Cases.

surveyors put up fences on either side, so as to obstruct the passage across it:-Held, by the Vice-Chancellor of England, that, even if Diversion of Roads. the surveyors had, under the 59th and 60th sections, a jurisdiction to determine in what manner the diverted permanent road should be made, they were not justified in putting up the fences across the temporary road, but ought to have applied to a court of equity for an injunction, or to a court of law for a mandamus; and that the right of the surveyors was a private right, the surveyors being in no way interested in the question of public safety.

Whether, upon the true construction of the act, such diverted temporary road was an alteration of a road within the meaning of the 59th and 60th sections-quære. This case was afterwards compromised.

IX. Cases relating to the Repairs of Works.

A company, under

the powers con

tained in a statute, and substituted a bridge:-Held, that they were liable to keep the

destroyed a ford,

Rex v. The Inhabitants of Kent, (13 East, 220).]—The Medway Navigation Company, being empowered under a local act (16 & 17 Car. 2) to make the river navigable, and to take tolls, and "to amend or alter such bridges or highways as might hinder the passage or navigation, leaving them or others as convenient in their room," &c., bridge in repair. and they having forty years ago destroyed a ford across the river in the common highway, by deepening its bed, and built a bridge over the same place, it was decided by the Court of King's Bench that the company were bound to keep such bridge in repair.

Lord Ellenborough, C. J., said, "Here the statute gives power to the company to take or alter the old highway for their own purposes, upon condition of leaving another passage as convenient in its room; and if they do not perform the condition, they are not entitled to do the act. It is a continuing condition; and when the company thought proper for their own benefit to alter the highway in the bed of the river, so that the public could no longer have the same benefit of the ford, they were bound to give another passage over the bridge, and to keep it for the public."-Le Blanc and Bayley, Js., concurred.

Rex v. The Inhabitants of the Parts of Lindsey, (14 East, 317).]— A canal company, authorised by an act of Parliament to make the

CC

Same point as R.

v. The Inhabitants

of Kent, supra.

Cases.

river Bain navigable, and to make and enlarge certain navigable cuts, Repairs of Works. and build bridges and other works connected with the navigation, having for their own benefit made a navigable cut and deepened a ford which crossed the highway, 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, are bound to maintain the same; and the burthen of repair cannot be thrown upon the inhabitants of the (county) parts of Lindsey, in the county of Lincoln.-Per Le Blanc, J., "The circumstances of this case are very nearly the same as occurred in the late case of the indictment against the inhabitants of Kent, (ante, p. 385), and must be governed by the same principle. The authority given to the company to make the cut, which rendered the highway impassable without a bridge, must create an obligation in them to erect the bridge, though the word 'authorise' in the act might not of itself create the obligation."— Lord Ellenborough, C. J., Grose and Bayley, Js., concurred.

Where a bridge was erected by a company over a navigable riverHeld, that the company and not the county were liable to repair the bridge.

Rex v. Kerrison, (3 M. & Sel. 526).]—Where certain persons and their successors were authorised by act of Parliament to make a river navigable, and to cut the soil of any persons for making any new channel, &c.; by virtue of which they cut through a highway, and rendered it impassable, and a bridge was built over the cut, over which the public passed, and which had been repaired by the proprietors of the navigation, it was decided by the Court of King's Bench that the proprietors, and not the county, were liable to repair the bridge. Lord Ellenborough, C. J., said, "The undertakers of this navigation have a duty, as it seems to me, arising out of the execution of their own powers under the act. The act enables them to cut new channels as occasion should require; and, if occasion requires them to cut through a public highway, their duty is to furnish a substitute to the public by means of a bridge. Can we put any other construction upon the act but this-that the Legislature intended that, so far as regarded the making the river navigable, and the cutting new channels for that purpose, neither public nor private rights should stand in their way? But still they should make good to the public in another shape the means of passage over such ways as they were empowered to cut through. What has been done is not a mere incommoding the passage, leaving the public a partial enjoyment of the highway, but it is a total deprivation of the means

of using it. I am not aware that what we now decide will at all Cases. clash with what we decided in the last case of Rex v. Inhabitants of Repairs of Works. Kent." (Ante, p. 385).—Le Blanc and Bayley, Js., concurred.

Rex v. The Bristol Dock Company, (6 B. & C. 181).]-By an act of Parliament, empowering certain persons to make a floating harbour at Bristol, it was enacted, "that it should and might be lawful for the directors of the Bristol Dock Company, and they were thereby authorised and required to make a common sewer in a certain direction therein specified, and also to alter and reconstruct all or any of the sewers of the said city at the mouths thereof, so and in such manner that the sewers might be discharged considerably under the surface of the water in the floating harbour, and also to make such other alterations and amendments in the sewers of the said city as might or should be necessary in consequence of the floating of the said harbour." The directors altered several of the sewers, so as to discharge them considerably under the surface of the water in the floating harbour; but the sewage there discharged was so offensive as to be a nuisance to the neighbourhood. It was decided by the Court of King's Bench, that, under the latter part of the clause above set forth, the directors were authorised and required to make a new sewer, if necessary to remove the nuisance.

Priestley v. Foulds, (2 Man. & Gr. 175).]—An incorporated company was authorised by act of Parliament to make a navigable canal, the construction of which would interfere with an ancient drain. By one section of the statute the company was required to make a drain on each side of the canal, and parallel therewith, in lieu of part of the ancient drain, which would be destroyed. By another section, the company was required to make such arches, tunnels, culverts, drains, or other passages over, under, by the side of, or into the canal, and the trenches, streams, and watercourses communicating therewith, and towing-paths on the sides thereof, of such depth, breadth, and dimensions as should be sufficient to convey the water clear from the lands adjoining or lying near the canal, without obstructing or impounding the same; and to support, maintain, cleanse, and keep in repair all such arches, &c., drains, and other passages. It was decided, by the Court of Common Pleas, that the drains made in pursuance of the former section, in lieu of the ancient drain,

As to the liability

of a dock com

pany to make a

sewer to remove a

nuisance occasioned by their works.

Cases.

were to be cleansed by the company, as well as those made in purRepairs of Works. Suance of the latter section; and that a summary remedy given by the latter section, in case of non-repair by the company, was applicable to a default in cleansing the drains made in lieu of the ancient drains.-Tindal, C. J., "In Rex v. Kent (ante, p. 385), it was held, that a clause directing the erection of a bridge imposed a continuing obligation. That case appears to me to furnish a key to unlock the meaning of this act of Parliament. There the power of building of a bridge in lieu of a ford, which the Medway Navigation Company were authorised to destroy,-here, the power of substituting new drains for the old Fleet drain,-were conferred by the Legislature for the particular benefit of the respective companies. This case, therefore, falls within the well-known maxim 'qui sentit commodum sentire debet et onus.' I am of opinion that judgment must be entered for the defendant.”—Bosanquet, Coltman, and Maule, Js., concurred.

As to the liability of a navigation company to repair the banks of a channel.

Regina v. The Bristol Dock Company, (2 Q. B. 64; 2 Railway Cases, 599).]—By a dock act, certain persons were formed into a company for improving a port, and made proprietors of the works, and were authorised and required to make, complete, and maintain a new course or channel for a river, the same to be of equal depth and breadth at the bottom, and with equal inclination of the sides, as the then present river course then had in those parts thereof which had not been excavated or embanked, or as near as circumstances would admit, except in such parts of the new course as should be cut through rock or stone. A mandamus issued to the company, stating, in the inducement, that the company had made and completed a new channel, but that certain parts of the south bank or side, not cut through rock or stone, had since become and were broken down and out of repair, and the inclination of the said side was thereby greatly altered, to the danger of the obstruction of the navigation, and damage of all the liege subjects, &c.; and the company were commanded to repair and maintain the said parts of the south bank. Return, that the company were not required by the statute, nor otherwise liable, to repair and maintain the said parts; and that, as near as circumstances had admitted or did admit, they had maintained the new course of equal depth and breadth at the bottom, and with equal inclination of the sides as the river course at the time of the act passing had in those parts which had not been excavated or embanked, and except such

Cases.

parts of the new course as had been cut through rock or stone. It was decided, by the Court of Queen's Bench, that the first part of the Repairs of Works. return was bad, as traversing matter of law, and also because a legal liability appeared; that the second part was also bad, as not answering the mandatory part of the writ, but applying only to matter stated in the writ as a consequence of the omission to repair.

X. Other Cases not included in the foregoing Subjects.

Rex v. Russell, (6 B. & C. 566).]-Upon the trial of an indictment for a nuisance in a navigable river, by erecting staiths there for loading ships with coals, the jury were directed by the learned Judge to acquit the defendant if they thought that the abridgment of the right of passage occasioned by these erections was for a public purpose, and produced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river; and he pointed out to the jury that by means of the staiths, coals were supplied at a cheaper rate, and in better condition, than they otherwise could be; which was a public benefit:-Held, by Bayley and Holroyd, Js., that this direction to the jury was proper. Lord Tenterden, C. J., diss.

Rex v. Pease, (4 B. & Adol. 30; 1 Nev. & M. 690).]-By an act reciting that a railway between certain points would be of great publie utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway according to a plan deposited with the clerk of the peace, from which they were not to deviate more than 100 yards. By a subsequent act, the company, or persons authorised by them, were empowered to use locomotive engines upon the railway. The railway was made parallel and adjacent to an ancient highway, and in some places came within five yards of it. It did not appear whether or not the line could have been made, in those instances, to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons using the highway as a carriage road. On indictment against the company for a nuisance, it was decided that this interference with the rights of the public must be taken to have