Indictment for not repairing.] Upon an indictment for a nuisance to a public bridge, whether by obstructing or neglecting to repair it, the prosecutor must prove, first, that the bridge in question is a public bridge; and secondly, that it has been obstructed or permitted to be out of repair, and in the latter case, the liability of the defendants to repair.

Proof of the bridge being a public bridge.] A public bridge may be defined to be such a bridge as all his majesty's subjects have used freely, and without interruption, as of right, for a period of time competent to protect themselves, and all who should thereafter use them, from being considered as wrong doers, in respect of such use, in any mode of proceeding, civil or criminal, in which the legality of such use may be questioned. Per Lord Ellenborough, R. v. Inhab. of Bucks, 12 East, 204. With regard to bridges newly erected, the general rule is, that if a man builds a bridge, and it becomes useful to the county in general, it shall be deemed a public bridge, (but see the regulations prescribed by the 43 G. 3, c. 59, s. 5, post, p. 297,) and the county shall repair it. But where a man builds a bridge for his own private benefit, although the public may occasionally participate with him in the use of it, yet it does not become a public bridge. R. v. Inhab. of Bucks, 12 East, 203, 204. Though it is otherwise, if the public have constantly used the bridge, and treated it as a public bridge. R. v. Inhab. of Glamorgan, 2 East, 356, (n.) Where a miller, on deepening a ford, through which there was a public highway, built a bridge over *it which the public used, it was held that the [*294] county was bound to repair. R. v. Inhab. of Kent, 2 M. and S. 513.

A question has sometimes arisen whether arches adjacent to a bridge, and under which there is a passage for water in times of flood, are to be considered either as forming part of the bridge, or as being themselves independent bridges. Where arches of this kind existed, more than 300 feet from a bridge, on an indictment against the county for non-repair of them, and a case reserved, the Court of King's Bench held that the county was not liable. R. v. Inhab. of Oxfordshire, 1 Barn. and Ad. 297, (n.) Second indictment, Id. 289 (a). The rule laid down by Lord Tenter

(a) Eng. Com. L. Rep. xx. 389.

den, C. J., in the latter case was, that the inhabitants of a county are bound, by common law, to repair bridges erected over such water only as answers the description of flumen vel cursus aquæ, that is, water flowing in a channel between banks more or less defined, although such channel may be occasionally dry.

In the following case, a question arose whether a bridge for foot-passengers which had been built adjoining to an old bridge for carriages, was parcel of the latter. The carriage-bridge had been built before 1119, and certain abbey lands were charged with the repairs. The proprietors of those lands had always repaired the bridge so built. In 1765, the trustees of a turnpike road, with the consent of a certain number of the proprietors of the abbey lands, constructed a wooden foot-bridge along the outside of the parapet of the carriage-bridge, partly connected with it by brick work and iron pins, and partly resting on the stonework of the bridge. It was held that the foot-bridge was not parcel of the old carriage-bridge, but a distinct structure, and that the county was bound to repair it. R. v. Inhab. of Middlesex, 3 B. and Ad. 201 (a).

Where the trustees under a turnpike act built a bridge across a stream, where a culvert would be sufficient; yet, if the bridge become upon the whole more convenient to the public, the county cannot refuse to repair it. R. r. Inhab. of Lancashire, 2 B. and Ad. 813 (b).

Semble, that an arch of nine feet span without battlements at either end, over a stream usually about three feet deep, is a culvert and not a bridge to be repaired by the county; and if the parish have pleaded guilty to a former indictment, which described it as a part of the road, they are concluded by having so done. Whitney's case, 7 C. and P. 208 (c).

The public may enjoy a limited right only of passing over a bridge, as where a bridge was used at all times by the public, on foot, and with horses, but only occasionally with carriages, viz., when the ford below was unsafe to pass, and the bridge was sometimes barred against carriages by means of posts and a chain, it was held that this was a public bridge, with a right of passage, limited in extent, yet absolute in right. R. v. Inhab. of Northampton, 2 M. and S. 262. A bar across a public bridge locked, except in times of flood, has been ruled to be conclusive evidence that the public have only a limited right to use the bridge at such times, and [*295] *it is at variance to state, that they have a right to use it "at their free will and pleasure." R. v. Marquis of Buckingham, 4 Campb. 189. But where a bridge passed over a ford, and was only used by the public in times of floods, which rendered the ford impassable, yet, as it was at all times open to the public, Abbott, C. J., ruled that the county was bound to repair. R. v. Inhab». of Devon, Ry. and Moo. N. P. C. 144 (d).

Proof of the bridge being a public bridge-highway at each end.] At common law the county is bound prima facie to repair the highway at each end of a public bridge, and by the statute 22 Hen. 8, c. 5, the length of the highway to be thus repaired is fixed at 300 feet. If indicted for the non-repair of such portion of the highway, they can only excuse themselves by pleading specially, as in the case of the bridge itself, that some other person is bound to repair by prescription, or by tenure. R. v.

(a) Eng. Com. L. Rep. xxiii. 57. (b) Id. xxii. 189. (c) Id. xxxii. 493.❤ (d) Id. xxi. 401.

Inhab. of West Riding of Yorkshire, 7 East, 588; 5 Taunt. 284 (a); S. C. in the House of Lords.

The inhabitants of Devon erected a new bridge within 300 feet next adjoining to an old bridge in the county of Dorset; which 300 feet the county of Dorset was bound to repair. It was held, nevertheless, that Devon was bound to repair the new bridge, which was a distinct bridge, and not to be considered as an appendage to the old bridge. R. v. Inhab. of Devon, 14 East, 477.

A party who is liable by prescription to repair a bridge is also prima facie liable to repair the highway to the extent of 300 feet from each end; and such presumption is not rebutted by proof that the party has been known only to repair the fabric of the bridge, and that the only repairs known to have been done to the highway have been performed by commissioners under a turnpike road act. R. v. City of Lincoln, 8 A. and E. 65; 3 N. and P. 273.

Proof of the bridge being out of repair.] The county is only chargeable with repairs, and cannot be indicted for not widening or enlarging a public bridge, which has become from its narrowness inconvenient to the public. Not being bound to make a new bridge, the county is not bound to enlarge an old one which is, pro tanto, the erection of a new bridge. R. v. Inhab. of Devon, 4 B. and C. 670 (b).

Those who are bound to repair bridges must make them of such height and strength, as may be answerable to the course of the water, whether it continue in the old channel or make a new one. Hawk. P. C. b. 1, c.

77, s. 1.

Proof of the liability of the defendants-by the common law.] All public bridges are prima facie repairable, at common law, by the inhabitants of the county, and it lies upon them if the fact be so, to show that others are bound to repair. R. v. Inhab. of Salop, 13 East, 95, 2 Inst. 700, 701; R. v. Inhab. of Oxfordshire, 4 B. and C. 196 (c). But a parish or township, or other known portion of *a county may, by [ *296 ] usage and custom, be chargeable to the repair of a bridge erected in it. Per cur. R. v. Ecclesfield, 1 B. and A. 359. So where it is within a franchise. Hawk. P. C. b. 1, c. 77, s. 1. The charge may be cast upon a corporation aggregate, either in respect of the tenure of certain lands, or of a special prescription, and in the same manner, it may be cast upon an individual, ratione tenuræ. Id. Where an individual is so liable, his tenant for years in possession is under the same obligation. Reg. v. Bucknall, 2 Ld. Raym. 792. Any particular inhabitant of a county, or any of several tenants of lands charged with such repairs, may be indicted singly for not repairing, and shall have contribution from the others. Hawk. P. C. b. 1, c. 77, s. 3; 2 Ld. Raym. 792. The inhabitants of a district cannot be charged ratione tenure, because they cannot as such, hold lands. R. v. Machynlleth, 2 B. and C. 166 (d). But a parish, as a district, may at common law, be liable to repair a bridge, and may therefore be indicted for the not repairing, without stating any other ground of liability than immemorial usage. R. v. Inhab. of Hendon, 4 B. and Ad. 628 (e).

(a) Eng. Com. L. Rep. i. 111. (b) Id. x. 441. (c) Id. 310. (₫) Id. ix. 52. (e) Id. xxiv. 128.

The liability of a county to the repairs of a bridge, is not affected by an act of parliament imposing tolls, and directing the trustees to lay them out in repairing the bridge. This point arose, but was not directly decided in the case of R. v. Inhab. of Oxfordshire, 4 B. and C. 194 (a), the plea in that case not averring that the trustees had funds; but Bayley, J., observed, that even then a valid defence would not have been made out, for the public had a right to call upon the inhabitants of the county to repair, and they might look to the trustees under the act. With regard to highways, it has been decided that tolls are in such cases only an auxiliary fund, and that the parish is primarily liable. (See post, Highways.) And as the liability of a county resembles that of a parish, these decisions may be considered as authorities with regard to the former.

Proof of the liability of the defendants-by the common law-new bridges.] Although a private individual cannot by erecting a bridge, the use of which is not beneficial to the public, throw upon the county the onus of repairing it, yet if it become useful to the county in general, the county is bound to repair it. Glasburne Bridge case, 5 Burr. 2594. Thus, where to an indictment for not repairing a public bridge, the defendants pleaded that H. M. being seised of certain tin works, for his private benefit and utility, and for making a commodious way to his tin works, erected the bridge, and that he and his tenants enjoyed a way over the bridge for their private benefit and advantage, and, that therefore, he ought to repair; and on the trial the statements in the plea were proved, but it also appeared that the public had constantly used the bridge from the time of its being built; Lord Kenyon directed the jury to find a verdict for the crown, which was not disturbed. R. v. Inhab. of Glamorgan, 2 East, 356 (n.)

Where a new bridge is built, the acquiescence of the public will be [*297] evidence that it is of public utility. As, to charge the *county, the bridge must be made on a highway, and as, while the bridge is making, there must be an obstruction of the highway, the forbearing to prosecute the parties for such obstruction, is an acquiescence by the county in the building of the bridge. See R. v. Inhab. of St. Benedict, 4 B. and A. 450 (b). The evidence of user of a bridge by the public, differs from the evidence of user of a highway, for as a bridge is built on a highway, the public using the latter must necessarily use the former, and the proof of adoption can hardly be said to arise, but the user is evidence of acquiescence, as showing that the public have not found or treated the bridge as a nuisance. See R. v. Inhab. of West Riding of Yorkshire, 2 East, 342. Where a bridge is erected under the authority of an act of parliament, it cannot be supposed to be erected for other purposes than the public utility. Per Lawrence, J., R. v. Inhab. of West Riding of Yorkshire, 2 East, 352. If a bridge be built in a slight or incommodious manner, it cannot be imposed as a burthen on the county, but may be treated altogether as a nuisance, and indicted as such. Per Lord Ellenborough, Ibid.

And by the 43 Geo. 3, c. 59, s. 5, no bridge to be thereafter erected or built in any county, by or at the expense of any individual or private person or persons, body politic or corporate, shall be deemed or taken to

(a) Eng. Com. L. Rep. x. 310. (b) Id. vi. 482.

be a county bridge, or a bridge which the inhabitants of any county shall be compellable or liable to maintain or repair, unless such bridge shall be erected in a substantial and commodious manner, under the direction, or to the satisfaction of the county surveyor, or person appointed by the justices of the peace, at their general quarter sessions assembled, or by the justices of the peace of the county of Lancaster, at their annual general sessions.

The words of this act comprehend every kind of person by whom, or at whose expense a bridge shall be built. Trustees appointed under a local turnpike act are "individuals" or "private persons" within the statute, and therefore a bridge erected by such trustees after the passing of the act, and not under the direction of the county surveyor, is not a bridge which the county is bound to repair. R. v. Inhab. of Derby, 3 B. and Ad. 147 (a).

Where the wood-work of a bridge was washed away, leaving the stone abutments, and the parish repaired the bridge, partly with the old wood and partly with new, this was held not to be a bridge "erected or built” within the above statute, but an old bridge repaired, and the county was held liable. R. v. Inhab. of Devon, 5 B. and Ad. 383 (b).

Proof of the liability of the defendants-public companies.] In some cases where public companies have been authorised by the legislature to erect or alter bridges, a condition has been implied that they shall keep such bridges in repair. The proprietors of the navigation of the river Medway were by their act empowered to alter or amend such bridges and highways as might hinder the navigation; leaving them, or others as convenient, in their room. Having *deepened a ford in the Medway, [*298] the company built a bridge in its place, which being washed away, they were held bound to rebuild. Lord Ellenborough said that the condition to repair was a continuing condition, and that the company having taken away the ford, were bound to give another passage over the bridge, and to keep in repair. R. v. Inhab. of Kent, 13 East, 220. The same point was ruled in the case of the King v. The Inhabitants of the parts of Lindsey (14 East, 317) in which the company had made a cut through a highway, and built a bridge over it. An act of parliament empowered the commissioners for making navigable the river Waveney, to cut, &c., but was silent as to making bridges. The commissioners having cut through a highway, and rendered it impassable, a bridge was built over the cut, along which the public passed, and the bridge was repaired by the proprietors. Being out of repair, the proprietor of the navigation was held liable to the repairs. The court said that the cut was made not for public purposes, but for private benefit; and the county could not be called upon to repair, for it was of no advantage to them to have a bridge instead of solid ground. R. v. Kerrison, 3 M. and S. 326. See also R. v. Inhab. of Somerset, 16 East, 305.

Proof of liability-defendants, individuals.] plies immemoriality. 2 Saund. 158 d, (n.)

Ratione tenure im

2 Saund. 158 d, (n.) And, therefore, upon an indictment against an individual for not repairing, by reason of the tenure

(a) Eng. Com. L. Rep. xxiii. 46. (b) Id. xxvii. 97.