bridge within 300 feet next adjoining to an old bridge in the county of Dorset; which 300 feet the county of Dorset was bound to repair. It was held, nevertheless, that Devon was bound to repair the new bridge, which was a distinct bridge, and not to be considered as an appendage to the old bridge. R. v. Inhab. of Devon, 14 East, 477.

A party who is liable by prescription to repair a bridge is also prima facie liable to repair the highway to the extent of 300 feet from each end; and such presumption is not rebutted by proof that the party has been known only to repair the fabric of the bridge, and that the only repairs known to have been done to the highway have *been performed by commissioners under a turnpike-road Act. R. v. City of Lincoln, 8 A. & E. 65, 35 E. C. L., 3 N. & P.

273.

[*352

Now by the 5 & 6 Will. 4, c. 50, s. 21, "if any bridge shall hereafter be built (i. e. after the 20th of March, 1836) which bridge shall be liable by law to be repaired by and at the expense of any county, or part of any county, then and in such case all highways leading to, passing over, and next adjoining to such bridge shall be from time to time repaired by the parish, person, or body politic or corporate, or trustees of a turnpike-road, who were by law before the erection of the said bridge bound to repair the said highway: provided, nevertheless, that nothing herein contained shall extend, or be construed to exténd, to exonerate or discharge any county, or any part of any county, from repairing or keeping in repair the walls, banks or fences of the raised causeway and raised approaches to any such bridge, or the land arches thereof."

Dedication of a bridge to the public. As there may be a dedication of a road to the public (see post, "Highways"), so in the case of a bridge, though it be built by a private individual, in the first instance, for his convenience, yet it may be dedicated by him to the public, by his suffering them to have the use of it, and by their using it accordingly. See Glasburne Bridge Case, 5 Burr. 2594; R. v. Inhab. of Glamorgan, 2 East, 356; R. v. Inhab. of West Riding of York, 2 East, 312; post, p. 354. And though, where there is such a dedication, it must be absolute, yet it may be definite in point of time. See R. v. Inhab. of Northampton, 2 M. & S. 262; and the other cases cited, ante, p. 351; also 1 Russ. Cri. 533, 5th ed. A canal company may dedicate a bridge to the public; Grand Surrey Canal v. Hall, 1 M. & Gr. 393, 39 E. C. L.: where it was held that there was nothing in the constitution of the company, or in the nature of their property, to prevent them from making such a dedication.

Proof of the bridge being out of repair. The county is only chargeable with repairs, and cannot be indicted for not widening or enlarging a public bridge, which has become from its narrowness inconvenient to the public. Not being bound to make a new bridge, the county is not bound to enlarge an old one, which is, pro tanto, the

erection of a new bridge. R. v. Inhab. of Devon, 4 B. & C. 670, 10 E. C. L.

Those who are bound to repair bridges must make them of such height and strength, as may be answerable to the course of the water, whether it continue in the old channel or make a new one. Hawk. P. C. b. 1, c. 77, s. 1.

Proof of the liability of the defendants-by the common law. All public bridges are prima facie repairable, at common law, by the inhabitants of the county, and it lies upon them, if the fact be so, to show that others are bound to repair. R. v. Inhab. of Salop, 13 East, 95; 2 Inst. 700, 701; R. v. Inhab. of Oxfordshire, 4 B. & C. 194, 10 E. C. L.

Where a bridge was locally situated within the limits of a borough, which was enlarged by 2 & 3 Will. 4, c. 64, but before the passing of that Act was situated without the limits of the borough, and in a county which had up to that time always repaired it; it was held that the county was still liable to repair it. R. v. New Sarum, 7 Q. B. 241, 53 E. C. L.; 15 L.J., M. C. 15; see R. v. Brecon, 15 Q. B. 813, 69 E. C. L.; 19 L. J., *M. C. 203. The maintenances of borough bridges is now provided for by 45 & 46 Vict. c. 50, s. 119.

*353] But a parish or township, or other known portion of a county, may, by usage and custom, be chargeable to the repair of a bridge erected in it. Per cur. R. v. Ecclesfield, 1 B. & A. 348. So where it is within a franchise. Hawk. P. C. b. 1, c. 77, s. 1. The charge may be cast upon a corporation aggregate, either in respect of the tenure of certain lands, or of a special prescription, and, in the same manner, it may be cast upon an individual, ratione tenure. Id. Where an individual is so liable, his tenant for years in possession is under the same obligation. R. v. Bucknell, 2 Ld. Raym. 792. Any particular inhabitant of a county, or any of several tenants of lands charged with such repairs, may be indicted singly for not repairing, and shall have contribution from the others. Hawk. P. C. b. 1, c. 77, s. 3; 2 Ld. Raym. 792. The inhabitants of a district cannot be charged ratione tenurœ, because they cannot, as such, hold lands. R. v. Machynlleth, 2 B. & C. 166, 9 E. C. L. But a parish, as a district, may at common law be liable to repair a bridge, and may therefore be indicted for the not repairing, without stating any other ground of liability than immemorial usage. R. v. Inhab. of Hendon, 4 B. & Ad. 628, 24 E. C. L. An indictment charged that there was in township A. an immemorial public bridge, and that the inhabitants of A. had been used, etc., from time whereof, etc., to repair the said bridge. Plea, not guilty. On the trial it appeared that the inhabitants had repaired an immemorial bridge, but that in one year within memory they had widened the roadway of the bridge from nine to sixteen feet: it was held, that whether the added part were repairable by the township or not, there was no variance between the indictment and the evidence. Semble, per Lord Denman, C. J., and Patteson, J., that the township was liable to repair the added part. R. v. The Inhab. of Adderbury, 5

Q. B. 187, 48 E. C. L. Where the inhabitants of a half-hundred had always repaired a bridge out of the hundred rate; it was held that the 5 & 6 Will. 4, c. 50, ss. 5, 21, did not cast the repair upon the parish, as such a bridge was included in the words "county bridges,' which are excepted in that Act. R. v. Inhab. of Chart, L. R., 1 C. C. R. 237; 309 L. J., M. C. 107.

The liability of the county to the repairs of a bridge is not affected by an Act of parliament imposing tolls, and directing the trustees to lay them out in repairing the bridge. This point arose, but was not directly decided, in the case of R. v. Inhab. of Oxfordshire, 4 B. & C. 194, 10 E. C. L., the plea in that case not averring that the trustees had funds; but Bayley, J., observed, that even then a valid defence would not have been made out, for the public had a right to call upon the inhabitants of the county to repair, and they might look to the trustees under the Act. With regard to highways, it has been decided that tolls are in such cases only an auxiliary fund, and that the parish is primarily liable. (See post, "Highways.") And as the liability of a county resembles that of a parish, these decisions may be considered as authorities with regard to the former.

Proof of the liability of the defendants-by the common law -new bridges. Although a private individual cannot by erecting a bridge, the use of which is not beneficial to the public, throw upon the county the onus of repairing it, yet if it become useful to the county in general, the county is bound to repair it. Glasburne Bridge Case, 5 Burr. 2594; R. v. Ély, 15 Q. B. 827, 69 E. C. L.; 19 L. J., M. C. 223. *Thus, where to an indictment for not repairing a public bridge, the defendants pleaded that H. M. being seized [*354 of certain tin works, for his private benefit and utility, and for making a commodious way to his tin works, erected the bridge, and that he and his tenants enjoyed a way over the bridge for their private benefit and advantage, and that, therefore, he ought to repair; and on the trial the statements in the plea were proved, but it also appeared that the public had constantly used the bridge from the time of its being built; Lord Kenyon directed the jury to find a verdict for the crown, which was not disturbed. R. v. Inhab. of Glamorgan, 2 East, 356 (n.)

Where a new bridge is built, the acquiescence of the public will be evidence that it is of public utility. As to charge the county, the bridge must be made on a highway, and as, while the bridge is making, there must be an obstruction of the highway, the forbearing to prosecute the parties for such obstruction is an acquiescence by the county in the building of the bridge. See R. v. Inhab. of St. Benedict, 4 B. & Ald. 447, 6 E. C. L. The evidence of user of a bridge by the public differs from the evidence of user of a highway, for as a bridge is built on the highway, and the public using the latter must necessarily use the former, and the proof of adoption can hardly be said to arise, but the user is evidence of acquiescence, as showing that the public have not found or treated the bridge as a nuisance. See R. v. Inhab. of West Riding of York, 2 East, 342. Where a bridge

is erected under the authority of an Act of parliament, it cannot be supposed to be erected for other purposes than the public utility. Per Lawrence, J., Id. 352. If a bridge be built in a slight or incommodious manner, it cannot be imposed as a burthen on the county, but may be treated altogether as a nuisance, and indicted as such. Lord Ellenborough, Id.

Per

And by the 43 Geo. 3, c. 59, s. 5, no bridge to be thereafter erected or built in any county, by or at the expense of any individual or private person or persons, body politic or corporate, shall be deemed or taken to be a county bridge, or a bridge which the inhabitants of any county shall be compellable or liable to maintain or repair, unless such bridge shall be erected in a substantial and commodious manner, under the direction, or to the satisfaction, of the county surveyor, or person appointed by the justices of the peace, at their general quarter sessions assembled, or by the justices of the peace of the county of Lancaster, at their annual general sessions.

The words of this Act comprehend every kind of person by whom, or at whose expense, a bridge shall be built. Trustees appointed under a local turnpike Act are "individuals" or "private persons' within the statute, and therefore a bridge erected by such trustees after the passing of the Act, and not under the direction of the county surveyor, is not a bridge which the county is bound to repair. R. v. Inhab. of Derby, 3 B. & Ad. 147, 23 E. C. L. A bridge built before the above statute, when widened since, is not a new bridge within the Act. R. v. Lancashire, 2 B. & Ad. 813, 22 E. C. L. So where the woodwork of a bridge was washed away, leaving the stone abutments, and the parish repaired the bridge, partly with the old wood and partly with new, this was held not to be a bridge "erected or built " within the above statute, but an old bridge repaired, and the county was held liable. R. v. Inhab. of Devon, 5 B. & Ad. 383, 27 E. C. L.; 2 N. & M. 212.

Proof of the liability of the defendants-public companies. In some *cases where public companies have been authorized by the *355] legislature to erect or alter bridges, a condition has been implied that they shall keep such bridges in repair. The proprietors of the navigation of the river Medway were by their Act empowered to alter or amend such bridges and highways as might hinder the navigation; leaving them, or others as convenient, in their room. Having deepened a ford in the Medway, the company built a bridge in its place, which, being washed away, they were held bound to rebuild. Lord Ellenborough said that the condition to repair was a continuing condition, and that the company, having taken away the ford, were bound to give another passage over the bridge, and to keep it in repair. R. v. Inhab. of Kent, 13 East, 220. The same point was ruled in another case in which the company had made a cut through a highway, and built a bridge over it. The King v. The Inhab. of Lindsay, 14 East, 317. An Act of parliament empowered the commissioners for making navigable the river Waveney, to cut, etc., but was silent as to making

bridges. The commissioners having cut through a highway, and rendered it impassable, a bridge was built over the cut, along which the public passed, and the bridge was repaired by the proprietors. The bridge being out of repair, the proprietor of the navigation was held liable for the repairs. The court said that the cut was made, not for public purposes, but for private benefit; and the county could not be called upon to repair, for it was of no advantage to them to have a bridge instead of solid ground. R. v. Kerrison, 3 M. & S. 326. See also R. v. Inhab. of Somerset, 16 East, 305; Grand Surrey Canal v. Hall, 1 M. & Gr. 392, 39 E. C. L.; R. v. Ely, 15 Q. B. 827, 69 E. C. L.; 19 L. J., M. C. 223; R. v. Brecon, 15 Q. B. 813, 69 E. C. L.; 19 L. J., M. C. 203.

A corporation aggregate, or a railway company, are liable to be indicted in their corporate capacity for the non-repair of bridges, which it is their duty to repair. Per Parke, B., R. v. Birmingham & Gloucester R. R. Co., 9 C. & P. 469, 38 E. C. L.; 3 Q. B. 223, 43 E. C. L.

Ratione

Proof of the liability of the defendants—individuals. tenure implies immemoriality. 2 Saund. 158 d. (n). And therefore, upon an indictment against an individual for not repairing, by reason of the tenure of a mill, if it appear that the mill was built within the time of legal memory, he must be acquitted. R. v. Hayman, Moo. & M. 401. Any act of repairing on the part of an individual is, prima facie, evidence of his liability. Thus, it is said, that if a bishop has once or twice, of alms, repaired a bridge, this binds not, yet it is evidence against him that he ought to repair, unless he proves the contrary. 2 Inst. 700.

It was for some time undecided whether reputation was evidence on an indictment against an individual for not repairing a bridge, ratione tenure. R. v. Wavertree, 2 M. & R. 253; R. v. Antrobus, 6 C. & P. 790, 25 E. C. L.; R. v. Sutton, 3 N. & P. 569; 8 A. & E. 516, 35 E. C. L.; but in the case of R. v. Bedford, 24 L. J., Q. B. 81, the court decided, that on the trial of an indictment against the county of B., to which they pleaded that A. was liable, ratione tenurœ, to repair a portion of the bridge, evidence of reputation that A. and his predecessors were liable to do the repairs to that part was admissible. See Baker v. Greenhill, 3 Q. B. 148, 43 E. C. L.; R. v. Sir J. Ramsden, 27 L. J., M. C. 296, as to whether the liability to repair ratione tenuræ falls upon the owner or occupier.

*Proof in defence-by counties. Where a county is in

dicted, and the defence is that a parish or other district, or a [*356 corporation, or individual, is liable to the repairs, this defence must be specially pleaded, and cannot be given in evidence under the general issue of not guilty. R. v. Inhab. of Wilts, 1 Stark. 359; 2 Lord Raym. 1174; 1 Russ. Cri. 498, 553, 5th ed.; 2 Stark. Ev. 191, 2nd ed. Upon that plea the defendants can only give evidence in denial of the points which must be established on the part of the prosecution,