burrow king versus inhabitant OF FLECKNOW Saturday that Feb one who enclose a  allotment of land adjoin to a open road across common field be not bind to  repair h g No this be a cause in the crown paper upon a special case from the  assize in Warwickshire upon a indictment against the inhabitant of the hamlet  of Flecknow for not repair a highway which the indictment lie that they ought  to repair the inhabitant plead that one George Watson ought to repair it by  reason of his tenure a so long as the same shall remain enclose c and traverse  that the defendant the inhabitant ought to repair it the replication set out a  Act of parliament of g c a private Act for enclose and divide the common field  call Flecknow in the county of Warwick into just allotment and proportion and  also the several proceed under it and then traverse that the say George Watson  by reason of his enclose the say highway ought to repair and amend it as often  as there shall be occasion while it shall remain so enclose by he modus et  form prout be allege by the plea et hoe a preparation be verify the rejoinder  admit the Act and the proceed under it and George watson acceptance c under  they and allege that George Watson by reason of his enclose ought to repair c  and of this they put themselves upon their country issue be take thereon and a  verdict pro ring subject to the opinion of this court the case state by  consent of counsel be in substance thusthe inhabitant of the hamlet of  Flecknow before the make the enclosure by virtue of the Act of parliament in  the record mention be bind to repair the highway in question the road in the  plead mention be before the make the say Act of parliament a ancient open road  lie enclose without hedge ditch or fence and continue to lie so uninclosed at  the time of make the say Act of parliament and until the enclosure thereof as  hereafter mention b a this be wrong in point of form for as in sand it be  resolve that if a defendant be changeable by reason of encroachment he ought  not to be charge ration tenure but by reason of the encroachment only so in  the case of a enclosure of land contiguous the same reason will hold as in the  case of encroachment b if the inhabitant of a township bind by prescription to  repair the road burrow er p the commissioner appoint by the say Act of  parliament do in pursuance of the say Act by their award in write duly award  ascertain set out direct and appoint burrow that there shall be at all time  for ever after the new enclosure by the say Act direct to be make a public way  or road lead from the hamlet of Flecknow aforesaid to Southam in the say  county of Warwick and also from Southam aforesaid to Flecknow aforesaid be the  road in question for person to pass either on foot horseback or with cattle  and carriage into over and through the allotment of the say George Watson and  that the same shall be and remain at all time for ever thereafter full forty  foot broad as the same be then admeasured and set out and the case state that  within one year after make the say award that be to say in January the say  George Watson enclose his allotment pursuant to the say Act of parliament and  the highway in question lie open and uninclosed on each side thereof as  aforesaid over the land part of the allotment of the say George Watson for the  space of three year next after the enclosure of his say allotment so by he  make as aforesaid the say George Watson at the end of the say three year  enclose with hedge ditch and fence the say highway on both side thereof leave  the same full forty foot broad between the ditch and the say road or highway  remain so enclose by the say George Watson during the whole time mention in  the indictment the say George Watson make no enclosure of the say highway in  question other than as aforesaid a verdict by consent be find by the jury  whereby the defendant be find guilty but such verdict be to be subject to the  opinion of this court upon the whole case as it appear on the plead and on  what appear to be and be the case as be before mention and the question submit  be whether the inhabitant of the say hamlet of Flecknow continue bind to  repair the highway in the say indictment mention notwithstanding the say  enclosure by the say George Watson in manner before state or whether by reason  of such enclosure they be discharge therefrom during the time in the  indictment specify serj Hewitt pro ring argue that the inhabitant remain still  bind it be admit that this hamlet of Flecknow be bind to repair before the Act  of parliament and it do not appear burrow that George Watson be bind by have  enclose under this Act of parliament for this be no encroachment no injury to  the public no act do without consent and the case turn upon want of lawful  authority Ro Abr letter a pl sir Edward Duncombe case outlet be parcel of the  highway in a open field ibidem letter b pl the subject may go out of the beat  tract when the way be founderous in a open field a shepherd epitome of the law  if a man enclose the highway and put it within his own ground the parish be  not to repair it but he must repair it himself sand king v sir Nicholas  Stoughton a encroacher upon the highway be oblige to repair so long as the  encroachment continue style whoever enclose c take upon he to repair but this  enclosure and allotment be under a Act of parliament to which every body  consent and this Act direct public and private highway to be lie out within  the township be express exempt by the provision of a RoadAct from the charge  of repair new road to be make within the township that charge must necessary  fall on the rest of the parish the king v inhabitant of Sheffield Durnf a so  the subject may before the enclosure have do if this road have be founderous  for there be nothing to distinguish this road from other for when highway be  appoint by commissioner authorize by parliament to appoint the same they  become highway for all purpose and the right and privilege of the subject  relate to highway in general attach upon and be incident to the highway so  appoint and there can be no distinction between the right of the public to  such new appoint highway and the old highway in lieu of which such new highway  be general appoint and there be at least as little reason for any such  distinction where the commissioner appoint the old highway instead of stop it  up and appoint another in its stead burrow er p and it provide that nobody  shall go upon any other highway therefore the old right to the old way be at a  end be annihilate and so be the way itself be exchange for the new one and  this of course warrant the enclosure but the Act lie no charge upon the owner  therefore George Watson can be say to have enclose any part of the highway for  this land be allot to he as his private property and he be warrant in make  this enclosure this be just like the case of a writ of ad quod damnum it be  indeed a parliamentary ad quod damnum it may be even worth the inheritance of  the land to repair the adjoin highway so that this be not within the principle  which oblige person enclose to repair and if George Watson be not oblige to  repair this highway the inhabitant of Flecknow be oblige Mr Caldecott contra  for the defendant this be a indictment against the inhabitant for not repair  and it only charge that they be bind the plea set out by way of inducement  that one George Watson by reason of his enclosure ought to repair and then  tender a traverse that the inhabitant ought not to repair burrow the  replication instead of take issue upon this traverse set out the Act of  parliament and then set out all the proceed under it and the allotment to  George Watson and his acceptance thereof and his enclose his allotment first  and the road afterward and then take quite another traverse videlicet that he  the say George Watson be not by his enclose the road bind to repair it CurWe  can meddle with the plead now we be upon the special case if you have any  objection to the plead you must move in arrest of judgement Mr Caldecott then  proceed on the case this be a road which be always a open and uninclosed road  and go over George watson own land saint this be no enclosure within this Act  d if it be yet the Act do not take away the legal consequence of enclosure  FirstThis be a old open uninclosed road over this George watson own land and  the Act do not give any authority to enclose it nor can intend any such thing  and it be much better for the public that it shall be open and uninclosed than  that it shall be enclose if he will enclose it he ought to repair it it be  here state that he do enclose his allotment within two year the time limit for  so do but that he do not enclose this road till three year after the  commissioner award therefore it be not a enclosure under this Act consequent  he be liable to repair I agree that if a man enclose on both side of a road he  shall repair the whole and if c see Hawkins as below there be a great deal on  this subject in hawk p Q lib c and I agree that a man be bind to repair no  long than while he continue his enclosure so that if he open his enclosure he  will be discharge as to a ad quod damnumIt make the old road to become private  property and there ought to be a grant from the crown but this Act of  parliament have not direct a enclosure of the road in question neither do the  award of the commissioner direct it therefore George Watson be in this oblige  to repair and the inhabitant be not oblige Lord Mansfield stop Mr serj Hewitt  from reply for this case be too plain he say to need a reply burrow a owner of  land over which there be a open road may enclose it by his own authority or  alter it under a proper authority and by a legal course first he may enclose  it by his own authority but then it must be upon two condition one that he be  oblige to repair it till he throw up the enclosure the other that he leave  sufficient space and room for the road dly the other act videlicet alter or  change the road by a legal course be by a writ of ad quod damnum where the  application be to be make by the owner of the land and a licence give by the  king upon a find by a jury but in this latter case the owner of the land be  not oblige to repair the new road unless the jury impose such a condition upon  he for if they do not the repair of the road stand just as it do before even  though it be at first open and shall be direct by the jury to be enclose a a  the very name and nature of the proceed prove that no person ought to burrow  er p and this case be like a writ of ad quod damnum and not only so but even  more than a writ of ad quod damnum for here the Act vest a power in the  commissioner to set out new road by their award therefore there be a end of  the old road as a old road and the commissioner here make their award in which  they describe the future road and direct it to be forty foot broad as it be  then admeasured and these common field be not design to continue open field as  they be before but the intent of the Act of parliament be that they may be  enclose and the Act say nothing about the expense of repair the road therefore  the repair clear stand as it do before and be certain mean so to do and every  man have a right to enclose who land adjoin to the road but if the person to  who the allotment be make near the highway be to be oblige to repair a it may  have make a vast difference in the value of the land respective allot to each  person for one person allotment may perhaps run alone very far by the side of  the highway and another person allotment not lie at all near it and yet there  be no provision for any such case therefore this George Watson be not upon the  fact here state to we oblige to repair by reason of his have enclose a open  road nor indeed be it a open road under the circumstance of this case b the  parish be bind to repair before the Act and this road happen to be the same  identical road that be burrow the road before the Act and the Act of  parliament never design to alter the charge and obligation of repair the road  over these field which be intend to be enclose by virtue of it nor be this  enclosure thus make under this Act such a enclosure as come within the meaning  of the law which oblige the person enclose a road voluntary and of his own  head to repair the road which he have so voluntary enclose Mr just denison  concur and he think this case be very proper compare to the case of a ad quod  damnum and that it may be very proper call parliamentary ad quod damnum and he  be very clear that the hamlet be bind to repair just as they be before and  that this enclosure be not such a enclosure as the case cite intend be damage  by they but if the jury have such a power as assert by Lord Mansfield all the  inhabitant of the parish will be damage if the old road be open and uninclosed  and the jury have a power of direct the new road to be enclose without throw  the burden of the repair of the new road upon the prosecutor of the writ ad  quod damnum for then the inhabitant will be oblige to repair the new road  though enclose instead of the old road which be uninclosed and can not have be  enclose by the prosecutor the owner of it without make himself liable to the  repair the consequence be either that the jury have no power to direct the new  road to be enclose or if they have the law must throw the repair of it not  upon the parish but upon the prosecutor as the person make or cause the  enclosure this if law as to which query be the best if not the only good  reason for the judgement for there seem to be little or no weight in the other  reason that the road be enclose not voluntary but by authority of the Act in  respect of repair the parish stand before liable to repair the road only so  long as it remain uninclosed and it appear ante that before the Act the road  be a ancient open road and so continue at the time of pass the Act and that it  lie open as appear ante for three year after the enclosure make by Watson oh  his allotment so that the enclosure be not make by authority of the Act but be  a subdivision a he need not have enclose the road and then he will not have be  liable to repair and no doubt the commissioner allow for this inconvenience as  well as other b it appear in page to have be state by the case that the road  in question be over and through the allotment of George Watson query whether  it be a objection to this determination that in consequence thereof such  proprietor of estate in the parish or town as be not benefit by the enclosure  will be injure by the increase of the expense of repair highway which will be  much heavy after they be make into lane than when they be uninclosed burrow er  p Mr just foster likewise concur and he think the Act intend to give the  person to who a allotment adjoin to the road shall be make power to enclose or  otherwise he may be a very great sufferer by such allotment and he be extreme  clear that the hamlet remain bind to repair the road just as much as they be  bind to repair before the Act Mr just Wilmot concur too clear and the rather  for that if it be not so the allotment may prove what the civil law term a  injurious inheritance and the allotment to the different person may be of  extreme different value accord as they lie near to or far from the road upon  all the circumstance of the case he be clear that the hamlet remain liable in  the same manner as they be before the Act per cur unanimous rule for the  postea to be deliver to the prosecutor