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6. Repair of. that purpose. The obligation to maintain all public roads (with the exception of those which are to be repaired ratione tenure or clausure) is a public obligation, and in the nature of a public tax. The repairing by parishes or townships of some parts, and by counties of other parts, are merely modes which the law has provided for discharging that obligation. It is their share of the public burden which those districts have to pay, and which is imposed for the general benefit of the community; and tolls are an additional tax for the same purpose."

Ways set out un

sure Act.

And where a highway has been converted into a turnpike road, and placed under the management of trustees, with power to collect tolls to be applied to the repairs; if the way be out of repair, the parish (er township, as the case may be) are the only persons who are liable to be indicted, and must seek their remedy over against the trustees, which they have after conviction by motion for relief against the trustees under the turnpike act, 3 Geo. IV. c. 126, s. 110, (R. v. Netherthong, 2 B. & Aid. 179; George v. Chambers, 11 M. & W. 149, per Alderson, B.; post, tit. "Turnpike.")

By section 9 of the General Inclosure Act, (41 Geo. III. c. 109), der General Inclo- parish, &c., is not liable to repair certain ways set out under that, until the same have been, by justices in special sessions, declared to be fully and sufficiently formed, completed and repaired. Under this section, a road continued, as well as a road newly made, under the award of commissioners of inclosure, must be declared by justices in special sessions to be fully completed and repaired, before the inhsbitants of the district are liable to repair. (Rex v. Hatfield (Inhabs.) 4 Ad. & El. 156. See post, tit. " Inclosure.")

Bridges.

Rivers.

Private ways.

As we have seen, (ante, 502), a bridge may be a highway, (2 Ld. Rom. 1174), but county bridges (a) are not included under that appellation in the present Highway Act, unless specially mentioned. (See the interpretation clause, sect. 5, ante, 514). By the common law, as the inta bitants of parishes are prima facie liable to the repair of highways, so it the absence of other usage, prescription, or statute to the contrary, the inhabitants of counties are liable to the repair of county bridges. (Hart. P. C. B. 1, c. 7, s. 1; Bac. Abr. Bridges; R. v. W. R. Yorkshire, 3 Burr 2594). The county and not the parish is liable to repair the road within 300 feet of the end of a county bridge built before the 20th of March, 1836, (5 & 6 Will. IV. c. 50, s. 21, post, 525, and tit. " Bridges," Vol. I.) On no one is any duty imposed by the common law to do that to a navigable river, which would be analogous to the ordinary repair common highway, viz., to remove obstructions, to clear away sandbanks, and preserve any accustomed channel. (See Williams v. Wilcar, 8 Ad. & E. 329, per Denman, C. J., whilst delivering the judgment the court). However, it is laid down in Hawkins, that if a river be stopped to the nuisance of the country, and none appear bound by prescription to clear it, those who have the piscary, and the neighbouring towns, who have a common passage and easement therein, may be compelled to do it. (1 H. P. C., c. 75. s. 13; see Bac. Ab. tit. “Ñuisance,” (C.), 37 Ass. 10, 2 Roll. Abr. 137).

of a

of

The liability of a parish to repair does not extend to private ways. Even where the commissioners under an inclosure act had authority to order any person to repair the private ways, and they ordered the parish to do it, it was held that the parish was not liable, and that the words of the act must be confined to any persons interested in such ways. (R. v. Cottingham, 6 T. R. 20 (b). See R. v. Richards, 8 T. R. 634; R. v. Edmonton, 1 M. & Rob. 24). If the parish relies on the award of

(a) See R. v. Whitney, 7 C. & P. 208; 3 Ad. & El. 69, post, tit. "Bridges." (b) R. v. Inh. of Enfield, Sitt. ofter H., 1819, cor. Abbott, C. J., MS. 2 Burn's J., 24th ed. 821. Indictment against the defendants for not repairing a road, called Welch's Lane, and the

road over the marshes, leading from the turnpike road at Enfield Wash to the government foundry for small arms. Plea, not guilty. In support of the indictment, it was contended-That this lane was an ancient public highway, and had been repaired by the parish,

5 & 6 Will. 4, c. 50.

such commissioners of inclosure, to shew that the road is not within 6. Repair of. their limits, evidence must be adduced that the notices required by the act were given, or that the subsequent usage had been such as to raise an inference that due notice had been given. If the parish since the inclosure has repaired the road, the inference is unfavourable to the parish. (R. v. Haslingfield, 2 M. & Sel. 558. And see R. v. Washbrook, 4 B. & C. 732; 7 D. & R. 221, S. C.)

By the 5 & 6 Will. IV. c. 50, s. 23, "No road or occupation-way made or hereafter to be made by and at the expense of any individual or private person, body politic or corporate (b), nor any roads already set out or to be hereafter set out as a private driftway or horsepath in any award of commissioners under an inclosure act (c), shall be deemed or taken to be a highway which the inhabitants of any parish shall be compellable or liable to repair, unless the person, body politic or corpo

time out of mind; that the commissioners under the Enfield inclosure act could not abolish it as a public road, without the order of two justices, which they never obtained; that the commissioners had set it out, and improperly called it a private road, but had directed the parish to repair it; that this was not like the Cottingham case, where the parish was not liable to the repair of the road previous to the inclosure, nor had any allotment under the act; for that here the parish of Enfield had always repaired this lane, which led from the turnpike road to the river Lea, and had, also, an allotment under the act, as well as a share of the timber growing on the chase; and that the commissioners were, therefore, justified, when they set out this road, in directing the parish to repair it. Upon the cross-examination of witnesses for the prosecution, it appeared, that at the lower end of Welch's Lane, a gate across a part of the road leading over an ancient inclosure into the marshes, had been occasionally locked; and that the farmers holding lands in the marshes formerly paid threepence or fourpence an acre for carrying their hay through this inclosure; when Abbott, C. J., stopping the counsel for the Crown, said, that unless the prosecutors were prepared to contradict their own witnesses, the case must end:-that a public highway must lead from one town or vill to another, and be free for the passage of all H. M.'s subjects; whereas, it was proved in evidence, that Welch's Lane led only to a farm-house, and that the occupiers of the marshes had paid toll for the liberty of bringing their hay along that part of the road over the ancient inclosure; and as to the repairs heretofore done to Welch's Lane, it appeared that the tenant of the farm got into the office of surveyor, and put his hand into the parish purse to repair his owen road; this, therefore, never was a public highway. The general inclosure

act, which passed on the same day as the Enfield inclosure act, directs that all roads over lands to be inclosed, not set out by the commissioners, shall be deemed part of the lands to be inclosed; the commissioners did set out this road, but expressly set it out as a private road; the parish, therefore, was not bound to repair it. Verdict, not guilty.

(a) See the observations of Mr. Woolwrych on this enactment in his Treatise on the Highway Act, p. 25, &c. By a local act for the better governing the parish of Paddington, it was enacted, that no road which had not been repaired by the parish should be repaired out of the parochial funds until such road should have been surveyed by two surveyors, and certified by them to have been properly formed, constructed, made, and drained, one of the surveyors to be appointed by the vestry, and one by the freeholder or his lessee. A road had beeu set out by the proprietors for the purpose of letting the frontage, 5660 feet, as building ground. Eight houses had been built and were inhabited, and twenty-six carcases erected. The road had been formed and constructed, made and drained, and used by the public for six months, and the freeholder and his lessee had appointed a surveyor, and required the vestry to appoint one, which they refused to do. The court, in the exercise of its discretion, refused to grant a mandamus to the vestry to compel them to appoint a surveyor, inasmuch as such appointment would have the effect of throwing on the parish the burden of repairing a road, which would not be so much for the benefit of the public as for the peculiar benefit of the freeholder during the time his buildings were erecting. (R. v. Paddington, 9 B. & C. 456). This case was decided before the passing of the above act.

(b) As to the dedication of roads to the public, see ante, 505.

(c) See post, tit. "Inclosures."

New highways when they are to by parishes (4).

be kept in repair

5 & 6 Will. 4, c. 50.

6. Repair of rate, proposing to dedicate such highway to the use of the public, shall give three calendar months' previous notice in writing to the surveyor of the parish of his intention to dedicate such highway to the use of the public, describing its situation and extent (a), and shall have made or shall make the same in a substantial manner, and of the width required by this act (post, 564), and to the satisfaction of the said surveyor and of any two justices of the peace of the division in which such highway is situate in petty sessions assembled, who are hereby required, en receiving notice from such person or body politic or corporate, to view the same, and to certify that such highway has been made in a substan tial manner, and of the width required by this act, at the expense of the party requiring such view (b), which certificate shall be inrolled (c) at the quarter sessions holden next after the granting thereof, then and in such case, after the said highway shall have been used by the pub lic (d), and duly repaired and kept in repair by the said person, boy politic or corporate, for the space of twelve calendar months, such highway shall for ever thereafter be kept in repair by the parish in which it is situate: Provided nevertheless, that on receipt of such notice aforesaid, the surveyor of the said parish shall call a vestry meeting the inhabitants of such parish, and if such vestry shall deem such hig way not to be of sufficient utility to the inhabitants of the said parish to justify its being kept in repair at the expense of the said parish, ay one justice of the peace, on the application of the said surveyor, summon the party proposing to make the new highway to appear before the justices at the next special sessions for the highways to be held in and for the division in which the said intended highway shall be situate; and the question as to the utility as aforesaid of such highway shall be determined at the discretion of such justices.”

Proviso as to determining utility of highway.

Parish in two couaties.

Highway in two parishes.

Justices to determine what parts shall be repaired by cach parish.

shali

This enactment does not apply to roads completely public by dedication before the passing of the act; but it applies to roads then made and in progress of dedication. (R. v. Westmark, 2 M. & Rob. 305).

If a parish lie within two counties, and a highway lying in one part be out of repair, the indictment must not be against that part only, bat against the whole; (R. v. Clifton, 5 T. R. 498); though, indeed, R. V. Weston (4 Burr. 2507) was to the contrary. The indictment, it seems must be preferred in that county wherein the part of the highway out of repair lies. (R. v. Clifton, supra, Id.)

Where a road lay in two parishes, and no division and allotment under the 34 Geo. III. (infra) had been made, it was held, that an indictment against one parish for not repairing one side of the road ought to have stated, that the parish was liable to repair ad medium filum rit. (R. v. St. Pancras, Peake, N. P. 219).

Two parishes being separated by the river Tamar, Patteson, J., held. that the medium filum was the presumptive boundary between the (1 M. & Rob. 393).

of

The following provisions of the 5 & 6 Will. IV. c. 50, which are taken from the 34 Geo. III. c. 64, have been passed for the purpose ascertaining the boundaries of parishes which pass across highways, and thereby enforcing the above common-law liability to repair.

Stat. 5 & 6 Will. IV. c. 50, s. 58, reciting, "Whereas it frequently happens that the boundaries of parishes pass across or through the middle of a common highway, and one side of such highway is situated in one parish, and the other side in another parish, whereby great inconve niences often arise in repairing the same;" enacts, "That the justices at a special sessions for the highways, on complaint (e) of any surveyor any parish, (stating in writing, and on a plan thereunto annexed, that there is such a highway, one side whereof ought to be repaired by one

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of

being a ministerial act. (De Ponthies
v. Pennyfeather, 5 Taunt. 634).

(d) See ante, 508.
(e) See form, post, No. 11.

5 & 6 Will. 4, c. 50.

parish and the other side by another, and particularly deseribing the 6. Repair of. same by metes, bounds, and admeasurements thereof), may issue their summons (a), with a copy of such writing and plan thereunto annexed, to the surveyor of such other parish, to appear before them on a day mentioned in such summons; and if the parties appear, such justices may then proceed finally to decide the matter, in manner herein mentioned, in case all the parties shall consent thereto; but in case the surveyor summoned shall not appear on such first summons, or appearing shall require further time, such justices shall adjourn the further consideration of the matter for any further time, not more than twentyone days nor less than fourteen days from the date of such adjournment, of which the surveyor not appearing, or appearing shall require further time, shall have notice, on which day the said justices shall proceed to hear the parties and their witnesses, and, whether the party summoned does or does not appear, shall proceed to examine and finally determine the matter in form following; (that is to say), that it shall and may be lawful for such justices, and they are hereby required to divide the whole of such common highway, by a transverse line crossing such highway, into equal parts, or into such unequal parts and proportions as, in consideration of the soil, waters, floods, and inequality of such highway, or any other circumstances attending the same, they in their discretion shall think just and right, and to declare, adjudge, and order that the whole of such highway, on both sides thereof, in any of such parts, shall be maintained and repaired by one of such parishes, and that the whole thereof on both sides, in the other of such parts, shall be maintained and repaired by the other of such order to be filed parishes, and shall cause such their order, and a plan of such highway, and the allotment thereof as before mentioned, to be fairly delineated on paper or parchment, and filed with the clerk of the peace (b) of the county in which such highway shall happen to lie, and shall also cause such posts, stones, or other boundaries to be placed and set up in such highway as in their judgment shall be necessary for ascertaining the division and allotment thereof: Provided nevertheless, that in the case of Proviso in case of any such last-mentioned highway, the repair of any part of which be- highway repaired longs to any body politic or corporate, or to any person, by the reason tenuræ, &c. (c). of tenure of any lands, or otherwise howsoever, the same proceedings may be adopted, but the said body politic or corporate, or person, or some one on their behalf, may appear before such justices, and object to such last-mentioned proceedings, in which case the said justices shall, before they divide such highway as aforesaid, hear and consider the objection so made, and determine the same."

It should seem, a material variance between the order made by the parties under this clause, and the one filed by the clerk of the peace, would be fatal to the whole proceeding. By a private inclosure act the commissioners were directed to fix and settle the boundaries of a parish in a certain manner therein specified, and to advertise in a provincial newspaper a description of the boundaries so fixed and settled. The boundaries so fixed and settled were also to be inserted in the award of the commissioners, and to be finally binding and conclusive. The commissioners having fixed and settled the boundaries in the mode specified, duly advertised a description of them, but the boundaries mentioned in the award differed from those which had been advertised. It was held, that the commissioners had not pursued the authority given by the act, and that their award was not binding as to the boundaries of the parish. (R. v. Washbrook, 7 D. & R. 221; 4 B. & C. 732; and R. . Haslingfield. 2 M. & Sel. 558; and vide ante, 517);

Mr. Woolwrych, in his Treatise on the Highway Act, p. 71, observes, that, the case of a union seems to have been overlooked in the above

(a) See form, post, No. 12.

(b) See the form of the order, post, No. 13.

(e) This proviso was not in the 34 Geo. III. c. 64.

with clerk of

peace.

by party ratione

5 & 6 Will. 4, c. 50.

6. Repair of sections. The surveyor, in that event, has no power except that of levying the rate; and the only way in which the clause can be accommodated to take in the district surveyor, is by supposing that the second parish lies out of the union. Otherwise, as he cannot give notice to himself, the section is totally inapplicable; and indeed we may be warranted in asserting that the legislature never contemplated the case of unions in this particular.

Parishes, &c., bound to repair the part so allotted.

Costs of proceed

Sect. 59. "From and after such order and plan shall be so filed with the clerk of the peace as aforesaid, such parishes, and body politic or corporate, or person aforesaid respectively, shall be bound as of com mon right to maintain and keep in repair such parts of such highways so allotted to them as aforesaid, and shall be liable to be proceeded against for neglect of such duty, and shall in all respects whatsoever be liable and subject to all the provisions, regulations, and penalties contained in this act, and also shall be discharged from the repair of such part of such highway as shall not be included in their respective allotment."

Sect. 60. "All costs, charges, and expenses to be incurred by reason ings how defrayed, of any of the proceedings last mentioned shall be borne and defrayed by such two parishes, or body politic or corporate, or person aforesaid, the same being settled and ascertained and duly apportioned between such parishes by such justices; and in case the said parties shall refuse or ne glect to pay and discharge their respective share of such costs and expenses, it shall and may be lawful for the justices at a special sessions for the highways to levy the same by distress and sale, with costs of such distress, on the goods and chattels of any surveyor of the parish, or of any body politic or corporate, or person aforesaid, so refusing or neglect ing to defray such costs and charges as aforesaid.”

Boundary of counties, &c., not to be changed, except for the purpose aforesaid.

Charging parish with repair of highway lying out of it.

Way repairable ratione tenure.

Ways diverted, &c.

No agreement can

from liability to repair.

Sect. 61. Nothing herein contained shall extend, or be construed to extend, to affect, change, or alter in any manner whatsoever any bonda ries of counties, lordships, hundreds, manors, or any other division of pub lic or private property, nor the boundaries of any parishes or townships, otherwise than for the purpose of amending and keeping in repair such particular portion of the highway in the manner herein mentioned.". In order to charge a parish with the repair of a highway lying in another parish, some consideration must be shewn, and mere prescription is not sufficient. (R. v. St. Giles, 5 M. & Sel. 260 ; R. v. Bishop Auchland, 1 Ad. & E. 744, post, 593).

Upon what terms a highway, repaired by a party ratione tenuræ, may be made a parish highway, see post, 525.

As to the repair of highways diverted, turned, &c., see post, 563. No agreement can exonerate a parish from the common-law liability to exonerate a parish repair. A count in an indictment against the corporation of Liverpool, stating that they were liable to repair a highway by virtue of a certa agreement with the owners of houses alongside of it, was held to be bad, on the ground that the inhabitants of the parish, who are prima fare bound to the repair of all highways within their boundaries, cannot be discharged from such liability by any agreement with others. (R. v. The Mayor, &c., of Liverpool, 3 East, 86; and see Bac. Abr. Highways (F). R. v. Inhabs. of Scarisbrick, 6 Ad. & E. 509, post, 522).

Nature of repairs.
Widening.

Where repairs

must be ineffectual.

Cleaning.

The liability of the parish is confined to repairs. Therefore a parish is not by the common law bound to widen a road. (R. v. Stretford, 2 Ld. Raym. 1169). See post, 551, as to the power of justices to order

roads to be widened.

Upon the trial of an indictment for the non-repair of a road, it appeared that the road was not passable at high water, and was usually a soft sludge at ebb, the learned judge held, that the parish could not be required to do repairs which, from the nature of things, must always be ineffectual; and if the jury thought so, the verdict should be for the defendants. (1 M. & Rob. 393; R. v. Landulph Inhabitants).

And the parish are not by the common law bound to clean highways; therefore it has been held not an indictable offence, that the road is very

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