Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 35 of 73)
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dulj made and, until the purchase thereof by the Corpora-
tion of Oldham hereinafter mentioned, was maintained by the
trustees or their successors in title under the trust deed out
of the tolls levied upon the traffic. A footpath was made
down one side of the road, and this was left free for foot-
passengers, tolls being charged only upon the traffic over the
roadway.

After the completion of Shaw Road, Elliott and other
owners of land adjoining the road from time to time erected
houses on their land at irregular intervals along the line of
and abutting on the road, the property in its vicinity thus
gradually losing its agricultural character and becoming
absorbed into the town of Oldham. The plaintiff, who had
subsequently purchased Elliott's land, alleged that the ex-
penditure in the erection of these houses was made upon the
faith of the covenants in the above-mentioned conveyances
and the provisions of the trust deed, and with the full
knowledge and acquiescence of the persons for the time
being entitled to Shaw Road, such persons being in fact
the predecessors in title of the defendants, the corporation of
Oldham ; also that the access afforded by Shaw Road was
essential to the proper use and enjoyment of the houses.

In the year 1865 the Oldham Borough Improvement Act,
1865, was passed. Sect 27 of that Act contained the follow-
ing provisions as to the " road or street called Shaw Road *' :
(i) The corporation were empowered to purchase all rights
in or over the said road or street and all rights of levying
tolls on the traffic thereon, and the interests of all persons in
any tolls so levied ; (2) for the purposes of such purchase the
said rights and interests were to be deemed lands within the
meaning of the Act and any Act incorporated therewith:
(3) On the completion of such purchase all the rights and
interests afforesaid were to be absolutely extinguished, the
corporation were to remove all gates, etc., and thenceforth
the said road or street was to be a street open to the public
and subject to all provisions relative to the sewering, drain-
ing and paving of streets not being highways repairable by
the inhabitants at large: (4) The corporation's powers of
compulsory purchase under this section were not to be
exercised after the expiration of five years from the corn-



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330 AUSTERBERRY V. CORPORATION OF OLDHAM.

mencement of the Act, and (5) were not to extend to the soil
of the said road or street.

By an indenture dated the 21st of April, 1868 (the 27th
section of the above Act being then still in force, though
from the evidence it appeared that the plaintiff was not
aware of it at the time), in consideration of the sum of ;f 580
paid to the said John Elliott by the plaintiff, Elliott conveyed
to the plaintiff in fee simple the said lands called Higher
Moor Fold and all other the lands of him, Elliott, adjoining
Shaw Road, together with the houses and buildings thereon
and the appurtenances. At the time of his purchase the
plaintiff had notice of the conveyances relating to Shaw
Road as part of his title, and he stated in evidence that the
fact that the trustees had to repair the road materially in-
fluenced him in making the purchase. After the completion
of his purchase the plaintiff expended a considerable sum in
building other houses on the property, and he paid the usual
tolls when using the road. Down to the year 1880 Shaw
Road was kept in repair by the trustees. In that year the
Oldham Improvement Act, 1880, was passed, which—after
referring to the 27th section of the Act of 1865 and reciting
that the corporation had not exercised their powers within
the period limited by the latter Act, and that a transfer of
Shaw Road to them without compulsion had been agreed on
for the sum of ;^6ooo — enacted as follows : Sect. 62, "nothing
contained in the Act of 1865 or in this Act shall exclude, limit,
or affect the right of the corporation to exercise the powers
conferred upon them by sect. 150 of the Public Health Act,
1875, as regards the road or street within the borough called
Shaw Road." Sect. 63, so far as is material, was as follows:
** With respect to Shaw Road the following provisions shall
take effect ; namely,

** (i) On the corporation paying to the said Joshua Milne
Cheetham, William Taylor, and Charles Edward Lees"— the
then trustees of the deed of settlement and defendants in the
present action — " or two of them, or to the survivor of them,
or to the executers or administrators of the survivor of
them, out of the borough fund or borough rate, or out of
moneys which the corporation are by this act authorized to
borrow for the purpose, the consideration money aforesaid,
and on a copy of this Act being produced to the Commis-



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AUSTERBERRY V. CORPORATION OF OLDHAM. 33 1

sioners of Inland Revenue, stamped with such an ad valorem
stamp as would be required by law to be impressed on a
deed of conveyance of Shaw Road by them or him to the
corporation, then and in that case, but not sooner or other-
wise, all the rights, interests, property and things comprised
in sect. 27 of the Act of 1865, as subsisting at the time of the
vesting" thereof under this section, and the soil of Shaw
Road, shall by virtue of this section vest absolutely in the
corporation and their successors for all the estate and interest
therein of Joshua Milne Cheetham, William Taylor, and
Charles Edward Lees, each of them, their and each of
their heirs, executors, and administrators, and of all persons
and bodies claiming through or under them :'* (2) The re-
ceipt of the said trustees for the consideration money paid
to be a good discharge ; ** (3) The persons to whom payment
is so made shall hold the money received by them, subject
to payment and discharge of all debts and liabilities (if any)
properly payable thereout or chargeable thereon, in trust for
such persons as are at the time of payment beneficially in-
terested in Shaw Road, and according to the proportions or
respective amounts of the interests of those persons : (4) On
the vesting aforesaid taking effect all rights of levying tolls
in respect of traffic on Shaw Road, and the interests of all
I>ersons in any tolls so levied, shall be by virtue of this
section absolutely extinguished/'

In November, 1880, and in pursuance of the last-mentioned '
Act, the corporation paid to the defendants, the trustees of
the deed of settlement, the said sum of £(xxyo for the pur-
chase of Shaw Road, which thereupon became absolutely
vested in the corporation as owners thereof. The toll-gates
were then removed and tolls ceased to be collected.

On the 2d of March, 1881, the corporation, acting under
the powers conferred upon them by sect. 150* of the Public

* The material parts of sect. 150 of the Public Health Act, 1875, are as
follows : —

•• Where any street within any urban district (not being a highway
repairable by the inhabitants at large) or the carriageway footway or any
other part of such street is not sewered levelled paved metalled flagged
chanelled and made good or is not lighted to the satisfaction of the urban
authority, such authority may, by notice addressed to the respective
owners or occupiers of the premises fronting adjoining or abutting on



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332 AUSTERBERRY V. CORPORATION OF OLDHAM.

Health Act, 1875, and reserved to them by sect 62 of the
Oldham Improvement Act, 1880, resolved that Shaw Road,
as not being a highway repairable by the inhabitants at
large, should be sewered, drained, paved and otherwise com-
pleted to their satisfaction ; and accordingly, on the 3rd of
June, 1 88 1, notices were served upon the plaintiff and other
owners and occupiers of premises fronting on Shaw
Road, requiring them to do the work within a specified
time. The plaintiff and the other owners, however, failed to
comply with the notices, whereupon the corporation exe-
cuted the work themselves, and subsequently served notices
and took out summonses before the justices against the
plaintiff and the other owners for the recovery of the ex-
penses which had been apportioned on the several frontages.
Upon these summonses orders were made for payment, but,
pending an appeal, no further steps had been at present
taken to enforce such orders.

On the 4th of July, 1883, the corporation duly declared
Shaw Road a public highway, pursuant to sec. 152 of the
Public Health Act, 1875, which enacts that, upon such a dec-
laration being made of any "street,** "the same shall be-
come a highway repairable by the inhabitants at large."

The plaintiff's grounds for resisting the claim of the cor-
poration were, that he and the other persons served with the
notices had no such interest in Shaw Road as to render them
liable under the Public Health Act, 1875, or otherwise, for
works executed thereon of the nature alleged by the corpo-
ration ; that Shaw Road was not a " street*' within the mean-
ing of the Public Health Act, 1875, but that, on the contrary,

such parts thereof as may require to be sewered levelled paved metalled
flagged or channelled, or to be lighted, require them to sewer level pave
metal flag channel or make good or to provide proper means for lighting
the same within a time to be specified in such notice^" Plans and esti-
mates of the works to be made and referred to in such notice. "If such
notice is not complied with, the urban authority may, if they think fit,
execute the works mentioned or referred to therein; and may recover in
a summary manner the expenses incurred by them in so doing from the
owners in default, according to the frontage of their respective premises
and in such proportion as is settled by the surveyor of the urban
authority, or (in case of dispute) by arbitration in manner provided by
this act ; or the urban anthority may by order declare the expenses so
incurred to be private improvement expenses . . . ."



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AUSTERBERRY V. CORPORATION OF OLDHAM. 333

it was and always had been a road repairable by the owners
thereof, and that the corporation, on behalf of the ratepayers
or inhabitants at large, having become the owners, the road
thereupon became "a highway repairable by the inhabitants*
at large" ; and that, as to any portion of the expenses alleged
by the corporation to have been incurred in relation to the
road_ and necessary for the maintenance thereof, the corpora-
tion, having purchased the road with notice of and subject to
the provisions of the trust-deed and the conveyances to the
trustees, were estopped from making any claim against the
plaintiff and other adjoining owners on account of such ex-
penses, and thus evading liability as assigns of the grantees
under the conveyances and trust-deed or in respect of cove-
nants running with the land purchased by them the corporap
tion. The plaintiff further contended, in the alternative,
that if the corporation were entitled to be repaid their said
expenditure, or any part thereof, as being necessary for the
maintenance of Shaw Road in good repair, such right con-
stituted a ** liability" within the meaning of the provisions of
sec. 63, sub-sec. 3, of the Oldham Improvement Act, 1880,
and that such expenditure was properly payable out of the
purchase-moneys in the hands of the trustees, and that the
plaintiff and the other adjoining owners were entitled to have
such purchase-moneys or a sufficient part thereof applied in
satisfaction of the claim of the corporation by way of indem-
nity or otherwise.

In order, then, to ascertain the rights of the owners of prop-
erty fronting and adjoining Shaw Road, the plaintiff brought
this action on behalf of himself and all other such owners
against the corporation and the trustees, claiming (i) a dec-
laration that the corporation were not entitled to recover
from the plaintiff and other adjoining owners any sums or
charges for the bedding or paving of, or execution of repairs
upon, Shaw Road, or other works necessary for keeping the
road in good repair ; (2) an injunction to restrain the corpo-
ration from proceeding further upon the orders made by the
justices, the plaintiff submitting to any order which the
court might make in the present action for the purpose of
finally determining all questions between the parties ; (3) in
the alternative a declaration that the defendants, the trustees,
were liable out of the purchase-money paid to them by the



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334 AUSTERBERRY V, CORPORATION OF OLDHAM.

corporation to keep the plaintiff and such other owners in-
demnified against the said charges ; (4) to have the trusts of
the said purchase-moneys executed by the court, and ac-
•counts thereof directed, and to have provision made thereout
to answer such indemnity, or to satisfy the claim of the cor-
poration as a " liability" within the meaning of the Oldham
Improvement Act, 1880, sec. 63 ; (5) damages; and (6) costs.
The corporation, in their statement of defence, insisted
that at the date of the conveyances and trust-deed the land
forming the site of Shaw Road and the other adjoining lands
were agricultural lands of small value, and that the work to
be done to the road under the covenants and provisions in
such deeds was only applicable to the road and neighbor-
hood as existing at that time, and that owing to the subse-
quent entire change in the character of the neighborhood
consequent upon the growth of population, the erection of
buildings and improvements within thQ township and borough
of Oldham, and otherwise, such covenants and provisions at
the time of the purchase of the road by the corporation
ceased to be applicable or to have any binding effect, and
had in fact wholly lapsed ; that the plaintiff purchased with
full knowledge (which, however, the plaintiff" denied) that
under the Oldham Borough Improvement Act, 1865,5.27,
the corporation were empowered to purchase all rights over
Shaw Road within the period of five years ; also that the •
plaintiff purchased with notice of the liability to the payment
of tolls in respect of Shaw Road, and of the fact that the said
covenants and provisions relating to the maintenance and
repair of the road and the liability of the trustees thereunder
had wholly lapsed and ceased to be binding. They also as-
serted that the work executed by them in making Shaw
Road under their statutory powers was entirely different
from that provided for by the said covenants and provisions,
which had become wholly inapplicable and inoperative ; that
at the time they purchased Shaw Road it was not a highway
repairable by the inhabitants at large, but was liable to be
paved, sewered, and put into thorough repair, under the
provisions of sec. 150 of the Public Health Act, 1875, at the
expense of the adjoining owners ; that, even if the covenants
in the said conveyances were binding, the plaintiff and the
other owners had forfeited all right to relief thereunder by



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AUSTERBERRY V. CORPORATION OF OLDHAM. 335

laches and delay in standing by and permitting the Oldham
Acts of 1865 and 1880 to pass into law without objection, in
making no objection to the notices served on them by the
corporation, and in permitting the corporation to execute
the work without contesting their right to do so ; and they
submitted that if the said covenants and provisions were
binding on the trustees, and if the moneys due from the
plaintiff and the other adjoining owners to the corporation
constituted "debts and liabilities" within the meaning of
sub-sec. 3 of sec. 63 of the Oldham Act of 1880, then that
the same were payable to the plaintiff and the other owners
out of the purchase-money in the hands of the defendants,
the trustees, and not by the corporation.

Issue having been joined, the action came on for trial on
the 30th of April, 1884, before the Vice-Chan cellor of the
County Palatine of Lancaster, who held that the plaintiff's
case failed against all the defendants, and dismissed the ac-
tion with costs.

The plaintiff appealed. The notice of appeal was served
ui>on the defendants the corporation only.

Henn Collins, Q.C., and Maberly for appellant.

Cooksofiy Q. C, and Pankhurst, for respondents the corpo
ration :

Cotton, L. J. — This is an appeal by the plaintiff against
the decision of the Vice-Chancellor of the County
Palatine, who did not grant the relief which he ^^^^
sought. The nature of the case is this : The plaintiff is the
owner of land lying on two sides of what is now a street in
Oldham; he had got a notice from the corporation, under
the 150th section of the Public Health Act, 1875, to do certain
work, which, if the road or street is within that section, they
are entitled to require to be done, in the nature of paving and
sewering the street. He did not do it ; then they executed
the work, and sought to recover from him, in the way pointed
out by the act, his proportion of the expense which they had
incurred in paving and sewering the road or street, part of
which divided hi;5 property. He contended before the Vice-
Chancellor unsuccessfully, and has contended on appeal, that
for various reasons the corporation had no power to put in
force against him section 150 of the Public Health Act, 1875,



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33^ AUSTERBERRY V. CORPORATION OF OLDHAM.

and the consequential powers given by that act in respect o
work done under that section. That was, of course, saying-
"you have no right at all as against me to claim any part of
this money ;" but there was also a subsidiary point. He con-
tended that, if he was wrong on the first point, yet they were
only entitled to claim from him the expense of part of the
work which they had done, on the ground that under the
deed which I shall have to refer to, the corporation were
bound to bear the remainder of the expense under a covenant
entered into by their predecessors in title.

Now, the point first argued was as to the general power
under sec. 150 of the Public Health Act, 1875. [His Lord-
ship read the section and continued :] Of course, if Shaw
Road is not a street within this section, the corporation have
no power at all to give the notice under it or to do the work
with the consequential result of being able to claim from the
plaintiff any proportion of the expense. Now, the plaintiff's
contention was this : It was admitted that it was a street, but
it was said that the 150th section only applies to streets not
being highways repairable by the inhabitants at large, and
that this street was " a highway repairable by the inhabitants
at large ;" that before it became vested in the corporation it
had been a turnpike road — a highway — and, therefore, being
a highway, was repairable by the inhabitants at large. Well,
is that so ? It appears that this street was originally made as
a matter of private adventure by persons who had formed
themselves into a joint stock company. There was a line of
road agreed upon, which would cut off a great angle, and
make a very much shorter line of access than had existed pre-
viously ; and apparently the landowners on the line of that
contemplated new road joined together and formed a joint
stock company in order to make this road, and put upon it
bars, which they did not allow people to pass unless they paid
money. It was said that that alone made it a turnpike road.
I will not enter into the question as to whether that made it a
turnpike road, because certainly that is not the question we
have to deal with. It did not make it a turnpike road in the
sense of a turnpike road made such by Act of Parliament,
which by Act of Parliament is dedicated to the public ; or
rather, a road which by Act of Parliament — although there is
no expressed dedication — is constituted a public highway.



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AUSTERBERRY V. CORPORATION OF OLDHAM. 337

subject only to the obligation imposed by the act of payment
to the trustees of the road of certain tolls. But the question
we have to consider is this : Was the road at the time when
the corporation acquired it under the act which has been
referred to, a road, whether turnpike or not, repairable by
the inhabitants at large? That, in my opinion, depends upon
this further question — was it really dedicated to the public
so as to make it a public highway? The Vice-Chancellor
considered that on the true interpretation of the 150th section,
the road was not repairable by the inhabitants at large, and
that if it was repairable under the trust deed out of the tolls,
it was not within the exception in the section. I do not give
any decision upon that question, because in my opinion this
road was never dedicated to the public in such a way as to
become a public highway, repairable as such by the inhabi-
tants at large.

I have mentioned how it was that this road came to be
formed, and we have before us the deed of settle-

- , - . _ . Dedication of

ment of the company of propnetors. It mentions JSS^tdkiS!
the object of making this road, that the parties had
agreed to raise the necessary capital, and that the road, when
made, should not only be enjoyed by them " for their indi-
vidual purposes, but (subject as hereinafter is mentioned) shall
be open to the use of the public at large for all manner of
purposes in all respects as a common turnpike road." It was
contended that those words dedicated it to the public ; that it
then became a public highway, and that consequently it would
be repairable by the inhabitants at large. But though there
are the words, "shall be open to the use of the public at
large," there are also the words " subject as hereinafter is
mentioned," and we must look to see what is " hereinafter
mentioned." We then find this — " that no pejson or persons
(except such persons and for the purposes only as are men-
tioned in the said several conveyances of the said land so
purchased by the company as aforesaid) shall be allowed to
travel upon, use, or enjoy any part of the said road, or pass
through any such toUgate, side-bar, or chain, to be erected
and set up as aforesaid, without having previously paid such
toll as nwy from time to time be demanded of him, her, or
them, pursuant to the table of tolls for the time being author-
ized by the said company to be demanded and taken as afore-

9 Cor. Cas.— 22



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338 AUSTERBERRY V. CORPORATION OF OLDHAM.

said." Now the exception there is this, that the persons who
conveyed their land to the trustees for the site of this road
reserved for themselves, ^by covenant on the part of the trus-
tees, a right to use the road as a road for agricultural pur-
poses free of toll ; that is, for carts to pass for any purpose of
agriculture connected with their land ; but subject to that,
they and everybody else can only use it if they are willing to
pay a toll, and it is not a fixed toll, but the " tolls for the time
being authorized by the said company to be demanded and
taken as aforesaid." Now I here gfive no opinion as to
whether there can be a dedication by an individual of a road
as a highway subject to a toll without the aid of an Act of
Parliament. Authorities were cited containing some passages
apparently to the eflFect that this might be done. I do not
think it necessary in this case to give any opinion upon that
point, though I certainly hesitate to say, and I do not in any
way encourage the idea, that an individual without any
authority from the Crown, and without the authority of an
Act of Parliament, can be said to dedicate a road to the pub-
lic when it can only be used on payment of a toll ; but if this
is a highway, it would be an infringement of the prerogative
to stop the Queen's subjects on it and demand toll from them,
either in consequence of any repairs which might be done or
any improvements which might be made. If it is once a high-
way there can be no question of toll after that. Whether
originally a road could be dedicated to the public so as to
become a highway subject to a toll to be paid to the man who
dedicates it, I give no opinion, because it has not been really
fully discussed. But here the case is very different ; it is not
that all the public are to use the road, but only such persons
are to use it as are willing to pay this toll — " that no person
or persons. . . shall be allowed to travel upon, use, or enjoy
any part of the said road, or pass through any such toUgate,
side-bar, or chain to be erected and set up as aforesaid with-
out having previously paid such toll," and it is not a fixed toll,



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 35 of 73)