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out of any monies to be received by virtue of the act for repairing and 7. Making maintaining such turnpike road, such costs and expenses to be settled and diverting and ascertained by some justice of the peace for the county or place roads, &c. wherein the dispute shall have arisen, not interested in the matter in
Geo. 4, c. 126. question, who is hereby authorized and empowered to settle and determine the same, and to make an order on the treasurer of the trustees or commissioners liable thereto for the payment thereof (a); but if any such jury or juries so summoned and sworn as aforesaid shall give in and deliver a verdict or assessment for no more or for less money than shall have been agreed to and offered by the trustees or commissioners before the summoning and returning of the said jury or juries, as a recompense and satisfaction for any such right, interest, or property in any such lands, tenements, hereditaments, or premises, or losses or damages as aforesaid, then the costs and expenses of summoning and maintaining the said jury and witnesses, and all other expenses as aforesaid, shall be borne and paid by the person or persons with whom such trustees or commissioners shall have such controversy or dispute; which said costs and expenses having been ascertained and settled by some justice of the peace for the county, riding, or place, wherein the cause of dispute shall arise, not interested in the matter in question, (who is hereby required to examine and settle the same), shall and may be deducted out of the money so assessed and adjudged, as so much money advanced to and for the use of such person or persons, and the payment or tender of the remainder of such monies shall be deemed and taken, to all intents and purposes, to be a payment or tender of the whole sum or sums so assessed and adjudged, or otherwise such costs and expenses, in case the same or any part thereof shall exceed such damages, and shall not be paid upon demand, after being so ascertained and settled as aforesaid, may be recovered by the said trustees or commissioners by the ways and means hereinafter provided for the recovery of penalties and orfeitures: Provided always, that in all cases where any person or perons shall, by reason of absence, have been prevented from treating, such Posts and expenses shall be borne and paid by the said trustees or commissioners in manner aforesaid.” (See ss. 141 and 143, post, Sect. XV.)
3. STOPPING UP AND SALE, &c., OF OLD Roads, &c. We have already noticed the provision of the 3 Geo. IV. c. 126, s. 86, empowering the trustees to sell or exchange the old road, after the new one is completed. (Ante, 688).
By 3 Geo. IV. c. 126, s. 88, '“When any turnpike road shall be di- New road to be Ferted or turned, and the new road shall be made and completed, such a
deemed a highdew road shall be in lieu of the old road, and shall be subject to all the provisions and regulations in any act of Parliament contained, or otherwise, to which the old road was subject, and shall be deemed and taken
be a common highway (6), and shall be repaired and maintained as such; and the old road shall be stopped up, and the land and soil thereof Old road to be shall be sold by the trustees or commissioners to some person or persons sold."
stopped up and Whose lands adjoin thereto, as hereinafter mentioned with regard to pieces of ground not wanted (c); but if such old road shall lead to any When old road lands, house, or place, which cannot, in the opinion of the said trustees
leads to a place,
&c., to which the commissioners, be conveniently accommodated with a passage from new road does not, Buch new road, which they are hereby authorized to order and lay out
v out what to be done.
ma) See 4 Geo. IV. c. 95, s. 71, post, made. (See R. v. Winter, 8 B. & C.
785). See ante, 509, as to the public (0) By virtue of this provision, a new not being liable to repair a road authorfond, made by the trustees under a local ized to be made by an act of Parlia5. becomes a public highway, and will ment, until it is completed. not cease to be so at the expiration of (c) See post, 694. the term for which the local act was
of old road, how
contract. soil Vested in purchaser.
7. Making if they find it necessary, then, and in such case, the old road shall be and diverting sold, but subject to the right of way and passage to such lands, house, et
roads, &c. place respectively, according to the ancient usage in that respect; and 3 Geo. 4, c. 126.
the money arising from such sale in either of the said cases, shall be Purchase-money
applied towards the purchase of the land where such new road shall be
made, or in the same manner as the tolls arising on such road, as the applied.
trustees or commissioners thereof shall think fit; and upon the couple On completion of
tion of any contract whereby any part of the old road shall be given in
payment for the value of the ground taken for the new road, or upea Mines, &c.
payment of the price of any part of the old road, the soil of suel and road shall become vested (a) in the purchaser thereof and his heirs; bo all mines, minerals, and fossils (6) lying under the same, shall continue the property of the person or persons who would from time to time have been entitled to the same if such old road had continued.”
Where upon the diversion of a turnpike road after the new road hai been completed, but before the old road was stopped up, the trusten by the permission of B., broke down his fence to make a passage fra the new road to the close of A., but did not put up a gate or fence : protect the latter close :—Held, the trustees were wrong-doers, and this
B. was responsible for their acts. (Winter v. Charter, 3 Y. & J.:8). When land not Sect. 89. “Where the trustees or commissioners of any turnpike mes road is to be sold, shall have purchased, or shall be possessed of any piece or pieces first offer to be ground not wanted for the purposes of such road, it shall and may ko made to original or adjoining
lawful for such trustees or commissioners to sell and dispose of the same, Provided always, that the said trustees or commissioners, before to shall sell and dispose of any such piece or pieces of ground not wan's for the purposes of such turnpike road as aforesaid, to any other perse or persons, shall first offer the same to the person or persons of the the same shall have been purchased, or to the person or persons who lands shall adjoin thereto, and if such person or persons respectiva"
shall then and thereupon refuse, or shall not agree (except with What evidence of spect to or on account of the price thereof) to purchase the spel
spectively, on an affidavit being made and sworn before a master refusal.
master extraordinary in the High Court of Chancery, or before of his Majesty's justices of the peace for the county, liberty, par? where such ground is situate, (who are hereby respectively spears to take such
affidavit), by some person or persons no war izteile in the said piece or pieces of ground, stating that such offer te make by or on behalf of such trustees or commissioners, and that suche was then and thereupon refused, or was not agreed to by the pas or persons to whom the same was made, such affidavit shall, in courts whatsoever, be sufficient evidence and proof that such ofer
made, and was refused, or not agreed to by the person or pest On dispute as to whom such offer was made; (as the case may be); and in cases price, the value to be ascertained by person or persons shall be desirous of purchasing such piece or p a jury.
of ground, and he, she, or they and the said trustees or commise
with respect to such purchases made by the said trustees, mutate Purchase-money tandis ; and the money to arise by the sale or sales of such pier: how to be applied parcels of ground shall be applied by the trustees or commissione
the purposes of the act for repairing and maintaining such turu, road, but the purchaser or purchasers thereof shall not be answers
such offer and
(a) See Allnutt and another v. Pott, (6) See the general clause of 1.1 (1 B. & Adol, 302; 3 M. & R. 439, Geo. IV. c. 14, s. 18, ante, 658, E ante, 683).
the property in mines, &c.
8. Repairs, the act for making or maintaining any such turnpike road or roads shal fc. of roads. be mentioned.” (See form of agreement, post, No. 77).
The above 6th and 7th sections of the 9 Geo. IV. c. 77, do not repen? the directions in the above 82nd section, and the 148th section (see prate 964) of the 3 Geo. IV. c. 126, or schedule xiv, annexed to that act, as bo the form of agreement to subscribe_money for making and repairing a road. (Meigh v. Clinton, 11 Ad. & E. 418; 3 Per. & D. 211, S.C.) E per Denman, C. J.—“I think that statute (9 Geo. IV. c. 77) repeals only the provisions as to payment and recovery of the monies, and recognizes the previous enactments as to the writing to be subscribed." And see Littledale, J.'s, judgment in this case.
If the agreement be not such as the acts require, an action for calis cannot be supported by the party's acknowledgment, after the works have been commenced under the act, that he is liable as having signed (Id.)
An instrument in the following form, drawn up at a meeting of trs tees, and sent forth for subscription, will not warrant them in medias calls upon a party signing it. " At a meeting" &c. “it appearing ina the estimates,” “that, to effect the object” &c., "namely, the new from” A. to 'L., “and the diversion " &c., “an expense of 4610%. be involved,” “it was proposed, that the necessary applications be made without delay, in order to raise funds to meet the expenses referred tin and the gentlemen undernamed have proposed to subscribe such same for the purpose as are set opposite to their respective names, and which it is proposed to secure by way of mortgage on the tolls.” (Id.)
Assuming this writing to be a proper agreement, quære, whether it would be a defence to an action upon it, that before the act under which the trustees acted was passed, they (with defendants' knowledge
) altera the proposed line: and whether such defence ought to be specially pleaded : also, whether it would be a defence, that, after the act pas (and before the above acknowledgment), the diversion was given up
(Id.) Decision under A local turnpike act (3 & 4 Will. IV. c. liv.) empowered the inates local act.
to take lands, making compensation, but enacted that the pores given should cease, if the trustees should not, within three years and pay for the lands required for the purposes of the act, ur sa parte thereof as they should deem necessary or proper. In an action for alle under this statute, quære, whether it was a good plea, that the trees did not within three years agree or pay for the lands required for the purposes of the act (specifying the purposes), or so much of the most lands as the said trustees deemed necessary or proper. (Id.)
Division of subject.
VIII. Repairs, &c. of Turnpike Roads.
1. Who are liable to such Repairs, p. 697.
abolished, and of the Application of a Portion of the Highway.
Rate towards the Repair of Turnpike Roads, p. 698.