sable, it is lawful for passengers to make gaps in his hedges, and to avoid the ill way, so that they do not ride further into his enclosed grounds than is needful for avoiding the bad way.1 Where, however, the way is altered or changed, and enclosed by a legal proceeding, or is enclosed under the authority of an act of parliament for dividing and enclosing open common fields, the person who encloses is not bound to repair it, unless in the case of a writ ad quod damnum the jury impose such a condition upon him, or unless the new way lies in another parish. And if the owner destroy his enclosures and again open the way, it it seems that he will be freed from the repair thereof; and the burden shall thereupon revert to the parish. In the case of footpaths, all stiles between different enclosures must be kept in good repair by the occupiers of the field; and it is sufficient to indict him as occupier, and not as owner, for the public are not obliged to search out who is owner.a

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§ 255. Of Liability by Prescription. A particular person cannot be bound to such a duty by a general prescription, from what his ancestors have done, if it be not in respect of the tenure of his land, taking of toll or other profit; for the act of the ancestor cannot charge the heir without profit. Where, therefore, this liability is pleaded as chargeable on particular persons, the plea must state the consideration on account of which such persons are bound to repair; for the parish being liable as of common right, cannot exonerate themselves unless they show that the burden is cast upon some other persons, under an obligation equally durable with that which would have bound the parish, which obligation must arise in respect of some consideration of a nature as durable as the burden cast

1 Berni's case, Sir W. Jones, 296; 3 Salk. R. 180.

2 Ex parte Vernon, 3 Atk. R. 771; Rex v. Flecknow, 1 Burr, R. 465; 2 Wms. Saund. R. 160, n. 12; Rex v. Commissioners of Llandillo, 2 T. R. 232. 3 2 Wms. Saund. R. 160.

4 1 Salk. 357, pl. 3; 7 Mod. Rep. 55.

upon them.1 But, though in the case of individuals there must be such a consideration, it is said that a corporation aggregate may be compelled to do it by force of a general prescription, “that it ought and hath used to do it," without showing that it used to do so in respect of the tenure of certain lands, or for any other consideration; because such a corporation, in judgment of law, never dies; and, therefore, if it were ever bound to such a duty, it needs must continue to be always so; neither is it any plea, that such a corporation have always done it out of charity, for what it hath always done, it shall be presumed to have been always bound to do." Likewise, a particular district or division of a parish may be bound by prescription to repair the highways within its limits, and a plea alleging this fact need not state any consideration for the liability, though in order to charge it with the repair of a highway, the highway must be stated in the indictment to be situated therein. But such a charge is said more properly to be considered as originating in a custom than a prescription; the distinction between which is, that a prescription is always alleged in the person; a custom ought always to be alleged in the land or place; a prescription ought to have, by common intendment, a lawful beginning; a custom may be good although the particular reason of it cannot be assigned, for it suffices if no good reason can be assigned against it. Custom, therefore, being the ground of the liability, must be specially alleged in an indictment against a district. or township, for not repairing. So, it seems, that several

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1 Bac. Abr. Highways, (F.,) 13 Rep. 33; Rex v. St. Giles, Cambridge, 5 Maule & S. R. 260; Regina v. Blakemore, 9 Eng. Law & Eq. R. 541.

2 1 Hawk. P. C. c. 76, § 8 ; c. 77, § 2; Rex v. Liverpool, 3 East, R. 86; Rex v. Stratford-upon-Avon, 14 East, R. 348; Rex v. Gloucester and Birmingham Railway Company, 9 Carr. & P. R. 469; Rex v. Machynlleth, 2 B. & C. R.

166.

3 Rex v. Ecclesfield, 1 B. & Ald. R. 348; Rex v. West Riding of Yorkshire, 4 B. & Ald. R. 623; Rex v. Machynlleth, 2 B. & C. R. 166; Rex v. Heage, 1 Gale & D. R. 548; 2 Ad. & E. R., N. S. 128; Regina v. Barnoldswick, 4 Ad. & E. R., N. S. 499; Rex v. Hatfield, 4 B. & A. R. 75; Rex v. Great Broughton, 5 Barr. R. 2700.

townships may be chargeable conjointly with the repair of a highway; and that one parish may by prescription be bound to repair a highway in another parish.1 But if a way be enlarged, it seems that those who were before liable by prescription to repair it, shall not have their burden increased on account of such enlargement, but that the repair of the new part of the way shall be made at the expense of the parish.2

§ 256. Where lands, bound to the repair of a bridge or highway ratione tenure, are conveyed to several persons, every one of the grantees, being a tenant of any parcel, is liable to the whole charge, and must have contribution from the others. And the grantees are chargeable with the repair, though the grantor should convey the land or manor discharged of the burden, in which case the grantees must have their remedy over against the grantor. And the reason seems to be, because the whole manor or land, being once chargeable with the repair, the law will not suffer the owner to apportion the charge, so as to make the remedy for the public more difficult, since the necessity of the case requires the greatest expedition in cases of this nature; or, by alienations to insolvent persons, to render the remedy against such persons quite frustrate. And though such land or manor come into the hands of the crown, yet the obligation or duty continues; and any person afterwards claiming the whole, or any part of it, under the crown, will be liable to an indictment for not repairing.

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§ 257. Repair of Bridges. In England, at common law, all public bridges are prima facie repairable by the inhabitants of the county without distinction of foot, horse or car

1 Rex v. Bishop of Auckland, 1 Adol. & Ell. R. 749; 12 Mod. R. 409; Vin. Abr. Chirain, B. pl. 2.

2 Rex v. St. Pancras, Peake, R. 286; Rex v. Townsend, 1 Doug. R. 421; 2 Camp. R. 494; 12 East, R. 368.

3 Regina v. Buccleugh, 1 Salk. R. 358; Rex v. Buckeridge, 4 Mod. Rep. 48; 3 Vin. Abr. Apportionment, S., pl. 9; 1 Hawk. P. C. c. 77, § 3; Rex v. Oxfordshire, 16 East, R. 223.

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riage bridges, unless they can show that others are bound to repair particular bridges; the liability of a county in this respect being the same as that of a parish with respect to highways.1 Bridges, to be repairable by the county, must, however, be public; that is, built in a highway and common to all the king's subjects; and must, further, be erected over such water as answers the description of flumen vel cursus aqua; that is, water flowing in a channel between banks more or less defined, although such channel may be occasionally dry. Whenever such a bridge is built, though it be the work of a private individual, undertaken for his own convenience, or even of the trustees under a turnpike act, who are empowered to raise tolls for the support of the roads, if it becomes useful to the county in general, the county shall repair it. But this duty of reparation does not oblige a county to widen bridges which have become too narrow for the convenient use thereof by the public. And though it prima facie attaches upon the county, yet may it be transferred to bodies politic, smaller districts, or individuals, by reason of prescription, custom, or the tenure of land, upon precisely the same principles as apply in this respect to highways in general. And if part of a bridge lie within a franchise, those of the franchise may be charged with the repairs for so much; also, by a special

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1 1 Hawk. P. C. c. 77, § 1; 2 Inst. 701; Rex v. W. R. of Yorkshire, 5 Burr. 2594; 2 W. Bl. 685; Lofft. 238; 2 East, 342; Rex v. Salop, 13 East, 95; Regina v. Southampton, 14 Eng. Law & Eq. R. 116.

2 Rex v. Kent, 2 East, R. 342; Rex v. Northampton, 2 Maule & S. R. 262 ; Rex v. Devon, R. & M. R. 144 ; Rex v. Buckinghamshire, 4 Campb. R. 189; Rex v. Oxfordshire, 1 B. & Adol. R. 289; Rex v. Derbyshire, 2 Ad. & El. R., N. S. 745; Rex v. Trafford, 1 B. & Ad. R. 874; 8 Bing. R. 204; Rex v. Whitney, 4 Nev. & M. R. 594; 7 Carr. & P. R. 208.

3 2 Inst. 701; 1 Salk. R. 359; Glasburne Bridge case, 5 Burr. R. 2594; 2 W. Bl. R. 685; 2 East, R. 353, n.; 2 East, R. 356, n.; 2 East, R. 342; Rex

v. Lancashire, 2 B. & Adol. R. 813; Rex v. Kent, 2 Maule & S. R. 513.

4 Rex v. Cumberland, 6 T. R. 194; 3 Bos. & P. R. 354; Rex v. Devon, 4 B. & C. R. 670.

5 See Ante, § 253, et seq.

tenure, a person may be charged with the repairs of one part of a bridge, and the inhabitants of the county be liable to repair the rest.1 And if a foot bridge or horse bridge, with the repair of which an individual or township is charged, be enlarged to a carriage bridge, the reparation thereof shall be made as to the new by the county, and as to the old part by the individual or township pro rata.2 By Stat. 22 Hen. VIII. c. 5, § 9, the inhabitants of a county are bound to repair to the extent of three hundred feet of the highway at each end of the bridge; and prima facie a party, who is liable by prescription to repair a bridge, is also liable to repair the highway to the same extent.3

4. Want of Reparation in the United States.

§ 258. Such, in England, is the obligation of maintaining and repairing highways and bridges at common law. In the United States, at common law, this obligation does not exist; but in most of the States is imposed by statute on the several towns in which the highways are situate. In England, it was incident to a peculiar form of territorial organization, originating like itself in immemorial usage; and when the American colonists left that organization behind them, they necessarily left the incidental obligation with it. "There is," says Selden, J., in delivering the judgment of the Supreme Court of New York, “no very close correspondence between the nature and object of the organization of towns in this State and that of parishes in England. While the former are exclusively

1 1 Hawk. P. C. c. 77, § 1.

2 Rex v. W. R. of Yorkshire, 2 East, R. 353; Regina v. Brecknockshire, 3 Eng. Law & Eq. R. 402.

3 Ibid.; Rex v. W. R. of Yorkshire, 7 East, R. 588; 5 Taunt. R. 284 3 Smith, R. 437; Reg. v. Lincoln, 8 Ad. & E. R. 65. See the very excellent treatise of Leonard Shelford, Esq. on Highways, pp. 34 to 42, and 44 to 52, of which this and the preceding sections relating to the common-law liability to repair highways is little more than an abridgment.