accounted for annually, nor until a short time before the issuing of the distress warrant :Held, that the accounting was not a condition precedent to the levy, and that the distress was legal. Smith v. Jones, 1 B. & Ad. 328.

Exception-Vicar.]-An inclosure act gave the commissioners power to raise money to defray the expenses of carrying out the provisions of the act by a rate to be made and levied upon the several persons interested in the lands to be inclosed, "except the vicar and persons entitled to tithe, and the mayor, aldermen and burgesses, in respect of the lands for places for public recreation : "-Held, that, looking at the general frame and object of the act, this clause exempted the vicar from payment of rates in respect of his allotment in lieu of glebe, as well as his allotment in lieu of tithes. Eddison v. Brookes, 17 C. B., N. S. 606; 11 L. T. 378; 13 W. R. 98.

Invalid Assessment-Death.]—Where, under an inclosure act three commissioners and their successors were appointed, and it was provided, that all acts or things done by any two of the commissioners should be valid ; and that if any of them should die, or become incapable to act for the space of forty days, when occasion should require his or their attendance for carrying the

act into execution, a new commissioner or commissioners should be elected and appointed in his or their stead-Held, that an assessment made by two commissioners, after the death of one of the three appointed by the act, and before the election or appointment of a successor, was invalid, although such assessment was made for the purpose of carrying the act into execution. Doe d. Nicholson v. Middleton, 6 Moore, 532;

3 B. & B. 214.

Of making Roads.]-Commissioners who had made private roads under the authority of 41 Geo. 3, c. 109, s. 10, and a private inclosure act (which said nothing about private roads), had no power to make a rate for reimbursing themselves the expenses incurred. Falmouth (Earl) v. Richardson, 5 D. & R. 664; 3 B. & C. 837. And see Rex v. St. Benedict, 4 B. &. A. 447.

Where commissioners were empowered to make roads, and to defray the expense by a rate on the several proprietors, and they executed their award as to the allotments before the roads were completed, or sufficient funds were raised for that purpose:-Held, that they might afterwards make a rate to defray the expense of completing the roads. Haggerston v. Dugmore,

1 B. & A. 82.

by a local act, which enacted that the private roads set out by them should be repaired by such person or persons as they should award, had no power to impose on the parish at large the burden of repairing. Rex v. Cottingham, 6 T. R. 20.

4. SETTING OUT AND STOPPING ROADS, Public-Where Stopped.]-Under 41 Geo. 3, c. 109, s. 8, the commissioners are authorized to stop up or divert footways as well as carriage roads; and the proviso at the end of the section is not confined to carriage roads, but extends to every species of ways, and, therefore, where the commissioners were empowered by a local inclosure act to stop up all ways passing over the lands to be inclosed, as well as ways passing through old inclosures in the parish, it was held, that in order effectually to stop up a public footway passing partly over the lands to be inclosed, for them to have the concurrence and order of and partly over an old inclosure, it was necessary two justices; and no such order or concurrence which the commissioners ordered to be stopped having been obtained :---Held, that a footway up had not been effectually stopped, but continued a public footway. Logan v. Burton, 8 D. & R. 299; 5 B. & C. 513.

Over what Lands.]—An old footway passed from a public highway over wastes and old inclosures into another public highway. By inclosing the wastes, the part of the waste over which the footway ran was allotted; but the footway was not mentioned in the award, nor was any new way set out therein. No power to stop up ways over old inclosures was given by the particular inclosure act :-Held, that the old footway was not extinguished by the allotment. Thackrah v. Seymour, 1 C. & M. 18; 3 Tyr. 87.

an award of the commissioners under an act for

An act for inclosing lands in a parish authorized commissioners to make new roads, and also to divert, turn, alter, or stop up any of the it directed them to prepare and sign a map present public roads, as they should think proper; describing the roads, and give certain notices therein prescribed, and to hold a meeting for the purpose of hearing objections, in which they were to be assisted by a justice of the peacethe commissioners and justice to have power to confirm and alter the map-and all roads not set out, or finally ordered and directed to be set out and continued, were to be for ever stopped up and extinguished, and deemed and taken to be part of the lands to be divided and allotted: provided Where an inclosure act gave the commissioners that no roads passing through old inclosures power to set out and make roads, and directed should be stopped up, diverted, turned, or altered, that the expenses of making and repairing those without an order of two justices :-Held, that a roads, and all other expenses should be borne by road passing partly through old inclosures and the proprietors in certain proportions, to be aspartly over lands to be inclosed, was not, nor certained by the commissioners, in one general was any part of it extinguished, by reason of its rate, and then gave an appeal to the sessions in not being mentioned or set out in the map or all cases where the parties should think them-award, and of the latter part of it being included selves aggrieved:-Held, that an objection to within a private allotment. Rex v. Downshire the rate on account of the commissioners having (Marquis), 6 N. & M. 92 ; 4 A. & E. 698; 1 H. & expended money on an improper object, could not W. 673. be tried in an action, but that the party aggrieved must appeal to the sessions. Bonnell v. Beighton, 5 T. R. 182.

Effect of Award-Liability to Repair.]-An ancient public bridle-way existed for the greater part undefined, over common uninclosed lands, Private Roads.]—The commissioners appointed the remaining part being through old inclosures.

presume that the lands on which the road was constructed lay, at the time of making the award, in Gate Fulford, the evidence being that from which a jury, if they had been asked the question, might have inferred this. Ib.

By an award of commissioners, under a local | public roads :-Held, that assuming it to be true act, the road altered in some parts, and defined that the commissioners had power to award only throughout within narrower limits, was set out as to lands in Gate Fulford, the court would as a public bridle-road and private carriageroad for the use of private individuals named, to be kept in repair by them. No order of justices for stopping up or diverting the old road, or certificate of the sufficiency of the new road, had been obtained :-Held, that the award did not operate, under the 41 Geo. 3, c. 109, as a diversion or stopping up of the old public bridleroad, and setting out of a new one, but that the public had the same right of passage as before, and, therefore, that the parish in which the road lay remained liable to do such repairs as were requisite to maintain it as a public bridle-road. Reg. v. Cricklade, 14 Q. B. 735; 19 L. J., M. C. 169; 14 Jur. 690.

Upon trial of an indictment for non-repair of a public carriage-road, it appeared that inclosure commissioners, by their award made in 1840, set out a public highway, which ran in the same track as, and included, but straightened and widened, an ancient highway. The indicted road passed through allotable land on both sides of it, except that on one side, in one part, there was an old inclosure. The parish had repaired the road both before and after the award. No steps had been taken by the commissioners for putting the road into complete repair, pursuant to 41 Geo. 3. c. 109, s. 9, and there never had been any declaration by justices at their special sessions that the road had been fully and sufficiently formed, completed, and repaired :-Held, that the parish was not liable in respect of the non-repair of the road. Reg. v. East Hagbourne, 1 Bell, C. C. 135; 28 L. J., M. C. 71; 5 Jur.,

N. S. 346.

Setting out Road.]—Gate Fulford and Water Fulford were townships in the parish of Fulford Ambo, and the whole of Gate Fulford and part of Water Fulford constituted the manor of Fulford. The township of Gate Fulford was indicted for non-repair of a road; and the indictment charged the liability as resulting from an inclosure act and an award. An inclosure act directed that commissioners by award should divide and allot certain lands in the manor of Fulford, which, it was contended, were shewn by the context to be all in the township of Gate Fulford, and should set out the public and private roads in the land to be divided and allotted; and that the public roads so set out should be repaired by the township of Gate Fulford. The award set out some roads which it termed public highways and roads, some which it termed public carriageroads, and others which it termed private carriageroads; it then set out the road indicated, which it termed a carriage-road simply, and directed that it should be repaired by the inhabitants of the township of Fulford aforesaid, without specifying which township was meant. Another road, also termed simply a carriage-road, appeared to be set out as a private road-Held, that, as against the township, it sufficiently appeared from the award that the road indicated was made a public road. Reg. v. Gate Fulford, Dears. & B. C. C. 74; 7 Cox, C. C. 230.

The road ran through what was understood to be the township of Water Fulford. Evidence was given that the township of Gate Fulford had on various occasions repaired the road, but had also repaired roads in the township which were not

If it had appeared that the road so set out had, as to any part, been on land over which the power of the commissioners did not extend, the award would have been bad as to the whole road. lb.

An inclosure act empowered the commissioners. with the concurrence and order of two justices of the peace, to stop up and discontinue roads. An old footpath had been omitted by the commissioners in preparing a map of roads set out :— Held, that the old way was not stopped up and extinguished, according to the true construction of the acts of parliament, by the commissioners and two magistrates making and signing an order confirming the map; an express order of two magistrates being indispensably necessary to the stopping up of roads, whether they were public carriage roads, or private, or bridle and foot roads; and that merely not setting it out, is not sufficient to extinguish it. Harber v. Rand, 9 Price, 58.

A., having an allotment made to him by a commissioner, under an inclosure act, of land, over which B. had a private right of way before the passing of the act, but which way was not noticed or described amongst those set out by the commissioner appointed for executing that act (the operation of which, as to the powers of setting out or stopping up roads, was left to the 41 Geo. 3, c. 109), may, under s. 11, justify the stopping up of such way without any directions from the commissioner for that purpose in the award, or any other road being set out or appointed in lieu of it. White v. Reeves, 2 Moore, 23.

Over Crown Lands.]-When a public footway over crown lands is extinguished under an inclosure act, but the public continue for twenty years afterwards to use the way, such user is not evidence of a dedication of the way to the public, unless it appears to have had the consent of the crown. Harper v. Charlesworth, 6 D. & R. 572; 4 B. & C. 574.

Presumption of Extinguishment.]—An inclosure act authorized commissioners to divert or stop up any old road, public or private, leading between or over any of the old inclosures within the district to which the act applied; with a proviso that no such road should be stopped up without the concurrence and order of two justices of the peace for the district. The commissioners, by their award, in pursuance of the powers vested in them by the act, and by the concurrence and order of two justices of the peace, stopped up a public footpath in the district. No order of justices was to be found in the place of deposit mentioned in the act for the award and other documents relating thereto :—Held, that the award itself and the statement therein contained, were sufficient primâ facie evidence that the road had been duly stopped up by the order of two justices, the subsequent enjoyment not being shewn to be inconsistent with the award. Manning v. Eastern Counties Railway Company, 12 M. & W. 237 ; 13 L. J., Ex. 265.

By 41 Geo. 3, c. 109, s. 8, in case the commis

sioner shall be empowered to stop up any old or accustomed road passing through any part of the old inclosures, the same shall in no case be done without the concurrence or order of two justices. A local inclosure act appointed a commissioner to carry the act into execution, subject to such of the regulations, restrictions, and provions in 41 Geo. 3, c. 109, as were not altered, varied, controlled by, or repugnant to, the provisions of that act. A section enacted that it should be lawful for the commissioners to stop up any old or accustomed public road or roads over the marshes, commons, and waste lands, subject nevertheless to the concurrence of two justices, and under such regulations as were contained in 41 Geo. 3, c. 109, and provided that the old roads should not be discontinued till the new roads were properly formed. The marshes were allotted in 1819, when a gate, which had since been kept locked, was put up across an old road, but the road had since been used by foot passengers occasionally. The award of the commissioners, executed in 1830, set out the new roads, and directed the old roads to be stopped up. A certificate of two justices that the new roads had been formed and completed, under 41 Geo. 3, c. 109, s. 9, was put in and proved; but no order of two justices for stopping the old road was produced :-Held, that it might be presumed that an order of two justices for stopping up the old road had been duly made. Williams v. Eyton, 4 H. & N. 357; 28 L. J., Ex. 176-Ex. Ch.

From user.]-To an action for entering and passing over a close of the plaintiff, the defendant pleaded a right of way from time immemorial, and a user for forty and twenty years. A user, in fact, for more than forty years was proved. In 1839 all ways not set out in an award were extinguished by act of parliament, and this way was not set out:-Held, that it could not be presumed from the user that the award was otherwise than properly made, and that less than twenty years having elapsed since the award, no right had been gained under 2 & 3 Will. 4, c. 71, s. 2. Holden v. Tilley, 1 F. & F. 650.

་

Stopping part-Effect on rest.]-In 1813, commissioners were empowered by a local act to stop up any public road or footpath through any part or parts of the lands in the parish of T., subject to appeal to the quarter sessions. The commissioners made an order for stopping up a footpath in the parish of T., which was continued as a footpath into the parish of S. By the act of stopping up the path in T., the residue of the footpath in S. became useless as a public thoroughfare :-Held, that the commissioners had power to stop up so much of the footpath as lay within the parish of T., and that the remedy of the parties injured by the order was by appeal. Gwyn v. Hardwicke, 1 H. & N. 49; 25 L. J., M. C. 97.

made from A. to B. This road was accordingly
set out, and was duly fenced by the allottees of
the land adjoining it; but it was never formed
and completed so as to satisfy the requirements
of the General Inclosure Act (41 Geo. 3, c. 109),
ss. 8 and 9, and to become a highway repairable
by the parish; and there was no evidence that it
had ever been used except by the owners or
tenants of the allotments on the side of it, and in
two or three instances by other persons shortly
after it was so set out. About 1822 the lord of
the manor of Effingham East Court had purchased
some allotments abutting on a portion of the
road, and planted along the whole length of it,
about nine or ten feet from the fence separating it
from Ranmore Common, a row of fir trees, and
the rest of the forty feet was overgrown with
briars, brambles, and furze. The plaintiff in
1852 became the owner of an estate abutting on
the other portion of the road, and had for more
than twenty years exercised repeated acts of
ownership over the whole of the forty foot space,
such as shooting over it, cutting down some of
the fir trees when they wanted thinning, and
repairing the fences; though these had occa-
sionally been repaired by other persons, to pre-
vent sheep and cattle from straying on to their
lands from the adjoining common. The defen-
dant, in 1869, purchased the estate which had
formerly belonged to the lord of the manor of
Effingham East Court; and in 1870 she cut
down and converted several of the trees growing
upon the forty foot space opposite the plaintiff's
land; and to an action against her for this
alleged trespass she pleaded that the locus in
quo was a common and public highway for all
the Queen's subjects, and justified the cutting
down and removing the trees in the exercise of
such right of way. Neither in the conveyance
to the plaintiff nor in that to the defendant, nor
in the respective plans thereto annexed, was any
mention made of the forty foot road.
The jury
found that the defendant did the acts com-
plained of in assertion of a claim of property,
and not of a right of way; that the forty foot
road was never taken as a public highway by the
public; and that the plaintiff had had twenty
years' uninterrupted possession of the locus in
quo:-Held, that the evidence did not support the
plea. Cubitt v. Maxse, 8 L. R., C. P. 704; 42
L. J., C. P. 278; 29 L. T. 244; 21 W. R. 789.

Setting out Private Ways.]-It is competent to the commissioners, under 8 & 9 Vict. c. 118, s. 68, to order the valuer to set out a private or an occupation road over land directed by the provisional order to be allotted to an individual in lieu of his rights in the lands to be inclosed, unless the provisional order expressly declares that his allotment shall be exempt from such a burden. Grubb v. Inclosure Commissioners for England and Wales, 9 C. B., N. S. 612; 30 L. J., C. P. 155; 3 L. T. 812; 9 W. R. 314. Affirmed And per Alderson, B., that that part of the foot-on appeal, 13 C. B., N. S. 805; 31 L. J., C. P. way situated in the parish of S. was not destroyed 221; 5 L. T. 590; 10 W. R. 92—Ex. Ch. as a footway, but remained as such, although left as a cul de sac. Ib.

Stopping Private Ways.]-H. previously to 1869 was seised of lands in the parishes of W. and B., in which there were waste lands about to be inclosed under the General Inclosure Act, and portions of which would be allotted to him in respect of the ownership of his lands. sold his lands, expressly reserving the allotments. The defendant became the purchaser of some of

K

H.

Held, secondly, that the surveyors were within 3 & 4 Will. 4, c. 27, by reason of the interpretation clause, s. 1. Ib.

Held, thirdly, that there had been a discontinuance of possession by the surveyors, and an actual possession by P. for twenty years, and therefore their right was barred by 3 & 4 Will. 4, c. 27, ss. 2, 3. Ib.

If P. had the exclusive right to the surface, the acts which he did were acts of ownership in the subsoil, and evidence from which it might be concluded that he took possession of the whole Ib.

acre.

Effect of Appointment.]—An act having directed that allotments made by the commissioners should for ever remain for the benefit of the appointees :-Held, that an award and assignment of the herbage of a close to the surveyors of the highways and their successors for the benefit of a parish, though bad as a common law conveyance, the appointees not being a corporation, were yet good as a parliamentary declaration of the persons entitled to take the same; as if the terms of the award had been specifically enacted; and the lord of the manor, in whom the fee of the soil remained, is a trustee for the surveyors of the highways for the time being. Johnson v. Hodgson, 8 East, 38.

Appeal to Sessions against.]—-The 8 & 9 Vict. c. 118, s. 63, does not require that an appeal under that section shall be actually heard within the four months mentioned in that section, but that due notice of appeal shall be given within that time. Reg. v. Essex (Justices), 34 L. J., M. C. 41; 11 L. T. 486; 13 W. R. 186.

Upon a preliminary objection an appellant was required to prove the time when the notice of objection to stop up a way, mentioned in the 8 & 9 Vict. c. 118, s. 63, was fixed to the church door, and it was proved that a notice bearing a certain date had been posted on the door :Held, that the date borne by the notice was primâ facie evidence that the notice was first fixed up on that date. Ib.

rate for making and repairing roads on the ground that the commissioners had expended money on improper objects, cannot be tried in an action. The party aggrieved must appeal to the sessions. Bonnell v. Brighton, 5 T. R. 182.

Valuer's Notice Part of Road.]-A valuer appointed under 8 & 9 Vict. c. 118, s. 62, having given notice of intention to stop up a road from A. to B., a notice of appeal, against the stopping up of a part of the road, is good, and the quarter sessions are bound to hear the appeal. Reg. v. Huntingdonshire (Justices), 1 L. R., Q. B. 36; 13 L. T. 443: S. C., nom. Johnson v. Smith, 14 W. R. 209.

Whether a person's liability to rates is increased or diminished by closing a road, is not a matter for the sessions to consider as an element of private injury, but of public benefit. Ib.

Rating Officer - Voting for, by Agent appointed. At a meeting of owners pursuant to the Inclosure Act (11 & 12 Vict. c. 99), s. 6, to elect a rating officer, B. attended as agent of a college having a power of attorney dated in 1848, but before the passing of the above statute all meetings under the 8 & 9 Vict. c. 118. O., which authorized B. in express terms to attend another agent, had a power of attorney authocertain specified acts, and to attend any vestry rizing him to act for another college under or meeting under any act of parliament relating and O. were sufficiently authorized "in that behalf" to attend and vote for the owners respectively. Reg. v. Tarrant, 44 J. P. 425. See JUSTICE OF THE PEACE.

to lands-Held, that under these authorities B.

5. WELLS.

Right to, whether extinguished under Enclosure.]-Action for breaking a close. Plea, that by custom, the inhabitants of a township had a right to take water for domestic purposes from a well in the close; that the plaintiff choked it up, and justified the acts complained of as done by the inhabitants to clear out the well. It appeared that the inhabitants had, from time immemorial, taken the water from the well. About fifty years before the action the locus in quo was inclosed under a special act, incorporating the 41 Geo. 3, c. 109. Neither in the special act, nor in the award of the commissioners was any mention made of this well, or of any access to it :-Held, that the right to By a clause in an inclosure act, a commissioner take water from the well was not extinguished was empowered to stop up any way, provided it by the inclosure; and that, whether the ancient was done by the order and with the concurrence right of access to the well for that purpose was of two justices; and such order was to be or was not extinguished (and, semble, it was not subject to an appeal to the quarter sessions, in extinguished), the inhabitants might in other like manner and under such form and restric-modes legally get access to the well, so that the tions as if the same had been originally made by such justices; and by a subsequent clause any party aggrieved might appeal at any time within six months next after the cause of complaint had arisen under the act; the commissioner, with the concurrence and order of two justices, stopped up a road without giving the public notices required by 55 Geo. 3, c. 68, s. 2 :Held, that a party aggrieved might, under these circumstances, appeal at any time within six

months.

fifty years' enjoyment de facto, since the inclosure, might have had a legal origin. Race v. Ward, 7 El. & Bl. 384; 26 L. J., Q. B. 133; 3 Jur., N. S. 512.

6. DRAINS.

Overloading Ancient Drains.]-An act empowering commissioners to inclose the common lands in a township, reciting the titles of certain landowners, and that it would be greatly to the advantage of the proprietors of the common Objection to Rate.]-An objection to a lands that the same should be divided and in

Rex v. Townshend, 5 B. & A. 420.