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SECT. 25. for urban powers must come from the rural authority or from persons rated to the poor rate to the extent of one-tenth of the district or of any contributory place therein for which the urban powers are applied for. Under the provision in the text the application may come from the county council or a parish council, but in either case the powers will be conferred on the rural district council alone.
26. (1.) It shall be the duty of every district council to protect all public rights of way, and to prevent as far powers of dis- as possible the stopping or obstruction of any such right of way, whether within their district or in an adjoining as to rights of way, rights of district in the county or counties in which the district is common, and situate, where the stoppage or obstruction thereof would
39 & 40
Vict. c. 56.
in their opinion be prejudicial to the interests of their district, and to prevent any unlawful encroachment on any roadside waste within their district.
RIGHTS OF WAY.-This provision is merely declaratory, for the duty mentioned in the sub-section is one which would by law devolve, and does now devolve, upon the highway authority as such. It is the duty of a highway authority to prevent the stopping up or obstruction of any public footpath, and with regard to encroachment on roadside wastes, it is to be observed that the greensward by the side of the highway and within the fences is in general part of the highway, as much as the metalled portion, and any encroachment upon it is a public nuisance, which may be prevented by indictment or injunction. See Reg. v. U. K. Telegraph Company, 3 F. & F. 73; 2 Cox C. C. 144, 174; 31 L. J. M. C. 166; 2 B. & S. 647; 6 L. T. (N.s.) 378; Turner v. Ringwood Highway Board, L. R. 9 Eq. 418; Nicol v. Beaumont, 53 L. J. Ch. 853; 50 L. T. (N.S.) 112.
It should be observed that the duty of the district council extends to rights of way in an adjoining district.
Sub-section (4) of this section requires the district council to take action upon the representation of a parish council.
(2.) A district council may with the consent of the county council for the county within which any common land is situate aid persons in maintaining rights of common where, in the opinion of the council, the extinction of such rights would be prejudicial to the inhabitants of the district; and may with the like consent exercise in relation to any common within their district all such powers as may, under section eight of the Commons Act, 1876, be exercised by an urban sanitary authority in relation to any common referred to in that section; and notice of any application to the Board of Agriculture in
relation to any common within their district shall be SECT. 26. served upon the district council.
RIGHTS OF COMMON.-The necessity for the consent of the county council should be observed.
The aid which the district council may give is not specified, but presumably it includes a grant of money in aid of legal proceedings instituted with reference to the rights in dispute. And see the next subsection. There is much misapprehension on the subject of rights of common. These consist strictly of the rights of tenants of a manor, whether freeholders or commoners, over the waste lands of the manor, which belong to the lord of the manor subject to such rights. may consist of common of pasture, of turbary, estovers, foldage, or the like.
The public, as such, have, in strictness, no rights of common, but there may be in the inhabitants of any particular village or district a right depending on ancient custom to use the wastes or part of them for purposes of recreation. See Hall v. Nottingham, 1 Ex. D. 1, and the cases therein cited.
Section 8 of the Commons Act, 1876, contains important provisions, and it may be convenient to set it out in full, It is necessary now to substitute the Board of Agriculture for the Inclosure Commissioners referred to in this section. The duties of these commissioners were by 45 & 46 Vict. c. 38, s. 48, transferred to the Land Commissioners, and by 52 & 53 Vict. c. 30, s. 2, to the Board of Agriculture. The. following is the text of the section:
Suburban Commons.-8. "Notice of any application under this Act in relation to a common which is situate either wholly or partly in any town or towns, or within six miles of any town or towns (which common so situate is in this Act referred to as a suburban common) shall be served as soon as may be on the urban sanitary authority or authorities having jurisdiction over such town or towns, and it shall be lawful for the urban sanitary authority of any such town to appear before the assistant commissioner on the occasion of his holding a local inquiry as in this Act mentioned, and also to appear before the Inclosure Commissioners, and to make to him or them, at any time during the proceedings in relation to obtaining a provisional order under this Act, such representations as they may think fit with respect to the expediency or inexpediency of such application, regard being had to the health, comfort, and convenience of the inhabitants of the town over which such authority has jurisdiction, and to propose to him or them such provisions as may appear to such urban authority to be proper, regard being had as aforesaid.
"An urban sanitary authority entitled to receive notice of an application in relation to a suburban common may, with the sanction of the Inclosure Commissioners, enter into an undertaking to contribute out of their funds for or towards the maintenance of recreation grounds, or
SECT. 26. of paths or roads, or the doing any other matter or thing for the benefit of their town in relation to the common on which such application relates.
They may also, in relation to any such common, and with such sanction as aforesaid, enter into an undertaking to pay compensation in respect to the rights of commoners, for the purpose of securing greater privileges for the benefit of their town.
"An urban sanitary authority may acquire by gift and hold without license in mortmain or trust for the benefit of their town any suburban common in respect of which they would be entitled to receive notice of any application made to the Inclosure Commissioners, in pursuance of this Act, and any rights in such a common.
"They may also in the case of any such suburban common purchase and hold as aforesaid, with a view to prevent the extinction of the rights of common, any saleable rights in common or any tenement of a commoner having annexed thereto rights of common.
They may also, with the consent of persons representing at least onethird in value of such interests in a suburban common as aforesaid as are proposed to be affected by the provisional order, make an application to the Inclosure Commissioners for the regulation of such common with a view to the benefit of their town and the improvement of such
"Where an urban sanitary authority makes an application under this Act with such consent as aforesaid in respect of the regulation of a common, or undertakes to make any contribution or to pay any compensation or make any other payment out of its funds in respect of a common, such urban sanitary authority may, if the Inclosure Commissioners deem it advisable, having regard to the benefit of the neighbourhood, as well as private interests, be invested with such powers of management or other powers as may be expedient.
"The expenses incurred by an urban sanitary authority in pursuance of this section may be defrayed out of any rate applicable to the payment of expenses incurred by such authority in the execution of the Public Health Act, 1875, and not otherwise provided for.
"A town for the purposes of this section means any municipal borough, or Improvement Act district, or Local Government district, having a population of not less than five thousand inhabitants.
"The population of any town for the purposes of this Act shall be reckoned according to the last published census for the time being, and distances shall be measured in a direct line from the town hall, or if there shall be no town hall, then from the cathedral or church, if there shall be only one church, or if there be more churches than one, then from the principal market place of such town to the nearest point of the suburban common. When part only of a common is situate within the aforesaid distance from a town, such part shall be deemed for the purposes of this section to be a common separate and distinct from the part situated without and beyond such distance."
(3.) A district council may, for the purpose of carrying SECT. 26. into effect this section, institute or defend any legal Sub-sect. (3). proceedings, and generally take such steps as they deem
LEGAL PROCEEDINGS.-This provision is to some extent explanatory of the preceding sub-section, which enables the district council to aid in maintaining rights of common. But it does not exclude other methods of aiding in the maintenance of such rights, e.g., by a grant of money. It expressly enables the district council, however, to institute or defend legal proceedings, if they think fit, to prevent any illegal enclosure of or encroachment on a common, or the protection of a right of way.
(4.) Where a parish council have represented to the Sub-sect. (4). district council that any public right of way within the district or an adjoining district in the county or counties in which the district is situate has been unlawfully stopped or obstructed, or that an unlawful encroachment has taken place on any roadside waste within the district, it shall be the duty of the district council, unless satisfied that the allegations of such representation are incorrect, to take proper proceedings accordingly; and if the district council refuse or fail to take any proceedings in consequence of such representation, the parish council may petition the county council for the county within which the way or waste is situate, and if that council so resolve the powers and duties of the district council under this section shall be transferred to the county council.
REPRESENTATION BY PARISH COUNCIL.-When a representation is made to the district council under this sub-section, they must consider it with a view to satisfying themselves whether it is well founded or not. If they think it is well founded they must take proceedings which may be (1) summary, under the Highway Act, 1835, s. 72, or the Highway Act, 1864, s. 51; or (2) by indictment; or (3) by action for an injunction in the name of the Attorney-General for the public nuisance. If they think it is not well founded, they may refuse to take proceedings, but upon such refusal an appeal lies to the county council, who may thereupon take the like proceedings upon resolution in manner provided by section 63, post.
(5.) Any proceedings or steps taken by a district Sub-sect. (5). council or county council in relation to any alleged right
SECT. 26. of way shall not be deemed to be unauthorised by reason only of such right of way not being found to exist.
This means that the expenditure of a council incurred in pursuance of this section is not to be regarded as illegally incurred by reason of its being eventually found that the right of way sought to be asserted does not in fact exist.
(6.) Nothing in this section shall affect the powers of the county council in relation to roadside wastes.
COUNTY COUNCILS: ROADSIDE WASTES.-The powers of the county council as to roadside wastes depend upon section 11 of the Local Government Act, 1888. That section imposes upon the county council the duty of maintaining main roads. Main roads are roads which were formerly turnpike roads and have been disturnpiked since the 31st December, 1870; and such other roads as have, since 1878, been declared by the county authority to be main roads by reason of their being a medium of communication between great towns or a thoroughfare to a railway station or otherwise (41 & 42 Vict. c. 77, ss. 13, 15). Under the section first above mentioned, the county council have the same powers as a highway board for asserting the right of the public to the use and enjoyment of the roadside wastes.
(7.) Nothing in this section shall prejudice any powers exercisable by an urban sanitary authority at the passing of this Act, and the council of every county borough shall have the additional powers conferred on a district council by this section.
SAVING OF POWERS OF URBAN AUTHORITIES.-This preserves to an urban sanitary authority any special highway powers which they may possess. It is not clear why a distinction is drawn in the text between an urban district council and the council of a county borough who are an urban district council under this Act.
27. (1.) As from the appointed day the powers, duties, and liabilities of justices out of session in relation to any certain powers of the matters following, that is to sayof justices to district councils.
(a.) The licensing of gang masters;
GANG MASTERS' LICENSES.-A gang master is defined in the Agricultural Gangs Act, 1867 (30 & 31 Viet, c. 130), to mean a person "who hires children, young persons, or women with a view to their being employed in agricultural labour on lands not in his own occupation." It has been necessary for gang masters to obtain a license which before the passing of this Act have been granted under that Act by justices in petty sessions upon proof of the good character and fitness of