to the use of the public, and, if he permit strangers for a long period to pass over it, at their free will and pleasure, and without molestation, that may, in the absence of rebutting circumstances, amount to an implied dedication (c). Such dedication, whether express or implied, may be either absolute, or subject to some qualification or condition, or to some pre-existing right of user. Thus, a towing-path can only be enjoyed as a footpath subject to its main use for towing (d); but when a road has become public, the grant, whether express or implied, is irrevocable. "Once a highway always a highway."

The parish was usually obliged to keep in repair any highway within its boundaries, whatever the origin of the road; but, in some cases, the liability to repair attached to a particular township, or other division of the parish. There exists also another class of highways which the private occupier of lands is bound to repair as a condition of his estate, i.e., ratione tenure (e); but an occupier may have the right to claim (by grant or prescription) from those who use the road, what is called a toll traverse, being a toll taken for passage over the soil of a private owner, as distinguished from a toll thorough, which latter toll is still sometimes taken for passing along or over a highway or public road. A liability to repair ratione clausuræ an ancient highway running through hitherto uninclosed lands, may attach to the occupier, by reason of his enclosing the lands, and thereby depriving the public of their immemorial right to deviate thereon when the highway is foundrous (i.e., out of repair) (f).

(c) Poole v. Huskinson (1843), 11 M. & W. 827.

(d) Poole v. Huskinson, supra ; Grand Junction Canal Co. v. Petty (1888), 21 Q. B. D. 273.

(e) Turnpike Roads Act, 1822, s. 107; Highway Act, 1835, s. 62; R. v. Ramsden (1858), El. Bl. & El. 949.

(f) R. v. Ramsden, ubi sup. The liability ratione clausura does not now arise when the occupier of lands has obtained the consent in writing of the highway authority to the erection of fences. (Highway Act, 1862, s. 46.)

The expense of maintaining bridges is usually defrayed (like that of roads) by the public, this having been part of the trinoda necessitas, to which every man's estate was by the antient law subject, viz., expeditio contra hostem, arcium constructio, et pontium reparatio. The burthen of such repair was, however, in general, not on the parish, but on the county at large in which the bridge was situate (g), although an individual might be bound ratione tenure to repair the bridge, or some particular borough within the county might be liable, and not the county at large (h); and where a parish was bound by prescription to repair some particular bridge, the parish might contract with the county for the future repair of such bridge at the expense of the county (). The liability of the county extended, at common law, not only to the bridge itself, but to so much of the road as passed over it, and to its ends or approaches; and by the 22 Hen. VIII. (1530) c. 5, the county was made liable to repair three hundred feet either way from the bridge. Such in general is still the law, as to the repair of bridges built prior to the Highway Act, 1835 (5 & 6 Will. IV. c. 50). But, by that statute, it was provided, that, in the case of all bridges thereafter to be built, the repair of the road itself passing over the bridge (together with the approaches thereto at either end) should be done by the parish, or other the parties bound to the general repair of the highways; and that the county should remain subject to its former obligation, only as regards "the walls, banks, or "fences of the raised causeways, and raised approaches to any bridge, or the land arches thereof" (k). Since

66

(g) Viner Ab. Bridges (A); Bridges Act, 1803, s. 5; Highways and Locomotives (Amendment) Act, 1878, ss. 21, 22.

(h) Municipal Corporations Act, 1882, s. 119.

(i) 22 Hen. 8 (1530), c. 5; Howitt v. Nottingham Tramways Co. (1883), 12 Q. B. D. 16.

() Highway Act, 1835, s. 21; cf. the Highways and Locomotives (Amendment) Act, 1878, ss. 21,

22.

1888, the county authority for main roads and county bridges has of course been the county council. And inasmuch as, before the Highway Act, 1835, a parish was liable for the repair of all roads within it, dedicated to and used by the public, although there had been no adoption of such roads by the parish, the Act provided that no road, made at the expense of any individual or body corporate, should be a highway which the parish was liable to repair, unless three calendar months' notice should be given to the highway authority, of the intention to dedicate such road to the public (1); and where such notice was given, it was for the highway authority to consider whether the road was of sufficient utility to justify its being kept in repair by the parish. If it considered the road unnecessary, the justices, at the next special sessions for highways or in petty sessions, were finally to determine the matter; and the Act contained also provisions for ensuring, that the road should have been constructed in a proper and substantial manner, before the expense of repairing it was cast upon the parish (m). Any parish, district, county, borough, or person, who is bound to repair either a road or a bridge, and who neglects the duty, is liable at common law to be punished on indictment (n); and to such an indictment, at least when laid against a parish, the plea in defence must show, not merely that the parish is not liable, but that some other party is liable, for the repairs (o). The justices may, and in some cases must, order an indictment to be preferred (p). But though each parish or township or other district, through whose lands any portion of a highway passed, was liable by the general law of the land to maintain such portion, special provisions were passed by the legislature from time to time for keeping in repair some of the most

(/) Highway Act, 1835, s. 23.

(m) Ibid.

(n) R. v. Eyton (1854), 3 El. & Bl. 390.

(0) Rex v. Eustrington (1836), 5 A. & E. 765; Rex v. St. Giles', Cambridge (1816), 5 M. & S. 260. (p) Highway Act, 1835, s. 95.

frequented and important roads of the kingdom. Many such roads were formerly maintained, (and some were originally constructed,) under the authority of local Turnpike Acts. Under those enactments, the management of such roads was usually vested, for a term of years, in trustees or commissioners, who were empowered thereby to erect toll-gates, and to levy tolls from those who passed through, as a fund for defraying the expenses of repairs or improvements; and there was, therefore, a distinction between highways in general, and turnpike roads. But the collection of such tolls did not supersede the other means provided by the law for maintaining highways and bridges; and therefore, if a turnpike road, or the bridge over which such road passed, was allowed by the trustees to fall out of repair, the parishes or other parties who would have been bound to repair it, were still, as a general rule, liable to that obligation. Also, when any turnpike road became again, by the determination of the turnpike trust, an ordinary highway, any balance of moneys in the hands of the trustees was paid over by them rateably amongst the parishes which, upon such determination of the trust, became again bound to maintain the road.

It will thus be seen, that highways were formerly divided into Highways in General and Turnpike Roads, a twofold division not yet entirely superseded, seeing that many of the old turnpike roads have become by later legislation main roads.

I. Highways in General. The principal enactments under which highways are now made, repaired, and controlled, are the Highway Acts, 1835 to 1885, the Public Health Act, 1875, the Local Government Acts, 1888 and 1894, and the Locomotives Act, 1898 (g).

The plan of the Highway Act, 1835 (5 & 6 Will. IV. c. 50), was to place highways under the care of surveyors

(q) 61 & 62 Vict. c. 29.

appointed for their respective parishes, subject to the superintending power of the justices of the peace at special sessions holden for the highways; and the Act provided, that the expense of maintaining and repairing the highways should be met by a rate, to be made and levied by the surveyor, on the occupiers of land, upon the principle of the poor rate (r). The surveyor of highways was elected annually, by the inhabitants in vestry assembled; and he was required to possess certain property qualifications. When elected, he was compellable, unless he could show some like ground of exemption as applied to an overseer of the poor, to undertake the office. The office was not a paid one; but the vestry might, if they thought proper, appoint a salaried surveyor, and any two or more parishes might, by mutual agreement, with the consent of the justices in sessions assembled, and for the purposes of the Act, unite themselves into one district, so as to be under the superintendence of a district surveyor. But that officer had no authority to make or levy the highway rate, each parish still electing its own separate surveyor for that purpose. The provisions with regard to the election and qualification of the surveyor are now obsolete, as, under the Public Health Act, 1875 (sect. 144), and the Local Government Act, 1894, in all urban districts the town council, or urban district council, are the surveyors, and have the management of highways; and rural district councils are made highway authorities, and as such have to perform most of the functions of surveyors of highways, though they do not actually become surveyors of highways.

surveyor was to keep the Where any of these were

The principal duty of the parish highways in repair (s). out of repair, complaint might be made to any justice of the peace, who might grant a summons thereon, although

(r) Highway Act, 1835, ss. 27, 113.

(8) Ibid. s. 6.