WIDENING, Where the proceedings are to divert a highway, a new way, it seems, must be set out before the old one can be stopped up. Substituting, as a CHANGING, &c. new highway, a lane previously existing, and which the justices had enlarg- Setting out the ed and made more commodious for the public, by adding to it along new way. one side of the way, but the boundary of the lane on the other side continuing the same as it formerly had been, was, in Welch v. Nash, 8 East, 394, held insufficient. If a new highway be not set out before the old one be stopped up, the legality of the orders of the justices, for diverting the old road and stopping it up, may be 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. S. C. It is not, however, necessary for stopping up a road under an order of justices, that they should, by their order, substitute a new road reaching the whole distance from the terminus a quo to the terminus ad quem. It suffices, if they set out a new road leading from the terminus a quo into a public highway, along which, and other highways connected with it, the subject may pass to the terminus ad quem. De Ponthieu v. Pennyfeather and anther, 5 Taunt. 634; 1 Marsh. 261, S. C. The exact length and breadth of the way should be set out in the order, that the public may know what they have a right to use. The omission of it would vitiate the order. Therefore, where the order referred to a plan annexed, which contained these requisites, but it did not state that the new path was set out according to it, it was held bad. Davison v. Gill, 1 East, 64, 70. R. v. Kenyon, 6 B. & C. 640, infra. The order in that case was made under 13 Geo. III. c. 78, which says, the form in the schedule shall be used, s. 69; and under 55 Geo. III. c. 68, s. 2, the order is subject to such exceptions and conditions as the former act required. E. F. J. H. An order was made for diverting a way, J. H. into E. F.; F. H. was an old, J. E. a new turnpike road. Before the order was made, the public going from J. to F. went by H. This order is bad, because the public have no permanent right to the use of the turnpike road J. E., for, if made under the local act, it would cease with the term of the act; and if made under the general act, it should have been so stated on the order; for, if the order was good to stop up J. H., no permanent road is provided from J. to F. R. v. Winter, 8 B. & C. 785. Where a way is stopped up, and another made in another place, this is not a diversion. Ashburnham v. Cornwallis, And. 234. An order for stopping a footway as unnecessary must state the parish in which the lands lie, and the length and breadth of the way. R. v. Kenyon, 6 B. & C. 640. What a diversion. Stopping up unnecessary way. Form of orders, &c. Great care should be taken in drawing up the orders and notices required by the acts. A material variance from the prescribed form would be fatal. Several instances of fatal defects have been already noticed. It seems that there must be a separate order for stopping up each indi- Separate orders vidual way, so that two or more ways cannot be comprised in one order. R. v. Kenyon, 6 B. & C. 645; Wellb. 401, n. where two ways. Notices after order When a highway is diverted, three descriptions of notices are required by the 55 Geo. III. c. 68, s. 2, viz. a notice affixed by the side of the road, a made. notice advertised in a newspaper, and a notice affixed to the church door. And the order is to be confirmed and enrolled at the quarter sessions held next after the expiration of four weeks from the first day of giving such notice, that is, from the first day of giving that description of notice which is last published. R. v. Justices of Kent, 1 B. & C. 622; R. v. Crewe, 3 D. § R. 6. It has been doubted whether, in the case of stopping up a way under an inclosure act, the commissioner is bound to give the notices required by the 55 Geo. III. c. 68. R. v. Townsend, 5 B. & A. 424, see post, 47. With respect to the sale of the old highway, in the case of R. v. Kenyon, Sale of old high6 B. & C. 640, two justices, by an order made in petty sessions, certified, that way. WIDENING, three several footways did appear to them to be unnecessary, and therefore CHANGING, &C. they did order the said footways to be stopped up. It was contended, that this order was incorrect, for not providing for the sale of the footpaths. And the objection was admitted by the Court. Per Bayley, J.-"As to the other objection, I agree that, under the 13 Geo. III. c. 78, no power is given to stop up any highway, bridleway, or footway, unless another is substituted for it. But the 55 Geo. III. c. 68, s. 2, provides first for the case of substituting a new way for an old one, and then follows the provisions upon which this question turns and also, when it shall appear upon the view 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.' It is argued, that the legislature never intended to extend this power of sale to an old footway; but, referring to the former statute 13 Geo. III. c. 78, it seems clear that such was their intention. By that statute no power was given to stop up an old footway, without making a new one; but whenever that was done, the old footway was in some mode or other to be disposed of, although not by sale. The subsequent statute having given power to stop up unnecessary footways, it was reasonable that the legislature should make a provision for converting them into money for the use of the public. If the justices are to make an order to stop up and sell, it cannot be good unless it applies to both. The provision for each of these acts must be made at the same time, or if that be otherwise, still it is necessary that the order should state the length and breadth of the road stopped up, in order that it may be known what is to be afterwards sold." Confirmation of order. Enrolment of order. Certiorari. Appeal (a). An order made under this act cannot be confirmed till the sessions held next after the expiration of four weeks from the first day on which the notices required by law have been published; and therefore, where an order was made for diverting a path, and notice thereof was given on the 20th of December, and it was confirmed at sessions on the 17th of January, it was held irregular, and quashed. R. v. Crewe, 3 D. & R. 6; R. v. Justices of Kent, 1 B. & C. 622, ante, 44. If the order be not made at a special session of justices, the court of quarter sessions are bound to refuse a confirmation of the order, although no appeal be made to them. R. v. Sheppard, 3 B. & A. 414; and so if the order be not made at a special session, properly convened by notices, &c. R. v. Justices of Worcestershire, 2 B. & A. 228, ante, 44. If the sessions improperly refuse to confirm the order, the course to be pursued, in order to force them to confirm it, is by motion in the Court of King's Bench, for a mandamus to the justices of the county to confirm it. See R. v. Justices of Worcestershire, 2 B. & A. 228; R. v. Justices of Surrey, 5 B. & C. 241; and R. v. Justices of Suffolk, 6 B. & C. 110. If the order has been delivered to the clerk of the peace for enrolment, the statute is satisfied, though no transcript has been made. It is directory only as to the enrolment, and it is doubtful if any transcript is required. De Ponthieu v. Pennyfeather, 5 Taunt. 634; 1 Marsh. 261, S. C. Although the statute declares the order to be final and conclusive, yet as it does not expressly take away the certiorari, it may be removed by certiorari into the Court of King's Bench, accompanied by a motion to quash the order; and if the order of sessions is quashed, the original order falls with it. 1 B. & C. 622; and see R. v. Kirk, 1 B. & C. 21; R. v. Townsend, 5 B. & A. 420; R. v. Sheppard, 3 B. & A. 414; R. v. Kenyon, 6 B. & C. 640. The right of appeal against an order for diverting a highway, depends upon the 55 Geo. III. c. 68, s. 3, ante, 43, and not upon the 80th section of the General Highway Act, 13 Geo. III. c. 78. R. v. Wing, 6 D. § R. 323; 4 B. & C. 184, S. C. Under the repealed part of the 19th section of the 13 Geo. III. c. 78, ante, (a) As to appeal in general, see Vol. I. Appeal. WIDENING, CHANGING, &C. 41, as to appeal, it should seem, that where an order of justices has been made It was also held under the same section, that the appeal must be made to the quarter sessions next after the order made, without reference to any notice received by the appellant of such order. R. v. Staffordshire Justices, 3 East, 150. Semble, these decisions will apply to the 55 Geo. III. c. 68, s. 3. It should seem, that if two orders be made by the justices, the one for diverting and turning a public way, and the other for stopping up the old way, they are to be considered as so distinct from one another, that an appeal may be made against each separately, and the time within which to appeal against either order, must run from its individual commencement. R. v. Justices of Hertfordshire, 3 M. & S. 459. By a clause in an inclosure act, a commissioner was authorized to stop up any way, provided it be done by the order, and with the concurrence of two justices, and that order was to be subject to an appeal in like manner, and under such form and restrictions, as if the same had been originally made by such justices. By a subsequent clause, any party aggrieved was to be at liberty to appeal at any time within six months after the cause of complaint. Under this act, the commissioner, with the concurrence and order of two justices, stopped up a road without giving the public notices required by the 55 Geo. III. c. 68; and it was held, that a party aggrieved might, under these circumstances, appeal at any time within six months. R. v. Townsend, 5 B. & A. 420. A notice of appeal by an inhabitant of a parish, against an order for stopping up an unnecessary public footway, under the authority of this act, must state that the appellant is "injured" or "aggrieved," pursuing the language of sect. 3, ante, 43, or his appeal will fail. R. v. Justices of Essex, 5 B. & C. 431; 7 D. & R. 658, S. C. In an appeal against an inclosure of a highway, by virtue of a writ of ad quod damnum, the notices required by the 55 Geo. III. c. 68, must be given, and a notice to the party interested is not alone sufficient. R. v. Justices of Essex, 1 B. & A. 373. If an appeal be actually lodged against the order of the two justices, but the court of quarter sessions refuse to hear such appeal, then the party appealing, if he be dissatisfied, should move the Court of King's Bench for, and obtain a mandamus, commanding the justices of the county, at the next general quarter sessions, to receive the appeal, and cause continuances to be entered, and to hear and determine the case. See 7 T. R. 81; 2 East, 213; 3 East, 151; 5 B. & C. 431; 1 B. & A. 373; 3 M. & S. 459. With respect to costs, the 80th sect. of the 13 Geo. III. c. 78, gives an Costs. appeal, and awards costs, under certain restrictions, to any person aggrieved by proceedings under the act, and for which no particular method of relief had been therein already appointed. But, as an appeal and other mode of relief is given by the 19th section, ante, 43, in the particular case of the diverting of ways by order of two justices, the 80th section is not applicable to these proceedings. Therefore, where notice of appeal against an order for diverting a footway was given, and the order was not filed with the clerk of the peace for enrolment, but the justices gave the appellant notice that they intended to abandon the order, it was held that the justices at the sessions had no power to award to the appellant the costs of preparing to try the appeal, which he claimed under the 80th section. R. v. Wing, 4 B. & C. 184; 6 D. & R. 323, S. C. 13 Geo. 3, c. 78. Inhabitants at a X. The Justices and Sessions for Highways. Justices]-By the 13 Geo. III. c. 78, s. 53, the justices of the peace of all cities, corporations, boroughs, and other places, are hereby required to put in execution every part of this act within their respective jurisdictions. And by the 54 Geo. III. c. 109, s. 8, "The justices of the peace, and magistrates of all cities, corporations, boroughs, precincts, liberties, and other separate jurisdictions, are hereby authorized and required to put in execution every part of this act, within their respective jurisdictions, so far as the provisions thereof are applicable, in as full and ample a manner as the justices of any county or of any division thereof." By the 77th sect. of 13 Geo. III. c. 78, the justices are authorized to administer oaths, post, 77. Sessions]-By statute 13 Geo. III. c. 78, s. 1, post, 49, 50, the justices shall hold a special sessions for the highways, in the week next after the Michaelmas general quarter sessions yearly. By stat. 55 Geo. III. c. 68, s. 6, after reciting, that whereas, by an act passed in the 54th year of his present majesty, intituled An act to amend an act of the thirteenth year of his present majesty, it is among other things enacted, that two or more justices of the peace, at their special sessions to be holden in the week next after Michaelmas yearly, shall fix such rates as they shall adjudge reasonable, as a composition in lieu of teams, carts, horses, oxen, or labour: and whereas certain other matters relative to the highways are directed to be done by justices of the peace, at their special sessions to be holden in the week next after the Michaelmas quarter sessions: and whereas the time for holding the Michaelmas quarter sessions has been altered by an act made in the 54th year of his present majesty, intituled An act for regulating the time of holding the Michaelmas quarter sessions;' it is therefore enacted, "that it shall and may be lawful for the justices of the peace, assembled in their special sessions in the week after Michaelmas, to do and perform every act which they might heretofore legally have done in the special sessions directed to be holden in the week after the said Michaelmas general quarter sessions of the peace." This act is merely directory, and the sessions may, notwithstanding, be holden at another time. R. v. Justices of Leicester, 7 B. & C. 6. By stat. 13 Geo. III. c. 78, s. 61, "It shall be lawful for any two or more justices of the peace within their respective limits, and they are hereby empowered, from time to time, whenever they shall judge proper, to hold any special sessions, besides that which is hereinbefore directed, for executing the purposes of this act; and to adjourn the same from time to time, as they shall think fit, causing notice (a) to be given of the time and place of holding such special sessions, and of the adjournments thereof, to the several justices acting and residing within such limits, by the high constable, or other proper officer within the same." This section is applicable to an order of justices for diverting and turning a road made under the authority of stat. 55 Geo. III. c. 68, s. 2, ante, 42; R. v. Justices of Worcestershire, 2 B. § A. 228. A special sessions here means, a sitting convened by notices to the other magistrates of the division. Per Bayley, J., S. C. As to the notices for holding the special sessions, see the cases and decisions, ante, 44. XI. Meetings of Enhabitants. By stat. 13 Geo. III. c. 78, s. 65, "If the inhabitants of any parish, meeting may agree township, or place, shall agree, at a vestry or public meeting, to prosecute any person by indictment (b) for not repairing any highway within such parish, township, or place, which they apprehend such person was obliged to prosecute an indictment. MEETINGS OF by law to repair, or for committing any nuisance upon any highways, or shall agree at such vestry meeting to defend any indictment or presentment INHABITANTS. preferred against any such parish, township, or place, it shall and may be lawful for the surveyor of such parish, township, or place, to charge in his Surveyor's costs. account the reasonable expenses incurred in carrying on or defending such respective prosecutions, after the same shall have been agreed to by such inhabitants at a vestry or public meeting, or allowed by a justice of the peace within the limit where such highway shall be; which expenses, when so agreed to, or allowed, shall be paid by such parish, township, or place, out of the fines, forfeitures, compositions, payments, and assessments, authorized to be collected and raised by virtue of this act." See cases as to the liability for costs, post, Sect. XXIII. And by sect. 66, "In all cases where a vestry or public meeting of the inhabitants of any parish, township, or place, is authorized or directed by this act, there shall be public notice given of the day, hour, and place, of holding the said meeting, at the church or chapel of such parish, township, or place, on the Sunday next preceding such meeting, and also notice thereof in writing (a), specifying the purpose of such meeting, fixed at the same time upon the door of such church or chapel, and the same shall not be held till three days at least after such notice given; and if there be no church or chapel, the like notice of such meeting shall be given in writing, and put up at the most public place therein, three days at least before such meeting." As to meetings for appointing surveyors, see post, 50. XII. Surveyor and Assistant, &c. AND herein, 1. Of his Appointment in general; 2. His Duty in general; And, 3. His Accounts. (1) His Appointment in General. The notice re quired for holding meetings. vestries or public 13 Geo. 3, c. 78. On Sept. 22, yearmade of at least ten persons, by the the usual place of public meetings. ly, a list is to constables, &c., at surveyors. By stat. 13 Geo. III. c. 78, s. 1, “Upon the 22nd day of September, in every year, unless that day shall be Sunday, and then on the day following, the constables, headboroughs, tithingmen, churchwardens, surveyor of the highways, and householders (b), being assessed to any parochial or public rate of every parish, township, or place, shall assemble together at the church or chapel of such parish, township, or place, or, if there shall be no church or chapel, then at the usual place of public meetings for such parish, township, or place, at the hour of eleven in the forenoon: and the major part of them, so assembled, shall make a list (c) of the names of at least ten persons living within such respective parishes, townships, or places, who each of them have an estate in lands, tenements, or hereditaments, lying within such respective parish, township, or place, in their own right, Qualification of or in the right of their wives, of the value of 107. by the year; or a personal estate of the value of 100%.; or are occupiers or tenants of houses, lands, tenements, or hereditaments, of the yearly value of 301.: and if there shall not be ten persons having such qualifications as aforesaid, then they shall insert in such list the names of so many of such persons as are so qualified, as above required, together with the names of so many of the most sufficient and able inhabitants of such parish, township, or place, not so qualified, as shall make up the number ten, if so many can be found; if not, so many as shall be there resident, to serve the office of surveyor of the highways: and the constable, headborough, or tithingman, of such parish, township, or place, shall, within three days after such meeting, transmit a duplicate of such list to one of the justices of the peace within the limit of the county, riding, division, hundred, city, corporation, precinct, or liberty, where such parish, township, or place shall lie, living in or near the same; and shall also return and deliver the original list (d), made and agreed upon A duplicate of such list shall be transmitted to one of the justices, and the original list to sions, by the con the special ses stable, &c. |