3 to costs unr 5 W. and

1. c. 11. s. 3. ere the dedant has

hoved the

Victment by ertiorari.

"tor, to be paid by the person or persons so indicted or presented, "if it shall appear to the said court that the defence made to such "indictment or presentment was frivolous: or to award costs to "the person indicted or presented, to be paid by the prosecutor, "if it shall appear to the said court that such prosecution was "vexatious." It has been held that it is matter to be determined by inquiry, whether a person is or is not the prosecutor within this section of the statute; and that a court of quarter sessions, before whom a parish is acquitted upon the trial of an indictment for not repairing a highway, may, by their order, award C. and E. to pay costs to the parish, although the names of C. and E. be not on the back of the indictment, and although the indictment originated in a presentment of A. and B. constables, whose names are on the indictment: and it was also held to be enough, if the order is entitled as in the prosecution of C. and E. without shewing further that C. and E. are prosecutors; and that it need not appear on the face of the order that the indictment was tried, if that appear by the record of the proceedings; and also that the order is good in form, if it be for the payment of the costs to the solicitor of the parish. (r) The statute does not direct any certificate to be given in a precise form of words, in order to entitle the party to costs; therefore where the Judge, on the trial of an indictment, certified that the defence was frivolous, without also awarding costs in express terms, it was held that the prosecutor was entitled to costs. (s) But it has also been holden, in the construction of this section of the statute, upon an indictment, which had been removed into the court of King's Bench by certiorari and been sent down for trial to the assizes, where the defendants were acquitted for want of prosecution, that the court of King's Bench had no power to award costs to the defendants on the ground of the prosecution having been vexatious, but that the application ought to have been made to the Judge at Nisi Prius. (t)

The 5 W. and M. c. 11. s. 3. (which has been already cited) enacts, that if the defendant, prosecuting such writ of certiorari as is mentioned in that act, "be convicted of the offence for "which he was indicted, that then the court of King's Bench "shall give reasonable costs to the prosecutor if he be the party "grieved or injured, or be a justice of the peace, mayor, bailiff, "constable, &c. or any other civil officer, who shall prosecute upon the account of any fact committed or done that concerned "him or them as officer or officers to prosecute or present" to be taxed, &c. Upon this statute it has been held, that a justice of the peace who indicts a road for being out of repair is entitled to his costs, after a removal of the indictment by certiorari, if the defendant be convicted. (u) But the prosecutor must shew himself to be the party grieved in order to obtain costs under this statute: therefore, in a case where he did not apply for the costs until two years after judgment given, and it did not appear that he had ever used the highway before it was stopped, and it was

(r) Rex v. Commerell and Ellis, 4 M. and S. 203.

(s) Rex v. Clifton, 6 T. R. 344.

(1) Rex v. Chadderton, 5 T. R.

272.

(u) Rex v. Kettleworth, 5 T. R. 35.

stated, that while the highway was stopped, he had declared that he did not care about it, the court held that he was not entitled to costs as the party grieved, although the prosecution was at his instance and expense. (x) In a recent case, where this statute was considered as a remedial law, (y) it was held that several persons were entitled to costs under it as prosecutors of an indictment, removed by certiorari, for not repairing a highway; one, as constable of the manor within which the highway lay; the others, as parties grieved; they having used the way for many years in passing and repassing from their homes to the next market town, and being obliged, by reason of the want of repair, to take a more circuitous route. (2)

defending

Section 65 of the 13 Geo. 3. c. 78. enacts, that if the inhabitants Payment of of any parish, township, or place, shall agree at a vestry, or other expenses of public meeting, to prosecute any person by indictment for not re- carrying on or pairing any highway within such parish, township, or place, which prosecutions they apprehend such person to be obliged by law to repair, or for agreed upon committing any nuisance upon any highway, or shall agree at such at a vestry or vestry meeting to defend any indictment or presentment against meeting. them, the surveyor may charge in his account the reasonable expenses thereof, after the same shall have been agreed to by such inhabitants at a vestry or public meeting, or allowed by a justice within the limit where such highway shall lie.

other public

SECT. III.

Of Nuisances to Public Rivers.

IN books of the best authority a river common to all men is Rivers consicalled a highway: (a) and if it be considered as a highway, any dered as highobstructions, by which its course and the use of it as a highway ways. by the king's subjects are impeded, will fall within the same principles as those which relate to public roads, and which have been considered in the preceding section of this Chapter. But it should be observed that a learned Judge appears to have considered a river as differing, in some respects, at least, from a highway, where he is reported to have said, "Callis compares a navigable river to 66 an highway: but no two cases can be more distinct. In the "latter case, if the way be foundrous and out of repair, the public "have a right to go on the adjoining land: but if a river should

(x) Rex v. Incledon, 1 M. and S.

268.

(y) By Lord Ellenborough, C. J. in conformity with the opinion of Lord Kenyon, C. J. in Rex v. Kettleworth, 5 T. R. 33. and contrary to the view taken of it by Buller, J. in Rex v. Sharpness, 2 T. R. 48.

where that learned Judge said, that
the statute had always been construed
as strictly as possible.

(z) Rex v. Taunton St. Mary, 3 M.
and S. 465.

(a) 1 Hawk. P. C. c. 76. s. 1. citing 27 Ass. 23. Fitz. 279. 2 Com. Dig. 397. And see Anon. Loft, 556.

Where the

it is still a highway.

happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining "Îands." (b) In the same case the court decided, that the public are not entitled at common law to tow on the banks of ancient navigable rivers. (c)

It has been before observed, that a highway may be changed by course of a ri- the act of God; and upon the same principle it has been holden, ver is changed, that if a water, which has been an ancient highway, by degrees change its course, and go over different ground from that whereon it used to run, yet the highway continues in the new channel, in the same manner as in the old. (d) It has been held that the soil of a navigable river prima facie, though not necessarily, belongs to the king; and is not by presumption of law in the owners of the adjoining lands. (e)

Obstructions in public ri

vers.

It is a common nuisance to divert part of a public navigable river, whereby the current of it is weakened and made unable to carry vessels of the same burthen as it could before. (ƒ) And the laying timber in a public river is as much a nuisance, where the soil belongs to the party, as if it were not his, if thereby the passage of vessels is obstructed. (g) The placing a floating dock in a public river has been also held to be a nuisance, though beneficial in repairing ships: (h) and the bringing a great ship into Billingsgate dock, which, though a common dock, was common only for small ships coming with provisions to the markets in London, appears to have been considered as a nuisance, in the same manner as if a man were so to use a common pack and horse way with his cart, as to plough it up, and thereby render it less convenient to riders. () And the erection of weirs across rivers was reprobated in the earliest periods of our law. "They were considered as public nuisances. "The words of Magna Charta are, that all weirs from henceforth "shall be utterly pulled down by Thames and Medway, and through all England, &c. And this was followed up by subsequent acts treating them as public nuisances, forbidding the "erection of new ones, and the enhancing, straitening, or en"larging, of those which had aforetime existed." (k) Upon the principle, therefore, which has been before stated, (1) that the public have an interest in the suppression of public nuisances, though of long standing, it was held that a right to convert a brushwood into a stone weir (whereby fish would be prevented from passing, except in flood times,) was not evidenced by shewing that forty years ago two-thirds of it had been so converted

(b) By Buller, J. in Ball v. Herbert, 3 T. R. 263.

(c) Ball v. Herbert, 3 T. R. 253.

22

(d) 1 Hawk. P. C. c. 76. s. 4.
Ass. 93. 1 Roll. Abr. 390. 4 Vin.
Ab. Chimin (A).

(e) Rex v. Smith, Dougl. 441.
(f) 1 Hawk. P. C. c. 75. s. 11.
(g) 5 Bac. Abr. Nuis. (A). where it is
also said, "And hence it seems to
"follow that private stairs, from
"those houses that stand by the
"Thames, into it, are common nui-

66

66

without interruption. (m) So in a more recent case it was holden,
that twenty years' possession of the water at a given level was not
conclusive as to the right. Abbott, C. J. said, "If it be ad-
"mitted that this is a public navigable river, and that all his ma-
jesty's subjects had a right to navigate it, an obstruction to such
navigation for a period of twenty years, would not have the
"effect of preventing his majesty's subjects from using it as
"such." (x) But where there was a grant of wreck from Henry
II. to the Abbey of Cerne by all their lands upon the sea confirmed
by inspeximus by Henry VIII. and also a grant from Henry VIII.
of the island of Brownsea and the shores thereof, belonging to the
late monastery of Cerne, together with wreck, &c.; and there was
also evidence that between forty and fifty years ago the proprietor
of the island of Brownsea raised an embankment across a
small bay, and had ever since asserted an exclusive right to the
soil without opposition; it was holden, that although the usage of
forty years' duration could not of itself establish such exclusive
right, or destroy the rights of the public, yet it was evidence from
which prior usage to the same effect might be presumed, and
which, coupled with the general words contained in the grants,
served to establish such right. If, however, it had appeared, that
the public had a right to fish over the place in question, prior to
the forty years, and that the raising the bank was an act of usurp-
ation, the exclusive right would not have been established. (3)
By the 1 Eliz. c. 17. the taking of fish, except with the particu-
lar trammels or nets therein specified, was prohibited, upon pain
of the forfeiture of a certain penalty, of the fish taken, and also
of the unlawful engines: and upon this act it was contended, that
a party laying certain illegal engines called bucks in his own
fishery was guilty of a nuisance; but the court held that it could
not be considered as a nuisance public or private. (n) And it has
been ruled that where a vessel has been sunk in a navigable river
by accident and misfortune, no indictment can be maintained
against the owner for not removing it. (0) Lord Kenyon, C. J.
said, that the grievance had been occasioned, not by any default
or wilful misconduct of the defendant, but by accident and misfor-
tune; and that it would be adding to the calamity to subject the
party to an indictment for what had proceeded from causes against
which he could not guard, or which he could not prevent and
though it was urged that if the defendant was not punishable for
having caused the nuisance, yet it was his duty to have removed
it, and that he was liable to be indicted for not having done so,
the learned Judge said, that perhaps the expense of removing the
vessel might have amounted to more than the whole value of the
property; and that he was therefore of opinion, that the offence
charged was not the subject of indictment. (p)

It is said to have been adjudged that if a river be stopped, to the nuisance of the country, and none appear bound by prescription to clear it, those who have the piscary, and the neighbouring towns,

(m) Weld v. Hornby, 7 East. 195.
(*) Vooght v. Winch, 2 B. & A.

662.

(z) Chad v. Tilsed, 5 Moore 185.

(n) Bulbrooke v. Sir R. Goodere
and others, 3 Burr. 1768.

(0) Rex v. Watts, 2 Esp. R. 675.
(p) Id. ibid.

the indict

ment for obstructing it.

who have a common passage and easement therein, may
be com-
pelled to do it. (g) For nuisances in the nature of obstructions an
indictment will of course lie, if the river be such as may be consi-
dered a public highway.

Of public bridges.

Of private bridges.

Dedication of
a bridge to
the public.

66

SECT. IV.

Of Nuisances to Public Bridges.

THE more ancient cases do not supply any immediate definition or description in terms of what shall be considered "public bridges." But a distinction between a public and a private bridge is taken in one of the books, (r) and made to consist principally in its being built for the common good of all the subjects, as opposed to a bridge made for private puoposes: and though the words "public bridges" do not occur in the statute 22 Hen. 8. c. 5. (called the statute of bridges) yet as that statute empowers the justices of the peace to inquire of " all manner of annoyances of bridges broken in "the highways," and applies to bridges of that description, in all its subsequent provisions, it may be inferred that a bridge in a highway is a public bridge for all purposes of repair connected with that statute. And, "if the meaning of the words public "bridge could properly be derived from any other less authentic "source than this statutable one, they might safely be defined to "be such bridges as all his Majesty's subjects had used freely and "without interruption, as of right, for a period of time competent "to protect themselves, and all who should thereafter use them, "from being considered as wrong doers in respect of such use, in any mode of proceeding, civil or criminal, in which the legality "of such use might be questioned." (s)

But a bridge built for the mere purpose of connecting a private mill with the public highway, or for any other such merely private purpose, would not necessarily become a part of the highway, although the public might occasionally participate with the private proprietor in the use of it: and it is not every sort of bridge, erected possibly for a temporary purpose, during a time of flood, that may have rendered the ordinary fords impassable, or the ordinary means of passage impracticable, which can be considered as a bridge in a highway, to be repaired, when broken down, according to the provisions of the statute of bridges. (t)

As there may be a dedication of a road to the public; (u) so in the case of a bridge, though it be built by a private individual, in the first instance, for his own convenience, yet it may be dedicated

(q) 1 Hawk. P. C. c. 75. s. 13. 5 Bac. Abr. Nuis. (C). 37 Ass. 10. 2 Roll. Abr. 137.

(r) 2 Inst. 701.

(8) By Lord Ellenborough, C. J. in

Rex v. the Inhabitants of Bucks, 12
East. 204.

(1) Rex v. the Inhabitants of Bucks, 12 East. 203, 204.

(u) Ante, 309.