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sance complained of extends, as by shewing how many feet in length, and how many in breadth, it contains: 1 Haw. P. C. c. 32. s. 6. But this allegation seems not now to be necessary: 2 Saund. 158, note 7. And it has been held that an indictment for a nuisance, stating that a certain highway and bridge are in a ruinous condition, is not bad, for not setting out the length and breadth of the nuisance: Sayer, 301. If a parish be situate part in one county and the rest in another, and a highway lying in one part be out of repair, an indictment against the inhabitants of that part only will be bad; it must be against the whole parish: R. v. Clifton, 5. T. R. 498. But it will be otherwise if that part of the parish be bound by prescription to repair it. Where the obligation to repair arises from prescription, the obligation, being against common right, must be set forth in the indictment. It is, therefore, not sufficient to allege, that the inhabitants of a particular district, from time immemorial, ought to repair and amend; it must be averred, that the inhabitants from time whereof, &c. have been used and accustomed, &c. 1 Saund. 758, note 9. And, upon the same principle, an indictment for non-repair of a highway within a certain limit, charging a corporation with a prescriptive liability to repair all common highways, &c. within such limits, "excepting such as ought to be repaired according to the form of the several statutes in such case made," has been held bad, for want of shewing that the highway in question was not within any of the exceptions: R. v. Mayor of Liverpool, 3 East, 86. When the indictment is against a particular person, charging him with the repair of a highway, in respect of certain lands, it seems that the oc
cupier, and not the owner, is the proper person against whom the indictment should be brought; for the public have no means of knowing who is the owner: 1 Russ. 331;
Haw. P. C. c. 32, s. 5. The venue, in such case, must be laid in the county where the nuisance is, though the person bound to repair should live in another: R. v. Clifton, 5 T. R. 102. The indictment also must shew the obligation of the individual to repair. In many precedents of indictments or presentments against persons for not repairing a highway, by reason of tenure, it is stated that the party ought to repair by reason of his tenure, "as he and all those who held the said lands for the time being, from time whereof the memory of man is not to the contrary, were used to do;" but it does not appear to be necessary to insert these words; for the obligation upon him to repair seems to be sufficiently shewn, by averring that he ought to do so by reason of the tenure of his lands, without adding that those who have held the lands for the time being, have immemorially repaired: 1 Saund. 185, note 9; Co. Entr. 358. This observation, however, only applies where the occupier is seized in fee of the lands in question, because the expression ratione tenure is equiva lent to charging the individual in a que estate: see 1 Haw P. C. c. 32. s. 8; Keilw. 52; R. v. Kerrison, 1 M. & S. 437. The words in question, therefore, cannot be dispensed with when the indictment is brought against a tenant for years: Wentw. Pl. vol. vi. p. 415.
If the description of a highway, in an indictment for non-repair, be too indefinite, being equally applicable to several highways, advantage should be taken by plea in abatement; the description, if true in fact, cannot be objected to at the
trial under the general issue: R. v. Hammersmith, 1 Stack. 357. Where an indictment or presentment is against the inhabitants of a parish at large, they may upon the general issue, not guilty, shew that the highway is in repair, or that it is not a highway, or that it does not lie within the parish. But they cannot, upon the general issue, throw the burden of repairing on particular persons, by prescription, or otherwise, but must set forth their discharge in a special plea: 1 Russ. 331. See an exception to the rule: 3 Camp. 222. But where a particular division of a parish is charged with the repair by prescription, or a particular person by reason of tenure, or the like, they may throw the burden either upon the parish or even an individual, under the general issue. If, however, though unnecessarily, they plead the special matter, it is not enough for them to say they ought not to repair, but they must shew who ought: 2 Saund. 153, note 11. A plea which alleges a prescriptive liability in another parish, must shew the consideration of such prescription: R. v. St. Giles, Cambridge, 5 M. & S. 260. But where it throws such liability upon a particular district within the parish, it need not state any consideration, for the consideration appears on the face of it: R. v. Ecclesfield, 1 B. & A. 348; 1 Stark. 393; and see R. v. W. R. Yorkshire; 4 B. & A. 623. Where any subdivision of a parish is liable to the repair of a highway, and the indictment is notwithstanding preferred against the whole parish, care should be taken to plead the liability of such subdivision; for if judgment be given against the parish, whether after verdict upon not guilty, or by default, the judgment will be conclusive evidence of the
The former part of this act, beginning with the 6th section, relates to nuisances to the highway by obstructions; the 16th section gives power to the justices to order narrow roads to be widened or turned ; and the latter part, beginning with the 23rd section, relates to nuisances from non-repair As to what shall be deemed a highway, see 1 Russ. 307, et seq.; but it may be laid down generally, that the number of persons who may be entitled to use the way, or may be obliged to repair it, will not make it a public way, if it be not common to all the king's subjects. But see R. v. Lynn, above cited. A river common to all men is a highway: 1 Haw. P. C. c. 32, s. 1. But though, if a highway be foundrous and out of repair, the public have a right to go on the adjoining land; yet, if a river should happen to be choked up with mud, that would not give the public a right to cut another passage through the adjoining lands: Per Buller, J., 3 T. R. 268. All injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's subjects, are public nui. sances at common law: 1 Russ. 317. Therefore to erect a gate across a highway, though it be not locked; or to put a woodstack in
the street, though according to common usage, Com. Dig. Chimin. (A. 3); or to suffer the highway to be incommoded by the foulness of the adjacent ditches, or by boughs hanging over it, &c.; or to lay timber in a public river, though the soil belong to the party, if it obstruct the necessary intercourse: 3 Bac. Abr. Highways. Or to permit a house near the highway to continue in a ruinous condition : Salk. 357. Or to place a floating dock in the river, although beneficial in repairing ships; or to put a ship of three hundred tons into Billingsgate-dock: 1 Haw. P. C. c. 32, in notis. And it is no justification of a nuisance in contracting the channel of a river by building wharfs, &c., to say that a space is left sufficient for the purposes of navigation, or that other nuisances are thereby prevented, or even that the effect of the encroachment has been to benefit the navigation. It seems, however, to be a good defence, to shew that the advantage derived by the public from the obstructionhe compencates for the loss ofthe public right: R. v. Lord Grosvenor, 2 Stark, 511. Therefore, where upon the trial of an indictment for a nuisance in a navigable river by erecting a staith for loading ships with coals, the judge directed the jury, if they thought the staith was not placed in a reasonable part of the river, or that it did an unnecessary damage to the navigation, or that it was not of any public benefit, or that the public benefit was not equal to the public inconvenience which arose from it, to find for the crown, but, if they thought otherwise, then for the defendants; such direction was held proper by two judges (dissentiente, Lord Tenterden): R. v. Russell, 6, B. & C. 566. The difference in this case, between a very learned judge
and his brothers, seems to have arisen from an opinion on the part of the former, that the effects of erecting the staith in making coals cheaper, ought not to have been taken into consideration as matter of public benefit. As a road is indictable for being out of repair, those acts which serve to put it out of repair are indictable, and there. fore it has been held that if a carrier carries an unreasonable weight with an unusual number of horses, it is a nuisance to the highway by the common law: Com. Dig. Chemin. 4. 3. So it is a nuisance to travel with a cart on a common track or horseway, and by ploughing it up to render the use of it inconvenient: 6 Mod. 105. And generally, every unauthorized obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence. As, for in. stance, it is an indictable offence for stage-coaches to stand plying for passengers in the public streets;
Cross, 3 Camp. 227, and see R. v. Russell, 6 East, 427.
The inhabitants of the parish at large are, primâ facie and of common right, bound to repair all highways lying within it, unless, by prescription or otherwise, they can throw the burden upon particular persons: 1 Russ. 320. And, though a paving act for the whole parish contain a clause that it shall not extend to a particular street, this does not exempt the parishioners from their common law liability: R. v. St. George's Hanover Square. And see, R. v. Sheffield, 2 T. R. 106; R. v. Nethertong, 2 B. & A. 179. And no agreement can exonerate a parish from the common law liability to repair: Rex v. Mayor of Liverpool, 2 East, 86. But the parish is not liable to repair roads which have been dedicated to the public by the owner of the soil, unless there has been on their
part some act of acquiescence or adoption: Rv St. Benedict, 4 B. & 4. 450. And in some cases it is relieved of the onus, by a prescription for some particular subdivision to repair see ante) And it is also relieved of the onus, where the owner of the adjoining lands incloses them; for in such case he is bound to make a perfect good way as long as the inclosure lasts: 1 Haw. P. C. e. 32, s. 6; Rer v. Stoughton, 2 Saund. 160, note 12; 1 Roll. Abr 390, B. pl. 1.
But if a highway be inclosed by virtue of an act for inclosing and dividing common fields, &c. it shall continue to be repaired by the parish or township, unless otherwise directed by the act: R. v. Flecknow, 1 Burr. 461. An extra-parochial place is not, as such, bound of common right to repair its own roads: R. v. Kingmoor, 3 D. & R. 398; 2 B. & C. 190.
An indictment against a parish for not repairing a highway cannot be quashed on an affidavit that the way is now in repair; the course is to move for a rule nisi, why the defendants should not be discharged upon pleading guilty, and paying a nominal fine: R. v. Lincombe, 2 Chit. 214. And then, before they can be discharged, they must produce an affidavit that the road is now actually repaired, and is likely to continue so: R. v. Loughton, 1 Smith, 575. The judgment of the court is a fine, for the purpose of obliging the defendants to repair the nuisance; and they will not be discharged by submitting to a fine, as a distringas will go ad infinitum until they repair. An additional fine, however, can only be imposed, on preferring a fresh indictment: 1 Russ. 335; R. v. Old Malton, 4 B. & 4. 470, note. If the court be satisfied that the nuisance is effectually abated
before judgment is prayed on the indictment, they will not in their discretion give judgment to abate it. R. v. Incledon, 13 East, 164. As to whether a new trial wi'l be granted after conviction, see 1 Russ. 335.
It remains to say a few words on the construction of various parts of this act. It has been held, that a surveyor is not authorized, under the 6th and 64th sections of this act, to remove a fence in the front of a house for the purpose of widening the road, though in that part only twenty-four feet in breadth, unless the fence be on the highway: Sowen v. Kaye, 4 B. &. C. 3. The Foth section has been beld to extend to highways repaired ratione tenure, and the surveyor is indictable for disobedience of an order to widen them, R. v. Balme, Cowp. 643; and as to the form of an order under this section, see Davidson v. Gill, 1 East, 64. The clause in the 24th section, directing that no presentments or indictments therein mentioned, shall be removed before traverse, &c. does not take away the writ at the instance of the prosecutor: R. v. Bodenham, Cowp. 78; and see ante, tit. "Certiorari." Upon the latter part of the 47th section, it has been held that the application for the rate to reimburse the inhabitants on whom a fine has been levied, after a conviction upon an indictment against the parish for non-repair, ought to be made within a reasonable time after such levy; and the Court of King's Bench refused a mandamus to the justices to make such rate after an interval of eight years: R. v. Justices of Lancashire, 12 East, 366. The power of awarding costs under the 65th section of the act, can, if the case be tried at nisi prius, be exercised only by the judge at nisi prius, and not by the Court of King's Bench: R. v. Chadderton,
5. T. R. 272. A certificate that 6 T. R. 344. See further as to the defence was frivolous is a suffi- costs, R. v. Commeril and Ellis, cient award of costs: R. v. Clifton, 4 M. & S. 203.
34 Geo. 3, c. 64.
I. Whereas the common highways in this kingdom are to be maintained and kept in repair (except in certain cases) by the inhabitants of the several parishes in which such common highways are situated; but it frequently happens that the boundaries of such parishes pass through the middle of such common highways, and one side of such highways is situated in one parish, and the other side of such highways is situated in another parish, whereby great inconveniences have often arisen to such parishes in settling the time and manner of repairing and amending the same, and great detriment has arisen thereby to the public from the want of the due repair of such highways; for remedy Two justices may thereof, be it enacted, &c., that it shall and may be lawful determine for any two justices of the peace for any county, riding, or what parts division, upon complaint or application to them by any of highways surveyor, or any one of the surveyors of the highways of lying in two parishes any parish (stating to such justices in writing, and by a shall be replan thereunto annexed, that there is situated in the said paired by parish, and also in some other parish adjoining thereto, each, &c. specifying the same, a certain common highway, particularly describing the same by metes, bounds, and admeasurement thereof, one side of which common highway ought to be made or repaired by one of such parishes, and the other side thereof by the other of such parishes,) to issue their summons with a copy of such writing and plan thereunto annexed, to the survey or or one of the surveyors of the highways of such other parish, to appear before them on a day to be mentioned in such summons, not more than fourteen days nor less than seven days from the day of the date of such summons; and that, in case the parties shall then appear before such justices, they may then proceed finally to decide the matter in the manner hereinafter mentioned, in case all the parties shall consent thereto; but, in case the surveyor summoned shall not appear on such first summons, or appearing shall require further time, the said justices shall adjourn the further consideration of the matter for any further time, not more than twenty-one days nor less than fourteen days from the day of such adjournment, of which the surveyor not appearing shall have notice; on which day the said justices shall proceed to hear the parties and their witnesses, and, whether the party summoned does or does not appear, shall proceed to examine and finally determine the matter in form following, (that is to say,) that it shall and may be lawful for such justices, and they are hereby required, to divide the whole of such common highway by a transverse line crossing such highway