application for restricted byways in the parishes of coombe st … · 2018. 9. 30. ·...

Charmoor Drove Consultation – Notes Joanna Roseff September 2018

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Application for restricted byways in the parishes of Coombe St Nicholas and Broadway, 630M, 632M and 633M

Notes on Consultation Comments

The comments in the response are necessarily fairly brief and there are a few points omitted that should be known for a fuller understanding of the ancient common law and of Dunlop.

These notes were not submitted to Somerset County Council.

They are not intended to be a legal argument but rather an indication of the scale and scope of the available material that aids understanding of the terminology used in ancient legal documents.

The Year Books 1. The Year Books are not records of judgments in the way that modern case law is but were

originally manuscript jottings, thought to be by law students recording legal principles and lines of reasoning.

2. These jottings were copied by scribes, resulting in many different versions of the same case, and eventually printed in difficult to read black letter editions, complete with errors, from 1514.

3. They are the source of many of our still familiar legal principles and summaries of them appear in the various Abridgments, eg Fitzherbert, Brooke, Rolle, Danvers, which were more accessible.

4. One familiar principle comes from the Year Book case, 8 E 4 7 9a, 1468, Seipp No 1468.040, in law French, which says:

Nota, per touts les Justices, que in regia via le Roy n' ad auter forsque le passage per

luy & ses people, mes le franktenement & touts les profits come arbres, &c. est al

Seignior de soyle

5. This translates as:

all the Justices: in the king's highway (in regia via), the king has only passage for

himself and for his people, but the freehold and all the profits, such as trees, etc.,

are (belong) to the lord of the soil.

6. Coke quotes from several Year Book cases to give substance to his writing on the nature of common roads and 6 E 3 23, 1332, Seipp No 1332.076, addresses the issue of the difference between the soil of a common road and the soil of a highway:

Some people said that the soil of a common road could belong to a certain person,

but not of a king's highway. Aldburgh JCP said that there were many roads from vill

to vill which were common roads and not king's highways.


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7. Between them, these two reports show that sometimes the expression ‘king’s highway’ is used to describe a way where the king has ‘only the passage’ but the earlier case suggests an actual difference in the ownership of the soil.

8. The British History website has records of a special sessions held in London from 1244 with examples showing that the king took rent for purprestures on the highway (http://www.british-history.ac.uk/london-record-soc/vol6/pp136-153):

351. Quedam alia fabrica stat in vico regio ex opposite venelle de Solande que

reddit per annum domino regi vj d. per [manus] dictorum fratrum. Capiatur in

manum domini regis.

Another forge stands in the king's highway opposite Shoe Lane which renders to the

king yearly 6d. by the hands of the same brethren. Let it be taken into the king's

hand.

9. This is directly relevant to the point that Coke is making that “communis strata [belong] to a city or towne, or between neighbours and neighbours”.

Dunlop finding that communis strata were restricted as to user 10. The only definition of private to be found in the Dunlop case report is in an extract from the

Oxford English Dictionary; Sedley said:

There is little or no lexicographical support for Mr Cunningham's meaning of 'local'

or 'low' as the intended signification of the word 'private' in its present' context.

The entries in the Oxford English Dictionary are prefaced with the words:

'In general, the opposite of the word public.'

The meanings which signify want of public office or official position all relate to

persons, not things. Those meanings which relate to things are defined in general

as:

'Not open to the public; restricted or intended only for the use or enjoyment of

particular and privileged persons.'

11. In the case law and legal texts that Sedley examined, nothing is said which suggests any limitation on use, the difference being based on to whom the way belongs.

12. Sedley said of the history that the “legal usage, … will be relevant though not necessarily determinative” and in his judgment, he made very little use of it, relying mainly on the definitions in Hawkins and Tomlins.

13. The conclusion he came to, that communis strata were for a restricted local user only, is not part of the judgment and therefore is not legally binding.

14. The beginning of the story, where Coke divides ways into via regia and communis strata he effectively dismissed as superseded, the descriptions in Tomlins and Hawkins applying at the time the Glatton with Holme Award was drawn up being more relevant in showing distinction between the public common and highways and the private ways.

15. He said, summarising the case for the objectors:

http://www.british-history.ac.uk/london-record-soc/vol6/pp136-153


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By the beginning of the 19th century, however, it appears that legal usage had

changed so as to conflate common ways with highways and to distinguish these

from private ways: see Hawkins Pleas of the Crown 1787 and 1824 editions, and

Tomlins' Law Dictionary (4th edition, 1835).

16. In respect of private ways, both texts said:

‘.......a way to a parish church, or to the common fields of a town, or to a private

house, or perhaps to a village, which terminates there, and is for the benefit of the

particular inhabitants of such parish, house, or village only, may be called a private

way, but not a highway, because it belongeth not to all the King's subjects but only

to some particular persons ......’

17. From the judgment, he said, referring to these two passages:

By the beginning of the 19th century, however, it appears that legal usage had

changed so as to conflate common ways with highways and to distinguish these

from private ways: see Hawkins Pleas of the Crown 1787 and 1824 editions, and

Tomlins' Law Dictionary (4th edition, 1835).

18. Nowhere do these texts say that use of the private roads was confined only to those who benefited from, simply that they belonged to a lesser person than the king.

19. But the highways of England belong to the English yet the use of them is not confined only to the English.

20. The termini of these cul de sac private ways described in Hawkins, and based on the Austin judgment, includes a parish church, a private house or a village.

21. Although mainly of use to “the particular inhabitants of such parish, house, or village”, any member of the public who wishes to visit has a right to use the road leading to them – and there is no suggestion in this quotation that use of these ways was restricted to the persons who benefited most from them.

22. It is the fact that these ways are of no use to the travelling public and they ‘belong’ to the local community that makes them “private”.

23. They do not fall within the scope of the highways acts (until HA 1835) because they cannot be used as through routes to journey elsewhere: they are cul de sacs.

The enabling legislation 24. Sedley has interpreted the Glatton with Holme award based on a brief extract from IA 1801.

25. But, as Colin Seymour has pointed out (see The Seymour papers elsewhere on this site), the local act supplemented and partly superseded IA 1801, and so Sedley’s interpretation is ill-founded.

26. But even allowing for that, Sedley’s rather brief consideration of the import of IA 1801 focuses only on the utility of the public carriage roads to the public.

27. The only parts of IA 1801 quoted in the case report are:


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The Act of 1801, within the framework of which the Commissioners were required to

operate, differentiates clearly between public and private roads. By section VIII

Commissioners are required, before making divisions and allotments,

'to set out and appoint the publick Carriage Roads and Highways, through and over the

Lands and Grounds intended to be divided, allotted, and inclosed, and to divert, turn,

and stop up, any of the Roads and Tracts, upon and over, all, or any Part of the said

Lands and Grounds, as he or they shall judge necessary, so as such Roads and Highways

shall be, and remain Thirty Feet wide at the least, and so as the same shall be set out in

such Directions as shall, upon the Whole, appear to him or them most commodious to

the Public ...... '

Separately section X required Commissioners:

‘ to set out and appoint such Private Roads, bridleways, footways as he or they shall

think requisite ...’

28. And from the judgment:

To these considerations it is relevant to add that a public carriage road less than 30

feet wide would have been contrary to the express provision of section VIII of the

Act of 1801:

'...so as such Roads and Highways shall be, and remain, Thirty feet wide at the least ...'

-yet this Award includes more than one private carriage road 'of the breadth of

twenty feet’. In itself this might not point towards the applicant's rather than the

respondent's meaning of 'private', since there would be a logic in setting a thirty-

foot minimum, width for major roads but not for minor roads; but it has also to be

noted that the words which follow in section VIII are :

'and so as the same shall be set out in such Directions as shall, upon the Whole appear

....... most commodious to the Public ...... '

The import of the passage is that public carriage roads are to be wide enough to

carry the intended traffic and laid out on routes convenient to the public; but the

fact that no such requirements are imposed by section X in relation to private roads

suggests precisely that these are roads which, although larger than bridleways and

footways, are not intended for the use of the public at large.

No internal evidence suggests that the choice of words in the Award is casual or

accidental. Exactly the same, admittedly complex, formulation is used for Mill Road

as for Denton Road, which is appropriate since they are continuous with one

another; and different language is used, as I have indicated, for other roads in the

Award. But throughout the words ‘public’ and 'private' are used differentially and

with evident care in a context suggestive of the defining of rights to use the road

rather than of the characterisation of the road's quality or status . All the


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indications are that 'private carriage road' is deliberately used in the Award as a

term of art distinguishing the particular road according to the extent of the

particular rights over it from the public carriage roads on which all subjects enjoyed

an equal right of vehicular passage.

29. But Sedley also objected to the private carriage roads being minor public ways on the grounds that there would have been no legal difference because both kinds of roads would have been repaired the same way:

But the law, as I understand it, required the parish or the local inhabitants to repair

all public roads, high or low, local or turnpike; so that the best that a 'local' road

could achieve was reduced wear and tear and less frequent repair to, quite possibly,

a lower standard.

30. IA 1801 has detailed instructions regarding the making and repair of the public carriage roads and the private roads and ways but the case report suggests that Sedley overlooked this.

31. The sections of IA 1801 that deal with roads and ways, ss 8 – 11, are reproduced in full below:

S VIII And be it further enacted, That such Commissioner or Commissioners shall,

and he or they is and are hereby authorised and required, in the first Place before he

or they proceed to make any of the Divisions and Allotments directed in and by any

such Act, to set out and appoint the publick Carriage Roads and Highways, through

and over the Lands and Grounds intended to be divided, allotted, and inclosed, and

to divert, turn, and stop up any of the Roads and Tracts, upon and over, all, or any

Part of the said Lands and Grounds, as he or they shall judge necessary, so as such

Roads and Highways shall be, and remain thirty Feet wide at the least, and so as the

same shall be set out in such Directions as shall, upon the Whole, appear to him or

them most commodious to the Publick, and he or they are hereby further required

to ascertain the same by Marks and Bounds, and to prepare a Map in which such

intended Roads shall be accurately laid down and described, and to cause the same,

being signed by such Commissioner, if only one, or the major Part of such

Commissioners to be deposited with the Clerk of the said Commissioner or

Commissioners for the Inspection of all Persons concerned; and as soon as maybe

after such Carriage Roads shall have been so set out, and such Map so deposited, to

give Notice in some Newspaper to be named in such Bill, and also by affixing the

same upon the Church Door of the Parish in which any of the Lands so be inclosed

shall lie, of his or their having set out such Roads, and deposited such Map and also

of the general Lines of such intended Carriage Roads, and to appoint in and by the

same Notice, a Meeting to be held by the said Commissioner or Commissioners, at

some convenient Place in or near to the Parish or Township within which the said

Inclosure is to be made, and not sooner than three Weeks from the Date and

Publication of such Notice, at which Meeting it shall and may be lawful for any


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Person who may be injured or aggrieved by the setting out of such Roads to attend;

and if any such Person shall object to the setting out of the same, then such

Commissioner or Commissioners, together with any Justice or Justices of Peace,

acting in and for the Division of the County within such Inclosure shall be made, and

not being interested in the same, who may attend such Meeting, shall hear and

determine such Objection, and the Objections of any other such Person, to any

Alteration that the said Commissioner or Commissioners, together with any such

Justice or Justices, may in consequence propose to make, and shall, and he or they

are hereby required, according to the best of their Judgement, upon the Whole, to

Order and finally direct how such Carriage Roads shall be set out, and either to

confirm the said Map, or to make such Alterations therein as the Case may require:

Provided always, that in Case such Commissioner or Commissioners shall by such Bill

be empowered to stop up any old or accustomed Road, passing or leading through

any Part of the Old Inclosures in such Parish, Township, or Place, the same shall in

no Case be done without the Concurrence and Order of two Justices of the Peace,

acting in or for such Division, and not interested in the Repair of such Roads, and

which Order shall be subject to an Appeal to the Quarter Sessions in like manner

and under the same Forms and Restrictions as if the same had been originally made

by such Justice as aforesaid.

S IX And be it further enacted, That such Carriage Roads so to be set out as

aforesaid, shall be well and sufficiently fenced on both Sides, by such of the Owners

and Proprietors of the Lands and Grounds intended to be divided, allotted, and

inclosed, and within such Time as such Commissioner or Commissioners shall, by

any Writing under his or their Hands, direct or appoint, and it shall not be lawful for

any person to set up or erect any Gate across any such Carriage Road, or to plant

any Trees in or near to the Hedges on the Sides thereof, at a less Distance from each

other than fifty Yards; and such Commissioner or Commissioners shall, and he or

they is and are hereby empowered and required, by Writing under his or their

Hands, to nominate and appoint one or more Surveyor or Surveyors, with or without

a Salary, for the First forming and completing such Parts of the said Carriage Roads

as shall be newly made, and for putting into complete Repair such Part of the same

as shall have been previously made; which Salary (if any) and also the Expence of

forming, completing, and repairing such Roads respectively, over and above a

Proportion of the Statute Duty on the Roads so to be repaired, shall be raised in like

manner as the Charges and Expences of obtaining and passing any such Act, and of

carrying the same into Execution, shall be thereby directed to be raised, and shall be

paid to such Surveyor or Surveyors on or before the Execution of the Award of such

Commissioner or Commissioners and in case the same shall be thereby provided to

be raised by Sale of any Part of the Lands so to be divided and inclosed, that then

such Commissioner or Commissioners shall make a conditional Rate upon the


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Owners and Proprietors of the same in case the Produce of such Sale should prove

insufficient for the purposes aforesaid; and such Surveyor or Surveyors shall, and he

or they is and are hereby directed to be in all Respects subject to the Jurisdiction

and Control of the Justices of the Peace acting in and for the County in which such

Roads shall respectively lie and shall account to such Justices in like Manner for all

Monies so to be by him or them received and expended, and for the Re-payment of

any Surplus which may remain in his or their Hands to such Persons as shall have

been made liable to contribute thereto, according to the Proportion so as above

ascertained by such Commissioner or Commissioners; and such Justices shall have

the like Powers of levying any such Rate as may by them be thought necessary for

the Purposes aforesaid, according to the Proportions previously ascertained by such

Commissioner or Commissioners, as if such Surveyor or Surveyors had been

appointed under or by virtue of the General Highway Act passed in the thirteenth

Year of the Reign of his present Majesty; and in case such Surveyor or Surveyors

shall neglect to complete and repair such Roads respectively within the Space of two

Years after such Award, unless a further Time, not exceeding one Year, shall for that

Purpose be Allowed by such Justices, and then within such further Time, he or they

shall forfeit the Sum of Twenty Pounds, the Inhabitants at large of the Parish,

Township, or Place wherein such Roads shall be respectively situated, shall in no

wise be charged or chargeable towards forming or repairing the said Roads

respectively, except such Proportion of such Statute Duty as aforesaid, till such

Time as the same shall, by such Justices in their special Sessions, be declared to be

fully and sufficiently formed, completed, and repaired, from which Time, and

forever thereafter, the same shall be supported and kept in Repair by such Persons,

and in like Manner as the other publick Roads within such Parish, Township, or

Place, are by Law to be amended and kept in Repair.

S X And be it further enacted, That such Commissioner or Commissioners shall, and

he or they is and are hereby empowered and required to set out and appoint such

private Roads, Bridleways, Footways, Ditches, Drains, Watercourses, Watering

Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences, Banks, Bounds, and Land

Marks, in, over, upon, and through or by the Sides of the Allotments to be made and

set out in pursuance of such Act, as he or they shall think requisite, giving such

Notice and subject to such Examination, as to any Private Roads or Paths, as are

above required in the Case of publick Roads, and the same shall be made, and all

times for ever thereafter be supported and kept in repair, by and at the expence of

the owners and proprietors for the Time being of the Lands and Grounds directed to

be divided and inclosed, in such Shares and Proportions as the Commissioner or

Commissioners shall in and by his or their Award order and direct.

S XI And be it further enacted, That after such publick and private Roads and Ways

shall have been set out and made, the Grass and Herbage arising thereon shall


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forever belong to and be the sole Right of the Proprietors of the Lands and Grounds

which shall next adjoin the said Roads and Ways on either Side thereof, as far as the

Crown of the Road; and all Roads, Ways, and Paths, over, through, and upon such

Lands and Grounds which shall not be set out as aforesaid, shall be forever stopped

up and extinguished, and shall be deemed and taken as Part of the Lands and

Grounds to be divided, allotted, and inclosed, and shall be divided, allotted, and

inclosed accordingly: Provided, That nothing herein contained shall extend, or be

confined to extend, to give such Commissioner or Commissioners any Power or

Authority to divert, change or alter any Turnpike Road that shall or may lead over

any such Lands and Grounds, unless the Consent of the Majority of the Trustees of

such Turnpike Road, assembled at some publick Meeting called for that purpose on

ten Days Notice, be first had and obtained.

32. So the objection by Sedley that there would be ‘no legal difference’ if the private carriage roads were open to the public is simply wrong.

33. IA 1801 shows a clear difference, with the public carriage roads being “kept in Repair by such Persons, and in like Manner as the other publick Roads within such Parish, Township, or Place, are by Law to be amended and kept in Repair”, and the private roads being “kept in repair, by and at the expence of the owners and proprietors for the Time being of the Lands and Grounds directed to be divided and inclosed”.

34. But an objection can be made to Sedley’s reasoning being precedent on the grounds that he came to his conclusions based on his observation of the way that the different terms were used in the Glatton with Holme award:

But throughout the words ‘public’ and 'private' are used differentially and with

evident care in a context suggestive of the defining of rights to use the road rather

than of the characterisation of the road's quality or status . All the indications are

that 'private carriage road' is deliberately used in the Award as a term of art

distinguishing the particular road according to the extent of the particular rights

over it from the public carriage roads on which all subjects enjoyed an equal right of

vehicular passage.

35. On the defining characteristics of this “context”, Sedley is silent, thus making it impossible to apply his reasoning to any other award.

Hawkins 36. The edition of Hawkins quoted in the case report is said to be 1787 “see Hawkins Pleas of

the Crown 1787 and 1824 editions, and Tomlins' Law Dictionary (4th edition, 1835)”

37. The first edition of Hawkins was 1716, the sixth edition was 1777, the seventh edition was 1795 and the eighth edition was 1824.

38. The text at the beginning of the chapter is unchanged between the editions, updates mainly being concerned with new statute law, although the references are made easier to understand.


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39. The sixth edition has a new reference in the margin which Sedley does not seem to have noted (perhaps he only had a transcript), which is:

Communis strata and alta via regia are synonymous terms. Str. 44. 10 Mod 383.

Andrews 143.

40. Str 44 and 10 Mod 383 are both references to Hammond but I cannot trace Andrews 143.

Classical law – Justinian’s Digest 41. Many of the principles in English common law are also expressed in Justinian’s Digest.

42. The main references are in Digest 43, on public places and Digest 8 on rustic servitudes, the origin of via, actus and iter.

43. Dig. 43.8.2.21-23 is a gloss by Ulpian on an interdict prohibiting certain things to be done in public places (original Latin underneath):

Ulpianus 68 ad ed. (from http://www.constitution.org/sps/sps.htm) (21) By a public highway we mean one whose soil belongs to the people, for we do not understand a private road to mean the same as a public one. In the case of a private road, the soil belongs to another, and we have only the right of walking and driving over it; but the soil of a public highway is owned by the community, and has been established with reference to direction, and within certain limits, by him who had the right to render it public, in order that everyone might travel upon it, and traverse it. (21) Viam publicam eam dicimus, cuius etiam solum publicum est: non enim sicuti in privata via, ita et in publica accipimus: viae privatae solum alienum est, ius tantum eundi et agendi nobis competit: viae autem publicae solum publicum est, relictum ad directum certis finibus latitudinis ab eo, qui ius publicandi habuit, ut ea publice iretur commearetur. (22) Some roads are public, some are private, and others are local, belonging to the neighborhood. We call roads public which the Greeks designated as royal, and we name praetorian or consular roads. Private roads are such as some persons style agrarian. Local, or neighborhood roads are those which are situated in villages, or lead to towns; certain authorities also call these public roads. This, however, is only true where they have not been established by the contribution of land by private persons; but it is otherwise if they are repaired at the expense of individuals, for a road is not private on this account. The repairs of the same are common, because such a road is for the common use and benefit. (22) Viarum quaedam publicae sunt, quaedam privatae, quaedam vicinales. publicas vias dicimus, quas graeci basilikas, nostri praetorias, alii consulares vias appellant. privatae sunt, quas agrarias quidam dicunt. vicinales sunt viae, quae in vicis sunt vel quae in vicos ducunt: has quoque publicas esse quidam dicunt: quod ita verum est, si non ex collatione privatorum hoc iter constitutum est. aliter atque si ex collatione privatorum reficiatur: nam si ex collatione privatorum reficiatur, non utique privata est: refectio enim idcirco de communi fit, quia usum utilitatemque communem habet. (23) Private roads are understood to be of two kinds, some of them are through land upon which a servitude to furnish a right of way to the land of another has been imposed, others


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give access to certain tracts of land, and anyone can make use of them, after leaving a consular road, when a lane, a path, or a road for driving is found leading to a farm. I think that roads which lead from a consular highway to farms or villages are also public. (23) Privatae viae dupliciter accipi possunt, vel hae, quae sunt in agris, quibus imposita est servitus, ut ad agrum alterius ducant, vel hae, quae ad agros ducunt, per quas omnibus commeare liceat, in quas exitur de via consulari et sic post illam excipit via vel iter vel actus ad villam ducens. Has ergo, quae post consularem excipiunt in villas vel in alias colonias ducentes, putem etiam ipsas publicas esse.

44. Much of this is very similar to passages in ancient legal texts stating English law e.g. William Sheppard, in his book The Faithful Councellor: Or the Marrow of the Law in English, The Second Part, 1654, published around 25 years after Coke, writes:

1 Publique, the which is called via regia, the Kings High-way, or the Royall way,

which is the way that leadeth from one Village to another, and to Market Townes,

and this is a way for all men, and wherin every man ought to pass to and fro

without let, which is called the Kings highway, because the King hath at all times

passage in it for himself and all his people, and he may punish all the Nusances and

abuses done in it.

2. Private, and then it is either vicinalis (i) that which doth belong to a Village or

Town, or that which is in, or leadeth to, or from a Village, or doth serve for a Village

to lead to the high-way, Church, Market, Field, or the like, and this way is called

communis strata.

(ii). Particularis, which is such a way as one or more hath by grant, or Prescription

through another mans ground, either from one Close to another, or from his house

into the field, high-way, or the like: And this way is sometimes appendant, (i)

adjoyning to some other thing as house or land, and appertaining therunto; as if a

man hire a Close, or Pasture, & hath a Covenant for Ingress & Egress, to and from

the said Close through the ground of some other man, through which otherwise he

might not pass: Or it may be that which is called Reall, which is when a man

purchaseth a way through the ground of another man, for such as do, or shall dwell

in such a house, or for such as shall be owners of such a Mannor for ever; Or it is in

grosse. (i) Such a way as a man doth hold principally and solely by itself; As where

one doth covenant for a way through the ground of another man for himself and his

Heirs.

So that there are high-wayes, common wayes, and private wayes.

45. There is much more in a similar vein in other publications of a similar age and it was no doubt publications like this that guided the Inclosure Commissioners when they distinguished between the public and private roads and ways.


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46. There is a clear indication in IA 1801 that the public carriage roads were those roads repairable out of the statute duty and another essay could be written showing that the statute duty was intended for use on the roads used by travellers and was not simply a statutory substitute for the common law.

Powers of the Justices 47. In Saintiff (see also under Sainthill for the history of this case, English Reports), the question

arose whether the Justices had authority to hear the case because the statute 22 Hen 8 c 5 limited their authority to offences affecting bridges to those bridges in the highways:

“…the justices of the peace in ev’y shire of this realme, franchise, citie, or borough

or iiij of them at the leste … shall have power and auctoritie to inquire, here and

determine in the Kynges gen’all cessions of peace of all man’ of annoysances of

bridges broken in the highe wayes to the damage of the Kynges liege people…”

48. But Holt CJ said:

“Then as to the authority of the Justices, they have a power by the statute of 1 Edw.

3, c. 16, by which they are created, to inquire of all public nuisances; and so within

their jurisdiction.”

49. The statute I Edw III Stat 2 c 16. 1327, reads, translated into English:

Keepers of the Peace in each County

ITEM, For the better keeping and maintenance of the Peace, the King will, that in

every County good Men and lawful, which be [no Maintainers of Evil, or Barretors*]

in the Country, shall be assigned to keep the Peace.

50. And also 34 E3 c.1 1361:

What sort of persons shall be justices of peace; and what authority they shall have.

(7) And also to hear and determine at the King’s suit all manner of felonies and

trespasses done in the same county, according to the laws and customs aforesaid

51. The Year Book Case 27 E 3 44, Seipp No: 1353.169, explains the powers of the justices prior to the 1361 act, items 21 and 25 being of most relevance, although 23 is very wide ranging:

21. Item of bridges, causeys, high roads, and royal highways, which are narrowed,

broken (dirrumps, debruses), or not remedied or repaired, by whose default, and by

whom they should be repaired, and sustained, in which vills, and where such

defaults are found or happened.

…

23. Item of all manner of oppressions and grievances done to the people of our lord

the king.

…

25. Item of all manner of usurpations and nuisances made on the high roads of the


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king, or in which ways, either by land or by water, to the damage of the king and his

people.

52. Holt CJ is recognising that the case in front of him does not concern the repair of a highway as described in item 21, because the description in the indictment was communis semita and this indicates a local way similar to communis strata and not via regia.

53. But there must be a remedy and so he finds that he has the power to deal with all common nuisances, which such a way being out of repair must be.

Webb & Webb

54. Webb & Webb found a use of the word private as meaning ‘lack of official status’ in

The Manor & the Borough, English Local Government Vols 2 & 3,1908, pp 13 and 18.

55. At p 13, under the heading The Court Baron, they said:

The Great Court of the Manor, or Court Baron, was in the lawyer’s view, essentially

a private court of the Lord, necessarily incident to every Manor…

56. At p 18, under the heading The Lord’s Court, they explained further:

We have said above that the lawyers declared the Court Baron to be a private

jurisdiction of the Lord of the Manor, and not a public tribunal. But we must warn

the student against a misunderstanding by which we ourselves were long misled.

When it was held that the court Baron was of private, not of public nature, these

words were used in a sense very different from that nowadays given to them. All

that the lawyers meant was that the Court Baron was not a Court of the King, to be

held only by his authority and subject to his will.

Joanna Roseff 28th September 2018

application for restricted byways in the parishes of coombe st … · 2018. 9. 30. ·...

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