с

Indictment

bound, ratione

tenure, to re

pair, for suffering a bridge to decay.

and labouring; and against the peace, &c. And that the inhabitants of the county of N. aforesaid, of right have been, and still of right are bound to repair and amend the said common bridge, when and so often as it shall be necessary.

That there is, and from time whereof the memory of man is not against a private to the contrary, there hath been a certain public and common bridge individual in the parish of D. in the said county of B. over the river W. commonly called D. bridge, situate in the King's common highway leading from the town of D. in the said county of B. to the town of R. in the same county, for all the liege subjects of our said Lord the King, and his predecessors, to go, return, ride, and travel on horseback, and with their cattle, carts, and carriages, upon, along, and over, at their will and pleasure; and that the said public and common bridge, on &c. and from thence continually afterwards, until the day of taking this inquisition, was, and yet is, ruinous, in decay, and out of repair, and insufficient, and without any parapet, building, erection, or defence whatever on the sides thereof, to prevent horses and other cattle, carts, and carriages, going, returning, passing, and travelling, upon, along, and over the said bridge, from falling from thence into the said river; so that the liege subjects of our said Lord the King could not, during all the time last above mentioned, nor yet can go, return, ride, and travel upon, along, and over the said bridge, without great danger of their lives, and loss of their horses and other cattle, carts, and carriages; to the great damage and common nuisance of all the liege subjects of our said Lord the King going and returning, riding and travelling upon, along, and over the said bridge; and against the peace, &c. And that the Honourable C. M. commonly called Lord C. M. late of &c. (by reason of his tenure of certain lands,) (y) situate, lying, and being at D. aforesaid, in the said county, ought, when and as often as it shall be necessary, to repair and amend the said bridge, and to make the same sufficient, safe, and secure, so that the liege subjects of our said Lord the King may pass, repass, ride, and travel upon, along, and over the said bridge, without danger of their lives, or loss of their horses and other cattle, carts, and carriages, &c.

Against a corporation of a

town, for suffering a waterourse which supplied the in

That from time whereof the memory of man is not to the contrary, there was and still is a certain common and ancient watercourse (z) commonly called Trout Beck, leading from a certain place called the Corporation Dam, in the parish of St. James the Less, in the town of B. in the county of B. to a certain place called the Falls, in the parish

(y) This is sufficient allegation of the obligation of a private person to repair a bridge or road, ratione tenurœ; 2 Stark. 669. and the authorities there cited.

(2) If a water-course be stopped to the nuisance of the county, and none appear bound by prescription to clear it, those who have the right of fishing, and the neighbouring towns, who have the immediate use, may be compelled to remove the obstruction; Hawk. b. 1.

c. 75.

bound to

wholesome.

of St. A. in the suburbs of the town of B. aforesaid, in the county of habitants with B. aforesaid, used by all the liege subjects of our said Lord the water, and King and his predecessors for the time being, inhabiting and residing which they were in and about the said parishes of St. James the Less, and St. A. to supply them with water for the use and benefit of themselves and cleanse, &c. to be filthy and untheir families, and that a certain part of the said common and ancient watercourse, in the parish of St. A. aforesaid, in the suburbs of the said town of B. in the county of B. aforesaid, containing in length five hundred yards, and in breadth ten feet, on &c. and continually afterwards, until the day of the taking of this inquisition, at &c. aforesaid, was and still is foul, filled, and choaked up with mud, weeds, rubbish, dirt, and other filth, whereby the course and passage of the water, which should and ought, and before that time was used and accustomed to run and flow through the same watercourse, was, during all the time last aforesaid, and still is so greatly stopped and obstructed, that the liege subjects of our said Lord the King, inhabiting and residing in and about the said parish of St. A., during all the time last aforesaid, were and still are not only deprived of the benefit and advantage of the water, which, during all the time last aforesaid should, and ought to have run and flowed, and still of right ought to run and flow through the said watercourse in its usual and accustomed manner, but also the said mud and other filth during all the time last aforesaid became and were and still are very offensive and nauseous, and the said water thereby greatly corrupted, and unwholesome to be drank by man, and by means thereof divers noisome and unwholesome smells, did from thence arise there, so that the air thereby was and still is greatly corrupted and infected, to the great damage and common nuisance of all the liege subjects of our said Lord the King, not only there residing and inhabiting, but also going, returning, passing, and repassing by the same, and against the peace, &c. And that the mayor, bailiffs, and commonalty of the said town of B. in the said county of B. for the time being, the said common and ancient watercourse so as aforesaid being foul, choaked, and filled up as aforesaid, ought to empty, cleanse, and scour, and until the said grievance have, from time whereof the memory of man is not to the contrary, emptied, cleansed, and scoured, and have used and been accustomed to empty, cleanse, and scour, and still of right ought to empty, cleanse, and scour, when and as often as the same should or shall be necessary; yet the said mayor, bailiffs, and commonalty have not emptied, cleansed, or scoured, nor caused to be emptied, cleansed, or scoured, the same common and ancient watercourse, so being foul, filled, and choaked up as aforesaid, as they ought to have done, and still of right ought to do, but during all the time last aforesaid, permitted and suffered, and still do permit and suffer the said watercourse to be foul, filled, and choaked up as aforesaid, for want of emptying, cleansing, and scouring the same.

Pleas.

And A. B. and C. D. two of the inhabitants of the said parish of Plea of the G. H. by E. F. their attorney for themselves and the rest of the in- general issue by habitants of the said parish, come into court here, and having heard the inhabitants the said indictment read, say that they are not guilty of the said of a parish to an premises in the said indictment above specified and charged upon them, and of this they put themselves upon the country, &c.

T

indictment for not repairing a

road.

Plea by the inhabitants of a

parish to an indictment for the non repair of a road, that an in

dividual is

bound to repair,

ratione tenuræ.

Replication thereto, denying the liability of the party charged by the plea to repair.

And C. D. and E. F. two of the inhabitants of the said parish of G. H. by A. B. their attorney for themselves and the rest of the inhabitants of the said parish (excepting one L. M.) come into court here, and having heard the said indictment read, say that our Lord the King ought not further to prosecute the said indictment against the inhabitants of the parish aforesaid (excepting the said L. M. as aforesaid) because they say that as to the said part of the said highway in the said indictment described to be ruinous, miry, deep, broken, and in great decay, the said L. M. by reason of this tenure of certain lands and tenements called lying and being in the said parish, ought to repair and amend the said part of the said highway so alleged to be ruinous, miry, deep, broken, and in decay as aforesaid, when and so often as there should be occasion (as the said L. M. and all those who held the said lands and tenements for the time being, from time whereof the memory of man is not to the contrary, hitherto were used and accustomed, and of right ought to do, and the said L. M. still of right ought to do). And this they the said C. D. and E. F. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said parish of G. H. (excepting the said L. M. as aforesaid) by the court here may be dismissed and discharged from the said premises in the said indictment above specified.

And hereupon R. S. (the clerk of the peace or clerk of the arraigns) who prosecutes for our said Lord the King in this behalf, says, that by reason of any thing in the said plea above pleaded in bar alleged, our said Lord the King ought not to be precluded from prosecuting the said indictment against the said inhabitants of the said parish of G. H. because he says that the said L. M. ought not to repair or amend the said part of the said highway so alleged to be ruinous, miry, deep, broken, and in decay as aforesaid, by reason of his said tenure, in manner and form as in and by the said plea is above supposed and alleged, and this he the said R. S. prays may be enquired of by the country. And the said J. S. and J. N. for themselves and the rest of the inhabitants of the parish of G. H. aforesaid do the like.

Plea to an in

And C. D. and E. F. two of the inhabitants of a certain district dictment against or township called A. in the said parish of G. H. by A. B. their an entire parish attorney, for themselves and the rest of the inhabitants of the said that a particular district or township, come into court here, and having heard the said division of the indictment read, say, that our Lord the King ought not further to parish is bound prosecute the said indictment, so far as respects the inhabitants of to repair. the district or township aforesaid, because they say that the said parish of G. H. is and, from time whereof the memory of man is not to the contrary, hitherto has been divided into three districts or townships, called A., B., and C. and that the inhabitants respectively of the several districts or townships of A., B., and C. have, from time whereof the memory of man is not to the contrary, hitherto been used and accustomed to repair and amend the several and respective highways situate and lying in their said respective districts or townships independently of each other; and that so much of the said highway in the said indictment mentioned as leads from lies within the said district or township of A. and so much of

to

the said highway as leads from →→→ to

lies within the said district or township of B. and so much of the said highway as leads from to lies within the said district or township of C.; and that the said part of the said highway, in the said indictment described to be ruinous, miry, deep broken, and in great decay, lies in that part of the said parish of G. H. called the district or township of C.; and by reason of the premises aforesaid, the inhabitants of the said district or township of C. ought to repair and amend the part of the said highway last aforesaid, independently of the inhabitants of the said district or township of A. in the said parish, and this the said C. D. and E. F. are ready to verify; wherefore for themselves and the rest of the inhabitants of the said district or township of A. they pray judgment, and that they and the rest of the said inhabitants of the said district or township, by the court here, may be dismissed and discharged from the said premises in the said indictment above specified.

2. Nuisance in actually obstructing highways, bridges, Offence. or navigable rivers.-All permanent obstructions to the passage of his Majesty's subjects over public highways or bridges are nuisances, for which an indictment will lie. Thus, to place logs of timber upon them; to erect a gate across a road, even if it is kept open; and to suffer a way to be incommoded by trees hanging over it, are indictable offences. (b) And though it has been holden that no indictment will lie for distributing lawful handbills on the footway in the street to the inconvenience of the passengers, (c) yet it seems now to be well established that every unauthorized obstruction of a highway is a misdemeanor. (d) Thus, a waggoner habitually keeping his waggons standing for hours to unload; (e) a coachmaster plying for passengers, and allowing his coach to remain in the street more than a reasonable length of time to take up and set down passengers; (f) or the owner of a house allowing it to remain under repair, aud obstruct the public passage for a longer time than is necessary; (g) will be respectively indictable for nui

sances.

Indictments.

That at the time of committing the nuisance hereinafter men- Indictment for tioned, there was and yet is a certain ancient common highway, erecting a gate in the parish of M. in the county of N. leading from &c. into, across a public through, and over a certain public King's highway, called the highway. great North-road, and from thence to &c. in the parish of B. in the said county, for all the liege subjects of our said Lord the

Hawk. b. 1. c. 75. s. 9.

The King v. Sermon, 1 Burr. R. 516. (d) The King v. Cross, 3 Campb. 227. The King. v. Russell, 8 East, R. 427. ƒ) The King v. Cross, 2 Camph. 224. The King v. Jones, 3 Campb. 330.

Indictment for

digging a ditch and raising a hedge across a highway.

Indictment for erecting and continuing a house, part of which was on the highway.

King and his predecessors, to go, return, and pass on foot and on horseback, at their free will and pleasure, and that on &c. A. B. late of &c. with force and arms, at a certain place there in the parish of aforesaid, contiguous to, and on the east side of the great North-road aforesaid, unlawfully and injuriously did erect and cause to be erected a certain wooden gate of the length of fifteen feet, and of the height of four feet, upon and across the said King's highway, leading from the place called, &c. to the great Northroad aforesaid; and that the said A. B. the said wooden gate so as aforesaid erected and made from the said, &c. until the day of the taking this inquisition, with force and arms, at &c. aforesaid, unlawfully and injuriously did continue locked, and fastened with an iron chain, and yet doth continue, by which the King's common highway last aforesaid, during all the time aforesaid was so obstructed and stopped up that the King's liege subjects in, by, and through the same highway could not, nor yet can go, return and pass on foot and on horseback so freely as they ought and were wont to do, to the great damage and common nuisance (h) of all the liege subjects of our said Lord the King, going, returning, passing, and repassing, in, along, and through, the said last-mentioned common King's highway, to the evil example of all others in the like case offending, and against the peace, &c.

That from the time whereof, &c. (describe the highway as in the last) for themselves and their goods, without any stoppage or hindrance by any ditches, hedges, or other obstacles whatsoever, nevertheless one A. B. late of &c. on &c. with force and arms, at &c. aforesaid, in the place aforesaid, called, &c. upon the common highway aforesaid, a certain ditch and quickset hedge did make, and the said ditch and quickset hedge so as aforesaid made, doth yet continue and keep, to the great, &c. (conclusion as before.)

(Describe the highway as before.) That A. B. late of &c. with force and arms, at &c. unlawfully, did erect and build, and cause and procure to be erected and built, a certain brick messuage and tenement, containing in length twelve feet and six inches, and in depth at the east end thereof five feet and six inches, and in depth at the west end thereof two feet and nine inches, and that the same was erected and built, and caused and procured to be erected and built, by him the said A. B. in and upon the said ancient and common highway at the parish aforesaid, in the county aforesaid, to wit, opposite to a certain dwelling-house of one G. H. there situate, and the said part of the said messuage and tenement so erected and built, and caused and procured to be erected and built by him the said A. B. as aforesaid, in and upon the said ancient and common King's highway, at the parish aforesaid, in the county aforesaid, he the said A. B. from the said

(h) Every indictment and presentment, whether for nuisances arising from neglect of duty, or for encroachments on the public rights, must contain the words "to the common nuisance of all the liege subjects of our Lord the now King," residing, passing, or using, &c. according to the facts in its conclusion; 2 Stra. 688.