1827. 2. WELCH. the point at which the same road touches the said beforeDE BEAUVOIR mentioned road leading towards Bradfield, and the point at which the said old turnpike road touches the road leading by the parish church of Englefield towards Theale, and containing, in length, 3 furlongs and 10 poles, or thereabouts; and also so much of the said old turnpike road as lies between the point at which the same road touches the road leading from the said parish church of Englefield, towards North-street, and the point at which the new line of turnpike road crosses the said old turnpike road, and containing, in length, 7 furlongs and 6 poles, or thereabouts; should be stopped up and wholly discontinued to be used as a road or highway, and that notice boards to that effect should be provided and affixed at the abovementioned extremities of the same; and that the same several pieces of old turnpike road, thereby ordered to be stopped up, should be forthwith given up to the plaintiff. On the 7th February, 1826, the trustees caused notices to be affixed to posts at the extremities, and at four intermediate points of the locus in quo, and barriers to be placed across the road, and trenches to be cut, at the above-mentioned points. On the 9th March, 1826, possession of the parts of the old road, described in the order of 6th February, 1826, was delivered to the plaintiff by the clerk of the trustees. The next quarter sessions of the peace for the county of Berks. were held on the 4th April, 1826, but no appeal against the order of the said trustees was made, entered, or heard at such quarter sessions. The defendants, contending that the right of way was not destroyed, on the 16th May, 1826, committed the acts alleged to be trespasses. The old road, from the fir-tree in the Bath road, south end of Bostock-lane, to Hogmore coppice, contained 4,177 yards, or 2 miles, 2 furlongs, 39 poles, and 3 yards; the new road, between the same points, contains 3,970 yards, or 2 miles, 2 furlongs, and 3 poles, being less in distance by 36 poles and 3 yards. From Bostock-lane end to the 1827. 2. WELCH. parish church of Englefield, by the road now stopped up, and passing toward Bradfield, and on which trespasses DE BEAUVOIR were committed, the distance was 2,606 yards, which now, by the nearest way, is 3,231; and the difference, as affecting the parsonage-house and village of Englefield, is the same. The distance from Englefield to Pangbourn is increased, by the alteration, 77 yards. On the road leading to Beenham, within the parish of Englefield, are several dwelling-houses, the distance from which to the parish church of Englefield, was 1,562 yards, before the alteration, and now is 2,816. On the Beenham road, and within the parish of Englefield, are certain premises, and a considerable quantity of land, held by the corporation of Reading, in trust, for charitable purposes. The defendants are owners and occupiers of premises in the village of Englefield. On the Bath road, at the distance of about a mile from the end of Bostock-lane, in the direction of Bath, is a mill, called Tile Mill, where the inhabitants of Englefield have always hitherto been accustomed to grind their corn, from which mill there is immediate water-carriage, the distance of which from the house of the defendant, Welch, is increased 625 yards by the alteration. The question for the opinion of the Court is, whether, under the provisions of the statutes 3 Geo. 4, c. 126, and 4 Geo. 4, c. 95, and particularly under those contained in 3 Geo. 4, c. 126, ss. 83, 86, and 88, and in 4 Geo. 4, c. 95, s. 87 (a), the plaintiff is entitled to support his action of (a) By 3 Geo. 4, c. 126, s. 83, it is enacted, that it shall be lawful for the trustees or commissioners of every turnpike road, and they are thereby fully authorized and empowered, from time to time, to make, divert, shorten, vary, alter, and improve the course, or path of any of the respective roads under their care and management, or of any part or parts thereof, and to divert, shorten, vary, alter, and improve the course or path 1827. trespass against the defendants. If the Court shall be of DE BEAUVOIR Opinion that the plaintiff can maintain such action, the ບ. WELCH. S. 86, enacts, that after any new road shall be completed, the lands or grounds constituting any former roads or road, or so much and such part or parts thereof, as in the judgment of the said trustees or commissioners may thereby become useless or unnecessary, or shall or may (a) be stopped up and discontinued as public highways, (unless leading over some moor, heath, common, uncultivated land or waste ground, or to some church, mill, village, town or place, lands or tenements, to which such new road or roads doth not, or do not immediately lead, and which may therefore be deemed proper to be kept open, either as a public or private way or ways, for the use of any inhabitant at large, or any individual or individuals), and shall be vested in, and shall and may be sold, and conveyed by the said trustees or commissioners, in the manner hereinbefore mentioned, for the best price that can be gotten for the same; and the money arising by such sale shall be applied for the purposes of the act, for repairing and maintaining such turnpike road. S. 88, enacts, that where any turnpike road shall be diverted or turned, and the new road shall be made and completed, such new road shall be in lieu of the old road, and shall be subject to all the provisions and regulations in any act of parliament contained, or otherwise, to which the old road was subject, and shall be deemed and taken to be a common highway, and shall be repaired and maintained as such; and the old road shall be stopped up, and the land and soil thereof shall be sold by the trustees or commissioners to some person or persons whose lands adjoin thereto, as hereinafter mentioned with regard to pieces of ground not wanted; but if such old road shall lead to any lands, house, or place, which cannot, in the opinion of the said trustees or commissioners, be conveniently accommodated with a passage from such new road, which they are hereby authorized to order and lay out if they find it necessary, then and in such case, the old road shall be sold, but subject to the right of way and passage to such lands, house, or place, respectively, according to the ancient usage in that respect. By 4 Geo. 4, c. 95, s. 87, it is enacted, that if any person shall think himself aggrieved by any order, judgment, or determination made, or by any matter or thing done, by any trustees or commissioners of any turnpike road, in pursuance of this act, or the said recited act, (3 Geo. 4, c. 126), or any local act for making, repairing, or maintaining any turnpike road, (except where the order, &c. of such trustees or commissioners are hereby declared to be final and conclusive, and except under the particular circumstances herein (a) This is clearly an erroneous expression, the legislature undoubtedly meant to say, shall and may be stopped up, &c. Ed. verdict is to stand; but if they shall be of a contrary opinion, a nonsuit is to be entered. Tyrwhitt, for the plaintiff. The question is, whether, under the statutes 3 Geo. 4, c. 126, and 4 Geo. 4, c. 95, the commissioners of the roads in the district, had or had not authority to stop up the road in question; for if they had, as a trespass is acknowledged to have been committed on the road, the plaintiff is clearly entitled to maintain this action. Now, looking to the provisions of the two statutes altogether, (and by the latter of them the two are declared to be " as one act"), it seems plain that the com. missioners had that authority. By s. 4 of the 3 Geo. 4, c. 126, that act is extended to all acts then in force, or which should thereafter be passed, for making, widening, turning, amending, repairing, or maintaining any turnpike roads in England. By s. 83, the trustees or commissioners are authorized and empowed to make, divert, shorten, vary, alter, and improve the course or path of any of the roads under their management. By s. 84, it is made lawful for the trustees or commissioners of any turnpike road to treat, contract, and agree with the owners of any lands, which they shall see necessary to purchase for the purpose of widening diverting, altering, and improving such road. By s. 86, when a new road is completed, the trustees or commissioners are authorized to stop up and discontinue the old road, "unless leading over some moor, heath, common, uncultivated land or waste ground, or to some church, mill, village, town or place, lands or tenements, to which the new road does not immediately lead, and.which may therefore be deemed proper to be kept after mentioned), and for which no particular method of relief hath been already appointed; such person may appeal to the justices of the peace, at the next general or quarter sessions of the peace, to be held for the county, &c. wherein the cause of such complaint shall 1827. DE BEAUVOIR v. WELCH. 1827. DE BEAUVOIR v. WELCH. open, either as a public or private way, for the use of any individual." The question in this case will principally turn upon the operation and effect of that exception; that is, whether it absolutely ousts the trustees of their general power in the particular cases there excepted: and, if it does, whether this is one of those excepted cases. It is submitted that this clause does not oust the trustees of their general power, but is merely directory to them in the exercise of their discretion in the excepted, as well as in all other cases. It will be said, that though the trustees have a general power to stop up roads not falling within the exception, they are absolutely restrained from stopping up any road which leads to any church, &c., if the new road does not immediately lead to it. But if so, no turnpike road could ever be stopped up; for if a road is turned there must always be some place which stood in the old line, and which not being on the new line, the communication from thence to some church, &c., will not be immediate. Besides, that argument assumes that the word "to" some church, &c., means towards, whereas its true meaning undoubtedly is, immediately to; for if the old road did not lead immediately to the church, &c., the new road could not be objectionable for not leading immediately to it. There are cases in which it has been decided that the word to, or unto, does not mean towards. In Wright v. Rattray (a), the declaration alleged a right of way from A. unto D. It was found to stop short at C., and the declaration was held bad: though Lord Kenyon seemed to be of opinion that it might have been sustained if the word towards had been used. Here, the old road did not lead from the defendant Welch's premises immediately to Tile Mill; and with respect to the church, the new road is as near as the old one was. The exception appears manifestly to have been introduced with reference to the subsequent clause, s. 88. That section relates to cases where the old road is sold, or given in payment for land taken (a) 1 East, 377. |