No. I. c. 78. ment where none hath been already made; and the said justices shall and may if they think fit require the constables headboroughs tything 13 Geo. III. men and surveyor of every such parish township and place or any of them to return to them, at such time and place as they shall appoint, an account in writing of the sum which such assessment of six pence in the pound hath raised or will in his or their opinion raise within such parish Constables, &c. township or place and if the constables headboroughs tythingmen to return an churchwardens surveyors of the highways and such householders as Account which aforesaid of any parish township or place shall neglect or refuse to make the Assessment such list as aforesaid; or if the constable headborough or tythingman of of 6d. per any parish township or place shall not return the said list of names when Pound will made and such duplicate thereof as aforesaid and give such notice or notices and serve such warrant or warrants as in this Act is directed; or if the said constable headborough tythingman and surveyor or any of them shall neglect to return such account of the amount of such assessment as aforesaid when so required as aforesaid, every constable headborough tythingman churchwarden or surveyor so neglecting or refusing in any of the said cases shall for every such default respectively forfeit the sum of forty shillings. raise. Inhabitant for &c. II. And be it further enacted, That in all cases where the said justices Where the Jusupon neglect or refusal of the person so nominated surveyor as aforesaid tices, upon such to accept the said office shall appoint any other person for such surveyor Refusal, shall with a salary as aforesaid, the said justices shall and are hereby required appoint another to appoint one substantial inhabitant of such parish township or place for Person, they assistant to such surveyor in the several matters and for the several pur- are to appoint poses hereafter mentioned, until the next annual appointment of survey- one substantial ors according to the directions of this Act; and if the person so appointed his Assistant, assistant shall upon notice of such appointment refuse to accept that office, he shall forfeit the sum of fifty shillings: and in that case it shall and may be lawful for such justices to appoint any other substantial inhabitant of such parish township or place for assistant to such surveyor in manner and for the time aforesaid; and if such second appointed assistant shall decline or refuse to accept the said office, he shall in like manner forfeit the sum of fifty shillings; and the said justices shall and may appoint any other person inhabiting in such parish township or place assistant to such surveyor, who shall be intitled to the said forfeitures herein last before mentioned, and also to some further allowance by way of salary (to be paid as the surveyor's salary is hereby directed to be paid) if the said justices shall think any such salary necessary and shall order the same which they are hereby authorised to do: Provided that no person so appointed assistant for one year shall be liable to be appointed assistant for the same parish township or place within three years next following such first appointment without his consent. III. And be it further enacted, That the surveyor of every parish Bond to be township and place who shall not reside therein but shall be appointed given by the with such salary as aforesaid shall, if required by the churchwarden Surveyor. overseer of the poor or any principal inhabitant of the parish township or place for which he shall be so appointed surveyor, at the time of his appointment or within fourteen days after give a bond upon paper without stamp thereupon to some proper person within such parish township or place to be nominated by the said justices with sufficient surety to account for the money which shall come to his hands as surveyor according to the directions of this Act; which bond shall be good and effectual in law. IV. And be it further enacted, That the assistant so to be nominated and appointed shall and is hereby required to the best of his sistant Surskill and judgment to assist the said surveyor whenever requested veyor. by him in calling in and attending the performance of the statute -duty; in collecting the compositions fines penalties and forfeitures; in making and collecting the assessments; in making out and serving the notices authorised by this Act; and in such other matters and things as shall be reasonably required of him by the surveyor in the execution of his office as surveyor pursuant to this Act: and the said assistant shall justly and truly account with and pay to the said surveyor Duty of As No. I. or to his order from time to time according to the directions of this Act, all the money which shall come to his hands as assistant by the means 13 Geo. III. aforesaid; and in default thereof he shall forfeit double the value of the c. 78. Neglect. money by him so received and not so paid and accounted for; and if the said assistant shall wilfully neglect or make default in the performance of Forfeitures for any of the duty required from him by this Act, he shall forfeit for every such offence any sum not exceeding five pounds nor less than forty shillings, at the discretion of the justice or justices of the limit within which such assistant shall be appointed: and the said surveyor shall and is hereby required to send orders in writing upon the said assistant for the payment of all sums due to any person or persons for work or materials by virtue of this Act which amount to forty shillings or upwards; and the said surveyor shall not be responsible for any sum or sums of money which shall be received by the said assistant and shall not be actually paid to such surveyor or to his order as aforesaid. Surveyors to send Orders up on the Assistant for Payment, &c. If two Parts Choice of Sur- No Tree to stand within 15 Feet of the Centre of the Hedges, &c. adjoining, by whom and in what manner to be cut, V. Provided always and be it further enacted, That if two parts out of three of those so to be assembled in any such parish township or place for the nomination of surveyors as aforesaid shall agree in the choice of any particular person of skill and experience to serve the said office of surveyor for such parish township or place and in the settling of a certain salary for his trouble therein, and shall return the name of such person together with the list herein-before directed to the justices of the peace at their said sessions to be held in the week next after the Michaelmas quarter sessions; that then and in every such case it shall and may be lawful for the said justices if they shall think proper to appoint such person to be surveyor for such parish township or place and to allow him the salary mentioned in such agreement, which shall be raised and paid in the same manner as the salary herein-before mentioned is directed to be raised and paid; and in case any surveyor to be appointed under the authority of this Act shall die or become incapable of executing that office before such next special sessions for appointing surveyors the said justices or any two of them shall and may at some special sessions nominate and appoint such person or persons as they shall think proper to execute the said office until such next special sessions for appointing surveyors as aforesaid; and if such deceased surveyor had a salary they may allow the same salary to his successor in proportion to the time he shall serve the said office; and if the said justices of the peace at their special sessions or at any time afterwards pursuant to the powers of this Act shall appoint more than one person for surveyor of any parish township or place, all and every person or persons so appointed shall be comprehended under the word Surveyor in every part of this Act. VI. And be it further enacted, That no tree bush or shrub shall be permitted to stand or grow in any highways within the distance of fifteen feet from the centre thereof (except for ornament or shelter to the house building or court-yard of the owner thereof) or hereafter to be planted within the distance aforesaid; but the same shall respectively be cut down grubbed up and carried away by the owner or occupier of the land or soil where the same doth or shall stand or grow within ten days after notice to him her or them or his her or their steward or agent given by the said surveyors or any of them on pain of forfeiting for every neglect the sum of ten shillings. VII. And be it further enacted, That the possessors of the land next adjoining to every highway shall cut prune and plash their hedges, and also cut down or prune and lop the trees growing in or near such hedges or other fences (except those trees planted for ornament or shelter as aforesaid) in such manner that the highways shall not be prejudiced by the shade thereof respectively and that the sun and wind may not be excluded from such highway to the damage thereof; and that if such possessor shall not within ten days after notice given by the surveyor for that purpose cut prune and plash such hedges and cut down or prune and lop such trees in manner aforesaid it shall and may be lawful for the surveyor and he is hereby required to make complaint thereof to some justice of the peace of the limit where such highway shall be, who shall summon the possessor of the said lands to appear before the justices at some special sessions for that limit to answer to the said complaint; and if it shall appear to the justices at such special sessions that such possessor had not complied with the requisites of this Act, it shall and may be lawful for the said justices upon hearing the surveyor and possessor of such land or his agent (or in default of his appearance upon having due proof of the service of such summons) and considering the circumstances of the case to order such hedges to be cut plashed and pruned and such trees to be cut down or pruned in such manner as may best answer the purposes aforesaid; and if the possessor of such lands shall not obey such order within ten days after it shall have been made and he shall have had due notice thereof he shall forfeit the sum of two shillings for every twentyfour feet in length of such hedge which shall be so neglected to be cut and plashed, and the sum of two shillings for every tree which shall be so neglected to be cut down or pruned and lopped; and the surveyor in case of such default made by the possessor shall and is hereby required to cut prune and plash such hedges and to cut down or prune and lop such trees in the manner directed by such order; and such possessor shall be charged with and pay over and above the said penalties the charges and expences of doing the same; or in default thereof such charges and expences shall be levied together with the said forfeitures upon his or her goods and chattels by warrant from a justice of peace in such manner as is authorised for forfeitures incurred by virtue of this Act. No. I. 13 Geo. III. c. 78. VIII. And be it further enacted, That ditches drains or watercourses Occupiers shall of a sufficient depth and breadth for the keeping all highways dry and make sufficient conveying the water from the same shall be made scoured cleansed and Ditches, &c. kept open and sufficient trunks tunnels plats or bridges shall be made and laid where any cartways horseways or footways lead out of the said highways into the lands or grounds adjoining thereto by the occupier or occupiers of such lands or grounds; and every person or persons who shall occupy any lands or grounds adjoining to or lying near such highway through which the water hath used to pass from the said highway shall and is hereby required from time to time as often as occasion shall be to open cleanse and scour the ditches watercourses or drains for such water to pass without obstruction; and that every person making default in any of the matters or things aforesaid after ten days' notice to him her or them given of the same by the said surveyor shall for every such offence forfeit the sum of ten shillings. IX. And be it further enacted, That if any person or persons shall persons laying lay in any highway any stone timber straw dung or other matter, or in Stone, &c. in making scouring or cleansing the ditches or watercourses shall permit any Highway, the soil or earth dug out of such ditches drains or watercourses to remain &c. for every in such highway in such manner as to obstruct or prejudice the same for Offence forfeit the of five days after the notice thereof given by the surveyor of the highways; every person or persons offending in any of the said cases shall for every such offence forfeit and pay the sum of ten shillings. space 10s. X. And be it further enacted, That if any stone or timber or any hay Stone, &c. straw stubble or other matter for the making of manure or on any other laid within 15 pretence whatsoever not tolerated by this Act shall be laid in any high- Feet of the way within the distance of fifteen feet from the centre thereof, and shall Centre of the not within five days after notice given by the surveyor or some person Highway, and aggrieved thereby be removed, it shall and may be lawful for the owner or possessor of the lands adjacent or any other person or persons whomsoever by order from some justice of peace to clear the said highways by removing the said stone timber hay straw dung or other matter and to have take and dispose of the same to his and their own use. not removed, &c. XI. And for preventing obstructions in the said highways,' Be it Obstruction in enacted, That if any person shall wilfully set place or leave any waggon the Highways. cart or other carriage or any plough or instrument of husbandry in any of the said highways (except only with respect to such waggon cart or carriage during such reasonable time as the same shall be loading or unloading and standing as near the side of such highway as conveniently may be) so as to interrupt or hinder the free passage of any other car No. I. 13 Geo. III. c. 78. ways, &c. riage or of his Majesty's subjects; every person so offending shall forfeit the sum of ten shillings for every such offence. XII. And be it further enacted, That the surveyors of the highways to be appointed by virtue of this Act shall at all such times and seasons as they shall judge proper view all the common highways trunks tunnels Surveyors' plats hedges ditches banks bridges causeways and pavements within the Duty on taking parish township or place for which they shall be appointed surveyors; a View of High- and in case they shall observe any nuisances encroachments obstructions or annoyances made committed or permitted in upon or to the prejudice of them or any of them contrary to the directions of this Act, they shall from time to time as soon as conveniently may be give or cause to be given to any person or persons doing committing or permitting the same personal notice or notice in writing to be left at his her or their usual place or places of abode, specifying the particulars wherein such nuisances defaults obstructions or annoyances consist; and if such nuisances obstructions or annoyances shall not be removed and the ditches drains gutters and watercourses aforesaid effectually made scoured cleansed and opened and such trunks tunnels plats and bridges made and laid and such hedges properly cut and pruned within twenty days after such notice of the same respectively given as aforesaid, then the said surveyors shall be and they are hereby fully authorised and empowered forthwith to remove such nuisances obstructions or annoyances and open cleanse and scour such ditches gutters and watercourses and make or amend such trunks tunnels plats or bridges and cut and prune such hedges for the benefit and improvement of the said highways to the best of their skill and judgment and according to the true intent and meaning of this Act; and the person or persons so neglecting to make or open and cleanse such ditches gutters or watercourses or to cut or prune such hedges during the time aforesaid after such notice given shall forfeit for every foot in length which shall be so neglected the sum of one penny; and the said surveyors shall be reimbursed what charges and expences they shall be at in removing such nuisances obstructions or annoyances and making or opening cleansing and scouring such ditches gutters and watercourses and in making or amending such trunks tunnels plats or bridges and in cutting and pruning such hedges respectively by the person or persons who ought to have done the same over and above the said forfeiture; and in case such person or persons shall upon demand refuse or neglect to pay the said surveyor his charges and expences occasioned thereby respectively and also the said forfeiture of one penny per foot, then the said surveyor shall apply to any justice of the peace; and upon making oath before him of notice being given to the defaulter in manner aforesaid and of the said work being done by such surveyor and of the expences attending the same, the said surveyor shall be repaid by such person or persons all such his said charges as shall be allowed to be reasonable by the said justice; or in default of payment thereof on demand the same shall be levied in such manner as the penalties and forfeitures hereby inflicted are directed to be levied. Times of cutting Hedges, &c. in the Highways. Where old Ditches, &c. are insufficient, new ones may be made. XIII. Provided nevertheless, That no person or persons shall be compelled nor any surveyor permitted by virtue of this Act to cut or prune any hedge at any other time than between the last day of September and the last day of March; and that nothing herein contained shall extend or be construed to oblige any person or persons to fell any timber trees growing in hedges at any time whatsoever except where the highways shall be ordered to be enlarged as hereinafter mentioned, or to cut down or grub up any oak trees growing within such highway or in such hedges except in the months of April May or June, or any ash elm or other trees in any other months than in the months of December January February or March. XIV. And be it further enacted, That where the ditches gutters or watercourses which have been usually made or which are herein-before directed to be made cleansed and kept open shall not be sufficient to carry off the water which shall lie upon and annoy the highways; that then and in every such case it shall and may be lawful for the said surveyors by the order of any one or more of the said justices to make new No. I. c. 78. ditches and drains in and through the said lands and grounds adjoining or lying near to such highways or in and through any other lands or grounds if it shall be necessary for the more easy and effectually carrying 13 Geo. III. off such water from the said highways, and also to keep such ditches gutters or watercourses scoured cleansed and opened; and the said surveyors and their workmen are hereby authorised to go upon the said lands for the purposes aforesaid: Provided that the said surveyors make proper trunks tunnels plats bridges or arches over such ditches gutters or watercourses where the same shall be necessary for the convenient use and enjoyment of the lands or grounds through which the same shall be made and from time to time keep the same in repair; and do also make satisfaction to the owner or occupier of such lands which are not waste or common for the damages which he she or they shall sustain thereby to be settled and paid in such manner as the damages for getting materials in several or inclosed lands or grounds are hereafter directed to be settled and paid. XV. And be it further enacted, That the said surveyors of the highways Cartways to shall and they are hereby required to make support and maintain or Market Towns, cause to be made supported and maintained every publick cartway lead- and Horseways. ing to any market town twenty feet wide at the least; and every publick horseway or driftway eight feet wide at the least, if the ground between the fences inclosing the same will admit thereof, XVI. (3.) Provided always and be it further enacted, That where it Justices may shall appear upon the view of any two or more of the said justices of the order narrow peace that the ground or soil of any (4.) highway between the fences Roads to be thereof is not of sufficient breadth and may be conveniently widened and widened, &c. enlarged, or that the same cannot be conveniently enlarged and made See Cowp. 648. commodious for travellers without diverting and turning the same; such justices shall and they are hereby empowered within their respective jurisdictions to order such highways respectively to be widened and enlarged or diverted and turned in such manner as they shall think fit, so that the said highways when enlarged and diverted shall not exceed thirty feet in breadth; and that neither of the said powers do extend to pull down any house or building or to take away the ground of any garden park paddock court or yard; and for the satisfaction of the person or persons bodies politick or corporate who are seised or possessed of or interested in their own right or in trust for any other person or persons in the said ground that shall be laid into the said highways respectively so to be enlarged or through which such highway so to be diverted and turned shall go, the said surveyor under the direction and with the approbation of the said justices shall and is hereby empowered to make an agreement with him her or them for the recompence to be made for such ground and for the making such new ditches and fences as shall be necessary, according and in proportion to their several and respective interests therein, and also with any other person or persons bodies politick or corporate that may be injured by the enlarging altering or diverting such highways respectively for the satisfaction to be made to him her or them respectively as aforesaid: and if the said surveyor under the direction and with the approbation of the said justices cannot agree with the said person or persons bodies politick or corporate, or if he she or they cannot be found or shall refuse to treat or take such recompence or satisfaction as shall be offered to them respectively by such surveyor; then the justices of the peace at any general quarter sessions to be holden for the limit wherein such ground shall lie, upon certificate in writing signed by the justices making such view as aforesaid of their proceedings in the premises, and upon proof of fourteen days' notice in writing having been given by the (3.) The Forms of the Act must be followed as far as may be, otherwise the Proceeding is void, and the Invalidity thereof may be taken advantage of in a collateral proceeding; therefore when the Order omitted to specify the Breadth of the new Road, the old Road was held to subsist: Davidson v. Gill, 1 East. 64. (4.) This extends to Highways repaired Ratione Tenure, and the Surveyor is indictable for Dis obedience of an Order to widen them: Rex v. Balme, Cowp. 648. |