Page images
PDF
EPUB

been cited to the contrary, but when looked into they either stand on some particular reason which plainly distinguishes them from the common case, or it is only said obiter that such tolls may be supported by prescription without any consideration; but the reasons given for it are such as make such dicta of no weight or authority (u). It is said, indeed, in some books, and particularly in the case of James v. Johnson (x), that if the prescription be found (as it is in the present case), it must have a reasonable commencement; but this is laid down generally without consideration, and without distinguishing the nature of the cases. For though this may be true sometimes in the nature of a private right, it is plainly otherwise in the case of a right to which all the subjects of England are entitled. For if a reasonable commencement be presumed, it must be that it began by agreement, and that such an agreement, being so long ago, cannot be proved well, may be well enough in the case of a private right. But who could agree for all the subjects of England? They cannot consent to part with their rights any otherwise than by Act of Parliament, in which the consent of everyone is implied. This distinction is obvious, and founded on good sense. . In several of the cases cited there is a particular benefit to the subject, as coming into a port, or landing on the plaintiff's manor or quay, which distinguishes it from toll thorough. So are the cases Haspurt v. Wills (y), Mayor of London v. Hunt (z), Crispe v. Belwood (a), and several other cases which were cited (b). And there is a further reason to be given for the determination in 3 Lev. 37,-that the duty was claimed by the city of London, whose customs and franchises are all confirmed by Act of Parliament (c). In the

was said that there could not be any thorough toll ation; but the Court were of a different opinion. and Woolrych, p. 301.

without a special considerSee, too, Gunning, p. 23,

(u) His lordship then referred to 21 Hen. 7. fol. 16; Smith v. Shepherd, Cro. Eliz. 711; Moor, 576; James v. Johnson, 1 Mod. 232, and other authorities.

(x) 1 Mod. 232.

(y) Ibid. 478.

(z) 3 Lev. 37.

(a) 3 Lev. 424; and cf. Colton v. Smith, Cowp. 47; Willes, 117, note (a). (b) In The Mayor of London v. Hunt, it was objected in assumpsit for weighage of goods brought into the Port of London that there was no consideration for the duty. But as the defendant had the liberty of bringing his goods into port, which is a place of safety, it was resolved that the consideration was implied (3 Lev. 37; see, too, Gunning, pp. 29, 33, 115; and Woolrych, p 300). In Crispe v. Belwood, 3 Lev. 424 (see also Gunning, p. 21; and Woolrych, p. 300), on the other hand, the Court supported the claim of a lord of the manor, to toll for all goods landed within the manor, though not upon the wharf, which alone, as appeared by the plea, the lord repaired; remarking that, originally the lord was owner of all the soil in the manor, and that, therefore, the prescription was good in respect of the easement in landing goods on his soil. The case was distinguished from that of Warren v. Prideaux, 1 Mod. 104, which see post, p. 577.

(c) Mayor of London v. Hunt, supra.

case of Wilkes v. Kirby (d), the duty was expressly laid to be paid erga reparationem portus. It is best, therefore, to adhere to the old rule, which is founded upon the best reason, that toll thorough cannot be maintained without a particular consideration shown."

The principles here stated have been confirmed by subsequent decisions; and there seems no ground for believing, as stated by counsel in James v. Johnson (e), that the terms "toll traverse and toll thorough are used promiscuously. Though Woolrych seems not to dissent from that doctrine (f), it appears to be satisfactorily refuted by the remarks of Willes, C.J., in the judgment just noticed, who states the distinction between the two "to be obvious, and founded on good sense"; and according to Gunning on Tolls (g), the case of James v. Johnson is one of questionable authority (h).

These authorities seem sufficient to support the distinction above given between toll thorough and toll traverse, the former of which, being contrary to common right (i), is treated with great jealousy by the Courts (k), which will require the person seeking to charge the public with it to prove to their satisfaction.

(d) 2 Lutw. 1519. This case (also reported 1 Lutw. 490, and see Gunning, pp. 19, 20; and Woolrych, p. 300) was an action of trespass for taking plaintiff's goods at the port of King's Lynn in Norfolk. Defendant justified under a plea of prescription for owners of the port of King's Lynn, to take a certain toll for merchandise loaded there, to be exported from thence by foreigners not free of the borough, and plea alleged that this was towards the necessary reparation of the port," and a right to distrain on refusal to pay. On demurrer, it was objected that this was not a good plea, because it was stated only that the toll was towards the reparation of the port, and not that the owners of the port in fact repaired, or were bound to repair, the port, and, in consideration of such obligation, took the toll. It was also objected that the consideration itself was insufficient in law, even if it was well pleaded. The case was not decided; but the Court (according to Gunning) strongly inclined for the defendant, because he might have been indicted for not repairing the port.

(e) 1 Mod. 232, per Serjeant Maynard.

(f) Woolrych, p. 303; and see Steinson v. Heath, 3 Lev. 400. (g) Gunning, p. 26.

(h) In Truman v. Walgham (2 Wilson, 296), the Court said: This is a prescription for toll for passing through the King's highway; . . which cannot be taken unless a good consideration be alleged the reason is, because it is to deprive the subject of his common right and inheritance, to pass through the King's highway, which right of passage was before all prescriptions [Smith v. Stephen, Moore, 5741. Toll traverse, or for going, through a man's private land, may be prescribed for, without any consideration, and payment time out of mind is sufficient, and will support the prescription." Cf., too, the remarks of Lord Tenterden, C.J., in Brett v. Beales. 10 B. & C. 508; 1 M. & M. 416; 34 R. R. 499; Hill v. Smith, 4 Taunt. 520; 10 R. R. 357; Popham, J., in Smith v. Shepherd, Cro. Eliz. 710; Moore, 574. See also Pelham v. Pickersgill, 1 T. R. 660; 1 R. R. 348, remarks of Buller, J.; Brecon Markets Co. v. Neath and Brecon Rail. Co., 42 L. J., C. P. 63, Exch.; Richards v. Bennett, 1 B. & C. 223; 25 R. R. 372; Laurence v. Hitch, 9 B. & S. 467; Middleton v. Lambert, 1 A. & E. 401; 40 R. R. 309; Reg. v. Salisbury (Marquis), 3 N. & P. 476.

(i) Gunning, pp. 3, 25; Thorpe, J., 22 Ass. 58; 2 Roll. Abr. tit. Toll (B), pl. 1; Mayor of Nottingham v. Lambert, Willes, 111; Woolrych, p. 299. (k) Truman v. Walgham, 2 Wils. 296.

a good consideration for it, and such consideration will not be implied even from a prescriptive taking of toll (1). It is, however, frequently a right incident to ports, as will be seen later on. Toll traverse, which can only be demanded when it has been used to be taken time out of mind (m), and the reservation of which must be contemporaneous with the dedication of the way to the public (n), is sometimes due for the private ferry, bridge, &c., of another (o).

The right to take tolls exists only by Act of Parliament (p), by express grant from the Crown, or by immemorial usage, which pre-supposes such a grant, and from which, if uncontradicted, a grant must be presumed. In no case can a claim for toll be supported unless some consideration can be shown on which to found the claim, an express grant from the Crown being void unless founded on sufficient consideration, the creation of a toll being only a mode of paying for a public service (q). When an Act authorises the exaction of a toll, the accommodation for which the toll is authorised must be provided. Thus where the fishermen of a sea village had been immemorially accustomed to beach their

(1) Mayor of Nottingham v. Lambert, Willes, 111. (m) Fitz. tit. Toll, pl. 3.

(n) Pelham v. Pickersgill, 1 T. R. 660; 1 R. R. 348. (0) 1 Sid. 454.

(p) When an Act of Parliament has confirmed a right to take toll which formerly existed by custom or prescription, such right becomes thenceforward a statutory right, and the lower right is merged in the higher Parliamentary title: Taylor v. New Windsor, [1899] A. C. 44; 68 L. J., Q. B. 87; 79 L. T. 150. In London County Council v. General Steam Navigation Company, Ltd., (1907) 96 L. T. 57; 10 Asp., M. C. 340; affirmed 97 L. T. 57 by two private Acts of Will. 4. the Greenwich Pier Company was authorised to make and maintain a pier and to take certain rates, duties, and tolls prescribed by such Acts.

Woolwich Pier was constructed as a private undertaking and the lease became vested in the Thames Steamboat Company, who made certain charges for the use of such pier.

Under the Thames River Steamboat Line Act, 1904, the London County Council bought from the Greenwich Pier Company "their undertaking (including therein all the property, estates, rights, and privileges of the Greenwich Company)," and they also purchased the Woolwich Pier" and any rights and powers connected therewith."

By section 15 of the Act of 1904 the London County Council could "charge and levy in respect of vessels calling at the piers and landing-places a toll not exceeding the amount stated in the schedule to this Act.'

Held, that the London County Council had no statutory right to charge any tolls in respect of Greenwich Pier or Woolwich Pier beyond those chargeable by virtue of section 15 of the Act of 1904; and that they were not entitled to charge the tolls prescribed by the private Acts of Will. IV. in respect of Greenwich Pier or any reasonable sum in addition to the tolls prescribed by the Act of 1904 in respect of Woolwich Pier.

Any facilities, however, provided by the London County Council which they were not bound to provide under the Act of 1904 would have to be paid for by the person at whose request, express or implied, they were provided.

(q) Jenkins v. Harvey, 1 C. M. & R. 877; 40 R. R. 769; Kingston-on-Hull Docks V. Lamarche, 8 B. & C. 42; 32 R. R. 337; Falmouth v. George, 5 Bing. 206; 30 R. R. 597; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Mayor of Nottingham v. Lambert, Willes, 111; Mayor of Exeter v. Warren, 5 Q. B. 773; see ante, Chap. I. pp. 65 et seq., and post, pp. 574 et seq.

boats in winter on ground adjoining the harbour, and where the proprietor had subsequently obtained a local Act authorising his levy of five shillings yearly for each boat beached, the fishermen's rights were enforced against him, and it was held, that he could not exclude the fishermen from the ground used for beaching without assigning them other ground equally well-adapted for the purpose (r).

The long enjoyment of tolls lays a foundation for a good consideration in respect of them (8).

Where a record is produced to prove a custom, and there is no direct issue on the custom, the constant practice is," said Lord Abinger, C.B. (t), " to give some evidence to show that the custom was really in question, otherwise a verdict in indebitatus assumpsit would prove nothing."

"It is well known," said Best, C.J., "that many tolls are good under a custom of which a good grant could not be made at the present time. A custom which is proved to have existed immemorially will be good if it be of such a nature that it is possible it can have had a good beginning. Although it be such as to confer what the king cannot now grant, yet if it be not contrary to reason it may be supported; for it might have had its commencement from an Act of the legislature. Custom is a local law which supersedes the general law, and if the law gives us the maxim, Consueto ex certâ causâ rationabili privat communem legem,' the custom on which the plaintiff rests his claim appears to us to be reasonable and convenient, even to those who resist its establishment; advantageous to the public by encouraging a valuable fishery; and highly beneficial as tending to the preservation of human life. . . .

Wherever customs are set up, judgments in cases between parties are admissible to prove or disprove such customs" (u).

Where an undertaker improved the navigation of a river by making locks and cutting channels under ancient charters which gave him and his heirs and assigns the sole licence and power of carrying goods in and through the river and all profits by carrying such goods, but did not specifically grant to him a right to take tolls, and it was proved that a rate had been charged and paid for more than two centuries for the passage of boats laden with merchandise through each of the locks, it was held that the public were entitled to pass through the locks, but only on the

(r) Aiton v. Stephen, 1 A. C. 456; H. L., Sc. (1876).

(8) Woolrych, p. 305; Mayor of Exeter v. Warren, 5 Q. B. 773; S. C. Dav. & M. 524; Reg. v. Simpson, [1901] 2 Ch. 671 (C. A.).

(t) Layburn v. Crisp, 4 M. & W. 320, 325.

(u) Lord Falmouth v. George, 5 Bingh. 286; 2 M. & P. 457; 30 R. R. 597.

[merged small][ocr errors]

payment of a reasonable toll for boats laden with merchandise (x). No objection can be made on the ground of rankness to a toll, the right to levy which depends upon a corresponding obligation to do something beneficial to the payers of the toll (y).

A toll reasonable in amount, but varying from time to time according to the value of money, is valid in law (z).

Tolls on canals are now regulated by The Canal Tolls Act, 1845 (8 & 9 Vict. c. 28), and the Railway and Canal Traffic Act, 1888 (51 & 52 Vict. c. 25), see ante, pp. 321, 322.

Equality clauses are, however, expressly introduced into all modern Acts empowering companies to levy tolls, which provide that the tolls shall not exceed the maximum allowed by the Act (a).

On this the case of Hungerford Market Co. v. City Steamboat Co. is important (b).

By section 76 of 11 Geo. 4. c. lxx., the Hungerford Market Company were empowered to take from the masters of steamboats in respect of passengers landing on or embarking from the wharf authorised to be erected by them such tolls within the maximum of 2d. for each passenger as should "at any time or from time to time be fixed and appointed by the company." By section 53 of 6 & 7 Will. 4. c. cxxxiii., for building a footbridge over the Thames from Hungerford Market, called "The Charing Cross Bridge," reciting that it was contemplated that the northern pier of the bridge should be a landing-place for passengers embarking or disembarking at the pier, or from any float attached thereto, the company were empowered to take the same tolls as they were empowered to take at their wharf under their former Act. The bridge having been built, and the northern pier having been used as a landing-place, the plaintiffs resolved that the toll to be paid should be 2d., subject to such "modifications as may have been agreed on, or may hereafter be agreed upon in any particular cases, between this company and the owners or proprietors of steamboats or vessels." By section 125 of 6 & 7 Will. 4. c. exxxiii., the tolls to be taken by the Hungerford Bridge Company by virtue of that Act were to be charged

(x) Reg. v. Simpson, [1901] 2 Ch. 671 (C. A.).

(y) Jenkins v. Harvey, 1 Gale, 23; 40 R. R. 769; 5 Tyr. 187.

(z) Laurence v. Hitch, 9 B. & S. 467; as to notice of varying of tolls, see Gregson v. Potter, 4 Ex. D. 142; 48 L. J., M. C. 86.

(a) See ante, pp. 321 et seq. As to right of lessee of tolls under a private Act to raise the rates, see Millman v. Renwick Wilton & Co., 22 T. L. R. 168. Where the local Act provides that all rates on the same description of article shall be charged without partiality or regard to the owner, it was held that this did not authorise an increase of rates on prize cargoes. The Clarissa Radcliffe, 31 T. L. R. 98.

(b) 30 L. J. Q. B. 25; 3 L. T. (N.s.) 732.

« EelmineJätka »