Page images

ties are not to

[ocr errors]

view to throw the burthen of rebuilding or repairing it immediately on the county, may be indicted as a nuisance.() A protection is And by 43 G. also given to counties by the 43 Geo. 3. c. 59. from the burthen 3. c. 59. counof repairing certain bridges, erected after the passing of that sta

be charged tute. The fifth section, for the more clearly ascertaining the de- with the rescription of bridges, theraafter (k) to be erected, which inhabitants pairsof bridges of counties shall be liable to repair and maintain, enacts, “ that no passing of that “ bridge hereafter to be erected or built in any county, by or at the statute, unless

expense of any individual or private person or persons, body politic built in a sub

or corporate, shall be deemed or taken to be a county bridge, or a ner, to the sa“ bridge which the inhabitants of any county shall be compellable tisfaction of or liable to maintain or repair, unless such bridge shall be erected the county

surveyor. “in a substantial and commodious manner, under the direction or « to the satisfaction of the county surveyor, or person appointed “ by the justices of the peace at their general quarter sessions as“ sembled, or by the justices of the peace of the county of Lancaster, at their annual general sessions; and which surveyor, or

person so appointed, is hereby required to superintend and in“spect the erection of such bridge, when thereunto requested by “ the party or parties desirous of erecting the same; and in case “ the said party or parties shall be dissatisfied, the matter shall “ be determined by the said justices respectively at their next ge“ neral quarter sessions, or at their annual general sessions in the “ county of Lancaster.(?). It has been observed, upon this statute, that as it was passed to limit the liability of the county to those cases only where the new bridge is substantially built, it shews sufficiently, that by the common law they would otherwise be liable to the repair of all new bridges which might be erected within their district. (m)

It may be useful shortly to notice a few cases in which counties Cases where have been holden not to be liable to repair certain bridges built by been holden companies or trustees under particular acts of parliament.

not to be liaWhere the Medway Navigation Company, being empowered ble to repair under a local act to make the river navigable, and to take tolls, by companies and “ to amend or alter such bridges or highways as might hinder or trustees un“ the passage or navigation, leaving them or others as convenient der particular " in their room,” had, forty years before, destroyed a ford across acts of parliathe river in the common highway, by deepening its bed, and built a bridge over the same place; it was held that they were bound to keep such bridge in repair, as under a continuing condition to preserve the new passage in lieu of the old one, which they destroyed for their own benefit. (n)

A case not distinguishable in principle from the foregoing was decided shortly afterwards. A Canal Company, authorized by an act of parliament to make the river Bain navigable, and to make

(1) Rex v. the Inhabitants of the porate, is, are, or shall be liable to West Riding of Yorkshire, 2 East. maintain or repair by reason of tenure 342. Ante, 343.

or by prescription, or to alter or affect (k) The date of the act is June 24, the right to repair such bridges or 1803.

roads. (1) Section 7. provides, that nothing (m) By Abbott, C. J. in Rex v. Nein the act contained shall extend to thertong, 2 B. & A. 183. any bridges or roads which any per- (n) Rex v. the Inhabitants of Kent, son or persons, bodies politic or cor- 13 East. 220.

and enlarge certain navigable cuts, and build bridges and other works connected with the navigation, made a navigable cut, and deepened a ford which crossed the highway, for their own benefit, and thereby rendered a bridge necessary for the passage of the public, which was accordingly built at the expense of the company in the first instance: and it was held that the company (who were found to have profitable funds for the purpose) were bound to maintain it. (n)

The 49 Geo. 3. c. 84. appoints trustees for taking down the old and building a new bridge over the river Tone, and empowers them to take tolls; and enacts, that it shall be lawful for them, out of the monies received, to build a new bridge, &c. and vests the property in the old and new bridge, during the continuance of the act, in the trustees; and further euacts, that as soon as the purposes of the act shall be executed, then and from thenceforth the tolls shall cease, and the bridge, &c. shall be repaired by such persons as are by law liable to repair the old bridge. Upon this statute it was decided that, during the time the trustees were engaged in executing the powers of the act, and before they had completed them, the county was not liable to repair the bridge. (0)

The commissioners appointed by the statute 22 Car. 2. to make the river Waveney navigable, were authorized to cut through any land they thought fit, and make channels. They cut through a highway; and that cut made a bridge over it necessary for the public, though such bridge was of no use to the navigation. A bridge was accordingly marle, but by whom did not appear; and the bridge being out of repair, an indictment was preferred against the proprietor of the navigation (who received tolls upon the navigation) for not repairing it. Upon a case reserved he contended that he was not liable : but the court held clearly that he was ; for by the act of his predecessors the bridge was made : they cut, not for public purposes, but for private benefit; and the county could not be called upon, for it could be no advantage to them to have a

bridge in lieu of solid ground. (a) of the liability It has been seen, (v) that by the statute 22 Hen. 8. c. 5. it is to repair the 300 feet of the enacted, that such parts of highways as lie next adjoining to the roads adjoin- ends of bridges, by the space of three hundred feet, shall be ing to the ends amended as often as need shall require : but it does not say by of bridges.

whom they shall be amended. It proceeds, however, to provide that the justices may enquire and determine 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 that act. (9)' It has been decided that by the common law, declared and defined by this statute, and other subsequent statutes, (r) the inhabitants of a county, liable to the repair of a public bridge, are liable also to re

(n) Rex v. the Inhabitants of Lind- lend its aid to expedite their funcsey, in Lincolnshire, 14 East. 317. tions.

(0) Rex v. the Inhabitants of Somer- (a) Rex v. Kerrison, 3 M. & S. 526. set, 16 East. 305. Lord Ellenborough, (p) Ante, 346. 347. C.J., intimated an opinion, that if the (q) Anle, Ibid. trustees were dilatory in executing (r) 1 Anne, st. 1. c. 18, s. 3, 5, 13. the powers of the act, the court of and 12 Geo. 2. c. 29. King's Bench, upon application, would

pair to the extent of three hundred feet of the highway at each end of it: and that, if indicted for not repairing such highway, they can only exonerate themselves by pleading specially that some other is bound to repair it by prescription or tenure. (s) And it seems that private persons are equally liable. (z) But where a new and substantial bridge, of public utility, was built within the limit of one county, and adopted by the public, it was held that the inhabitants of that county were bound to repair it, although it was built within three hundred feet of an old bridge, repairable by the inhabitants of another county, who were bound as a matter of course under the statute 22 Hen. 8. c. 5. to maintain three hundred feet of road adjoining to their bridge, though it lay in the other county. The court said, that while the space where the bridge was built continued a road, it was repairable as part of the old bridge ; but that when there was a substantial bridge built upon it, such bridge was repairable, as a bridge by the inhabitants of the county in which it was situated, according to the statute. (t)

It seems clear that those who are bound to repair public bridges Those who are must make them of such height and strength as shall be answer. liable to reable for the course of the water, whether it continues in the old pair must do

it effcctually. channel, or makes a new one; and that they are not punishable as trespassers for entering on any adjoining land for such purpose, or for laying on the materials requisite for such repairs. (u) A case occurred in which the court of King's Bench strongly intimated an opinion, that if a bridge used for carriages, though formerly adequate to the purposes intended, were not of a sufficient width to meet the present public exigencies, owing to the increased width of carriages, the burthen of widening it must be borne by those who are bound to repair the bridge : (w) but, when the same case came before the house of Lords on error, this point appears to have been considered as doubtful. (x) And, in a recent case, the court of King's Bench held, that the obligation upon a county is only to repair a bridge to the extent to which that bridge has been originally given to the public, and that they are not bound to

The taxing and collecting monies for the repairing of bridges, of the mode and the highways at the ends thereof, were regulated in the first of procuring instance by 22 Hen. 8. c. 5., and afterwards by the 1 Anne, stat. 1. the monies for c. 18. by which the justices at their quarter sessions were em- bridges, and powered, upon presentment of any bridge being out of repair, to of contribumake assessments upon every town or place within their commissions for the charges of the repairs. The 12 Geo. 2. c. 29. s. 1.,

widen it. (a)


(0) Rex v. the Inhabitants of the (w) Rex v. the Inhabitants of CumWest Riding of Yorkshire, 7 East. 588. berland, 6 T. R. 194. and the judgment was afterwards af- (*) Cumberland Inhabitants v. Reg., firmed in the house of Lords, 5 Taunt. 3 Bos. and Pul. 354. But the judge 284,

ment of the court of King's Bench (z) 3 Chit. C. L. 589.

was affirmed upon the ground that, (0) Rexo. the Inhabitants of Devon, after verdict, it must be presumed 14 East. 477.

that the over-narrowness of the bridge (u) 1 Hawk. P. C. c. 77. s. 1. 1 Bac. arose from its having been contracted Abr. Bridges. 43 Ass. pl. 37 Br. tit. from its ancient width. Presentment in Courts, pl. 22. 29. Dalt. (a) Rex v. Inhabitants of Devon, c. 14.

Mich. T. 6 G. 4. VOL. I.

2 A

[ocr errors]

order pay

ment out of

the county

of the hun

ment shall

for the better collection of such monies, appointed that they should be paid out of the general county rate : but that statute enacted, that no money should be applied to the repair of any bridge, until a presentment should be made by the grand jury of its want of reparation. The 43 Geo. 3. c. 39. s. 2., which provides for the amendment and alteration of county bridges,(y) also enacted, that no money should be applied to such purposes until presentment

made of the insufficiency or want of reparation of such bridges. 55 G. 3. c. 143. The statutes 52 G. 3. c. 110. and 55 G. 3. c. 143, make alterations Justices, &c. in this respect and in other matters relating to the proceedings of may contract for the repair

the justices for the repairing of bridges repairable by counties or ing of county hundreds. The last of these statutes enacts, that " it shall and or hundred

may be lawful to and for the justices of the peace of any county, bridges, and the roads'ad

city, riding, division, town corporate or liberty, at their general joining, and quarter sessions respectively, to contract and agree, or to au

“thorize any other person or persons to contract and agree, with

any person or persons, for the maintaining and keeping in rate, or by the “repair any county or hundred bridge, and the road over bridge master

“such county or hundred bridge, and so much of the roads at dred, although

“ the ends thereof as are by law liable to be repaired at the exno present- pense of any such county, hundred, city, riding, division, town have been

corporate or liberty, or any part of the saine ; and the said jusmade, nor no

“ tices are hereby empowered to order such sum or sums of money tice given ac

as may be contracted for and agreed to be paid for the repairing, cording to 12

amending, and supporting such bridges, and the roads over the But notices of

same, or the ends thereof, to be paid in cases where the county

“ is liable to the repair thereof) by the treasurer of the county to contract are “out of the county rate, or (in cases where the hundred is liable a public paper.

“ to the repair of the same) by the bridge-master (or other public

officer charged with the repair of bridges) of the hundred by “ which such bridge is liable to be repaired, for any term not ex“ceeding seven years, nor less than one, although no presentment “ of the insufficiency, decay, or want of repair of the same, shall “ have been made, and although no public notice shall have been “ given by the said justices, at their respective general or quarter “session, of their intention to contract for the repair of such “ bridges, or the roads at the ends thereof, as respectively directed

by the said act (12 Geo. 2. c. 29.) provided nevertheless that, “ before any such contract shall be made, the said justices shall

cause notices to be given in some public paper circulated in such “ county, city, riding, hundred, division, town corporate or liberty, “ of their intention to contract.” (x) By the statute 22 Hen. 8. c. 5. s. 3. it was provided that where part of a county bridge shall be in one shire, &c. and part in another, the inhabitants of each shire, &c. shall be contributory. (a). And it has been questioned whether a borough, which has no bridge within its own limits, be not liable to contribute to the repairs of a county bridge. (b)

Geo. 2. c. 29.

the intention

[ocr errors]

Yy) Ante, 348.

Clifton, 5 T. R. 501, 2. The usual (2) 55 Geo. 3. c. 143. S. 5.

proceeding at this time appears to be (a) This provision is alluded to by to indict each county separately, for Lord Mansfield, C. J. in Rex v. the neglecting to repair its own division. Johabitants of Weston, 4 Burr. 2511. (0) I Hawk. P. C. c. 77. s. 25. 1 and by counsel arguend. in Rex v.

Keb. 68.

Where certain townships had enlarged a bridge to a carriagebridge, which they were before bound to repair as a foot-bridge, it was held that they should still be liable to repair pro rata.(c)

The methods of appointing surveyors, &c. for effecting the repairs or re-building of bridges; and the powers given to such surveyors, and persons employed under contracts, to procure materials for such purposes, are contained in different acts of parliament, the provisions of which do not fall within the object of this work. (d)

Where those upon whom the liability rests of repairing public Proceedings bridges neglect their duty, such non-feazance is a nuisance to the for nuisances

to bridges by public, punishable by information, presentment, or indictment.

information, An information was held to lie in the court of King's Bench for presentment, the non-repair of a bridge in a case where it was considered that or indictment. the statute of 22 Hen. 8. c. 5. gave only a concurrent, but not an exclusive, jurisdiction to the sessions : (e) but probably it would not be granted, except in some case of a peculiar nature, in which the court might be satisfied that the purposes of justice would not be effected by an indictment. The more usual course of proceeding is by indictment or presentment. (f)

The statute 22 Hen. 8. c. 5. s. 1. gave power to the justices of Proceedings the peace to hear and determine in their general sessions all an- of justices in

sessions. noyances of bridges broken in the highways, and to make process, &c. as the King's Bench used to do. The fifth section of that statute enacted, that where any bridge is in one shire, and the persons or lands, which ought to be charged, are in another shire; or where the bridge is within a city or town corporate, and the persons or lands that ought to be charged are out of the said city; the justices of such shire, city, or town corporate, shall have power to hear and determine such annoyances, being within the limits of their commission ; and if the annoyance be presented, then to make process into every shire of the realm against such as ought to repair the same, and to do further in every behalf as they might do if the persons or lands chargeable were in the same shire, city, or town corporate where the annoyance is.

Any particular inhabitant or inhabitants of a county, or tenant of the indictor tenants of land chargeable with the repairs of a public bridge, ment. may be made defendants to an indictment for not repairing it, and be liable to


the whole fine assessed by the court for the default of such repairs; and shall be put to their remedy at law for a contribution from those who are bound to bear a proportionable share in the charge. (g) The indictment ought to shew what sort of

(c) Rex v. the Inhabitants of the that an action will not lie by an indi. West Riding of Yorkshire, 2 East, vidual against the inhabitants of a 353. note (a); and see Rex v. the In- county for an injury sustained from a habitants of Surry, 2 Campb. 455. county bridge being out of_repair.

(d) See them collected in 1 Burn. Russel v. Men of Devon, 2 T. R. 667. Just. Bridges VI., and see also the late (g) i Hawk. P. C. c. 77. s. 3. 1 Bac. act 55 Geo. 3. c. 143. By the 43 Geo. Abr. Bridges, where the reason given 3. c. 59. s. 4. inhabitants of counties is, that cases of this nature require the may sue for damages done to bridges greatest expedition; and bridges being in the name of the surveyor.

of the utmost necessity are not to lie () Rex v. the Inhabitants of Nor- unrepaired till lawsuits are deterwich, 1 Str. 177.

mined. (f) 2 Inst. 701. It has been held

« EelmineJätka »