Odger's English Common Law

250 NUISANCE.
across which the highway runs and it is a term of his tenure
that he shall keep the road in repair ; or if he -has enclosed
part of the common across which the road runs, and thus has
obtained a private benefit at the expense of the public. In
all other cases, the old rule was that as soon as a highway
was dedicated to the public it was the duty of each parish
through which it passed to repair the portion of it which was
within the parish. This was altered by the Highway Act of
1835, 1 with respect to all highways which should be dedicated
to the use of the public after March 20, 1836. The local
authority has now a right to determine whether it will or
will not "take over" a new road. It probably will decline
to do so, until the road has been " sewered, levelled, paved,
flagged, metalled, channelled and made good " to the satis-
faction of its surveyor ; it is not bound to do so even then.
But as soon as the local authority takes over the road, the
expense of keeping it in proper repair falls in future upon the
rates. If the highway authority declines to take over the
road, it is no one's duty to keep it in repair.
Tims an indictment lies against any one who is bound to repair a road
ratione tenuras (i.e., by reason of the terms under which he holds the
adjoining land), if he neglects his duty in this respect. 2 In former days the
question of liability ratione tenurm was generally raised and decided on an
indictment ; now it is more frequently settled by a proceeding under
section 25 (2) of the Local Government Act, 1894.
An indictment still lies against the inhabitants of a parish if any
highway in the parish which is repairable by the district or county council
be out of repair. But an indictment for non-repair of a highway will not
lie against a parish council. 3
It did not lie formerly against a surveyor of
4 highways ; therefore it did not lie against a highway board to which
the duties and liabilities of such surveyor were transferred. 8 But under
section 10 of the Highways and Locomotives (Amendment) Act, 1878, 6 an
indictment will lie against a district council for non-repair of a highway. 7
The above misdemeanours are triable either at the Assizes
i 5 & 6 Will. IV. c. 50, s. 23 ; and see ss. 91—96.
2 R. v. Barker (1890), 25 Q. B. D. 213.
s R. v. Shipley P. C. (1897), 61 J. P. 488.
* Young v. Davis (1863), 2 H. & C. 197.
6 See R. v. Mayor of Poole (1887), 19 Q. B. D. at p. 608 ; Loughborough Highway
Board v. Curzon (1886), 16 Q. B. D. at p. 570.
6 41 & 42 Viet. c. 77.
' R. v. Mayor, #c, of Wakefield (1888), 20 Q. B. D. 810. For examples of such
an indictment, see R. v. Biggleswade R. D. C. (1900), 64 J. P. 442 ; R. v. Southport
Corporation (1901), 65 J. P. 184 ; R. v. Crompton U. D. C. (1902), 86 L. T. 762.