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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 majesty's subjects had a right to navigate it, an obstruction to such
navigation for a period of twenty years, would not ave the “ effect of preventing his majesty's subjects from using it as “ such.” (2) 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 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 usurpation, the exclusive right would not have been established. (s)
By the 1 Eliz. c. 17. the taking of fish, except with the particu- Cases which lar trammels or nets therein specified, was prohibited, upon pain have been beld of the forfeiture of a certain penalty, of the fish taken, and also structions. 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. (o) 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 misfortune; 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 of the liabinuisance of the country, and none appear bound by prescription to lity to clear clear it, those who have the piscary, and the neighbouring towns, a river, and of
(m) Weld v. Hornby, 7 East. 195. (n) Bulbrooke v. Sir R. Goodere (3) Vooght v. Winch, 2 B. & A. and others, 3 Burr. 1768. 662.
(0) Rex v. Watts, 2 Esp. R. 675. (z) Chad v. Tilsed, 5 Moore 185. (p) Id. ibid.
who have a common passage and easement therein, may be comstructing it. 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 considered a public highway.
the indictment for ob
Of Nuisances to Public Bridges.
Of 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 is 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,
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: (1) 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
Of private bridges.
(q) i Hawk. P. C. c. 75. s. 13. 5 Bac. Rex v. the Inhabitants of Bucks, 12 Abr. Nuis. (C). 37 Ass. 10. 2 Roll. East. 204. Abr. 137.
(1) Rex v. the Inhabitants of Bucks, (r) 2 Inst. 701.
12 East. 203, 204, (8) By Lord Ellenborough, C. J. in (u) Ante, 309.
by him to the public, by his suffering them to have the use of it, and by their using it accordingly. (w) And though, where there is such a dedication, it must be absolute, (-2') yet it may be definite in point of time; so that a bridge may be a public bridge, if it be used by the public at all such times only as are dangerous to pass through the river. (y) A bar across a public bridge, kept locked, except in times of Hood, is conclusive evidence that the public have only a limited right to use the bridge at such times: and if an indictment for not keeping it in repair states that it is used by the king's subjects, “ at their free will and pleasure,” the variance is fatal. (-)
But a bridge built in a public way, without public utility, is in- A bridge may dictable as a nuisance; and so it is if built colourably in an imper- be indictable
as a nuisance. fect or inconvenient manner, with a view to throw the onus of rebuilding or repairing it immediately on the county. (a)
Where a bridge is, in the sense which has been described, a Of puisances bridge in a highway, it will of course be as public as the highway obstructions. itself in which it is situate, and of which, for the purpose of passage, it must be understood to form a part. (b) All actual obstructions, therefore, to such bridges will come within the rules already stated with respect to nuisances to highways by obstruction, (c) and do not require a repetition in this place. There is, however, one case not previously mentioned, where the defendant was indicted for not repairing a house adjoining to a public bridge, which he was bound to repair ratione tenure, but permitted it to be so much out of repair that it was ready to fall upon people passing over the bridge. It was found by a special verdict that the defendant was only tenant at will of the house : but the court adjudged that he ought to repair, so that the public should not be prejudiced ; and though not properly chargeable to repair the house ratione tenuræ, yet that the averment should be intended of the possession, and not of the service. (d). It may also be mentioned that by the 13 Geo. 3. c. 78. s. 63. if any person collecting the tolls of a public bridge shall keep any victualling house, alehouse, or other place of public entertainment, or shall sell, or permit to be sold therein, any wine, beer, liquors, &c. by retail, he shall, upon conviction before a justice of the peace, 'forfeit five pounds for every such offence.
The nuisances which more frequently arise to the public in Of nuisances respect of bridges are in the nature of non-feasance, from the to bridges by
not repairing neglect of the parties, upon whom the burden is thrown, to keep them. them in a proper state of repair.
(w) Rex v. the Inhabitants of Gla- ham, 4 Campb. 189. morgan, 2 East. 356. Glusburne bridge (a) Rex v. the Inbabitants of the case, 5 Burr. 2594. 2 Blac. R. 687. West Riding of Yorkshire, 2 East. R. Rex v. the Inhabitants of the West 342. But see post, 43 Geo. 3. c. 69. s. Riding of Yorkshire, 2 East. 342. 5. as to the liability of counties to reAnd see post, 349, et seq.
pair bridges thereafter to be erected. (x) According to the doctrine in (6) Rexv, the Inhabitants of Bucks, Roberts v. Karr, i Campb. 262. in the 12 East. 202, 203. note. And see ante, 310.
(c) Anle, 317, et seq. (y) Rex v. the Inhabitants of North- (d) Reg. v. Watson, 2 Lord Raym. ampton, 2 M. and S. 262.
856. (7) Rex v. the Marquis of Bucking
The county is As parishes are bound to repair the public ways within their right liable to
district; so the inhabitants of the county at large are, prima facie, the repair of and of common right, liable to the repair of all public bridges all public
within its limits, unless they can shew a legal obligation on some bridges: but they may
persons or public bodies to bear the burthen : (e) and this shew that without any distinction as to foot, horse, or carriage bridges. (f) others are
The statute of bridges shews that the burthen is prima facie on liable.
the county; and it is exactly analogous to the liability of the parish to repair a road. (2) But a hundred or parish, or other known portion of a county, may by usage and custom be chargeable to the repair of a bridge erected within it. (a) And a corporation aggregate, either in respect of a special tenure of certain lands, or in respect of a special prescription, and also any other persons by reason of such special tenure, may be compelled to repair them. (9) And if a part of a bridge lie within a franchise, those of the franchise may be charged with the repairs for so much : also by a special tenure a person may be charged with the repairs of one part of a bridge, and the inhabitants of the county be liable to repair the rest. () A prescription, that the lords of the manor ought to repair a bridge is good, being laid ratione tenure, by reason of the demesnes of the manor.(i) And, as the obligation is by reason of the demesnes of the manor, if part of the demesnes be granted to an individual, he will be obliged to contribute to the repairs : but the indictment may be against any of the tenants of the demesnes, and it will be no defence on an indictment against one of them that another is also liable. (k) And where an individual is liable to repair a bridge, his tenant for years, being in possession, will be under the same obligation, and liable to an indictment for the neglect. (l) We have seen that the inhabitants of a district cannot be charged ratione tenure, because unincorporated inhabitants cannot quà inhabitants hold lands; and that a
(e) 2 last. 700, 701. in the comment not appear to be liable upon a general upon the statute of bridges, 22 Hen. 8. prescription. 2 Inst. 700. 13 Co. 33. c.5. The reparation of public bridges i Salk. 358. 3 Salk. 77, 381. and see was part of the trinoda necessitas lo ante, 323. wbich, by the ancient law, every man's (h) 1 Bac. Abr. Bridges. Hawk. estate was liable, namely, expeditio P. C. c. 77. s. 1. contra hostem, arcium constructio, et (1) Reg. v. Sir John Bucknall, 2 pontium reparatio.
Lord Raym. 304. In the first instance, (f) By Lord Ellenborough, C. J. in at Nisi Prius, (2 Lord Raym. 792) Rex v. the Inhabitants of Salop, 13 Holt, C. J. roled that the prescription East. 97. The point was not argued, was good without saying ratione teas it was brought before the court by nuræ, on the ground that the manor a special case, reserved upon the trial might have been granted to be held by of an indictment at the sessions, which the service of repairing the bridge bethe court considered as a very great fore the statute quia emptores terra. irregularity, and did not pronounce rum, or that the king might make such any judgment.
a grant, he not being bound by the (-) By Bayley, J. in Rex v. the In- statute: but he afterwards changed his habitants of Oxfordshire, 4 B. and C. opinion.
(k) Id. ibid. 792. Reg. v. the Duchess (a) Rex v. Ecclesfield, 1 B. and A. of Buccleugh, 1 Salk. 358. And see 359. Per Cur.
ante, 325. (g) 1 Hawk. P. C. c. 77. s. 2. i Bac. (1) Reg. v. Sir John Bucknall, 9 Abr. Bridges. A body politic may be Lord Raym. 804. And see Reg. v. bound either ratione icnuræ sive præ- Watson, 2 Lord Raym. 656. anle, 343, scriptionis : but a private person docs 325. See also ante, 330.
an act of
district cannot be charged by prescription alone, without a consideration, to repair what is not within such district. (a) As the Liability not burthen resting upon a county to repair the public bridges is ex- removed by actly analogous to the liability of a parish to repair a road, it is
Parliament. not removed by an act of Parliament directing trustees to lay out the tolls thereby granted in repairing roads, and empowering them to make and repair bridges. To an indictment against a county for not repairing a bridge in a public highway, there was a plea that, by a certain act of Parliament for amending this road, certain trustees were directed to lay out the tolls thereby granted in repairing the roads, and were empowered to make and repair bridges; that the bridge in question was erected by the trustees under and by virtue of that act; that the trustees had been liable to repairs, and had repaired the bridge from the time it was so erected; and that they were still liable to keep it in repair. The replication traversed that they were so liable. And the court held that the bridge having been erected for public purposes, in a public highway, the common law liability to repair attached upon the inhabitants of the county as soon as it was built; and that the plea was clearly insufficient to exonerate them, as it did not aver that the trustees had funds adequate to the repair of the bridge. (b)
In a late case a question was made, as to the evidence on which a jury might find that the defendants were an immemorial corporation, and liable, in their corporate character, to the repair of a bridge.
The evidence was of a charter of Edward VI. granted upon the Stratford upon recited prayer
of the inhabitants of the borough of Stratford upon Avon case: Avon, " that the king would esteem them, the inhabitants, worthy corporation “ to be made, reduced, and erected, into a body corporate and po- liable in their “ litic;” and thereupon proceeding to “grant (without any word corporate cha“ of confirmation) unto the inhabitants of the borough, that the repair of a “ same borough should be a free borough for ever thereafter;" bridge. and then proceeding to incorporate them by the name of the bailiffs and burgesses, &c. And this, it was considered, would, without more, imply a new incorporation. But the samé charter recited that it was an ancient borough, in which a guild was theretofore founded, and endowed with lands, out of the rents, revenues, and profits of which a school and an alms-house were maintained, and a bridge was from time to time kept up and repaired; which guild was then dissolved, and its lands lately come into the king's hands; and further recited that the inhabitants of the borough, from time immemorial, had enjoyed franchises, liberties, free cus
(a) Rex v. Machynlleth, ante, 325. “ trustees had funds adequate to the
(6) Rex v. the Inhabitants of Ox-" repair of this bridge. Even then, I fordshire, 4 B. and C. 194. And it “think, a valid defence would not seems that even if the fact of adequate “have been made out; for the public funds in the hands of the trustees had " have a right to call upon the inhabeen averred and proved, the county "bitants of the county to repair, and would still have been primarily liable, they may look to the trustees under and must have taken their remedy “the act. Id. 197. And see the opiagainst the trustees. Bayley, J. said, nions of Holroyd, J. and Littledale, J. "It was necessary to allege in the And see Rex v. Nethertong, and other "plea, and prove at the trial, that the cases, ante, 321.