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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. Inbab. 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 becoine 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 (6).
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 is 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. Inbab. 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 tenure. ld. Where an individual is so liable, bis tenant for years in possession is under the same obligation. Reg. v. Bucknall, 2 Ld. Raym. 792. Any particular inbabitant 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. I, c. 77, s. 3 ; 2 Ld. Raym. 792. The inbabitants 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.
(a) Eng. Com. L. Rep. i. 111. (b) Id. x. 441. (c) ld. 310. (d) ld. 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.] Ratione tenure implies immemoriality. 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. (6) Id. xxvii. 97.
of a mill, if it appear that the mill was built within the time of legal ineinory, the defendant must be acquitted. Hayınan's case, Mo. and M. 401 (a).
Any act of repairing on the part of an individual, is prima facie evidence of bis liability. Thus, it is said, that if a bishop has once or twice, of alms, repaired a bridge, this binds not, yet it is evidence against him that he ought to repair, unless he proves the contrary. 2 Inst. 700.
Reputation is not evidence on an indictment against an individual for not repairing a bridge ratione tenure. Per Patteson, J., Antrobus' case, 6 C. and P. 790 (b); but see infra.
On an indictment for the non-repair of a bridge, ratione tenure, it was held that a record of 18 Edw. 3, setting out a presentment of the bishop of Lincoln for non-repair of the bridge, and his acquittal by the jury, which was shortly followed by a grant of portage froin the crown, on the ground that it had been found, by inquest, that no one was liable to repair the bridge, was admissible in evidence to negative any immemorial liability to repair ralione tenura.
The jury after finding a verdict of acquittal, also found that the bridge had been recently built, and that no one was liable to repair it. Senible that such finding by a jury, in ancient times, is admissible as reputation on a question as to the liability to repair ratione tenuræ.
3 N. and P. 569.
Proof in defence—by counties.] Where a county is indicted, and the [ *299 ) defence is that a parish or other district, or a corporation or *individual, is liable to the repairs, this defence must be specially pleaded, and cannot be given in evidence under the general issue of not guilty. R. v. Inhab. of Wilts, 1 Salk. 359; 2 Lord Raym. 1174; 1 Russell, 356; 2 Stark. Ev. 191, 2d ed. Upon that plea the defendants can only give evidence in denial of the points which must be established on the part of the prosecution, viz. 1, that the bridge is a public one; 2, that it is within the county ; and, 3, that it is out of repair. 2 Stark. Ev. 191, 2d ed. With a view to the first point, the inhabitants of a county may show under not guilty, that a district or individual is bound to repair, as a medium of proof that the bridge is not a public bridge. Id. R. v. Inhab. of Northampton, 2 M. and S. 262. For repairs done by an individual are to be ascribed rather to motives of interest in his own property, than to be presumed to be done for the public benefit. Per Ld. Ellenborough, ibid.
Upon a special plea by a county, that some smaller district or some individual is liable to repair, the evidence on the part of the county to prove the obligation, seems to be the same as upon an indictment against the smaller district or individual. 2 Stark. Ev. 192, 2d ed.
Proof in defence—by minor districts, or individuals.] Where a parish, or other district, or a corporation, or individual, not chargeable of common right with the repairs of a bridge, is indicted, they may discharge themselves under the general issue. R. v. Inhab. of Norwich, 1 Str. 177. For as it lies on the prosecutor specially to state the grounds on which such parties are liable, they may negative those parts of the charge under
(a) Eng. Com. L. Rep. xxii. 341. (b) Id. xxv. 654.
the general issue. 1 Russell, 356 ; Sed xide R. v. Hendon, 4 B. and Ad. 628 (a) ante, p.296.
Proof in defence—by corporation.] A corporation may be bound by prescription to repair a bridge, though one of their charters within time of legal memory use words of incorporation, and though the bridge may have been repaired out of the funds of a guild; for such repairs will be taken to have been made in case of the corporation. R. v. Mayor, &c. of Stratford-upon-Avon, 14 East, 348.
Venue and trial.) By the 1 Ann. st. 1, c. 18, s. 5, "all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where they lie, and not elsewhere.” It seems that no inhabitant of a county ought to be a juror on a trial of an issue whether the county is bound to repair. Hawk. P.C. b. 1, c. 77, s. 6. In such cases, upon a suggestion, the venire will be awarded into a neighboring county. R. v. Inhab. of Wilts, 6 Mod. 307 ; 1 Russell, 358.
Competency of witnesses.] By the 1 Ann. stat. 1, c. 18, s. 13, reciting, “that many private persons, or bodies politic or corporate, were of right obliged to repair decayed bridges and the highways *thereto [ *300 adjoining,” the evidence of the inhabitants of the county, &c. is made admissible. Vide ante, p. 133.
Maliciously pulling down, &c.] By the 7 & 8 Geo. 4, c. 30, s. 13, “ if any person shall unlawfully and maliciously pull down, or in anywise destroy any public bridge, or do any injury with intent, and so as thereby to render such bridge or any part thereof dangerous or impassable, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years ; or to be imprisoned for any term not exceeding four years, and if a male to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment.
(a) Eng. Com. L. Rep. xxiv. 128.