1849. The QUEEN บ. The SHEFFIELD said highway was out of repair, to have repaired it. The fourth count charged the defendants with a liability to repair, by reason of the tenure of certain lands and tenements respectively lying and being in the several parishes of Sheffield and Rotheram. The seventh count alleged that the defendants obstructed, and the eighth count, that they continued the obstruction of the said highway. (A copy of the indictment accompanied the case, and either party was to be at liberty to refer to the same.) The defendants pleaded not guilty. It was proved at the trial, that for a period exceeding sixty years, and as far as living memory went, there had been a public road from Lady's Bridge, Sheffield, to Tinsley, of the width of twelve yards or thereabouts, the whole of which had been set or pitched with boulders up to the year 1826, when the boulders were taken up, and the road was macadamized. So far as living memory extended prior to the year 1817, the road to the full extent of its entire width was kept in repair by the River Dun Company, which company, during all the time that the road was repaired by them, received the two tolls of ld. each, described in the acts of parliament before set out. On the 13th July, 1817, the defendants purchased from the River Dun Company the messuages, lands, tenements, hereditaments, cranes and machinery within the township of Tinsley, and the navigation of the said river above the then upper lock, except the two locks, lock-house and bridges at Tinsley aforesaid, and the navigable cut with which the Sheffield canal was then intended to communicate, together with all rights, members and appurtenances to the same premises belonging, and also every right which the said Company of Proprietors had to lower the sills of their said lock there, and also all their then future right to receive the two several sums of 1d. and 1d. in the said statutes mentioned, to be applied towards the repairs of the said In road, for the sum of 11,000l.; and upon the occasion of 1819. The QUEEN บ. The SHEFFIELD 1849. The QUEEN Company and the defendants, the respective townships through which the said road ran performed statute duty thereon, or paid money to the River Dun Company and The SHEFFIELD the defendants respectively in lieu of statute duty, but v. CANAL COMPANY. after the passing of the stat. 5 & 6 Will. 4, c. 50, they refused either to perform statute duty, or in any manner to contribute to the repair of any part of the said road. Since the defendants purchased in 1817, as before mentioned, they have received for the said tolls of ld. and ld. the sum of 10,4251. 16s. 2ąd.; and from the said townships, instead of statute duty, 2,5291. 8s. 2§d.; and they have during the same period expended on repairs of the same road a much larger sum than the aggregate of those sums, namely, 21,2067. 17s. 11d. The canal of the defendants was made in pursuance of the stat. 55 G. 3, c. lxv., and was opened in February, 1819. The questions for the opinion of the Court are, whether, on the above case, there ought to be a verdict for the crown or for the defendants on any, and which, of the said first, third, fourth, seventh and eighth counts (a). (a) 12 G. 2, c. xxxviii., s. 15, enacts, "That the said undertakers and proprietors of the said navigation, from and after such time as the said river Dun shall be made navigable into the township of Tinsley aforesaid, shall, at their own costs and charges, make a good road, either set or pitched with bolders, or trenched, thrown up, and gravelled, at least seven yards wide, for all manner of carts and carriages, from the wharf where the said navigation shall end at Tinsley aforesaid, unto the bridge over the said river Dun at Sheffield, commonly called the Lady's Bridge, and shall at their own costs and charges uphold and repair the same, and all other the roads in the township of Tinsley, and always keep the same in good and sufficient repair, and shall be liable to be indicted and fined at the assizes held for the county of York, or at the quarter sessions of the peace to be held for the West Riding of the same county, for any neglect or default in repairing the same; and if upon any such indictment they shall be found guilty of any default in making and repairing such road or way as aforesaid, they shall be fined by the Court in which such indictment is tried so much monies as will be sufficient to make good and repair such way." Sect. 16 enacts, "That the undertakers and proprietors of Hall for the prosecution (a). It may be admitted that when the statutes 12 Geo. 1, c. xxxviii., 6 Geo. 2, c. ix., the said navigation shall and may receive and take one penny for every customary ton of goods which shall be brought up into, or carried down from or through, the said township of Tinsley, upon the said river, over and above all lock duties which they are hereby empowered to collect, or is to be collected in the same manner with the said lock dues, and shall apply the said duty of one penny per ton to the making and repairing of the said way." Sect. 17 enacts, "That nothing herein contained shall excuse the inhabitants of the several townships and places in which the said way lieth from contributing to the repair thereof, with their carts, carriages, day works, or otherwise, as they are now obliged to do by law." 13 G. 1, c. xx., appoints the corporation of Doncaster undertakers to render the river Dun navigable from Wilsich House to Holmstile, in Doncaster. 13 G. 2, c. xi., s. 55, enacts, "That whereas, when the intended navigation shall be completed up to Tinsley, great quantities of goods will be frequently brought and carried by land carriage to and from thence, whereby the roads between Tinsley and Sheffield will be made so bad that the inhabitants of the parishes through which the said roads do lead will not be able to amend and keep the same in repair by the laws now in being; now to the end that the said road may be kept in good repair after the said navigation shall be completed, be it further enacted, that by the authority aforesaid, that the undertakers of the said navigation, their successors, heirs and assigns, shall, and they and such person or-persons as they shall from time to time appoint is and are hereby empowered to ask, demand, and take a toll or duty of one penny for every customary ton, which is hereby declared to be twenty-five hundred weight, and so in proportion for any greater or less quantity of goods or merchandizes, of what kind soever, which shall be brought to or carried from any wharf at or near Tinsley, to be carried up or down the said river, over and above all lock dues; which said toll or duty of one penny is and shall be, and hereby is, vested in the said undertakers, their successors, heirs and assigns for ever; and the same and every part thereof shall from time to time be laid out and applied for and towards repairing and amending the said road between Tinsley and Sheffield, and to no other intent or purpose whatsoever." 55 G. 3, c. lxv., s. 78, enacts, "That the said Company of Proprietors of the said canal shall purchase of the said Proprietors of the navigation of the said river Dun the whole of their messu (a) Feb. 8, before Lord Denman, C. J., Patteson and Coleridge, Js. 1849. The QUEEN V. The SHEFFIELD CANAL COMPANY. 1849. The QUEEN υ. The SHEFFIELD and 13 Geo. 2, c. xi. passed this road had not been completed in the manner pointed out in the first statute; but the stat. 55 Geo. 3, c. lxv., which is the most important in this case, clearly shows that the road had then been completed; by sect. 78 it enacts, that the company shall be liable to be indicted and fined for the non-repairs of the said road, in the same manner as the proprietors of the navigation had been. That statute then imposes a duty upon the company; and, as there is no condition annexed, they became liable to indictment as soon as the purchase was completed, if the road was allowed to get out of repair. It will be said by the defendants, that they are only liable to repair the road to the width of seven yards; but it is found in the case that they have repaired it to its full width from July 1817 to 1846, and by stat. 55 Geo. 3, c. lxv., s. 78, they are to repair" the said road." They cannot then confine their repairs to seven yards in width; for although the proprietors of the navigation need only have made the road seven yards ages, lands, tenements and here- penny, or such of them as can be lawfully demanded, to be applied towards the repair of the said road, for the sum of eleven thousand pounds; and that the said Company of Proprietors of the said canal shall for ever afterwards uphold and repair the said upper lock and bridge at Tinsley, and the said road from the wharf there to Lady's Bridge in Sheffield aforesaid, and all other the roads in the township of Tinsley aforesaid, in such manner as the said Company of Proprietors of the navigation of the river Dun are now liable to uphold and repair the same, and shall in like manner be liable to be indicted and fined for the non-repair of the said roads or any of them." |