Tolls
| Author | Christopher Jessel |
| Pages | 269-277 |
Chapter 15 Tolls
tolls
15.1 TOLLS AND WAYS
One of the sources of income for manors depended on exploiting their geographical position. The right to charge for the use of roads, taking boats on rivers and estuaries and anchoring them, and crossing rivers by ferries and bridges can be described as a toll. Most ancient tolls are long gone but enough traces remain to call for an explanation. Tolls are franchises, discussed in 16.6, or are attached to franchises such as toll of market discussed in 21.2. As such, at common law they must be authorised by royal charter, although if they predate 1189 (or have been collected for many years and there is no evidence to contradict a pre-1189 origin) this will be presumed.
Other tolls were created by statute, for example under eighteenth-century turnpike Acts for the building and repair of roads.
In England tolls were relatively rare, in contrast with the Continent. Until the nineteenth century one of the great obstacles to travel and commerce throughout Germany, France and Italy was the innumerable tolls charged by every graf, count or bishop at every possible point. Navigation up the Rhine was for centuries hindered by the number of barriers erected to mulct traders. Although tolls did exist in England one of the main sources of law concerns not charging but exemption – the privilege of tenants of manors of ancient demesne (24.9) to be free of tolls throughout the realm. In Anglo-Saxon times there were many
1 Law Commission, Statute Law Repeals: Consultation Paper, Repeal of Turnpike Laws
(February 2010).
270 The Law of the Manor
import or market tolls. Since Norman times the general picture in England has been of free trade which has encouraged prosperity.
Tolls had a function beyond simply earning money for their proprietor, for example to defray the expenses of operating markets and harbours, and for the repair of roads, bridges and town walls. The owner would expect to make a profit, but that was not the main object. To the extent that tolls are franchises they may need protection under the Land Registration Act 2002 (25.9).
15.2 ROAD TOLLS
Road tolls were rare. Public roads are the Queen’s highway and it would not be right for a subject to charge toll over them without clear legal authority. However, some tolls still exist, known as toll thorough and toll traverse.
Apart from very ancient highways such as Roman roads and Saxon herepaths (military roads), roads can become highways in one of two ways. One is positive action by government (either central or local) which acquires land for a highway under statutory powers. The other is dedication usually accompanied by adoption. A landowner may give up or dedicate land to public use as a highway. This often happens on building estates. At common law dedication may be implied by long use by the public. Under the Highways Act 1980, s 31 if members of the public use a way without interference for over 20 years as of right without permission, force or secrecy, dedication can be presumed, although a landowner may take steps to ensure that tolerating public use is not treated as dedication. Presumed dedication is unlikely to involve any toll.
A highway can be deliberately dedicated subject to conditions. One common condition relating to footpaths that cross fields is that the path can be ploughed up to enable crops to be planted in the field. The Rights of Way Act 1990 was passed to regulate this practice. So likewise a lord may have dedicated a highway subject to his right to charge toll, either as a fixed sum for each passer by or a variable one.
Toll traverse should be distinguished from the private right to charge people for using private tracks. For example the owner of land between a public road and a
2 R v Marquess of Salisbury (1838) 8 Ad & E 716, 112 ER 1009.
beach may make a road across his private land and charge the public for using it. That is no different from any other charge for coming onto private property. The route may be a public footpath which anyone can use on foot without charge, but if it is not a public road the owner can still charge for vehicles. This is often called a toll, but in law it is not. Similarly, there may be a private easement...
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