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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 inhabitants 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 tenuræ ; 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 presentnient 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. (0) The statute then proceeds (after making 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. Unless the justices of a town, &c. be four in number, and one of the quorum, they have no jurisdiclion 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)

22 Hen. 8.
c. 25. enacts
as to the re-
pairing of
bridges.

(m) Rex v. tbe Mayor, &c. of Strat-
ford upon Avon, 14 East. 348.

(n) s. I.
(0) S. 2, 3.

It appears also to have been holden, that where the king enlarges Where the the boundaries of a city, by annexing part of the county to the county of a county of the city, the enlarged part is to be considered as parcel ed, it may be of the old county of the city, so as to charge its inhabitants with liable to repair the repairs of bridges which were situate, at the time when the a bridge in the statute 22 Hen. 8. c. 5. was made, within the county at large. ed.

district so addThe 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 No persons other persons, by the obligations which have been mentioned, are can be.combound to repair existing bridges, no person can be compelled to new bridges. 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. (1) 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 ;

pelled to build

(P) S. 9.

2 Lord Raym. 1249. (9) 1 Hawk. P. C. c. 77. s. 19. and (1) 2 Inst. 700, 701. By Magna see ante, 342.

Charta it is enacted that nulla villa nec (r) I Hawk. P. C. c. 77. s. 20. 2 liber homo distringatur facere pontes, Inst. 702.

aut riparias, nisi qui ab antiquo et de (8) Rex v. the Inhabitants of Nor- jure facere consueverunt tempore Henwich, 1 Str. 177. Apd see also Rex v. rici regis avi noslri. And see 2 Inst. 29. the Inhabitants of St. Peter in York,

" that

3. c. 59. 8. 2.

but the land was not to exceed an acre for any such bridge. (u) It
was considered by a very learned judge, that this statute impliedly
enabled the magistrates to alter the position of bridges to suit the
convenience of the public : (v) but a more recent statute expressly

gives them that power where bridges are so much in decay as to By the 43 Geo. require to be taken down. The 43 Geo. 3. c. 59. s. 2. enacts,

“ where any bridge or bridges, or roads at the ends thereof, repower is given “ paired at the expense of any county, shall be-narrow and incomthe quarter

“ modious, it shall and may be lawful to and for the justices, at sessions to or- “ any of their general quarter sessions, to order and direct such der bridges to “ bridge or bridges and roads to be widened, improved, and made be widened, &c. or rebuilt commodious for the public; and that where any bridge or either in the “ bridges, repaired at the expense of any county, shall be so old situation, or in one more

“ much in decay as to render the taking the same wholly down convenient. “ necessary or expedient, it shall and may be lawful to and for

" the said justices, at any of their said general quarter sessions,
“ to order and direct the same to be rebuilt, either on the old site

or situation, or in any new one more convenient to the public,
“ contiguous to or within two hundred yards of the former one, as
" to such justices shall seem meet.” And the statute also provides
for the purchasing of land necessary for such purposes, not ex-
ceeding an acre at any one bridge ; and for assessing a compens-
ation for such land, by means of a jury, where the surveyor cannot
agree for the price with the owner, in the same manner as is done
by the 13 Geo. 3. c. 78. in relation to highways. (w) By a sub-
sequent statute, 54 Geo. 3. c. 90. s. 1. these provisions, relating to
the purchase of land, are extended to such buildings and other
erections as may be necessary to be purchased for the purposes of
the act of the 43 Geo. 3.; and the provisions of the 43 Geo. 3.
(except such as relate to bridges thereafter to be re-erected) (x)
are extended as well to bridges, and the roads at the ends thereof,
repaired by the inhabitants of hundreds, and other general divisions
in the nature of hundreds, as to bridges and the roads at the ends

thereof, repaired by the inhabitants of counties.
Pulling down In a case where the justices of the county of Dorset, proceeding
an uld bridge under this statute, had contracted for the building of a new bridge
before the new in a different site, in lieu of the old one, which was ruinous; and
one was pass- had directed the old bridge to be taken down before the new one

was passable, for the benefit of the old materials, which were to
be used by the contractor in finishing the new bridge; the court
refused a writ of prohibition to them, to restrain them from pulling
down the old bridge before the new one was passable : and this,
though there were strong affidavits of the inconvenience and loss
which would be sustained by the people in the neighbourhood, by
being obliged to use a circuitous way in the interval. And they
referred the complainants to the ordinary remedy by indictment, if

1

.

(u) 14 Geo. 2. c. 33. s. 1. It also tices of Glamorganshire, 5 T. R. 283.
provides for the payment of the land (w) Anle, 311. This act of the
out of the county rates; and its con- 43 Geo. 3. is not to extend to bridges
veyance to such persons as the justices repaired by reason of tenure, &c
shall appoint, in trust for the purposes S. 7.
of the bridge.

(x) Post, 351.
(v) By Buller, J. in Rex v. the Jus-

the pulling down the old bridge, under these circumstances, were a nuisance ; and did not think there was any occasion to interfere, by applying a prompt remedy of a novel kind in modern practice. (y)

The question, whether the inhabitants of a county, from their Counties liable common law liability to the repair of public bridges, are liable to to the repair of repair a bridge not originally built by them, appears to have been by private performerly a subject of much discussion. But, after able argument sons. and great consideration, the principle was established “that if a “ man build a bridge, and it become useful to the county in gene“ ral, the county shall repair it.” (z) Upon this principle, where the inhabitants of a township took down an ancient foot-bridge, which they were bound to repair, and built another, for horses and carriages, in a different and more commodious part of the river, which became afterwards of general public utility, it was held that this bridge should be repaired by the county, and not by the township. (a) And the same principle of the public being obliged to support a bridge of public utility has been acted upon in many subsequent cases. Thus the county was held liable to repair a bridge erected in the king's highway, which, about forty years before, had been erected by an individual, for his private benefit and utility, and for making a commodious way to his tin-works, upon proof that the public had constantly used the bridge from the time of its being built. (6) And in a case where an old footbridge had been enlarged, in the first instance to a horse-bridge, and afterwards to a carriage-bridge, by a township, at their expense, it was recognized as the general law that where a township, or any private individuals, build a new bridge, and dedicate it to the public benefit, and it is used by the public, the onus of repairing it falls upon the county at large. (c) In a case also where the doctrine was fully investigated and considered, it was held that the county or riding was liable to the repair of a bridge built by trustees under a turnpike act, there being no special provision for exonerating them from the common law liability, or transferring it to others. (d)

In a case where it appeared that queen Anne, in the year 1708, for her greater convenience in passing to and from Windsor castle, built a bridge over the Thames, at Datchet, in the common highway leading from London to Windsor, in lieu of an ancient ferry, with a toll, which belonged to the crown; and she and her successors maintained and repaired the bridge till 1796, when, being in part broken down, the whole was removed, and the materials converted to the use of the king, by whom the ferry was re-established as before ; it was held that the bridge was a public one, repairable by the inhabitants of the county. (e) And in a more re

(y) Rex v, the Justices of Dorset, shire, 2 East. 353. note (a). 15 East. 594.

(d) Id. ibid. 2 East. 342. and the cir(2) Glusburne Bridge case, 5 Burr. cumstance of the trustees being en2594. 2 Blac. R. 685.

abled to raise tolls for the support of (a) Id. ibid.

the roads was not considered as taking (0) Rex v. the inhabitants of Gla- the case out of the general principle. morgan, 2 East. 356. note (a). 1 Bac. (e) Rex v. the Inhabitants of Bucks,

12 East, 192. (c) Rex v. the West Riding of York

Abr. Bridges.

4

cent case, where the facts were, that a person about forty-five years
before had erected a mill, and dam thereto, for his own profit, by
which means he deepened the water of a ford through which there
was a public highway, but the passage through which was, before
the deepening, very inconvenient at times to the public, and the
miller had afterwards built a bridge over it, which the public had
ever since used; it was decided that the county, and not the
miller, were chargeable with the reparation. (f) In this last case
the court was much pressed by an ancient authority to this effect:
“ If a man erect a mill for his own profit, and make a new cut for
“ the water to come to it, and make a new bridge over it, and the

subjects use to go over this as over a common bridge; this
“ bridge ought to be repaired by him who has the mill, and not
“ by the county, because he erected it for his own benefit.” (8)
And as that authority seemed to constitute an anomaly in the law,
and to be at variance with all the cases, the court directed a dili-
gent search to be made for the record of the case; and it was at
length found in the chapter-house at Westminster. From this it
appeared that the real question was on an obligation to repair by
reason of the tenure of certain lands; and that no such question
as was supposed, namely, of a legal obligation resulting from the
building of the bridge by the mill owner for his benefit, was ever
directly

or indirectly decided, or could properly have been argued. (h) Relieved, therefore, from this case, the court considered the authorities from first to last as uniform ; and as establishing the doctrine that if a private person build a private bridge, which afterwards becomes of public convenience, the county is bound to repair it. (0)

In these cases there is always that which is to be considered as an acquiescence by the county. The county is not liable, except for bridges made in highways; and as 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, the forbearing to prosecute in that way

is an acquiescence by the county in the building of the bridge. (k) A bridge built

But though a bridge built by an individual may thus become without public public, yet it will not become so from the mere circumstance of utility, or co

its being built in a public way: and it appears to have been conlourably to charge the

sidered that a bridge built in a public way, without public utility, county, may or built colourably in an imperfect or inconvenient manner, with a be a nuisance.

(f) Rex v. the inhabitants of Kent, ants of Wilts, 1 Salk. 359. With re2 M. and S. 513.

spect to the property in the materials (g) 1 Roll. Abr. 368. citing the of a bridge, when built and dedicated 8 Edw. 2. as adjudged in B. R. for Bow to the public, it appears to have been bridge and Channel bridge, against the decided that it still continues in the prior of Stratford.

individual, subject to the right of pass-
(h) See a copy of the record in this age by the public, so that, when se-
case of the Stratford bridge, in 2 M.and vered and taken away by a wrong doer,
S. 520. et sequ. It contains matter of he may maintain trespass for the as-
great curiosity.

portation. Harrison v. Parker and
(i) Rex v. the Inhabitants of Kent, another, 6 East. 154.
2 M. and S. 520. This doctrine ap- (k) By Bayley, J. in Rex v, the In-
pears to have been laid down long habitants of St. Benedict, 4 B. & A,
ago in a case cited by Northey, at- 450. Ante, 321.
torney general, in Rex v. the Iohabit.

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