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statute had been made, it was held that an indictment against one of the parishes for not repairing one side of the road ought to have stated that the parish was liable to repair ad filum viæ : and it seems that in such case it is not sufficient to aver that a certain part of the road (setting out the length and one half of the breadth) is out of repair, and that the inhabitants, &c. ought to repair it. (r)

Exceptions were taken to an indictment for suffering a highway Exceptions to to be very muddy, and so narrow that people could not

an indictment; withpass

that it is no out danger of their lives : first, that it is no offence for a highway offence for to be dirty in winter; and, secondly, that the parish had no power higliways to to widen it, as there was a particular power vested by act of par- that the parish liament in justices of the peace to do so.

The indictment was is not bound held bad for want of saying that the way was out of repair; and to widen a

highway. one of the Judges observed, that saying that the way was so narrow that the people could not pass was repugnant to its being “the king's highway;" for that if it had been so narrow, the people could never have passed there time out of mind.(s)

But though the parish is bound prima facie and of common Particular subright to repair the highways within it, yet a particular subdivision divisions of a of a parish, or particular individuals, may be liable to relieve them parish or parfrom that onus, by reason of prescription, or the inclosure of the viduals may be land in which the highway lies.

liable to repair

highways. Thus the inhabitants of a district, township, or other division of a parish, and also particular individuals, may be bound to repair a highway by prescription ; and it is said, that a corporation aggregate may be charged by a general prescription that it ought and hath used to do it, without shewing that it used to do so in respect of the tenure of certain lands, or for any other consideration; becanse such a corporation never dies, and therefore, if it were ever bound to such a duty, it must continue to be so ; neither is it any plea that the corporation have done it out of charity. (1) But it is said, that such a general prescription is not sufficient to charge a private person; because no man is bound to do a thing which his ancestors have done, unless it be for some special reason; as having lands descended to him holden by such service, &c. (u) And a man cannot be liable to repairs merely as lord of a manor, though it is stated that the lords have repaired it from time whereof, &c. (a) This applies to individual persons only, and not to an aggregate of persons who compose the inhabitants of a district or division in a parish or township in which the road is situate. (b) But it has been holden in a late case, that where a parish is charged with the reparation of a highway, lying in aliena parochia, a consideration must be stated. The point arose upon an indictment against a parish for not repairing a highway lying within it, and a plea which stated that the inhabitants of another parish

(r) Rex v. the Inhabitants of St. Abr. Highways (F). Pancras, Peake Rep. 219.

(u) Id. Ibid. (8) Rex v. the Inbabitants of Stret- (a) Lord Raym. 792, 804. It should ford, 2 Lord Raym. 1169. And it is be laid ratione tenure by reason of the the same as to a bridge: an indictment demesnes of the manor. does not lie for not wideging it. (6) Rex v. Ecclesfield, Barnew.and

(1) I Hawk. P.C. c. 76. s. 8. 3 Bac. Alders. 818.

“ have repaired, and been used and accustomed to repair, and of “ right ought to have repaired;" and it was held ill, and that the plea ought to have shewn a consideration. Holroyd, J. at the conclusion of his judgment said, " I say nothing as to the form of

pleading where the highway lies within a township or division e of a parish which is charged with the repairs.” (c)

And in a more recent case, where the inhabitants of a county pleaded that the inhabitants of a particular township had immemorially repaired the highway at the end of a county bridge, situate within the township, the court held that it was not necessary to state any consideration for such prescription. (d)

And where, in an indictment against a township for non-repair of a road, the prescription stated and proved was, that its inhabitants had been immemorially used to repair all roads situate within it, which but for such usage would be repairable by the parish at large; it was holden that this placed the township in the situation of a parish; and that it was necessary for the defendants to shew, by evidence, some other persons in certainty who were liable, in order to deliver themselves from their liability to repair. (e) It


be observed that, where the origin of a way is accounted for, the prescription is destroyed. (w)

The liability of a township to repair by prescription may, as we have seen,

be such as to place the township on the same footing as a parish, in respect to the roads within its limits. The liability, may be to repair all highways within the township, which but for the prescription and usage would have been repairable by the parish at large; and in such case the township must not only re-, pair immemorial roads, but also any new highway which may have been made within its limits, and which the parish might have been called upon to repair in the absence of any such prescription. (x) But an extru-parochial place is not as such bound of common right to repair its own roads, and some ground for charging it must be stated : at least, unless it be shewn negatively that it is not parcel of any district bound to repair the district roads. The indictment , stated, that part of a common King's highway, in the extra-parochial hamlet of Kingmoor, was out of repair, and that the inhabitants of the hamlet ought to repair it. After judgment for the crown, a writ of error was brought, on the ground that no immemorial obligation, nor any special ground to make them liable, was, stated. It was urged that they were liable of common right, and, that an extra-parochial place stood in this respect on the footing of a parish : but the court thought otherwise ; and held that they could not consider a common law obligation as attaching upon

the inhabitants of the hamlet from necessity, unless it were shewn negatively that the hamlet was not parcel of any other district liable to repair its own roads; and the judgment was reversed. ()

and A.

(c) Rex v. St. Giles, Cambridge, 5 post, 331 M. and S. 260. And see Rex v. Ma

(20Rex chynlleth, post. 325.

(x) 'Kex v. Ecclesfield, (d) Rex v: West Riding of York. 348.' Rex v. Nethertong, 2 B. and shire, 4 B. and A. 623,

Hatfield, A B. and A.35. (e) Rex v. Hatfield, 4 B. and A. 75. () Rex v. Kingmoor, 2 B. and C. The general issue was pleaded. See' 190.

179. Rex v.

The inhabitants of a district cannot be charged ratione tenure, because unincorporated inhabitants cannot, qua inhabitants, hold lands : and a district cannot be charged by prescription alone (without a consideration) to repair what is not within such district. These points were decided in the case of a bridge. The indictment stated that an ancient bridge, in the parishes of M. and P., in the King's highway there, was out of repair ; and that the inhabitants of the said parish of P. and of the town of M. aforesaid, from time whereof, &c. and by reason of the tenure of certain lands in the said parish and town, had repaired and of right ought to repair it. After judgment for the crown a writ of error was brought ; and it was urged that inhabitants as such could not be charged ratione tenure ; and that as it did not appear that any part of the bridge was in the township of M., the indictment against the township, on the ground of immemorial obligation, could not be supported; and the court being of that opinion the judgment was reversed.(a)

Where lands bound to the repair of a bridge or highway ratione Each of several tenuræ are conveyed to several persons, every one of the grantees, persons, being being a tenant of any parcel, is liable to the whole charge, and lands bound to must have contribution from the others. So where a manor so repair, is liable bound is conveyed to several persons, a tenant of any parcel, either to the whole

of the demesnes or services, is liable to the whole repair, and may
call upon the tenants of the residue to contribute; and the grantees
are chargeable with the repair, though the grantor should convey
the lands or manor discharged of the repair ; and the grantees
must have their remedy against the grantor. And the reason
seems to be, because the whole manor or land, and every part
thereof, in the possession of one tenant, being once chargeable
with the repair, it shall remain so, notwithstanding any act of the
owner. For the law will not suffer him to apportion the charge,
and so make the remedy for the public benefit more difficult; or,
by alienations to insolvent persons, to render the remedy against
such persons quite frustrate. And though such lands or manor
come into the hands of the crown, yet the obligation or duty con-
tinues; and any person afterwards claiming the whole, or any pa
of it, under the crown, will be liable to an indictment for not
repairing. (2)

As an inclosure of a highway takes away the liberty and con- of the liability
venience which the public have of going upon the adjoining lands to repair by
when the highway is out of repair, (y) it has been holden, that if reason of in-
the owner of lands not inclosed next adjoining to a highway in-
closes his lands on both sides, he is bound to make a perfect good
way as long as the inclosure lasts; and is not excused by shewing
that he has made the way as good as it was at the time of the in-
closure ; because, if it was then defective, the public might have
gone upon the adjoining land. (z) So if a man incloses land on
(a) Rex v. Machynlleth, 2 B. and C. combe's case, Cro. Car. 366. Henn's

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case, Sir W. Jones, 296., Sty. 364. 2 (5) Note (9) to Rex v. Stoughton, 2 Lord Raym. 1170. i Hawk. P. C. c. Sauod. 159. citing Reg. v. Duchess of 76. S. 6. 3 Bac. Abr. Highways (F). Buccleugh, 1 Salk. 358. 3 Viner Ap- Rex v. Stoughton, 2 Saund. 160. note portionment, 5. pl. 9.

(12). And see Steel v. Prickett and (y) Ante, 317.

others, 2 Stark. R. 469. (7) 1 Roll. Abr. 390. (B) pl. 1. Dun



a writ of ad

one side, which has been anciently inclosed on the other side, he ought to repair all the way: but if there is no such ancient inclosure on the other side, he ought to repair but half the way. Thus, if there be an old hedge, time out of mind, belonging to A, on the one side of the way, and B. having land lying on the other side, make a new hedge, there B. shall be charged with the whole repair : but if A. make a hedge on the one side of the way, and B. on the other, they shall be chargeable by moieties. (a) But a person, having made himself liable to repair a highway by reason of inclosure, may relieve himself from the burthen of any further reparations by throwing it open again. (b) Thus it was ruled that if a person remove an encroachment, and leave that part of the road which was injured by the encroachment in a perfect state, his liability to repair ratione coarctationis ceases.(c) But it was held,

in the same case, that if a person charged ratione tenure pleads - that the liability to repair arose from an encroachment which has

been removed, and it appears that the road has been repaired by the defendant for twenty-five years since the removal of the alleged encroachment; this is presumptive evidence that the defendant repaired ratione tenure generally, and renders it necessary for him to shew the time when the encroachment was made. (d) Where a road has been so inclosed, and it is insufficient, any passenger may

break down the inclosure, and go over the adjoining land. (e) Repairs of a Where a new road is made in pursuance of a writ of ad quod road made in pursuance of

damnum, the owner of the land is not obliged to repair the new

road, unless the jury impose such a condition upon him: but the quod damnum. parishioners ought to keep it in repair for the future; because,

being discharged from repairing the old road, no new burden is laid upon them, but their labour is only transposed from one place to another. But if the new road lie in another parish, then the

person who sued out the writ and his heirs ought not only to make het

it, but to keep it in repair; otherwise the parishioners of such other parish would have a new charge upon them, and no recompence, by the former road being taken away. (f) Where a highway is inclosed under the authority of an act of Parliament for dividing and inclosing open common fields, the person who incloses

is not bound to repair it. (g) 3 Geo. 4. C. 126. 8. 106. The general turnpike act 3 Geo. 4. c. 126. s. 106. enacts, that Trustees of it shall and may be lawful for the trustees or commissioners of any turnpike roads turnpike road, to contract and agree with any person or persons persons liable liable to the repair of any part of the road, under the care and to repair any

management of such trustees or commissioners, or of any bridges part of such

thereon, by tenure, or otherwise, for the repair thereof, for such conceraing the term as they shall think proper not exceeding three years; and to future repair contribute towards the repair of such road or bridges, such sum or of them.

(a) 8 Bac. Abr. Highways (F). Rex though he lay the ground open to the v. Staughton, 1 sid. 464. Hawk. P. highway. 3 Salk. 392. C. c. 76. s. 7. Rex v. Stoughton, 2 (c) Rex v. Skinner, 5 Esp. 219. Saund. 161. pote (12).

(d) Id. Ibid. (6) 3 Bac. Abr. Ibid. Rex v. Fleck- (e) 3 Salk. 182. now, 1 Burr. 465. i Hawk. P. C. c. f) Ex parte Veonor, 3 Atk. 771,2. 76. S. 7. But where the party is I Hawk. P. C. c. 76. S. 7, 74, 7,5.. charged with the repairing ratione te- (8) Rex v. Flecknow, I Burr. 465. nuræ, he will be still bound to repair,

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sums of money as they shall think proper out of the tolls arising on such turnpike road. The sixty-third section of the repealed And where tumpike act 13 Geo. 3. c. 84. s. 62. enacted, that where parts of roads are

turned, the bighways or turnpike roads were turned by legal authority, to

persons liable make the same nearer or more commodious, the inhabitants or to the repair of other persons, who were liable to the repair of the old highway, the old he nieble should be liable to the repair of the new, or so much thereof as to the repair of should be equal to the burthen and expense of repairing such old the new roads, highway from which they were exonerated by so turning the same. or of certain And if the several parties interested could not agree, two justices them.

proportions of were empowered in the manner therein mentioned to view and settle the same; and to fix a gross sum or annual sum, to be paid by the inhabitants or other such persons towards the repair of the new highway. And provisions of a nature nearly similar are contained in the late turnpike act 4 Geo. 4. c. 95. s. 68.

The general statutes, making provision for repairing highways, Statutes 13 were repealed and reduced into one act: namely, the 13 Geo. 3. Geo. 3. c.78. c.78. (A) and the general statutes at present existing with respect other statutes, to turnpike roads, are the 3 Geo. 4. c. 126. and the 4 Geo. 4. c. 95. relating to the There are also inclosure acts and other statutes, both of a pub- repairing of lic and private nature, which relate to the repairs and manage. turnpike roads. ment of the roads in particular places and districts. But these acts, and especially the general statutes, are of greať length, and branch out into a variety of clauses, a detail of which would not be consistent with the proposed limits of this work. It may, however, be useful to notice a few of the decided points which relate to their construction.

It is no excuse for parishioners, being indicted at common law The statutes for not repairing the highways, that they have done their full do not abrogate work required by statute ; for the statutes, being made in the law provisions. affirmative, do not abrogate any provision of this kind by the common law. (i)

If trustees under a road act turn a road through an inclosure, Trustees under and make the fences at their own expense, and repair them for a road act not several years, they cannot be compelled to continue such repairs, repair fences. unless there be a special provision in the act 'to that effect. (k) In this case it was considered, that what is meant by a road is the surface over which the king's subjects have a right to pass, and not the fences on each side: and that the owners of the land are bound to repair the fences on each side, unless otherwise provided by the act. (1)

It has been held that a turnpike act, giving directions for repair- Construction ing the road to and from a town, excludes the town. (m) in the of a turnpike case upon which the decision was made it was stated, that the ing the repairs town had, lately before the act was passed, been paved by the in- of a road in a


(h) Some of its provisions and enact- ) i Hawk. P. C. c. 76. s. 43. 8 Bac. ments have received alterations from Abr. Highways (G). time to time by different statutes ; (Ic) Rex v. the Com. of the Llandilo amongst others by 34 Geo. 3. c. 64. District, 2 T. R. 232. ante, 329. 34 Geo. 3. C. 74. 44 Geo, (1) Id. Ibid. 3. c. 52. 54 Geo. 8. c. 109. and 55 (m) Hammond v. Brewer, 1 Burr. R. Geo. 3. c. 68. Ante, 312. et seq.


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