ought to have made it a sufficient way. Upon Not Guilty pleaded, and evidence to the jury at the Bar, it appeared to be a way betwixt two lands-ends, in the common fields, and that it was but four yards wide. But it was proved, that although he had made a causey reasonable good, at his own charge, for horsemen, yet carts and coaches might not pass, nor could meet for the straightness thereof, nor might go beside the way. And although it was also proved, that by this charge, he had made it better than it was before, yet, because he had made the hedges and the inclosure in that manner, he at his peril ought to maintain the way: And whereas before the parish was chargeable with the reparations, now by this inclosure, he is bound to repair it, and to make it a good way, and maintain it at his own charge and peril only. And Noy, Attorney-general, said, it was so resolved in 4 Jac. and 19 Jac. upon conference with all the Justices of England, which Richmond, C. J. affirmed (a). The inclosing a highway is considered to be an encroachment upon the rights of the public; for by it the passengers are deprived of their liberty of going over the adjoining land, whenever the way is impassable (b). Therefore the obligation to repair the way is imposed as a punishment for the aggression. And for the same reason, although a parish is not bound to keep a road in better repair than it has been in from time immemorial, yet we see from the above case, that greater rigor is exercised with regard to those who hedge upon the public rights, by obliging them to maintain a perfect good way. Also it seems that, if, after one has inclosed a highway, he suffer it to be so much out of repair as to be impassable, it is lawful for passengers to make gaps in his hedges, and to avoid the ill way, so that they do not (a) And see Styles, 364,-and Rex v. Hillarsden, 1 Keb. 894. ride further into his inclosed grounds, than is needful for avoiding the bad way (a). And if one inclose land on one side, which was anciently inclosed on the other side, he who has made the new inclosure ought to repair the whole way. But if there were no ancient inclosure on the other side, then he is bound to repair only half of the way; and if any other person inclose the other side of the way, in that case they must repair the way in moieties (b). But if the owner destroy his inclosures, and again open the way, it seems that he shall be freed from the repairs thereof; and the burthen shall thereupon revert to the parish (c). Where, however, the way is altered or changed and inclosed by a legal proceeding, as by a writ of ad quod damnum, or under the authority of the statutes 13 Geo. 3. c. 78, and 55 Geo. 3. c. 68, the owner of the land is not obliged to repair the new road; unless, in the case of a writ of ad quod damnum, the jury impose the burthen upon him, or the new road lie in another parish (d). So, where a highway is inclosed under the authority of an Act of Parliament for dividing and inclosing open fields, the person who incloses the way is not bound to repair it (e). It appears to be clear, that in the case of footpaths, all stiles between different inclosures must be kept in good (a) Henn's Case, Sir W. Jones, 296.-And see 3 Salk. 182. (b) Rex v. Sir N. Staughton, 1 Sid. 464.-2 Saund. 160, S. C. (c) 2 Saund. 160. (d) Ex parte Vennor, 3 Atk. 772.-Rex r. Inhabitants of Flecknow, 1 Burr. 461. (e) 1 Burr. 461. And see Rex v. The Commissioners of Llandilo, repair by the occupier of the field. And it is sufficient to indict him as occupier, and not as owner; for the public are not obliged to search out who is owner (a). II.-A particular person may be bound by prescription to repair a highway. It is said, that a corporation aggregate may be compelled to do it by force of a general prescription, "that 'it ought and hath used to do it," without shewing that it used to do so in respect of the tenure of certain lands, or for any other consideration; because such a corporation, in judgment of law, never dies; and therefore if it were ever bound to such a duty it needs must continue to be always so; neither is it any plea, that such a corporation have always done it out of charity; for what it hath always done, it shall be presumed to have been always bound to do. But it is said, that an individual cannot be charged with such a duty by a general prescription, from what his ancestors have done, unless it be for some special reason, as the having lands descended from such ancestor which are holden by such like service (b). Lord Coke, in observing upon the duty of repairing bridges and highways, (both which it may be remarked, are, in this respect, regulated by the same principles, with the exception, that we must substitute the parish in regard to the one for the county in regard to the other) says, that it was determined at Serjeants' Inn, That a man - may be bounden to repair a bridge ratione tenure of cer (a) See 1 Salk. 357, pl. 3. and 7 Mod. Rep. 55. (b) 1 Hawk. P. C. c. 76. 8. 8. And see Austin's Case, 1 Ventr. ride further into his inclosed grounds, than is needful for avoiding the bad way (a). And if one inclose land on one side, which was anciently inclosed on the other side, he who has made the new inclosure ought to repair the whole way. But if there were no ancient inclosure on the other side, then he is bound to repair only half of the way; and if any other person inclose the other side of the way, in that case they must repair the way in moieties (b). But if the owner destroy his inclosures, and again open the way, it seems that he shall be freed from the repairs thereof; and the burthen shall thereupon revert to the parish (c). Where, however, the way is altered or changed and inclosed by a legal proceeding, as by a writ of ad quod damnum, or under the authority of the statutes 13 Geo. 3. c. 78, and 55 Geo. 3. c. 68, the owner of the land is not obliged to repair the new road; unless, in the case of a writ of ad quod damnum, the jury impose the burthen upon him, or the new road lie in another parish (d). So, where a highway is inclosed under the authority of an Act of Parliament for dividing and inclosing open fields, the person who incloses the way is not bound to repair it (e). It appears to be clear, that in the case of footpaths, all stiles between different inclosures must be kept in good (a) Henn's Case, Sir W. Jones, 296. And see 3 Salk. 182. (b) Rex v. Sir N. Staughton, 1 Sid. 464.-2 Saund. 160, S. C. (c) 2 Saund. 160. (d) Ex parte Vennor, 3 Atk. 772.-Rex tv. Inhabitants of Flecknow, 1 Burr. 461. (e) 1 Burr. 461. And see Rex v. The Commissioners of Llandilo, repair by the occupier of the field. And it is sufficient to indict him as occupier, and not as owner; for the public are not obliged to search out who is owner (a). II.-A particular person may be bound by prescription to repair a highway. It is said, that a corporation aggregate may be compelled to do it by force of a general prescription, "that 'it ought and hath used to do it," without shewing that it used to do so in respect of the tenure of certain lands, or for any other consideration; because such a corporation, in judgment of law, never dies; and therefore if it were ever bound to such a duty it needs must continue to be always so; neither is it any plea, that such a corporation have always done it out of charity; for what it hath always done, it shall be presumed to have been always bound to do. But it is said, that an individual cannot be charged with such a duty by a general prescription, from what his ancestors have done, unless it be for some special reason, as the having lands descended from such ancestor which are holden by such like service (b). Lord Coke, in observing upon the duty of repairing bridges and highways, (both which it may be remarked, are, in this respect, regulated by the same principles, with the exception, that we must substitute the parish in regard to the one for the county in regard to the other) says, that it was determined at Serjeants' Inn, That a man - may be bounden to repair a bridge ratione tenure of cer (a) See 1 Salk. 357, pl. 3. and 7 Mod. Rep. 55. (b) 1 Hawk. P. C. c. 76. s. 8. And see Austin's Case, 1 Ventr. |