exclusive right to the surface the acts which he did were acts of ownership in the subsoil, and evidence from which it might be concluded that he took possession of the whole acre.-Thew v. Wingate, 10 B. & S. 714; 38 L. J. Q. B. 310, n.

An Inclosure Act having directed that the allotments made by the commissioners should for ever remain for the benefit of the appointees -Held, that an award and assigment of the herbage of a certain close to the surveyors of the highways and their successors, for the benefit of the parish of B., though bad as a common law conveyance, the appointees not being a corporation, was yet good as a parliamentary declaration of the persons entitled to take; the same as if the terms of the award had been specifically enacted. And the lord of the manor, in whom the fee of the soil remained, is a trustee for the surveyors of the highways for the time being.Johnson v. Hodgson (1806), 8 East, 38.

1864

Decision of Pathway-Evidence-Appeal.-An appellant, under 8 & 9 Vict. c. 118, was called upon to prove, upon objection taken at quarter sessions, the date of the notice affixed by the valuer upon the church door under sect. 62. Proof was given of the date of the notices affixed at each end of the way. Held, that it must be presumed that the date of the notice on the church door corresponded with this. Held, also, that, provided notice of appeal be given within the four months under sect. 64, the appeal itself need not be heard within that period.-R. v. Essex JJ., 11 L. T. 486; 34 L. J. M. C. 41; 13 W. R. 186.

By a clause in an Inclosure Act, a commissioner was authorized to stop up any way, provided it be done by the order and with the concurrence of two justices, and that order was to be subject to an appeal in like manner, and under such form and restrictions, as if the same had been originally made by such justices. By a subsequent clause any party aggrieved was to be at liberty to appeal at any time within six months after the cause of complaint. Under this Act, the commissioner, with the concurrence and order of two justices, stopped up a road without giving the public notices required by 55 Geo. 3, c. 68. Held, that a party aggrieved might, under these circumstances, appeal at any time within six months. Quare, whether it be necessary to give such notices where roads are stopped up under the provisions of an Inclosure Act.-Rex v. Townsend (1822), 5 B. & Ald. 420.

1793

Objection to Rate.-Where an Inclosure Act gave the commissioners power to set out and make roads, &c., and directed that the

expenses of making and repairing those roads and all other expenses should be borne by the proprietors in certain proportions, to be ascertained by the commissioners, in one general rate; and then gave an appeal to the sessions in all cases where the parties should think themselves aggrieved; it was held, that an objection to the rate, on account of the commissioners having expended money on an improper object, could not be tried in an action of trespass, but that the party aggrieved must appeal to the sessions.-Bonnell v. Beighton, 5 T. R. 182.

Justices cannot refuse to hear an appeal from a party grieved by stopping up a road under 8 & 9 Vict. c. 118, ss. 62 and 63, because the notice of appeal speaks of part of the length of the road only. Whether an appellant's liability to rates is increased or diminished by closing a road is not a matter for the sessions to consider as an element of private injury, but of public benefit.-R. v. Huntingdonshire JJ. (1865), 13 L. T. 443; L. R. 1 Q. B. 36; S. C. nom. Johnson v. Smith, 14 W. R. 209.

1880

Rating Officer-Quo Warranto.—At a meeting of owners, pursuant to the Inclosure Act (11 & 12 Vict. c. 99), s. 6, to elect a rating officer, B. attended as agent of a college, having a power of attorney dated in 1848, but before the passing of that statute, and expressly authorizing B. to attend all meetings, under 8 & 9 Vict. c. 118. O., another agent, had a power of attorney authorizing him to act for another college under certain specified Acts, and to attend any vestry or meeting under any Act of Parliament relating to the lands. Held, that under these authorities B. and O. were sufficiently authorized "in that behalf" to attend and vote for the owners respectively.R. v. Tarrant, 44 J. P. 425.

EXTRAORDINARY TRAFFIC. (See also BICYCLES ; LOCOMOTIVES; OBSTRUCTIONS.)

Meaning of." Extraordinary traffic," within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878, is not confined to the carriage of unusual materials, nor to carriage for unusual purposes; but it includes all traffic which, being exceptional

as regards the ordinary user of the road in question as a whole by all who use it, either in respect of its quality, its quantity, or its frequency, substantially increases the burden imposed on the road by ordinary traffic and causes damage and expense thereby beyond what is common. The object of the section is not to prohibit extraordinary traffic, but to throw the expense of repairing damage done thereby on those who cause it.-Pickering Lythe East Highway Board v. Barry, 30 W. R. 246; 8 Q. B. D. 59; disapproved, Hill v. Thomas, 42 W. R. 85; 62 L. J. M. C. 161; [1893] 2 Q. B. 333; 69 L. T. 553; 57 J. P. 628 (C. A.).

1881

How Estimated.-W., owner of ironstone mines, sent his traffic to the railway station along a highway in carts of the ordinary size and weight, but they made about seventy journeys per day. The other traffic was agricultural and very small, and W.'s carts caused the chief traffic there. Other owners of mines sent their traffic by a private railway, and not over the highway in carts. Held, the justices were wrong in holding that W. caused extraordinary traffic merely because he had many carts to send. Semble, the surveyor was wrong in merely comparing the traffic of W. with the traffic on part of the highway he was bound to repair.-R. v. Williamson, 45 J. P. 505.

In determining whether traffic conducted by order of a person along a road is "extraordinary traffic" within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878, the standard of comparison is the ordinary traffic of the road in question, and not the traffic conducted by persons over other roads in the district. Therefore, where a colliery company, in 1890, opened a colliery close to a road which was a by-lane used before that date for light agricultural traffic, and carted coal along it from the colliery to a railway siding, and thereby damaged the road, such traffic was held to be "extraordinary traffic," though the coal trade was the staple trade of the district, and though other colliery owners carried coal in carts over other roads in the district from their collieries to railway sidings.— Hill v. Thomas, [1893] 2 Q. B. 333; followed, Etherley Grange Coal Co. v. Auckland District Highway Board, 42 W. R. 198; [1894] 1 Q. B. 37; 69 L. T. 702; 58 J. P. 102 (C. A.).

1880

Traction Engine.-The Highways and Locomotives (Amendment) Act, 1878, s. 23, provides, in effect, that where, having regard to the average expenses of repairing highways in a neighbourhood, extraordinary expenses are incurred in repairing the highway by reason of the damage caused thereto by excessive weight or extraordinary traffic, the highway authority may recover from the person authorizing

the traffic the amount of the expenses proved to have been incurred owing to the excessive weight and traffic. Justices having found that the user by the appellant by two traction engines, each drawing two wagons, was extraordinary traffic on a road intended only for vehicles drawn by horses, and that 24 tons (the weight of one engine and two wagons when loaded) was an excessive weight for the road, although the engines were of less weight than that allowed by sect. 28 of the Act:-Held, that, in estimating what is excessive weight, regard must be had to the nature of the particular road over which it passes and to the weight commonly put upon the road; and that the nature of the traffic over the road is the standard by which to judge whether traffic is extraordinary or not; and that the finding was right. Judgment of the C. P. D. affirmed.-Aveland (Lord) v. Lucas, 28 W. R. 571; 49 L. J. C. P. 643; 5 C. P. D. 351; 42 L. T. 788; 44 J. P. 360 (C. A.).

1898

Highway Extraordinary Traffic-Contractor and Sub-Contractor.-P. a contractor having undertaken to build a lunatic asylum for the visiting committee of a county council, entered into a sub-contract with T. to carry the necessary materials for the work from two railway stations. T. was to find the horses, carts, and men to load and unload the materials, and he was only to use such roads as P. pointed out, and he was not to use any traction engines or carts which P.'s foreman did not certify to be suitable for the work. In the contract which P. entered into with the visiting committee of the asylum, there was a clause by which P. agreed to indemnify the committee against all claims for damage done by extraordinary traffic. There was also a similar clause in T.'s contract, by which he undertook to indemnify P. Extraordinary expenses having been incurred by the highway authority in consequence of damage caused by extraordinary traffic in the haulage of the materials:-Held, that P. was not liable to pay the damage for "extraordinary traffic." Per Williams, L. J.:-"I do not think that on the facts stated in the special case there is sufficient evidence to fix P. with liability under sect. 23 of the Highways and Locomotives (Amendment) Act, 1878. The expenses here were incurred by reason of excessive weight and extraordinary traffic, but there is nothing in the special case to show what was the excessive weight and what was the extraordinary traffic. I wish to call attention to that class of cases, and I say the test is that if a person employs another to do work which must necessarily cause damage, no matter how much the latter may be an independent contractor, that the former person is the 'person by whose order' the traffic is conducted, and the contract does not affect the question."-Pethwick v. Dorset County Council, 62 J. P. 579 (C. A. affirming, 77 L. T. 683).

1882

Traffic caused in Building a House. The respondent caused building materials for the construction of a dwelling-house and outbuildings to be carted over highways where the ordinary traffic was light agricultural traffic. The weight and quantity of such traffic alone caused an extraordinary expenditure by the appellants for the repair of the highways. Justices, on complaint by the appellants, refused to order the respondent to pay to the appellants the amount of such expenses, holding that they were not " extraordinary expenses within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878. Held (per Grove and Lopes, JJ.), that this Court would not reverse the decision of the magistrates. Per Lopes, J.:-The Legislature intended sect. 23 to relate to something unusual in weight or extraordinary in the kind of traffic, either as compared with what is usually carried over roads of the same nature in the neighbourhood or as compared with that which the road in its ordinary and fair use may be reasonably subjected to.-Pickering Lythe East Highway Board v. Barry, 30 W. R. 246; 51 L. J. M. C. 17; 8 Q. B. D. 59; 45 L. T. 655; 46 J. P. 215.

The defendant, being about to build a house in the plaintiffs' district, entered into a contract with a brick company for the delivery of a large number of bricks on the land where he intended building, but he gave no order as to the manner or time in which such bricks were to be delivered. The brick company, in the defendant's absence abroad, and without his knowledge, caused the bricks to be delivered by means of traction engines and trucks, the excessive weight of which caused damage to certain of the plaintiffs' roads, and they in consequence brought an action in the county court against the defendant to recover the amount of the expenses to which they had been put in repairing the roads. The county court judge, under the circumstances, came to the conclusion that the defendant was not a person "by or in consequence of whose order" such excessive weight had been conducted over the plaintiffs' roads within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878, as amended by sect. 12, sub-sect. 1 (c) of the Locomotives Act, 1898, and that he was therefore not liable. Held, that under the circumstances of the case, and in view of the facts, the county court judge was not wrong in arriving at the conclusion he had come to.-Egham Rural Council v. Gordon, 50 W. R. 703; 71 L. J. K. B. 523; [1902] 2 K. B. 120; 87 L. T. 31.

1880

Conveyance of Stone.-The appellant carried on a large traffic in stones on a highway from his quarry. This traffic caused the repair of