Witness Deposition – Christopher Fawcett – 9 Jun 1766

[cover note:] Copy of Additional Case relating to the Lead Way with Mr Fawcett's Opinion thereon  June 1766



Widdrington & Richmond

Additional Case



As there seems to be no means of perpetuating the Testimony of the old Witnesses, & as the Way is at all Times in too good a state to be indictable, You'l please to give your Opinion, Whe[the]r some of the steps proposed to be taken in the following Queries, will prove effectual to establish the Way, as a public High Way, in case the p[er]sons indicted sho[ul]d submit, or be found guilty of any of the offences in these Queries ment[ione]d





Q.1st	Sho[ul]d the Owners of the Gro[un]ds adjoining the Way, which is a narrow inclosed Lane or Way in gen<era>l, be indicted, in case they do not cut down, or keep low, all trees & Bushes growing in or adjoining to the way? Or wo[ul]d you advise an Action at Law for the penalty?

Vide	  5 Eliz. Cap: 13.,   3. W & M Cap: 12., 13 Edwd 1. St. 2 C: 5., 24 Geo 2. Cap:43.



The several Statutes requiring all Trees & Bushes growing in or adjoining to an High Way be cut down or kept low seem to me to make it an offence not to do so in such cases only where by means of their not being kept low the Highway is prejudiced; But in the present Case, the Way being at all times in too good a State to be indictable, I cannot recommend either an Indictment or an Action on Acco[un]t of Trees or Bushes not being cut down or kept low. But if any Thing was to be done on Acco[un]t of Trees or Bushes growing ion or adjoining to the Way, I would advise an indictment rather than an Action.





Q. 2d. Sho[ul]d they be indicted for suffering their Ditches, adjoining to the Way, to be foul? Or wo[ul]d you advise that the Surveyor in execution of his Offices & at the public Expense, or by summoning the inhabitants, sho[ul]d cleanse the Ditches. 

Vide 3 W & M C 12.



I think the proper Method of proceeding in cases where the Ditches adjoining an Highway are permitted to be foul is for the Surveyor to give Notice to the Owner or Occupier of the Lands adjoining & to proceed upon the Act 3. W & M. for the penalty in case they are not cleansed in 10 Days after such notice: but in the present Case it does not appear to me That there are any annoyances to the Way by means of the Ditches not being cleansed.





Q. 3d In case any Gates have in Time of Memory been erected in the Highway, sho[ul]d the persons so erecting Gates (if living) or the Owners of the adjoining Gro[un]ds be indicted for such offence? Vide 1 Han. 199.



If there are any Gates erected in the Highway within the Memory of any persons living The owners of the adjoining Gro[un]ds may in my Opinion be indicted for the Nusance to the Highway & in such Case also any p[er]son might justify the pulling down of such Gates. But I think the End proposed will be much better answered by an Indictment than by removing the Nusances & leaving the Owners of the adjoining Ground to bring an Action, And I Think some of the persons having occasion to pass along the Way shjo[ul]d give Notice to the Owner of the adjoining Gro[un]d to remove the Gates And that unless they are removed before a certain Day to be mentioned in such Notice The person to whom the Notice is given will be indicted. And it will also be proper to take Two or Three people as Witnesses of such Notice That in Case they should be removed thereupon there may be evidence ready to produce hereafter of the Fact which in my Opinion would be conclusive against the Owners of the Ground as to its being an Highway.





Q. 4th If the Way be too narrow sho[ul]d the Owners of the adjoining Gro[un]ds be indicted? Or sho[ul]d the Surveyor ex Officio to make it suff[icien]t (to wit) 8 feet wide at least? Or sho[ul]d the Justices at the Quarter Sessions, be applied to for an order to enlarge the Way by taking in gro[un]d not exceeding 8 Yards in Breadth?

Vide 	9.W. & M.C.3,  84g.W.3.C.3.



If any part of this Lane is too narrow , it will in my Opinion afford the best opportunity of any other to perpetuate the Testimony of its being an Highway (viz.t) In such case I would advise an application to the Justices at the next Qua[rte]r Sessions (where you must be prepared with proper Evidence to support your Allegations) to issue precepts to the Owners of the next adjoining Grounds to appear & shew Cause why the way should not be enlarged; And this will be a means of having the point in Regard to its being an Highway brought fully in Question & determined upon Record to all Intents & purposes. For the whole of this method of proceeding will be recorded at the Sessions, & if the order for the enlarging the Way should be obtained & and assessment made upon the persons liable to repair pursuant to the Statute of the 8.4.g.W.3. & submitted to; There cannot I think ever afterwards be any Controversy concerning its being an High Way.





Q. 5th If a Surveyor shall not have been appointed by any Township within which the Way lies, can the Township be indicted? Or sho[ul]d a warr[an]t to levy <20s>, be applied for, & when, & to whom, & against whom?

Vide 3.10.C,12,S.9.



In case no Surveyor of the Highway has been appointed for the Township within which the Way lies I see no method you have to procure one to be appointed but by applying to the Justices at their Special Sessions to issue their Warrant to the High constable to issue his Warrants to the petty Constables to make a Return of persons to be Surveyors. I think the Township cannot be indicged for not having a Surveyor; And the <20s> forfeiture is only upon the Constables &c for not returning the Lists, upon Notice given for that purpose.





Q 6th If the Surveyor for the time being, after so long discontinuing to repair by Statute Work, can be prevailed on (even by a reward) to summon the Inhabitants to repair the Way, & they sho[ul]d obey the Summons, Wo[ul]d not the p[er]formance of that Duty be strong Evidence of a High Way, & hereafter conclude the towns[hi]p or any individual pretending it to be a private or p[er]missive Way? And on refusal to work, may not the delinquents be punished & in what manner? or would you advise an Order of the Justices at the Special Sessions for reparation of the Way?

Vide 1.Geo:St.2.C.52.



Any reparation of the way by the Inhabitants pursuant to a Summons from the Surveyor would undoubtedly be Strong Evidence of its being an High Way & wo[ul]d be conclusive to the Inhabitants of the Township hereafter in case of an Indictm[en]t against them for not Repairing it But I do not think it would be conclusive to the Owners of the Ground on each Side tho[ugh] it wo[ul]d certainly be very strong Evidence against him of its being a public Highway & not a Way by permission – If the Inhabitants upon being summoned by the Surveyor sho[ul]d neglect to do their Duty He must make Complaint upon  Oath to the Justices at their Special Sessions who may & ought to Summon the delinquent & upon Conviction levy the penalty; And if you could prevail upon the Justices to make an order at their Special Sessions for Repairing this Lane it would be well.





Q 7th If there has been any late subtraction or inclosure of the Way, sho[ul]d the p[er]son so inclosing be indicted?



Any Thing of this kind which is a publick Nusance ought in my opinion to be carefully attended to, & the p[er]son guilty of the offence should be indicted, and if you could lay hold of any p[er]son claiming under those who exacted the Toll as stated in the original Case, They ought to be proceeded against immediately by Indictment, & I think a Conviction upon a Traverse, or a Submission to such Indictment, would in a manner be decisive hereafter.





Q 8th If any landholder adjoining on the Way (or any other person) who admits it to be an Highway, sho[ul]d intentionally commit some offence against the Laws relating to Highways, in order to have the Question judiciously determined, & sho[ul]d thereupon be indicted, & on a Traverse be found guilty, would not such a Verdict be suff[icien]t to defeat any claim that may be made or founded, under the Submissions ment[ione]d in the original Case, & what Act sho[ul]d be committed for this purpose?



I think an Act done by any Landholder so as to give Ground for an Indictment for a Nusance in the Lane as being an Highway & either a Conviction upon a Traverse of the Indictm[en]t or a Submission to it will be Evidence to be given hereafter of its Being an High Way but will not be conclusive Evidence against the Owners of the Land in another part of the Lane; And therefore i do not approve of a  proceeding of this Kind except it should be absolutely adverse.





      As the Obstructions & exactions Ment[ione]d in the original Case, have for many years been discontinued, & are not Offences (p[er]haps) at this Time cognizable some such Measures as are above proposed seem necessary, & are presumed to be altogether proper & Justifiable from Necessity, in any case of them will serve to support & establish the Right to use the Way as a public Highway. You’ll please therefore to determine whether any & which (if any) of them sho[ul]d be pursued, or point out any adequate remedy, if you apprehend none of the above Schemes  wo[ul]d answer the desired end.

	Upon the whole my Opinion is to watch some Opportunity of Proceeding against the Inhabitants of the Township within which the Road lies; Tho[ough] the Road upon the whole be in such good Repair as not to bear an Indictment for any great Length of the of the way, Yet if you could find out a very few yards which are in such a State as to enable a p[er]son to give evidence to the Grand Jury That it is in Decay for want of Due reparation, and thereby get the Indictment found, The End proposed would I think be answered. Or if you could lay a suff[ician]t foundation for an Order of Sessions for a enlarging the way & for an Assessment upon the Inhabitants for that purpose pursuant to the Act of 8.& g.10. it wo[ul]d in my Opinion answer the purpose  And I rather recommend some pains to be taken to lay a Foundation for one or other of the two last ment[ione]d Methods of proceeding than any other hinted at in the above Q[uestion] or any other that I can think of.

Chr. Fawcett

9 June 1766



      Upon further Consideration had of this Case I think it very probable that by means of the late Rain some part of this Lane may have become so bad & may continue so till the next Sessions That a person may with great safety swear That it is out of repair Therefore I would advise a proper Person to go the Day before the Sessions & examine the state and Condition of it and if he can then swear that any part of it is out of Repair, Let an Indictment be preferred. I have also considered further in relation to the Stoppages which have been formerly made & as there is no Limitation for a prosecution for a public Offence In Case it sho[ul]d happen  That you cannot indict the Road at the next Session for being out of Repair I wo[ul]d recommend that you sho[ul]d be prepared with an Indictment against the p[er]sons who shut the Gates and took Toll tho[ugh] it was several years ago.

Chr. Fawcett

17 June 1766