1812

Nuisance - Pulling down Old Bridge - Prevention of.-The justices of Dorset having, under the statute 43 Geo. 3, c. 59, contracted for the building of a new bridge in a different site, in lieu of the old one, which was ruinous; and having directed the old bridge to be taken down before the new one was passable, for the benefit of the old materials to be used by the contractor in finishing the new bridge; this Court refused a writ of prohibition to them, to restrain them from pulling down the old before the new bridge was passable, though there were strong affidavits of the inconvenience and loss to be sustained by the neighbourhood in being obliged to use a roundabout way in the interval; referring the complainants to the ordinary remedy by indictment if the pulling down the old bridge, under these circumstances, were a nuisance; and seeing no occasion to interfere by applying a prompt remedy of a novel kind in modern practice.-Rex v. Dorset JJ., 15 East, 594; 13 R. R. 443.

Injunction granted, on information and bill, upon the ground of public nuisance, to restrain the magistrates of a county from cutting the timbers supporting the roadway of a bridge, which timbers and roadway, at the place proposed to be cut, were within their jurisdiction, but of which the other extremity was within the jurisdiction of a different county. Principles on which Courts of equity interfere by injunction, in cases of apprehended nuisance to the public.—Att.-Gen. v. Forbes (1836), 2 Myl. & C. 123.

(4) Ratability.

1839

Company of Proprietors. By a local Act, a company of proprietors were empowered to build a bridge for the use of the public, and, to enable them to do so, to raise money, to be advanced by shares among themselves and upon mortgage by strangers. They were to take tolls as soon as the bridge was open to the public, which were to be applied in paying the interest on the debt, and the surplus in paying the shareholders to the extent of 77. per cent. on their shares. The excess over this dividend was to be applied in paying off the shareholders, and, when they were paid off, the surplus over the interest of the mortgages was to be funded until there was a sufficient accumulation to pay off the mortgage debt and to raise a small sum to meet the annual repairs; when that was done, the tolls were to cease, and the company of proprietors were to become trustees for the public. The bridge was built, and opened to the public; all the money allowed by the Act was raised; but a sum greater than was authorized by the Act was required, and was borrowed. The tolls produced 1,500l. per

annum, and were applied in payment of the interest of the mortgage and in reduction of the second debt, but nothing was paid to the shareholders. Held, that the company were ratable as beneficial occupiers of this bridge.-R. v. Blackfriars Bridge, Manchester, 8 L. J. M. C. 29 ; 9 Ad. & E. 828; 1 P. & D. 603.

1849

Occupier of Bridge and Toll-house-Repairs under Local Act. -By 5 & 6 Will. 4, c. 50, s. 27, the highway rate is to be levied on all property liable to the poor rate. By sect. 113, nothing in the Act contained is to be applied to any roads, bridges, &c. paved, repaired, or cleansed under any local Act. Held, that the 113th section does not exempt a bridge paved, &c. under a local Act from the highway rate. The exemption in sect. 113 applies only to the interference of the surveyors of highways with such a bridge.-R. v. Paynter, 18 L. J. M. C. 169; 13 Jur. 281; 13 Q. B. 399; 2 New Sess. Cas. 465.

(5) Other Matters.

1892

Duty to Construct-Canal Company.-By 5 Will. 4, c. 34, the B. Canal Company were to make such bridges over their canals as two or more justices should "from time to time judge necessary, and appoint for the use of the owners or occupiers of the lands adjoining" the canal. The respondent was an adjoining owner, and claimed to have a bridge made to connect his works on both sides of the canal. The justices had found such a bridge necessary. Held, that the B. Canal Company were bound to erect such a bridge.Birmingham Canal v. Hickman, 56 J. P. 598 (C. A.).

1889

Liability to strengthen Bridge sufficient for existing Traffic.— A dock company being required by statute to build such good and substantial bridges for carriages, horses, and passengers over their cuts as they should deem necessary, and for ever to keep the same in good repair, built bridges sufficient to carry the traffic of the district as it then existed. Subsequently manufactories were established on a tract of land inclosed by their cuts, in which large boilers and engines of twenty tons weight and upwards were constructed, which the bridges were insufficient to carry. Held, on rule for mandamus, that the statute did not impose upon the company the duty of providing bridges sufficient to carry such weight.—R. v. East and West India Dock Co., 60 L. T. 232; 53 J. P. 277.

1795

Liability to widen.-An indictment for not repairing a county bridge may be removed by certiorari, notwithstanding the statute 1 Anne, c. 18, s. 5. Those who are bound to repair a bridge are bound to widen it if the exigencies of the public require it.-Rex v. Cumberland, 6 T. R. 194; 3 Bos. & P. 354; 3 R. R. 149.

The inhabitants of a county, who are liable to repair a bridge, are not by the common law bound to widen it.-Rex v. Devon (1825), 4 L. J. (O. S.) K. B. 34; 28 R. R. 440 (overruling Rex v. Cumberland, 6 T. R. 194; 3 Bos. & P. 354; 3 R. R. 149).

1859

Order of Justices for widening-Discretion.-The power given to justices by 43 Geo. 3, c. 59, s. 2, to repair, widen, improve, and make commodious county bridges, is discretionary, and the Court will not grant a mandamus to compel them to exercise it. The proviso at the end of sect. 2, that a presentment shall be made according to one of the statutes relating to public bridges, is not satisfied by the finding of an indictment at common law, for the non-repair of the bridge, by the grand jury.-Newport Bridge, In re, 8 W. R. 82; 2 El. & El. 377; 29 L. J. M. C. 52; 6 Jur. (N. S.) 97; 1 L. T. 131.

1886

Restraining building of New Bridge.-On the grant of land adjoining a highway or a non-navigable river, it is presumed that one moiety of the bed of the river, or of the soil of the road, is intended to pass, unless there is something to rebut the presumption in the language of the deed, or in the nature of the subject-matter of the grant, or in the surrounding circumstances. And this rule is applicable although the thing granted can be satisfied, in respect of quantity, without including the moiety of the bordering river or road, and although the property be described as bounded by the river or road, and notwithstanding that a map or plan referred to in the deed does not in the coloured portion (dealt with by the conveyance) include such moiety of the road or river. The decision of Bacon, V.-C., reversed.-Micklethwait v. Newlay Bridge Co., 55 L. T. 336; 33 Ch. D. 133; 51 J. P. 132 (C. A.).

1805

Property in Materials.-A. grants liberty, licence, power, and authority to B. and his heirs to build a bridge on his land, and B. covenants to build the bridge for public use, and to repair it, and not to demand toll. The property in the materials of the bridge when built and dedicated to the public still continues in B., subject to the right of passage by the public, and when severed and taken away by a wrongdoer he may maintain trespass for the asportation.—Harrison v. Parker, 6 East, 154; 2 Smith, 262; 8 R. R. 434.

1818 Fees to Clerk of the Peace. The sessions are not authorized to order the payment by the bridge-master to the clerk of the peace of a percentage on all money raised for the repair of bridges in a particular district in lieu of all his fees for indictments, presentments, &c. for bridges within it; although such percentage was claimed as an ancient fee, and had been paid without dispute for a long period of time.-Rex v. Houldgrave, 1 B. & Ald. 312; 19 R. R. 332.

CREATION (OF HIGHWAYS).

1808

Evidence of Prescriptive Right of Way.-Evidence of a prescriptive right of way for all manner of carriages does not necessarily prove a right of way for all manner of cattle. But it is evidence of a driftway, for the jury to consider together with the other evidence. The extent of the usage is evidence of a right only commensurate with the user (by three against Chambre, J.). User of a way for carriages and hogs is prima facie evidence of a right of way for all cattle, and the onus of proving the restriction lies on the grantor (per Chambre, J., against three). Whether a way of necessity is commensurate only with the use to which the premises are applied at the time of the conveyance, or with all uses to which they may be converted afterwards, quære.-Ballard v. Dyson, 1 Taunt. 279.

1901

Property Right of Access.-A proprietor of a piece of land has no right to access thereto over the lands of his neighbour merely because he has no other means of access.-Menzies v. Breadalbane (No. 2), 4 F. 59, Ct. of Sess.

1836

When stopped at one End.-An Inclosure Act empowered commissioners to make new roads, and also to divert, alter, turn, or stop up any of the then public or private roads, &c., as the commissioners should think proper; and by another clause it was provided "that all roads, highways, ways and paths, &c., which should not be set out, or finally ordered and directed to be set out and continued as aforesaid, should for ever be stopped up and extinguished, and should be deemed and taken as part of the lands and grounds to be allotted by virtue of the Act; provided always, that no roads passing or leading through any of the old inclosures should be stopped up, &c. without an order for that purpose under the hands and seals of two justices." Held, that roads, highways, and footpaths leading through old inclosures (though not set out and continued by the award of the commissioners)

were not extinguished or stopped up without an order of two justices for that purpose. An order of two justices for stopping up several highways, in form, "Having particularly viewed the public roads and footways, &c., and being satisfied that the highways, &c., intended to remain and be the public highways, &c. in future, are continued, or have been set out, and properly formed and made safe and convenient, &c., and that the roads and footways hereinafter described, are unnecessary to be continued," &c. :-Held, bad, because the justices have no jurisdiction, except upon their own view; and it is perfectly consistent with the terms of the order above set out that the justices may have been satisfied that the roads and footways were unnecessary by other means than upon their own view; that 'having particularly viewed" could not be considered as applicable to the whole of the subsequent matter, contained in the order, upon which the justices alleged they were satisfied.-Rex v. Downshire (Marquis), 5 L. J. M. C. 72; 4 A. & E. 698; 6 N. & M. 92.

66

1806

When a Cul-de-Sac.-One who has a grant of an occupation way may declare in case against the owner of the land over which the way leads for obstructing it, although it be proved that the public in general had used the way without denial for the last twelve years. The terminus ad quem being laid to be a public highway is proved by evidence of a public footway, though such description of the terminus might have been bad on special demurrer, as not being sufficiently certain.-Allen v. Ormond, 8 East, 4.

A railway company who had power to tunnel under a public street without making any compensation, gave notice that they intended to tunnel under a passage forming a cul-de-sac, and which, with the houses on each side, were built on private property. Held, that, as the passage had been used by the public for more than twenty years, the company were not to be restrained from proceeding with their works until they had served upon the owner a notice to treat for such passage.-Souch v. East London Ry. (1873), 21 W. R. 590; 42 L. J. Ch. 477; L. R. 16 Eq. 108.

A public footpath was rendered a cul-de-sac by buildings authorized by Act of Parliament; the defendant obstructed the path at a place between which and the end of the cul-de-sac there was no opening or thoroughfare. Upon an indictment for this obstruction, the jury found the defendant guilty; but they also found that this part of the path, which the defendant's obstruction stopped, had ceased to be of any public utility. Held, upon a special case reserved by the judge at the trial, that a public path was still a highway, although it had become a cul-de-sac; and that the measure of public inconvenience caused by the