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surveyor or other party as aforesaid at whose instance the notice for diverting and turning or stopping up the highway shall have been given; and in case the said surveyor or other party as aforesaid shall not appear in support thereof, the said court of quarter sessions shall award the costs of the appellant to be paid by such surveyor or other party as aforesaid, and such costs shall be recoverable in the same manner as any penalties or forfeitures are recoverable under this Act. Id. 8. 90. If the appellant in such an appeal be ordered to pay costs, his not paying them is not such an offence as renders the party liable to a summary conviction under the 103rd section of the Highway Act. Selwood v. Mount et al., 10 Law J. 121, m.

Order of sessions.] But if no such appeal be made, or being made shall be dismissed as aforesaid, then the justices at the said quarter sessions shall make an order to divert and turn and stop such highway, either entirely or subject as aforesaid, or to divert, turn, and stop up such old highway, and to purchase the ground and soil for such new highway, or to stop up such unnecessary highway, either entirely or subject as aforesaid, by such ways and means, and subject to such exceptions and conditions in all respects, as in this Act is mentioned in regard to highways to be widened; and the proceedings thereupon shall be binding and conclusive on all persons whomsoever; and the new highways so to be appropriated and set out, shall be and for ever after continue a public highway to all intents and purposes whatsoever; but no old highway (except in the case of stopping up of such useless highway as herein is mentioned) shall be stopped, until such new highway shall be completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof, which certificate shall be returned to the clerk of the peace, and by him enrolled amongst the records of the court of quarter sessions next after such order as aforesaid shall have been made pursuant to the directions hereinbefore contained. Id. 8. 91.

Liability to repair the new way.] Where a highway shall have been turned or diverted under the provisions of this Act, the parish or other party which was liable to repair the old highway, shall be liable to the repair of the new highway, without any reference whatever to its parochial locality. Id. 8. 92.

7. Nuisances to Highways.

Trees near the highway.] No tree, bush or shrub shall hereafter be planted on any carriageway or cartway, or within the distance of fifteen feet from the centre thereof, but the same shall respectively be cut down, grubbed up, and carried away by the owner or occupier of the land or soil, within twentyone days after notice to him or his agent by the surveyor, on pain of forfeiting for every neglect the sum of ten shillings. Id. s. 64.

And where in this Act any matter or thing is directed or forbidden to be done within a certain distance of the centre of the highway, that portion of ground shall be deemed and taken to be the highway, which has been maintained by the surveyor as highway, and repaired with stones or other materials used in forming highways, for six months immediately preceding; and the centre of the highway shall be the middle of such highway, where a line being drawn along the highway, or a point marked, an equal number of feet of highway, which have been so maintained and repaired as aforesaid for twelve months before, shall be found on each side of such line or mark. Id. s. 63.

Hedges.] If the surveyor shall think that any carriageway or cartway is prejudiced by the shade of any hedges, or by any trees (except those trees planted for ornament, or for shelter to any hop-ground, house, building, court-yard, of the owner thereof,) growing in or near such hedges or other fences, and that the sun and wind are excluded from such highway, to the damage thereof,-or if any obstruction is eaused in any carriageway or cartway by any hedge or tree,-it shall be lawful for any one justice of the peace on the application of the said surveyor, to summon the owner of the land on which such hedges or trees are growing to appear before the justices at a special sessions for the highways, to show cause why the said hedges are not cut, pruned, or plashed, or such trees not pruned or lopped, in such manner that the carriageway or cartway shall not be prejudiced by the shade thereof, and that the sun and wind may not be excluded from the same to the damage thereof, or why the obstruction caused therein should not be removed; and the question as to the cutting, pruning, or plashing such hedges, or the pruning and lopping such trees, or the removal of such obstruction, shall, upon proof of the service of such summons, and whether the said owner attend or not, be determined at the discretion of such last-mentioned justices; and if such justices shall order and direct that such hedges shall be cut, pruned, or plashed, or such trees pruned or lopped, in manner aforesaid, or such obstruction removed, the said owner shall

comply therewith within ten days after a copy of such order shall have been left at the usual place of abode of the said owner or of his steward or agent, and in default thereof shall forfeit, on conviction, a sum not exceeding forty shillings; and the said surveyor, if the order of the said justices is not complied with, shall cut, prune, or plash such hedges, and prune and lop such trees, for the benefit and improvement of the highway, and remove such obstruction as aforesaid, to the best of his skill and judgment and according to the true intent and meaning of this Act: and the said surveyor shall be reimbursed by the owner as aforesaid what charges and expenses he shall be at in cutting, pruning, and plashing such hedges, and pruning and lopping such trees, and the removal of such obstruction, over and above the said forfeiture; and it shall and may be lawful for the justices at a special sessions for the highways, upon proof to them made upon oath, to levy as well the expenses of cutting, pruning, and plashing such hedges, or pruning and lopping such trees, or removal of such obstructions as aforesaid, as the several respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this Act. Id. 8. 65. See Brooke v. v. Jenney et al., 11 Law J. 10, m., 13 Id. 376, qb., 2 Q. B. 265.

But no person shall be compelled, nor any surveyor permitted, to cut or prune any hedge at any other time than between the last day of September, and the last day of March; and no person shall be obliged to fell any timber trees growing in hedges at any time whatsoever, except where the highways shall be ordered to be widened or enlarged as herein mentioned, or then to cut down or grub up any oak tree growing in such highway or in such hedges, except in the months of April, May, or June, or any ash, elm, or other trees in any other months than December, January, February or March. Id. 8. 66.

Ditches.] The said surveyor, district surveyor, or assistant surveyor shall have power to make, scour, cleanse, and keep open all ditches, gutters, drains, or watercourses, and also to make and lay such trunks, tunnels, plats or bridges, as he shall deem necessary, in and through any lands adjoining or lying near to any highway, upon paying the owner or occupier of such lands (provided they are not waste or common,) for the damages which he shall sustain thereby, to be settled and paid in such manner as the damages for getting materials in inclosed lands or grounds are herein (ante, p. 638) directed to be settled and paid. Id. 8. 67. See Peters et al. v. Clarson et al., 13 Law J. 153, m., 7 Man. & Gr. 548.

And if any owner, occupier, or other person shall alter, ob.

struct, or in any manner interfere with any such ditches, gutters, drains, or watercourses, trunks, tunnels, plats, or bridges, after they shall have been made by or taken under the charge of such surveyor, or district surveyor, and without his authority and consent, such owner, occupier, or other person shall be liable to reimburse all charges and expenses which may be occasioned by reinstating and making good the work so altered, obstructed, or interfered with, and shall also forfeit any sum not exceeding three times the amount of such charges and expenses. Id. s. 68.

Encroaching on the highways.] If any person shall encroach, by making or causing to be made any building, hedge, ditch, or other fence, on any carriageway or cartway, within the distance of fifteen feet from the centre thereof, every person so offending shall forfeit, on conviction, for every such offence, any sum not exceeding forty shillings; and the surveyor who hath the care of any such carriageway or cartway, shall cause such building, hedge, ditch, or fence to be taken down or filled up at the expense of the person to whom the same shall belong; and the justices, at a special sessions for the highways, upon proof to them made upon oath, shall levy as well the expenses of taking down such building, hedge, or fence, or filling up such ditch as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this Act. Id. s. 69.

Steam-engines, windmills, &c.] And it shall not be lawful for any person to sink any pit or shaft, or to erect or cause to be erected any steam-engine, gin or other like machine, or any machinery attached thereto, within the distance of twenty-five yards, nor any windmill within fifty yards, from any part of any carriageway or cartway, unless such pit or shaft or steamengine, gin or other like engine or machinery, shall be within some house or other building, or behind some wall or fence sufficient to conceal or screen the same from the said carriageway or cartway, so that the same may not be dangerous to passengers, horses or cattle ;-nor shall it be lawful for any person to make or cause to be made any fire for calcining or burning of ironstone, limestone, bricks, or clay, or the making of cokes, within the distance of fifteen yards from any part of the said carriageway or cartway, unless the same shall be within some house or other building, or behind some wall or fence, sufficient to screen the same from the same carriageway or cartway as aforesaid;-and in case any person shall offend in any of the cases aforesaid, every such person so offending shall forfcit and pay any sum not exceeding five pounds for each

and every day such pit, shaft, windmill, steam-engine, gin, machine, or fire shall be permitted to continue contrary to the provisions of this Act, which said penalties shall be levied, recovered and applied in such and the same manner as any penalty or forfeiture for any other offence on any highway may be levied, recovered, and applied: Provided that nothing herein contained shall be construed to restrain any person or persons from using, repairing, rebuilding, or enlarging any windmill, steam-engine, gin, or other like machine, or any kiln, or other erection used for the purpose of calcining or burning of ironstone, limestone, bricks, or clay, or the making of cokes, which may have been erected and may be in existence at the passing of this Act. Id. s. 70.

Gates on railways.] Whenever a railroad shall cross a highway for carts or carriages, or turnpike road, the proprietors of the said railroad shall make and maintain good and sufficient gates at each of the said crossings, and shall employ good and proper persons to open and shut such gates, so that the persons, carts or carriages passing along such road shall not be exposed to any danger or damage by the passing of any carriages or engines along the said railroad; and any complaint for any neglect in respect of the said gates, shall be made, within one calendar month after the said neglect, to any justice, who may summon the party so complained against to appear before him at the next petty sessions, who shall hear and decide upon the said complaint, and the proprietor so offending shall forfeit any sum not exceeding five pounds, together with such costs, as to the said justice shall seem fit; 2 & 3 Vict. c. 45, s. 1; to be recovered and applied in like manner as penalties under stat. 5 & 6 W. 4, c. 50. Id. s. 45.

Riding on footpaths, injuring the road, making fires, &c.] If any person shall wilfully ride upon any footpath or causeway by the side of any road, made or set apart for the use or accommodation of foot passengers ;-or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck, or sledge, upon any such footpath or causeway;-or shall tether any horse, ass, mule, swine, or cattle on any highway, so as to suffer or permit the tethered animal to be thereon;-or shall cause any injury or damage to be done to the said highway, or the hedges, posts, rails, walls or fences thereof;-or shall wilfully obstruct the passage of any footway ;-or wilfully destroy or injure the surface of any highway; or shall wilfully or wantonly pull up, cut down, remove, or damage the posts, blocks, or stones fixed by the said surveyor as herein directed; or dig or cut down the banks, which are the securities and defence of the said highways;-or break, damage or throw down the stones, bricks or wood fixed upon

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