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public utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway according to a plan deposited with the clerk of the peace, from which they were not to deviate more than one hundred yards. By a subsequent act, the company of persons authorized by them, were empowered to use locomotive engines upon the railway. The railway was made parallel and adjacent to an ancient highway, and in some places came within five yards of it. It did not appear whether or not the line could have been made in those instances to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons using the highway as a carriage road. On an indictment against the company for a nuisance, it was held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorizing the use of the engines, were unqualified; and the public benefit derived from the railway, (whether it would have excused the alleged nuisance at common law or not, see Ward's case, ante, p. 517,) showed at least, that there was nothing unreasonable in a clause of an act of parliament giving such unqualified authority. Pease's case, 4 B. and Ad. 30 (a).
Proof of the nuisance whether justifiable from necessity.] It not unfrequently becomes a question, whether the obstruction complained of is justifiable by reason of the necessity of the case, as when it occurs in the usual and necessary course of the party's lawful business. The defendant, a timber-merchanty occupied a small timber-yard close to the street; and, from the smallness of his premises, he was obliged to deposit the long pieces of timber in the street, and to have them sawed up there before they could be carried into the yard. It was argued that this was necessary for his trade, and that it occasioned no more inconvenience than draymen letting down hogsheads of beer into the cellar of a publican. But Lord Ellenborough said, "If an unreasonable time is occupied in [ *519) *the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The defendant is not to eke out the inconvenience of his own premises, by taking in the public highway into his timber-yard ; and if the street be narrow, he must reinove to a more commodious situation for carrying on his business." Jones' case, 3 Campb. 230. So although a person who is rebuilding a house is justified in erecting a hoard in the street, which serves as a protection to the public, yet, if it encroach unnecessarily upon the highway, it is a nuisance (1). See Bush v. Steinman, 1 Bos. and Pul. 407. Russell's case, 6 East, 427, ante, p. 516. .
(1) Commonwealth v. Passmore, 1 S. & R. 217.
(a) Eng. Com. L. Rep. xxiv. 17.
NOT REPAIRING HIGHWAYS.
Upon an indictment for not repairing a bighway, to which the general issue is pleaded, the prosecutor must prove, Ist, that the way in question is a public highway, (vide ante, p. 511, et seq.) and that it agrees with the description of the way in the indictment, (ante, p. 514,) 2dly, that it is within the parish or other district charged ; 3dly, that it is out of repair ; and, 4thly, where the charge is not upon the parish, but against common right, as upon an individual ratione tenure, the liability of the party to make the repairs.
Proof of liability to repair-parish.] Parishes of common right are bound to repair their highways, and by prescription one parish may be bound to repair the way in another parish. Per Holt, C. J., R. v. Ragley, 12 Mod. 409; Hawk. P. C. b. 1, c. 76. No agreement with any person whatever can take off this charge. 1 Ventr. 90. The parish generally, and not the overseers, are liable; and an indictment against the latter was quashed. Dixon's case, 12 Mod. 198. If particular persons are made liable by statute to repair, and become insolvent, the parish again becomes liable.
1 Ld. Raym. 725. And where a township, which has been accustomed to repair its own ways, is exempted by act of parliament from the repair of a certain road, the liability reverts to the parish. R. v. Sheffield, 2 T. R. 106. The parish will remain liable though the duty of repairing may likewise be imposed upon others. Thus where a statute enacted, that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose, and another statute, which was passed for paving the streets of the parish, contained a clause that it'should not extend to the particular street, it was held that the inhabitants *of the parish were not exempted from [ *520 ] their common law liability to keep that street in repair ; and that the parish was under the obligation, in the first instance, of seeing that the street was properly repaired, and might seek a remedy over against the commissioners. R. v. St. George, Hanover Square, 3 Campb. 222. So where the trustees of a turnpike-road are required by statute to make the repairs, the parish, or other district, is not exonerated, but is liable to be indicted. In such cases, the tolls, granted by the act, are only an auxiliary and subordinate fund, and the persons whom the public have a right to look to, are the inhabitants of the district, who may apply for relief under the 320 section of the General Turnpike Act. R. v. Netherthong, 2 B. and A. 179; see also R. v. Oxfordshire, 4 B. and C. 194 (a); R. v. Preston, 2 Lew. C.C. 193. Nor can other parties render themselves liable to an indictment for not repairing by agreement. Thus an indictment against the corporation of Liverpool, stating that they were liable to repair a certain highway, by reason of an agreement with the owners of houses alongside of it, was held bad, because the inhabitants of the parish, who are prima facie bound to the repair of all ways within their boundaries, cannot be discharged from their liability by an agreement with others. R. v. Mayor, &c. of Liverpool, 3 East, 86.
(a) Eng. Com. L. Rep. x. 310.
• If the repairs are done by a parishioner, under an agreement with the parish, in consideration of his being excused his statute-duty, that is virtually a repair by the parish. Per Ld. Ellenborough, R. v. Wandsworth, 1 B. and Ald. 66.
When, by act of parliainent, trustees are authorized to make a road from one point to another, the making of the entire road is a condition precedent to any part of it becoming a highway repairable by the public. An indictment charged a township with the non-repair of a highway; and it appeared in evidence, that the roåd in question was begun six years before, under a local turnpike act; that the trustees had finished it all but about 300 yards at one end of the line, and one mile at the other, (both out of the township ;) fenced what they had made, put up two turnpikegates, and taken toll; that the road was convenient, much used by the public, and leading at each end into old, open, and public highways; but it was held by Hullock, B., that the indictment was premature, the trustees not having finished their road according to the act of parliament, and consequently that it was no public highway. R. v. Hepworth, cited 3 B. and Adol. 110; 1 Lewin, C. C. 160. So where trustees, empowered by act of parliament to make a road from A. to B. (being in length twelve miles,) completed eleven miles and a half of such road, to a point where it intersected a public highway, it was held that the district, in which the part so completed lay, was not bound to repair it. R. v. Cumberworth, 3 B. and Ad, 108 (a); and see R. v. Paddington Vestry, 9 B. and C. 460 (6); R. v. Hatfield, 4 A. and E. 156 (c); R. v. Edge Lane, Id. 223 (d); R. v. Cumberworth, Id. 731 (e).
It was for some time a matter of doubt whether, where an individual ( *521 ] dedicated a way to the public, and the public used such *way, the parish, in which it was situated, was bound to repair it, without any adoption of it on their part. In the case of R. v. St. Benedict, 4 B. and Ald. 450 (f), an opinion was expressed by Bayley, J., that the parish was not liable; but this doctrine was denied in a late case, and it was held that no distinct act of adoption was necessary, in order to make a parish liable to repair a public road; but that, if the road is public, the parish is of common right bound to repair it. . R, v. Leake, 5 B. and Ad. 469 (8); 2 Nev. and M. 583.
Where a parish is situated partly in one county and partly in another, and a highway, lying in one of those parts, is out of repair, the indictment must be against the whole parish, and must be preferred in that county in which the ruinous part lies. R. v. Clifton, 5 T. R. 498. Ву the 5 & 6 Wm. 4, c. 50, s. 58, where a highway lies in two parishes, justices of the peace are to determine what parts shall be repaired: by each, and by s. 59, parishes are bound to repair the part allotted to them. The same proceeding may be adopted in the case of highways repairable by bodies politic or corporate, or private persons, ratione tenura.
Where a question arises as to the road being within the boundaries of the parish, it is sometimes necessary to prove those boundaries, by giving in evidence the award of comniissioners appointed to set them out. In such case, it must be shown that the award of the commissioners pursues their authority. By an inclosure act, commissioners were directed to fix
(a) Eng. Com L. Rep. xxiii. 38. (6) Id. xvii. 420. (c) Id. xxxi. 45. (d) Id. 170.
(C) Id. 170. (f) Id. vi. 483. (f) Id. xxvii. 107..
the boundaries of a parish, and to advertise in a provinciał newspaper such boundaries. : The boundaries were also to be inserted in the award of the commissioners, and to be conclusive. The boundaries in the award varying from those in the newspaper, it was held that the commissioners had not pursued their authority, and that the award was not binding as to the boundaries of the parish. Rex. v. Washbrook, 4 B. and C. 732 (a). By a similar act, commissioners had power to settle the boundaries of certain parishes, upon giving certain previous notices to the parishes to be affected by the award. The highway in question, never having been repaired by the parish to which it was allotted, the judge refused to admit the award in evidence, until the requisite notices were proved to have been given; and upon an application for a new trial, it was refused. R. v. Hastingfield, 2 M. and S. 558. Where two parishes are separated by a river, the medium filum is the boundary. R. v. Landulph, 1 Moo. and R. 393.
Where a highway crosses the bed of a river which washes over it and leaves a deposit of mud, it seems the parish is not bound to repair that
Evidence that a parish did not put guard fences at the side of a road, is not receivable on an indictment, which charges that the King's subjects could not pass as "they were wont to do," if no such fences existed before. Whitney's case, 7 C. and P. 208 (6).
After a verdict for the defendants on an indictinent for the non-repair of a highway, the court will not grant a new trial on the ground of the improper rejection of evidence, but they will suspend *the judgment [ *522 ] in order that another indictment may be preferred. R. v. Sutton, 5 B. and Ad. 52 (C); 2 N. and M. 57.
Proof of liability to repair—inclosure. Where the owner of lands not inclosed, next adjoining to a highway, incloses his lands on both sides the way, he is bound to make the road a perfect good way, and shall not be excused by making it as good as it was before the inclosure, if it were then defective; because, before the inclosure, the public used, where the road was bad, to go, for their better passage, over the fields adjoining, which liberty is taken away. And if the owner inclose one side only, he is bound to repair the whole, if there be an ancient inclosure on the other side ; but if there be not such an ancient inclosure, he is bound only to repair half; and upon laying open the inclosure, he is freed, as it seems, altogether from the liability to repair. Hawk. P. C. b. 1, c. 76, s. 6, 7, 8; 3. Bac. Ab. Highways, (F); 1 Russell, 325; Welbeloved on Highways, 90; 2 Wm. Saund. 160, (a) n. 12; Woodrych on Ways, 80.
But where a highway is inclosed under the directions of an act of parliament for dividing and inclosing common fields, the party inclosing the way is not bound to repair. R. r. Flecknow, i Burr. 461. And so also with regard to a road made in pursuance of a writ of ad quod damnum. Exparte Venner, 3 Atk. 772; Hawk. P. C. b. I, c. 76, s. 7.
Proof of liability to repair-particular districts and persons by prescription.]. Although prima facie, the parish is bound to repair all the ways within the boundaries, yet other bodies or individuals may be liable
(a) Eng. Com. L. Rep. x. 451. (b) Id. xxxii. 493. (©) Id. xxvii. 31.
to such repairs, to the exoneration of the parish. Thus a township, or other particular district, may, by custom, be liable to repair; and it is sufficient to state in the indictment, that the township has been used and accustomed to repair, and of right ought to repair. R. v. Ecclesfield, 1 B. and A. 348; R. v. West Riding of Yorkshire, 4 B. and A. 623 (a).
But where an indictment charged that the inhabitants of the townships of Bondgate in Auckland, Newgate in Auckland, and the borough of Auckland, in the parish of St. Andrew, Auckland, were immemorially liable to repair a highway in the town of Bishop Auckland, in the parish of St Andrew, Auckland, and no consideration was laid for such liability; the indictment was held bad in arrest of judgment, as not showing that the highway was within the defendants' district. But it was held to be no objection that the inhabitants of the three townships were charged conjointly. R. v. Inhabitants of Auckland, 1 A. and E. 744 (b).
Where it appears that a township has been used immemorially to repair all roads within it, such township is placed, as to repairs, in the same situation as a parish, and cannot discharge itself from its liability without showing that some other persons, in certainty, are liable to the repairs. R. v. Hatfield, 4 B. and A. 75 (c). Where a new way is made within the ( *523 ] limits of the township, and which, had *the parish been bound to repair, must have been repaired by the parish, such way must be repaired by the township. R. v. Ecclesfield, 1 B. and A. 348; R. v. Netherthong, 2 B. and A. 179. It appears that the liability of a township, or other district, has its origin in custom rather than in prescription; a prescription being alleged in the person, a custom in the land or place ; and the obligation to repair is of a local, and not of a personal nature. R. v. Ecclesfield, 1 B. and A. 348. So it is said by Bayley, J., that a parish cannot be bound by prescription; for individuals in a parish cannot bind their successors. Ř. v. St. Giles, Cambridge, 5 M. and s. 260. The inhabitants of a township, or other district, cannot be charged to repair ratione tenure ; for unincorporated inhabitants cannot, as inhabitants, hold lands. R. v. Machynlleth, 2 B. and C. 166 (d).
Upon an appeal against the appointment of a surveyor of the highways for the township of K. N., the sessions found that the parish of M. consisted of two townships; that surveyors had been appointed for each; but latterly, to save expense, there had been two surveyors appointed for the parish at large. They likewise found that each acted as surveyor in his own township; that distinct rates had been made for each township, and applied distinctly to the repairs of the highways in each; that the surveyors kept distinct accounts, (which were examined by the general vestry,) and that the occupiers of lands had been rated, in respect of their occupation, to the repair of the highways of that township in which the houses they resided in were situate. Lord Tenterden said, that if there had been an indictment against either township, and an allegation that each township had immemorially repaired the roads within it, these facts would be sufficient evidence to support the averment. R. v. Kings Newton, 1 B. and Ad. 826 (e).
On an issue whether or not certain land, in a district repairing its own roads, was a common highway, it is admissible evidence of reputation, (though slight) that the inhabitants held a public meeting to consider of
(@) Eng. Com. L. Rep. vi. 543. (b) Id. xxviii. 197. (c) Id. vi. 355. (d) Id. ix. 52.
(e) Id. xx. 492.