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“hands and seals, it shall and may be lawful, by order of such “justices, at some special sessions, (2) to divert and turn, and to “ stop up such footway, and to divert, turn, stop up, and inclose, “sell, and dispose of, such old highway or bridleway, and to pur“ chase the ground and soil for such new highway, bridleway, or “ footway, by such ways and means, and subject to such excep“tions and conditions, in all respects, as in the said recited act “ mentioned with regard to highways to be widened or divert“ed; (y) and also when it shall appear, upon the view of any two And the jus“ or more of the said justices of the peace, that any public high- tices may also “ way, bridleway, or footway, is unnecessary, it shall and may be ordereces

s unnecessary, it shall and may be sary highways, “ lawful, by order of such justices, or any two of them, to stop bridleways,

com bichwar and footways, “ up, (z) and to sell and dispose of such unnecessary highway, and

? to be stopped “ bridleway, or footway, by such ways and means, and subject to up. 6 such exceptions and conditions in all respects as in the said re“ cited act is mentioned, in regard to highways to be widened and “ diverted; except that the money to arise from such sale, where, “ by the said act, it would be applicable to the purchase of the “ ground and soil of the new highways or bridleways therein men“ tioned, shall be paid to the surveyor or surveyors, and be applied * towards the general repairs of the highways and bridleways of “ the parish, township, or place, within which the said highway, “ bridleway, or footway, so stopped up, shall be situate. Pro“ vided that in the several cases before mentioned a notice, in the But a notice “ form, or to the effect of the schedule (c) to this act annexed, must be affixed

s at the place, “shall be affixed in legible characters at the place and by the &c. be inserted “ side of the said highway, bridleway, or footway, from whence in a newspaper, at the time when the order is made. (y) 13 Geo. 3. c. 78. s. 16. Ante, An order stated that the new road was 311, 312. to pass through the lands of the late (2) This order for stopping up an T. Jones, Esq., and that the justices unnecessary highway must be made at had received evidence of the consent a special sessions, and that fact must of the said T. Jones in his lifetime. appear on the face of the order. Rex But it was held, that this order was v. Sbeppard, 3 B. & A. 414. bad, because it did not thereby appear (c) The form of the notice is this: that T. Jones was the owner of the “ Notice is hereby given, that on the estate at the time when the order was

day of

last an order made. Rex v. Kirk, I B. & C. 21. was signed by J. W. and T. H., two of And an assent to the turning of a road, his majesty's justices of the peace in given under the hand and seal of the and for the county of

for (if solicitor and agent of the party through the order be for turning, diverting, whose ground the new road is to pass, and stopping up, &c. here so state it, is not sufficient. Rex v. Justices of and describe the road ordered to be Kent, 1 B. & C. 622.

turned, diverted, and stopped up;-if (6) It has been holden, that the 13 the order be for stopping up a useless G. 3. c. 78, s. 62. is applicable to pro road, here so state il, and describe the ceedings, by order of two justices, road ordered to be stopped up ;) and under this statute; and that therefore that the said order will be lodged with it is necessary to give reasonable now the clerk of the peace for the said tice of the special sessions at which county, at the general quarter sessions any such order is to be made to the of the peace to be holden at several justices acting and residing in and for the said county, on the within the division ; and that, unless

day of next; and also sach notices be given, the sessions that the said order will, at the said ought not to confirm and enrol such gnarter sessions, be confirmed and enorder, even though there be no appeal rolled, unless upon an appeal against against it. Rex v. the Justices of the same to be then made it be otherWorcestershire, 2 B. & A. 228. . wise determined."

and also affixed “the same is directed to be turned, diverted, or stopped up, and to the door of " also inserted in one or more newspaper or newspapers published the church, &c.

“ or generally circulated in the county where the parish, town

ship, or place in which the highway, bridleway, or footway, so “ ordered to be diverted and turned, or stopped up, as the case may be, shall lie, (or, in case no such newspaper shall be so published or circulated in such county, then in any newspaper or newspapers published or circulated in the nearest adjoining

county) for three successive weeks after the making of such order; “ and a like notice shall be affixed to the door of the church or “ chapel of every parish or township in which such highway, bri“ dleway, or footway, so ordered to be diverted, turned, or stopped

“ up, or any part thereof, shall lie, on three successive Sundays And then the “ subsequent to the making of such order; and the said several order is to be “ notices having been so published, the said order shall, at the returned to

“ quarter sessions which shall be holden within the limit where the clerk of the peace at

“ the highway, bridleway, or footway, so diverted and turned, or the quarter stopped up, shall lie, next after the expiration of four weeks from sessions, and

“ the first day on which such notices shall have been published as be confirmed and enrolled. “ aforesaid, be retnrned to the clerk of the peace in open court,

and lodged with him; and the said order shall, at such quarter “ sessions, be confirmed, and by the clerk of the peace enrolled “ amongst the records of the said court of quarter sessions.”(i)

The third section provides for an appeal to the quarter sessions 55 Geo. 3. c. 68. s. 3. gives by any person aggrieved by such order or proceeding, or by the an appeal to inclosure of any road by an inquisition upon a writ of ad quod the sessions damnum ; and enacts, “ that where any such highway, bridleway, by any person aggrieved by “or footway, shall be so ordered to be stopped up or inclosed, and

“ such new highway, bridleway, or footway, set out and approproceeding, or “ priated in lieu thereof as aforesaid ; or where any unnecessary by the inclosure of any

“ highway, bridleway, or footway, shall be so ordered to be stopped road upon a “ up as aforesaid; it shall and may be lawful for any person or writ of ad quod damnum

“ persons injured or aggrieved by any such order or proceeding, or upon giving “ by the inclosure of any road or highway, by virtue of any inquiten days' “ sition taken upon any writ of ad quod damnum, to make his or notice.

“ their complaint thereof, by appeal to the justices of the peace at “ the said quarter sessions, upon giving ten days' notice in writing “ of such appeal to the surveyor of the highways of the parish, “ township, or place, wherein such highway, bridleway, or footway, “ shall be situated ; and also affixing such notice to the door of " the church or chapel of such parish, township, or place ; (d) “ and the said court of quarter sessions is hereby authorized and “ empowered to hear and finally determine such appeal.” (e)

(1) This computation of four weeks “requisites enrolled amongst the remust be made from the first day of “cords of the sessions, as evidence of giving that description of potice which “the right to the new path.” is last published." Rex v. the Justices (d) These notices must be given in of Kent, 1 B. and C. 623. And the case of an appeal against an inclosure sessions ought not to confirm an order of a highway by virtue of a writ of ad unless it be regularly made. Rex v. quod damnum, and a notice to the party the Justices of Worcestershire, ante, interested is pot alone sufficient. Inp. 313. And by Bayley, J. in Rex v. deed the act is express upon this point. The Justices of Kent, supra. “ The Rex v. the Just. of Essex, 1 B. and A. “public have a right, if a path is di- 373. “verted, to sec the order with all its (e) This section says nothing as to

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The fourth section then enacts, “that if no such appeal be 55 Geo. 3.c. “made, or, being made, such order and proceedings shall be con- 68. s. 4: If no “firmed by the said court, the said inclosures may be made, and

and made, or if “ the said ways stopped; and the proceedings thereupon shall be the order be “ binding and conclusive to all persons whomsoever; and the new confirmed, the

ways may be "highways, bridleways, and footways, so to be appropriated and stop

stopped, and “set out, shall be and for ever after continue a public highway, the proceedbridleway, or footway, to all intents and purposes whatsoever : i

ings are to be “but no inclosures of such old highways, bridleways, or footways, conclusive. “ (except in the case of stopping up of such useless highways, and the new “bridleways, or footways, as hereinbefore is mentioned,) shall be highways, &c.

are to be pub"made, until such new highway, bridleway, or footway, shall be lic highw. “completed and put into good condition and repair, and so certi- &c. to all in“: fied by two justices of the peace upon view thereof; which cer- tents and "tificate shall be returned to the clerk of the peace, and by him

purposes. "enrolled amongst the records of the court of quarter sessions "next after such order as aforesaid shall have been confirmed or “ enrolled pursuant to the directions hereinbefore contained; but “from and after the enrolment (d) of such order and certificate, “such old highway, bridleway, or footway, shall be stopped up; “ and the soil of such old highway or bridleway sold, in the man“ner, and subject to the reservations and restrictions in the said “recited act mentioned, with respect to highways to be diverted “ by virtue of the said recited act.” (e)

A part of section 19 of the 13 Geo. 3. c. 78. remains unrepealed 13 Geo. 3. by the 55 Geo. 3. c. 68.; and by this it is enacted that “where any w

*c. 78. s. 19. “highway, bridleway, or footway, hath been diverted and turned had been di“above twelve months, either from necessity, where the same have verted above

12 months, “ been destroyed by floods, or slips of the ground on which they and oth

ways

costs: and where notice of appeal Common Pleas that if the orders and
against an order for diverting a foot- certificates of magistrates were deli-
way was given, and the order was not vered to the clerk of the peace to be
filed with the clerk of the peace for enrolled, the statute was satisfied, al-
enrolment, but the justices who made though the clerk of the peace made no
it, before the next quarter sessions, transcript thereof, the statute being
gave the appellant notice that they only directory to the officer as to the
abandoned the order, it was held that enrolment; and it is doubted whether
the justices at sessions had no power that statute intended that a transcript
to award to the appellant the costs of should be made. De Ponthieu v. Pen-
preparing to try the appeal. It was nyfeather, 5 Taunt. 634. In the same
contended that the general right of case it seems to have been considered,
appeal given by 13 Geo. 3. c. 78. s. 80. that as the statute 13 Geo. 3. did not
was applicable to this case: but neither prescribe any particular form of cer-
a notice of appeal had been given, nor tificate, by the magistrates, of the new
a recognizance entered into as required road being complete and in good con-
by that section. And qu. whether the dition and repair, previous to the stop-
right of appeal against such an order ping up of the old road, a recital that
does not depend solely upon the above they had so certified, contained either
section of the 55 Geo. 3. C. 68., and not in the order for diverting the road, or
upon the 13 Geo. 3. c. 78. Rex v. in the order for stopping up the old
Wing, 4 B. and C. 182.

road, was a sufficient certificate with-
(d) In section 19 of the 13 Geo. 3. c. in the 19th section.
78. the words were “from and after (e) Viz. the 13 Geo. 3. c. 78. s. 17.
“such certificate," but in other re- anle, 311, 312. The 55 Geo. 3. c. 68,
spects the clause was nearly similar to is not to annul or affect any order or
that in the recent statute; and upon proceeding made or had previous to
that section it was held by the court of the passing of the aet. S. 5.

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made in lieu “were made, or from other causes and motives, if new highways, thereof and “ bridleways, or footways, have been made in lieu thereof nearer or the new ways

“ more commodious to the public, and the same have been acwere to be the « quiesced in, and no suit or prosecution hath been commenced public ways. “ for the diverting or turning the same, every new highway, bri

“ dleway, or footway, set out and used in the place of that so di66 verted and turned, shall from henceforth be the public highway, “ bridleway, or footway, to all intents and purposes whatsoever.” But it has been decided that this clause is only retrospective in its

operation. (fi 34 Geo. 3. c. *It frequently happened that the boundaries of parishes passed 64. Where

through the middle of a highway; one side of the highway being the boundaries of parishes are situated in one parish, and the other side of the highway being in the middle situated in another parish, whereby great inconveniences arose to of a highway,

ghway, the parishes in settling the time and manner of repairing such two justices may divide the highway: and it was therefore provided by the 34 Geo. 3. c. 61. highway by a that two justices, upon application by the surveyor, may divide

le. the whole of any such common highway, by a transverse line

crossing it, into two equal parts, or into two such unequal parts and proportions as in consideration of the soil, waters, floods, the inequality of such highway, or any other circumstances, they think

just. (g) Highways may Besides the methods which have been already mentioned, roads be changed, are sometimes changed or stopped, or new ones created by turnpike &c. by parti

acts, inclosure acts, or other acts of Parliament, containing specific cular acts of

enactments for such purposes; but such new roads may or may not be public, according to the provisions of the particular acts : and we have seen that where a road was set out by commissioners under an inclosure act, the number of persons using or repairing it would not make it a public way, it not being common to all the

king's subjects.(h) Towing path A statute authorizing the making a new course for a navigable under the cir- river

river, and turning the old part into a floating harbour, will not, held not to be without words for the purpose, put an end to a public towing path affected by an upon that part; but such towing path will be liable to be used as act of Parlia

such for the purposes of the harbour: and it will make no difference though the river was a tide river, and at low water admitted of no navigation. By an act 43 Geo. 3. power was given to carry part of the Bristol river along a new course, and to convert the old part into a floating harbour. There had immemorially been a towing-path on the north side; and whether that continued a public towing path along the side of the floating harbour was the question. It was urged that it did not, because this was a tide river, not navigable at low water; and the floating harbour would make it useable at all times, and therefore increase the burthen on

Parliament.

cumstances

ment,

(f) Waite v. Smith, 8 T. R. 133. pose of such division; and afterwards Lord Kenyon, in giving his judgment, enacts as to the liabilities of the pasaid, “If any jobs had been done be- rishes respectively to repair their por“ fore the act passed, that act has cer- tions after such division; which pro“tainly cured them: but the Legisla- visions, as to the repairing, will be fur“ture did not mean to give a sanction ther noticed in a subsequent part of “ to any jobs in future."

this chapter, upon nuisances in not re(g) The act sets forth particularly pairing highways. the proceedings to be had for the pur- (h) Ante, 308.

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the land. But, after taking time to consider, the court held that as there were no words in the act to annihilate the right of the public, that right would continue notwithstanding the improved state of the water within the bank; that such water being still applied to navigation purposes, for the use of the public, was still in a state to derive the benefit from the path for which the path had first been given to the public: and judgment was given for the King. (a) In some instances a highway may, it seems, be in some measure And in some

inlilol. instances by changed or confined to a particular course by a private individual;

'; private indias, where it lies over an open field, and the owner of the field turns viduals. it to another part of the field for his own convenience, or incloses the field for his own benefit, leaving a sufficient way. (0) But in such case, as the public had clearly a right before such alteration to go upon the adjacent ground when the way was out of repair, the owner of the field can only make the alteration subject to the onus of making a good and perfect way. (k) Having thus inquired concerning the different sorts of highways, Of nuisances,

to highways by and the methods by which they may be changed, widened, or Obstruch stopped up, we may now consider of nuisances to highways, by obstructions.

There is no doubt but that all injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's subjects, are public nuisances at common law. (1) And it is clearly a nuisance at common law to erect a new gate in a highway, though it be not locked, and open and shut freely; because it interrupts the people in that free and open passage which they before enjoyed and were lawfully entitled to : but where such a gate has continued time out of mind, it shall be intended that it was set up at first by consent, on a composition with the owner of the land, on the laying out the road ; in which case the people had never any right to a freer passage than what they continue to enjoy. (m)

It is a nuisance to suffer the highway to be incommoded by Obstructions reason of the foulness of the adjoining ditches, or by boughs of ar

of ances in hightrees hanging over it, &c.; and an occupier, as such, though at ways by means will only, is indictable for suffering a house standing upon the of trees hanghighway to be ruinous; and it is said that the owner of land next ditches hot adjoining to the highway ought of common right to scour his being scoured, ditches; but that the owner of land, next adjoining to such land, carriages, &c.

left in such is not bound by the common law so to do, without a special pre- highways, scription : and it is also said that the owner of trees hanging over conduct of a highway, to the annoyance of travellers, is bound by the common drivers, and

the excessive law to lop them; and that any other person may lop them, so far loading of as to avoid the nuisance. (n) The general highway act also relates carriages. to offences of this description, imposing pecuniary penalties upon

(a) Rex v. Tippett, Mich. T. 1819, (1) i Hawk. P. C. c. 76. s. 144. MS. Bayley, J. The indictment was (m) i Hawk. P. C. c. 75. s. 9. and c. for an obstruction of the public path. 76. s. 146. 3 Com. Dig. Chemin (A. 3.) (i) 3 Salk. 182.

(n) 3 Bac. Abr. Highways (E). 1 (k) Id. Ibid. And see the cases col. Hawk. P. C. c. 76. s. 5, 8. 147. But lected in Rex v. Stoughton, 2 Sauud. the building of a house in a larger 160. a. note (12). And see also post, manner than it was before, whereby as to the repair of highways.

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