7. Making and diverting roads, &c. 7 & 8 Geo. 4, c. 24. Trustees to pay expense of sales of lands, &c. Form of convey. ances (a). How expenses of jury and witnesses are to be borne. to be made in pursuance of this act, or so much of such expenses as the said Court shall deem reasonable, together with the necessary costs and charges of obtaining such order, to be paid by the trustees taking sy such lands, tenements, or hereditaments, who shall from time to times such sums of money for such purposes as the said Court shall direct." By 4 Geo. IV. c. 95, s. 55, “All sales and conveyances of any lar tenements, or hereditaments, to be sold by the trustees or comm sioners of any turnpike roads, shall be made at the expense of such tra tees or commissioners, and shall be expressed in the following or similar form of words, as the circumstances of the case may requir." videlicet, "We, of the trustees or commissioners acting in execution of an act pan. [here insert the title of the act appointing them], in consideration of the m to us paid by [name of the purchaser] do hereby grant and release to ' [name of the purchaser] all [describing the premises to be conveyed], and right, title, and interest to and in the same, and every part thereof, to held to i [name of the purchaser], his heirs, executors, administrators, and assigns, ja *** by virtue, and according to the true intent and meaning of an act passed in th year of the reign of King George the Fourth, intituled, An Act, [here set fer title of this act]. In witness whereof we have hereunto set our hands and set. ** day of" By 3 Geo. IV. c. 126, s. 87, "In case any jury or juries to be moned and sworn pursuant to the directions and authority of this a shall give in and deliver a verdict or assessment for more money as " compense or satisfaction for the right, interest, or property of any pers or persons in any such lands, tenements, hereditaments, or premises. for any loss or damage to be by him, her, or them sustained, than -shall have been agreed to and offered by such trustees or commissie before the summoning or returning the said jury or juries, as a re pense or satisfaction for any such right, interest, or property, or for loss or damage as aforesaid, then, and in such case, the costs and penses of summoning and maintaining the said jury and witnesses, all other expenses attending the hearing and determining such d rence (6), shall be borne and paid by the treasurer to the trust commissioners, out of any money which shall then be in his ha (a) As to when this conveyance is requisite, see ante, 682, 689. (b) A local act empowered certain trustees to purchase messuages, &c., and enacted, that if the owners should not agree with the trustees on the terms, or should neglect or refuse to treat, or by reason of absence or disability should be prevented from treating, the trustees should cause a jury to be summoned by the sheriff to assess compensation, and the sheriff should summon and examine witnesses upon oath; and if the jury should give a verdict for more than the trustees had offered, the costs and expenses of summoning and returning such jury and witnesses, and also of the inquest, to be settled by a justice, were to be borne by the trus tees, and recovered by the persons entitled thereto by distress; but if the verdict should not be for more than the sum offered, the trustees were to bear one moiety of the costs and expenses aforesaid, and the other party the other moiety; but where the parties, from ab sence or inability, could not agree, such costs and expenses be borne by the trustees: wards it was enacted that, in a partlar event, messuages, &c., sh sold to certain parties, and that of disagreement as to price, the F should be assessed by a jury and the expense of hearing and mining such difference to be bo like manner:-Held, that an lands to be purchased, in fiv whom a jury awarded more th sum offered, was entitled to the c the inquiry, including witnesses, ance by attorney at the inquest, ences, and briefs; and not merely expenses of the sheriff and jury that the expenses of surveyors, as such, could not be included costs. (R. v. The Justices of t of York, 1 Adol. & Ell. 828; 4 R. v. Gardner, 1 Ner. & Per. Ad. & E. 112, S. C.; and R. riff of Warwickshire, 2 Railw 661). Highways, Turnpike. 693 7. Making out of any monies to be received by virtue of the act for repairing and maintaining such turnpike road, such costs and expenses to be settled and diverting and ascertained by some roads, &c. 3 Geo. 4, c. 126. wherein the dispute shall have arisen, not interested in the matter in justice of the peace for the county or place 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 compense 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 said, shall be borne and paid by the person or persons with whom such maintaining the said jury and witnesses, and all other expenses as aforetrustees 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, in case the same or any part thereof shall exceed such damages, and or sums so assessed and adjudged, or otherwise such costs and expenses, to all intents and purposes, to be a payment or tender of the whole sum 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 forfeitures: Provided always, that in all cases where any person or perJosts and expenses shall be borne and paid by the said trustees or commissioners 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, mpowering 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 way. verted or turned, and the new road shall be made and completed, such 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 other wise, to which the old road was subject, and shall be deemed and taken stopped up and to be a common highway (b), and shall be repaired and maintained as mch; 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." whose lands adjoin thereto, as hereinafter mentioned with regard to lands, house, or place, which cannot, in the opinion of the said trustees leads to a place, pieces of ground not wanted (c); but if such old road shall lead to any When old road r commissioners, be conveniently accommodated with a passage from new road does not, such new road, which they are &c., to which the hereby authorized to order and lay out what to be done. (a) See 4 Geo. IV. c. 95, s. 71, post, made. (See R. v. Winter, 8 B. & C. 704. a new (6) By virtue of this provision, rond, made by the trustees under a local act, becomes a public highway, and will not cease to be so at the expiration the term for which the local act was of 785). See ante, 509, as to the public (c) See post, 694. 7. Making and diverting roads, &c. 3 Geo. 4, c. 126. On completion of When land not wanted for the first offer to be made to original or adjoining owners. such offer and refusal. if they find it necessary, then, and in such case, the old road shall? sold, but subject to the right of way and passage to such lands, house, or place respectively, according to the ancient usage in that respect; and the money arising from such sale in either of the said cases, shall be 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 trustees or commissioners thereof shall think fit; and upon the comple 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 upon payment of the price of any part of the old road, the soil of such o road shall become vested (a) in the purchaser thereof and his heirs; but all mines, minerals, and fossils (b) 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 ha been completed, but before the old road was stopped up, the trustees by the permission of B., broke down his fence to make a passage from the new road to the close of A., but did not put up a gate or fence t protect the latter close:-Held, the trustees were wrong-doers, and that B. was responsible for their acts. (Winter v. Charter, 3 Y. & J.308). Sect. 89. "Where the trustees or commissioners of any turnpike re road is to be sold, shall have purchased, or shall be possessed of any piece or pieces ground not wanted for the purposes of such road, it shall and may lawful for such trustees or commissioners to sell and dispose of the sam Provided always, that the said trustees or commissioners, before they shall sell and dispose of any such piece or pieces of ground not want for the purposes of such turnpike road as aforesaid, to any other pe or persons, shall first offer the same to the person or persons of the same shall have been purchased, or to the person or persons lands shall adjoin thereto, and if such person or persons respective 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 same spectively, on an affidavit being made and sworn before a master master extraordinary in the High Court of Chancery, or before of his Majesty's justices of the peace for the county, liberty, pl where such ground is situate, (who are hereby respectively p to take such affidavit), by some person or persons no way t in the said piece or pieces of ground, stating that such offer may by or on behalf of such trustees or commissioners, and that such was then and thereupon refused, or was not agreed to by the or persons to whom the same was made, such affidavit shall, courts whatsoever, be sufficient evidence and proof that such offer made, and was refused, or not agreed to by the person or persis whom such offer was made; (as the case may be); and in case be ascertained by person or persons shall be desirous of purchasing such piece or of ground, and he, she, or they and the said trustees or commission shall differ or not agree with respect to the price thereof, then they or prices thereof shall be ascertained by a jury, in manner in this directed with respect to disputed value of premises to be taken and in pursuance of this act, and the expense of hearing and determi such difference shall be borne and paid in manner herein before dire with respect to such purchases made by the said trustees, mutatir tandis; and the money to arise by the sale or sales of such piec how to be applied parcels of ground shall be applied by the trustees or commissiona the purposes of the act for repairing and maintaining such tura road, but the purchaser or purchasers thereof shall not be answer On dispute as to price, the value to a jury. Purchase-money by trustees. (a) See Allnutt and another v. Pott, (1 B. & Adol. 302; 3 M. & R. 439, ante, 683). (b) See the general clause of Geo. IV. c. 14, s. 18, ante, 658 the property in mines, &c. Highways, Turnpike. 695 7. Making roads, &c. or accountable for any misapplication or non-application of such money; and the conveyances of such piece or pieces of ground shall be made to and diverting the purchaser or respective purchasers thereof, and in such manner and form as is hereinbefore directed (a) with respect to the conveyances to be made of the land constituting any part of the roads hereinbefore di rected to be sold." 3 Geo. 4, c. 126. Form of con veyances. By 4 Geo. IV. c. 95, s. 63, "In case the trustees or commissioners for sale of unneces making or maintaining any turnpike road shall become possessed of any sary tenements. tenements or hereditaments which are useless or unnecessary for the purposes of such road, it shall and may be lawful for the said trustees or commissioners to sell and dispose of the same, in such and the same manner as by the said recited act [3 Geo. IV. c. 126] they are authorized and for the purposes of such road." But this does not apply to toll houses. (See 4 Geo. IV. c. 95, s. 57, post, 730). 4. AGREEMENTS TO SUBSCRIBE FOR MAKING ROADS, AND HOW SUBSCRIPTIONS ENFORCED, &c. sum or sums of money so subscribed, according to the purport of such making, &c. roads, By 3 Geo. IV. c. 126, s. 82, "If any person or persons shall agree to Agreements to advance any sum or sums of money, to be employed in the making or subscribe for pike, and shall subscribe his, her, or their name or names to any writing tions enforced. for that purpose, every such person shall be liable to pay every such writing; and in default of payment thereof within twenty-one days after the same shall become payable according to the purport of such writing, and shall be demanded by the person to whom the same is made payable by such writing, or, if no person be named therein for that purpose, by the treasurer of such turnpike or intended turnpike road, it shall and may be lawful for every such treasurer or other person to sue for and recover the same in any of his Majesty's courts of record, by action of debt or on the case, or by bill, suit, or information, wherein be allowed." hird year shall ign, protection, or wager of law, nor more than one imparlance, By 9 Geo. IV. c. 77, s. 6, "So much of the said recited act of the directs the payment and recovery of any sum or sums of money to be of the reign of his present Majesty [3 Geo. IV. c. 126] as subscribed or agreed to be advanced for the making or maintaining of any turnpike road, shall be and the same is hereby repealed." And by 9 Geo. IV. c. 77, who shall subscribe for or agree to advance any money for or towards the to be made turnpike, shall, and they are hereby required to pay the making or maintaining any turnpike road or roads, or highway intended s. 7, "The several and respective persons sum or sums of money so in such parts and subscribed, within such time or times, and proportions, shall be subscribed by them or on their behalf, or as the trustees of any such turnpike road shall order and direct: and the same shall be deby any writing under their hands, authorize to receive the same; and manded by, and paid to such person or persons as the said trustees shall, if any person or persons shall neglect or refuse to pay the same, or any part thereof, as aforesaid, it shall be lawful for the said trustees to sue for the same in the name of any one of such trustees or of their treasurer or clerk, and to recover the same, together with full costs of suit, in any of his Majesty's courts of record, by action of debt or on the or wager of law, nor more than one imparlance, shall be allowed; and all such monies shall be vested in the said trustees, and applied as in (a) This is now regulated by the 4 Geo. IV. c. 95, s. 55, ante, 692. case, by bill, plaint, suit, or information, wherein no essoign, protection, 8. Repairs, the act for making or maintaining any such turnpike road or roads shall be mentioned." (See form of agreement, post, No. 77). &c. of roads. Decision under local act. The above 6th and 7th sections of the 9 Geo. IV. c. 77, do not repeal the directions in the above 82nd section, and the 148th section (see post, 964) of the 3 Geo. IV. c. 126, or schedule xiv, annexed to that act, as to 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 calls cannot be supported by the party's acknowledgment, after the work 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 t tees, and sent forth for subscription, will not warrant them in calls upon a party signing it. "At a meeting" &c. "it appearing the estimates," ""that, to effect the object" &c., "namely, the new in from" A. to L., "and the diversion " &c., an expense of 4600%, wï 66 be involved," "it was proposed, that the necessary applications be without delay, in order to raise funds to meet the expenses referred and the gentlemen undernamed have proposed to subscribe such san for the purpose as are set opposite to their respective names, and whi it is proposed to secure by way of mortgage on the tolls.” (Id.) whether Assuming this writing to be a proper agreement, quære, would be a defence to an action upon it, that before the act under wh the trustees acted was passed, they (with defendants' knowledge) alter the proposed line: and whether such defence ought to be speci pleaded also, whether it would be a defence, that, after the act pas (and before the above acknowledgment), the diversion was give (Id.) A local turnpike act (3 & 4 Will. IV. c. liv.) empowered the trade to take lands, making compensation, but enacted that the powers given should cease, if the trustees should not, within three years and pay for the lands required for the purposes of the act, thereof as they should deem necessary or proper. In an action fr cal under this statute, quære, whether it was a good plea, that the tras did not within three years agree or pay for the lands required for purposes of the act (specifying the purposes), or so much of the lands as the said trustees deemed necessary or proper. (Id.) Division of subject. VIII. Repairs, &c. of Turnpike Roads. Herein of: 1. Who are liable to such Repairs, p. 697. 2. How Repairs enforced, and herein as to Statute Duty abolished, and of the Application of a Portion of the Highr Rate towards the Repair of Turnpike Roads, p. 698. 3. Subscriptions for, p. 700. 4. Materials for, p. 700. 5. Erection of Mile Stones, &c., p. 705. 6. Watering of Roads, p. 705. 7. Contracts for Repairs, p. 706. |
