Inhabitants of West Riding of Yorkshire Plaintiffs in error v. The King (on Prosecution of R. Buckley) Defendant in error [1813] UKHL 2_Dow_1

UKHL
Inhabitants of West Riding of Yorkshire Plaintiffs in error v. The King (on Prosecution of R. Buckley) Defendant in error
[1813] UKHL 2_Dow_1
By the common law, declared and defined by the statute 22 Hen. 8, cap. 15, and the subsequent Bridge Acts, where the inhabitants of a county are liable to the repair of a public bridge, they are liable also to the repair of the highway at the ends of the bridge, to the extent of 300 feet; and if indicted for the non-repair thereof, they cannot exonerate themselves except by pleading specially that some other is bound by prescription or tenure to repair the same.State of the facts.AT the township of Quick, in the West Riding of Yorkshire, in a highway there leading between the towns of Huddersfield and Manchester, there had been, immemorially, a public foot-bridge, and

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That part of the highway which lies immediately westward of the bridge is in a district called Shaw Mear, and that part of it which lies immediately eastward of the bridge is in a district called Lords Mear; both which districts are in the township of Quick and parish of Saddleworth. These two districts had immemorially repaired so much of the highway in question as lies within each of them till a short time previous to 1803, when (the highway at each end of the bridge being out of repair) an indictment was preferred against the Riding for not repairing the highway to the extent of 300 feet at each end of the bridge. The indictment was as follows:—Indictment.
“ That from time whereof the memory of man is not to the contrary, there was, and yet is, a certain common and ancient King's highway, leading from the market town of Huddersfield, in the West Riding of the county of York,

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The inhabitants pleaded “Not guilty;” and, upon trial at York, 23d July, 1803, the Jury found a special verdict, stating the facts as above. The record and proceedings being removed by certiorari into the King's Bench, the Court, after argument in T. T. 1806, gave judgment for the King; whereupon the Defendants brought this Writ of error.Lambe and Scarlet, (for Plaintiffs in error.) This was only a ford and foot bridge at first, and who were liable to repair the highway on each side then? The Lordships of Shaw Mear and Lords Mear. These were therefore primâ facie primâ facie

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The liability of the Riding to repair the highway, to the extent of 300 feet next adjoining to each end of the bridge, is assumed as a necessary legal consequence of the liability of the Riding to repair the bridge itself. But no case is to be found where that consequence has been holden to follow; and where the highway is repaired as dependant upon, and forming as it were a part of the bridge, and therefore to be repaired by the same persons who are bound to repair the bridge itself. There is no case to be found where an indictment has been preferred against persons who are bound to the repair of the bridge, for not repairing the highway at each end of the bridge only, though it must frequently have happened that the highway was out of repair at a time when the bridge itself wanted no reparation.It has been the opinion of several eminent lawyers, that the modern case in which it was decided that the inhabitants of the county at large are bound to keep in repair a public carriage bridge, built by individuals for their own private benefit, where no bridge of that kind ever stood before, if such bridge be afterwards used by the public, and become of public convenience and utility, was a considerable extension of the principle of the liability of the

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The objection, that the inhabitants of the West Riding ought to have shown specially by their plea, that some other person was bound by tenure or

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The Chief Justice stated the case of the Abbot of Coombe thus: (Vide 7 East. 588:)—other, although the soil may be in another, so that the easement shall be saved to the public. And you are bound to make the bridge of sufficient height and strength for the course of the water. And although, by the accretion of water, the ends shall be removed, yet you are bound to pursue the course of the water, and repair the highway without leave of him to whom the land belongeth. And inasmuch as in this case it is not found nor limited in the record who ought to repair the remainder of the bridge, and without doing so, it will be of no value; although it shall be found that the arches are sufficiently made, yet this shall not discharge you, &c.”“It was presented in the King's Bench, before knivet and Ing, that the Abbot of Coombe ought to repair the bridge of Chesterford, in the county of Leicester, upon which a distress was awarded against the Abbot: who now came and alleged a record in the same Court of King's Bench, that how he was heretofore before Chebre impeached for the same bridge: when he came and pleaded that he was not bound to repair, except two arches of the bridge; upon which issue was joined, and it was so found. The record was read, which was, “Whereupon the Jury, &c. who say upon their oaths that the Abbot of Coombe is not bound to repair except two arches of the bridge, &c. and the bridge ultra cursum aquæ ultra cursum aquæ and not the ends of the bridge”. Knivet . We intend that you are bound to repair the bridge and the highway adjoining the one end of it and the

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The expression here was varied three times,—the ends,— the highway,—the remainder; and what was really meant no man could with certainty say. The Chief Justice had indeed stated, “that it was clear from this case that in those days the charge of repairing the highways at the ends of a bridge was considered as belonging prima facie to the party charged with the repair of the bridge itself.” Now it was submitted whether this did so appear. The case of the Abbot of Coombe was a most unintelligible one, and not a sufficient authority for the present decision.As to the Statutes of Bridges, the Act of 22 Hen. 8, cap. 5, gave the Sessions the same jurisdiction over bridges as the Court of King's Bench had before, and then gave them power to tax the county, in case no one else was liable. It did the same by the 9th section, in regard to highways at the ends of bridges, which it appeared to consider as entirely

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As they had been met by a technical objection from the other side; viz. that they could not exonerate themselves unless they pleaded that others were bound to repair, it was but fair, on the part of the Plaintiffs in error, to resort to a technical objection likewise. Why, then, on the face of this indictment, it was not charged that the county was bound to repair this bridge; and if the indictment was bad on the face of it, the special verdict could not cure it. The county could not be bound to repair the 300 feet of the highway at the ends of the bridge, unless it was also bound to repair the

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The statute 22 Hen. 8, cap. 5, amounted to no more than this, that where the magistrates exercised the power confided to them by the statute, in regard to bridges, they should exercise the same power over the persons bound to repair the highways at the ends of bridges, and if there were none, that then they might tax the county, and limited the extent to 300 feet.But then it was said that this 300 feet was only defining the limits of the common law liability of the county—reducing it to a certainty. But this argument was felo de se; for there was no principle on which the county could have been bound at common law to do that which was uncertain. The object of the legislature was merely the public convenience, without reference to who in particular was bound to repair.But it was then said that Coke's Comment. 2d Inst. 700, explained the statute. He ( Scarlet ) could not find any such inference there as they wished to

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“If none at all were bounden to the reparation of the bridge, how then, and by whom should it be repaired by the common law? The answer is, that the whole county, that is, the inhabitants of the county or shire wherein the bridge is, shall repair the same; for of common right the county must repair, because it is for the common good and easement of the whole county.”
But both the statute and the comment were silent as to the common law liability of the county to repair the highway at the ends to the extent of 300 feet. If the liability had existed, it was singular that it had not been adverted to by Coke, who was so eager to communicate all he knew, and even inserted the verse in regard to the Tadcaster bridge:—
“Nil Tadcaster habet musis aut carmine dignum,

Præter magnificé structum sine flumine pontem.”

Then it was said that, in Coke, Rep. Part 13.—33, where Coke spoke of bridges and highways, it was necessary to imply that he meant highways at the ends of bridges, in order to prevent the passage from being nonsense. But the more natural supposition was, that Coke said county instead of parish .If it was the opinion at the time of the case in the Year Books, (Edward 3,) that whoever was bound to repair the bridge was bound to repair the road at the ends, it was singular that there never had been an indictment before against the county

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Topping and Holroyd , (for Defendant in error.) This case had been extremely well considered in the Court below, and an elaborate judgment given. The only really new argument was the technical objection now for the first time started. There was not a hint of this in their printed case: and when the name of Mr. Serjeant Williams appeared there, it was not to be readily supposed that, if the objection had been material, it would have escaped him.This was an indictment against a county for not repairing a highway to the extent of 300 feet at the ends of a bridge; and if they could show that the county was liable at common law, then the Plaintiffs in error could not, on the general issue, throw the burden on others. When it was alleged that this was a public bridge, and was so found by the verdict, the county was bound, except it exonerated itself by some special plea. The case in 5 Bur.

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But the Plaintiffs in error said, that though the county must repair the bridge, others may be bound to repair the 300 feet at the ends; and they also said that there was no authority for throwing the common law liability to repair these 300 feet upon the county. But the case in the Year Books, which had been already mentioned, was a strong authority as to what was then the understanding in regard to the rule of obligation as to this matter. From that case it was clear, that in the time of Edward 3 the party liable to the repair of the bridge was also held to be bound to repair the road at the ends. The statute 22 Hen. 8, cap. 5, did not originally create this obligation, but was declaratory of the common law. Such was the opinion of the Court of King's Bench. The case in the Year Books was therefore fortified by the statute 22 Hen. 8, cap. 5, and the cases Rex v. Inhabitants of West Riding , &c . in 2 East. 342, and in 5 Bur. 2594.But then it was said, that when Coke gave his account (Rep. Part 13.—33) of the common law on this subject, he was asleep, and said county instead of parish . If this had been the case, it was not likely it should have passed so long without notice. But Coke was speaking of the statute 22 Hen.

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As to there having been before no indictment of this sort, that was a strong argument to show that the roads at the ends of bridges had been always considered as parts of the bridges, and therefore to be repaired by the same persons. In regard to the technical objection to the indictment, it had been said that nothing was to be supplied by intendment, but that the law and fact must be stated. That proposition must be very much qualified. It might be true as to the facts, but that the law must be set forth was directly contrary to the first principles of pleading. In pleadings, both civil and criminal, the facts were set forth, but the Judges recognized the law. Then see whether the facts were sufficiently set forth here. The indictment stated that there had been from time immemorial a common highway, &c. and that 300 feet of this highway adjoining a public bridge was out of repair. The common law cast the burden of repairing this on the county. This was matter of law to be taken notice of by the Judges, and it was even unnecessary to have stated at the close that the county was bound to repair. If this had continued a ford, as before, that would have been a

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Lambe heard in reply.Judicial observations.The Chancellor satisfied with the judgment of the Court below.Doubtful whether the technical objection could be at all considered, as it appeared to have been taken for granted, on all hands, in the Courts below, that this was a bridge which the bound to repair.Lord Eldon (Chancellor.) In consequence of a good deal of previous consideration, as well as present attention to the subject, he was of opinion that this judgment of the Court of King's Bench was right; meaning by that, that it appeared to him that it might be fairly inferred from the cases, Acts of Parliament, &c. that the county was bound by law, primâ facie, primâ facie, to repair the ends of a bridge, which bridge itself it was bound to repair; and the statute limited the extent to 300 feet at each end. On the merits, then, he was contented with the decision of the Court of King's Bench. He put this upon the notion that the objection to the indictment

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Lambe . If their Lordships were against them on the merits, they did not wish to give the House any farther trouble in regard to the other point.Judgment.

Judgment of Court of King's Bench affirmed. ( Vide 7 East. 588.)

Solicitors: Agent for Plaintiffs, Lambert.

Agent for Defendant, ——