As to the liability of the county council to repair footpaths by the side of Sect. 11 (1). main roads, paved or pitched crossings, etc., see Warminster Local Board v. Wiltshire County Council, and other cases, the effect of which is stated in the notes to the next sub-section.

It was held in R. v. Poole (Mayor, etc. of), 19 Q. B. D. 602; 56 L. J. M. C. 131; 57 L. T. (N.s.) 485; 36 W. R. 239 ; 52 J. P. 84, that an urban sanitary authority is not liable to be indicted at common law for non-repair of a highway. But they may be indicted under s. 10 of the Highways, etc. Act, 1878. R. v. Wakefield (Mayor, etc. of), 20 Q. B. D. 810; 57 L. J. M. C. 52; 36 W. R. 911; 52 J. P. 422.

Bridges.-The county council have now all the powers formerly exercised by justices in quarter sessions as to the repair of county bridges. See s. 3 (viii.) of this Act. If the county council make any alteration in the road such as to cause a nuisance, they will be liable in damages to any person injured thereby. See Shill v. Gloucestershire County Council, "Times," October 30th, 1893; 15 M. C. C. 454. But where a road forming part of the approach to a county bridge had subsided and the county council proposed to raise it to its original height, it was held that they could not be restrained from so doing at the instance of a frontager who alleged injury to his property. Atherton v. Cheshire County Council, 60 J. P. 6. As to the liability of a canal company under the Canal Act to repair the approaches to bridges carrying main roads over a canal, see Nottingham County Council v. Manchester, Sheffield, and Lincolnshire Railway Co., 71 L. T. (N.s.) 430.

Where a bridge at B. was partly within Staffordshire and partly within Derbyshire, and by a local Act the expenses of repairing it were to be borne equally out of the two county rates, and by virtue of s. 50 (1) (b), post, the whole of the bridges became included in the county of Stafford, it was held that the local Act remained in force and that both counties were still liable to pay equally for repairs. In re Staffordshire and Derbyshire County Councils, 54 J. P. 566.

Obstructions.-County councils have the powers of highway boards for preventing and removing obstructions. It has been held that the costs of prosecuting by indictment for obstructing a highway are properly chargeable as part of the cost of maintaining a highway. R. v. Heath, 29 J. P. 452. JESSEL, M.R., expressed an opinion that the Crown or the conservators of a road had by their agents a right to remove an obstruction, though a private person had no such right if he could pass without doing so, and that in any case a body or person who represented the public would have such a right after judicial determination that there was an obstruction. Bagshaw v. Buxton Local Board, 1 Ch. D. 224; 45 L. J. Ch. 260; 34 L. T. (N.S.) 112; 24 W. R. 231; 40 J. P. 197.

But in Reynolds v. Presteign Urban District Council, [1896] Q. B. 604; 65 L. J. Q. B. 400; 74 L. T. (N.S.) 422; 44 W. R. 479; 12 T. L. R. 327, it was held by Lord RUSSELL OF KILLOWEN, C.J., and WRIGHT, J., that an urban district council has power to remove encroachments on highways within their district without first taking proceedings against the person alleged to have encroached. The ground of this decision was that the highway was a street vested in the district council under s. 149 of the Public Health Act, 1875: the decision will therefore, it seems, apply in favour of county councils in whom main roads are vested by sub-s. (6) of this section, infra; and in Harris v. Northamptonshire County Council, 61 J. P. 599, it was held by BYRNE, J., that a county council had this power as a highway authority apart from any vesting in them of the soil of the main road. See also Louth District Council v. West, 65 L. J. Q. B. 535; 12 T. L. R. 477, in which it was held by CAVE and WILLS, JJ., that a rural district council in exercising the

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Sect. 11 (1). duties imposed upon it by s. 26 of the Local Government Act, 1894, post, is entitled to remove an obstruction, and may recover the expenses incurred in so doing in an action against the obstructor. See further as to the position of highway authorities as to the removal of obstructions, Murray v. Epsom Local Board, [1897] 1 Ch. 35; 66 L. J. Ch. 107; 75 L. T. (N.S.) 579; 45 W. R. 185; 61 J. P. 71.

Roadside wastes.-The highway is presumably the entire space between the fences which has been dedicated to the public and is capable of being used for passage. R. v. United Kingdom Telegraph Co., 3 F. & F. 73; 9 Cox C. C. 114, 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, 63 L. J. Ch. 853; 50 L. T. (N.S.) 112; Harris v. Northamptonshire County Council, 61 J. P. 699; Locke-King v. Woking Urban District Council, Times, November 12th, 1897. But the highway does not include an open and uninclosed ditch by the side of it: Field v. Thorne, 20 L. T. (N.s.) 563; 33 J. P. 727; nor any part of the uninclosed land adjoining a highway which had never been dedicated as part of the highway though within fifteen feet from the centre of the road: Easton v. Richmond Highway Board, L. R. 7 Q. B. 69; 41 L. J. M. C. 25; 25 L. T. (N.s.) 586; 36 J. P. 485. And see Robinson v. Cowpen Local Board, 63 L. J. Q. B. 235; 9 R. 858.

The rights of a county council in respect of roadside wastes over which it was admitted that the public had a right of passage were considered in Curtis v. Kesteven County Council, 45 Ch. D. 504; 60 L. J. Ch. 103; 63 L. T. (N.s.) 543; 39 W. R. 199. In that case the facts were as follows:-A main road was 3,746 yards long; the metalled part of the road was of a uniform width of 22 feet; the total width of the road between hedge and hedge varied from 65 to 95 feet. The unmetalled portion of the road was covered with grass, timber, and other growths. C., the plaintiff, was tenant for life of the whole of the inclosed land on each side of the road. The uninclosed strips of waste land at the sides of the road were let annually by the plaintiff, C., to cottagers, two of whom were also plaintiffs. The defendants, the county council, contended that the strips were vested in them by the provisions of sub-s. (6), infra, and they let the herbage to L., a co-defendant. The plaintiff claimed a declaration that C. was seised of the strips, and entitled to the herbage, trees, and other growths thereon, and for an injunction restraining the defendants from cutting or removing the grass, trees, or other growths. It was held by NORTH, J., that the strips in question were "roadside wastes" within the meaning of sub-s. (1), but were not vested in the county council by sub-s. (6) of this section, and he gave the judgment claimed "without prejudice to the rights of the county council under the Local Government Act." The view taken by the learned judge was that "what the county council have given to them is a power of asserting the right of the public to the use and enjoyment of these roadside wastes"; and that seemed to him inconsistent with the idea that the waste was the property of the county council itself.

It does not appear that a highway board has any express power to assert the right of the public to the use and enjoyment of roadside wastes. But it is now the duty of every district council to prevent any unlawful encroachment on any roadside waste within their district (see the Local Government Act, 1894, s. 26 (1), post); and if the district council fail upon a representation being made to them by a parish council to take proper proceedings for preventing the encroachment, the county council may, upon the petition of the parish council, resolve to take over the powers and duties of the defaulting district council in that respect (ib. sub-s. (4)); but nothing in s. 26 of the Act of 1894 is

to affect the powers of a county council in relation to roadside wastes (ib. Sect. 11 (1). sub-s. (6)).

For the definition of the phrase "general county purpose," see s. 68, post, and as to the effect of the concluding words of sub-s. (1), where main roads were partially repairable out of rates levied in the hundreds into which a county was divided, see R. v. Dolby, cited in the note to sub-s. (13), post.

It should be mentioned that, by s. 35, post, the provisions of this section are to apply to the larger quarter sessions boroughs, and these boroughs are, for the purposes of main roads, to be deemed part of the county. As to main roads in the smaller boroughs, see s. 38, post.

(2.) Provided that any urban authority may, within twelve months after the appointed day, or in case of a road in the district of such authority becoming a main road at any subsequent date then within twelve months after that date, claim to retain the powers and duties of maintaining and repairing a main road within the district of such authority, and thereupon they shall be entitled to retain the same, and for the purpose of the maintenance, repair, improvement, and enlargement of, and other dealing with such road, shall have the same powers and be subject to the same duties as if such road were an ordinary road vested in them, and the council shall make to such authority an annual payment towards the costs of the maintenance and repair, and reasonable improvement connected with the maintenance and repair of such road.

For the definition of the phrase "appointed day," see s. 109, post.

An urban authority is the council of a borough, or the district council of an urban district (Local Government Act, 1894, s. 21, post).

Under the Highway Act, 1878, a borough having a separate court of quarter sessions was not a highway area for the purposes of the Act, and consequently the provisions of that Act as to main roads did not apply. By ss. 35, 38, of this Act, post, such boroughs are to be deemed urban sanitary districts, and therefore highway areas.

If an urban authority claim to retain their right of repair, the county council will be free from liability to repair, etc.

It seems clear that a newly created urban authority cannot claim under this sub-section to take over a road within their district which has been a main road for twelve months prior to the creation of their district; nor could such a claim be made where an existing district was extended so as to include such a road. It may even be doubted whether this sub-section can be acted upon by any urban authority which was not in existence when this Act came into operation.

Considerable doubt was for some time felt as to whether upon the construction of this sub-section a county council is liable to make a payment to an urban authority which have retained the duty of maintaining and repairing a main road, for the costs of the maintenance and repair of the paved footways at the sides of the road and of the paved or pitched crossings over the main roads. This question has now been set at rest by a series of decisions in which it has been held that the county council is so liable. In re Warminster Local Board and Wilts County Council (GRANTHAM and CHARLES, JJ.) 25 Q. B. D. 450; 59 L. J. Q. B. 434; 62 L. T. (N.s.) 902;

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Sect. 11 (2). 38 W. R. 671; 54 J. P. 375. In re Burslem (Mayor, etc. of) v. Staffordshire County Council (Court of Appeal), [1896] 1 Q. B. 24; 65 L. J. Q. B. 1; 73 L. T. (N.s.) 651; 59 J. P. 772; Derby County Council v. Matlock Bath and Scarthin Nick Urban District Council (House of Lords), [1896] A. C. 315. The order in the Warminster Case (the decision in which case was approved by the House of Lords in the Matlock Case) was settled by CHARLES, J., in Chambers, and is to the following effect: (1.) The county council is liable to make an annual payment towards the cost of the maintenance and repair and reasonable improvement connected with the maintenance and repair of all footpaths by the sides of main roads whether these are gravelled, paved, asphalted, etc., and whether such footpaths are or are not footpaths which the turnpike trustees were exempted from repairing under 3 Geo. 4, c. 126, s. 112. (2.) The county council are under the like liability as to paved or pitched crossings over main roads. (3.) The county council are liable to contribute an annual sum towards the cost of scavenging, cleansing, and watering main roads, in so far as such scavenging and cleansing are necessary for maintenance and repair as distinguished from purposes of public health. (4.) The county council are under no liability with respect to the lighting of main roads (see sub-s. (11), post). (5.) If the local authority alter the paving or flagging of the footways, as, for instance, by substituting flagging, pavement, wood, or asphalte for gravel or other substance, the county council are bound to make an annual payment in respect of such alteration, in so far as it is a reasonable improvement connected with maintenance and repair, the question whether it is reasonable in any particular case being, in case of dispute, settled by arbitration under sub-s. (3). (6.) The county council are not liable to make any payment in respect of the principal or interest of any money borrowed before the passing of this Act; but the court expressed no opinion as to moneys borrowed after that date. See further on this subject In re Wiltshire County Council and Mayor, etc., of Marlborough, 58 J. P. 213. In that case the court held that although the whole burden might be cast upon the county council, that council were only bound to discharge their liability in the same way as the urban authority, so that if money was borrowed or capital expenditure incurred by the urban authority, the county council were only bound to pay the instalments or were entitled to spread the expenditure over a number of years. And it was further held that this sub-section did not forbid the recovery from the county council of expenses defrayed out of borrowed money.

It has been contended that notwithstanding the use of the word "towards" in this sub-section, a county council is liable to pay the entire cost properly incurred of the maintenance, repair, and reasonable improvement of a main road retained by an urban authority; that in fact, their liability is no less than it would have been if the road had not been retained, but was maintainable and repairable by the county council under sub-s. (1). The Marlborough Case above cited gives some support to this view; but in In re Bedfordshire County Council and Bedford Urban Sanitary Authority, [1894] 2 Q. B. 786 ; 64 L. J. Q. B. 26; 71 L. T. (N.s.) 433; 58 J. P. 786, MATTHEW, J., said: "The legislature plainly contemplated the case ordinarily arising in which it would not be fair that the whole amount incurred in respect of repair and maintenance should be paid by the county council, although it would certainly be just that some part should be cast upon the county council. The Act does not, however, exclude cases where the whole amount of costs incurred might be paid by the county council." See also on this point Middlesex County Council v. Willesden District Council, cited infra.

As to the liability of a county council in respect of the cost of re-building a

sea-wall and esplanade supporting a main road, see Sandgate Local Board v. Sect. 11 (2). Kent County Council, 13 T. L. R. 333; 61 J. P. 517.

The words "maintenance, repair, and reasonable improvement" meet the decision in Leek Improvement Commissioners v. Staffordshire JJ., cited in the notes to the last sub-section.

As to how the amount of the annual payment is to be determined, see the next sub-section.

Where trust funds arising under various settlements were applicable for the maintenance, repair, lighting, watching, and watering of certain main roads to which this sub-section applied, the court (without dealing with any question of amount) declared that in settling the payment to be made by the county council to the urban authorities who claimed to retain the roads the existence of the trust funds ought not to be excluded from consideration, but that as the funds ought according to the trusts to be applied not only to maintenance and repair but also to lighting, watching, and watering, the amount usually required to be expended out of the trust funds on these lastmentioned purposes should not be treated as money to be brought into account in assessing the payment to be made by the county council towards maintenance, repair, and improvement. Middlesex County Council v. Willesden District Council, 60 J. P. 630; 12 T. L. R. 437.

(3.) The amount of such payment shall be such annual sum as may be from time to time agreed on, or in the absence of agreement may be determined by arbitration of the Local Government Board.

This sub-section is to have effect as if for the words printed in italics were substituted the words "be determined by the Local Government Board either as arbitrators or otherwise at the option of the Board" (Local Government (Determination of Differences) Act, 1896 (59 Vict. c. 9), s. 1, post). And s. 2 of the same Act provides that an order of the Board made before the passing of that Act (May 21st, 1896) and purporting to have been made for the determination of any matter under s. 11 of the Local Government Act, 1888, shall not be invalid by reason only of the Board having determined the matter as arbitrators or otherwise instead of appointing an arbitrator to determine it.

This Act seems to have been passed to meet the decision in In re Kent County Council and Sandgate Local Board, [1895] 2 Q. B. 43; 64 L. J. Q. B. 502 ; 72 L. T. (N.S.) 725; 43 W. R. 652; 59 J. P. 456; 11 T. L. R. 421, in which it was decided that where under this Act the Local Government Board are to determine differences "by arbitration" (as in the unaltered text) they must proceed under s. 63, post, with the consequence that an arbitrator appointed by them under that section may be compelled under s. 24 of the Arbitration Act, 1889 (52 & 53 Vict. c. 49) to state a case for the opinion of the court. In that case the Board in determining a difference under this sub-section had proceeded under s. 87, post, by holding a local inquiry, and the court held that this method of procedure was inapplicable. The effect of the Act of 1896 is that when the Board are called upon to determine a difference under this section they may at their option proceed under s. 63 (in which case the arbitrator appointed by them must state a case if called upon to do so) or under s. 87 (in which case the Board do not act as arbitrators and cannot be compelled to state a case).

The High Court has no jurisdiction to determine a question of amount under this sub-section. In re Bedfordshire County Council and Bedford Urban

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