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persons obstructing highways by means of trees or hedges, and omitting to cleanse and scour their ditches, drains, and watercourses; and penalties are also imposed upon persons laying stones, timber, or other matter, or leaving any carriages, or implements of husbandry, in the highways; and also upon persons encroaching upon them. (0) Provision is also made for the punishment, by similar penalties, of drivers of carriages who may create annoyances in the public ways by their misconduct. (p) And with the view of preventing the highways from being destroyed by the narrowness of the wheels of the carriages travelling thereon, and by the excessive burdens which might be carried in them, it is enacted that no waggons, &c. the wheels of which are of a specified breadth, shall be drawn with more than a certain number of horses, on pain that the owner forfeit five pounds, and the driver ten shillings, for every horse or beast above the number.(9) With respect to turnpike roads, similar provisions are contained in the general turnpike acts, 3 Geo. 4. c. 126., and 4 Geo. 4. c. 95.
It has been held that if a carrier carries an unreasonable weight, with an unusual number of horses, it is a nuisance to the highway, by the common law. (r) And upon an information for this offence, it was adjudged, that, though it was stated that the carrier went “with an unusual number of horses,” without setting forth what number, yet the information was good, because it was
the excessive weight which he carried that made the nuisance. (s) Every unautho- It appears to have been holden that an indictment will not lie rized obstruc- for setting a person on the footway in a street to distribute handtion of a high- bills, whereby the footway was impeded and obstructed;(t) nor noyance of the for throwing down skins into a public way by which a personal king's subjects, injury is accidentally occasioned:(u) but acts of this kind, if imoffence.
properly performed, might possibly be deemed nuisances; as it seems now to be well established that every unauthorized obstruction of a highway, to the annoyance of the King's subjects, is an indictable offence.(w) Thus where a waggoner occupied one side of a public street in the city of Exeter, before his warehouses, in loading and unloading his waggons, for several hours at a time, both day and night, and had one waggon at least usually standing before his warehouses, so that no carriage could pass on that side of the street, and sometimes even foot-passengers were incommoded by cumbrous goods lying on the ground on the same side, ready for loading, he was held to be indictable for a public nuisance : although it appeared that sufficient space was left for two carriages to have passed on the opposite side of the street. (x) Upon the same principle it has been held to be an indictable offence for stage coaches to stand plying for passengers in the public streets; and Lord Ellenborough, C. J., said. “A stage “coach may set down or take up passengers in the street, this “ being necessary for public convenience : but it must be done in
heid not to be a public nuisance by Lowen v. Kaye, 4 B. and C. 3. reason of the darkeniog, Rex v. Webb, (p) i Geo. 1. st. 2. c. 57. 24 Geo. i Lord Raym. 737.
2. c. 43. and so Geo. 2. c. 22. as to (0) 13 Geo. 3. c. 78. s. 6, 7, 8, 9, 10, drivers in London, Westminster, and 11, 12, 13, 14, 63. which makes pro- the neighbourhood ; and 13 Geo. 3. c. vision also for the removal of such 78. s. 60. as to drivers in general. See annoyances by the surveyor and other the statutes abstracted, 2 Burn. Just. persons. The different sections of the Ibid. and for enactments relative to statute are abstracted in 2 Buro. Just. the misconduct of drivers of public Highways. S. VIII. This statute does coaches, see 5 Burn. Just. Post. S. 4. not say that every highway shall be (9) 13 Geo. 3. c. 78. s. 55. And as to thirty feet wide; and in a late case it furious driving, post. Book III. Chap. was held that it did not authorize the xii. surveyor to remove a fence in front of (r) 3 Com. Dig. Chemin (A 3.) a house for the purpose of widening (8) Rex v. Egerly, 3 Salk. 183. the road, which in that part was not (1) Rex v. Sermon, i Burr. 516. more than twenty-four feet in breadth (u) Rex v. Gill, i Str. 190. -such fence not being on the bighway. (6) Rex v. Cross, 3 Campb. 227.
a reasonable time; and private premises must be procured for “the coach to stop in during the interval between the end of one “ journey and the commencement of another.”(y) In the same case his Lordship intimated that there would be no doubt but that, if coaches, on the occasion of a rout, should wait an unreasonable length of time in a public street, and obstruct the transit of his Majesty's subjects wishing to pass through it in carriages or on foot, the persons who might cause and permit such coaches so to wait would be guilty of a nuisance.(x)
Laying logs of timber in a highway has been already stated as one of the clear instances of nuisance.(a) And the party will not be excused by shewing that he laid them only here and there, so that the people might have a passage through them by windings and turnings.(b) And though it is not a nuisance for an inhabitant of a town to unlade billets, &c. in the street before his house, by reason of the necessity of the case, yet he must do it promptly, and not suffer them to continue in the street an unreasonable length of time. (c) From a recent case it appears also that an obstruction to a public highway will not be excused on the plea of its being necessary for the carrying on of the party's business, though such obstruction be only occasional. It was proved that the defendant, who was a timber merchant, occupied a small timber-yard close to a street, and that from the narrowness of the street and the construction of his own premises he had in several instances necessarily deposited long sticks of timber in the street, and had them sawed into shorter pieces there before they could be carried into his yard : and it was contended on his behalf that he had a right so to do, as it was necessary to the carrying on of his business; and that it could not occasion more inconvenience to the public than draymen taking hogsheads of beer from their drays, and letting them down into the cellar of a publican. But Lord Ellenborough, C. J. said, “If an unreasonable time is occu
pied in the operation of delivering beer from a brewer's dray “ into the cellar of a publican, this is certainly a nuisance. A
cart or waggon may be unloaded at a gateway : but this must "be done with promptness. So as to the repairing of a house, “the public must submit to the inconvenience occasioned necessarily in repairing the house : but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule (3) Rex v. Russell, 6 East. 427. (6) 2 Roll. Abr. 137. i Hawk. P.C. (y) Rex v. Cross, 3 Campb. 224. (z) Id. ibid.
(c) Id. ibid. and 3 Bac. Abr. High(a) Ante, p. 317.
c. 76. S. 145.
“ of law upon this subject is much neglected, and great advan
tages would arise from a strict and steady application of it. I “ cannot bring myself to doubt of the guilt of the present defend“ ant. He is not to eke out the inconvenience of his own pre“ mises by taking in the public highway into his timber yard; “ and if the street be narrow, he must remove to a more commo“modious situation for carrying on his business.”(c) And in repairing or rebuilding a house, care must be taken that the encroachment on the highway be not unreasonable. The owner will himself be responsible for any excess, if committed by his servants; for, according to Eyre, C. J.,“ suppose that the owner “ of a house, with a view to rebuild or repair, employ his own “ servants to erect a hoard in the street (which being for the “ benefit of the public, they may lawfully do,) and they carry it “ out so far as to encroach unreasonably on the highway, it is
« clear that the owner would be guilty of a nuisance.”(d) Of nuisances to As a nuisance in not repairing highways is an offence in the highways by nature of a non-feazance, the principal enquiry upon this subject not repairing them.
will be as to the persons who are liable to be called upon to keep
them in repair. The parish is
The inhabitants of the parish at large are prima facie, and of
common right, bound to repair all highways lying within it, unless right bound to
by prescription, or otherwise, they can throw the burden upon repair highways within it. particular persons.(e) And to such an extent is this obligation,
that if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted by the provisions of a road act from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the parish.) And upon the same principle it was holden that if particular persons were made chargeable to the repair of such highways by a statute lately made, and became insolvent, the justices of peace might put that charge upon the rest of the inhabitants. (8) And where a statute enacted that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose, and another statute, which was passed for paving the streets of the parish, contained a clause that it should not extend to the particular street, it was held that the inhabitants of the parish were not exempted from their common law liability to keep That street in repair ; that the duty of repairing might be imposed upon others, and the parish be still liable; and that the parish were under the obligation, in the first instance, of seeing that the street was properly paved, and might seek a remedy over against the commissioners.(h) And where a local turnpike act, empower
(c) Rex v. Jones, 3 Campb. 230. of the hoard would be equally his
(d) Bush v. Steinman, 1 Bos. & Pul. act.” 407, 408. And the learned Judge pro- (e) i Hawk. P.C. c. 76. s. 5, 6, 7,8. ceeds thus,-“ And I apprehend there Austin's case, 1 Vent. 189. Anon. I Ld. can be but little doubt that he would Raym. 725. be equally guilty if he had contracted (f) Rex v. the Inhabitants of Shefwith a person to do it for a certain field, 2 T. R. 106. sum of money, instead of employing (g) Anon. 1 Lord Raym. 725. his own servants for the purpose; for, (h) Rex v. the Iohabitants of St. in contemplation of law, the erection George, Hanover Square, 3 Campb. 222.
ing the trustees under it to take tolls, directed that the roads should from time to time be repaired by the trustees, out of the money arising by virtue of that act, it was holden that this only made the tolls an auxiliary fund in the hands of the trustees; and that the inhabitants of the township where the road was situate, who by prescription were bound to repair all roads within it, were nevertheless liable to be indicted for the non-repair of the road. (x) No agreement can exonerate a parish from the common law liability to repair ; and a count in an indictment against the corporation of Liverpool, stating that they were liable to repair a highway, by virtue of a certain agreement with the owners of houses alongside of it, was held to be bad; on the ground that the inhabitants of the parish, who are prima facie bound to the repair of all highways within their boundaries, cannot be discharged from such liability by any agreement with others.(i)
With respect to the repair of roads dedicated to the public by the owner of the soil, it has been considered that, notwithstanding the use by the public, the parish will not be liable to repair, unless there has been on their part some act of acquiescence or adoption. The learned Judge, in giving his opinion to this effect, proceeded thus :-“In the case of bridges there always is what is " to be considered as an acquiescence by the county. The county “is not liable except for bridges made in highways; the making “ of the bridge, and thereby obstructing the road while the bridge “ is making, may be treated as a nuisance; and the county may, “ if it think fit, stop its progress by indictment; and the forbearing " to prosecute in that way is an acquiescence by the county in the “ building of the bridge. But in the case of a parish they have
no power to prevent the opening of a road, or to obstruct the “ public use of it. It would be most unjust if, by the public use “ of what was at first a private road, the burthen of repairing it “could be removed from the persons to whom the use of it was “ at first confined, and cast upon the parish.”(8)
Formerly it was held that if a parish lay in two counties, the inhabitants of that part of the parish in which the road charged to be out of repair lay were bound to repair it, and not the inhabitants of the whole parish.(k) But it has been more recently decided that if part of a parish be situate in one county and the rest in another, and a highway lying in one part be out of repair, an indictment against the inhabitants of that part only is bad : and that in such case the indictment must be against the whole parish.(1) And it appears to have been always considered that
(3) Rex v. the Iohabitants of Nether. (i) Rex v. the Mayor, &c. of Livertong, 2 B. & A. 179. It was also hold- pool, 3 East. 86. And see 3 Bac. Abr. en that such inbabitants might, after Highways, (F). conviction, apply by motion for relief (g) Rex v. St. Benedict, 4 B. & A. against the trustees under the 13 Geo. 450. Ante, 311, per Bayley, J. The 3. c. 84. s. 33. And it was holden also road had been made under a private that the 13 Geo.3. c. 84. s. 63. only re- act of parliament for particular indiferred to diversions under writs of ad viduals only. quod damnum, and under 13 Geo. 3. c. (1) Rex v. the Inhabitants of Wes70. s. 16. As to the liability to repair, ton, 4 Burr. 2507. notwithstanding the act of parliament, (1) Rex v. the Inhabitants of Clifton, see also Rex v. the Inhabitants of Ox- 5 T. R. 498. fordshire, post, s. 4. Bridges.
the indictment under such circumstances must be preferred in that county wherein the ruinous part of the road lies.(m) If the indictment be against that part of the parish only which lies in the county in which the indictment is preferred, it must shew on what account such part only is chargeable, otherwise it will be bad in substance : and the objection may be taken, even after an issue on the point, whether the inhabitants of that part were bound to
repair, and a verdict for the King.(a) Repair of high- The statute 34 Geo. 3. c. 64., which, when the boundaries of and allotted by parishes are in the middle of highways, gives two justices power justices on ac to divide such highways by a transverse line, has been already count of the noticed. (n) The object of that statute was to facilitate the repairboundaries of parishes being ing of a highway
ing of a highway so situated : and it enacts that the justices may in the middle
order that the whole of such highway, on both sides, in one of of them.
such parts, shall be repaired by one of such parishes; and that the whole of such highway, on both sides, in the other of such parts, shall be repaired by the other of such parishes : and that they shall cause their order and plan of the highway to be filed with the clerk of the peace. It then enacts “that after such order “ and plan shall be so filed with the clerk of the peace as afore“ said, such parishes, and the inhabitants thereof respectively, " shall be bound, as of common right, to maintain and keep in
repair such parts of such common highway so allotted to them
as aforesaid, and shall be liable to be prosecuted and indicted “ for neglect of such duty, and shall in all respects whatsoever 6 be liable and subject to all the provisions, regulations, and pe5 nalties, contained in any act or acts of parliament, for the repair 5 of the highways which are or shall be in force, in like manner
as they are liable and subject to with respect to the repair of 5 any other common highway within such parishes respectively; 6 and also shall be discharged from the repair of such parts of “ such highway as shall not be included in their respective allot
ments.”(o) It is further enacted that the statute shall not affect or alter the boundaries of counties, lordships, &c. nor any other division of public or private property, nor the boundaries of pas rishes, otherwise than for the purpose of repairing such particular portion of the highways.(P) And also that it shall not relate to highways repairable by any bodies politic or corporate, township, &c. or by a private person : but in case such bodies politic, &c. shall be desirous to be placed under its regulations, and the para ties bound to the repair of the other side of the highway consent, two justices may make an order for the purpose. (9) In a case where road lay in two parishes, and no division and allotment under this
(m) Rex v, the Iohabitants of Clif- “ who live within the counts, upon ton, 5 T. R. 498. ; and Rex v. Weston, “whom the whole fine may be levied; anle, note (k). In Rex v. Clifton, "and the rest of the inhabitants must Lord Kenyon, C. J., in answer to one of “re-imburse those two under the gethe supposed difficulties of this mode "neral highway act.” 18 Gco. 8. c.18. of proceeding, said, “On an indict- s. 47. "ment against a parish for not repair- (a) Rex v. Clifton, 5 T. R. 498.. “ing a road, it is not necessary for the (n) Ante, 316.
Sb.o? prosecutor to serve every individual (0) Sect. 2. ... ne di “in the parish with process; he may (p). Sect. 4. *** Foto Hot sit fon mob "compel the appearance of any two, (9) Sect. 5,0 W?B Nau)