Page images

placed on old wood, with abutments of stone. Some years afterwards all the abutments by a woodwork was carried away by a flood: the old materials were bridge some- collected and new ones added, and the bridge was rebuilt upon what wider,

the old abutments, but was made about two feet wider: this was not within

done at the expense of the parish, and the bridge has since been 43 G. 3.

used by the public. It was objected, that as the bridge had not been so re-erected under the direction of the county surveyor, the county was not bound to repair it. A verdict of guilty was found under the direction of the judge, and afterwards, on motion in K.B., the court held that the county was liable, for that the bridge was substantially the same, and that it was rather the repairing of the old bridge than the building of a new one. Littledale J. threw out, that if it had been a new bridge built on the site and in lieu of the old one, it would seem to have been within the intention of

the legislature. R. v. Inhabitants of Devon, 5 B. & Ad. 383. 22 H. 8. c. 5.

By stat. 22 H. 8. c. 5. $ $ 2, 3., Whereas in many places it cannot Counties and be known and proved what hundred, &c. town, parish, person, or cities, &c. how body politic ought to repair bridges broken in the highways; in liable.

every such case the said bridges, if they be without a city or town corporate, shall be made by the inhabitants of the county; if within a city or town corporate, then by the inhabitants of such city or town corporate ; if part be in one shire, city, or town corporate, and part in another, or part within the limits of a city or town corporate, and part without, the inhabitants of the shire, cities, or towns corporate shall repair such part as lies within their limits.

Bridges broken in the highways.] This extendeth only to common bridges in the king's highways, and not to private bridges, to mills, or the like; the remedy in which case is not by indictment, but by action. 2 Inst. 701.

Within a city or town corporate.] It hath been questioned whether a borough, which hath no bridge within its own limits, be not liable to contribute to the repairs of a county bridge. 1 Haw. c. 77. § 19. Keb. 68.

Where townships have enlarged a bridge, which they were before bound to repair as a foot bridge, to a carriage bridge, they shall be liable pro ratd. Rex v. W. R. of Yorkshire, 2 East, 353. (n.) antè, p. 610.

By the inhabitants.] The persons to be charged by this act are comprehended under the word inhabitants; which word, being

the largest word of the kind, is needful to be explained. Inhabitants, First, although a man be dwelling in a house, in a foreign who?

county, city, or town corporate ; yet if he hath lands in his own Persons occu- possession and manurance in the county, city, or town corporate, pying land, &c. where the decayed bridge is, he is an inhabitant, both where his though not residing.

person dwelleth, and where he hath lands in his own possession.

Secondly, if a man dwelleth in a foreign shire, city, or town corporate, and keepeth a house and servants in another shire, city, or town corporate, he is an inhabitant in each shire, city, or

town corporate within this statute. Mere inhabit- Thirdly, Ex vi termini, every person that dwelleth in any sbire, ants not liable. city, or town corporate, though he hath but a personal residence,

yet he is said in law to be an inhabitant, or a dweller there, as servants or the like; but this statute extendeth not to them, but



to such householders who may be distrained for non-payment: and it would be infinite and impossible to tax every inhabitant being no householder.

Fourthly, every corporation and body politic, residing in any Bodies politic county, city, or town corporate, or having lands or tenements in and corporate any county, city, or town corporate, which they keep in their own hands and occupation, are said to be inhabitants there, within the purview of this statute. Fifthly, an infant, that hath house or lands by descent or pur

Infants liable.

So busband of chase, is liable to the public charge ; and so is the husband of

feme covert. feme covert. 2 Inst. 702.

A tenant at will of a house, which adjoins to a common bridge, Repair of is bound to repair the house, so that the public be not prejudiced house adjoining by the want of repair, although, being only tenant at will, he be not

a bridge. bound to repair as to his landlord. Reg. v. Watson, 2 Ld. Raym. 856. 1 Salk. 357. S. C.

The freehold of bridges is in him that hath the freehold of Freehold in the soil; but the free passage is for all the king's liege people. bridges. 2 Inst. 705.

Harrison v. Parker and another, 6 East, 154. In this case, where a person which was an action of trespass for taking and carrying away the built and dediplaintiff's goods, and to which the defendant pleaded not guilty ; cated a bridge it appeared that the plaintiff, being lord of the manor, had con- the property in tracted with one who was lord of an adjoining manor, for himself the materials and his heirs, for liberty and licence to build a bridge over a river ceasing to be which divided the two manors, with liberty to lay the foundations part of the in the close of the lordship, together with the free use for the bridge, was held

to revert to the plaintiff, &c. and all other persons to and from a certain town or parish from and to the said bridge, the said bridge to be kept in original prorepair by the plaintiff and his heirs, and also a road (describing it) on each side thereof; and that the said bridge and roads should for ever be public highways, not subject to any toll. The bridge was built: the defendants took down a part of it, and carried away the stones for their own use. And it was held by the court, that a qualified property subsisted in the plaintiff after the dedication of the bridge to the public, which, upon the severance of the materials, became a perfect right of property in him; and that, therefore, the plaintiff might, as against a wrong-doer, maintain this action. That the only thing given to the public was a right of passing over these materials in the form of a bridge ; when they ceased to be a part of the bridge, they reverted to the plaintiff, discharged of the right of user by the public.

By stat. 1 G. 4. c. 116. § 2., such parts of all former acts re- 1 G. 4. c. 116. lating to bridges as enact, that if any person or persons shall Destroying wilfully and maliciously blow up, pull down or destroy any bridge bridges, &c. or any part thereof, or attempt so to do; or unlawfully and with. out authority remove or take any works thereto belonging, or in anywise direct or procure the same to be done, such offender or offenders being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy; shall from and after the passing of this act (viz. 25. July 1820) be, and the same are hereby repealed.

By 7 & 8 G. 4. c. 30. s 13., if any person shall unlawfully and 78 86.4. c. 30. maliciously pull down or in anywise destroy any public bridge, or Pulling down


or rendering a

do any injury with intent and so as thereby to render such bridge danger- bridge, or any part thereof, dangerous or impassable, every such

offender shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years ; and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so think fit, in addition to such im

prisonment. 22 H. 8. c. 5.

Decays of bridges are presentable in the leet or torn. - 2 Inst. Power of jus- 701. tices in ses- By stat. 22 H. 8. c. 5. § 1.5., the justices of peace in every sions, as to

shire of this realm, franchise, city, or borough, or four of them at bridges.

least (1 Q.), shall have power to inquire, hear, and determine in the general sessions all manner of annoyances of bridges broken in the highways, to the damage of the king's liege people, and to make such process and pains upon every presentment against such as ought to be charged to make or amend them, as the king's bench usually doth, or as it shall seem by their discretions to be necessary and convenient for the speedy amendment of such bridges.

Four of them at the least.] If the bridge be within a franchise which hath not four justices and a sessions of its own, the justices of the county shall inquire ; but if the franchise be a county of itself, and hath not four justices (1 Q.), it is not within this statute, but is left to the remedy which it had at common law. 2 Inst. 702.

And to make process.] By $ 5., where the bridge is in one make process

shire, and the persons or lands which ought to be charged in into another another shire; or where the bridge is within a city or town corcounty. porate, and the persons or lands that ought to be charged are out

of the said city; the justices of such shire, city, or town corporate shall have power to hear and determine such annoyances, being within the limits of their commission; and if the annoyance be presented, then to make process into every shire of the realm against such as ought to repair the same, and to do further in every behalf as they might do, if the persons or lands chargeable were in the same shire, city, or town corporate where the annoy.

Justices may

ance is.

As the king's bench usually doth.] The presentment at common law might be before the king's bench, or at the assizes. 2 Inst.

701. The court of Rer v. The Inhab. of Machynlleth and Pennegoes, E. 2 G. 4. quarter sessions 4 B. & A. 469. The following order of sessions of the county of cannot impose Montgomery was removed by certiorari into the court of K. B.:

, fiepeaforthe non- the inhabitants of the township of Machynlleth and the parish of

Pennegoes, for not repairing Pontfelingerrig Bridge, be, and the same is hereby increased by the sum of 2001.” A rule nisi was obtained for quashing the order. It appeared from the affidavits that the defendants had been presented at the January sessions 1818, for the non-repair of the bridge in question : to which presentment they, at the same sessions, submitted, and a fine of 300l. was imposed, and afterwards levied upon them. At Michaelmas sessions 1820, the fine not having been sufficient, the order in


question was made, imposing a second fine of 2001. The court, after hearing counsel in support of the order of sessions, were of opinion, that the power of the sessions was at an end after the first fine, and that they had no jurisdiction to impose a second; and they referred to Rex v. The Inhab. of Old Malton (a) as an authority directly in point. Order of sessions quashed.

By stat. 22 H. 8. c. 5. $ 9., such part and portion of the high- 22 H. 8. c. 5. ways, as well within franchises as without, as lie next adjoining to $9. any ends of any bridges, distant from any of the said ends by the County to respace of 300 feet, shall be made, repaired, and amended as often the ends of as need shall require ; and the justices, or four of them (1 Q.), bridges. shall have power to inquire, hear, and determine, in the general sessions, all manner of annoyances of and in such highways, so being and lying next adjoining to any ends of bridges, distant from any one of the ends of such bridges 300 feet, and to do in every thing concerning the making, repairing, and amending of such highways, in as ample manner as they may do for the making, repairing, and amending of bridges.

The county is by law bound prima facie to repair the road at the ends of every bridge, which bridge it is bound to repair ; the statute has fixed the length of 300 feet. Per Ld. Eldon C., R. v. Inhab. of W. R. of Yorkshire, Dom. Proc., M. 44 G. 3., 5 Taunt. 284.

R. v. Inhab. of Devonshire, 14 East, 477. The county of Devon The inhabitants is divided from the county of Dorset by the river Yarty, over of a county in which there is a bridge maintained by Dorset, the inhabitants of which a new which, in course, under stat. 22 H. 8. c. 5., maintained the road bridge was built

within 300 ft. for 300 feet on the Devonshire side from the bridge, as part of of an old bridge such bridge. At the distance of 150 feet from the bridge, on the in another same side, the road about thirty years ago led through a ford, county, were occasioned by a small stream which runs into the Yarty ; but held liable to

repair such new about that time, in order to avoid the inconvenience of the ford, a

bridge. smaller bridge was built over it by an individual, which having been generally used by the public ever since, was considered as having been adopted by the county. The smaller bridge having fallen into decay, and requiring repair, the inhabitants of Devon

(a) Holroyd J. read the following MS. note of the case :

The King against The Inhabitants of the Parish of Ou Malton, Yorkshire, Sum.
Ass. 9th August, 1794, cor. Lawrence J.

This was an indic:ment for not repairing a highway. The defendants had submitted to a fine which had been apportioned between the parishioners and the trustees of the turnpike (the road indicted being turnpike), pursuant to the power given by the general turnpike act. Holroyd applied for a further fine, the whole fine being laid out on the way, and the way being still out of repair. Lawrence J. doubted his power to give any further fine, on the ground that the court had given their judgment; and though Salk. 358. (see s. C. 6 Mod. 163.) states that the judgment is not at an end by the defendants coming in and submitting to a fine; and that if the road is not put in repair, writs distringas shall issue against the defendants till the road is completed : he held, that those writs are now the only remedy on the present indictment; that the fine is the punishment for the neglect and oftence of which the defendants are indicted ; and though the court may compe) an actual repair, yet the punishment has been inflicted, and they cannot inflict a further punishment or fine; that the parish may be again indicted, and a fine imposed and apportioned on such indictment. Vide also | Hawk. c. 76. § 94.

were called upon to repair it: which they objected to, on the ground, that being within 300 feet of the former bridge over the Yarty, which was repairable by Dorset, the inhabitants of Devon were no more bound to repair the smaller bridge than they were the road for that distance before that bridge was built, though lying within the limit of their county. Whereupon this indict. ment was preferred against them for the non-repair of the smaller bridge, and a verdict passed for the crown. And upon a motion for a new trial, Ld. Ellenborough C. J. said, Each is a substantive bridge in a different county, and the new bridge cannot be considered as an appendage to the other. The statute of H. 8. attaches equally on the inhabitants of each county in respect to its own bridge. It makes no difference that the new bridge was first built by an individual, if it were afterwards adopted by the public as of great public utility. While it continued a road, it was repairable as part of the old bridge ; but now that there is a substantive bridge built on the Devonshire side, it is repairable as a bridge by the inhabitants of the county in which it is situate,

according to the statute. Causeway with In an indictment against a county for not repairing a bridge, it arches for let- appeared that a bridge constructed over the river Thame was conting off food

tinued by a causeway across meadows, and had several arches for water, being the purpose of letting off the water, which frequently flooded the continuation of a bridge over a

meadows in the winter, and that, unless the water was so let off, stream, not re- the bridge itself would have been endangered ; and the water osten pairable by the lay under the arches wlien the meadows were dry. The arches county as part in question, which were out of repair, were distant more than 300 of such bridge. feet from the end of the main bridge. After verdict for the

crown, and argument on R. N., the court held, that the prosecution could not be sustained, on the ground that a county was not by law bound to the repair of any bridge, unless such a one as was built over water flowing in a channel between banks more or less defined, though such channel might be occasionally dry; and they ordered a verdict to be entered for the defendants. R. v.

The Inhab. of Oxfordshire, 1 B. 8. Ad. 289. Nor is it re

On a former occasion, an indictment had been preferred against pairable by the the county for the non-repair of the same arches, considering county as a them as a separate and independent bridge, and not as part of the separate bridge. bridge over the river ; and a special case being stated, the court

gave judgment for the defendants. R. v. The Inhab. of Oxford

shire, T. T. 1827, 1 B. & Ad. 297. n. 12 G. 2. c. 29.

By stat. 12 G. 2. c. 29. § 13., no money shall be applied to the of the laying repair of bridges until presentment be made by the grand jury at out of money

the assizes or sessions of their insufficiency, inconveniency, or want on repairs. of reparation. 55 G. 3. c. 143.

But by stat. 55 G. 3. c. 143. $ 5., county bridges, repaired

under contract, may be repaired without presentment. Indictment

An indictment for not repairing a bridge ought to shew what

sort of a bridge it is, whether for carts or carriages, or for horses kind of bridge. or for footmen only. 2 Ld. Raym. 1175. County prima

R. v. Inhab. of the West Riding of Yorkshire, 2 East, 348. In facie liable for the indictment, the bridge was alleged to be in the king's higha bridge used way, and used for all his subjects. And Lord Ellenborough C. J. by the public. said, this was at least sufficient to throw the onus upon the inha

must shew the

« PreviousContinue »