Act '78, s. 21. see fit so to order, become and be deemed to be a bridge which the inhabitants of the county shall be liable to maintain and repair.

Contribution out of

country rates towards erecting bridges.

Power of road

authority to

recover

extraordi

(p) The 43 Geo. 3, c. 59, s. 5, requires that the bridge "shall be erected in a substantial and commodious manner." But under this section the county surveyor is only required to certify that it is "in good repair and condition," without saying anything about its having been “erected in a substantial and commodious manner."

22. The county authority may make such contribution as it sees fit out of the county rates towards the cost of any bridge to be hereafter erected, after the same has been certified in accordance with the provisions of 43 Geo. 3, c. 59, s. 5 (q), as a proper bridge to be maintained by the inhabitants of the county; so always that such contribution shall not exceed onehalf the cost of erecting such bridge.

(9) No certificate is required under 43 Geo. 3, c. 59, s. 5. That section merely declares that no bridge, &c., " 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," &c.

Probably, what is meant by this section is that the county authority may contribute towards the cost of any bridge after it has been certified as a proper bridge to be maintained by the inhabitants of the county in accordance with the provisions of 43 Geo. 3, c. 59, s. 5.

EXTRAORDINARY TRAFFIC.

23. Where by a certificate of their surveyor it appears to the authority which is liable or has underexpenses of taken (r) to repair any highway, whether a main road nary traffic. or not, that, having regard to the average expenses of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage.

caused by excessive weight passing along the same, Act '78, s. 23. or extraordinary traffic thereon, such authority may recover in a summary manner (s) from any person by whose order such weight or traffic has been conducted the amount of such expenses as may be proved to the satisfaction of the court having cognizance of the case to have been incurred by such authority by reason of the damage arising from such weight or traffic as aforesaid.

Provided that any person against whom expenses are or may be recoverable under this section may enter into an agreement with such authority as is mentioned in this section for the payment to them of a composition (t) in respect of such weight or traffic, and thereupon the persons so paying the same shall not be subject to any proceedings under this section.

(r) This includes cases under 25 & 26 Vict. c. 61, s. 36. It is doubtful, however, whether it applies to highways contracted to be repaired under 27 & 28 Vict. c. 101, s. 22.

(s) It is presumed that this means "before a court of summary jurisdiction" under sect. 36. But before proceedings can be taken it will be necessary for the highway authority to be furnished with a certificate from their surveyor that, in comparison with the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by them in repairing the highway in question by reason of the damage caused by excessive weight passing along it, or extraordinary traffic thereon. Having received that certificate, they must find out the person or persons by whose order such weight or traffic has been conducted, and then summon such parties to show cause why an order should not be made upon them under sect. 36, requiring them to pay to the highway authority so much of such expenses as may be proved to the satisfaction of the justices to have been incurred by reason of the damage arising from so much of such weight or traffic as may be proved to have been ordered by such parties respectively.

There will be some difficulty in apportioning the share of liability to which each of several parties using the highway may be liable; and also in determining what portion of the weight may be fairly used, and what portion of it must be considered as "excessive," and to be paid for by the party using it. Moreover, it will not be quite easy to determine what is ordinary, and what

Act '78, s. 23. "extraordinary" traffic, so far as particular parties are concerned. There is nothing which fixes the precise number of carriages or carts which a man may use upon a highway, and consequently nothing by which it can be determined what portion of the traffic which he occasions can be considered ordinary and what "extraordinary" so as to make him liable to pay for the extra damage arising from it.

Unnecessary

highways

clared not repairable

at the public expense.

Another difficulty will be experienced in determining the person "by whose order such weight or traffic has been conducted." In many cases the question will be simple enough. But in the case, for instance, of a contract for building, and in other cases where there may be contractors and sub-contractors, considerable difficulty will be experienced in deciding who is the party that actually "ordered" the excessive weight or extraordinary traffic. But, nevertheless, it seems that the justices can make no order on any one else.

(t) It is not stated upon what scale the composition is to be made. The composition, therefore, may be comparatively nominal or substantial, as the parties may agree, according to the circumstances of each particular case.

DISCONTINUANCE OF UNNECESSARY HIGHWAYS.

24. If any authority (u) liable to keep any highway may be de in repair is of opinion that so much of such highway as lies within any parish situate in a petty sessional division (v) is unnecessary for public use, and therefore ought not to be maintained at the public (w) expense, such authority (in this section referred to "as the applicant authority") may apply to the court of summary jurisdiction (x) of such petty sessional division to view by two or more justices, being members of the court, the highway to which such application relates, and on such view being had, if the court of summary jurisdiction is of opinion that the application ought to be proceeded with, it shall by notice (y) in writing to the owners or reputed owners and occupiers of all lands abutting upon such highway, and by public notice (z), appoint a time and place, not earlier than one month from the date of such notice, at which it will be prepared to hear all persons objecting to such highway

being declared unnecessary for public use, and not Act '78, s. 24. repairable at the expense of the public (w).

On the day and at the place appointed, the court shall hear any persons objecting to an order being made by the court that such highway is unnecessary for public use and ought not to be repairable at the public (w) expense, and shall make an order either dismissing the application or declaring such highway unnecessary for public use, and that it ought not to be repaired at the public (w) expense.

If the court make such last-mentioned order as aforesaid, the expenses of repairing such highway shall cease to be defrayed out of any public rate (a).

Public notice of the time and place appointed for hearing a case under this section shall be given by the applicant authority as follows (b); that is to say,(1.) By advertising a notice of the time and place appointed for the hearing and the object of the hearing, with a description of the highway to which it refers in some local newspaper circulating in the district in which such highway is situate once at least in each of the four weeks preceding the hearing; and

(2.) By causing a copy of such notice to be affixed, at least fourteen days before the hearing, to the principal doors of every church and chapel in the parish in which such highway is situate, or in some conspicuous position near such highway.

And the application shall not be entertained by the court until the fact of such public notice having been given is proved to its satisfaction (c).

If at any time after an order has been made by a court of summary jurisdiction under this section, upon

Act '78, s. 24. application of any person interested in the maintenance of the highway in respect of which such order has been made, after one month's previous notice in writing thereof to the applicant authority, it appears to the court of quarter sessions that from any change of circumstances since the time of the making of any such order as aforesaid such highway has become of public use, and ought to be maintained at the public (w) expense, the court of quarter sessions may direct that the liability of such highway to be maintained at the public (w) expense shall revive from and after such day as they may name in their order, and such highway shall thenceforth be maintained out of the rate (d) applicable to payment of the expenses of repairing other highways repairable by the applicant authority; and the said court of quarter sessions may by their order direct the expenses of and incident to such application to be paid as they may see fit.

Any order of a court of summary jurisdiction under this section shall be deemed to be an order from which an appeal lies to a court of quarter sessions (e).

(u) This includes a "highway authority" as defined by sect. 38, and any other authority not comprised in that definition, but liable to keep the highway in question in repair.

(v) There are provisions having the same object as the present in 5 & 6 Will. 4, c. 50, ss. 84, 85, and 27 & 28 Vict. c. 101, s. 21, but not confined to a parish “situate in a petty sessional division." So far as relates to parishes which are so situate, this section appears to operate as a virtual repeal of those contained in the former Acts, by reason of the introduction of a new mode of procedure which is inconsistent with that contained in those Acts (see Whiteley v. Heaton, 27 L. J. m. 217, 22 J. P. 161; Ex parte Baker, Per Bramwell, B., 26 L. J. m. 164, 21 J. P. 486; Michell v. Brown, 28 L. J. m. 55, 23 J. P. 548). As regards any parish which may not be situate in a petty sessional division those sections, of course, still remain in force. And the provisions of 5 & 6 Will. 4, c. 50, ss. 84, 85, so far as relates to stopping up, diverting, and turning highways so as to make them nearer or more commodious to the public, are also unaffected by the present.