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(Removal of doubt as to appointment of surveyor in certain parishes.)
Whereas doubts have arisen whether a surveyor of highways can be appointed, in pursuance of 'The Highway Act, 1835,' for a
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parish which does not maintain any highway: Be it therefore enacted, That it shall be lawful for the inhabitants in vestry assembled of any parish or place having a known legal boundary (notwithstanding that the inhabitants at large are not for the time being liable to maintain any highway or to contribute to any rate applicable to the maintenance of highways), or on the neglect or refusal of such inhabitants for the justices at a special sessions for the highways or in petty sessions assembled at any time to exercise all the powers of the Highway Acts with respect to the election or appointment of a surveyor of highways with or without a salary for such parish or place; and any surveyor so elected or appointed shall have all the powers and duties (including the power of making, assessing, and levying of highway rates) of a surveyor under the Highway Acts.
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On the Motion of Mr. PELL, the following Clause was inserted in page 4, after Clause 10:—
(Power of county board to enforce performance of duty by defaulting highway authority.)
Where complaint is made to the county authority that the highway authority of any highway area within their jurisdiction has made default in maintaining or repairing all or any of the highways within their jurisdiction, the county authority, if satisfied after due inquiry and report by their surveyor that the authority has been guilty of the alleged default, shall make an order limiting a time for the performance of the duty of the highway authority in the matter of such complaint.
If such duty is not performed by the time limited in the order, and the highway authority fail to show to the county authority sufficient cause why the order has not been complied with, the county authority may appoint some person to perform such duty, and shall by order direct that the expenses of performing the same, together with the reasonable remuneration of the person appointed for superintending such performance, shall be paid by the authority in default, and any order made for payment of such expenses and costs may be removed into the High Court of Justice, and be enforced in the same manner as if the same were an order of such court.
Any person appointed under this section to perform the duty of a defaulting highway authority shall, in the performance and for the purpose of such duty, be invested with all the powers of such authority other than the powers of making rates or levying contributions by precept, and the county authority may from time to time, by order, change any person so appointed.
Where an order has been made by a county authority for the repair of a highway on a highway authority alleged to be in default, if such authority within three days after service on them of the order of the county authority give notice to the clerk of the peace that they decline to comply with the requisitions of such order until their liability to repair the highway in respect to which they are alleged to have made default has been determined by a jury, it shall be the duty of the county authority either
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to satisfy the defaulting authority by cancelling or modifying in such manner as the authority may desire the order of the county authority, or else to submit to a jury the question of the liability of the defaulting authority to repair the highway.
If the county authority decide to submit the question to a jury they shall direct a bill of indictment to be preferred to the next practicable assizes to be holden in and for their county with a view to try the liability of the defaulting authority to repair the highway. Until the trial of the indictment is concluded the order of the county authority shall be suspended. On the conclusion of the trial, if the jury find the defendants guilty, the order of the county authority shall forthwith be deemed to come into force; but if the jury acquit the defendants the order of the county authority shall forthwith become void.
The costs of the indictment and of the proceedings consequent thereon shall be paid by such parties to the proceedings as the court before whom the case is tried may direct. Any costs directed to be paid by the county authority shall be deemed to be expenses properly incurred by such authority, and shall be paid accordingly out of the county rate; and any costs directed to be paid by the highway authority shall be deemed to be expenses properly incurred by such authority in maintenance of the roads within their jurisdiction, and shall be paid out of the funds applicable to the maintenance of such roads.
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MR. KNOWLES moved, in page 4, after Clause 10, to insert the following Clauses:—
So much of section one hundred and forty-nine of 'The Public Health Act, 1875,' as enacts that all streets being or which at any time may become high, ways repairable by the inhabitants at large within any urban district shall vest in and be under the control of the urban authority shall be and the same is hereby repealed; and, in lieu of being so vested, the urban authority shall have and be entitled to an easement only over such streets, and, in virtue of such easement, such streets, and the pavements, stones, and other materials thereof, and all buildings, implements, and other things provided for the purposes thereof shall be under the control and management of the urban authority, with full power for such urban authority from time to time to cause all such streets to be levelled, paved, metalled, flagged, channelled, altered, and repaired as occasion shall require, and to cause the soil of any such street to be raised, lowered, or altered as they may think fit, and to place and keep in repair fences and posts for the safety of foot passengers, and to protect such streets against trespass or damage.
The soil and freehold of such streets, and the mines of coal, iron stone, slate, and other minerals thereunder, shall be and remain the property of the person who would have been entitled thereto if the said Public Health Act, 1875, had not been passed, with all such powers of working, getting, and carrying away the same, and the produce thereof, as he would have had if such Act had not been passed.
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He said that he proposed these clauses in order to settle the point as to the ownership of the soil of the streets and highways repairable by the inhabitants at large within any urban district under the Public Health Act. It had been decided under this Act the soil of the highway vested in the urban district and not in the adjoining owners of land. That being the decision of a court of law, it followed that the minerals were also vested in the highway authorities, and the rights of mineowners and others would be seriously interfered with. It was not intended by the Public Health Act to change the ownership of the soil of the road; but since the judgment to which he had alluded, that had been its effect. This was a Highway Bill, and it seemed to him the proper place for setting right this matter.
§ MR. SCLATER-BOOTHdid not wish this Amendment to be taken as unopposed; but at that hour he thought the best plan would be to report Progress.
§ Committee report Progress; to sit again this day.
§ The House suspended its Sitting at Seven of the clock.
§ The House resumed its Sitting at Nine of the clock.