MAKING, &c. 3 Geo. 4, c. 126, After new road is completed, the old road may be sold. *Sie. Conveyances exe cuted by the trusin the office of the clerk of the peace, tees, and enrolled to be valid. Application of compensation when amounting to 2002, and when thereto is 1 Geo. 4, c. 35. ditaments, and premises, then such lands, tenements, hereditaments and premises respectively, shall be vested in such trustees or commis sioners, and shall and may be taken and used for the purposes of such act; and such lands, and the site of such lands, tenements, hereditaments and premises, shall be laid into and made part of the road, in such manner as the said trustees or commissioners shall direct, and shall be repaired and kept in repair by such trustees or commissioners, by the same ways and means as any other part of the road under their management is or ought to be kept in repair; and all parties and persons whomsoever shall be divested of all right and title to such lands, tenements, and hereditaments; and after such new road shall be completed, the lands or grounds constituting any former roads or road, or so much and such part or parts thereof as in the judgment of the said trustees or commissioners may thereby become use less or unnecessary, or shall or may be stopped up and discontinued as public highways, (unless leading over some moor, heath, common, uncultivated land or waste ground, or to some church, mill, village, town of place, lands, or tenements, to which such new road or roads doth not or do not immediately lead, and which may therefore be deemed proper (a) to be kept open, either as a public or private way or ways, for the use of any inhabitant at large, or any individual or individuals), and shall be vested in. and shall and may be sold and conveyed (b) by the said trustees or commissioners, in the manner herein mentioned, for the best price that can be gotten for the same, and the money arising by such sale shall be applied for the purposes of the act for repairing and maintaining such turnpike road and all conveyances, being executed by the said trustees or commissioners and enrolled in the office of the clerk of the peace for the county, city, or place, wherein such road shall be situate, shall be good and effectual in the law to all intents and purposes whatsoever; or it shall be lawful for the said trustees or commissioners, instead of making such sale as aforesaid, to give up to the owners or proprietors of any adjoining lands, tenements, or hereditaments, whose building, land, or ground shall be had or taken for the purposes of this act, any part or parts of the present or old roads, in lieu of, and in exchange for the same, in such way and manner as such trustees or commissioners, and owners or proprietors shall agree upon, and think fit." By 7 & 8 Geo. IV. c. 24, s. 9, it is enacted, "That if any money shall be agreed or awarded to be paid for any lands, tenements, or hereditaments. purchased, taken, or used by the trustees, which shall belong to any body politic, corporate, or collegiate, corporation aggregate or sole, infant, lunatic. tenant for life or in tail, general or special, feoffee in trust, guardian, committee, trustee, feme covert, or other incapacitated person, such monies shall, if the same amount to the sum of two hundred pounds, with all conve nient speed be paid into the Bank of England, in the name and with the privity of the accountant-general of the Court of Exchequer, to be placed to his account ex parte the trustees for executing such act, pursuant to the method prescribed by an act passed in the first year of the reign of king George the fourth, intituled, An Act for the better securing the Monies and Effects paid into the Court of Exchequer at Westminster, on account of the Suitors of the said Court, and for the appointment of an Accountant-General and Two Masters of the said Court, and for other Purposes, and the general orders of the said Court, and without fee or reward; and such money, when so paid in, shall be applied, under the direction and with the approbation of (a) This part of the clause does not take away the power to stop up a road leading to some church, &c.; but authorizes the trustees to leave open roads of that description, when, in their discretion, they shall think fit. De Beauvoir v. Welch, 7 B. & C. 266. It was observed in this case, that the trustees had 66 even the remarkable power of converting a public into a private way." (b) For the purpose of effecting the sale hereby directed, it seems that the Legislature has expressly vested the soil and inheritance in the trustees, otherwise it would not so vest. See Davidson v. Gill, 1 East, 69; and observations, ante, 128, 8. PURCHASING the said Court, to be signified by an order to be made upon a petition to be preferred in a summary way by the person who would have been entitled to LANDS FOR, &c. the rents and profits of the said lands, tenements, or hereditaments, in the 7 & 8 Geo. 4, c. 24. purchase of the land tax, or the discharge of any debt or debts, or such other incumbrances, or part thereof, as the said Court shall authorize to be paid affecting the same lands, tenements, or hereditaments, or affecting other lands, tenements, or hereditaments, standing settled therewith to the same or the like uses, intents, or purposes; or where such money shall not be so applied, then the same shall be laid out and invested, under the direction and approbation of the said Court, in the purchase of other lands, tenements, or hereditaments, which shall be conveyed and settled to, for, and upon such and the like uses, trusts, intents, and purposes, and in the same manner as the lands, tenements, or hereditaments, which shall be so purchased, taken, or used as aforesaid, stood settled, or limited, or such of them as at the time of making such conveyance and settlement shall be existing, undetermined, and capable of taking effect; and in the meantime, and until such purchase shall be made, the said money shall, by order of the said Court, upon application thereto, be invested by the said accountant-general, in his name, in the purchase of three pounds per centum consolidated, or three pounds per centum reduced bank annuities; and in the meantime, and until the said bank annuities shall be ordered by the said Court to be sold for the purposes aforesaid, the dividends and annual produce of the said consolidated or reduced bank annuities shall, from time to time, be paid, by order of the said Court, to the person who would, for the time being, have been entitled to the rents and profits of the said lands, tenements, or hereditaments so purchased, in case such purchase or settlement were made." Sect. 10 provides, "That if any money so agreed or awarded to be paid for any lands, tenements, or hereditaments, purchased, taken, or used, and belonging to any person under any disability or incapacity as aforesaid, shall be less than the sum of two hundred pounds, and shall exceed the sum of twenty pounds, then, and in all such cases, the same shall, at the option of the person for the time being entitled to the rents and profits of the lands, tenements, and hereditaments so purchased, taken, or used, or of his guardian or guardians, committee or committees, in case of infancy, idiotcy, or lunacy, to be signified in writing under their respective hands, be paid into the Bank of England, in the name and with the privity of the said accountant-general of the Court of Exchequer, and be placed to his account as aforesaid, in order to be applied in manner hereinbefore directed; or otherwise the same shall be paid, at the like option, to two trustees, to be nominated by the person or persons making such option, and approved of by the trustees taking such lands, tenements, or hereditaments, (such nomination and approbation to be signified in writing under the hands of the nominating and approving parties), in order that such principal money, and the dividends and interest arising thereon, may be applied in manner hereinbefore directed, so far as the case may be applicable, without obtaining or being required to obtain, the direction or approbation of the said Court of Exchequer." Application when under 2004, and above 207. Sect. 11 provides, "That where such money so agreed or awarded to When less than 207. be paid as herein before mentioned shall be less than the sum of twenty pounds, then, and in all such cases, the same shall be applied to the use of the corporation or person who would for the time being have been entitled to the rents and profits of the lands, tenements, or hereditaments so purchased, taken, or used, in such manner as the trustees taking such lands, tenements, or hereditaments, shall think fit; or in case of infancy, idiotcy, or lunacy, then to his guardian or guardians, committee or committees, to and for the use and benefit of such person so entitled respectively." Sect. 12. "That in case the corporation or person to whom any sum or sums of money shall be awarded, for the purchase of any lands, tenements, or hereditaments, shall refuse to accept the same, or shall not be able to make a good title to the premises to the satisfaction of the trustees, or in case the person to whom such sum or sums of money shall be so awarded Payment of money where title not saer not being found, tisfactory, or own &c. MAKING, &c. cannot be found, or if the person entitled to such lands, tenements, or hereditaments, be not known or discovered, then, and in every such case, it shall 7 & 8 Geo. 4, c. 24. be lawful for the said trustees to order the said sum or sums of money to be ROADS. Persons in posses entitled. paid into the Bank of England, in the name and with the privity of the accountant-general of the said Court of Exchequer, to be placed to his account, to the credit of the parties interested in the said lands, tenements, or hereditaments, (describing them), subject to the order, control, and disposition of the said Court of Exchequer; which said Court, on the application of any person making claim to such sum or sums of money, or any part thereof, by motion or petition, shall, and is hereby empowered, in a summary way of proceeding or otherwise, as to the same Court shall seem meet, to order the same to be laid out and invested in the public funds, and to order distribution thereof, or payment of the dividends thereof, according to the respective estate or estates, title, or interest, of the person making claim thereto, and to make such other order in the premises as to the said Court shall seem just and reasonable; and the cashier or cashiers of the Bank of England, who shall receive such sum or sums of money, is and are hereby required to give a receipt or receipts for such sum or sums of money (mentioning and specifying for what and for whose use the same is or are received) to such person as shall pay any sum or sums of money into the Bank as aforesaid." Sect. 13 provides, "That where any question shall arise touching sion presumptively the title of any corporation or person to any money to be paid into the Bank of England, in the name and with the privity of the accountant-general of the Court of Exchequer, in pursuance of this act, for the purchase of any lands, tenements, or hereditaments, or of any estate, right, or interest in any lands, tenements, or hereditaments, or of any bank annuities, to be purchased with any such money, or to the dividends or interest of any such bank annuities, the person who shall have been in possession of such lands, tenements, or hereditaments, at the time of such purchase, and all persons claiming under such person, or under the possession of such person, shall be deemed and taken to be lawfully entitled to such lands, tenements, or hereditaments, according to such possession, until the contrary shall be shewn to the satisfaction of the said Court of Exchequer; and the dividends or interest of the bank annuities to be purchased with such money, and also the capital of such bank annuities, shall be paid, applied, and disposed of accordingly, unless it shall be made appear to the said Court that such possession was a wrongful possession, and that some other person was lawfully entitled to such lands, tenements, or hereditaments, or to some estate or interest therein." The Court may order reasonable expenses of pur Sect. 14 provides, "That where, by reason of any disability or incapacity of the corporation or person entitled to any lands, tenements, or herechases to be paid. ditaments, the purchase-money for the same shall be required to be paid into the said Court, and to be applied in the purchase of other lands, tenements, or hereditaments, to be settled to the like uses, it shall be lawful for the said Court to order the expenses of all purchases from time to time to be made in pursuance of this act, or so much of such expenses as the said Court shall deem reasonable, together with the necessary costs and charges of obtaining such order, to be paid by the trustees taking any such lands, tenements, or hereditaments, who shall from time to time pay such sums of money for such purposes as the said Court shall direct." Trustees to pay expense of sales of lands, &c. Form of convey ances. By stat 4 Geo. IV. c. 95, s. 55, it is enacted, "That all sales and conveyances of any lands, tenements, or hereditaments, to be sold by the trustees or commissioners of any turnpike roads, shall be made at the expense of such trustees or commissioners, and shall be expressed in the following or some similar form of words, as the circumstances of the case may require; videlicet, "We, of the trustees or commissioners acting in execution of an act passed [here insert the title of the act appointing them] in consideration of the sum of to us paid by [name of the purchaser] do hereby grant and release to the said [name of the purchaser] all [describing the premises to PURCHASING be conveyed], and all our right, title, and interest to and in the same, and every part thereof, to hold to the said [name of the purchaser], his heirs, LANDS FOR, &c. executors, administrators, and assigns, for ever, by virtue, and according to 4 Geo. 4, c. 95. the true intent and meaning of an act passed in the fourth year of the reign of king George the fourth, intituled, " An act," [here set forth the title of this act]. In witness whereof we have hereunto set our hands and seals, this day of Stat. 3 Geo. IV. c. 126, s. 87, enacts, "That in case any jury or juries to be summoned and sworn pursuant to the directions and authority of this act, shall give in and deliver a verdict or assessment for more money as a recompense or satisfaction for the right, interest, or property of any person or persons in any such lands, tenements, hereditaments, or premises, or for ny loss or damage to be by him, her, or them sustained, than what shall have been agreed to and offered by such trustees or commissioners before the summoning or returning the said jury or juries, as a recompense or satisfaction for any such right, interest, or property, or for any loss or damage as aforesaid, then, and in such case, the costs and expenses of summoning and maintaining the said jury and witnesses, and all other expenses attending the hearing and determining such difference, shall be borne and paid by the treasurer to the trustees or commissioners, out of any money which shall then be in his hands, or out of any monies to be received by virtue of the act for repairing and maintaining such turnpike road, such costs and expenses to be settled and ascertained by some justice of the peace for the county or place wherein the dispute shall have arisen, not interested in the matter in question, who is hereby authorized and empowered to settle and determine the same, and to make an order on the treasurer of the trustees or commissioners liable thereto for the payment thereof; but if any such jury or juries so summoned and sworn as aforesaid shall give in and deliver a verdict or assessment for no more or for less money than shall have been agreed to and offered by the trustees or commissioners before the summoning and returning of the said jury or juries, as a recompense and satisfaction for any such right, interest, or property in any such lands, tenements, hereditaments, or premises, or losses or damages as aforesaid, then the costs and expenses of summoning and maintaining the said jury and witnesses, and all other expenses as aforesaid, shall be borne and paid by the person or persons with whom such trustees or commissioners shall have such controversy or dispute; which said costs and expenses having been ascertained and settled by some justice of the peace for the county, riding, or place, wherein the cause of dispute shall arise, not interested in the matter in question, (who is hereby required to examine and settle the sane), shall and may be deducted out of the money so assessed and adjudged, as so much money advanced to and for the use of such person or persons, and the payment or tender of the remainder of such monies shall be deemed and taken, to all intents and purposes, to be a payment or tender of the whole sum or sums so assessed and adjudged, or otherwise such costs and expenses, in case the same or any part thereof shall exceed such damages, and shall not be paid upon demand, after being so ascertained and settled as aforesaid, may be recovered by the said trustees or commissioners by the ways and means hereinafter provided for the recovery of penalties and forfeitures: provided always, that in all cases where any person or persons shall, by reason of absence, have been prevented from treating, such costs and expenses shall be borne and paid by the said trustees or commissioners in manner aforesaid." See s. 141 and 143, post, Sect. XV. (4) Stopping up and Sale of old Roads, &c. We have already noticed the provision of the 3 Geo. IV. c. 126, s. 86, empowering the trustees to sell the old road, after the new one is completed, in cases where the proceedings have taken place against the owner's consent, ante, 150. How expenses of jury and witnesses are to be borne. STOPPING UP, 3 Geo. 4, c. 126. When new road completed, old up, and the land sold. By 3 Geo. IV. c. 126, s. 88, it is enacted, "That when any turnpike &c. OLD ROADS. road shall be diverted or turned, and the new road shall be made and completed, such new road shall be in lieu of the old road, and shall be subject to all the provisions and regulations in any act of Parliament contained, or road to be stopped otherwise, to which the old road was subject, and shall be deemed and taken to be a common highway (a), and shall be repaired and maintained as such; and the old road shall be stopped up, and the land and soil thereof shall be sold by the trustees or commissioners to some person or persons whose lands adjoin thereto, as hereinafter mentioned with regard to pieces of ground not wanted (b); but if such old road shall lead to any lands, house, or place, which cannot, in the opinion of the said trustees or commissioners, be conveniently accommodated with a passage from such new road, which they are hereby authorized to order and lay out if they find it necessary, then, and in such case, the old road shall be sold, but subject to the right of way and passage to such lands, house, or place respectively, according to the ancient usage in that respect; and the money arising from such sale in either of the said cases, shall be applied towards the purchase of the land where such new road shall be made, or in the same manner as the tolls arising on such road, as the trustees or commissioners thereof shall think fit; and upon the completion of any contract whereby any part of the old road shall be given in payment for the value of the ground taken for the new road, or upon payment of the price of any part of the old road, the soil of such old road shall become vested in the purchaser thereof and his heirs; but all mines, minerals, and fossils (c) lying under the same, shall continue the property of the person or persons who would from time to time have been entitled to the same if such old road had continued." Mines, &c. When any parts of land not wanted for the purposes of roads are to be sold, the first offer original or adjoin to be made to the ing owners. What shall be evidence of such offer and refusal. Sect. 89, enacts, "That where the trustees or commissioners of any turnpike road shall have purchased, or shall be possessed of any piece or pieces of ground not wanted for the purposes of such road, it shall and may be lawful for such trustees or commissioners to sell and dispose of the same: provided always, that the said trustees or commissioners, before they shall sell and dispose of any such piece or pieces of ground not wanted for the purposes of such turnpike road as aforesaid, to any other person or persons, shall first offer the same to the person or persons of whom the same shall have been purchased, or to the person or persons whose lands shall adjoin thereto; and if such person or persons respectively shall then and thereupon refuse, or shall not agree (except with respect to or on account of the price thereof) to purchase the same respectively, on an affidavit being made and sworn before a master or master extraordinary in the high Court of Chancery, or before one of his Majesty's justices of the peace for the county, liberty, or place where such ground is situate, (who are hereby respectively empowered to take such affidavit), by some person or persons no way interested in the said piece or pieces of ground, stating that such offer was made by or on behalf of such trustees or commissioners, and that such offer was then and thereupon refused, or was not agreed to by the person or persons to whom the same was made, such affidavit shall, in all courts whatsoever, be sufficient evidence and proof that such offer was made, and was refused, or not agreed to by the person or persons to whom such In case of dispute offer was made (as the case may be); and in case such person or persons shall be desirous of purchasing such piece or pieces of ground, and he, she, or they and the said trustees or commissioners shall differ or not agree with respect to the price thereof, then the price or prices thereof shall be ascertained by a jury, in manner in this act directed with respect to disputed value of premises to be taken and used in pursuance of this act, and the as to price, the value to be ascertained by a jury. (a) By virtue of this provision, a new road made by the trustees under a local act, becomes a public highway, and will not cease to be so at the expiration of the term for which the local act was made. See R. v. Winter, 8 B. & C. 785. (b) See note, ante, 150. (c) See the general clause of 7 & 8 Geo. IV. c. 24, s. 18, ante, 128, as to the property in mines, &c. |