Liability to repair ratione tenuræ. The owner of land is ultimately liable, though primarily the Occupier may be. included in the county of Stafford :-Held, that notwithstanding the above section the local Act remained in force, and that both counties were still liable to pay equally for repairs (k). 66 With respect to the liability at common law for the repair of bridges ratione tenure," said Lord Denman, C.J., in Baker v. Greenhill (1), "the result of the authorities seems to be to throw the charge ultimately upon the owner, though primarily, as far as the public are concerned, the occupier may be the person chargeable by indictment in case of non-repair (m); (The Queen v. Bucknell (n), and the cases there cited); and it would seem from those authorities, that, if the owner of land charged with the repair of a bridge ratione tenure suffer it to be out of repair, and the occupier of the land be indicted and fined, he would be entitled to look for reimbursement to the owner who ought to have it repaired, and who holds the land by the service of repairing the bridge" (o). The remedy for the recovery of the expenses of putting in repair a highway or bridge repairable ratione tenuræ from "the person liable to repair," given to district councils by section 25 (2) of the Local Government Act, 1894 (56 & 57 Vict. c. 73), is confined to the occupier of the land charge (k) Staffordshire and Derbyshire County Councils, In re, 54 J. P. 566 (1890). (1) 3 Q. B. 148; 2 G. & D. 435. (m) R. v. Sutton, 5 N. & M. 353; 42 R. R. 490; and also R. v. Kerrison, 1 M. & S. 435; 14 R. R. 491; R. v. Oxfordshire, 16 East, 223; 14 R. R. 491; R. v. Hayman, M. & M. 401; 31 R. R. 742; R. v. Middlesex, 3 B. & Ad. 201; 37 R. R. 396. An owner of lands who is not the occupier of them cannot be charged ratione tenure with the repair of a common highway. Where a highway repairable ratione tenure is, under statutory powers, so altered in its nature and course as to be practically destroyed, the liability to repair ratione tenuræ ceases: Reg. v. Barker, 25 Q. B. D. 213 (1890). (n) 7 Mod. 55, 91; Hawk. P. C. b. 1, c. 77, s. 3, vol. 2, p. 258, 7th ed. (0) In this case,-Baker v. Greenhill, 3 Q. B. 148,-A landowner, liable, amongst others, to repair a bridge ratione tenure, demised land; and the lessee covenanted to pay the rent clear of land tax, and all other taxes and deductions whatsoever, either parliamentary or parochial, taxed or imposed, or to be taxed or imposed, upon the premises, or upon the lessor, in respect thereof, the landlord's property tax only excepted. A statute, reciting the liability ratione tenure, and that part of the bridge was out of repair, enacted that landowners liable as above should repair, and keep in repair, the said parts during the continuance of the Act. On their default, road trustees appointed under the Act were to do the repairs, and recover against owners; a power of distress under a justice's warrant being given to enforce payment, while, for raising the sums required, a power was also given to the landowners, to call meetings, and to meet and make rates according to the value of the chargeable land; such rates to be levied by distress, if necessary. A subsequent Act, reciting the above-mentioned liability, made further provisions as to the holding of such meetings, and levying rates for the said repairs :-Held, that the original liability for contribution to repairs did not, by these enactments, become a parliamentary tax or deduction within the lessee's covenant; and, therefore (the Court finding no clause in the above statutes which extended the ultimate liability to lessees and occupiers, as well as owners), that the lessee, having been compelled, in the lessor's default, to pay a rate made as above, and charged upon him as lessee and occupier, might (in the manner pointed out by one of the statutes) recover the amount from the lessor. able with the obligation, and creates no liability in the owner of such land to repay the sums so expended (p). Such appears to be the general rule respecting liability ratione tenuræ (q). Some illustrations of, and exceptions to it, require, however, to be noted. An infant seised of lands in the actual possession of the guardian in socage (r), is not indictable for the non-repair of a bridge ratione tenure, and the guardian in socage, if in possession of the lands charged with the repairs, is indictable (r). An indictment, charging an individual with the repair of a bridge, by reason of his being owner and proprietor of a certain navigation, is not equivalent to charging him ratione tenuræ, but is erroneous; and if judgment be given thereon, upon error brought it will be reversed (8). A count, it appears, charging such an individual, by reason of his being owner of a navigation, under a private Act of Parliament, must set forth the Act. A person who is merely entitled as one of the public to use a bridge carrying the highway over a river is not justified in entering on another person's land and re-erecting the bridge which has been allowed to fall into a state of decay (t). Where there is no obligation to repair, there can be (in the absence of special power given) no right to repair, and the default of a local authority cannot extend the burden placed upon the land, or give to other persons a right which would not have existed if the local authority had not been in default. Collins, L.J., says: "This was an action of trespass by erecting a bridge over the plaintiff's land consisting of one moiety of the bed of the river Irfon in Wales. The defendants' pleas were not possessed,' and that there was a highway over the locus in quo by means of a footbridge, and the defendants, having occasion to use the said way, entered upon the locus in quo, and because the bridge had been destroyed, erected and laid a footbridge across the river, and necessarily did the acts complained of, without unnecessary damage, for the purpose of using the said highway. The jury found the issue on not possessed' for the (p) Cuckfield District Council v. Goring, [1898] 1 Q. B. 865; 67 L. J. Q B. 539. (q) As to repair of approaches by persons liable ratione tenure, see ante, p. 553, n. (t). (r) Guardian in socage is the next friend in blood to whom the inheritance cannot descend: R. v. Sutton, 5 N. & M., note (a), p. 553; 42 R. R. 490; Lit. 123; Park. 65; Dyer, 359 b.; 2 Roll. Abr. 40, 1, 10, citing 27 Edw. 3. 79 b. of the 1st ed. of the Year Books, being 27 Edw. 3. fo. 3, pl. 26, of the 2nd. ed.; 14 Vin. 78, pl. 2. (s) R. v. Sutton, 5 N. & M. 353; 3 A. & E. 597; 1 H. & W. 428; 42 R. R. 490. So any occupier of the lands charged. Quære, whether the guardian in socage or other owner of the lands charged not in possession would also be indictable. (t) Campbell Davys v. Lloyd, [1901] 2 Ch. 518. Liability of an infant seised of lands in socage. Of proprietor of a naviga tion. Right to erect a new bridge. Covenant to build and repair a bridge, how far binding when damage ordinary plaintiff, and on the other issue for the defendants. On an appeal by the plaintiff to this Court the finding for the defendants was impeached on various grounds and in addition it was contended that, even accepting the findings, the defendants were not entitled to judgment. We decided to determine this point first, as, if the defendants are right upon it, it disposes of the action. It was contended for the plaintiff that, assuming it to be the fact that a highway for foot-passengers by means of a footbridge across the river existed, the fact that that bridge had been destroyed gave no right to the defendants to come upon the plaintiff's land and erect a new one. I think this contention is well founded (u). Even if the right to abate' can be said to exist at all in the case of nuisance arising from mere non-feasance, as to which see the argument of Mr. Parke, afterwards Parke, J., and the judgment of Best, J., in the Earl of Lonsdale v. Nelson (x), I do not think the cases which establish the right to abate by an individual for the purpose of passage would extend to protect such acts as were done by the defendants in this case. If this were the law every individual who was obstructed in his desire to cross would be equally entitled to erect a permanent structure of his own design. although the obligation to repair and the incidental right to determine the method might be in other persons, who, moreover, might be reached by indictment." and On a covenant to build a bridge in a substantial manner, to keep it in repair for a certain time, the party is bound to rebuild the bridge, though broken by an extraordinary flood (y). "It has been usual," remarked Lord Kenyon, C.J. (z), “for many years past, to insert covenants of this kind in contracts for building bridges. . . . The principle stated by the counsel for the plaintiffs (a) is the true one; if the defendants had chosen to except any loss of any kind, it should have been introduced into the contract by way of exception. It is sufficient to say here that the contract of the defendants extends to this case; that (u) Campbell Davys v. Lloyd, [1901] 2 Ch. at p. 522. (x) 2 B. & C. 302; 26 R. R. 363. (y) R. v. Kerrison, 1 M. & S. 435; 14 R. R. 491; cf. R. v. Penegoes and Machynleth, 3 D. & R. 388; 25 R. R. 334; 26 R. R. 294. (z) Brecknock Navigation v. Pritchard, 7 T. R. 750; 3 R. R. 335. (a) Per counsel for the plaintiffs :-"The distinction taken in the books is this: When the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if a lessee covenant to repair a house, though it should be burned by lightning, or thrown down by enemies, yet he ought to repair. (All. 27; Dy. 33 a; Com. Rep. 627; and Bullock v. Dommitt, 6 T. R. 651; 3 R. R. 300.) And here a loss by flood must have been the very loss in contemplation of the parties.' See River Wear Commissioners v. Adamson, 2 A. C. 743, ante, Chap. III., p. 150. they have not fulfilled it; and, therefore, that they are answerable" (b). to the public, ownership of fabric remains If A. grants liberty, licence, power and authority to B. and If bridge be built by an his heirs to build a bridge on his land, and B. covenants to build individual the bridge for public use, and to repair it, and not to demand and dedicated toll, the property in the materials of the bridge, when built and dedicated to the public, still continues in B., subject to the right of passage by the public; and when severed and taken away by a wrongdoer, he may maintain trespass for the asportation (c). "They [the materials] were dedicated by him to the public for given purposes; but a scintilla of property still remained in him" (d). in builder. dictment for tenure. An indictment for not repairing a bridge, described as situate Form of inwithin the parishes of Penegoes and Machynleth, and averring non-repair that the inhabitants of Penegoes, and the inhabitants of the town- ratione ship of Machynleth, were liable to repair, by reason of the tenure of certain lands, without going on to state what part of the bridge was situate within the township of Machynleth, and that the inhabitants thereof were liable to repair, is erroneous (e). To an indictment against a county for not repairing a bridge, it was pleaded, that J. S. is liable ratione tenure:-Held, that this plea was not supported by evidence that the estate of J. S. was part of a larger estate, which part J. S. purchased of the former owner, who retained the rest in his own hands, and as well before the purchase as since, had repaired the bridge (f). If a manor be held by the service of tenure of repairing a common bridge or highway, and the manor be divided, the tenant of any parcel, either of the demesnes or services, is liable to the whole charge but may recover contribution (ƒ). An agreement by the lord to discharge the purchasers, would only bind him and those who claim under him, and will not affect the remedy of the public. Though the manor comes into the hands of the Crown, yet the duty continues as against every person claiming under the Crown (g). An indictment for non-repair of a road or bridge on a liability ratione tenuræ, cannot be sustained where it appears that the tenement on which the liability is charged originated within time (b) For liability for damage by extraordinary floods, see ante, pp. 146 et seq. (e) R. (f) R. v. Oxfordshire, 16 East, 223. But where in this case the county was found guilty, the Court gave leave to stay judgment upon payment of costs until another indictment was preferred, in order to try the liability, Lord Ellenborough, C.J., saying, "But I should be sorry to conclude the county from bringing forward their case, as it is clear they have never repaired." (g) Reg. v. Buccleuch, Duchess of, 1 Salk. 358. Liability to repair must be immemorial. What is evidence to negative an immemorial liability ratione tenure. Evidence of reputation admissible in proof of liability. of legal memory (h). On such an indictment parishioners are admissible witnesses for the prosecution (i). In Rex v. Middlesex (k), it was pleaded to an indictment against the inhabitants of the county for non-repair of a footbridge, that it was a parcel of a carriage-bridge which A. B. was bound to repair ratione tenure. The liability to repair the carriagebridge, which had been built in 1119, and the repair charged on certain abbey lands of which A. B. was the present proprietor, was admitted; but it was denied that the footbridge was part of the same, and it was proved that the latter had been constructed in 1763 by trustees of a turnpike road with the consent of a certain number of the proprietors of the abbey lands:-Held, that this (being the footbridge mentioned in the indictment) was not parcel of the carriage-bridge which A. B. was bound by tenure to repair, and consequently that the county was bound to repair the footbridge.-Per Lord Tenterden, "Now it is well established that the inhabitants of a county, though bound to repair a bridge. are not bound to widen." On an indictment for the non-repair of a bridge ratione tenuræ : -Held, that a record of 18 Edw 3., setting out a presentment of the Bishop of Lincoln for non-repair of the bridge and his acquittal by the jury, which was shortly after followed by a grant of pontage from the Crown, on the ground that it had been found by inquest that no one was liable to repair the bridge, is admissible in evidence to negative an immemorial liability ratione tenure (1). Where, in an answer to an indictment, it is pleaded that one A. is liable to repair ratione tenuræ, evidence of reputation is admissible in proof of such liability (m). (h) R. v. Hayman, M. & M. 401; 31 R. R. 742. There the indictment alleged that defendant and those whose estate he had of and in a certain mill, from time whereof the memory of man runneth not to the contrary, had repaired, and of right ought to repair, &c. Certain documents of the reign of Henry VIII. were put in for the defendants, which showed conclusively that the mill, by reason of the tenure of which the obligation was alleged, did not exist before that time; and it was contended that this disproved the liability. Per Tindal, C.J., It is essential to prove the liability from time out of memory. This is disproved, and the defendant must be acquitted." See too, note at p. 403 of report, and R. v. Stoughton, 2 Saund. 158. (i) See 54 Geo. 3. c. 170, s. 9. (k) 3 B. & A. 201; 37 R. R. 396; cf. R. v. West Riding of Yorkshire, 2 East, 359; 6 R. R. 447, n. Per Littledale, J.: "I think the footbridge which was erected in comparatively modern times cannot be considered as having become parcel of the old carriage-bridge repairable by the owners of the abbey lands, but was a distinct structure, and, therefore, that the verdict must stand for the Crown." (1) Reg. v. Sutton, 3 N. & P. 569; 47 R. R. 782. The jury, after finding a verdict of acquittal, also found that the bridge had been recently built, and that no one was liable to repair it. Semble, that such finding by a jury in ancient times is admissible as reputation on questions as to the liability to repair ratione tenure. (m) Reg. v. Bedfordshire, 4 El. & Bl. 535; 1 Jur. (N.s.) 208; 24 L. J. Q. B. 81. |