was accustomed to run off the road, it was objected that the parish were not liable to cleanse the drains, and Tindal, C. J., said, "Does the common law require the parish to cleanse the ditches? How do you et rid of the Highway Act?" (R. v. Upton-on-Severn, MS., Wor. Sum. Ass. 1833; Russell on Crimes, 361). This case was decided before the passing of the 5 & 6 Will. IV. c. 50. 3. ENCROACHMENTS ON HIGHWAY. By 5 & 6 Will. IV. c. 50, s. 69, "If any person shall encroach by making or causing to be made any building, hedge, ditch, or other fence on any carriageway or cartway within the distance of fifteen feet from the centre thereof (a), every person so offending shall forfeit, on conviction (6), for every such offence, any sum not exceeding 40s.; and the surveyor who hath the care of any such carriageway or cartway hall and he is hereby required to cause such building, hedge, ditch, or ence to be taken down or filled up at the expense of the person to whom he same shall belong; and it shall and may be lawful for the justices ta special sessions (c) for the highways, upon proof to them made upon th, to levy as well the expenses of taking down such building, hedge, fence, or filling up such ditch as aforesaid, as the several and respecive penalties hereby imposed, by distress and sale of the offender's zoods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this act." [As to the mode of recovering penalties, see ss. 101, 103, &c., post, Sect. XXII., p. 608]. 17. Nuisances, &c., on. Penalty for encoaching on highway. Encroachment to be taken down by surveyor. Expenses of removal, &c., endistress. forceable by See a similar clause in the Turnpike Act, 3 Geo. IV. c. 126, s. 118, Observations and There was no provision in the stat. 13 Geo. III. c. 78, empowering rveyors to remove a building or house erected upon a highway; and serefore, in trespass against surveyors of the highways for pulling down watch-house, it was held, that the 82nd section of that act did not enble them, under a plea of not guilty, to justify the removing it, as aga nuisance on the highway. (Witham Navigation v. Padley, 4 B. Adol. 69). This clause, it will be seen, does not say that every way shall be irty feet wide; and where a building, &c., is not on the highway, but thin fifteen feet of the centre, a surveyor would not under this clause authorized to remove it, &c. (Lowen v. Kaye, 6 D. & R. 20; 4 B. Cras. 3, S. C.) A local act prohibited the erection or continuance of any building ithin ten feet of the road, and declared that the footpaths should be bject to the act, and be part of the road: it was held that an open op, having its front built on the foundation of an old wall, immedily adjoining the footpath, and connected by a roof with the front of house, which was more than ten feet from the road, was a building thin the meaning of the act. (R. v. Gregory, 5 B. & Adol. 555). PITS, STEAM-ENGINES, MACHINES, WINDMILLS, Kilns, Railways, &c. decisions. By 5 & 6 Will. IV. c. 50, s. 70, "From and after the commencement No pit to be sunk, his act it shall not be lawful for any person to sink any pit or shaft, to erect or cause to be erected any steam-engine, gin, or other like or steam-engine, chine, or any machinery attached thereto, within the distance of machine, erected, nty-five yards, nor any windmill within fifty yards, from any part or windmill to be any carriageway or cartway, unless such pit or shaft, or steam-engine, , or other like engine or machinery, shall be within some house or building, or behind some wall or fence, sufficient to conceal or 17. Nuisances, without pointing out what the obstruction is, nor whether it is speci&c., on. fically limited to the exclusion of the sun and wind." Expenses of cutting. Common-law right to lop trees. Surveyor to make and keep open ditches, &c., and through lands adjoining highway, paying for damage if any incurred. The court will not grant a rule nisi for a mandamus to compel justices to issue their warrant to levy the expenses of cutting a hedge, pursuant to the above enactment, (s. 65), unless it appears that a demand has been made of the expenses from the person sought to be charged, and that the justices were informed of that demand. (Ex parte Whitmarsh, 8 Dowl. 431; post, tit. “ Mandamus”). See the provisions as to trees, in the Turnpike Act, 3 Geo. IV. c. 126, ss. 116, 117, post. It is said, that he who hath trees adjoining a highway and hanging over it, to the annoyance of the people, is bound by common law top the same, and any other person may lop them, so as to abate the nu sance. (1 Hawk. c. 76, s. 52; and see Bac. Ab. Highway (E.)). 2. DITCHES, DRAINS, &c. By 5 & 6 Will. IV. c. 50, s. 67, "The said surveyor, district veyor, or assistant surveyor, shall have power to make, scour, ces to lay trunks, &c. and keep open all ditches, gutters, drains, or watercourses, and also to make and lay such trunks, tunnels, plats, or bridges, as he shall de necessary, in and through any lands or grounds adjoining or lying to any highway, upon paying the owner or occupier of such lands of grounds, provided they are not waste or common, for the damages which he shall sustain thereby, to be settled and paid in such manner as the damages for getting materials in inclosed lands or grounds are here directed to be settled and paid," (post, 530, 531). Owner, occupier, &c., not to alter such ditches without consent. Observations and decisions. Nuisance at common law. Sect. 68. "If any owner, occupier, or other person shall alter, obstruct or in any manner interfere with any such ditches, gutters, drains, water-courses, trunks, tunnels, plats, or bridges, after they shall have been made by or taken under the charge of such surveyor or distre surveyor, and without his authority and consent, such owner occupied, or other person shall be liable to reimburse all charges and exper which may be occasioned by reinstating and making good the works altered, obstructed, or interfered with, and shall also forfeit any B not exceeding three times the amount of such charges and expenses See similar clauses in the Turnpike Act, 3 Geo. IV. c. 126, ss. 113,14, post. By the 13 Geo. III. c. 78, s. 8, occupiers of land were required, a penalty of 10s., to make these ditches and watercourses, and to sufficient trunks, &c., after ten days' notice by the surveyor; but t section is now repealed by the 5 & 6 Will. IV. c. 60. In a case where the surveyor directed a sewer to be continued, withstanding the provisions of a local act, which declared that no di &c., should be arched over without the consent of the trustees a the act, under a penalty of 501., debt was brought against him und that statute. It was urged on his behalf that the sewer was bea before he took any part in it-that he was in fact the servant of 10 for whom the work was done, and that the mere direction to prot could not render him liable to the penalty. But the court held, there could not be a doubt of his liability, and the rule for entering nonsuit was discharged. (Woodward v. Cotton, 1 C. M. & R. 44). It is a nuisance at common law, and punishable accordingly, to su the highway to be incommoded by reason of the foulness, &c., of adjoining ditches; and it is said that the owner of land next adjoinin to the highway ought of common right to scour his ditches, but th the owner of land next adjoining to such land is not bound by the c mon law to do so without a special prescription. (1 Hawk. P. C. c. s. 52; Bac. Abr. Highway (E.) ). On an indictment which charged the inhabitants of a parish wi neglecting to repair the drains, gutters, and ditches by which the wate was accustomed to run off the road, it was objected that the parish were not liable to cleanse the drains, and Tindal, C. J., said, "Does the common law require the parish to cleanse the ditches? How do you get rid of the Highway Act?" (R. v. Upton-on-Severn, MS., Wor. Sum. Ass. 1833; Russell on Crimes, 361). This case was decided before the passing of the 5 & 6 Will. IV. c. 50. 3. ENCROACHMENTS ON HIGHWAY. By 5 & 6 Will. IV. c. 50, s. 69, “If any person shall encroach by making or causing to be made any building, hedge, ditch, or other fence on any carriageway or cartway within the distance of fifteen feet from the centre thereof (a), every person so offending shall forfeit, on conviction (6), for every such offence, any sum not exceeding 40s.; and the surveyor who hath the care of any such carriageway or cartway shall and he is hereby required to cause such building, hedge, ditch, or fence to be taken down or filled up at the expense of the person to whom the same shall belong; and it shall and may be lawful for the justices at a special sessions (c) for the highways, upon proof to them made upon oath, to levy as well the expenses of taking down such building, hedge, or fence, or filling up such ditch as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this act." [As to the mode of recovering penalties, see ss. 101, 103, &c., post, Sect. XXII., p. 608]. 17. Nuisances, &c., on. Penalty for encroaching on Encroachment to be taken down by surveyor. highway. Expenses of reforceable by distress. moval, &c., en See a similar clause in the Turnpike Act, 3 Geo. IV. c. 126, s. 118, Observations and post. There was no provision in the stat. 13 Geo. III. c. 78, empowering surveyors to remove a building or house erected upon a highway; and cherefore, in trespass against surveyors of the highways for pulling down a watch-house, it was held, that the 82nd section of that act did not enable them, under a plea of not guilty, to justify the removing it, as being a nuisance on the highway. (Witham Navigation v. Padley, 4 B. Adol. 69). This clause, it will be seen, does not say that every way shall be hirty feet wide; and where a building, &c., is not on the highway, but within fifteen feet of the centre, a surveyor would not under this clause be authorized to remove it, &c. (Lowen v. Kaye, 6 D. & R. 20 ; 4 B. & Cres. 3, S. C.) A local act prohibited the erection or continuance of any building within ten feet of the road, and declared that the footpaths should be subject to the act, and be part of the road: it was held that an open shop, having its front built on the foundation of an old wall, immedistely adjoining the footpath, and connected by a roof with the front of the house, which was more than ten feet from the road, was a building within the meaning of the act. (R. v. Gregory, 5 B. & Adol. 555). 4. PITS, STEAM-ENGINES, MACHINES, WINDMILLS, KILNS, RAILWAYS, &c. decisions. By 5 & 6 Will. IV. c. 50, s. 70, "From and after the commencement No pit to be sunk, f this act it shall not be lawful for any person to sink any pit or shaft, to erect or cause to be erected any steam-engine, gin, or other like or steam-engine, achine, or any machinery attached thereto, within the distance of machine, twenty-five yards, nor any windmill within fifty yards, from any part or windmill to be any carriageway or cartway, unless such pit or shaft, or steam-engine, , or other like engine or machinery, shall be within some house or ther building, or behind some wall or fence, sufficient to conceal or erected, 5 & 6 Will. 4, c. 50. within certain distance of roads, unless, &c. 17. Nuisances, screen the same from the said carriageway or cartway, so that the same &c., on. may not be dangerous to passengers, horses, or cattle; nor shall it be lawful for any person to make or cause to be made any fire for calcining or burning of ironstone, limestone, bricks, or clay, or the making of or fire to be made cokes, within the distance of fifteen yards from any part of the said carriageway or cartway, unless the same shall be within some house or other building, or behind some wall or fence, sufficient to screen the same from the same carriageway or cartway as aforesaid; and in case any person shall offend in any of the cases aforesaid, every such person so offending shall forfeit and pay any sum not exceeding 51. for each and every day such pit, shaft, windmill, steam-engine, gin, machine, or fire shall be permitted to continue contrary to the provisions of the act; which said penalties shall be levied, recovered, and applied in such and the same manner as any penalty or forfeiture for any other offeace on any highway may be levied, recovered, and applied: Provided, that erected at passing nothing herein contained shall be construed to restrain any person of persons from using, repairing, rebuilding, or enlarging any wind steam-engine, gin, or other like machine, or any kiln, or other esa used for the purpose of calcining or burning of ironstone, limestone, bricks, or clay, or the making of cokes, which may have been erected and may be in existence at the passing of this act." How penalty to be levied, &c. Proviso as to windmills, &c. of act. Proprietors of railways to erect gates, &c., where they cross highways. 2 & 3 Vict. c. 45. Complaint for neglect. Penalty for. See a similar provision in the Turnpike Act, 3 Geo. IV. c. 126, s. 12, post, prohibiting the erection of windmills within two hundred yards the road. The erection of these steam-engines, &c., might be a nuisance at common law, and punishable accordingly, see post, 575. for Sect. 71. "Whenever a railroad shall cross any highway for carts of carriages, the proprietors of the said railroad shall make and maintain good and sufficient gates at each of the said crossings, and shall employ good and proper persons to attend to the opening and shutting of such gates, so that the persons, carts, or carriages passing along such re shall not be exposed to any danger or damage by the passing of any carriages or engines along the said railroad; and any complaint any neglect in respect of the said gates shall be made within ten day after the said neglect to one justice, who may summon the party complained against to appear before the justices at their next special sessions for the highways, who shall hear and decide upon the complaint, and the proprietor so offending shall forfeit any sum not exceeding 51." By the 2 & 3 Vict. c. 45, after reciting the above enactment, and the 13th sect. of the 5 & 6 Will. IV. c. 50 (post, 616), it is enacted “That wherever a railroad crosses or shall hereafter cross any turnpike road er any highway or statute labour road for carts or carriages in Great Br tain, the proprietors or directors of the company of proprietors of the said railroad shall make and maintain good and sufficient gates acros each end of such turnpike or other road as aforesaid at each of the sai crossings, and shall employ good and proper persons to open and shu such gates, so that the persons, carts, or carriages passing along such turnpike or highway shall not be exposed to any danger or damage by the passing of any carriages or engines along the said railroad; and any complaint for any neglect in respect of the said gates shall be made within one calendar month after the said neglect to any justice of the peace, or if in Scotland to the sheriff of the county, who may summon the party so complained against to appear before them or him at the next petty session or court to be holden for the district or division within which such gates are situate, who shall hear and decide upon the said complaint; and the proprietor or director so offending shall for each and every day of such neglect forfeit any sum not exceeding five pounds. together with such costs as to the justices or sheriff depute aforesaid before whom the conviction shall take place shall seem fit." 17. Nuisances, &c., on. 5 & 6 Will. 4, c. 50. Sect. 2. "The penalties by this act imposed, and the costs to be allowed and ordered by the authority of this act, shall in England be recovered and applied in the same manner as any penalties and costs under the said act, and in Scotland shall be recovered and applied to the maintenance of the statute labour roads within the district where the offence is committed." Sect. 3. "This act shall commence and take effect from and after the Commencement 30th day of September, 1839." 5. GATES. By 5 & 6 Will. IV. c. 50, s. 81, "If any gate across any public cartway shall be less than ten feet wide, or any gate across any public horseway shall be less than five feet wide, clear between the posts thereof, then and in every such case, upon notice in writing from the surveyor to the person to whom such gate shall belong, left at the dwelling-house of such person, or his steward or agent, requiring him to enlarge the same, if such person shall neglect for the space of twenty-one days after such notice shall have been left as aforesaid to remove or enlarge such gate, he shall forfeit a sum not exceeding ten shillings for every day he shall so neglect to remove or to enlarge such gate as aforesaid.' See a nearly similar clause to this in the Turnpike Act, 3 Geo. IV. c. 126, s. 125, post. See ante, 570, as to the proprietors of railways being obliged to erect gates where they cross highways. As to when gates are nuisances at common law, see post, 575. 6. CARTS AND CARRIAGES, NAMES OF OWNERS TO BE PAINTED, &c., MISBEHAVIOUR OF DRIVERS, &c. By 5 & 6 Will. IV. c. 50, s. 76, "The owner of every waggon, cart, or other such carriage, shall paint or cause to be painted in one or more straight line or lines, upon some conspicuous part of the right or off side of his waggon, cart, or other such carriage, or upon the off side shafts thereof, before the same shall be used on any highway, his christian name and surname, or the style and title by which he is commonly designated, and the place of his trade or abode, or the christian and surname and place of trade or abode of a partner or owner thereof, at full length, in large legible letters in white upon black or black upon white, not less than one inch in height, and continue the same thereupon so long as such waggon, cart, or other such carriage shall be used upon any highway; and every owner of any waggon, cart, or other such carriage, who shall use or allow the same to be used on any highway without the name and descriptions painted thereon as aforesaid, or who shall suffer the same to become illegible, or who shall paint or cause to be painted any false or fictitious name or place of trade or abode on such waggon or cart or other such carriage, shall forfeit and pay, on conviction for every such offence, How penalties to be recovered and applied. of act. One driver may two carts, provid A sum not exceeding forty shillings, with or without costs, as to the Sic in act. justices before whom the conviction shall take place shall think fit." See a nearly similar clause to this in the Turnpike Act, 4 Geo. IV. e. 95, s. 15, post. The repealed enactment on the subject was the 13 Geo. III. c. 78, s. 60. Sect. 77. "No one person shall act as the driver of more than two carts, waggons, or other such carriages on any highway: Provided always, that it shall and may be lawful for any one person to act as the driver of two carts, waggons, or other such carriages on any highway, and for such carts to pass and travel on any highway being only under the care and superintendence of such single person: Provided always, that such carts, waggons, or other carriages, when under the care of only one person, shall not be drawn by more than one horse each, and the horse of the hinder cart, waggon, or other carriage, shall be attached by a rein in length not exceeding four feet to the back of the cart, wag each. |