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paid, shall be levied as other forfeitures are hereinafter directed to be levied." MATERIALS. (by s. 72, post, Sect. XX.)

statutes.

Construction of, and Decisions upon foregoing Clauses]-The sufficiency of Decisions upon the compensation for the materials, or damage done in the taking them, or carrying them away, can only be settled and ascertained before the justices, according to the directions of the act, and cannot be questioned in an action of trespass. If a plaintiff can shew that a new road was made over his lands maliciously or wantonly by the surveyor, and not for the necessary or convenient carriage of the materials over the land, he would not be concluded by the amount offered to him, and the surveyor would not, it seems, in such a case be protected by the act. Boyfield v. Porter, 13 East, 200.

Upon a repealed statute the following decisions took place; viz. That the order of sessions for the materials must shew, that there were no proper materials to be found in or upon the wastes or common grounds near the highway, for the surveyors are not warranted to dig in the private soil for all the species of materials, because some of these species are not to be found in or upon the said wastes or common grounds: and it ought to specify what cannot be found in or upon the wastes or common grounds, and what may be found in the private soil; and they must previously know that it is to be found there, or at least have a reasonable prospect of finding it there, for they cannot dig to try for it in the private soil. R. v. Munning, 1 Burr. 377; 2 Ken. 561, S. C. In the general highway act, however, ante, 33, power is given to search for and dig. Still, however, it seems there ought to be a reasonable prospect for finding before a license to search for and dig is granted.

That an order of sessions, to dig generally over all the estate of A. B., is bad; for the order must fix upon a particular part, and not leave it to the discretion of the surveyor. Id.

That satisfaction must be awarded to the owner, or to the occupier, or to both, according to the damages sustained by the one, or by the other, or by both. Id.

That notice to the occupier is sufficient, and it is sufficient to state that it was left at his place of abode. But the statute then directed the notice to be given to the owner or occupier. The words of the present statute are different.

(5) Which Highways to be repaired first.

By 13 Geo. III. c. 78, s. 25, “the said justices of the peace, at any special sessions to be held by virtue of this act, may, by writing (a), under their hands and seals, order and appoint those highways (not being turnpike road), which in their opinion do most want repair within their jurisdiction, to be first amended, and at what time and in what manner the same shall be amended; according to which order, if such there be, all and singular the respective surveyors of the said highways are hereby required to proceed within their respective liberties."

We have already seen that the 13 Geo. III. c. 78, s. 43, ante, 19, empowers inhabitants to fix certain times in which the statute duty shall not be called for.

(6) Width of Highways.

By 13 Geo. III. c. 78, s. 15, "the said surveyors of the highways shall, and they are hereby required to make, support, and maintain, or cause to be made, supported, and maintained, every public cart-way leading to any market-town, twenty feet wide at the least, and every public horse-way or drift-way, eight feet wide at the least, if the ground between the fences inclosing the same will admit thereof."

See further as to the widening, diverting, and changing highways, post, 37.

(a) Form (24), post.

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DIRECTION

POSTS, &c.

13 Geo. 3, c. 78.

Direction-posts

(7) Direction-posts, Mile-stones, Water-marks, and Battlements of Bridges, &c.

By stat. 13 Geo. III. c. 78, s. 26, "and, for the better convenience of trawhere and how to vellers, where several highways meet," it is enacted, "that the said justices, at

be erected (b).

Penalty on persons damaging banks,

causeways, direction-posts, mile

of bridges, &c.

some special sessions to be held for the purposes of this act, shall issue their precept (a), to the surveyor of the highways for any parish, township, or place, where several highways meet, and there is no proper or sufficient direction-post, or stone, already fixed or erected, requiring him forthwith to cause to be erected or fixed, in the most convenient place where such ways meet, a stone or post, with inscriptions thereon, in large legible letters, painted on each side thereof, containing the name or names of the next markettown or towns, or other considerable place or places to which the said highways respectively lead; and also at the several approaches or entrances to such parts of any highways as are subject to deep or dangerous floods, graduated stones or posts, denoting the depth of water in the deepest part of the same; and likewise such direction-posts or stones as the said justices shall judge to be necessary, for the guiding of travellers in the best and safest tract through the said floods or waters; and the said surveyor shall be reimbursed the expenses of providing and erecting the same respectively, out of the monies which shall be received by him or them, pursuant to the directions of this act; and in case any surveyor shall, by the space of three months after such precept to him directed and delivered, neglect or refuse to cause such stones or posts to be fixed as aforesaid, every such offender shall forfeit the sum of 20s.'

Sect. 52. "And whereas in some places it hath been and may be found necessary, and the surveyors are hereby authorized and required, to secure horse-causeways and foot-causeways, by posts, blocks, or great stones, fixed stones, battlements in the ground, or by banks of earth cast up, or otherwise, from being broken up and spoiled with waggons, wains, carts, or carriages; and forasmuch as several evil-disposed persons, do or may wilfully or wantonly pull up, cut down, and remove or damage the said posts, blocks, and great stones so fixed, or to be fixed as aforesaid, and drive carriages upon such banks and causeways, or against the sides thereof, and also dig or cast down the said banks, which are the securities and defence of the said causeways, whereby the causeways or banks are often ruined and destroyed; and such evil-disposed persons do or may break, damage, or throw down the stones, bricks, or wood, fixed upon the parapets or battlements of bridges, and do or may pull down, destroy, obliterate, or deface, any mile-stone or post, graduated or direction post or stone, erected or to be erected upon any highway: for prevention thereof," it is enacted, "that every person who shall be guilty of any such offence shall, upon complaint thereof made to any justice of the peace of the limit where the same shall be proved to be done, by the oath of any one credible witness, or upon view of the justice himself, forfeit for every of the said offences any sum not exceeding 57., nor less than 10s.; and in default of payment thereof, shall be committed to the house of correction of such limit, there to be whipped, and kept to hard labour for any time not exceeding one calendar month, nor less than seven days, at the discretion of such justice."

It were much to be wished, that every town or village should be compellable to notify, either on the market place, church, or other obvious place, in addition to the name of such town or village, its relative distance from the adjacent market towns, as well as from the metropolis. It were also to be wished, that the penalty in the above clause extended to persons riding on horseback over foot-causeways. See stat. 3 Geo. IV. c. 126, s. 119, post, tit. Highways, Turnpike.

(a) Form (25), post.

(b) See a similar provision as to posts,

in the turnpike act, 3 Geo. IV. c. 116, s. 119, post, highways, Turnpike.

IX. Widening, Changing, and Stopping up Highways (a).

UNDER this important branch of the subject of highways, will be considered: 1. How a Highway may be widened, changed, or stopped up, at Common Law; 2. How it may be so under the Statutes relating thereto; And, lastly, the Decisions on those Statutes.

(1) By the Common Law]—By the common law an ancient highway cannot be changed, without the king's licence first obtained upon a writ of ad quod damnum, and an inquisition thereon found, that such a change will not be prejudicial to the public: and it is said, that if one change a highway without such authority, he may stop the new way whenever he pleases; and it seemeth that the king's subjects have not such an interest in such new way, as will make good a general justification of their going in it as a common highway, but that in an action of trespass brought by the owner of the land against those who shall go over it, they ought to shew specially, by way of excuse, how the old way was obstructed, and the new one set out; also it is said, that the inhabitants are not bound to keep watch in such a new way, or to make amends for a robbery therein committed, or to repair it. 1 Haw. c. 76, s. 3; Wellb. 372.

Nor can a highway be narrowed by the common law. Fowler v. Sanden, Cro. Jac. 446.

[Note.-The writ of ad quod damnum is an original writ, issuing out of and returnable into Chancery, directed to the sheriff, to inquire by a jury whether such change will be detrimental to the public; which inquisition, being a proceeding only ex parte, is in its own nature traversable, and heretofore the party grieved might be heard against it before the Chancellor (b); but now, by stat. 55 Geo. III. c. 68, s. 3, post, 43, jurisdiction is given to the justices in sessions to hear and determine appeals concerning the same.]

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Where a new road is made in pursuance of such writ, and inquisition Repair of a road thereupon found, after the person who sued out the writ hath once made the after. said road, the parishioners ought to keep it in repair for the future; because, being discharged from the repairing of the old road, no new burden is laid upon them, but their labour is only transferred from one place to another. 3 Atk. 771.

But if the new road lie in another parish, then the person who sued out the writ, and his heirs, ought not only to make it, but to keep it in repair; otherwise the parishioners of such other parish would have a new charge upon them, and no recompense, by the former road being taken away. Ex parte Venner, 3 Atk. 772.

An highway inclosed by virtue of a special act of Parliament (for dividing and inclosing open common fields) shall continue to be repaired by the parish or township as it was before, unless otherwise directed by the act: for if he who inclosed the ground adjoining to the highway were in such case obliged to repair, it might happen that his allotment of the common would not be worth the expense of repairing the way. R. v. Flecknow, 1 Burr. 465; R. v. Mellor, Steer's Parish Law, 620. See ante, 9.

It is certain that a highway may be changed by the act of God; and By act of God. therefore it hath been holden, that if a water, which has been an antient highway, by degrees changes its course and goes over different ground from that whereon it used to run, yet the highway continues in the new channel, in the same manner as in the old. 1 Haw. c. 76, s. 4; and see Wellb. 376.

(a) See Mr. Wellbeloved's observations on this subject, in the preface to his work on Highways, p. ix. cautioning magistrates not to stop up or divert highways, unless for the benefit of the public.

(b) In Rex v. Justices of Essex, 1 B. & A. 373, it was decided, that, upon an ap

VOL. III.

E

peal against the inclosure of a highway,
by virtue of a writ of ad quod damnum,
it is incumbent on the party to give the
notices required by the 3rd section of the
55 Geo III. c. 68, post, 42; and that a
notice to the party interested is not alone
sufficient.

WIDENING,

(2) By Statute]-In aid of the common law, and to render the changing of CHANGING, &C. highways less troublesome and expensive, power is given by stat. 13 Geo. III. c. 78; and 55 Geo. III. c. 68, to justices of the peace to widen, divert, change, and stop up highways, as they shall think fit."

2. By statute.

13 Geo. 3, c. 78. Cartways to market-towns are to be made 20 feet

In order to which, it is enacted by stat. 13 Geo. III. c. 78, s. 15, "That the said surveyors of the highways shall, and they are hereby required to make, support, and maintain, or cause to be made, supported, and maintained, ways and driftways every public cartway leading to any market-town, 20 feet wide at the least; and every public horseway or driftway eight feet wide at the least, if the ground between the fences inclosing the same, will admit thereof."

wide, and horse

8 feet wide.

Justices may order

widened,

or diverted and turned.

with owners of lands for recompense;

Power to widen, divert, and stop up, on making a new Way]-The 13 Geo. narrow roads to be III. c. 78, s. 16, provides "That where it shall appear, upon the view (a) of any two or more of the said justices of the peace, that the ground or soil of any highway between the fences thereof is not of sufficient breadth, and may be conveniently widened and enlarged, or that the same cannot be conveniently enlarged, and made commodious for travellers, without diverting and turning the same; such justices shall, and they are hereby empowered, within their respective jurisdictions, to order (b) such highways (c) respectively to be widened and enlarged, or diverted and turned (d), in such manner as they shall think fit, so that the said highways, when enlarged and diverted, shall not exceed 30 feet in breadth; and that neither of the said powers do extend to pull down any house or building, or to take away the ground of any garden, park, paddock, court, or yard; and, for the satisfaction of the person or persons, bodies politic or corporate, who are seised or possessed of, or interested in their own right, or in trust for any other person or persons, in the said ground that shall be laid into the said highways respectively, so to be enlarged, or through which such highway, so to be diverted and turned, Surveyors to agree shall go, the said surveyor, under the direction and with the approbation of the said justices, shall, and is hereby empowered to make an agreement with him, her, or them, for the recompense to be made for such ground, and for the making such new ditches and fences as shall be necessary, according and in proportion to their several and respective interests therein, and also with any other person or persons, bodies politic or corporate, that may be injured by the enlarging, altering, or diverting such highways respectively, for the satisfaction to be made to him, her, or them respectively, as aforeand if they cannot said; and if the said surveyor, under the direction, and with the approbation of the said justices, cannot agree with the said person or persons, bodies politic or corporate, or if he, she, or they cannot be found, or shall refuse to treat, or take such recompense or satisfaction as shall be offered to them respectively by such surveyor; then the justices of the peace, at any general quarter sessions, to be holden for the limit wherein such ground shall lie, upon certificate in writing (e), signed by the justices making such view as aforesaid, of their proceedings in the premises, and upon proof of 14 days' notice in writing having been given by the surveyor of such parish, township, or place, to the owner, occupier, or other person or persons, bodies politic or corporate, interested in such ground, or to his, her, or their guardian, trustee, clerk, or agent, signifying an intention to apply to such quarter sessions for the purpose of taking such ground, shall impanel a jury of twelve disinterested men, out of the persons returned to serve as jurymen at such quarter sessions; and the said jury shall, upon their oaths, to the best of jury at the quarter their judgment, assess the damages to be given, and recompense to be made, to the owners and others interested as aforesaid in the said ground, for their respective interests, as they shall think reasonable, not exceeding 40 years'

agree,

to be assessed by

sessions.

(a) Post, 43.

(b) Form (26), post.

(c) Extends to highways repairable ratione tenuræ. R. v. Balme, Cowp. 648, post, 43.

(d) This is the only act which gives the justices power to divert and turn, without the consent of the proprietors of

the land through which the new road is to be carried. Under this act, no power exists to discontinue any unnecessary highway, without first assigning some new road in lieu thereof. See this remedied by the 55 Geo. III. c. 68, post, 42; Caldecot, 228.

(e) Form (27), post.

WIDENING,

purchase for the clear yearly value of the ground so laid out, and likewise such recompense as they shall think reasonable for the making of new CHANGING, &c. ditches and fences on the side or sides of the said highways that shall be so enlarged or diverted, and also satisfaction to any person or persons, bodies politic or corporate, that may be otherwise injured by the enlarging or diverting the said highways respectively.

on payment of

money assessed, ed a public high

ground to be deem

way.

where there is not money sufficient, assessments may be

"And, upon payment or tender of the money so to be awarded and assessed to the person or persons, bodies politic or corporate, entitled to receive the same, or leaving it in the hands of the clerk of the peace of such limit, in case such person or persons, bodies politic or corporate, cannot be found, or shall refuse to accept the same, for the use of the owner of or others interested in the said ground, the interest of the said person or persons, bodies politic or corporate, in the said ground, shall be for ever divested out of them, and the said ground, after such agreement or verdict as aforesaid, shall be esteemed and taken to be a public highway, to all intents and purposes whatsoever; saving nevertheless to the owner or owners of such ground, all mines, minerals, and fossils, lying under the same, which can or may be got without breaking the surface of the said highway; and also all timber and wood growing upon such ground, to be fallen and taken by such owner or owners within one month after such order shall have been made, or, in default thereof, to be fallen by the said surveyor or surveyors, within the respective months aforesaid, and laid upon the land adjoining, for the benefit of the said owner or owners; and where there shall not appear sufficient money in the hands of the surveyor or surveyors, for the purposes aforesaid, then the said two justices, in case of agreement, or the said court of quarter sessions, after such verdict as aforesaid, shall order an equal assessment to be made, levied, and collected, upon all and every the occupiers of lands, tenements, woods, tithes, and hereditaments, in the respective parishes, townships, or places, where such highways shall lie, and direct the money to be paid to the person or persons, bodies politic or corporate, so interested, in such manner as the said justices or court of quarter sessions respectively, shall direct and appoint; and the money thereby raised shall be employed and accounted for, according to the order and direction of the said justices, or court of quarter sessions respectively, for and towards the purchasing the land to enlarge or divert the said highways, and for the making the said ditches and fences, and also satisfaction for the damages sustained thereby; and the said assessment, if not paid within ten days after demand, shall, by order of the said justices or court of quarter sessions respectively, be levied by the said surveyor, in the manner hereinafter mentioned (a): provided, that no such assessment not exceeding Gd. to be made in any one year shall exceed the rate of sixpence in the pound in the pound. of the yearly value of the lands, tenements, woods, tithes, and hereditaments so assessed." Vide stat. 54 Geo. III. c. 109, post, 48.

Sect. 17. "When any such new highways shall be made as aforesaid, the old highway shall be stopped up, and the land and soil thereof shall be sold by the said surveyor, with the approbation of the said justices (c), to some person or persons whose lands adjoin thereto, if he, she, or they shall be willing to purchase the same; if not, to some other person or persons, for the full value thereof. But if such old road shall lead to any lands, house, or place, which cannot, in the opinion of such justices respectively, be accommodated with a convenient way and passage from such new highway, which they are hereby authorized to order and lay out, if they find it necessary, then and in such case, the said old highway shall only be sold, subject to the right of way and passage to such lands, house, or place respectively, according to the antient 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 highway shall be made; and upon payment or tender of the money so to be agreed for as aforesaid, and upon

(a) See ante, 31, as to the mode of levying it.

(b) See post, 45; and see some sen

sible observations by Mr. Wellbeloved,
in his work, pp. 29, 30.
(c) Form (28), post.

raised by order of

the justices at their quarter sessions,

old way may be
stopped up and the
new way is
made (6).

land sold, where a

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