$3.

ITS

If a road cannot be repaired or made of the breadth the MEETING, law requires, the juftices of the peace may throw it upon the next adjacent ground. Perhaps, alfo, they may change the direction of a highway to avoid fteep afcents, or other inconveniences. It is better, however, that this fhould be done under authority of special acts.

POWERS.

Changing of them.

.

THE act 1696, c. 19, provides, "If any part of the faids highwayes cannot well be continued as now they are, but require to be changed, the saids juftices fhall appoint three of their number to vifit the places where the highwayes need to be changed, and to fet down meiths or the new way in place thereof, and upon oath to estimate the damage of the parties prejudged thereby, and to deliver the fame to them in writing under their hands, to the effect the fame may be

The furveyors are declared entitled to repayment of fuch reasonable expences as they shall have been put to in this matter, from the perfons thus neglecting to new-make, or cut low, the hedges; and if thefe expences be not repayed within 14 days after demand, the justices, at their monthly meeting in or near the divifion where the hedges are fituated, are to iffue out a precept to the constable, or other officers of the place, requiring them to levy, for the repayment of fuch furveyors, fuch fums of money as the faid expences fhall amount to, upon the goods of those who neglect to pay." The act, in concluding, provides, that nothing therein contained fhall alter the laws in relationi to timber trees in hedges adjoining to highways, and that all laws in being for amending highways fhall remain in force.

empowered to fummon the occupiers left three feet high above the bank.
of the lands to which these hedges.
belong, to appear at the next public
meeting of the juftices, to fhew caufe
why fuch hedges fhould not be new
made, or cut low. If the highway
appear to be deep and foundrous,
upon examination, and damaged by
the height of the adjoining hedges,
the justices, or any two of them, are
then to issue out a precept to the
furveyors of the parish where fuch
hedges are, directing them to leave
notice in writing at the place of abode
of the proprietor or poffeffors of the
lands to which the hedges belong,
that they are required to new-make
the hedges, or cut them low, within
30 days after fuch notice, (provided
the hotice be given betwixt the last
of September and the first of Febru-
ary), and if they neglect to do the
fame, the furveyors are required to
cause the hedges to be new made, or
cut low, fo as fuch hedges fhall be

s Kilk. v. Highways, '

:

fatisfied by the whole, in manner therein fpecified." "Thefe alterations," fays lord Gardenftone, "when fairly done for the advancement of private improvements, or for public conveniency, are highly favourable; and though the juftices have exceeded the exact limits of their powers in the execution of fuch new roads, if parties interested do not recently complain, but acquiefce and use the new road for sometime, they will be barred from any challenge, as was found in feveral late cafes, particularly the cafe of Spottiswood and the cafe of Haldane "."

BUT, before giving any order for altering the road, the juftices must previously afcertain the damages to the proprie tors through, whose grounds the road is intended to pass".

As an encouragement to planting and inclofing, proprietors are permitted, at the fight of the juftices of the peace or judge ordinary, "to caft about the highways, providing they do not remove them above 200 ells upon their whole ground."

1661, c. 41, ratified by 1685, c. 39. May it not be doubted, what is meant by the provifion in this act of parliament, that the highways be not removed above 200 ells upon their whole ground; whether is it that the new road be not above 200 ells longer from the point where the alteration begins, to the point where the new and old road again join, as the heritor who proposes to turn the road upon his neighbour's ground is fometimes inclined to explain it? Or is it that the new road is no where,

even upon his own ground, to be
above 200 ells diftant from the old
road? And it is thought that this last
is the meaning, for the words are
general that it be not be removed,
that is, from the old road, above 200
ells. But it is easy to figure how the
new road may be even fhorter than
the old, and yet be removed from it
more than 200 ells. Suppose the old
road to form two fides of a triangle,
each 300 ells in length, and the new
road to be fo caft about as to forni
the bafe, the new road would be
much shorter than the old, and yet
removed at one point 300 ells from
it, which the act does not permit.".
Kilk.. Servitude, No. i, 515.

THE alteration must be wholly at the expence of the proprietor, for whofe accommodation it is done; in particular he is not to be aided by any part of the statute labour.

THE juftices have no authority to stop up one of two two roads. public highways which are useful to the country.

THE juftices, however, have power to fhut up bye-roads, byeways. which are unneceffary; but not any foot or horse road to church or mill .

Encroach- THEY must also take care that no damage be done to the high-road, or encroachments made upon it.

A GATE on a highway, as being an interruption or common nuifance, is removable, unless it has continued from time immemorial .

§ 4.

GENERAL

REGULA

IV. THE ftatute 13 Geo. III, c. 78, containing many regulations respecting encroachments on highways, under the particulars "of trees and hedges, ditches, drains... ftraw, &c. TIONS. laid upon it, divers acts of misbehaviour to be corrected... regulations refpecting names on carts and other carriages . . . direction-pofts, horfe and foot paths, breadth of wheels, and number of horfes f," is exprefsly limited to England. But there are other British ftatutes which make fimilar provifions with refpect to Scotland. Thus the ftatute Driver's negligence 27th Geo. II, c. 16, § 7, directs, that "if the driver of any occationing carriage, on any ftreet or highway, fhall by negligence or wilful mifbehaviour, caufe any hurt or damage to any perfon Proof. paffing, every such driver being convicted, either by his own

them as they fhall fee juft, and fhall poind therefore in manner forefaid, and apply the fame for the use of the faid highways"... And it is further declared," that where laboured land lyes upon the fides of highwayes, the faid laboured land fhall be fenced with dike and ditch or hedge; yet fo as neither dike, nor ditch, nor hedge, nor any part thereof, be within the fore-mentioned breadth appointed for the highway: and in cafe any laboured land fo lying shall not be fenced betwixt and the first day of August 1671, then, and in that cafe, the faids juftices are hereby authorized and required to caufe poind in manner forefaid, the labourers of the faid land, for 4s. Scots for each eln which fhall not be fo fenced after the faid time, and to apply the faids fines for

the fencing thereof in manner forfaid.
Likeas, it is hereby declared, that
whatsoever ftones, rubbish, or dung
or other impediments be thrown or
found lying upon the faids highways,
or water turned in or dammed there-
upon, fhall be esteemed and held as
done by the labourers of the land
next adjacent to the highways where
the damage is done, who fhall be
fined therefore be the faids juftices
and overfeers; referving right to the
faids labourers to call before the faids
juftices any other for their relief,
who have been the real actors of the
fkaith."

* Gardenftone's MS. tit. Highways.
f See Burns, v. Highways, p. 578.

26 Geo. II, c. 28; 27 Geo. II, c.
16; 12 Geo. III, c. 45.

hurt.

$4

GENERAL

REGULA

TIONS.

Penalty.

any

time

confeffion or by the oath of one witnefs, before any justice of peace of the county, &c. where the offence is committed, fhall for every offence forfeit any fum not exceeding 10s. or fhall be committed to the house of correction for not exceeding a month; and every fuch driver offending in either of the faid cafes, may, without any warrant, be appre One justice. hended by any perfon who fhall fee fuch offence committed, and shall be immediately delivered to a peace officer, in order to be conveyed before a justice of the peace, to be dealt with according to law."

One witnefs.

For preventing danger.

BUT, as it is better to prevent than to punish such accidents, there are many precautionary regulations made with a view to the public fafety. Thus it is provided, that “ if the driver of any cart, car, dray, or waggon, fhall ride upon any fuch carriage, not having fome other perfon on foot, or on Driver not horfeback to guide the fame, (carts drawn by one horse only, or by two horfes a-breaft, and conducted by fome perfon Penalty. holding the reins, excepted), fhall forfeit 10s. or fhall be

to ride in

his cart.

committed to the houfe of correction for any time not exceeding a month, being convicted by his own confeffion, or the oath of one witness, before any justice of the peace of the county where the offence has been committed; and every fuch driver may, without any warrant, be apprehended by any person who fhall fee fuch offence committed, and shall be immediately delivered to a peace officer, in order to be conveyed to a juftice of the peace, to be dealt with according to law "

IN like manner, "if any chaife-driver in Scotland shall be found fitting in his chaife, without another person on one of the horfes driving the fame, or if any carter, &c. or the driver of any other carriage, (coaches, chaises, phaetons, curricles, chairs, and fuch other carriages, which are

h 27 Geo. II, c. 16, § 4.