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sufficient carriage road to and from the said new bridge; the said bridge to be kept in repair by the plaintiff and his heirs, and also a road (describing it) on each side thereof; and that the said bridge and roads should for ever be public highways, not subject to any toll. The bridge was built; the defendants took down a part of it, and carried away the stones for their own use. And it was held by the Court, that a qualified property subsisted in the plaintiff after the dedication of the bridge to the public, which, upon the severance of the materials, became an absolute right of property in him; and that, therefore, the plaintiff might, as against a wrong-doer, maintain this action. That all which was granted to the public was a right of passing over these materials in the form of a bridge; when they ceased to be a part of the bridge, they reverted to the plaintiff, discharged of the public easement.

SECONDLY: As to the liability to repair a public
bridge.

For the purpose of explaining this branch of the subject, it may be advantageous to discuss, Ist, The common law liability to repair, and the statutory enactments for the regulation thereof: 2dly, The liability to repair by reason of tenure or prescription : 3dly, The reparation by the county of 300 feet of the highway at the ends of the bridges: and 4thly, The indictment, &c. for nonrepair of public bridges.

I. The common law liability to repair; and the statutory enactments for the regulation thereof.

1st. The common law liability.

By the Great Charter (9) Hen. 3. c. 15.), No town nor freeman shall be distrained to make bridges nor banks, but such as of old time, and of right have been accustomed. And none can be compelled to make new bridges, where never any were before, but by Act of Parliament (a).

Of common right the charge of repairing all common bridges lies upon the county wherein they are, unless part thereof be within a franchise; in which case it is said, that so much as is within the franchise shall be repaired by those of the franchise (b).

It seemeth to be clear, that those who are bound to repair such bridges, must make them of such height and strength, as shall be answerable to the course of the water, whether it continue in the old channel or make a new one; and that they are not punishable as trespassers for entering on any adjoining land for such purpose, or for laying thereon the materials requisite for such repairs (c).

The common law imposes no obligation to widen bridges which are too narrow for the convenient use thereof by the public. In one case, indeed, the Court strongly intimated, that if a bridge used for carriages, though formerly adequate to the purposes intended, were not now of sufficient width to meet the public exigencies, owing to the increased width of carriages, the burthen of widening it must be borne by those who are bound to repair the bridge. And Lord Kenyon, C. J. in giving judgment, said, "That upon this question there could not be entertained much doubt" (a). However, where the same case came, by Error, before the House of Lords, the Lord Chancellor (b), expressed great doubts whether the persons who are bound to repair a bridge, are also bound to widen it, if the exigencies of the public should so require (c). And this opinion expressed by Lord Eldon, has recently been confirmed in the case of Rex v. The Inhabitants of the County of Devon (d), where it is decided, that there is no obligation at common law to widen a bridge. For as a county is not bound to make a bridge, it is not bound to widen one: quoad the addition that would be a making, because the addition beyond the existing width would be pro tanto a new bridge. Besides, the county has not the means of widening a bridge; they cannot, at common law, compel the sale of land or houses, or other private interests; and they have no right to expend the public money for such a purpose; if, therefore, they have not the power to widen a bridge, it affords a strong presumption that they are not bound to do it.

(a) 2 Inst. 701.

(b) 1 Hawk. P. C. c. 77. s. 1,

and 1 Inst. 701.

(c) 1 Hawk. Р.С. е. 77. 8. 1.

By Statute 22 Hen. 8. c. 5. s. 2 & 3, which is declarative of the common law, "Whereas in many places it

(a) Rex v. The Inhabitants of

Cumberland, 6 T. R. 194.

(b) Lord Eldon.

land v. The King, In Error, 3 Bos. & Pul. 354.

(d) 4 B. & C. 670.

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cannot be known and proved what hundred, &c. town, parish, person, or body politic, ought to repair bridges broken in the highways; in every such case, the said bridges, if they be without a city or town corporate, shall be made by the inhabitants of the county; if within a city or town corporate, then by the inhabitants of such city or town corporate; if part be in one shire, city, or town corporate, and part in another, or part within the limits of a city or town corporate, and part without, the inhabitants of the shire, cities, or towns corporate shall repair such part as lies within their limits."

This extendeth only to common bridges in the king's highways, and not to private bridges to mills, or the like; the remedy in which case is not by indictment, but by action (a).

It hath been questioned, whether a borough, which hath no bridge within its own limits, be not liable to contribute to the repairs of a county bridge (6).

Lord Coke says (c), in his commentary upon this Act, "The persons to be charged by this Act are comprehended under the word inhabitants; which word, being the largest word of the kind, is needful to be explained.

"1st. Although a man be dwelling in an house in a foreign county, city, or town corporate, yet if he hath lands in his own possession and manurance in the county, city, or town corporate, where the decayed bridge is, he is an inhabitant, both where his person dwelleth, and where he hath lands in his own possession.

(a) 2 Inst. 701.

P. C. c. 77. 8. 25.

"2dly. If a man dwelleth in a foreign shire, city, or town corporate, and keepeth a house and servants in another shire, city, or town corporate, he is an inhabitant in each shire, city, or town corporate within this

statute.

"3dly. Ex vi termini, every person that dwelleth in any shire, city, or town corporate, though he hath but a personal residence, yet he is said in law to be an inhabitant, or a dweller there, as servants or the like; but this Statute extendeth not to them, but to such householders who may be distrained for non-payment: and it would be infinite and impossible to tax every inhabitant being no householder.

"4thly. Every corporation and body politic residing in any county, city, or town corporate, or having lands or tenements in any county, city, or town corporate, which they keep in their own hands and occupation, are said to be inhabitants there, within the purview of this Statute.

"5thly. An infant, that hath house or lands by descent or purchase, is liable to the public charge; and so is the husband of a féme covert."

It seems that if a foot or horse bridge, to the repair of which an individual is liable by tenure or prescription, be enlarged to a carriage bridge, in such a case the future reparation thereof shall be made, as to the new part by the county, and as to the old part thereof by the individual, pro rata (a).

By Stat. 12 Geo. 2. c. 29. s. 1, The charges of repairing and amending bridges, and highways at the end of bridges, shall be paid out of the general county rates (b).

(a) Rex v. The Inhabitants of

2 East, $53, note.

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