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v.

WELCH.

for the new road. But it is in pari materiâ with s. 86, which relates to cases where the old road is given up to DE BEAUVOIR the owners of adjoining lands, in lieu of land occupied by the new road; and it shews, that in each class of cases, it is in the discretion of the trustees whether they will give up or exchange the old road for the new, absolutely, or subject to a right of way, as in s. 86; or, whether they will sell the old road, or give it in payment for the new, under s. 88; or will lay out a new passage from the new road to some church, &c., if they find it necessary. Secondly, the trustees having a general jurisdiction to divert and stop up this road, if they have exceeded their jurisdiction, either in not laying a new passage from the new road to the defendant Welch's premises, or in not selling or exchanging the old road subject to his right of passage to Tile Mill, the defendants ought to have appealed to the next sessions, under the 4 Geo. 4, c. 95, s. 87. Had they done that, the sessions might have amended the order in either of the particulars above-mentioned, or have quashed it altogether; but as they have neglected to appeal, and the order is good upon the face of it, and contains nothing shewing an excess of jurisdiction, the question is now concluded. In Bonnell v. Beighton (a), where an enclosure act gave commissioners power to set out and make roads, &c., and directed that the expenses should be borne by the proprietors in certain proportions, to be ascertained in one general rate, and then gave an appeal to the sessions to all parties aggrieved: it was held, that an objection to the rate, on account of the commissioners having expended money improperly, could not be tried in an action for trespass, but that the party aggrieved must appeal to the sessions. It was laid down in Durrant v. Boys (b), that where nothing appears on the face of a poor rate to shew that the overseers have exceeded their power in making a prospective rate, the remedy is by appeal to the sessions; for they had a general power to make rates, and the

(a) 5 T. R.182. And see Fawcett v. Foulis, post. (b) 6 T. R. 580.

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sessions are forum domesticum in such matters: and, thereDE BEAUVOIR fore, the plaintiff's goods having been distrained for his

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proportion of the rate, it was held that he could not maintain trespass. Davidson v. Gill (a) and Welch v. Nash (b), will be relied on as supporting a contrary principle. They were both cases of questions arising out of orders of magistrates made under the general highway act, 13 Geo. 3, c. 78, s. 19, and in both of them it was held that trespass would lie. But, in the former, the defect was apparent upon the face of the order; and in the latter, the order was an ex parte order of justices, having no plan annexed to it, according to the form directed by the act (c). So that those decisions do not affect the present argument, and that is the view taken of those cases by the Courts in Gray v. Cookson (d), and Britain v. Kinnaird (e). Thirdly, the trustees being authorised to exercise a discretion, and having exercised it fairly, this Court cannot review their decision. They have here exercised a sound discretion; for, upon the whole, there is a saving to the public by the new road, both of distance, and, as a necessary consequence, of repairs. For discretio est scire per legem quid sit justum (f); and they have accordingly been guided by the parallel enactment as to highways, not turnpike, in 55 Geo. 3, c. 68, s. 2, which authorizes the diverting any such highway, "so as to make the same nearer or more commodious to the public." The former act, 13 Geo. 3, c. 78, s. 19, repealed by 55 Geo. 3, c. 68, s. 1, and replaced by s. 2, contained the same directory words. It may be added, that if the trustees had no power to shut up the road as against the defendant Welch, it follows that it was a private and not a public way; and then the plea is bad, for that claims a public right of way. On all these grounds it is submitted that this action is maintainable, and that the verdict found for the plaintiff ought to stand. (e) 1 Brod. & Bingh. 441. S. C. 4 J. B. Moore, 57.

(a) 1 East, 64.

(b) 8 East, 394.

(c) Schedule, No. XXI.

(d) 16 East, 23.

(f) Keighley's case, 10 Co. Rep. 140 a.

Talfourd, contrà. If the trustees had power, under the

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acts of parliament, to stop up the road, it must be admitted DE BEAUVOIR that the question, whether they have exercised a sound discretion in so doing, cannot be tried by this Court. But the defendants, in the name of the public, deny that they had any such power. This is not a question between individual parties, but between the trustees, as a public body, and the public themselves. The trustees have stopped up a public highway; and the question is, whether, as against the public, they had authority to do so. The old road led to a village, to a church, to a mill, and to lands, to which the new road does not immediately lead; and therefore was expressly within the exception of 3 Geo. 4, c. 126, s. 86. It has been said, that the word "to" in the act of parliament, must be taken to mean immediately to, but no good reason is assigned for the position; and many instances might be cited in which the word to has, in legal interpretation, been held to mean towards. When the language of the exception is duly considered, the effect of it seems clearly this: an express prohibition against stopping up and discontinuing, as a public highway, any old road leading to a church, &c., which the new road does not immediately lead, except in two instances; the one where the old road is kept open as a public way, for the use of some inhabitant at large, and the other where it is kept open as a private way, for the use of some individual. In this view of the case, the order of the trustees is clearly bad. But the defendants were not bound to appeal against it to the quarter sessions. The 3 Geo. 4, c. 126, gives no appeal; and though the 4 Geo. 4, c. 95, does, still it only declares that parties aggrieved may appeal; it is not compulsory upon them to pursue that mode of remedy. In the case of a road improperly stopped up, under the 3 Geo. 4, c. 126, which gave no appeal, the public would clearly have had a right to continue to use the old road, at least during the interval before the passing of the 4 Geo. 4, c. 95; and, as the

to

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1827. latter contains no words taking away that right, but DE BEAUVOIR merely gives the privilege of appeal, the right remains unimpaired and unaltered. Welch v. Nash (a), is a decisive authority to show that the order of the trustees is not conclusive, and that this Court may entertain the question of its regularity.

Cur. adv. vult.

Judgment was afterwards pronounced as follows:

BAYLEY J.-We are all agreed in the opinion that this action is maintainable. It was an action of trespass quare clausum fregit; to which the defendants pleaded a public right of way over the locus in quo. The locus in quo had been part of a public highway, and the question was, whether it had been properly and legally stopped up, so as to take away from the public, and the defendants, the right which they had formerly possessed over it, and to vest the exclusive right over it in the plaintiff; and that question mainly depended upon the construction to be given to the 86th section of the 3 Geo. 4, c. 126. It was contended on the part of the defendants, that as the old road was one leading to a church, a village, a mill, and lands, to which the new road does not immediately lead, the trustees had no authority to make the order for stopping it up, they being expressly prohibited from so doing by the exception in the clause I have mentioned. Now, s. 83 of the act, empowers trustees, generally, to make, divert, shorten, vary, alter, and improve the course or path of any of the roads under their management; and s. 86 provides, that when new roads are completed, the lands or grounds constituting any former roads, or so much and such part or parts thereof as, in the judgment of the trustees, may thereby become useless or unnecessary, shall and may be stopped up and discontinued as public highways, unless leading over some moor, heath, common, uncultivated land, or

(a) 8 East, 394.

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waste ground, or to some church, mill, village, town, or place, lands or tenements, to which such new roads do not DE BEAUVOIR mmediately lead, and which may therefore be deemed proper to be kept open, either as public or private ways, for the use of any inhabitant at large, or any individual. If that is an absolute and express prohibition against stopping up any of the roads there described, the trustees certainly had no authority to stop up the road in question; but if it leaves the trustees a discretionary power over such roads, they had authority to stop up this road, and their order is binding. It has been insisted that the exception ousts the trustees of all power in all the excepted cases; and the former part of it, if considered alone and independently of the rest, certainly warrants the argument. But the former part seems to me to be much qualified by the latter, which, in my opinion, clearly vests the trustees with a discretionary power to act upon the former part, or not, as they may think proper. The exception appears to me to divide itself into two branches: the first pointing out the different descriptions of roads to which it may be applied; and the second, leaving it to the discretion of the trustees to what instances, and in what modes to apply it, with the somewhat remarkable power of converting old public roads into private ways. If the former branch is to be taken alone, no road of the several descriptions there mentioned can be legally stopped up; but the second branch must have been added for the purpose of qualifying the generality of the first, and of shewing how it is to be applied, according to the judgment and discretion of the trustees. No other construction will give the whole passage a sensible and reasonable meaning. The latter part speaks of roads" which may be deemed proper to be kept open." Deemed proper by whom? Clearly by the trustees; not by a jury to be impanelled to try the question; for, in that case, there would be no end of disputes, because juries might differ in their opinion, and every instance of diverting a road would be productive of endless litigation and ruinous