railway. Holroyd, J. said, "It is a public highway, to be used in a particular mode." And all the Judges agreed that for the offence complained of, the Company had rendered themselves liable to be indicted. But because that remedy was not so effectual, as the one by mandamus, and as the Court were of opinion, that the circumstance of the Corporation being liable to an indictment, was no objection to the granting of a mandamus, the rule to that effect was made absolute. And Abbott, C. J. said, "The writ should be to re-instate and lay down again, but not to maintain the tram-road." CHAPTER IV. AS TO THE LIABILITY TO REPAIR A HIGHWAY. For the purpose of elucidating this important and practical branch of our subject, we shall have to consider it under three distinct heads: 1st, As it regards highways in general; 2dly, As it regards turnpike roads; and 3dly, As it regards public bridges. The Legislature has by no means been remiss in affording its aid to the common law, for the purpose of assisting and enforcing the reparation and improvement of the public roads; wisely deeming them of the greatest moment to the welfare of a commercial state. To this end, many enactments have been made for the better regulating the repair of highways in general. And a distinct class of ways has been created under the appellation of turnpike roads. Until lately, indeed, these would hardly have fallen within the scope of the present Treatise, as the Acts respecting them were merely private, and confined in their operation to a particular district. But as a general and public law is now in force for the management of all turnpike roads, the practical utility, if not the systematic arrangement of this work requires, that it should be here fully detailed. And since it is by the application of a new principle of repair that highways are converted into turnpike roads, the latter will require to be distinctly considered. Again. At the common law the liability to repair a ways in general, and peculiar statutory provisions have been passed for the regulation of public bridges. Therefore although, as in all other respects the law with respect to highways in general and public bridges is the same, what is laid down in the other parts of this Treatise is equally applicable to both, such a union is not feasible upon the question of repair; and in the present Chapter, they must be separately discussed. SECTION I. The law of repair, as it regards highways in general. For the purpose of solving this part of our subject, a further analysis will be necessary; and we must treat of 1st, The general common-law liability to repair: 2dly, The liability of those who are bound to repair by reason of inclosure, or by prescription: and 3dly, The statutory provisions relating to the subject; which may be said to be supplementary to the common law. FIRST. As to the general common-law liability to repair. It seems to be agreed that of common right, that is, by the common law, the general charge of repairing all highways lies on the occupiers of the land in the parish, wherein they are (a). Thus Mr. Justice Twisden decided (b), that every parish of common right ought to repair the highways; and no agreement with any person whatever can take off this charge, which the land lays upon them. And this is fully confirmed by Lord Hale, in Austin's Case (a). See also Rex v. Inhabitants of Marton (b), where it is laid down, that of common right parishes are bound to repair. Therefore in the case of Rex v. The Mayor, &c. of Warwick (c), in which the defendants were indicted for not repairing the way to a church; and the indictment did not set forth how they became liable, but only that they ought to repair; it was held naught, because primá facie and regularly the parish or county ought to do it of common right. An indictment for non-repair must always be laid against the parish generally; and when one was brought against the overseers, it was quashed; the overseers not being bound to repair the ways, but only to give notice to the parish to come and repair them (d). In Rex v. The Parish of Ragley (e), Lord C. J. Holt said, "The parish of common right ought to repair their highways; but by prescription one parish may be bound to repair the way in another parish." It has been laid down, that the parish is liable to be indicted only if the road be out of repair; for it is no indictable offence, that the road is very muddy, and so narrow that people cannot pass over it without danger of their lives, unless it also adds, that it is out of repair (f). In opposition to this principle, it was said by Lord (a) 1 Ventr. 183, 189. (b) Andr. 276. (c) 2 Show. 201. (d) Rex v. Dixon and Hollis, (e) 12 Mod. 409. (f) Regina v. Inhabitants of Stretford, 2 Ld. Raym. 1169. ways in general, and peculiar statutory provisions have been passed for the regulation of public bridges. Therefore although, as in all other respects the law with respect to highways in general and public bridges is the same, what is laid down in the other parts of this Treatise is equally applicable to both, such a union is not feasible upon the question of repair; and in the present Chapter, they must be separately discussed. SECTION I. The law of repair, as it regards highways in general. For the purpose of solving this part of our subject, a further analysis will be necessary; and we must treat of 1st, The general common-law liability to repair: 2dly, The liability of those who are bound to repair by reason of inclosure, or by prescription: and 3dly, The statutory provisions relating to the subject; which may be said to be supplementary to the common law. FIRST. As to the general common-law liability to repair. It seems to be agreed that of common right, that is, by the common law, the general charge of repairing all highways lies on the occupiers of the land in the parish, wherein they are (a). Thus Mr. Justice Twisden decided (b), that every parish of common right ought to repair the highways; and no agreement with any person whatever can take off this charge, which the land lays upon them. And this is fully confirmed by Lord Hale, in Austin's |