Witness Deposition – William Wilson – 16 Jun 1766

[cover note:] Copy of Additional Case relating to the lead Way w[i]th Mr Wilson’s Opinion thereon June 1766



Widdrington & Richmond



Additional Case



As there seems to be no way of perpetuating the Testimony of the old Witnesses & the Way is at all Times in too good a state to be indictable You’ll please to give Your Opinion whe[the]r some of the Steps proposed to be taken in the following Quæries will prove effectual to establish the Way as a public Highway in Case the p[er]sons indicted sho[ul]d submit or be found guilty of any of the offences in these Quæries mentioned.





Q 1st Sho[ul]d the owners of Ground adjoining the Way w[hi]ch 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 and Bushes growing in or adjoining to the Way? Or wo[ul]d you advise an Action at Law for the penalty?.

Vide 3.W&M.C.12 – 13 Edwd.1.St.2.C.5 – 24 Geo:2.C43 – 5 Viz.C13



I think an Indictment against the possessions of the Gro[oun]d will more effectually answer the purpose than an Action.





Q 2d Sho[ul]d they be indicted for suffering their Ditches adjoining the way to be foul? Or wo[ul]d You advise that the Surveyor in execution of his Office & at the public Expence, or by summoning the Inhabitants Sho[ul]d cleanse the Ditches? Vide 3.W&M.C12



AS an Indictment will be more public & notorious than any Act done in consequence of an Application to the Surveyors I think an Indictment is preferable.





Q 3d In Case an Gates have been in Time of Memory been erected in the Highway sho[ul]d the p[er]sons so erecting the Gates (if living) or the owners of the Adjoining Gro[un]ds be indicted for such offence? – Vide 1.Han.199.



If any Gates have been erected by any person who is now living such person ought to be indicted; & is such person is dead I apprehend an indictment may be maintained ag[ain]st the Parish for permitting a Nusance to continue in the Highway tho[ugh] I never heard of such an Indictment yet I think it comes within the gen[era]l principles of Law relating to Nusances & I do not think the Owners of the Lands adjoining are more are more culpable than any other of the Inhabitants of the parish.



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 Surveyors ex officio 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.12 – 8.&9.W.3.C.3.



Unless the owners of the owners of the Gro[un]ds adjoining the Highway have encroached thereon I think they cannot be indicted on account of the straitness of the Way as it is an ancient Road but the surveyor may be compelled to make the Cart Way 8 Feet wide at the least in Case there is so much space between Fence & Fence if the Surveyor refuses to do so he will incur a penalty of 40s to be recovered as the Stat.12 W&M directs if the Highway is so narrow as to be incommodious Application ought to be made to the Justices at the Sessions to have the Way enlarged, by virtue of the power given them by the 8th & 9th 10.3.C.16.





Q 5th if a Survey 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 & ag[ain]st whom? Vide 3.W.C.12.S.3



As the Statute above referred to has imposed a penalty upon the Constables , Church wardens, & Surveyors if they do not duly return Lists to the Justices, also upon the Justices if they neglect or refuse to execute that Stat<ute>; I think the Township cannot be indicted on account of a Surveyor not being appointed If there is no Surveyor Application sho[ul]d be made to two of the Justices of the Division (who attended at the special Sessions which were held <after> Xmas last) for a Warr[an]t to levy



the penalty of 20s on the late Surveyor or on the then Constables or Church wardens & in Case such Justices refuse to grant such warrant an Action may be commenced ag[ain]st each of th[e]m for the penalty of £5 incurred by such refusal.





Q 6th If the Surveyor for the time being (after so long Discontinuance of repairing by Statute Work) can be prevailed on (even by a reward) to summon the Inhabitants to repair the Way and they Sho]hl]d obey the Summons would not the performance of that Duty be strong Evidence of a Highway and hereafter conclude the Towns[hi]p or any other individual pretending it to be a private or P[er]missive Way And of refusal to work may not the Delinquents to 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:S.2.C.52.



It will certainly be very strong Evidence of its being an Highway if the Inhabitants perform the Statute Work thereon either by the Direction of the Surveyor or by a Special Order from the Justices but I presume the Justices will not make an order unless it appears to them that there is great necessity for repairs; & in such a Case an Indictment would be much better than an application to the Justices.



The Surveyor has a Discretionary power to employ the Labourers upon what Road he thinks proper (unless there is a Special Order from the Justices) & in Case of Refusal by any one liable to do the Statute Work, (unless upon a reasonable Excuse allowed by the Justices) the person so refusing incurs certain forfeitures by the Stat[ute]. of 22.C.2.C.12.





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?



An Indictment in such a Case would certainly be very proper.





Q 8th If any Landholder adjoining on the Way (or any o[the]r 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 judicially 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 on or under the Submissions ment[ione]d in the Original Case, & what act sho[ul]d be committed for this purpose?



If any landholder will make an Obstruction & <....>ce Tolls & such proceedings are had ag[ain]st him as are above <proposed> supposed;  I think the Verdict will in great Measure defeat any Claim that can be founded on the Submission & payment of Tolls ment[ione]d in the Original Case. 





      As the obstructions and Exactions ment[ione]d in the Original case have for many Y[ea]rs been discontinued & are not Offences (p[er]haps) at this Time Cognizable some such Measures as are above propos[e]d seem necessary & are presumed to be altogether proper & Justifiable from Necessity in case any of them will serve to support & establish the right to use the Way as a public Highway; You’l please therefore to determine wh[ethe]r  & wh[ic]h (if any) of them sho[ul] be pursued or point out any adequate remedy if you apprehend none of the above schemes w[oul]d answ[e]r the desired End.

      Though the Obstructions & Exactions have for many Years been discontinued yet I am of the Opinion an Indictment at this Time be maintained against any of the p[er]sons who made such obstructions upon the Evidence of the p[er]son obstructed for the length of Time in this Case cannot be a Bar as the prosecution will be in the Name of the King & for an offence at Common Law & not for an offence whereby any forfeiture or penalty is incurred & I think it would be right to indict all such persons who made the obstruction, as are now living.



Wm. Wilson  Newcastle 16th June 1766