66 66 be "hands and seals, it shall and may be lawful, by order of such 'justices, at some special sessions, (x) to divert and turn, and to stop up such footway, and to divert, turn, stop up, and inclose, sell, and dispose of, such old highway or bridleway, and to pur"chase the ground and soil for such new highway, bridleway, or "footway, by such ways and means, and subject to such excep"tions and conditions, in all respects, as in the said recited act "mentioned with regard to highways to be widened or divert"ed; (y) and also when it shall appear, upon the view of any two or more of the said justices of the peace, that any public highway, bridleway, or footway, is unnecessary, it shall and may "lawful, by order of such justices, or any two of them, to stop "up, (2) and to sell and dispose of such unnecessary highway, "bridleway, or footway, by such ways and means, and subject to "such exceptions and conditions in all respects as in the said re"cited act is mentioned, in regard to highways to be widened and "diverted; except that the money to arise from such sale, where, by the said act, it would be applicable to the purchase of the "ground and soil of the new highways or bridleways therein men"tioned, shall be paid to the surveyor or surveyors, and be applied "towards the general repairs of the highways and bridleways of "the parish, township, or place, within which the said highway, "bridleway, or footway, so stopped up, shall be situate. Pro“vided that in the several cases before mentioned a notice, in the "form, or to the effect of the schedule (c) to this act annexed, "shall be affixed in legible characters at the place and by the "side of the said highway, bridleway, or footway, from whence 66 at the time when the order is made. An order stated that the new road was to pass through the lands of the late T. Jones, Esq., and that the justices had received evidence of the consent of the said T. Jones in his lifetime. But it was held, that this order was bad, because it did not thereby appear that T. Jones was the owner of the estate at the time when the order was made. Rex v. Kirk, 1 B. & C. 21. And an assent to the turning of a road, given under the hand and seal of the solicitor and agent of the party through whose ground the new road is to pass, is not sufficient. Rex v. Justices of Kent, 1 B. & C. 622. (x) It has been holden, that the 13 G. 3. c. 78. s. 62. is applicable to proceedings, by order of two justices, under this statute; and that therefore it is necessary to give reasonable notice of the special sessions at which any such order is to be made to the several justices acting and residing within the division; and that, unless such notices be given, the sessions ought not to confirm and enrol such order, even though there be no appeal against it. Rex v. the Justices of Worcestershire, 2 B. & A. 228. (y) 13 Geo. 3. c. 78. s. 16. Ante, 311, 312. (2) This order for stopping up an (c) The form of the notice is this: And the justices may also order unneces sary highways, bridleways, and footways, to be stopped up. But a notice must be affixed &c. be inserted in a newspaper, at the place, and also affixed to the door of the church, &c. And then the order is to be returned to the clerk of the peace at the quarter sessions, and be confirmed and enrolled. 55 Geo. 3. c. an appeal to the sessions by any person aggrieved by such order or proceeding, or by the inclosure of any 66 the same is directed to be turned, diverted, or stopped up, and "also inserted in one or more newspaper or newspapers published "or generally circulated in the county where the parish, town"ship, or place in which the highway, bridleway, or footway, so "ordered to be diverted and turned, or stopped up, as the case may be, shall lie, (or, in case no such newspaper shall be so "published or circulated in such county, then in any newspaper or newspapers published or circulated in the nearest adjoining "county) for three successive weeks after the making of such order; "and a like notice shall be affixed to the door of the church or "c chapel of every parish or township in which such highway, bri"dleway, or footway, so ordered to be diverted, turned, or stopped up, or any part thereof, shall lie, on three successive Sundays "subsequent to the making of such order; and the said several "notices having been so published, the said order shall, at the 66 quarter sessions which shall be holden within the limit where "the highway, bridleway, or footway, so diverted and turned, or "stopped up, shall lie, next after the expiration of four weeks from "the first day on which such notices shall have been published as "aforesaid, be returned to the clerk of the peace in open court, "and lodged with him; and the said order shall, at such quarter "sessions, be confirmed, and by the clerk of the peace enrolled 66 amongst the records of the said court of quarter sessions."(i) 66 The third section provides for an appeal to the quarter sessions 68. s. 3. gives by any person aggrieved by such order or proceeding, or by the inclosure of any road by an inquisition upon a writ of ad quod damnum; and enacts, "that where any such highway, bridleway, or footway, shall be so ordered to be stopped up or inclosed, and "such new highway, bridleway, or footway, set out and appro"priated in lieu thereof as aforesaid; or where any unnecessary highway, bridleway, or footway, shall be so ordered to be stopped 66 up as aforesaid; it shall and may be lawful for any person or "persons injured or aggrieved by any such order or proceeding, or "by the inclosure of any road or highway, by virtue of any inqui"sition taken upon any writ of ad quod damnum, to make his or "their complaint thereof, by appeal to the justices of the peace at "the said quarter sessions, upon giving ten days' notice in writing "of such appeal to the surveyor of the highways of the parish, "township, or place, wherein such highway, bridleway, or footway, "shall be situated; and also affixing such notice to the door of "the church or chapel of such parish, township, or place; (d) " and the said court of quarter sessions is hereby authorized and empowered to hear and finally determine such appeal.” (e) road upon a writ of ad quod damnum upon giving ten days' notice. (i) This computation of four weeks must be made from the first day of giving that description of notice which is last published. Rex v. the Justices of Kent, 1 B. and C. 623. And the sessions ought not to confirm an order unless it be regularly made. Rex v. the Justices of Worcestershire, ante, p. 313. And by Bayley, J. in Rex v. the Justices of Kent, supra. "The public have a right, if a path is di"verted, to see the order with all its "requisites enrolled amongst the re"cords of the sessions, as evidence of "the right to the new path." (d) These notices must be given in case of an appeal against an inclosure of a highway by virtue of a writ of ad quod damnum, and a notice to the party interested is not alone sufficient. Indeed the act is express upon this point. Rex v. the Just. of Essex, 1 B. and A. 373. (e) This section says nothing as to The fourth section then enacts, "that if no such appeal be "made, or, being made, such order and proceedings shall be con"firmed by the said court, the said inclosures may be made, and "the said ways stopped; and the proceedings thereupon shall be "binding and conclusive to all persons whomsoever; and the new "highways, bridleways, and footways, so to be appropriated and set out, shall be and for ever after continue a public highway, "bridleway, or footway, to all intents and purposes whatsoever: "but no inclosures of such old highways, bridleways, or footways, "(except in the case of stopping up of such useless highways, "bridleways, or footways, as hereinbefore is mentioned,) shall be "made, until such new highway, bridleway, or footway, shall be completed and put into good condition and repair, and so certi"fied by two justices of the peace upon view thereof; which cer"tificate 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 confirmed or "enrolled pursuant to the directions hereinbefore contained; but "from and after the enrolment (d) of such order and certificate, "such old highway, bridleway, or footway, shall be stopped up; "and the soil of such old highway or bridleway sold, in the manner, and subject to the reservations and restrictions in the said "recited act mentioned, with respect to highways to be diverted “by virtue of the said recited act.” (e) A part of section 19 of the 13 Geo. 3. c. 78. remains unrepealed by the 55 Geo. 3. c. 68.; and by this it is enacted that "where any highway, bridleway, or footway, hath been diverted and turned "above twelve months, either from necessity, where the same have "been destroyed by floods, or slips of the ground on which they costs: and where notice of appeal against an order for diverting a footway was given, and the order was not filed with the clerk of the peace for enrolment, but the justices who made it, before the next quarter sessions, gave the appellant notice that they abandoned the order, it was held that the justices at sessions had no power to award to the appellant the costs of preparing to try the appeal. It was contended that the general right of appeal given by 13 Geo. 3. c. 78. s. 80. was applicable to this case: but neither a notice of appeal had been given, nor a recognizance entered into as required by that section. And qu. whether the right of appeal against such an order does not depend solely upon the above section of the 55 Geo. 3. c. 68., and not upon the 13 Geo. 3. c. 78. Rex v. Wing, 4 B. and C. 182. (d) In section 19 of the 13 Geo. 3. c. 78. the words were "from and after "such certificate," but in other respects the clause was nearly similar to that in the recent statute; and upon that section it was held by the court of Common Pleas that if the orders and (e) Viz. the 13 Geo. 3. c. 78. s. 17. were made, or from other causes and motives, if new highways, "bridleways, or footways, have been made in lieu thereof nearer or more commodious to the public, and the same have been ac"quiesced in, and no suit or prosecution hath been commenced "for the diverting or turning the same, every new highway, bri dleway, or footway, set out and used in the place of that so di"verted and turned, shall from henceforth be the public highway, "bridleway, or footway, to all intents and purposes whatsoever.' But it has been decided that this clause is only retrospective in its operation. (ƒ) It frequently happened that the boundaries of parishes passed through the middle of a highway; one side of the highway being situated in one parish, and the other side of the highway being situated in another parish, whereby great inconveniences arose to the parishes in settling the time and manner of repairing such highway and it was therefore provided by the 34 Geo. 3. c. 64. that two justices, upon application by the surveyor, may divide the whole of any such common highway, by a transverse line crossing it, into two equal parts, or into two such unequal parts and proportions as in consideration of the soil, waters, floods, the inequality of such highway, or any other circumstances, they think just. (g) Besides the methods which have been already mentioned, roads are sometimes changed or stopped, or new ones created by turnpike acts, inclosure acts, or other acts of Parliament, containing specific enactments for such purposes; but such new roads may or may not be public, according to the provisions of the particular acts: and we have seen that where a road was set out by commissioners under an inclosure act, the number of persons using or repairing it would not make it a public way, it not being common to all the king's subjects. (h) A statute authorizing the making a new course for a navigable river, and turning the old part into a floating harbour, will not, without words for the purpose, put an end to a public towing path upon that part; but such towing path will be liable to be used as such for the purposes of the harbour: and it will make no difference though the river was a tide river, and at low water admitted of no navigation. By an act 43 Geo. 3. power was given to carry part of the Bristol river along a new course, and to convert the old part into a floating harbour. There had immemorially been a towing-path on the north side; and whether that continued a public towing path along the side of the floating harbour was the question. It was urged that it did not, because this was a tide river, not navigable at low water; and the floating harbour would make it useable at all times, and therefore increase the burthen on (f) Waite v. Smith, 8 T. R. 133. Lord Kenyon, in giving his judgment, said, "If any jobs had been done be"fore the act passed, that act has certainly cured them but the Legisla"ture did not mean to give a sanction "to any jobs in future." 66 (g) The act sets forth particularly the proceedings to be had for the pur pose of such division; and afterwards enacts as to the liabilities of the parishes respectively to repair their portions after such division; which provisions, as to the repairing, will be further noticed in a subsequent part of this chapter, upon nuisances in not repairing highways. (h) Ante, 308. the land. But, after taking time to consider, the court held that as there were no words in the act to annihilate the right of the public, that right would continue notwithstanding the improved state of the water within the bank; that such water being still applied to navigation purposes, for the use of the public, was still in a state to derive the benefit from the path for which the path had first been given to the public: and judgment was given for the King. (a) In some instances a highway may, it seems, be in some measure And in some changed or confined to a particular course by a private individual; instances by private indi as, where it lies over an open field, and the owner of the field turns viduals. it to another part of the field for his own convenience, or incloses the field for his own benefit, leaving a sufficient way. (i) But in such case, as the public had clearly a right before such alteration to go upon the adjacent ground when the way was out of repair, the owner of the field can only make the alteration subject to the onus of making a good and perfect way. (k) Having thus inquired concerning the different sorts of highways, of nuisances to highways by and the methods by which they may be changed, widened, or obstruction. stopped up, we may now consider of nuisances to highways, by obstructions. There is no doubt but that all injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's subjects, are public nuisances at common law. (1) And it is clearly a nuisance at common law to erect a new gate in a highway, though it be not locked, and open and shut freely; because it interrupts the people in that free and open passage which they before enjoyed and were lawfully entitled to: but where such a gate has continued time out of mind, it shall be intended that it was set up at first by consent, on a composition with the owner of the land, on the laying out the road; in which case the people had never any right to a freer passage than what they continue to enjoy. (m) and annoyways by means of trees hang ances in high ing over, ditches not It is a nuisance to suffer the highway to be incommoded by Obstructions reason of the foulness of the adjoining ditches, or by boughs of trees hanging over it, &c.; and an occupier, as such, though at will only, is indictable for suffering a house standing upon the highway to be ruinous; and it is said that the owner of land next adjoining to the highway ought of common right to scour his ditches; but that the owner of land, next adjoining to such land, is not bound by the common law so to do, without a special prescription: and it is also said that the owner of trees hanging over conduct of a highway, to the annoyance of travellers, is bound by the common drivers, anive law to lop them; and that any other person may lop them, so far loading of as to avoid the nuisance. (n) The general highway act also relates carriages. to offences of this description, imposing pecuniary penalties upon (a) Rex v. Tippett, Mich. T. 1819, MS. Bayley, J. The indictment was for an obstruction of the public path. (i) 3 Salk. 182. (k) Id. Ibid. And see the cases collected in Rex v. Stoughton, 2 Saund. 160. a. note (12). And see also post, as to the repair of highways. (4) 1 Hawk. P. C. c. 76. s. 144. (n) 3 Bac. Abr. Highways (E). 1 being scoured, carriages, &c. highways, mis left in such the excessive |