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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
require to be taken down. The 43 Geo. 3. c. 59. s. 2. enacts,
"that
"where any bridge or bridges, or roads at the ends thereof, re-
paired at the expense of any county, shall be narrow and incom-
" modious, it shall and may be lawful to and for the justices, at
any of their general quarter sessions, to order and direct such
bridge or bridges and roads to be widened, improved, and made
commodious for the public; and that where any bridge or
"bridges, repaired at the expense of any county, shall be so
"much in decay as to render the taking the same wholly down
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.

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In a case where the justices of the county of Dorset, proceeding under this statute, had contracted for the building of a new bridge in a different site, in lieu of the old one, which was ruinous; and 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

(u) 14 Geo. 2. c. 33. s. 1. It also provides for the payment of the land out of the county rates; and its conveyance to such persons as the justices shall appoint, in trust for the purposes of the bridge.

(v) By Buller, J. in Rex v. the Jus

tices of Glamorganshire, 5 T. R. 283.

(w) Ante, 311. This act of the 43 Geo. 3. is not to extend to bridges repaired by reason of tenure, &c. S. 7.

(x) Post, 351.

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)

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The question, whether the inhabitants of a county, from their common law liability to the repair of public bridges, are liable to repair a bridge not originally built by them, appears to have been formerly a subject of much discussion. But, after able argument and great consideration, the principle was established "that if a man build a bridge, and it become useful to the county in general, the county shall repair it." (2) 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. (b) 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, 15 East. 594.

(z) Glusburne Bridge case, 5 Burr. 2594. 2 Blac. R. 685. (a) Id. ibid.

(b) Rex v. the inhabitants of Glamorgan, 2 East. 356. note (a). 1 Bac. Abr. Bridges.

(c) Rexv. the West Riding of York

shire, 2 East. 353. note («).

(d) ld. ibid. 2 East. 342. and the circumstance of the trustees being enabled to raise tolls for the support of the roads was not considered as taking the case out of the general principle.

(e) Rex v. the Inhabitants of Bucks, 12 East, 192.

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A bridge built without public utility, or colourably to charge the

county, may be a nuisance.

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. (ƒ) 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." (g) 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 diligent 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. (/) 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. (i)

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) But though a bridge built by an individual may thus become public, yet it will not become so from the mere circumstance of its being built in a public way: and it appears to have been considered that a bridge built in a public way, without public utility, or built colourably in an imperfect or inconvenient manner, with a

(ƒ) Rex v. the inhabitants of Kent, 2 M. and S. 513.

(g) 1 Roll. Abr. 368. citing the 8 Edw. 2. as adjudged in B. R. for Bow bridge and Channel bridge, against the prior of Stratford.

(h) See a copy of the record in this case of the Stratford bridge, in 2 M. and S. 520. et sequ. It contains matter of great curiosity.

(i) Rex v. the Inhabitants of Kent, 2 M. and S. 520. This doctrine appears to have been laid down long ago in a case cited by Northey, attorney general, in Rex v. the Inhabit

ants of Wilts, 1 Salk. 359. With respect to the property in the materials of a bridge, when built and dedicated to the public, it appears to have been decided that it still continues in the individual, subject to the right of passage by the public, so that, when severed and taken away by a wrong doer, he may maintain trespass for the asportation. Harrison v. Parker and another, 6 East. 154.

(k) By Bayley, J. in Rex v. the Inhabitants of St. Benedict, 4 B. & A, 450. Ante, 321.

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ties are not to

built after the

stantial man

surveyor.

view to throw the burthen of rebuilding or repairing it immediately on the county, may be indicted as a nuisance. (j) 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 pairs of bridges of counties shall be liable to repair and maintain, enacts, "that no passin "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 "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 "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 Lan"caster, at their annual general sessions; and which surveyor, or person so appointed, is hereby required to superintend and inspect 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."(1) 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)

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Cases where been holden

counties have

not to be lia

bridges built

It may be useful shortly to notice a few cases in which counties have been holden not to be liable to repair certain bridges built by companies or trustees under particular acts of parliament. Where the Medway Navigation Company, being empowered ble to repair under a local act to make the river navigable, and to take tolls, bri 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

(j) Rex v. the Inhabitants of the West Riding of Yorkshire, 2 East. 342. Ante, 343.

(k) The date of the act is June 24,

1803.

(1) Section 7. provides, that nothing in the act contained shall extend to any bridges or roads which any person or persons, bodies politic or cor

porate, is, are, or shall be liable to
maintain or repair by reason of tenure
or by prescription, or to alter or affect
the right to repair such bridges or
roads.

(m) By Abbott, C. J. in Rex v. Ne-
thertong, 2 B. & A. 183.
(n) Rex v. the Inhabitants of Kent,
13 East. 220.

ment.

Of the liability to repair the 300 feet of the roads adjoining to the ends

of bridges.

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 male, 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)

It has been seen, (p) that by the statute 22 Hen. 8. c. 5. it is enacted, that such parts of highways as lie next adjoining to the ends of bridges, by the space of three hundred feet, shall be amended as often as need shall require: but it does not say by 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. (q) 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 relend its aid to expedite their functions.

(n) Rex v. the Inhabitants of Lindsey, in Lincolnshire, 14 East. 317.

(0) Rex v. the Inhabitants of Somerset, 16 East. 305. Lord Ellenborough, C. J., intimated an opinion, that if the trustees were dilatory in executing the powers of the act, the court of King's Bench, upon application, would

(a) Rex v. Kerrison, 3 M. & S. 526. (p) Ante, 346. 347.

(q) Ante, Ibid.

(r) 1 Anne, st. 1. c. 18, s. 3, 5, 13. and 12 Geo. 2. c. 29.

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