WIDENING, a certificate (a) being signed by the said two justices, or by the chairman CHANGING, &C. of the said court of quarter sessions, in case the same shall be determined there, describing the lands so sold, and expressing the sum so agreed for, and directing to whom the same shall be paid, and upon the purchaser's taking a receipt (b) for such purchase-money from the person entitled to receive the same, by an indorsement on the back of such certificate, the soil of such old highway shall become vested in such purchaser and his heirs. But all mines, minerals, and fossils, lying under the same, shall continue to be the property of the person or persons who would, from time to time, have been entitled to the same, if such old highway had continued there." Costs of proceedings. Highways which have been turned above 12 months, commenced (c). Sect. 18. "In case such jury shall give in and deliver a verdict for more monies as a recompense for the right, interest, or property of any person or persons, bodies politic or corporate, in such lands or grounds, or for the making such fence, or for such damage or injury to be sustained by him, her, or them respectively, as aforesaid, than what shall have been proposed and offered by the said surveyor before such application to the said court of quarter sessions as aforesaid, that then and in such case the costs and expenses attending the said several proceedings shall be borne and paid by the surveyor of the said highway, out of the monies in his or their hands, or to be assessed and levied by virtue and under the powers of this act: but if such jury shall give and deliver a verdict for no more, or for less monies than shall have been so offered and proposed by the said surveyor, before such application to the said court of quarter sessions, that then the said costs and expenses shall be borne and paid by the person or persons, bodies politic or corporate, who shall have refused to accept the recompense and satisfaction so offered to him, her, or them as aforesaid." By sect. 19, "And where any highway, bridleway, or footway hath been diverted and turned above twelve months, either from necessity, where the and no prosecution same have been destroyed by floods, or slips of the ground on which they were made, or from other causes and motives, if new highways, bridleways, or footways have been made in lieu thereof, nearer or more commodious to the public, and the same have been acquiesced in, and no suit or prosecution hath been commenced for the diverting or turning the same, every new highway, bridleway, or footway, set out and used in the place of that so diverted and turned, shall from henceforth be the public highway, bridleway, or footway, to all intents and purposes whatsoever; and all persons liable to the repair of any such old highways, bridleway, or footway, so diverted and turned, or to be diverted and turned as aforesaid, shall, in the same manner, be and continue liable to the repair of such new highways, bridleway, or footway, except where any agreement shall have been made relative to such repairs between the parties interested therein, which hath laid the burthen thereof, or of any part thereof, upon any other person or persons, in which case the same shall be observed.' In what cases, &c. the old highways, or the lands lying between the fences inclosing the same, shall be disposed of (d). Sect. 20, provides, "That no common land, lying between the fences of any old highway to be stopped up or inclosed by virtue of this act, shall be inclosed; and where the land lying between the fences of such highway, not being common land, shall, upon a medium, exceed thirty feet in breadth, and not extend to fifty feet in breadth, the same shall not be stopped up or inclosed until satisfaction shall be made to the owner of such land for so much thereof as shall exceed the said breadth of thirty feet; and if the parties cannot agree in the satisfaction so to be made, the same shall be adjusted by the said justices or the jury, if a jury shall be impanelled; and if the land between the fences inclosing such highways, not being common land, shall exceed fifty feet in breadth upon a medium, or if the said old road so to be diverted or turned shall lie through the open field or ground belonging to any particular person or persons, such person or persons, and also the person or persons entitled to the land between the fences (a) Form (29), post. (c) The prior part of this section is Waite v. Smith, 8 T. R. 133. (d) The provisions in the turnpike act relating to these matters are contained in the 3 Geo. IV. c. 126, s. 86. WIDENING, on the side of such highway, shall respectively hold and enjoy the land and soil of such old highway, and pay to the surveyor, for the use of the high- CHANGING, &c. ways, so much money as shall be agreed upon between the parties, or, if they cannot agree, so much as shall be deemed and adjudged by the said justices or jury, if such jury shall be impanelled as aforesaid, to be adequate to the purchase of it, estimating such highway at thirty feet in breadth, upon an average." Sect. 21. "That where any footway shall be diverted by virtue of this act through the land belonging to the same person who owned the land through which such old footway lay, the same shall be adjudged and deemed an exchange only, and no satisfaction or compensation shall be made, unless the land to be used for such new footway shall be of greater length and of greater value than the land used for such old footway; and where the said footway shall not be turned through the lands belonging to the same person, the damage occasioned by such old footway to the lands through which it lay, if the parties interested shall not agree in adjusting the same, shall be adjudged by two indifferent persons, the one to be named by the owner of the land, and the other by the said two justices; and if the persons so to be nominated cannot agree therein, they shall choose some third person to adjudge the same, whose determination shall be final; and the money at which such damages shall be assessed shall be applied in making satisfaction to the owner or owners of the land through which such new footway shall be made." Sect. 22. "That if in any parish, township, or place, where any highway shall be diverted and turned by virtue of this act, it shall appear to the justices who are hereby authorized to view or inquire into the same, that there are other highways within such parish, township, or place, besides that so to be diverted and turned, which may without inconvenience to the public be diverted into such new highway hereby authorized to be made, or into any other highway or highways within such parish, township, or place, and the charge of repairing such highway or highways may be thereby saved to such parish, township, or place, it shall and may be lawful for such justices to order such highway or highways which shall appear to them unnecessary, to be stopped up, and the soil thereof sold, in such manner and subject to such restrictions (b), and such right of appeal to the party or parties aggrieved thereby, as are hereinbefore respectively directed and given concerning the highways to be stopped up or inclosed." Power to stop up Ways without making new ones, and other Provisions as to diverting-Justices had power to stop up roads under the general highway act, 13 Geo. III. c. 78, s. 19, in cases only where a new road was set out. Page v. Howard, Cald. 228. And it was not sufficient that another old highway was widened in parts to answer the purpose of a new road. And if a new highway had been set out before the old one was stopped up, the legality of the orders of the justices for diverting the old road, and stopping it up, might have been questioned in an action of trespass, notwithstanding such orders were confirmed by the sessions on appeal, stating the fact of a new road being set out in lieu of the old one. Welch v. Nash, 8 East, 394. These decisions occasioned the passing the following statute, 55 Geo. III. c. 68, which enables justices at sessions to stop up an unnecessary way without giving a new one. When old footways are stopped up and new ones laid out, in what manner owners of and receive satisfaction (a). lands shall make Justices to order unnecessary high ways to be stopped up. Power to stop up making new ones, and other proverting, &c. ways without visions as to di 13 Geo. 3, c. 78, s. by 55 Geo. 3, c. 68. 19, repealed in part The 19th sect. of 13 Geo. III. c. 78, enacted, that highways, bridleways, and footways might be diverted by the justices at their special sessions, with the consent of the owner of the lands, so as to make them nearer and more commodious to the public; and provided for an appeal to the quarter sessions by the persons injured by any such proceedings, or by the inclosure of any road by an inquisition upon a writ of ad quod damnum : but this part of the section is repealed by stat. 55 Geo. III. c. 68, s. 1, 55 Gen. 3, c. 68. which recites that it is expedient that more public notice should be given (a) The provisions in the turnpike act relating to these matters, are con tained in the 3 Geo. IV. c. 126, s. 89. now embodied in 5,614 ch 50. WIDENING, of any order made, or proceeding had, for diverting, turning, stopping, and CHANGING, &c. inclosing any highway, bridleway, or footway; and also that a greater facility of appeal to the quarter sessions against such order or proceeding should be given to any person or persons who may think themselves aggrieved thereby; and it is also expedient that his Majesty's justices of the peace should have power, under certain regulations, to stop up unnecessary highways, bridleways, and footways.' The 55 Geo. III. c. 68, s. 2, enacts, "That when it shall appear, upon the view (a) of any two or more of the said justices (b) of the peace, that any public highway, or public bridleway, or footway, may be diverted, so as to make the same nearer or more commodious to the public, and the owner or owners of the lands and grounds through which such new highway, bridleway, or footway, so proposed to be made, shall consent thereto, by writing (c) under his or their hand and seal, or hands and seals (d), it shall and may be lawful, by order of such justices, at some special sessions (e), to divert, and turn, and to stop up such footway, and to divert, turn, stop up, and inclose, sell, and dispose of such old highway or bridleway, and to purchase the ground and soil for such new highway, bridleway, or footway, by such ways and means, and subject to such exceptions and conditions, in all respects, as in the said recited act mentioned with regard to highways to be widened or diverted; and also when it shall appear, upon the view (f) of any two or more of the said justices of the peace, that any public highway, bridleway, or footway, is unnecessary, it shall and may be lawful, by order of such justices, or any two of them, to stop up, and to sell and dispose of such unnecessary highway, bridleway, or footway, by such ways and means, and subject to such excep tions and conditions in all respects, as in the said recited act is mentioned, in regard to highways to be widened and diverted; except that the money to arise from such sale, where, by the said act, it would be applicable to the purchase of the ground and soil of the new highways or bridleways therein mentioned, shall be paid to the surveyor or surveyors, and be applied towards the general repairs of the highways and bridleways of the parish, township, or place, within which the said highway, bridleway, or footway, so stopped up, shall be situate: provided, that, in the several cases beforementioned, a notice, in the form or to the effect of schedule (g), to this act annexed, shall be affixed in legible characters at the place and by the side of the said highway, bridleway, or footway, from whence the same is directed to be turned, diverted, or stopped up, and also inserted in one or more newspaper or newspapers, published, or generally circulated, in the county where the parish, township, or place, in which the highway, bridleway, or footway, so ordered to be diverted and turned, or stopped up, (as the case may be), shall lie, (or, in case no such newspaper shall be so published or circulated in such county, then in any newspaper or newspapers published or circulated in the nearest adjoining county), for three successive weeks after the making of such order; and a like notice shall be affixed to the door of the church or chapel of every parish or township in which such highway, bridleway, or footway, so ordered to be diverted, turned, or stopped up, or any part thereof, shall lie, on three successive Sundays subsequent to the making of such order; and the said several notices (h) having been so published, the said order shall, at the quarter sessions which shall be holden within the limit where the highway, bridleway, or footway, so diverted and turned, or stopped up, shall lie, next after the expiration of four weeks from the first day on which such notices shall have been published as aforesaid, be returned to the clerk of the peace in open court, and lodged with him; and the said order shall at such quarter sessions be confirmed (i), (a) Post, 43. (b) Post, 43, Form (31), post. (c) Form (32), post. (d) See R. v. Justices of Denbighshire, 2 D. & R. 52; 1 B. & C. 21, S. C.; R. v. (e) As to the notices, &c. post, 44. 8 B. & C. 254; post 43, 44. 46. (g) Form (33), post. (h) As to such notices, post, 45. and by the clerk of the peace enrolled amongst the records of the said court of quarter sessions." Sect. 3, provides, "That where any such highway, bridleway, or footway, shall be so ordered to be stopped up or inclosed, and such new highway, bridleway, or footway, set out and appropriated in lieu thereof as aforesaid, or where any unnecessary highway, bridleway, or footway, shall be so ordered to be stopped up as aforesaid, it shall and may be lawful for any person or persons injured or aggrieved by any such order or proceeding, or by the inclosure of any road or highway, by virtue of any inquisition taken upon any writ of ad quod damnum, to make his or their complaint thereof, by appeal to the justices of the peace at the said quarter sessions, upon giving ten days' notice in writing of such appeal to the surveyor of the highways of the parish, township, or place, wherein such highway, bridleway, or footway, shall be situated; and also affixing such notice to the door of the church or chapel of such parish, township, or place: and the said court of quarter sessions is hereby authorized and empowered to hear and finally determine such appeal." Sect. 4, enacts, "That if no such appeal be made, or, being made, such order and proceedings shall be confirmed by the said court, the said inclosures may be made, and the said ways stopped; and the proceedings thereupon shall be binding and conclusive to all persons whomsoever; and the new highways, bridleways, and footways, so to be appropriated and set out, shall be and for ever after continue a public highway, bridleway, or footway, to all intents and purposes whatsoever; but no inclosures of such old highways, bridleways, or footways, (except in the case of stopping up of such useless highways, bridleways, or footways, as hereinbefore is mentioned), shall be made, until such new highway, bridleway, or footway, shall be completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof; which certificate shall be returned to the clerk of the peace, and by him enrolled amongst the records of the court of quarter sessions, next after such order as aforesaid shall have been confirmed or enrolled pursuant to the directions hereinbefore contained; but from and after the enrolment (c) of such order and certificate, such old highway, bridleway, or footway, shall be stopped up, and the soil of such old highway or bridleway sold, in the manner, and subject to the reservations and restrictions in the said recited act mentioned, with respect to highways to be diverted by virtue of the said recited act." Sect. 5. Provides that this act shall not annul or affect any order or proceeding made or had previous to the passing of the act. Highways may also be extinguished or formed under inclosure acts. See Inclosure acts. post, tit. Enclosure, Vol. III.; ante, 37. (3) Construction of, and Decisions upon, the Enactments]—It has been decided, that the power thus given to two justices to order any highway to be widened, extends to roads repairable ratione tenure; and that upon disobedience to such order, the party may either be proceeded against summarily under the statute, or by an indictment for an offence at common law. R. v. Balme, 2 Coup. 648; 1 Haw. c. 76, s. 57; 1 Russ. 454. A view 3. Decisions upon statutes. Roads repaired ra tione tenura. The order for the diversion must be made upon the view of two justices, View of justices. and that must appear on the order. An order, wherein it was said, "we having upon view found, or, it having appeared," was held bad. perhaps is unnecessary for stopping up an unnecessary highway, under 13 Geo. III. c. 78, s. 22, per Littledale, J., in R. v. Justices of Worcester, 8 B. & C. 254; 2 M. & R. 288, S. C. Sed quære. The words " any two or more of the said justices," in the 55 Geo. III. What justices. c. 68, s. 2, ante, 42, mean justices at special sessions, and therefore the or der must appear on the face of it to be made there. R. v. Sheppard, 3 B. & A. 414. (a) As to this appeal, see post, 46. (b) See the 19th sect. of 13 Geo. III. c. 78, ante, 40. (c) In the repealed part of the 19th sect. of stat. 13 Geo. III. c. 78, the words WIDENING, Notices for ses Where, however, the court of quarter sessions confirmed an order of two CHANGING, &c. justices for stopping up a highway, without proof that the order was previously made at a special sessions; and an application being made to the Court of King's Bench for a mandamus to enter continuances, the Court would not interfere, the sessions having already decided upon a point peculiarly within their jurisdiction. 1 Chit. Rep. 164. sions. Inclosure act. Consent of owner. The 61st sect. of 13 Geo. III. c. 78, post, 48, is applicable to proceedings by order of two justices, under 55 Geo. III. c. 68, s. 2, by the express words of that act; it is therefore necessary to give reasonable notice of the special sessions, at which any such order is to be made, to all the several justices acting and residing within the division; and that, unless such notices be given, the sessions ought not to confirm and enrol such order, even though there be no appeal against it. R. v. Worcestershire Justices, 2 B. & A. 228. The notice must be given by the high constable or other proper officer. R. v. Justices of Suffolk, 6 B. & C. 110; D. & R. 111, S. C. ut if reque Where the notice of holding a special sessions for making an order to divert a public footway under this act was served on the justices of the district by the magistrate's clerk, and not by the high constable; it was held, that the proceeding was irregular. R. v. Justices of Surrey, 5 B. & C. 241; 7 D. & R. 857, S. C. A common footway passed over a common, into and across a farm yard into a public highway; a local act for inclosing the common, empowered the commissioners to stop up roads over it, provided that they should not stop up any old road leading over other land, not to be inclosed without the concurrence of two magistrates. The commissioners stopped up the public footway over the farm yard, without the concurrence of two magistrates; and it was held, that the public right of way over the farm yard was not extinguished, for the concurrence of two magistrates was necessary under sect. 8 of the general inclosure act, 41 Geo. III. c. 109, in order to extinguish the public right of way over the new inclosure, as well as that over the old. Logan v. Burton, 5 B. & C. 513; 8 D. & R. 299, S. C.; Harber v. Rand, 9 Price, 58, S. P.; post, Enclosure, Vol. III. An order made by justices under the first part of sect. 2, of 55 Geo. III.c. 68, ante, 42, for stopping up an old highway, and setting out a new one, must be made, and shew that it was made with the consent in writing, under the hand and seal of the owner (at the time of the order) of the land through which the new highway is proposed to be made; and therefore, where an order, made under that statute, recited that the justices had received evidence of the consent of J. T., Esq., "in his life-time," to the new road being carried through his lands, by writing under his hand and seal, and it appeared that another person was owner of the land at the time the order was made; it was held that such order was insufficient, and could not be carried into execution. R. v. Justices of Denbighshire, 2 D. & R. 52; R. v. Kirk, 1 B. & C. 21, S. C. Quære, whether the owner of an estate may revoke a consent given by a former owner, who was alive and consenting at the time the order was made. See Id. It is unnecessary to state the consent of trustees of a turnpike road, over which the new path was turned, for they have no interest in the soil. Davison v. Gill, 1 East, 69. Where an order of justices for turning a footpath was founded upon a consent, signed and sealed by the attorney and agent of the parties in and through whose ground the new road was to pass, there being nothing to bind the principal; it was held ill, and quashed by the Court, after confirmation by sessions. R. v. Crewe, 3 D. & R. 6; R. v. Justices of Kent, 1 B. & C. 622, S. C. The form of the order in the schedule to the act leaves a blank for the owner's name; but Bayley, J., has thought this only directory. R. v. Cassen, 3 D. & R. 36. If the owner of the land does not consent, the proceedings must be under the 13 Geo. III. c. 78, s. 16, ante, 38, for that is the only clause enabling justices to proceed without such consent. |