The King against The Inhabitants of Milverton
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1836 |
| Date | 25 November 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1385
IN THE COURT OF KING'S BENCH.
(S. C. 1 N. & P. 179; 2 H. & W. 435; 6 L. J. M. C. 73.)
[841] the king against the inhabitants of milverton. Friday, November 25th, 1836. An order of justices for stopping an unnecessary highway, under stat. 55 G. 3, c. 68, s. 2, is bad, if it stop up half the breadth of a highway, leaving the rest open ; although the other half be not within their division. Quaere, whether the justices of the two divisions could, by orders made concurrently, stop both sides. Justices cannot stop several highways by one order, except ao far as they are authorised by stat. 5 & 6 W. 4, c. 50, s. 86. Serable (by Lord Denman C.J. and Coleridge J.) that, if an order has been properly made and enrolled for stopping a highway, it is not necessary, to make such order completely effectual, that an actual stoppage should have taken place. Held, by Lord Denman C.J. and Williams J. that, if an order for stopping a highway, under stat. 55 G. 3, c. 68, begins " We," &c. " having upon view found, and it appearing to us," that a certain highway, &c., is unnecessary, the recital does not imply that the justices acted upon any other information than their own view, and is well enough. [S. C. 1 N. & P. 179; 2 H. & W. 435 ; 6 L. J. M. C. 73.] This was an indictment against the inhabitants of the parish of Milverton, Somersetshire, for non-repair of certain highways in that parish. The defendants pleaded not guilty. On the trial at the Summer Assizes for Somersetshire 1835, a special verdict was agreed to, the material parts of which were as follows. The parts of the highway mentioned in the several counts of the indictment were in the parish of Milverton, and were out of repair. The several parts of the said K. B. XL.-44* 1386 THE KING V. MILVERTON 6 AT. tsS- 842. highway were called Blackgrove's Lane, which lane was part of a common highway from the village of Oak to the town of Milverton. All the ways mentioned in the indictment were comprised in the after-mentioned order. One portion of the highway, mentioned in the first and third counts of the indictment, was wholly in Milverton ; another portion, mentioned in the second and third counts, was, as to half of its breadth, in the parish of Milverton, and, as to the other naif of its breadth, in the parish of Oak, in Somersetshire. On February 25th, 1818, an order was duly made under the hands and seals of two justices of the county of Somerset, who therein stated that, at a Special Sessions holden at, &c., in the parish of Milverton, " hav-[842]-ing upon view found, and it appearing to " them, that a certain public highway in the parish of Milverton, called, &c,, (describing it) is useless and unnecessary ; and also that a certain other public highway, commonly called Blaekgrove's Lane, lying between, &c., is useless and unnecessary, the entirety of which last-mentioned highway from H. common, &c., to the northern corner of close C,, &c., of the length, &c. and breadth, &c., is situated and being in the parish of Milverton aforesaid, and the southern side of the said highway to the middle thereof, from the said northern corner of close C., Ac., to the north-eastern corner of the same close, of the length, &c., and breadth, &c., is situated and being in the parish of Milverton aforesaid, and the northern side thereof to the middle of the same highway, from, the said northern corner, &c., to the said north-eastern corner, &c., is situated and being in the parish of Oak in the same county ; and also that a certain other public highway, &c., is useless and unnecessary (describing another road, which, as to one part of it, was in Milverton, and, as to another, was divided like the preceding, between Milverton and another parish); they did thereby order " the said public highway hereinbefore first described and stated to be useless and unnecessary, and also the said public highway hereinbefore secondly described and stated to be useless and unnecessary, except so much and such part thereof as is in the said parish of Oak, in the county aforesaid, and likewise the said public highway hereinbefore thirdly described and stated to be useless and unnecessary" (with a like exception), "to be stopped up," and the land sold by the surveyors of Milverton to the proprietors of the adjoining lands, if willing to purchase for the full value ; if riot, to some [843] other person, &c. for the full value ; reserving to the owners and occupiers of adjoining lands and hereditaments free passage for persons, horses, carriages, &c., over the land and soil of the highways ordered to be stopped, to and from the said lands and hereditaments, according to their ancient usage thereof respectively. The verdict went on to state that the three highways directed to be stopped up were not joiued to or connected with each other, and did not lead into each other, but were altogether distinct, and at considerable distatices from each other ; that Black-grove's Lane comprehends as well the parts of the said highway in the said parish of Oak, as those in Milverton; that such portion of the said highway as is stated in the order to be in the parish of Milverton is the same highway as is mentioned in the indictment; and that no order of justices has been made for stopping such parts of Blackgrove's Lane as are stated to be in the parish of Oak ; that the said highway has never been divided and allotted under the provisions of 34...
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