then, subject to this right, the crown had at any period the prerogative of raising weirs in such parts as were not at the time actually required by the subject for the purposes of navigation, it follows, from the very nature of a paramount right on the one hand and a subordinate right on the other, that the latter must cease whensoever it cannot be exercised but to the prejudice of the former. If, in the present case, the subject has not at this moment the right to use that part of the channel on which the weir stands, it is only because of the royal grant; and that grant must then be alleged at its date to have done away for ever, in so much of the channel, the right of the public but that is to suppose the subordinate right controlling that which is admitted to be paramount, which is absurd. On the other hand, there is nothing unreasonable or unjust in supposing the right to erect the weir subject to the neces sities of the public when they should arise; for the right of the public being supposed to be paramount by law, the grantee must be taken to be cognizant of such right: and the same natural peculiarities, and the same absence of any obligation by law on *539] any one to counteract those peculiarities above-mentioned, would give him full notice of the probability that at some period his grant would be determined. We do not therefore think that the plaintiff can sustain his second point."

With regard to the power of the crown at common law to interfere with the channels of public rivers, Lord Denman, C. J., said, "On the one side the contention is, that prior to Magna Charta, the power of the crown was absolute over them; and that this weir, by the antiquity assigned to it by the finding of the jury, is saved from the operation of that or any succeeding statute; while, on the other, it is alleged that they are and were highways to all intents and purposes, which the crown had no power to limit or interfere with, and that as well the restraints enacted by, as the confirmations implied from, the statutes alluded to have nothing to do with the present question.

"After an attentive examination of the authorities and the statutes referred to in the argument, we cannot see any satisfactory evidence that the power of the crown in this respect was greater at the common law before the passing of Magna Charta than it has been since. It is clear that the channels of public navigable rivers were always highways up to the point reached by the flow of the tide the soil was presumably in the crown; and above that point, whether the soil at common law was in the crown or the owners of the adjacent lands (a point perhaps not free from doubt), there was at least a jurisdiction in the crown, according to Sir Matthew Hale, 'to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges or boats:' De Jure Maris, Part I., c. 2, p. 8. In either case the right of the subject to pass up and down was complete. In the case of the Bann Fishery(e), where the reporter is speaking of rivers within the flux and reflux of the tide, it is stated that this right was by the King's permission, for the ease and commodity of the people; but if this be the true foundation, and if the same may be also properly said of the same right in the higher parts of rivers, still the permission supposed must be coeval with the monarchy, and anterior to any grant by any particular monarch of the right to erect a weir in any particular river. It is difficult, therefore, to see how any such grant made in derogation of the public right previously existing, and in direct opposition to that duty, which the law casts on the crown, of reforming and punishing all nuisances which obstruct the navigation of public rivers, could have been in its inception valid at common law. Nor can we find, in the language of the statutes referred to, anything inconsistent with this conclusion. They speak indeed of acts done in violation of this public right; but they do not refer them to any power legally existing in the crown, which for the future they propose to abridge. We are, therefore, of opinion that the legality of this weir cannot be sustained on the supposition of any power existing by law in the crown in the time of Edward I. which is now taken away. But this does not exhaust the question; because that which was not legal at first may have been subsequently legalized.”

*The learned counsel for the defendants is probably correct in saying, that *540] the twenty-third chapter of Magna Charta may be laid out of the case. The kidelli there spoken of appear, from the 2 Inst. p. 38, and the Chester Mill Case,(ƒ) (f) 10 Rep. 137, b.

(e) Davies's R. 57, a.

to have been open weirs erected for the taking of fish; and the evil intended to be remedied by the statute was the unlawful destruction of that important article of consumption. That statute, therefore, being pointed at another mischief, might leave any question of nuisance by obstruction to the passage of boats exactly as it stood at common law. But the same remark does not apply to 4 stat. 25 Edw. 3, c. 4. That begins by reciting that the common passage of boats and ships in the great rivers of England is oftentimes annoyed by the inhansing [a mistranslation of the word lever for levying or setting up(g)] of gorces, mills, weirs, stanks, stakes, and kiddles, and then provides for the utter destruction of all such as have been levied and set up in the time of Edward 1, and after. It further directs that writs shall be sent to the sheriffs of the places where need shall be, to survey and inquire, and to do thereof execution: and also the justices shall be thereupon assigned at all times that shall be needful. It is clear, we think, that, in any criminal proceeding for the demolition of this weir which had been instituted immediately after the passing of this statute, it would have been a sufficient defence to have shown its erection before the time of Edward 1; and, considering the concise language of statutes of that early period, we think the statute would equally have been an answer in any civil proceeding at the suit of a party injured. Assuming the weir to have been illegally erected before the date of Magna Charta, it is not unreasonable to suppose that a sort of compromise was come to: similar nuisances were probably very numerous; but they were probably, many of them, of long standing: it may have been impossible to procure, or it may well have been thought unreasonable to insist on, an Act which should direct those to be abated which had acquired the sanction of time and a line was therefore drawn, which, preventing an increase of the nuisance for the future, and abating it in all the instances which commenced within a given period, impliedly legalized those which could be traced to an earlier period. This appears to us the proper effect to be attributed to the statute; and, if it be, it disposes of any difference between a criminal and civil proceeding. The earlier weirs were not merely protected against the specific measures mentioned in the Act, but rendered absolutely legal. If this would have been a good answer immediately after the Act passed, it is at least equally good now; and therefore, of stat. 45 Edw. 3, c. 2, and stat. 1 Hen. 4, c. 12, it is unnecessary to say more than that they do not at all weaken the defence which the defendants have under the former statute."(h)

It is said to have been adjudged that if a river be stopped, to the nuisance of the country, and none appear bound by prescription to clear it, those who have the piscary, and the neighboring towns, who have a common passage and easement therein, may be compelled to do it.(i) 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.(k)

Sec. IV. Of Nuisances to Public Bridges.

[*541

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,(7) 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 purposes; and though the words, "public bridges," do not occur in the 22 Hen. 8, c. 5 (called the statute of bridges), yet as the statute empowers the justices of the peace to inquire of "all manner of annoyances of bridges broken in 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

(g) Corrected in the translation of the 45 Edw. 3, c_2 (recital). (k) Williams v. Wilcox, 8 Ad & E. 314 (35 E. C. L. R.).

(i) 1 Hawk. P. C. c. 75, s. 13; Bac. Abr. tit. Nuisance (C.); 37 Ass. 10; 2 Roll. Abr. 137. (k) See Reg. v. Dobson, 1 Cox C. C. 251, as to costs where an indictment for a nuisance to the Thames had been removed into the Court of Queen's Bench by certiorari. (4) 2 Inst. 701.

VOL. 1.-28.

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."(m)

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, that may 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.(n)

It is a question of fact, whether a particular structure be a bridge or not; and, upon a question whether an arch be a bridge or culvert, the fact that it is built over a stream of water flowing between banks, is not decisive to show that it is a bridge; although there must be such a stream for the structure to be a bridge. Neither is it decisive that it is not a bridge, that there are no parapets to it. (o) On an indict*542] ment for not repairing the highway next adjoining each end of Warmley Bridge, it appeared that the bridge was built before the 43 Geo. 3, c 59, and conveyed a turnpike road between parapet walls over a stream of water, which at that place was confined between banks, which prevented its overflowing the adjacent land in winter when the water averaged two feet and a half in depth; but the stream was never dry at any time of the year; Cresswell, J., told the jury that if they were satisfied that this structure was a bridge their verdict must be for the Crown. If it had been erected for the convenience of the public in passing over the stream, it was a county bridge, and rendered the county liable to repair it, though the bridge might not have been necessary for the convenience of the public when it was built.(p) Where an ancient foot bridge consisted of three planks nine or ten feet long, and was over a stream about a foot and a half deep in summer, but frequently deeper in winter, and had originally been repaired by a parish, it was held that this was not a county bridge.(g)

The inhabitants of a county are bound by common law to repair bridges erected over such water as answers the description of flumen vel cursus aquæ, that is, water flowing in a channel between banks, more or less defined, although such channel may be occasionally dry; they are, therefore, not bound to repair arches in a raised causeway, more than three hundred feet from the end of a bridge, through which the water passes in flood times only. Where a road, in continuation of a bridge over a river, ran through low meadow ground, liable to be flooded by the river, for five hundred and seventy-six feet from the foot of the bridge, and formed a causeway, in which were placed at different intervals, five arched openings, two of which were within three hundred feet of the bridge, which the county had always repaired, and the other three more than three hundred feet from the foot of the bridge, and the arches were built not over the ordinary stream or course of the river, but over solid meadow ground, which was subject to be much flooded, and there was generally a strong current in winter through the arches, which, by giving vent to the flood water, helped to protect the bridge, which would be in danger from the penning

(m) By Lord Ellenborough, C. J., in Rex v. Bucks, 12 East 204. (n) Rex v. Bucks, 12 East 203, 204.

(o) Rex v. Whitney, 3 A. & E. 69 (30 E. C. L. R.); 7 C. & P. 208 (32 E. C. L. R.). The structure in question in this case was an arch of nine feet span, over a stream, which fed a mill, and which was usually about three feet deep, but occasionally shallower, and in flood times much deeper, and it had no battlements at either end; the jury having found a verdict of guilty upon an indictment treating this structure as part of the road, the Court refused a rule for a new trial.

(p) Reg. v. Gloucestershire, C. & M. 506 (41 E. C. L. R.).

(9) Reg. v. Southampton, Tinker's Bridge case, 18 Q. B. 841 (83 E. C. L. R.). The liability to repair county bridges had been transferred from parishes to the county, and the bridge had not been repaired by the county, but by commissioners who had the charge of the repairs of the highways. See the case, post, p. 546.

up of the water if the causeway had no arches; it was held that the county was not liable to repair the arches which were more than three hundred feet from the foot of the bridge. The ancient form of indictment, as mentioned in 2 Inst. 701, is, quod pons publicus et communis situs in altâ regiâ viâ super flumen seu cursum aquæ, &c., and although in many indictments in modern times the words, super flumen, &c., are omitted, yet in such indictments they must be considered as virtually included in the true import of the term bridge; for, *otherwise, all such indictments would be bad, there being many structures, bearing the name of bridge, erected across a steep ravine, and in modern times over an ancient road, crossed in a traverse direction by a new road, having no reference to water, and which, unquestionably the county is not bound to repair; and no more certain rule can be laid down than the words flumen vel cursus aquæ are to be considered to denote water, flowing in a channel between banks, more or less defined, although such channel may be occasionally dry.(r)

[*543

But this case has since been reconsidered. Upon an indictment against the county of Derby for the non-repair of Swarkestone Bridge, it appeared that the bridge was a structure 1275 yards in length, and consisted of forty-two arches, divided, at some points, by a stone causeway, at others by the piers only. The river Trent flowed constantly under five of the arches at one end of the structure, and a brook flowed constantly under an arch at the opposite end. The other arches lay across meadow land, and in times of flood the water flowed under all of them, and under most of them there was stagnant water at all times. The county had immemorially repaired the whole structure, and had rebuilt and widened twenty-two of the arches under which there was no constant stream. Parts of the whole structure, other than the five arches, had been presented at different times under the name of Swarkestone Bridge by the grand jury, as out of repair and thereupon repaired by the county. The Court of Queen's Bench held that the county were liable to repair the whole structure; as the whole must be deemed a bridge, and there was no general rule of law that arches, under which there was no constant stream, could not form part of a county bridge, and that, where such arches are contiguous to and as it were in continuation of an acknowledged county bridge, and have been immemorially treated by the county as part of the bridge, there was no rule of law to prevent their being part of the bridge. (s)

As there may be a dedication of a road to the public:(t) 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 by him to the public, by his suffering them to have the use of it, and by their using it accordingly.(u) And though, where there is such a dedication, it must be absolute, (v) 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. (w) 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

[*544

(r) Rex v. Oxfordshire, 1 B. & Ad. 289 (20 E. C. L. R.). The county had previously been indicted for not repairing two of the same arches, which were described in the indictment as bridges, and on a special case it was held that there was not sufficient to show that they were bridges, which the county was liable to repair, as the jury had not found either that they were erected at the same time as the bridges over the river, or for the purpose of enabling the public to pass, and not for the benefit of the owners of the adjoining lands: Rex v. Oxfordshire, 1 B. & Ad. 297 (20 E. C. L. R.). The indictment in Rex v. Oxfordshire, 1 B. & Ad. 289 (20 E. C. L. R.), contained six counts, all of which charged the non-repair of a bridge, varying the description in each count.

(8) Reg. v Derbyshire, 2 Q. B. 745 (42 E. C. L. R.).

(1) Ante, p. 462, et seq.

(u) Rex v. Glamorgan, 2 East 356; Glusburne Bridge case, 5 Burr. 2594; 2 Blac. R. 687; Rex v. West Riding of Yorkshire, 2 East 342. And see post, 552, et seq.

() According to the doctrine in Roberts v. Karr, 1 Campb. 262, in the note. ante, p. 463.

And see

(w) Rex v. Northampton, 2 M. & S. 262. In Rex v. Devonshire, R. & M., N. P. C. 144, Abbott, C. J., held that the county were liable to repair a bridge by the side of a ford, which was only used by the public in times of floods, which made the ford impassable, as the bridge was at all times open to the public.

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.(x)

But a bridge built in a public way, without public utility, is indictable as a nuisance; and so it is if built colorably in an imperfect or inconvenient manner, with a view to throw the onus of rebuilding or repairing it immediately on the county.(y)

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.(z) All actual obstructions, therefore, to such bridges will come within the rules already stated with respect to nuisances to highways by obstruction, (a) and do not require a repetition in this place. There is, however, one case 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.(b)

The nuisances which more frequently arise to the public in respect of bridges are in the nature of nonfeasance, from the neglect to keep them in a proper state of repair. As parishes are bound to repair the public ways within their district; so the inhabitants of a county at large are primâ facie and of common right, liable to the repair of all public bridges within its limits, unless they can show a legal obligation on some other persons or public bodies to bear the burthen :(c) and this without any distinction as to foot, horse, or carriage bridges.(d) The statute of bridges shows that the burthen is prima facie on the county; and it is exactly analogous to the liability of the parish to repair a road. (e) 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 () And a corporation, *aggregate, either in respect of a special *545] 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 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

(x) Rex v. The Marquis of Buckingham, 4 Campb. 189.

() Rex v. West Riding of Yorkshire, 2 East R. 342. But see post, p. 554; 43 Geo. 3, c. 59, s. 5, as to the liability of counties to repair bridges thereafter to be erected. (2) Rex v. Bucks, 12 East 202, 203.

(a) Ante, p. 845, et seq.

(b) Reg. v. Watson, 2 Lord Raym. 856.

(c) 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.

(d) By Lord Ellenborough, C. J., in Rex v. Salop, 13 East 97.

(e) By Bayley, J., in Rex v. Oxfordshire, 4 B. & C. 196 (10 E. C. L. R).

(f) Rex v. Hendon, 4 B. & Ad. 628 (24 E. C. L. R.); Reg v. New Sarum, 7 Q. B. 941 (53 E. C. L. R.); Rex v. Ecclesfield, 1 B. & A. 359. Per Curiam, and this without stating any other ground than immemorial usage.

(g) 1 Hawk. P. C. c. 77, s. 2; Bac Abr. tit. Bridges. A body politic may be bound either ratione tenuræ 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, p. 500.

(h) Bac. Abr. tit. Bridges; 1 Hawk. P. C. c. 77, s. 1.

(i) Reg. v. Bucknall, 2 Lord Raym. 804. 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.