And if a Bishop Prior Abbot c. And 10 E. 3. f. 28 29. 27 Ass pl. 8. Co. â Inst f. 700. Co. 1â lib. Rep. f. 33. their Predecessors time out of mind have repaired a Bridge out of Alms or Charity or Good-will this shall bind them to repair it but if it hath been but for once or twice within Memory it bindeth not and yet it is Evidence against them till they prove the contrary If a Man make a Bridge for the 8 H. 7. f. 5. b. Co. 2 Inst f. 701. good of all their Majesties Subjects he is not bound to repair it by the Common Law but either Ratioââ Tenurae or Praescriptionis and noââ can be compelled to make new Bridge where never any were before but ãâã Act of Parliament But if a Man ãâã âolls Ca. 1 p. 368. a Mill for his own singular Profit anâ make a new Cut for the Water ãâã come to it and make a new Bridgâ over it and the People use to go over ãâã as over a common Bridge this Bridgâ ought to be repaired by him whiââ hath the Mill and not the County because he built it for his own Benefit 8 E. 3. B. R. Adjudged for ãâã Bridge and Channel-Bridge against ãâã Prior of Stratford and it is now repaired by the City of London whiââ hath the Mill. This Act of 22 H. 8. extends ãâã 22 H. 8. ch 5 Co. 2 Inst f. 701. to common Bridges in the Kings High-ways which are broken to the damagâ of their Majesties Liege People and ãâã to private Bridges to Mills or the like and therefore the Indictment upon ãâã Statute saith Quod pons publicus ãâã communis situs in alta Regia Via super flumen seu cursum Aquae c. ãâã common publick Bridge set in ãâã Kings High-way over a River or Water sewer c. And for the better Warrant Co. ibid. f. 703. of the Justices when it cannot bâ proved who own to repair such Bridges ãâã hath been gravely advised saith my Lord Cook That the Justices make inquiry by the Grand Inquest of the Body of the County at the General Quarter-Sessions who ought to repair the Bridges and if that cannot appear upon any proof made then to find that the Bridge is in decay c. And to conclude their Presentment How the ãâã Jury are to conclude their Presentments for decayed Bridges Co. ibid. f. 703. Et ulterius Juratores praedicti praesentant quod prorsus nescitur quae personae quae Terrae sive Tenementa aut Corpora Politica eundem pontem aut aliquam inde parcellam ex Jure aut antiqua consuetudine rerare debent seu consueverunt And the said Jurors do farther present that it cannot be known what Persons Lands or Tenements or Body Politick of Right or by ancient Custom ought to repair the said Bridge or any part of it or have been accustomed to do it and this will be a safe way for the four Justices or more to proceed herein And in a Franchise City or Borough where there are not four Justices of the Peace and one of them of the Quorum and where they keep not General Sessions the Justices of the Peace for the County in such case are to inquire upon this Statute But if the Franchise City or Borougâ be a County of it-self then the Justices of the Peace of the County haââ nothing to do with it but such decay of Bridges there must be remediââ according to Common Law as they were before the making of this Act oâ Parliament If a Man dwell in an House out oâ Who shall be accounted ân Inhabitant and liable to contribute to the charge of the Repairs of decayed Bridges the County Riding City or Towâ Corporate where a decayed Bridge is yet if he have Lands or Tenements ââ his own possession and manurance is that County Riding City or Towâ Corporate where the Bridge is he ââ an Inhabitant in both places within this Statute for habitatio dicitur aââ habendo quia qui propriis manibus sumptibus possidet habet ibi habitare dicitur So that a Man is said tâ So resolved in Jeffries Case Mic. 31 32 El. B R. Co. Rep. 5. lib. f. 66 57. inhabit where he keeps Lands in his own Manurance and Possession aâ aforesaid And so if a Man dwell iâ a Foregin Shire Riding City oâ Town Corporate and keepeth House and Servants in another Shire Riding City or Town Corporate he is aâ Inhabitant in each of them also within this Statute but though Servantâ are properly Inhabitants where theâ Live yet they are not such Inhabitants as this Statute extends to them but to such as be Housholders and to every Corporation and Body Politick residing in any County Riding City or Town Corporate or having Lands or Tenements in any Shire Riding City or Town Corporate quae proprits manibus sumptibus possident habent are said to be Inhabitants within the purview of this Statute and an Infant likewise that hath House and Lands by descent or purchase is liable to this publick Charge and so is the Husband of a Feme-Covert and by this word every Inhabitant all Priviledges of Exemptions or Discharges whatsoever from Contribution for the Reparation of decayed Bridges if any were are taken away although the Exemption were by Act of Parliament so that it seems Ecclesiastical Persons who by former Laws are freed from Pontage are by this Statute made liable to contribute to the Charges of decay'd Bridges Although by this Statute of 22 H. 8 How and after what manner ãâã Taxes are usually laid on for the repairs of decayed Bridges neither the Justices without the assistance of the Constable or two able Men of every Town or Parish nor the Constables or Inhabitants without the Justices can make a Taxation noâ when the same Tax is made can the same be set by the Justices in a gross Sum upon every Hundred Parish and Town but that every Inhabitant ought to be taxed singly by himself Co. 2 Inst f. 702 703. and each one bear his own Burthen and that indented Rolls in Parchment of every several Hundred and of the Names and Sums of every particular Person so by them taxed and sealed by the said Justices ought to be given to the Collectors appointed for the Bridges for their Warrant to gather the said Tax by yet notwithstanding to free the Constables and Inhabitants from the trouble and charge of Attendance the common course is to charge every Hundred and Constablery with a Sum in gross and to give it in charge to the Chief Constables of every Hundred who send their Warrants to the Petty-Constables to gather the same by virtue of which Warrant the Inhabitants lay on their Assessment and pay the Mony to the Petty-Constables who pay the same to the Chief-Constables and they pay the Monies for their whole Hundred at the Sessions And this
Let this Book be Printed Oct. 20. 1693. G. Treby A GUIDE TO SURVEYORS OF THE High-Ways SHEWING The Office and Duty of such Surveyors with several Cases and Resolutions in Law relating to the same Collected and gathered Out of publick Acts of Parliament now in force and out of the Year-Books and other Books of the Municipal Laws of this Kingdom With an Abridgment Of the Statute of 22 H. 8. Chap. 5. for the repairing of Bridges with Cases relating thereunto And likewise a Summary Of the Statutes made for Paving Cleansing c. Streets Lanes c. in London and other Towns and Places And an Abstract Of Statutes made for the Repairs of High-ways and Bridges in particular Places Methodiz'd into short CHAPTERS for the ready finding out any Matter contain'd in the BOOK By G. Meriton Gent. Non nobis solum nati sumus sed partem Parentes partem Amici partem Patria vindicant LONDON Printed by W. Rawlins and S. Roycroft Assigns of Rich. and Edw. Atkins Esquires For A. and J. Churchill in Pater-noster-Row and Fr. Hillyard Bookseller in York 1694. The Dedication To the much Honoured Sir Marmaduke Wyvil Sir William Strick âand Sir Brian Stapleton Sir William Franck âand Sir Henry Marwood Sir William Caley Sir Mark Milbanck Sir Christopher Wandesâord Sir Thomas Pennyman Sir William Chaytor Sir Edward Blacket Sir Charles Hoâham and Sir William Robinson Baronets And to the Honoured Sir Barrington Bourcher Sir William Hustler Sir Henry Bellasis Sir Rich. Osbaldaston Sir William Bowes Sir Jonathan Jennings and Sir Abstrupus Danby And to the Worshipful Will Palmes Tho. York Will. Thompson âeon Smelt John Wastal Rich. Pierce Tho. âascelles Charles Tankred Tho. Worsley âdw Thompson John Lowther Tho. Langâey Tho. Hesletine John Hill Jun. John Gibâon Rich. Stains Roger Talbot John Bealby âohn Smelt John Hutton Tho. Pullein Rob. Waters * Henry Metcalfe * Tho. Gower âich Darley * James Mountain Constable âradshaw * Tho. Wakefield Tho. Strangeâayes * Luke Robinson Francis Wyvil Anâhony Wharton Will. Pennyman John Hopâon and * Tho. Saunders Esquires Their Majeââies Honoured and Worthy Justices of the Peace ãâã the North-Riding of the County of York Honoured and Worthy Sirs THE drowsie Heads of the slumbring Staâutes made for the repairing and amendment of High-ways being now rowsed up which Laws for some time by-past have seem'd to be as it were seised on with a Lethargy and the High-ways for lack of putting the Laws in Execution were grown so foundrous as the Law terms it and so extreamly bad that the Owners and Occupiers of Lands in most Places have been necessitated to suffer their Fences to lie down and to permit People to travel over their inclosed Grounds to the private Damage of such particular Persons and the publick Loss and Damage of the whole Country in the decay of Commerce and Trade by reason of the impassableness of the High-ways But since the evigilating and exuscitating of the former Statutes backt with the new Laws of their Majesties KING William and QVEEN Mary the Country People in most Places have set themselves to labour more effectually in the repairing and amending of their High-ways than they have usually done formerly But notwithstanding their Activeness more than heretofore yet they are very defective in the Measures taken about their Repairs in most Places which is principally occasioned through the ignorance of Surveyors of the High-ways in the Duty and Authority of their Office for although your Worships have given these Officers printed Directions and do also acquaint them by Parol Instructions yet many of them are so stupid and dull of Apprehension that unless a thing be reiterated over and over and over again they either cannot or will not apprehend it Therefore I conceived that some little methodical Pocket-Book of the Laws now in force about High-ways might be especially at this juncture of time serviceable to the Country So having set some vacant Hours apart for that purpose and bestowed some little Pains therein I have methodized the product of my Barren Genius into the Vnpolished Form it now appears in and do pardon my Presumption humbly dedicate it to your Worships not at all conceiving or imagining that it can in the least better the Knowledge of any of your Worships in the Matters handled therein But considering that a Prophet is not without Reward but in his own Country and suspecting that this rude and indigested Pamphlet and its Auchor may not only fall under the hard Censure of some but also meet with thâ Scoffs and Slights of others I do therefore the better tâ secure and defend my Selâ and it against such Contumelies and opprobrious Receptions take Asylum under the Protection of your Worships and do not only hope but humbly crave you will noâdeny Tutelage to him who is Gentlemen Your Worships very Humble Servant G. Meriton TO THE READER CAndid and Ingenuous Reader for so I wish thee to be their Majesties Justices of the Peace appearing now more vigorous and active than usual in putting the Laws in Execution for the amending and repairing the High-ways and many that are called to the Exercise of the Office of Surveyors of the same being ignorant in the extent of their Office and the Power and Authority thereof and the Inhabitants in most Places taking advantage of their Officers Deficiencies in the Knowledge of the Power of their Authority are so remiss in the discharge and performance of their Duties about the amending and repairing their High-ways that the Work is performed very negligently and the Intention of the Laws made for that purpose are tho' not wholly yet in a great measure frustrated To the end therefore that the Surveyors may be the better instructed in the Power and Authority of their Office and the People may learn and know their Duties I have collected this small Abstract of the Laws now in force relating to High-ways and divided the Book in twenty short Chapters under proper Heads for the more easie and ready finding out of any thing comprised therein and being but a small Pocket-Book any one may have it ready at hand to resolve their Doubts and Quaeries And to the end that it may be of general Use and serviceable in all Places and upon all Occasions as well for the Repairs of Bridges other Repairs as for the High-ways I have therefore added an Abridgment of the Statute of 22 H. 8. ch 5. made for the amending and repairing decayed Bridges and of the Statutes made for Paving Repairing and Cleansing of the Streets Lanes and Allies in the Cities of London and Westminster and the Liberties thereof and for several other Towns and Places with divers other Matters relating to the said Places and likewise the Statutes for repairing the Northern Post-Road in the County of Hertford and taking Toll at Wades Mill in the said County lately revived by an Act of Parliament made in the 4 and 5 Years of their Majesties Reigns And lastly An Abstract of
such Statutes as have been made for the repairing and amending of some particular Wayes and Bridges in some certain Counties in England and Wales If the Book proves serviceable I have my desire and to such as carp and find fault my request is that they will amend the Errors and supply the Defects and consider that est voluisse satis And tho' my Pains do not merit their good Opinion ãâã I hope they will have ãâã occasion to be Angry but whether they be ãâã no it shall not discouragâ or deter me to be to thâ utmost of my Power seâviceable to my Countrâ whilst I am G. Meriton A SUMMARY OF THE CONTENTS Of the several CHAPTER' 's Contained in this TREATISE CHAP. I. OF High-ways in general how many kinds of Ways and how distinguished and of some Priviledges belonging to the High-ways Page I CHAP. II. Who are to be Surveyors of the High-ways and how and by whom to be chosen and when and what Forfeiture for refusing to take the ãâã upon them and how to be levied ãâã disposed of ãâã CHAP. III. What things are first to be done ãâã the Surveyors of High-ways ãâã they have taken the Office ãâã them and within what time ãâã under what penalty and how to levied and disposed of ãâã CHAP. IV. Who and what Persons are to appeââ and labour upon the publick or common Days appointed by the Suâveyors for the amendment and ãâã pair of High-ways and where thââ are to appear and after what maâner and how long they are to worââ and under what Penalties anâ how to be levied and disposed ãâã with some Cases and Resolutions râlating to these Matters 2â CHAP. V. How Trees Hedges and Bushes growing in or adjoyning to High-way are to be ordered and to whom the Freehold of High-ways belongs and who shall have the Trees growing therein when they are cut down and about scowring Dikes and Gutters and making of Trenches and what Forfeitures for defaults and neglects and how to be levied and disposed of and what breadth High-ways and Causeys in them are to be 42 CHAP. VI. What Stones and Rubbish the Supervisors may take for the amendment of the Highways and in what places and how they may dig for Sand Gravel c. And when they are necessitated to buy such Materials at their Charges how they are to be reimbursed 52 CHAP. VII How when where and before whom Presentments upon the Statutes for High-ways are to be made and to whom and within what time and before whom account is to be made by Officers for Monies received by virtue of any of the said Statutes 57 CHAP. VIII Hâw Lands given for the maintenance of Cawseys High-ways Pavements and Bridges are to be let and how Assessments are to be made and gathered for the repairing of High-ways and of such as make resistance and oppose such persons ãâã are imployed in the Execution of the Statutes made for amendment of High-ways and concerning Suits that shall be brought about the same 64 CHAP. IX The Surveyors Duty about travelling Waggons Wains Carts or Carriages with an account when and by whom and where the Prices for Goods carried by Waggoners and other Carriers are to be assessed and rated and the Penalties for taking above such Rates 69 CHAP. X. Of Nusances in publick and private Ways how removeable and punishable and where an Action upon the Case lies for a Nusance and where not 73 CHAP. XI An Abridgement of the Statute of 22 H. 8. chap. 5. about the Repair of Bridges with some Expositions and Cases in Law relating thereunto 2 CHAP. XII An Abridgment of such Statutes as have been made for the paving and cleansing the Streets and Lanes in the Cities of London and Westminster and Suburbs and Liberties thereof and Out-Parishes in the County of Middlesex and the Borough of Southwark 93 CHAP. XIII An Abridgment of so much of the Statutes of 15 Car. 2. chap. 1. e and 16 and 17 Car. 2. chap. 10. as concerns the repairing the ancientd High-way and Post-Road froââd London to York and so into ãâã land as lies in the several Parishe Towns Vills and Hamlets in the County of Hertford and now revived by the Statute of the fourth and fifth Years of their present Majesties Reigns 121 CHAP. XIV How new Ways may be set out in the Welds of Kent and Sussex and how and by whom Kings Ferry in the Isle of Sheppy and the Ways belonging âo the same with the Sea Banks and Sea Works on the Coasts of Norfolk are to be repaired and what the Owners and Occupiers of Iron Works are to perform ãâã pay towards the repairs of the High-ways in Sussex Surrey and Kent 136 CHAP. XV. The Heads of the Statutes made for paving repairing and maintaining the Streets and Lanes in Cambridge Ipswich and Chichester 145 CHAP. XVI An Abstract of the Statutes made for repairing Huntington-Lane near the City of Chester the common High-way called the Cawsey lying in the Counties of Dorset and Somerset between the Towns of Shaftsbury and Sherborne and for amending the High-ways within five Miles of the City of Oxford 151 CHAP. XVII The Heads of the two Statutes made in the 18 and 27 Qears of Queen Elizabeth for the maintenance and reparation of Rochester-Bridge in the County of Kent 156 CHAP. XVIII An Account of the Statutes of the 39 and 43 Eliz. made for repairing and maintaining the Bridge at Wilton upon Wye in the County of Hereford and Edon and Prestberk Bridges in Cumberland 160 CHAP. XIX How Chepstow-Bridge standing between the Counties of Gloucester anâ Monmouth is to be repaired aâ maintained 1â CHAP. XX. Cardiff Newport and Carlion-Bridgâ in Wales how to be repaired aââ maintained 1â A GUIDE FOR SURVEYORS OF THE High-Ways CHAP. I. Of High-ways in general how many kinds of Ways and how distinguished and of some Priviledges belonging to the High-ways AN High-way in our Law-Language Co. Lit. f. 56. 2. Terms of the Law and Blounts Lavv Dictionary verb Chimin and Chiminage Crom. Jurisd f. 189. is called Chimin being a French word for Way whereof cometh Chiminage or Chimmage Chiminagium or Chimmagium which signifies a Toll due by Custom for having a Way or Passage through a Forest to the disquiet of the Wild Beasts of the Forest And no Forester but such as hold in 9 H. 3. Charta Forestâ cap. 1.4 Forest 14. Rest Fee-Farm of the King are to take any Statutes at large printed 1587. f. 5. Wingates Forests Chases c. §. 14. Keb. Stat. printed 1684. f. 7. Raft Forest 14. Chiminage or Chimmage and such who do hold in Fee-Farm are to take it only in such places where it hath been accustomed to be paid viz. Two pence half yearly for a Cart and for an Horse that beareth Loads every half year an half peny and this must be but of such that come as Merchants by licence to buy Bushes Timber Bark or Coal and sell the same again at
levy or cause to be levied by distress or lawful means the said Forfeitures and Sum of Mony so assessed and may make such Avowry Cognizance or Justification as by the Common Laws may be made for Arrearages of Rent-Charge and shall have like Judgment Costs Damages and Return All and singular Person and Persons 18 El. ch 19. Paving Rast 7. Stat. at large printed 1587. f. 618 619. Keb. St. 1. 863. their Heirs and Successors which shall be immediate Owners Land-Lords or Ter-Tenants of any Houses Lands or Tenements within the City of Chichester in Fee-simple Fee-tail or for Life or Years shall from time to time by the assignment of the Mayor for the time being pave or cause to be paved with good paving Stones along from and against his or their House and Houses Lands and Tenements adjoyning to the Street so much of the said Street in length to the Channel or to such place as the Channel there shall be by the Mayor appointed Pain for not paving upon pain to forfeit for every Yard square not sufficiently paved within two months after warning thereof given by the major-part upon the Presentment thereof made before him by the Oaths of twelve honest Men of the said City chosen for that purpose the Sum of three shillings and four pence and the Owners Land-Lords and Ter-Tenants of any House Houses Lands or Tenements in Fee-simple c. within the said City adjoyning to any of the greater Streets there called the East West North and South-Streets their Heirs and Successors shall from time to time maintain and repair the said Street and Streets so adjoyning with like Stone against their Houses c. in such like manner as above declared in pain of twenty Pain for noâ keeping Streets in repair and wâll paved pence for every Yard square not sufficiently repaired and amended and being presented in manner and form aforesaid which Forfeitures shall be to the use of the Mayor and Citizens towards the maintenance and repairs of the City Walls and the Mayor for Mayor to make inquiry every quarter of a year and to levy Penalties by distress the time being shall have power every quarter of a Year to enquire of the Defaults by the Oaths of twelve Men and to levy or cause to be levied the said Forfeitures by distress or other lawful means and make such Avowry Cognizance or Justification as by the Common Laws may be made for Arrearages of Rent and have like Judgment for Costs Damages and Return The Lessee for Years or at Lessees to defalk out of their Rents Will may defalk and abate so much out of their Land-Lords Rents as they shall expend in such paving iâ there be no Covenant to the contrary CHAP. XVI An Abstract of the Statutes made for repairing Huntington-Lane near the City of Chester the common High-way called the Cawsey lying in the Counties of Dorset and Somerset between the Towns of Shaftsbury and Sherborne and for amending the High-ways within five Miles of the City of Oxford BY the Statute of 37 H. 8. Huntington-Lane 37 H. 8 ch 3. High-ways Rast 2. Stat. at large printed 1587. f. 1011. Keb. St. f. 606. near the City of Chester being in length two miles and an half or thereabouts is to be repaired from time to time by one that shall dwell in the said Lane who shall have Grass Pasture or Feeding for five Kine or five other kind of Beasts or Head of Cattel in and upon the said High-way and upon the sides of the same from Bothil to Butterback-Bridge Sir William Stanley and Sir Hugh Calverly and their Heirs Males being of full Age and in default of them the Mayor and Aldermen of Chester shall appoint the said Party and remove him if he be negligent in repairing any part of the said Way By the Statute of the first of Queen 1 M. Sess 3. ch 5. St. aâ large printed 1587. f. 230 231. Shirbone Rast 1. Keb. St. f. 716. Mary The common High-way called the Cawsey paved with Stone in the Counties of Dorset and Somerset between the Towns of Shaftsbury and Sherborne being about twelve miles in length shall be repaired and amended Who chargable to the repairs by the Owners Tenants Farmers and Inhabitants of the Mannors Lands Tenements and Parishes lying nigh to the said Cawsey on either side thereof and by the Inhabitants of the Towns of Shaftsbury and Sherborne and by the Owners Tenants and Farmers of Mannors Lands Tenements and Hereditaments and by the Inhabitants of and within the Forest of Gillingham and Liberties of Gillingham and Alcetter and the Hundreds of Redlane and Sherborne in the County of Dorset and of the Hundred of Horthorne in the County of Somerset and Justices of Peace âo make Orders and set Fines the Justices of Peace of the said Counties at their Quarter-Sessions or otherwise may call before them or four of them at the least two to be of the Quorum so many of the Persons bound to repair and amend the said Cawsey as they think fit and to make Orders and Assessments from time to time towards the repair thereof and may set Fines on Defaulters and make Orders for levying by distress the said Assessments and Fines and for a yearly Account to be made of the same to whom they appoint and the said Orders to be entred and inrolled of Record by the Clerks of the Peace of the said two Counties in the Rolls of the Sessions and all Pains and Pains and Penalties how to be bestowed Penalties to go towards the amendment of the said Cawsey and if the Justices refuse to put this Act in execution then upon request of the Lord Chancellor of England or Lord Keeper of the Great Seal shall make a Commission to certain discreet Persons to put this Act in execution who shall have the same Power and Authority as is given to the Justices of Peace by this Act. It is enacted by the Statute of 18 El. 18 Eliz chap. 20. Bridges Rast 4. St. at large printed 1587. f. 619 620 Keb. St. f. 863 864 That every Person and Persons resident dwelling or inhabiting within five miles of the City of Oxford and having in his Occupation to the use of himself or any other a Yard-Land or more in Tillage Pasture or other Ground or using a Draught Plow or Wain at their own proper Costs and Charges for every such Yard-Land is to send one Wain Draught or Cart furnished after the Custom of the Country with Necessaries convenient and two able Men for amending repairing and upbuilding of decayed Bridges Ways and Passages within a mile of the said City and every other Housholder Cottager or Labourer within the said Circuit being no hired Servant must go themselves or send a sufficient Labourer to the repairing the same and all to be at the command of certain Supervisors to be appointed by the Vice-Chancellor and Mayor with other Justices of
pleasure but for no other Carriage by Cart shall Chimmage be taken noâ of those that bear upon their Backs Brushment Bark or Coal to sell though they get their Livings by it except they take it in the Kings Demesâ Woods An High-way in Latin is called via Co. Lit. 56. Dalt J. P. printed 1677. chap. 50. f. 98. vid. Fleta lib. 4. cap. 1. Bract. lib. 4. f. 232. Kitchin Court Leet c. printed 1585. p. 49. b. a vehendo from carrying in respect oâ the Carriages passing to and fro therein and is defined to be transitus a locâ ad locum the passage from one placâ to another And although it be said in the Terms of the Law and by Mr. Blount that there are but two kinds of Ways yet my Lord Cook and others tell us that there are three kinds of Ways As first a Foot-way calleâ Iter Quod est jus eundi vel ambuland hominis where a Man hath right to go and come and was the first or prime Way The second kind is both a Foot-way and a Horse-way which is called Actus ab agendo and vulgarly is called Pack and Prime-way because it is both a Foot-way which was the first or prime-way and a Pack or Drift-way also sometimes called a Bridleway and then the third kind is Via or Aditus which contains both the other two and also a Cart-way or Carriage-way for this is jus eundi vehendi vehiculum jumentum ducendi A publick way for Cart and Carriage and driving Cattel c. and this Way is two-fold viz. Regia Via the Kings High-way free for all Men and Communis Strata belonging to a City or Town or between Neighbours and Neighbours And Minshaw also out of Vlpian Dalt J. P. printed 1677. chap. 50. f. 98. makes three kinds of Ways Publicam Privatam Vicinalem a Publick-way a Private-way and a way of Vicinage or Neighbour-hood via publica quam Latini Regiam appellant a Publick-way is that called the Kings High-way via vicinalis quae in vicis est vel quae in vicos ducit these Ways of Vicinage are Ways between Street and Street Neighbour and Neighbour House and House in Cities and Towns via privata est quam agrariam dicunt A private way is reckoned to be a Field-way and these ways are of two sorts vel ea quae ad agros ducit per quam omnibus commeare licet either that way which leads into the Fields lawful for all Men to pass and repass go and come in vel ea quae est in Agris cui imposita est servitus it a ut ad Agrum alterius ducat or such a Way as is set out in the Fields to lead to another Mans ground And these private ways also which Terms of the Law and Blounts âaw Dictionary ãâã Chimin one or more Men have either by Prescription or Charter through another Mans Grounds are likewise divided into a way in gross and a way appendant Chimin in gross is that way which a Man holds principally and solely in âââself as if a Man hires a Close or Pasture and hath a Covenant for ingreââ and regress to and from the said Cloââ through the Ground of some other Man through which otherwise ãâã might not pass this is a way in gross Or a way in gross may be that which the Civilians call personal as wheâ one Covenants for a way through thâ Ground of another Man for him and his Heirs And Chimin appendant ãâã way appendant is that way which a Man hath adjoyned to some other things as appertaining and belonging thereunto and may be that way which the Civilians call Real as where a Man purchaseth a way through the Ground of another Man for such as do or shall dwell in this or that House or that are the Owners of such a Mannor for ever c. And this is a way appendant to the said House or Mannor And it was said by Fairfax a Justice 5 H. 7. f 7. b pl. 15. Kitchin Court Leet c. printed 1585. p. 50. b. Bro. Chimin 14. of the Kings Bench that if a Man have Chimin appendant a way appendant to his Mannor or House that this way cannot be made in gross by Grant because none can have the benefit of such way but he that hath the Mannor or House to which the way is appendant but via Regia the Kings High-way may be made in gross because the Country may have the benefit of it notwithstanding that they have Tr. 10 Car. 1. â R. per Curiam upon a Tryal at Bar upon an Information against Sir Edward Duncombe Cro. Car. f. 366. pl. 3. Rolls Cases 1 part f. 390. not the Land If there be a Common High-way for all the Kings Subjects which lies in an open Field uninclosed and it hath been used time out of Memory that when the said way hath been foundrous A. 10. 15. Dalt J. P. printed 167â ch 50. f. 98. Bonâ Guide for J. P p. 110. and bad that then the People have used to go by Outlets upon the Lands adjoyning in this Case these Outlets are parcel of the way for the Kings Subjects ought to have a good Passage and the good Passage is the Way and not only the beaten Track for if the Lands adjoyning were sown with Corn the Kings Subjects the way being foundrous may go over the Corn. Where a Common High-way hath Cro. Car. ubi supra Rolls Cases 1 par 8. 390. B. 30. 35. 40. 45. Dalt J. P. ubi supra Compleat Justice printed 1681. p. 160. time without memory been used to be repaired by the Country If afterwards J. S. who hath Land not inclosed next adjoyning to the said High-way on both sides thereof and he for his own advantage doth inclose his Land on both sides of the way with an Hedge and Ditch he by this hath taken upon him to repair the said way for the future and hath freed the Country from the Reparation thereof so that at all times afterwards when need requires he must repair it and it is not sufficient for him to make it as good as it was at the time of the Inclosure but he ought to make it a perfect good way without having any respect to the way as it was at the time of the Inclosure for when the way laid in the open Fields not inclosed the Kings Subjects used when the way was bad and foundrous to go for their better passage upon the Fields adjoyning to the way out of the common Track of the way which liberty is taken away by the Inclosure And in Sir Nicholas Staughtons Tr. 22 Car. 2. B. R. Siderf Rep. 1 p. f. 464. pl. 8. Case it was said by the Chief Justice and not denied That if one inclose Land but on one side of the High-way which was anciently inclosed on the other side he which makes such new Inclosure must repair the whole way but if there
a City or Town Corpoââte it must be repaired by the Shire ãâã Riding within which it is situate ãâã if it happen to be part in one âhire Riding City or Town Corâorate and part in another then the ânhabitants of the several places shall reâair their several parts that lie within ââeir Precincts And in every Case where it cannot 22 H. 8. ch 5. Co. ibid. f. 703. Keb. ibid. sect 4 5 8. Poult ubi supâa Bridges 2. ãâã known and proved what Persons ãâã Tenements or Bodies Politick ãâã or make and repair the same Wingate Bidges sect 5. ãâã four Justices of the Peace one to ãâã of the Quorum within the Limits ãâã their several Commissions and Auââorities have power to call before ââem the Constables or two able Men ãâã every Town and Parish within the ãâã Riding City or Town Corpoââte and with the assent of the said So that by thââ Act the Justices cannot make the Tax without the Constable or two Inhabitants noâ they without the Justices Co. Inst 2 p. f 704. âonstables or Inhabitants may make Tax of such a reasonable Sum of ãâã upon every Inhabitant in any ãâã City Town or Parish within the ãâã of their Commissions as they all think fit and the Names and Every Inhabitant is to be taxed by himself and not a gross Sum upon a Constable c. Co. ubi supra Poult Bridges 3 4. ãâã of every particular Person so by ãâã taxed being written in a Roll ãâã the Justices shall appoint two ââllectors for every Hundred who receiving one part of the Roll so ãâã dented under the Hands and Seals the said Justices by virtue thereof ãâã are to collect and receive the ãâã therein mentioned and to ãâã upon such as refuse and to sell ãâã Distress and retain and keep all ãâã Mony taxed and the residue if ãâã Distress be better to deliver to ãâã Owner thereof and the Collectors ãâã to pay the Monies into the Hands ãâã the Surveyors appointed by the ãâã Justices for that purpose who are ãâã see such decayed Bridges repaired ãâã amended which Collectors and Sââveyors and their Executors and Adâânistrators are to render an Account the said Justices upon pain of Iâprisonment Wingate Bridges seââ 8. without Bail till ãâã make a true Account upon which ãâã the Justices are to allow ãâã such reasonable Costs and Charges they think convenient and the ãâã upon presentment of ãâã against such Persons as own to chargeable to the making and ãâã of such Bridges may make ãâã Process into every Shire within ãâã Poult Bridges 5. Wingate Bridges sect 6. Realm against such Persons and Sheriffs and Bailiffs of Liberties ãâã Franchises are to obey the same ãâã pain make such Fine as the said ãâã think fit This Act shall not extend to the 22 H. 8. ch 5 Kâb St. at large printed 1684. f. 385. sect 6 7. Poult Bridges 6. Wing Bridges sect 7. âiberties of the five Ports or Members ââ the same save only that the ãâã Mayors and Bailiffs elected and ãâã of the same Ports and every ââ them have such Power and Auââority to enquire hear and determine ãâã manner of common Annoyances ãâã Bridges within the same Ports and âembers as the Justices do in their âhires and Liberties out of the same âorts by virtue of this Act. A Bridge in Latin is called Pons a Co. 2 Inst f. 701. in Mârgin 700 in Margin ãâã Quia tanquam in Aere pendet ãâã my Lord Cook Because it hangs as ãâã were in the Air but some derive it ãâã Pono to place or set Quia ad ãâã ponitur Because it is set for ãâã over And the said Lord Cook âaith That Pons significat omne quod âuper Aquas transimus Every thing ââat we may pass-over the Water upân and Pontage is derived from Pons Terms of the Law and Blounts Law Dictionary verb. Pontage Co. Rep. 8. lib. f. 47. â 3 E. 3. Ass 445. F. N. B. D. 227. ãâã signifies sometimes the Contriâution that is given for the mainâânance or re-edifying of Bridges and âometimes the Toll paid for that purâose by those that pass over Bridges ând so it is mentioned in 39 Eliz. chap. 24. And before the making ãâã 27 Ass pl. 28. 43 Ass pl. 37. Co. 2 Inst f. 701. this Statute 22 H. 8. Presentments foâ repair of Bridges might be by ãâã Common Law before the Justices ãâã the Kings Bench or before Justices ãâã Eyre or Commissioners of Oyer anâ Terminer and in the Tourn or Leet Of common Right all the Counâââ 10 E. 3. 28. Co. 13 Rep. f. 33. Co. 2 Inst f. 700 701. Pasch 1â Jac. 1. Poph. Rep. f. 192 Tr. 2 Car. 1. B. R. Tr. 10 Car. 1. in an Information against thâ Inhabitants of Middlesex for Longford Bridge agreed by the Court Rolls Case 1 p. f. 368. Câom 186. b. 187. shall be chargeable to the Reparatioâ of a Bridge where no other is bouââ by the Law to repair it because it ãâã a common Easement for the whoââ County And so as to that Point ãâã Statute 22 H. 8. chap. 5. was but ãâã affirmance of the Common Law ãâã those who have Lands on the one siââ of a Bridge or on the other or ãâã both sides are not bound of ãâã Right to repair the same But he who hath the Toll of ãâã 14 E. 3 Bârr 276. ââ Râp 13. lib. â 33. Men or Cattel which pass over ãâã Bridge or Cawsey ought to repair ãâã same for he hath the Toll to ãâã purpose Et qui sentit ãâã sântire debet onus Also a ãâã may be bound to repair a Bridge Râtione tenurae Terrarum sive Tenemeâtorum c. By reason of the ãâã âeâist f. 268. â N. B ãâã b. Co. 2 Inst f. 700. of his Lands And if such a Persoâ alien part of these Lands to one Man and part of them to another ãâã twenty Acres to one and ten Acres ãâã another and afterwards one of these ãâã is presented only and found liable ãâã the Repairs of a Bridge and is ãâã for the same in this Case ãâã may have a special Writ de onerando ãâã rata portione to be discharged for ãâã Rate according to his proportion ãâã a particular Man cannot be bound For the Act of the Ancestor cannot charge the Heir without Profit 21 E. 4. f. 38. b. Co. 2 Inst f. 700 13 Rep. f. 33. 27 Ass pl. 8. Crom 187 49 E. 3. f. 5. b. ââ E. 4. â 38. b. Dalt J. P. f. 45. ây Usage and Prescription viz. That ãâã and all his Ancestors have repâired âhe Bridge if it be not in respect of âhe Tenure of his Land taking of Toll or other Profits as aforesaid But ãâã Body Politick or Corporate Spiritual or Temporal who are local and have a perpetual succession may be charged by Usage and Prescription for they may bind the Successors
Westbury and Powel that it had beeâ adjudged That where the Inhabitanââ of Southwark had by Custom a Watring-place for their Cattel which ãâã stopped up by Powel that in ãâã Case any of the Inhabitants of Southwark might have an Action ãâã otherwise they should be without remedy because such a Nusance is ãâã presentable in the Leet or Tourn ãâã note the diversity If an High-way be not repaired ãâã 5 E. 4. f. 2. b. pl. 24. Br. Action sur le Case 93. and Nusance 29. Kitchin Court Leet c. printed 1581. p. 49. a. b. that I am damaged by myring ãâã Horse I shall not have an Actioâ on the Case against him that ãâã to repair it for this is an Action popular and in this Case no single Person shall have an Action but it shalâ be presented in the Leet or Tourn c. and there punished If a Man lay Clogs of Wood ãâã Adjudged M. 15 Juc 1. B. R. in Fowier and Sanders Case Cro. Jac. f. 446. pl. 25. Rolls Cases 1 p. f. 88. n. 15 20. and there in the High-way and suffeâ them to lie there by the space of two months or such other time although a Man with great care and in the day-time may pass safely yet if ãâã be riding in the Evening in the Wayâ not perceiving the Clogs and hiâ Horse stumbles upon them by which he falls and throws his Rider whereby he is wounded or bruised or otherwise damnified here an Action upon the Case lies against him that laid the Clogs in the way although it be before a Mans Door in a Town Gate or Street and that the People time out of mind have used to lay Clogs before their Doors in the Town or Street for their Fewel or Firing for this is a common Nusance and none can prescribe to a Nusance But if A. being seised of a Waste Pas â Jac. 1. B. R. inter Blyth and Topham adjudged Cro. Jac. f. 158. pl. 11. Rolls Cases 1 p. f. 88. n. 30. adjoyning to an High-way dig a Pit in the Waste within thirty Foot of the said Way and the Mare of B. escapes into the said Waste and falls into the Pit and dies here B. shall not have an Action against A. because the making of the Pit in the Waste and not in the High-way was no wrong to B. for it was his own fault that his Mare escaped into the Waste but Hill 12 Jac. 1 B. R. in Everard and Hopkins Case per Cur. Rolls Cases 1 p. f. 88. n. 35. it is otherwise if a Pit or Ditch be digged in the High-way for there an Action lies if one falls in or if a Mans Servant falls into such a Ditch and is lamed so that his Master for a long time doth lose his Service in such Case the Master may have an Action upon the Case for the loss ãâã his Service against him that digged ãâã Ditch If a Gate be set and hung cross ãâã Pas 6 Car. 1. B. R. Cro. Car. f. 185 185. pl. 3. James Haywards Case Jones Rep. f. 221 222 223. pl. 1. High-way where none hath been ãâã ancient time though it be fixed and ãâã that it may be opened and shut ãâã pleasure so that their Majesties Subjects may pass and repass yet this ãâã a Nusânce for it is not so free ãâã easie a passage as if no such Gate had been for Women and old Men ãâã more troubled with opening of Gatâ than they should be if there werâ none and though the usual course ãâã 33 H. 6. f. 26. Finch Law Lib. 3. ch 2. to redress a Nusance by Indictment yet every person may remove the Nusance and pull it down and so it was held by Hide Jones and Whitlockâ Justices 6 Car. 1. but Judge Croââ was of a contrary Opinion and said If it were a Nusance there should be no Gates for there cannot be a Prescription to a Nusance and the multitude of Gates in several Ways prove that it never was accounted to be a Nusance But to this Jones said That for ancient Gates in High-ways it shall be intended they were by Licence from the King and upon an Ad quod dampnum fued out of Chancery but Crook conceived that could not be for â stopping c. but notwithstanding is Opinion it was agreed to be a Nuâance and that a Man might justifie ãâã pull down such a Gate If the Owner of the Land stop my Tr. 13 Jac. 1. B. R. Bolds Case Sheppards Actions upon the Case ch 5. sect 1. The Common Law Epitom p. 52. Way and lease it to another who âoth not open it but continues the âusance I may in this Case have an âction upon the Case against the âessee and so if a Nusance be erectâd Cro. Jac. f. 201. pl. 10. Sheppards Actions upon the Case ch 5. sect 1 in my time and I devise the Land ând it be still continued then the âevisee may have an Action upon the âase for the Continuance is a new âusance If one have a Way over another Mich. 28 29. Eliz. B R. in Dike and Dunstans Case Godbolts Rep 52â 53. ca. 65. ãâã Ground and by rooting of Cartâheels the Way is so digged and ââowned that they cannot so well use ãâã as formerly in this Case the party ãâã the Way cannot justifie to fill ãâã the Cart-roots and dig a Trench ãâã let out the Water as it was held in ãâã and Dunstans Case and it being âemanded what remedy he should have ââstice Shute made Answer and said ãâã he went that Way before in his ãâã let him now pluck on his Boots CHAP. XI An Abridgement of the Statute ãâã 22 H. 8. chap. 5. about the ãâã of Bridges with some Expositioâ and Cases in Law relating therâ unto FOUR Justices of the Peace bâ 22 H. 8. ch 5. Keb. St. at large printed 1684. f. 384 385. sect 1 2 3 9. Poult Abst of the Pânal Stât Tit. Just of Peace sect 70. Lamb. p. 474. Dalt J P. f 44 45. Compl. J. p. 45 46. Bond p. 54 55. Wingate Bridges sect 3. not under that number where one to be of the Quorum in eveâ Shire Franchise City or Borougâ have power in the general Sessions ãâã the Peace to enquire hear and dâtermine of all manner of Annoyancâ of Bridges broken in the High-ways and of the High-ways next adjoyâing to either end of the said Bridgâ by the space of three Hundred ãâã and shall make Process and Pains upââ every Presentment before them for tââ Reformation of the same against suââ as own to be charged with the Râpairs thereof as they think ãâã for the speedy amendment thereof ãâã when it cannot be known what Huâdred Co. 2 Inst f. 70â Poult Bridges 1. Wingate Bridges sâct 4. Riding Wapentake City Towâ or Parish nor what Person or ãâã Politick ought to repair a Bridge ãâã Way at the end of it then if the ãâã ãâã without