a foot bridge, that it was parcel of a carriage bridge which A. B. was bound to repair ratione tenure. The liability to repair the carriage bridge, which had been built in 1119, and the repair charged on certain abbey lands of which A. B. was the present proprietor, was admitted; but it was denied that the foot bridge was part of the same, and it was proved that the latter had been constructed in 1763 by trustees of a turnpike road with the consent of a certain number of the proprietors of the abbey lands:-Held, that this (being the foot bridge mentioned in the indictment) was not parcel of the carriage bridge which A. B. was bound by tenure to repair, and consequently that the county was bound to repair the foot bridge.-Per Lord Tenterden, "Now it is well established that the inhabitants "of a county, though bound to repair a bridge are not "bound to widen." dence to On an indictment for the non-repair of a bridge ratione What is evitenuræ :—Held, that a record of 18 Edw. III., setting out negative an a presentment of the Bishop of Lincoln for non-repair of immemorial liability the bridge and his acquittal by the jury, which was shortly ratione tenuræ. after followed by a grant of pontage from the Crown, on the ground that it had been found by inquest that no one was liable to repair the bridge, is admissible in evidence to negative an immemorial liability ratione tenuræ.1 Where, in an answer to an indictment, it is pleaded that Evidence of one A. is liable to repair ratione tenure, evidence of re- admissible in reputation putation is admissible in proof of such liability.2 proof of liability. prescription. The principle as to prescriptive liability is discussed by Liability to Lord Ellenborough in Rex v. Ecclesfield. Referring to repair by the Statute of Bridges and Magna Charta, he says:4 "From both which statutes it appears that towns or 1 Reg. v. Sutton, 3 N. & P. 569. The jury, after finding a verdict of acquittal, also found that the bridge had been recently built, and that no one was liable to repair it. Semble, that such finding by a jury in ancient times is admissible as reputation on questions as to the liability to repair ratione tenuræ. 2 Reg. v. Bedfordshire, 4 El. & Bl. 535; 1 Jur., N. S. 208; 24 L. J., Q. B. 81. 3 1 B. & A. 348; Rex v. Hendon, A parish may be indictable. So, too, a hundred. 66 "districts smaller than a county had been accustomed in some cases to make bridges; and so, in fact, they con"tinue to do until this day. And upon the whole it seems manifest that the extent of the territory chargeable "in the case is to be ascertained by usage and custom, "and that in default only of an usage and custom to "charge a smaller territory, the charge shall be upon "the larger, i.e. upon the county;" and he then goes on to draw an analogy between the liability of a parish to repair a bridge and that of a township to repair a road by usage.1 As stated above, the repair of bridges by tenure or prescription is a remnant of the trinoda necessitas, the common law liability of the county not being established fully till the passing of the Statute of Bridges in 22 Hen. VIII. In such few cases, therefore, as the immemorial custom of repairing a bridge can be proved, it can be pleaded in defence to an indictment.3 Hence, a parish may be indicted for non-repair of a bridge without stating any other ground of liability than immemorial usage. So, too, a hundred may be charged by prescription with the reparation of a bridge; and this, although it appears that by a statute within time of legal memory one of the townships, parcel of the hundred, was then annexed to it.5 In such a case the proper way would be to allege that the corporation had immemorially repaired; and then, however constituted the corporate body may have been at different periods, the allegation would be sustained." 1 Cf. Blackstone's Com. vol. i. 2 Page 29. see ante, 3 Rex v. Stratford-on-Avon, 14 East, 348; Rex v. Oswestry, 6 M. & S. 361; Rex v. Hendon, 4 B. & Ad. 628; and cf. Reg. v. Surrey, 2 C. & M. 455; Reg. v. Adderbury, 1 D. & M. 324. 4 Rex v. Hendon, 4 B. & Ad. 628. 5 Rex v. Oswestry, 6 M. & S. 361. 6 Holroyd, J., in Rex v. Oswestry, 6 M. & S. 361. See note (a) p. 361 of the report, for form of an indictment against the corporation of Kingston for the nonrepair of Kingston Bridge. 66 66 tive corpora tion. A charter of Edward VI., granted upon the recited Or a prescripprayer of the inhabitants of the borough of Stratfordupon-Avon, recited that a guild in an ancient borough was founded and endowed with lands, out of the rents and revenues and profits of which a school and an almshouse were maintained and a bridge repaired. That on the dissolution of the guild and the passing of the lands to the Crown, the inhabitants of the borough, reciting that the said borough had from time immemorial enjoyed franchises, liberties, &c., &c., &c., which had been enjoyed by reason of the said guild, and that by the dissolution thereof the borough and its government would fall into a worse state without speedy remedy, &c., &c., prayed to be deemed worthy to be made a body corporate, &c., &c. That they were in consequence granted to be a corporation "with the same bounds and limits as the borough and the jurisdictions thereof from time immemorial had extended to," and that the king, "willing that the almshouse and the school "should be kept up and maintained as heretofore (but "without mentioning the bridge), and that the great charges "to the borough and its inhabitants from time to time "incident might be the better sustained and supported," granted to the corporation the lands of the late guild. By parol testimony it was proved that as far back as living memory went, the corporation had always repaired the bridge:-Held, taking the whole of the charter and the parol testimony together, the preponderance of the evidence was, first, that this was a corporation by prescription, though words of creation only were used in the incorporating part of the charter of Edward VI.; and secondly, that the burden of repairing the bridge was upon such prescriptive corporation during the existence of the guild before that charter; though the guild out of their revenues had in fact repaired the bridge, which was only in ease of the corporation and not ratione tenure; and that the corporation were still bound by prescription, and not merely by tenure; and, therefore, that a verdict against them upon an indictment for the non-repair of the bridge charging them as immemorially bound to repair was sustainable.1 Where there is a prescriptive liability to repair a bridge, it is an intendment of law, in the absence of any evidence to the contrary, that the liability extends to 300 feet of the approaches at each end of the bridge.2 1 Rex v. Stratford-on-Avon, 14 East, 348; cf. Rex v. Oswestry, 6 M. & S. 361, note (a). 2 Reg. v. Lincoln, 3 N. & P. 273; 8 A. & E. 65; 1 W. W. & H. 260; 2 Jur. 615, 807. See remarks of Lord Denman, C. J., therein on the Abbot of Combe's case, 43 Assis. pl. 37; and on Rex v. West Riding of Yorkshire, 7 East, 598. CHAPTER IX. OF TOLLS AND RATES. Or the incidents mentioned in the previous chapter, two -viz. tolls and rates-remain to be noticed. Of these the first named is naturally connected with the right of navigation, and has been already incidentally alluded to.1 The second, that of rateability, arises from the improvement of land in value by water which either arises on it in the form of springs, or passes over it in the form of a natural watercourse, or is conveyed over it artificially,—as by open channels or pipes. Tolls and cident to rates how in rights of water. Toll, tolnetum, or telagium are all of them terms of the Tolls. same import, and signify, in a general sense, a sum of Definition.. money paid by the buyer for exporting or importing goods and merchandise. Toll has also been defined as "a tribute or custom paid for passage;" while in the 3 Termes de la Ley it is described as "a payment used in "cities, towns, markets, or fairs for goods and cattle brought thither to be bought or sold, and is always paid "by the buyer, and not by the seller, unless there is some "custom otherwise."5 66 Such definitions are, however, as is stated in the authority above quoted, too general for practical purposes; and the nature of toll will be better understood if we briefly examine the distinction between toll thorough and toll 1 See Chap. I., Chap. V., and Chap. VII., and as to Ferries Chap. VIII. 2 Gunning on Tolls, p. 1; 2 Inst. 58. 3 Wharton's Law Lex. (Cowel), + See, too, Gunning, p. 1. |