wanted repair. They also collect tolls upon the navigation.Lord Ellenborough C. J. The act authorises the company not only to alter, repair, and amend, but even to discontinue any of the works before authorised to be erected; amongst others, any bridge. And the inhabitants of a county can never have, by law, a permanent burthen thrown upon them to repair a bridge, of which they have not the permanent use and enjoyment secured to them.-Grose J. agreed.-Le Blanc J. after saying, that this was very like the case of Rex v. The Inhab. of Kent(a), said, that the authority given to the company to make the cut, which rendered the highway impassable without a bridge, must create an obligation in them to erect the bridge, though the word authorise in the act would not of itself create the obligation. — Bayley J. The bridge is rendered necessary for the purposes of the company, but not for the purposes of the inhabitants of the parts. Verdict and judgment for the defendants. Certain commissioners and their successors, being empowered by statute to make a navigation, cut through a highway, and built a bridge: held that they were liable for Rex v. Kerrison, 3 M. & S. 526. Where certain persons and their successors were authorised, by act of parliament, to make a river navigable, and to cut the soil of any person for making any new channel, &c. by virtue of which they cut through a highway, and rendered it impassable, and a bridge was built over the cut, over which the public passed, and which had been repaired by the proprietors of the navigation; the court of K. B. held, that the proprietors and not the county were liable to repair. After argument in this case, Lord Ellenborough C. J. said, "The undertakers of this navigation have a duty, as it seems to me, arising out of the execution of their own powers under the act. The act enables for its repair. them to cut new channels as occasion should require; and if occasion requires them to cut through a public highway, their duty is to furnish a substitute to the public by means of a bridge.' Bayley J. said, "This differs from the last case of Rex v. Inhab. of Kent. (a) There the county derived a very essential benefit from the bridge; they had before but a passage through the ford, which is always an inconvenient one: but what benefit does this county derive from passing over a bridge instead of the solid highway." Judgment for the crown. of repair ratione tenura. Rex v. Inhab. of Oxfordshire, M. 1812, 16 East, 223. Indict- Averment of ment against a county for not repairing a bridge. Plea, that M. is immemorial liable to repair the same, ratione tenure. Evidence, that the repair, in plea estate of M. was part of a larger estate (b), which part was purchased by M. of the former owner, Lord Cadogan, who retained the rest, and as well before as since the purchase, repaired the bridge. Lord Ellenborough C. J. The defendants have not maintained their plea. It is pleaded that M. and all those whose estate he hath, have immemorially repaired. Now, there is no evidence that he and those who had the estate have repaired, for it appears that since he purchased the estate another person has repaired. It would have been more correct to have pleaded that "he and those whose estate he hath, with others, have repaired," instead of which, the burthen is cast on him impartibly, without giving him the benefit of a contribution from Lord Cadogan. But I should be sorry to conclude the county from bringing forward their case, (a) See antè, p. 611. (b) See R. v. Duchess of Buccleugh, post, p. 623. as it is clear they have never repaired. The court directed that the rule should be drawn up for staying the judgment, on payment of the costs of the prosecution; and Lord Ellenborough C.J. added, that if the public exigency required it, the county must repair, without prejudice to their case; and Le Blanc J. said, that the county might proceed to indict the parties whom they contended to be liable. Rex v. Mathias Kerrison, 1 M. & S. 435. Indictment charging an individual with the repair of a bridge by reason of his being owner and proprietor of a certain navigation, is not equivalent to charging him ratione tenure, but is erroneous; and if judgment be given thereon, upon error brought, it will be reversed. It seems that a count charging him by reason of being owner of a navigation under a private act of parliament, must set forth the act. Rex v. Inhab. of the County of Northampton, 2 M. & S. 262. The second count of this indictment, on which the verdict was entered for the crown, was for not repairing a public bridge over the river Welland, in a highway leading from Northampton to Leicester, used by the subjects of the king, with their horses, carts, and carriages, at all such times as and when it hath been or is dangerous to pass through the river by the side of the bridge. Plea not guilty. At the trial before Thompson B., at the last assizes, it appeared that this bridge was used by the public at all times on foot and with horses, but only occasionally with carriages, except in times of flood or frosts, when it was unsafe to pass through the river, at which times carriages always passed over the bridge. In ordinary times the carriage road went through the ford, and the bridge was sometimes barred against carriages by means of a post and chain, which was locked. There was no doubt upon the evidence of the bridge being out of repair, but the counsel for the defendants proposed to give evidence to shew that the feoffees of certain estates had repaired the bridge, and that one Rous, as their agent, had the control of the key. To this it was objected, that repairs done by individuals could not be evidence to shew the bridge not a public bridge, which was the only issue upon these pleadings. The learned judge was of that opinion, and rejected the evidence. A rule nisi for a new trial was moved upon the rejection of this evidence; and exception was also taken to the count, that it did not shew the bridge to be a public bridge, but only a bridge to be used on particular occasions, which could not be if it were a public highway; for there could not be a partial dedication to the public. But Lord Ellenborough C. J. said, Though it must be an absolute dedication to the public, still it might be definite as to time: with respect to the admissibility of the evidence, his lordship said, he doubted whether in the extreme rigour of correctness it ought not to have been received, though, certainly, if it had stood by itself, it would have had but little effect. The only question was, whether this was a public bridge? Repairs done by an individual are prima facie rather to be ascribed to motives of private interest in his own property, than as done for the public benefit; and if an inference might have been drawn from the fact, the jury ought to have had an opportunity of judging of that inferHe thought the evidence barely admissible, and that the ence. learned judge would have exercised a more correct discretion by receiving it. R. A. under direction of county sur veyor. But for the more clearly ascertaining the description of 43 G. 3. c. 59. Counties not bridges hereafter to be erected, which inhabitants of counties shall liable to repair be liable to repair and maintain," it is enacted by stat. 43 G. 3. of bridges, unc. 59. § 5. “that no bridge hereafter to be erected or built in any less substancounty, by or at the expense of any individual or private person tially built, or persons, body politic or corporate, shall be deemed or taken to be a county bridge, which the inhabitants of any county shall be compellable or liable to maintain or repair, unless such bridge shall be erected in a substantial and commodious manner, under the direction or to the satisfaction of the county surveyor, or person appointed by the justices of the peace at their general quarter sessions assembled, or by the justices of the peace of the county of County surLancaster, at their annual general sessions; and which surveyor or veyor may be person so appointed, is hereby required to superintend and in- required to spect the erection of such bridge, when thereunto requested superintend. by the party or parties desirous of erecting the same; and in case the said party or parties shall be dissatisfied, the matter shall be determined by the said justices respectively at their next general quarter sessions, or at their annual general sessions in the county of Lancaster." §7. Provided that nothing herein contained shall extend to any bridges or roads which any person or persons, bodies politic or corporate, is, are, or shall be liable to maintain or repair by reason of tenure, or by prescription, or to alter or affect the right to repair such bridges or roads." Where a carriage bridge had been built by the trustees of a turnpike road previously to the 43 G. 3. c. 59., and had been used by the public for many years, and since the passing of that act had been widened by the trustees, on an indictment against the county for not repairing it, it was objected that the county was exempt, because the alteration of its width had not been effected under the direction of the county surveyor, as required by that statute. After verdict of guilty, and motion to enter an acquittal, the court held that the widening of a bridge was not within the purview of the statute, which applied only to new bridges, and that the enlargement of it did not destroy its identity, for it continued the same bridge, though wider, and that the county was liable. R. v. Inhabitants of Lancashire, 2 B. & Ad. 813. To the presentment of a county for the non-repair of a bridge it was pleaded that such bridge was built by the trustees of a turnpike after the passing of 43 G. 3. c. 59., and that it was not erected in a substantial or commodious manner under the direction of the county surveyor; and on demurrer, it was contended that the trustees did not fall within the terms "private persons, body politic or corporate," in § 45. of that statute. The court, how ever, were clear that the provisions of the statute applied to the trustees, and that, as they had not complied with the conditions required, the county was not liable. R. v. Inhabitants of Derby, 3 B. & Ad. 147. On the indictment of the county for the non-repair of a bridge, it appeared that there was a carriage bridge previous to the passing of 43 G. 3. c. 59., which the county repaired, constructed of Act not to extend to bridges repaired by rea son of tenure. Bridge widened by trustees since 43 G. 3. without the sanction of the county surveyor, not within that statute. Where turnpike trustees build a bridge, the county will unless it is built under the direction of the county survey. not be liable or, according to 43 G. 3. c. 59. Wooden bridge destroyed by flood and re placed on old 22 H. 8. c. 5. Counties and liable. wood, with abutments of stone. Some years afterwards all the woodwork was carried away by a flood: the old materials were collected and new ones added, and the bridge was rebuilt upon the old abutments, but was made about two feet wider: this was done at the expense of the parish, and the bridge has since been 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. By stat. 22H. 8. c. 5. § § 2, 3., Whereas in many places it cannot 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 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. Inhabitants, who? Persons occu pying land, &c. though not residing. Mere inhabit 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. 1 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. First, although a man be dwelling in a house, in a foreign county, city, or town corporate; yet if he hath lands in his own possession and manurance in the county, city, or town corporate, where the decayed bridge is, he is an inhabitant, both where his 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. Thirdly, Ex vi termini, every person that dwelleth in any shire, 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 county, city, or town corporate, or having lands or tenements in 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. chase, is liable to the public charge; and so is the husband of a feme covert. 2 Inst. 702. A tenant at will of a house, which adjoins to a common bridge, is bound to repair the house, so that the public be not prejudiced by the want of repair, although, being only tenant at will, he be not bound to repair as to his landlord. Reg. v. Watson, 2 Ld. Raym. 856. 1 Salk. 357. S. C. So husband of feme covert. Repair of house adjoining a bridge. 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. to the public, ceasing to be part of the bridge, was held to revert to the original pro prietor. 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 which divided the two manors, with liberty to lay the foundations in the close of the lordship, together with the free use for 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 repair 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. I 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 without 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. § 13., if any person shall unlawfully and 7&8G.4. c. 30. maliciously pull down or in anywise destroy any public bridge, or Pulling down |