of any highway." 1. The Liability of the Parish to repair-Highway in Two Paris -Nature of Repairs, &c., p. 515. 2. The like of a Township or Part of a Parish, p. 521. 3. The like of an Extra-Parochial Place, p. 522. 4. The like of Individuals in respect of Inclosure, p. 522. 5. The like of Individuals, &c., by Prescription, &c., p. 523. 7. The Board for the Repair of Highways, p. 526. 8. Power for Board to hire, &c., Premises for keeping of Materia's. &c., and to direct how Ways to be paved, p. 527. 9. Direction-posts, Flood-posts, to be erected, and Causeways secured from Carriages, &c., p. 527. 10. Grounds adjoining Roads, except Gardens, may be used as a tempo- 6. Repair of. rary Road, p. 528. 11. Surveyor to remove Obstructions from Snow or falling down of Banks, &c., p. 528. 1. LIABILITY OF The Parish to REPAIR-HIGHWAYS IN TWO PARISHES NATURE OF REPAIRS, &c. It seems to be agreed, that of common right, (that is, by the common (1). Liability of palaw), the general charge of repairing all highways lies on the occupiers rish to repair. of the lands in the parish wherein they are (a); but particular persons may also be burdened with the general charge of repairing a highway, in two cases, namely, in respect of an inclosure, or by prescription. (1 Roll. Ab. 390; Anon. 1 Ventr. 90; Austin's case, Id. 183; R. v. Ragley, Parish of, 12 Mod. 409; and see the preamble of the now repealed 34 Geo. ÍÍI. c. 64, and post, 522, 523). And to such an extent is this obligation, that if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted, by the provisions of a road act, from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the parish. (R. v. Sheffield, 2 T. R. 106. And see R. v. Oxfordshire, 4 B. & Ald. 194; 6 D. & R. 231, S. C.) And upon the same principle it was holden, that if particular persons were made chargeable to the repairs of such highways by a statute lately made, and became insolvent, the justices of peace might put that charge upon the rest of the inhabitants. (Anon. 1 Ld. Raym. 725). So, where a statute enacted that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose; and another statute, which was passed for paving the streets of the parish, contained a clause that it should not extend to the particular street: it was held, that the inhabitants of the parish were not exempted from their common law liability to keep that street in repair that the duty of repairing might be imposed upon others, and the parish be still liable; and that the parish were under the obligation, in the first instance, of seeing that the street was properly paved, and might seek a remedy over, against the commissioners. (R. v. St. George, Hanover Square, 3 Campb. 222; and R. v. Oxfordshire, 4 B. & C. 194; 6 D. & R. 231, S. C.) Et per Cur., in Bussey v. Storey (1 Ner. & M. 639; 4 B. & Adol. 109):-"It is a mistake to suppose, as was urged in the argument on behalf of the plaintiff in error, that the object of this and other turnpike acts is to relieve parishes and townships from the burden of repairing the highways. Their object is to improve the roads for the general benefit of the public by imposing a pecuniary tax, in addition to the means already provided by law for (a) By an act for inclosing lands in several parishes and townships, it was directed that the allotments to be made A respect of certain messuages, &c., should be deemed part and parcel of the townships respectively in which the mesages, &c., were situate. And the commissioners under the act were directed in their award, to make such orders as they should think necessary and proper cerning all public roads, "and in What township and parish the same are respectively situate," and by whom they ght to be repaired. The commissioner, by their award, directed that there bould be certain roads. One of these, Caused the Sandtoft road, passed between new allotments. The road was ancient, The part of the common over which it Way under the care of commis sioners. |