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, (a) 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 flood, 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. (2) 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 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 bridge in a highway, it will of course be as public as the highway 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 tenure, 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 respect of bridges are in the nature of non-feasance, from the neglect of the parties, upon whom the burden is thrown, to keep them in a proper state of repair. (w) Rex v. the Inhabitants of Glamorgan, 2 East. 356. Glusburne bridge case, 5 Burr. 2594. 2 Blac. R. 687. Rex v. the Inhabitants of the West Riding of Yorkshire, 2 East. 342. And see post, 349, et seq. (x) According to the doctrine in Roberts v. Karr, 1 Campb. 262. in the note. And see ante, 310. (y) Rex v. the Inhabitants of Northampton, 2 M. and S. 262. (2) Rex v. the Marquis of Bucking ham, 4 Campb. 189. (a) Rex v. the Inhabitants of the West Riding of Yorkshire, 2 East. R. 342. But see post, 43 Geo. 3. c. 59. s. 5. as to the liability of counties to repair bridges thereafter to be erected. (b) Rex v. the Inhabitants of Bucks, 12 East. 202, 203. (c) Ante, 317, et seq. (d) Reg. v. Watson, 2 Lord Raym. 856. as a nuisance. Of nuisances to bridges by obstructions. Of nuisances to bridges by not repairing them. The county is of common right liable to the repair of all public bridges: but they may shew that others are liable. As parishes are bound to repair the public ways within their district; so the inhabitants of the county at large are, prima facie, and of common right, liable to the repair of all public bridges within its limits, unless they can shew a legal obligation on some other persons or public bodies to bear the burthen: (e) and this without any distinction as to foot, horse, or carriage bridges. (ƒ) The statute of bridges shews that the burthen is prima facie on 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. (g) 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. (h) A prescription, that the lords of the manor ought to repair a bridge is good, being laid ratione tenuræ, by reason of the demesnes of the manor. (2) 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. () 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 Inst. 700, 701. in the comment upon the statute of bridges, 22 Hen. 8. c. 5. The reparation of public bridges was part of the trinoda necessitas to which, by the ancient law, every man's estate was liable, namely, expeditio contra hostem, arcium constructio, et pontium reparatio. (f) By Lord Ellenborough, C. J. in Rex v. the Inhabitants of Salop, 13 East. 97. The point was not argued, as it was brought before the court by a special case, reserved upon the trial of an indictment at the sessions, which the court considered as a very great irregularity, and did not pronounce any judgment. (2) By Bayley, J. in Rex v. the Inhabitants of Oxfordshire, 4 B. and C. 196. (a) Rex v. Ecclesfield, 1 B. and A. 359. Per Cur. (g) 1 Hawk. P. C. c. 77. s. 2. 1 Bac. Abr. Bridges. A body politic may be bound either ratione tenure sive præscriptionis: but a private person does not appear to be liable upon a general prescription. 2 Inst. 700. 13 Co. 33. 1 Salk. 358. 3 Salk. 77, 381. and see ante, 323. (h) 1 Bac. Abr. Bridges. 1 Hawk. P. C. c. 77. s. 1. (i) Reg. v. Sir John Bucknall, 2 Lord Raym. 804. In the first instance, at Nisi Prius, (2 Lord Raym. 792) Holt, C. J. ruled that the prescription was good without saying ratione tenure, on the ground that the manor might have been granted to be held by the service of repairing the bridge before the statute quia emptores terrarum, or that the king might make such a grant, he not being bound by the statute: but he afterwards changed his opinion. ་་ (k) Id. ibid. 792. Reg. v. the Duchess of Buccleugh, 1 Salk. 358. And see ante, 325. (Reg. v. Sir John Bucknall, 2 Lord Raym. 804. And see Reg. v. Watson, 2 Lord Raym. 856. ante, 343, 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. Avon case. Immemorial corporation liable in their corporate cha racter 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, "that the king would esteem them, the inhabitants, worthy "to be made, reduced, and erected, into a body corporate and po"litic;" and thereupon proceeding to "grant (without any word "of confirmation) unto the inhabitants of the borough, that the "same borough should be a free borough for ever thereafter;" 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 same 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. (b) Rex v. the Inhabitants of Oxfordshire, 4 B. and C. 194. And it seems that even if the fact of adequate funds in the hands of the trustees had been averred and proved, the county would still have been primarily liable, and must have taken their remedy against the trustees. Bayley, J. said, "It was necessary to allege in the "plea, and prove at the trial, that the "trustees had funds adequate to the 66 they may look to the trustees under "the act." Id. 197. And see the opinions of Holroyd, J. and Littledale, J. And see Rex v. Nethertong, and other cases, ante, 321. 22 Hen. 8. c. 25. enacts as to the repairing of bridges. toms, jurisdictions, privileges, exemptions, and immunities, by reason and pretence of the guild, and of charters, grants, and confirmations to the guild, and otherwise, which the inhabitants could not then hold and enjoy by the dissolution of the guild, and for other causes, by means whereof it was likely that the borough and its government would fall into a worse state without speedy remedy; and that thereupon the inhabitants of the borough had prayed the king's favour (for bettering the borough and government thereof, and for supporting the great charges which from time to time they were bound to sustain,) to be deemed worthy to be made, &c. a body corporate, &c. And thereupon the king, after granting to the inhabitants of the borough to be a corporation (as before stated), granted them the same bounds and limits as the borough and the jurisdiction thereof from time immemorial had extended to. And then "willing that the alms-house and school should be "kept up and maintained as theretofore, (without naming the "bridge) and that the great charges to the borough and its inha"bitants from time to time incident might be thereafter the better "sustained and supported," granted to the corporation the lands of the late guild. There was also evidence by parol testimony, as far back as living memory went, that the corporation had always repaired the bridge. And the court held that, taking the whole of the charter and the parol testimony together, the preponderance of the evidence was, first, that this was a corporation by prescription, though words of creation only were used in the incorporating part of the charter of Edw. 6.; and, secondly, that the burden of repairing the bridge was upon such prescriptive corporation, during the existence of the guild, before that charter; though the guild out of their revenues had, in fact, repaired the bridge, but only in ease of the corporation, and not ratione tenure; and that the corporation were still bound by prescription, and not merely by tenure. A verdict, therefore, against them upon an indictment for the non-repair of the bridge, charging them as immemorially bound to the repair of it, was held to be sustainable. (m) The statute 22 Hen. 8. c. 5. called the statute of bridges, and made in affirmance of the common law, enacts, that the justices of the peace in every shire, franchise, or borough, or four of them, whereof one to be of the quorum, may inquire and determine, in their general sessions, of annoyances of bridges broken in the highways; and make such process and pains on every presentment against the persons charged, &c. as the King's Bench is used to do, or as it shall seem by their discretions to be necessary and convenient. (n) It then enacts, that where it cannot be known what hundred, city, town, &c. ought to make such bridges decayed, they shall, if without city or town corporate, be made by the inhabitants of the shire or riding; and if within any city or town corporate, then by the inhabitants of such city or town corporate; and that if part shall be in one shire, &c. and part in another, the inhabitants of each shall repair and make such part as lies within their respective limits. (o) The statute then proceeds (after making 300 feet of the provisions for the taxing of the persons liable to contribute to the And as to the repairs and for the appointment of collectors, &c.) by enacting that repairing of such parts of highways as lie next adjoining to the ends of bridges, highways next by the space of three hundred feet, shall be amended as often as adjoining to need shall require; and that the justices, or four of them, whereof the bridges. one to be of the quorum, within their several limits, may enquire and determine, in their general sessions, all annoyances therein, and do in every thing concerning the same in as ample a manner as they may do for making and repairing bridges, by virtue of the act. (p) It has been holden in the construction of this statute that no private bridges are within its purview, but only such as are common in the highways where all the king's liege people have or may have passage. (q) Unless the justices of a town, &c. be four in number, and one of the quorum, they have no jurisdiction under this statute. But the justices of the county in which such town (not being a county of itself, and not having the number of justices,) shall lie, may determine as to the annoyances of bridges within the town, &c. if it be known for a certainty what persons are bound to repair them: but if it be not known, it seems that such annoyances are left to the remedy at common law. (r) It appears also to have been holden, that where the king enlarges the boundaries of a city, by annexing part of the county to the county of the city, the enlarged part is to be considered as parcel of the old county of the city, so as to charge its inhabitants with the repairs of bridges which were situate, at the time when the statute 22 Hen. 8. c. 5. was made, within the county at large. The point was put upon the ground that the statute lays no absolute charge till a bridge is in decay; so that though, when the statute was made, the bridges in question were within the county of Norfolk, yet, as they were not then in decay, the statute had no operation upon them before they were annexed to the city of Norwich. (s) But though the inhabitants of a county, by common right, and other persons, by the obligations which have been mentioned, are bound to repair existing bridges, no person can be compelled to build, or contribute to the building, any new bridge, without an act of parliament; nor can the inhabitants of a county, by their own authority, change a bridge or highway from one place to another. (t) Before the statute 14 Geo. 2. c. 33. the justices at the sessions had no authority to change the situation of bridges : but by that statute they were empowered, at their quarter sessions, to purchase any piece of land adjoining or near to any county bridge, within the limits of their respective commissions, for the more commodious enlarging or convenient re-building the same; (p) S. 9. (q) | Hawk. P. C. c. 77. s. 19. and see ante, 342. (r) 1 Hawk. P. C. c. 77. s. 20. 2 Inst. 702. (s) Rex v. the Inhabitants of Norwich, 1 Str. 177. And see also Rex v. the Inhabitants of St. Peter in York, 2 Lord Raym. 1249. (t) 2 Inst. 700, 701. By Magna Charta it is enacted that nulla villa nec liber homo distringatur facere pontes, aut riparias, nisi qui ab antiquo et de jure facere consueverunt tempore Henrici regis avi nostri. And see 2 Inst. 29. Where the a district so add ed. No persons can be com new bridges. pelled to build |