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or from any inclosed land or ground (a), until one calendar month's 7. Materials notice in writing, signed by the surveyor, shall have been given to the for repairs. owner of the premises from which such materials are intended to be taken, or to his known agent, and to the occupier of the premises from
5 & 6 Will. 4, c. 50. which such materials are intended to be taken, or left at the house or last or usual place of abode of such owner or agent, and also of such occupier, to appear before the justices at a special sessions for the highways, to shew cause why such materials shall not be had therefrom ; and in case such owner, agent, or occupier shall attend pursuant to such If occupier shews notice, but shall not shew sufficient cause to the contrary, such justices cause against re
moval, two justices shall, if they think proper, authorize such surveyor or other person to to decide thereon. dig, get, gather, take, and carry away such materials at such time or times as to such justices shall seem proper (6); and if such owner, agent, or occupier shall neglect or refuse to appear by himself or his agent, the said justices shall and may (upon proof, on oath, of the service of such notice) make such order therein as they shall think fit as fully and effectually to all intents and purposes as if such owner or occupier, or his agent, had attended.” (See a similar enactment contained in the turnpike act, 3 Geo. IV. c. 126, s. 98; and decisions upon it, post).
Sect. 54, “ It shall be lawful for every such surveyor, for the use If sufficient mateaforesaid, by licence in writing from the justices at a special sessions for
rials cannot be
found in waste the highways (c), to search for, dig, and get materials, if sufficient can- lands, &c., sur. not be had conveniently within such waste lands, common grounds,
veyor may take
them from the serivers, or brooks, in or through any of the several or inclosed lands or veral or inclosed grounds (d) of any person whomsoever, (such lands or grounds not
lands or grounds,
making satisfacbeing a garden, yard, avenue to a house, lawn, park, paddock, or in- tion to owners. closed plantation, or inclosed wood not exceeding one hundred acres in extent), within the parish where the same shall be wanted, or within any other parish adjoining (c) or lying near to the highway for which such materials shall be required, if it shall appear to such justices that suficient materials can not be conveniently had in the parish where such highways lie, or in the waste lands or common grounds, rivers, or brooks of such adjacent parish, and that a sufficient quantity of materials will be left for the use of the parish where the same shall be, and to take and carry away so much of the said materials as by the discretion of the said surveyor shall be thought necessary to be employed in the amendment of the said high ways; the said surveyor making such satisfaction for the materials which may be got or taken away, and also for the damage done to such lands or grounds by the getting and carrying away the same, as shall be settled and ascertained by order of the justices at a special sessions for the highways."
By the repealed statute 13 Geo. III. c. 78, s. 29, the surveyor had
@) By the 4 & 5 Vict. c. 51, af. ter reciting the 3 Geo. IV. c. 126, s.
8. see post), the above 53rd sect. "That doubts have been entertained Whether the words inclosed land or ground,' used in the said recited acts, helade land being the private and ex.
esive property of any person or per obs, but not being actually inclosed rith a fence :" And that “large por. tions of such land are occupied for agricultural purposes by the owners or cuplers thereof respectively, without e same being inclosed with any fence; and it is expedient that the materials referred to in the said recited acts bould not be taken from any such land without previous notice being given
to the owners or occupiers thereof, and
(6) See form, post, No. 9.
7. Materials power to get materials from lands within the parish where they were for repairs. wanted, without any licence from justices. That section of the act also
authorized surveyors to get clay and burn it for materials for repairing 5 & 6 Will. 4, c. 50. nich,
highways. (Shelford, 73).
Under the 27th section of statute 13 Geo. III. c. 78, which corresponds verbatim with the latter branch of the 51st section of the 5 & 6 Will. IV. c. 50, where surveyors had broken a new way over the plaintiff's land, in order to carry materials for repair, in a case where an old but circuitous road existed before, and had after the damage done, and after an action of trespass brought against them, paid money into court by way of amends; it was held, that the sufficiency of such amends could not be questioned at Nisi Prius, the 29th section of that act in terms differing slightly from those of this section, having declared that if the parties could not agree as to the sufficiency of amends, “then suck satisfaction and recompense shall be settled and ascertained, by order of one or more justice or justices of the peace, of the limit were such land or ground shall lie.” But it seems to be competent to the plaintiff in such action to shew that the making of such new road over bis land was maliciously or wantonly done by the surveyors, and not fr the necessary or convenient carriage of the materials over the land fr the purposes of the act, and in such case he would be entitled to recover damages by the verdict of a jury. (Boyfield v. Porter, 13 East, 200).
Lord Ellenborough, C. J., held, in the same case, that the convenienee of the case, as well as the words of the act, required that the satisfactica should be made subsequent, and not antecedent, to the damage conmitted, for the mere difference of the weather, whether wet or dry during the continuance of the operation, might make great difference in the amount of the injury done to the land, and in the consequent com
pensation. Decisions upon Upon a repealed statute, (29 Geo. II. c. 67), the following decisions 29 Geo. 2, c. 67,
took place; viz. (now repealed).
That the order of sessions for the materials must shew, that there were no proper materials to be found in or upon the wastes or commen grounds near the highway, for the surveyors are not warranted to diz in the private soil for all the species of materials, because some of these species are not to be found in or upon the said wastes or comme grounds : and it ought to specify what cannot be found in or upon the wastes or common grounds, and what may be found in the private sou; and they must previously know that it is to be found there, or at least have a reasonable prospect of finding it there, for they cannot dig to try for it in the private soil. (R. v. Manning, 1 Burr. 377; 2 Ken. 561, S.C.) However, in the 5 & 6 Will. IV. c. 50, s. 54, supra, power is given to search for and dig. Still it seems there ought to be a reasonable prospect for finding before a licence to search for and dig is granted.
That an order of sessions, to dig generally over all the estate of A. Bu, is bad; for the order must fix upon a particular part, and not leave it to the discretion of the surveyor. (Id.)
That satisfaction must be awarded to the owner, or to the oceupier, or to both, according to the damages sustained by the one, or by the other, or by both. (Id.)
That notice to the occupier is sufficient, and it is sufficient to state that it was left at his place of abode. But the statute then directed the notice to be given to the owner or occupier. The words of the present
statute are different. Pits or holes in By 5 & 6 Will. IV. c. 50, s. 55, “If any surveyor or person employed getting materials to be filled up or
by him shall, by reason of the searching for, digging, or getting any masloped down, and terials for repairing any highways, make any pit or hole in lands, common fenced off by surveyor;
grounds, rivers, or brooks as aforesaid wherein such materials shall be found, he shall forthwith cause the same to be sufficiently fenced off, and
such fence supported and repaired during such time as the said pit or hole 8. Surveyors. shall continue open, and within three days after such pit or hole shall be opened or made, where no materials shall be found, cause the same to
5&6 Will 4, c. 50. be forthwith filled up, levelled, and covered with the turf or clod which was dug out of the same, and where any such materials shall be found, within fourteen days after having dug up sufficient materials in such pit or hole, cause the same to be filled up or sloped down, and fenced off, if required by the owner of the land or ground, and so continued ; and and so as to all every surveyor shall within twenty-one days after he shall have been those already
made. appointed to that office cause all the said pits and holes which shall then be open and not likely to be further useful to be filled up or sloped down in manner aforesaid, and if they are likely to be further useful he shall secure the same by posts and rails or other fences to prevent accidents to persons or cattle, and in case such surveyor or person shall neglect to fill up, slope down, or fence off such pit or hole in manner and within the time aforesaid, he shall forfeit the sum of ten shillings for every such default; and in case such surveyor or person shall Penalties on surneglect to fence off such pit or hole, or to slope down the same, as veyor for neglect
herein. hereinbefore directed, for the space of six days after he shall have received notice for either of those purposes from any justice of the peace, or from the owner or occupier of such several ground, river, or brook, or any person having right of common within such common or waste lands as aforesaid, and such neglect and notice shall be proved upon oath before the justices at a special sessions for the highways, such surveyor, person or persons, shall forfeit and pay any sum not exceeding 101, for such neglect, to be determined and adjudged by such justices, and to be laid out and applied in the fencing off, filling up, or sloping down such pit or hole, and toward the repair of the roads in the parish where the offence shall be committed, in such manner as the said justices shall direct and appoint; which forfeiture, in case the same be not forthwith paid, shall be levied as other forfeitures are hereinafter directed to be levied.” (See ss. 101, 103, post, 608, 609). Sect. 56. “If any surveyor or district surveyor shall lay or cause Penalty on sur
veyor allowing to be laid any heap of stone, or any other matter or thing whatsoever, any heap of stone, upon any highway, and allow the same to remain there at night, to the &c., to remain on danger or personal damage of any person passing thereon, all due and hig
highway at night. reasonable precaution not having been taken by the said surveyor to guard against the same, he shall forfeit for every such offence any sum not exceeding 51."
Sect. 57. “If any surveyor shall dig or cause to be dug materials Surveyor dafor the highways, whereby any bridge, mill, building, dam, highway, maging malisin occupation-road, ford, mines, or tin works, or other work, may be da- ging inaterials, to maged or endangered, he shall forfeit for every such offence, on con forfeit not exFiction, any sum not exceeding 51., at the discretion of the justices
petion of the justice ceeding 51. before whom the complaint thereof shall be made, notwithstanding his liability to any civil action to which he may make himself liable by such aci."
VIII. Of Surveyors. Under this division will be noticed the enactments of the 5 & 6 Division of subWill. IV. c. 50, with respect to the appointment of surveyors,—their jects qualifications, -exemption from office and deputy,—the penalty for not acting, -powers of deputy,—their salary,—their duty to name a sucEssor, &c., -and general penalty on, for neglect of duty. The various daties in particular of surveyors will be found in the subsequent sections of this title.
1. APPOINTMENT OF SURVEYOR (a). Surveyor to be By 5 & 6 Will. IV. c. 50, s. 6, “ The inhabitants of every parish mainelected annually.
taining its own highways, at their first meeting in vestry for the Donination of overseers of the poor in every year, shall proceed to the elec
tion of one or more persons to serve the office of surveyor in the said May be re-elected. parish for the year then next ensuing (6): Provided always, that any
outgoing surveyor shall continue to act until his successor shall be appointed, and shall be re-eligible, and may be re-elected, and shall in such case continue to act and remain in office, any thing herein contained to the contrary notwithstanding; and in such case notice of such election
shall be given by the chairman to the person elected (c), and to the outWhere there is no going surveyor : Provided always, that in any parish where there is no meeting for the meeting in the year for the nomination of overseers of the poor, the innomination of the overseers of the habitants contributing to the highway rate shall meet at their usual
place of public meeting upon the 25th day of March, or if that should happen to be a Sunday or Good Friday, then on the day next followiny, or within fourteen days next after the said 25th day of March in every year, to elect one or more persons to serve the office of surveyor far the said parish ; which surveyor shall repair and keep in repair the several highways in the said parish for which he is appointed, and which are
now or hereafter may become liable to be repaired by the said parish." When may be An objection to the appointment of three surveyors, not for the whole appointed for diferent divisions
parish, but each of them for a particular division, was overruled where of parish.
it appeared that such a mode of appointment had prevailed for several years. (R. v. Baldwin, 7 T. R. 169). And where there were two townships, each of which was immemorially bound to repair the roads within it, and had originally had surveyors appointed for each, but from time to time, to avoid expense, there had been one appointment of two surveyors for the parish at large, one of them always being an inhabitant of one of the townships, and the other an inhabitant of the other, each surveyor acting in his own township; it was held, an appointment of surveyors for each township was proper. (R. v. King's Nexstos,
1 B. & Adol. 826). Where several ap- If more than one person be elected to the office of surveyor, they do pointed each of
not constitute but one officer ; but each of them so appointed is a sur them surveyor.
veyor. (Morrell v. Martin, 8 Scott, 688). Therefore, a demand of a highway rate by one of two surveyors, acting under the above act, is a Fund
demand. (Id.) Appointment must The appointment must be stamped; for every appointment in writing to be stamped
any office or employment, where the salary shall not amount to 50l. per annum, requires a stamp of 21., and, where a larger salary, then a larger stamp accordingly. (55 Geo. III. c. 184, schedule, tit. GRANT. R.V. Lew, 3 M. & R., 369 : 8 B. & C. 655, S. C., which was the case of an as sistant overseer).
(a) By the 4th section of the act, the surveyor appointed under the authority of any of the acts recited in it, were to act until the appointment of a surveyor under it. (See Mr. Woolwrych's remarks on this section, in his treatise on the Highway Act, pp. 6 and 7; and see Tidd Pratt on the Highway Act, p. 4, n. 1).
(6) See the 54 Geo. III. c. 91, tit. “ Poor," Vol. IV., by which overseers are to be appointed in every year on the 25th of March, or in fourteen days after wards. In places where there is no annual meeting of the inhabitants for the nomination of overseers, notice of the intended meeting of inhabitants contri.
buting to the highway rate should, at
(c) See form of notice, post, N