Roads and Streets Act 1833 No 12a (NSW)
| W a l e s and for opening and improving streets in t he towns and | WH E R E A S improving t h e roads and ways in t he Colony of N e w Sou th | |
|
No. XI.
An Act for making altering and improving the Roads throughout the Colony of New South Wales and for opening and improving the Streets in the Towns thereof. [28th August, 1833.]
it is expedient to provide for m a k i n g a l te r ing and
m a k i n g any road or s t reet in or t h r o u g h t h e same and to declare
w h a t roads shal l he m a d e and ma in t a ined a t t h e publ ic expense and wha t a t t he expense of t h e par ishes t h r o u g h which they pass Be it therefore enacted by H i s Excel lency t h e Governor of New South Wales w i t h t h e advice of t h e Legis la t ive Council thereof Tha t when and so often as t he Governor of t h e said Colony wi th t h e advice of t he Execu t ive Counci l shall deem it expedient to open and m a k e a road in any p a r t of t h e said Colony notice thereof shall be given by adver t i sement in t h e Government Gazette which not ice shal l set forth general ly t he extent and direction of t h e said road and whe the r t h e same is to be ma in ta ined a t t h e publ ic expense or a t t h e charge of t he par ishes t h r o u g h which it shall pass and shal l refer to a survey and t r ac ing thereof to be seen a t t h e office of t h e Surveyor Genera l in Sydney and shall call u p o n all persons in teres ted in t he said road to set for th in wr i t ing addressed to t h e Clerk of t he Execu t ive Council w i th in one m o n t h from the first publ ica t ion of such not ice
any well-grounded objection t h a t m a y appear to t h e m to exist t o t h e adopt ion of any such l ine of road.
2. A n d be it fur ther enacted Tha t after due considerat ion of any objections to t h e proposed l ine of road which m a y or shal l be made as aforesaid i t shal l and m a y be lawful for t h e Governor w i th t he advice of t he Execu t ive Counci l to a l ter or confirm t h e said line of road as to t h e said Governor and Council shall seem meet and the reupon by publ ic not ice publ i shed in t he Government Gazette to declare t h a t i t is expedient to open a n d m a k e such road be tween cer ta in places the re in to be specified according to a m a p or p l an to b e seen in t h e office of t h e Surveyor General of t h e said Colony and i t shal l and may be lawful to open and m a k e such road t h r o u g h any l and soever in t h e said Colony whether such l and be was te or cul t ivated unless t he same shal l a t t h e t ime of such notice be en closed by a s tone or br ick wall or in ac tua l use as a garden church ya rd or cemetery or as an avenue p lan ted walk or l awn or as a yard ga rden or o rchard or enclosed a n d p lan ted as an o rnamen t or shel ter to a house or p l an ted a n d set apa r t as a nu r se ry for t rees or
s i tua ted wi th in two h u n d r e d yards of any mans ion-house being t h e
pr inc ipa l house on such l and or enclosed for t h e purpose of ca r ry ing on any manufac tory .
3 . A n d be it fur ther enacted T h a t t h e said m a p or p lan shal l he kep t in t h e office of t he Surveyor Genera l and exhibi ted at all con
venient t imes for publ ic examina t ion from the day of t h e da te of t h e Gazette in which the said not ice shall be first publ ished for and dur ing the full period of forty days and such m a p or p lan shall conta in and specify t h e l ine of road in tended to be opened and shal l describe and set for th par t i cu la r ly and exact ly t h e precise course and bear ings which such road is in tended to t ake and t h e exact admeasurement s requ i red for t h e same and t h r o u g h w h a t l ands or premises and t h e names of t he owners or propr ie tors or occupiers thereof so far as t he same m a y be k n o w n and of each and every por t ion of t h e l and t h r o u g h which t h e said in tended l ine of road shal l be proposed to pass.
4. A n d be it fur ther enacted That t he re shal l also be kep t and exhibi ted in t h e said office of t h e Surveyor General for t he l ike period as aforesaid a book of reference in which shall be entered t h e n a m e or names of t he owners and propr ie tors or occupiers of each a n d every por t ion of t h e said land t h r o u g h which the said in tended l ine of road
shal l pass w i th a descript ion of t h e said land se t t ing forth t he bear ings of such roads t h e n a t u r e and qua l i ty t h e state of cul t ivat ion t h e in- closures (if any) and t h e quan t i t y thereof respectively which shal l or m a y be requi red for t he purpose of m a k i n g such road.
5. A n d he i t fur ther enacted Tha t copies of t h e said m a p or p lan of t h e said in tended road and of t he said hook of reference r e l a t ing the re to shal l he exhibi ted in t he publ ic office or offices of t he respective Benches of Magis t ra tes nearest to t he place or places t h r o u g h which such l ine of road is in tended to be made and all persons shal l and m a y have free l iberty and permission at all proper and convenient t imes to view and examine t h e said m a p and book of refer ence du r ing t h e l ike period of forty days from t h e first publ ica t ion of t h e said notice in t h e Gazelle aforesaid gratis and a t all subsequent periods on paymen t of one shi l l ing as a fee.
| 6. A n d be it fu r ther enacted T h a t in case any of t h e owners or propr ie tors or occupiers of any land t h r o u g h which any such | road as |
aforesaid is to be made and for t h e m a k i n g of which t h r o u g h such l and no genera l or other power of m a k i n g roads has been reserved in t he original g r a n t thereof shal l deem himself herself or themselves aggrieved the reby i t shall be lawful for any such owner propr ie tor or occupier or h is or he r agent lawfully author ized to serve a not ice in wr i t ing upon the Colonial Secretary for t h e t ime-being wi th in forty DAVS from t h e date of t he Gazette in which notice as aforesaid shall have been first publ ished for the opening and m a k i n g of t he said in tended road se t t ing forth t h a t no r igh t of m a k i n g roads has been reserved in t h e deed of g ran t made by t h e Crown of t h e said land and se t t ing forth t h e da te and full pa r t i cu la rs of t he g ran t by v i r tue whereof t he same m a y be held and also specifying t h e exact por t ion of the said land by said not ice referred to and t h a t he she or they respectively claim compensat ion for damages for t he por t ion or por t ions of t he said l and so requi red for m a k i n g the said in tended road and in default of such not ice be ing served wi th in t h e t ime a n d in t he m a n n e r afore said t h e n in every such case of default t h e owner or propr ie tor of such l and and all persons c la iming by t h r o u g h from or unde r h i m or her shal l be for ever foreclosed and shu t out from any benefit or claim whatsoever to any compensat ion for any such por t ion of land required for such road.
7. A n d be i t fur ther enacted Tha t as often as any such not ice
shal l have been served upon the Colonial Secretary as aforesaid i t shall be lawful for t h e Governor of t h e said Colony from t i m e to t ime b y wr i t ing unde r his h a n d to nomina t e and appoint any n u m b e r of persons not exceeding five to be Commissioners for en qu i r ing in to and assessing t h e damages upon any claim for compensa tion as aforesaid in t he m a n n e r hereinafter men t ioned and there
| m a y by wr i t i ng u n d e r the i r hands requi re t h e par t ies c la iming such | upon t h e said Commissioners or any two or more of t h e m shal l and |
| compensat ion to be and appear before t h e m at a cer tain t ime and place appoin ted as hereinafter provided for the purpose of execut ing such enqu i ry and t h e said Commissioners or any two or more of t h e m arc hereby empowered and requi red to issue the i r w a r r a n t in wr i t ing to t h e chief constable or other constable where there shall be no chief constable of t h e dis t r ic t or place where in t h e lands or g rounds shall be in respect of which such compensat ion shall be claimed requi r ing and direct ing h im to s u m m o n a j u r y to meet on a certain day to be named in such war ran t at t he Court -house or place used for hold ing the General Quarter Sessions or P e t t y Sessions which shal l be nearest to t he land or g round requi red for t he l ine of road for which compensat ion shal l be claimed and the said Commissioners or any two or more of t h e m shall and they are hereby author ized and requi red to t ake from the person or persons c la iming such com pensa t ion a bond to our Sovereign Lord t he K i n g in t he sum of fifty pounds conditioned for r e imburs ing the Crown for t he costs incur red in execut ing t h e enqui ry as hereinafter ment ioned if he she |
or
or they shal l no t be ent i t led to any compensat ion as aforesaid and such bond shall be by such Commissioners t r ansmi t t ed to and deposited in t he office of the Supreme Cour t a n d shall be the re kep t as of record and t h e said chief constable or o ther constable shall and he is hereby required and empowered to summon and return no t less t h a n eighteen nor more than twenty-four respectable householders or landholders of t h e ne ighbourhood to serve as j u r o r s to a t tend and appear before t he said Commissioners at such t ime a n d place as shal l be specified in such warrant and out of such persons so sum moned and returned a jury of twelve m e n shall be drawn by ballot and all persons concerned shall and m a y challenge any of t h e said jurors for a cause cer ta in to be assigned a t t h e t ime and t h e truth thereof shall be immedia te ly enquired into a n d de termined by the said Commissioners or any two or more of them attending in Cour t and as soon as a sufficient n u m b e r of indifferent j u r o r s shall appear t h e said Commissioners or any two or more of them are hereby authorized and required to swear such jury truly to assess the damages if any which such person or persons claiming compensation as aforesaid shall sus ta in by reason of such intended road and the said Commiseioners or any two or more of t h e m are hereby fur ther au thor ized empowered and directed from t ime to t ime as occasion shall requi re to s u m m o n before them a t such enquiry ss aforesaid and examine as a witness every person whO shall be deemed necessary and who shall be competent in law on his or her corporal oa th touching or concerning t h e premises a n d t h e said Commissioners or any two or more of them shall a n d m a y on t h e appl icat ion of ei ther party au tho rize t he said jury or any n u m b e r of them to view t h e place or places in question in such manner as they shal l direct and t h e said Commis sioners a t t end ing in Cour t shal l have power to adjourn such enquiry from day to clay as occasion shal l require and to command such jury witnesses a n d the respective parties to attend the said adjourn m e n t s until such enquiry shal l be finished and t h e said jury shal l enquire and assess a n d give their ve rdic t for such s u m or sums of money by way of damages as to t h e m shal l seem an equivalent for t h e loss or injury sus ta ined or to be sustained by t h e Owner or propr ie tor of any such l and by reason of t he same being required for such in tended road and as shall seem reasonable and proper under al l t he c i rcumstances of t h e case a n d t h e said verdict shall thereupon be entered and recorded by such Commissioners upon their proceedings and shal l be binding and conclusive to all i n t en t s and purposes as to t h e amount of compensation or satisfaction to be paid
in respect of any such land or ground required for such intended road
a n d such Commissioners so attending shall proceed to enqui re into
a n d de te rmine t h e a m o u n t of costs incur red for a t t endance of jurors a n d necessary expenses of witnesses in execution of such enqu i ry as aforesaid and shall enter t h e particulars and amount thereof in l ike m a n n e r upon their proceedings Provided always however t h a t before any such enqu i ry shall be executed as aforesaid full four teen days not ice in wr i t ing shal l be given thereof by t he said Commissioners or any two or more of t h e m to t h e party or parties claiming such com pensation as aforesaid and such notice shall par t i cu la r ly set forth t he t i m e and place of execu t ing such enqui ry and shall be served e i ther by delivering t h e same to such party or parties or by leaving t h e same at h is her or the i r place of abode if resident within t h e said Colony or if no t b y serving t h e same i n l ike m a n n e r upon h is her or the i r agent i n t h e said Colony or in case n o such agent shall be known by pub l i c
not ice inser ted in t he said Government Gazette. 8. A n d be i t further enacted Tha t t h e verdicts and all t h e pro
ceedings of t h e said Commissioners and ju r ies as aforesaid shall be
fairly
| fairly | w r i t t e n | on | p a r c h m e n t | and | signed by t h e | said | Commiss ioners |
and shal l he t r a n s m i t t e d to t he Reg i s t r a r of t h e Supreme Cour t of t h e said Colony t o be kep t amongs t t he records of his office a n d t h e same or a t r u e copy thereof signed and certified as such by the said Reg i s t r a r for t he t ime-being shal l be allowed to be good evidence in al l Cour t s whatsoever wi th in the said Colony and all persons shal l have l iber ty to inspect t he same upon pay ing t h e sum of one shi l l ing and to have copies thereof on pay ing the u sua l fees.
9. A n d be i t fur ther enacted Tha t t h e Commissioner as afore said shall have power from t ime to t ime to impose any reasonable fine no t exceeding t h e s u m of five pounds on any of t h e persons who shal l be summoned and r e tu rned on any such j u r y and shall no t appear wi thou t sufficient excuse or appear ing shal l refuse to be sworn on t h e said j u r y or on being sworn shall no t give his or the i r verdict and also on any person who shall be summoned to give evidence touch ing any of t h e ma t t e r s aforesaid and shal l no t a t t end or a t tend ing shall refuse to be sworn or to affirm or to give evidence and on any person who shall in any m a n n e r wilfully neglect his or her du ty
| in t h e premises cont ra ry to t he t r u e mean ing of th i s | Act . |
10. A n d be it fur ther enacted Tha t every such j u r y as afore said shall be unde r and subject to t h e same regula t ions and penal t ies and shall be enti t led to t h e same amoun t of paymen t for a t tendance and mileage as a common j u r y re tu rned for t he t r i a l of any issue jo ined in t h e Supreme Cour t of t he said Colony.
1 1 . A n d be i t fur ther enacted T h a t every person who in any
examina t ion upon oath or affirmation to be t a k e n by v i r tue of th is A c t shall commit wilful and cor rupt per jury or falsely affirm in swear ing or affirming before t h e said Commissioners or before any such j u r y as aforesaid shall and m a y be prosecuted for t h e same and u p o n conviction thereof shall be subject to such pun i shmen t s and disqualifications as any person can be subject to convicted of perjury by t h e laws of t h e said Colony.
12. A n d be i t further enacted Tha t in all cases where compen sation by way of damages shal l be assessed in pu r suance of the provisions of th i s Act t he a m o u n t thereof shall be paid to t h e pa r ty or par t ies lawfully ent i t led there to or to his her or the i r agent or agents duly author ized in th i s behalf or in to t h e Reg i s t ry of t h e Supreme Cour t as hereinafter ment ioned b y w a r r a n t or w a r r a n t s of t h e Governor upon t h e Treasury of t h e said Colony and the reupon all t h e r i g h t t i t le p roper ty and interest of w h a t n a t u r e or k ind soever of
| and g round required for m a k i n g such road and in respect of which | all and every person or persons whomsoever in and to t h e said land |
| such compensat ion shall be so paid as aforesaid shall become vested in t h e Governor of t h e said Colony for t h e use of t h e publ ic as a h ighway as fully and effectually to all i n t en t s and purposes as if the same h a d been conveyed to t h e Governor b y t h e person or persons legally or equi tably ent i t led there to by t h e best and most perfect form of conveyance or assurance in t h e law and such h ighway shall be l iable to all such and the l ike laws and regula t ions as o ther h ighways in t he said Colony Provided always however t h a t no t h ing herein conta ined shall empower t h e Governor to issue any w a r r a n t for the pay m e n t of money as a compensat ion as aforesaid in any case unless w i th t h e advice a n d consent of t h e Legislat ive Counci l of t h e said Colony. |
13 . A n d be it fur ther enacted Tha t every such p a y m e n t shal l
be made as aforesaid before t h e Surveyor Genera l or o ther person author ized by t h e Governor in t h a t behalf shall en te r u p o n or occupy t h e l and in respect of which such compensat ion for damages shal l have been assessed as aforesaid a n d if such paymen t shal l no t be made w i t h i n twelve calendar m o n t h s after t he verdict of t h e j u r y shall
3 M have have been given in t he case every such verdic t and all t h e proceedings h a d prior a n d subsequent the re to unde r t h e au tho r i t y of th is A c t shall be void a n d of no effect.
14. A n d be it fu r ther enacted Tha t as often as a r i g h t of road t h r o u g h any such lands in respect of which such claim for compen sat ion shall have been m a d e shall be claimed to be reserved to t h e Crown in t h e g ran t of such lands or t h e person ent i t led to receive such compensat ion shall refuse to accept thereof or shal l be disabled b y infancy m e n t a l incapaci ty or any other cause from receiving t h e same or such person shall no t be k n o w n or discovered or any quest ion shall arise as to t he r igh t s of par t ies to such compensat ion or any p a r t thereof t h e n and in every such case i t shall be lawful for
t h e A t t o r n e y Genera l of t h e said Colony and he is hereby required to apply to the Supreme Cour t by pe t i t ion briefly s ta t ing t h e facts
and suppor ted by affidavit and t h e said Cour t is hereby au tho
rized and empowered in a s u m m a r y way of proceeding to enqu i re in to and de termine t h e respective r igh t s and claims of t h e Crown and t h e par t ies in respect of any compensat ion so assessed as afore said or any p a r t thereof and to order such s u m of money to be paid to such person or persons as shall be considered by such Cour t to be ent i t led t he re to or to be paid in to t he Reg i s t ry of t he said Cour t for t he use of the person or persons so ent i t led a n d to m a k e such other order in respect thereof as shall seem ju s t and reasonable a n d t h e order of such Cour t shall be final and conclusive to all i n t en t s a n d purposes Provided a lways t h a t as often as any quest ion shall arise t o u c h i n g t h e t i t le of a n y person to any money so assessed as a compensat ion or any p a r t thereof t h e person who shall have been in possession of t h e lands in respect of which such compensat ion shall have been assessed as aforesaid and all persons c la iming unde r t h e possession of such person shall be deemed a n d t a k e n to be lawfully ent i t led to such ' l ands un t i l t he con t ra ry shall be shewn to t h e sat is faction of t h e said Cour t and t h a t some other person was lawfully
ent i t led there to .
15 . A n d be i t fur ther enacted Tha t i t shall bo lawful for t h e
Governor of t h e said Colony wi th t h e advice of t he Execu t ive Counci l as aforesaid to divert shor ten vary al ter and improve t h e course or p a t h of any of t h e several publ ic roads or ways already made wi th in
t h e said Colony or any p a r t thereof u p o n in over or t h r o u g h a n y
pr iva te lands or g rounds whatsoever w i thou t m a k i n g any compensat ion
to t h e owners or propr ie tors of such lands or g rounds or any of t h e m and a l t hough no r igh t or power of m a k i n g or a l te r ing any such publ ic road or way m a y have been reserved to the Crown in t h e or iginal g r a n t of such lands or g rounds or any pa r t thereof Prov ided always however t h a t no such publ ic road or way shall be a l tered diverted or t u r n e d on or t h r o u g h any l and or g round u n d e r t h e p ro
visions of th i s Act t h r o u g h which no such publ ic road or way exis ted before A n d provided also t h a t in a l te r ing diver t ing or t u r n i n g the course or p a t h of any such road as aforesaid i t shall no t be lawful to pu l l down any dwell ing-house or o ther bu i ld ing or to t ake in or m a k e use of any l and enclosed by a s tone or br ick wall or any church-yard or cemetery or any avenue p lan ted walk or l awn or any ya rd ga rden or orchard or any enclosed g round p lan ted as a n o rnamen t or shel ter
to a house or p lan ted and set apa r t as a nu r se ry for t rees or s i tua ted wi th in two h u n d r e d yards of any mansion-house being t h e pr incipal house on such l and or any l and enclosed for t he purpose of car ry ing on any manufac tu ry or any p a r t thereof respectively w i thou t t he consent of t h e owner or propr ie tor thereof be ing first had and obtained for such purpose .
10. A n d be i t fur ther enacted Tha t when any such road as aforesaid shall be a l tered diverted or t u r n e d and t h e new road shall be m a d e and completed such new road shall be in l ieu of t he old road a n d be deemed to be a publ ic road or h ighway and be subject to the l ike laws as o ther publ ic roads or ways in t he said Colony and the old road shal l cease to be a publ ic road and t h e p roper ty in t h e ground a n d soil thereof shall vest in and be held by t h e owners or proprie tors of t h e lands or grounds immediate ly adjoining there to and m a y be s topped u p unless such old road shall lead to any lands house or place which cannot be convenient ly approached by such new road in which case such old road or so m u c h thereof as m a y be necessary for t he accommodat ion of a passage to such lands house or place shall r emain as and be a p r iva te road or way to t h e same and shall be subject to t h e l ike laws and regula t ions as o ther p r iva te ways in t he said Colony Prov ided always t h a t in case any dispute or difference shal l arise as to t h e propr ie ty of s topping u p any such road or any p a r t thereof as aforesaid t h e same shall be hea rd and determined in a s u m m a r y m a n n e r upon t h e appl icat ion of any par t ies interested the re in to the Jus t i ce s assembled in t h e neares t Cour t of Q u a r t e r Sessions who are hereby author ized to hea r and de te rmine t he same and t h e determi na t ion of such Jus t i ces shall be subject to a n appeal to H i s Excel lency t h e Governor and the Execu t ive Counci l and t h e decision of such Jus t i ces or t he Governor in Council there in (as t h e case m a y be) shall be final a n d conclusive between t h e par t ies and all c la iming under t h e m .
17. Provided always and be i t fur ther enacted and declared T h a t all publ ic roads or ways heretofore made al tered diverted or t u r n e d in l ieu of any o ther roads or ways shal l be deemed to be h ighways and such o ther old roads or ways shall no longer be deemed to be publ ic roads or h ighways b u t m a y be s topped u p in l ike m a n n e r subject to such and t h e l ike l imi ta t ions a n d regula t ions as hereinbefore las t ly provided wi th respect to old roads.
18 . A n d be i t fur ther enacted Tha t in every ins tance where unde r t h e provisions of t h i s Ac t any publ ic road shall be made tu rned or a l tered t h e l and on ei ther side thereof and t h r o u g h which the said road shal l pass shal l if required be fenced in on each side wi th a three- rai led fence a t t h e publ ic expense Provided always however t h a t the same shall no t be uphe ld a t such publ ic expense and whenever any pa r i sh road shall be directed to be m a d e u n d e r t h e provisions of th is
| Ac t | t h e same shall be m a r k e d | and opened a t | t h e publ ic expense b u t |
| shal l be m a d e fenced and repaired a t t h e expense of t h e | parishes |
| t h r o u g h | which | i t | shal l | pass . |
| A n d whereas i t is expedient t o define w h a t roads shall be main ta ined a t t h e publ ic expense and | w h a t | at t h e | expense of t h e par ishes |
| t h r o u g h which they pass as far as t h e said parishes can in t h e | present |
| s ta te of t h e survey of t h e Colony be de termined | Be i t therefore enacted |
Tha t all t h e roads in the i r whole l eng th as set for th in t h e Schedule he reun to annexed m a r k e d A shall be deemed to be and shal l be called publ ic roads and shall be ma in t a ined repaired or a l tered a t t h e publ ic cost and charge by p a y m e n t s from t h e Colonial Treasury whe ther the re be tol l collected on t h e said roads or otherwise and t h a t all roads which shal l hereafter be m a d e and declared to be pub l i c roads unde r t h e provisions of th i s Ac t shall in l ike m a n n e r be ma in ta ined at
| t h e publ ic | expense. |
20. A n d be i t fur ther enacted T h a t in t h e county or r e p u t e d
coun ty of Cumber land in t h e said Colony any road heretofore m a d e a t t h e publ ic expense and n o t included in t h e Schedule A as aforesaid and any road in common a n d general use pass ing from a road now ma in t a ined or hereafter to be ma in ta ined a t t h e publ ic expense as
aforesaid
aforesaid to ano ther of t h e same descript ion or connect ing different p a r t s of t h e same publ ic road or any road leading from any township duly notified as such by t h e Governor a n d Execu t ive Council to any road ma in ta ined at t h e publ ic expense as aforesaid shall be deemed to be and shal l be called a par i sh road.
2 1 . A n d be i t fur ther enacted T h a t in case the propr ie tor of
any l and a l ienated by g ran t from t h e Crown to no pa r t of which g ran t any road shal l have been t raced or established as a thoroughfare by usage from t h e neares t h ighway shall be desirous to have a road from t h e said h ighway or o ther way communica t ing the rewi th to his or her said land t h r o u g h t h e lands of any other person every such propr ie to r shal l and m a y be a t l iber ty to m a k e appl icat ion in wr i t i ng to t he Cour t of Qua r t e r Sessions for the district in which such road shall be requi red se t t ing forth in a pa r t i cu la r m a n n e r the s i tua t ion of such land and t h e direct ion of t h e proposed road and t h r o u g h wha t o ther land t h e same may be requi red to pass in order to reach such nearest h ighway or other way as aforesaid first g iving notice in wr i t i ng one m o n t h a t least previous to t h e hold ing such Quar t e r Sessions to all p ropr ie tors or occupiers of such other land and to t he Surveyor General at Sydney of his or her i n t en t ion to m a k e such appl icat ion and the reupon t h e said Cour t of Qua r t e r Sessions shal l hear t he par t ies and t h e said Surveyor Genera l or some person deputed by h im and shall decide as to t h e p ropr ie ty of such road being made and the direction in wh ich t h e same shall be m a d e wi th reference as well to t h e appl icat ion of t h e pa r ty or par t ies t h e n before t he Cour t as to t he general benefit a n d convenience of all o ther persons owning or occupying lands adjacent to those of t he said par t ies and to t h e general advantage of t h e district in which such lands shal l be s i tuate and shal l cause to be t a k e n down in wr i t i ng all such evidence as shall be produced in sup por t of and against t h e said appl icat ion and shall cause such evidence to be repeated to the several witnesses giving t h e same and shal l swear such witnesses as to t h e t r u t h thereof and shall subscribe such evidence and shall t r ansmi t t he same to t h e office of t he Surveyor General as aforesaid to be kep t as a record of his office Provided always t h a t in case any of t h e par t ies shall consider himself herself or themselves aggrieved by the decision of t h e said Cour t of Q u a r t e r Sessions it shall be lawful for h im her or t h e m wi th in one calendar m o n t h after such decision to appeal u n t o t h e Governor and t h e Execu t ive Council for t he said Colony whose decision shall be final b ind ing and conclusive u p o n all par t ies and persons whomsoever
Provided however t h a t no new fur ther or other evidence shall be given or laid before t he said Governor and Execu t ive Council on such
appeal save and except t he evidence which h a d been examined andt a k e n down before t he Jus t ices of t h e said Cour t of Qua r t e r Sessions as aforesaid A n d provided fur ther t h a t no th ing herein contained shal l ex tend to author ize t h e several possessors or occupiers of land which or iginal ly forming one g ran t from t h e Crown shall have been subse- quen t ly divided to use or c laim t h e r igh t of more t h a n one common road t h r o u g h the lands of any o ther person or persons for t h e pu r pose of communica t ing wi th t h e whole and every pa r t of the land so divided as aforesaid.
22. A n d be i t fur ther enacted Tha t in case t he p ropr ie ty of m a k i n g such pr iva te road as last aforesaid shall have been de te rmined in m a n n e r aforesaid ei ther by t h e said Court of Q u a r t e r Sessions or u p o n appeal m a d e to t h e Governor a n d Execu t ive Counci l as aforesaid t h e said Surveyor General or o ther person deputed by h i m shall w i th in th ree m o n t h s nex t after such decision t race and m a r k o u t by such p e r m a n e n t m a r k s as t h e n a t u r e of t he country shal l pe rmi t and as near ly as m a y he pract icable and convenient in t h e
direction
direct ion approved by t h e Cour t of Qua r t e r Sessions or by the Governor a n d Execu t ive Council as aforesaid t h e said in tended road such road to be not more t h a n twen ty feet wide in t h e clear and t h e said l ine of road so t raced and laid out shall be from thencefor th a p r iva t e road for t he use of t h e p a r t y app ly ing for and all o ther persons r e q u i r i n g to use t h e same and shall be subject to such and the l ike laws as other pr iva te roads.
23. A n d be it fu r ther enacted Tha t for t he purposes of t r ac ing
m a r k i n g opening a l te r ing t u r n i n g repa i r ing or improv ing any roads or ways wi th in t he said Colony and for performing every act m a t t e r a n d t h i n g unde r t h e provisions of th is Act it shall be lawful for t h e Surveyor Genera l or any person appointed by h im in such behalf and for his and their servants workmen and laborers at all t imes hereafter and with al l necessary and proper carriages oxen and horses and other means t o enter upon all or any lands adjacent to t he said line of roads and t h e n and t he r e severally to do and perform al l acts m a t t e r s and t h i n g s hereby required by h i m or t h e m to be done.
24. A n d be i t fur ther enacted T h a t i t shall and m a y be lawful
| for t he said Surveyor General or o ther persons appoin ted as afore said or cont rac t ing for t h e m a k i n g or repa i r ing t he said roads or ways and for his and the i r ass is tants servants workmen and laborers at all reasonable t imes hereafter and wi th all ncessary and proper carr iages oxen horses and other means to search for dig and carry away any mater ia l s for m a k i n g and repa i r ing such roads and ways as aforesaid in and from any land near or adjoining there to (not be ing a garden ya rd pa rk planted walk or avenue to any house or any piece of g round p lan ted and set apar t as a nu r se ry for trees) wi thou t pay ing for t h e same and to carry away t h e same t h r o u g h the g round of any person wi thou t being deemed a t respasser or t respassers t he said Surveyor General a n d other persons as aforesaid filling u p t h e p i t s or quar r ies levell ing t he g round wherefrom such meter ia ls shall be t aken and ra i l ing or fencing off t he pi ts or quarr ies so t ha t t h e same shall no t be dangerous to any person or cat t le and pay ing for or tender ing the damage done by going th rough and Over any enclosed or arable land for or w i th such mater ia l s such sum or sums of money as t h e said Surveyor Genera l or o ther person appointed or cont rac t ing as aforesaid shall deem reasonable and in case of any difference be tween such Surveyor Genera l or person appointed or cont rac t ing as aforesaid and t h e owners and occupiers of any such land or any of t h e m concern ing such paymen t s and damages as aforesaid any twO Jus t ices of t h e Peace of t he distr ict wherein such enclosed or arable | land | t h r o u g h which such mater ia ls shall have been so carried | shal l |
| be s i tua te on t en days notice thereof be ing given in wr i t ing | by ei ther |
p a r t y to t h e o ther shal l sett le a n d de te rmine t he m a t t e r of such paymen t s and damages and the costs a t t end ing the hear ing and
| de te rmin ing the | same. |
25. A n d be it fur ther enacted Tha t i t shal l and m a y be lawful
for t he said Surveyor Genera l or other person appointed or contrac t ing as aforesaid for t h e m a k i n g a l te r ing repa i r ing or t u r n i n g of t he said roads or ways to cause to be cut t h r o u g h all or any lands or g rounds whether adjacent or otherwise to t h e said roads or ways such drains or ditches a n d also to remove such obstruct ions to t h e free pas sage of water off t he said roads or ways and to erect such causeways br idges a rchways sewers and general ly to use such means as to h i m shal l seem requisi te for t h e purposes aforesaid.
20. A n d be it fur ther enacted Tha t in case any person or per sons shall resist or in any m a n n e r forcibly oppose the said Surveyor Genera l or any person or persons employed in t he due execut ion of th i s A c t every such person so offending there in shal l for every such
offence
offence forfeit any s u m n o t exceeding five pounds at t he discretion of t h e Jus t i ce or Jus t i ces of t he Peace before w h o m he or she shall b e convicted who is and are hereby author ized and empowered to hear
and de termine t h e m a t t e r in a s u m m a r y m a n n e r . 27. A n d be it fu r ther enacted T h a t i t shall and m a y be lawful for t h e said Surveyor Genera l or o ther officer or officers appointed by t h e said Governmen t in surveying m a k i n g or repa i r ing any roads ways or br idges to graze all such oxen and horses as m a y be wi th or in a t t endance on h i m t h e m or the i r p a r t y upon any uncu l t iva ted lands adjacent the re to and t h a t they m a y cont inue to graze t h e said horses and oxen on such lands for any n u m b e r of days and n igh t s n o t exceeding seven consecutively a n d fur ther t h a t n o t w i t h s t a n d i n g
any provision exis t ing to t h e cont ra ry in t h e T u r n p i k e Ac t s now in
force in th i s Colony it shal l and m a y be lawful for t h e said Surveyor Genera l or o ther officer in charge of any road pa r ty or par t ies which shal l or may be employed in t h e surveying m a k i n g or repai r ing any roads p a t h s h ighways byeways or br idges in pursuance of th i s A c t t o m a k e and erect h u t s for the i r residence upon t h e said roads for t he i r
accommodat ion du r ing the m a k i n g or repa i r ing of the said roads p a t h s h ighways byeways or br idges as aforesaid.
28. A n d whereas i t is expedient to prevent t h e g rowth of b rush wood or b ranches of t imber- t rees a long t h e l ine of any publ ic road in t h e said Colony Be it fur ther enacted Tha t it shal l and m a y be lawful for t h e said Surveyor General or any officer or o ther person to be appoin ted as aforesaid to cut or cause to be cu t all such brush-wood a n d to lop or cause to be lopped such t imber- t rees to t h e he igh t of forty feet any where wi th in twen ty yards of t h e side of any pub l i c road as aforesaid as to t h e said Surveyor Genera l or o ther officer or o ther person shall seem requis i te Provided t h a t no such t rees be k e p t for o rnamen t or shelter to any house bui ld ing or cour t -yard and if t h e owner or occupier of t h e l and upon which such brush-wood or t imber- t rees m a y be cut or lopped shal l neglect or refuse to remove t h e same wi th in seven days it shal l be lawful for t h e said Surveyor Genera l or other officer or person as aforesaid to remove or b u r n any such brush-wood or loppings.29. A n d whereas i t is expedient t h a t every accommodat ion and convenience should be supplied and afforded for t h e m a k i n g and repa i r ing of t h e publ ic br idges t h r o u g h o u t t h e said Colony Be i t fur ther enacted That whenever it shall be deemed expedient t o cons t ruct or repair any publ ic br idge or causeway in t he said Colony it shall a n d
m a y be lawful for t h e said Surveyor Genera l or o ther officer as afore said and the i r ass is tants to enter upon any lands adjacent t o such br idge or in tended br idge and if necessary to t ake down and remove any fence or fences enclosing t h e same and t h e n and the re to m a k e and enclose a t empora ry passage du r ing t h e repa i r ing or cons t ruc t ion
of such br idge or in tended br idge Provided always and it is hereby enacted T h a t all fences t aken down in t h e m a k i n g and enclosing of such t empora ry passage shal l be well sufficiently and immedia te ly repai red and res tored by and a t t h e expense of t h e p a r t y cons t ruc t ing
or repa i r ing t he br idge as aforesaid. 30. A n d be i t fur ther enacted Tha t whenever i t shal l appear expedient t o t h e Governor of t h e said Colony to erect any b r idge over or across any r iver or water or a r m or b ranch of t h e sea e i ther navigable or not it shal l no t be lawful for any person or persons to sus ta in or to commence any suit or any proceedings a t law grounded u p o n any damages loss or expenses occasioned or alleged to be occasioned by reason of t h e erection of any such br idge as aforesaid.
3 1 . A n d be i t fur ther enacted Tha t in t he m a k i n g or
r epa i r ing of any such roads or br idges as are by th is A c t hereinbefore
provided
provided for it shall and may he lawful for t h e Surveyor Genera l or o ther officer or person overseeing t he same to th row or cause to he t h r o w n u p o n any adjoining lands such ea r th rubbish or mater ia l s as i t shal l or m a y be necessary to remove from t h e said road or from t h e place where any such br idge shal l or m a y be m a k i n g or repa i r ing as aforesaid and any person who shal l remove back t he same or any p a r t thereof to the said road or br idge shal l for every such offence forfeit a n d pay any sum no t exceeding forty shil l ings over and above t h e damages occasioned the reby to be assessed by t h e Jus t i ce or Jus t ices before w h o m such offender shall be convicted who is and are hereby author ized and empowered to hear and de termine t h e m a t t e r in a
| s u m m a r y | manner . |
32. A n d be i t fur ther enacted Tha t i t shall a n d may be lawful
for t he Governor of t h e said Colony to appoint from t ime to t ime Commissioners of t he several publ ic roads the re in who shall serve w i thou t fee or reward a n d i t shal l be t h e du ty of every such Commis sioner to repor t to t he Surveyor Genera l as often as i t shall seem needful the; s ta te of repai r and condit ion of t h e several roads and bridges wi th in his personal cognizance Provided always T h a t n o t h i n g here in contained shall be const rued to impose upon any person t he obl igat ion to become or act as a Commissioner of Roads unless he shal l be disposed so to do.
33 . A n d be it fur ther enacted and declared T h a t no th ing
here in conta ined shall be deemed or const rued to l imi t al ter or d iminish or in any m a n n e r soever to i n t e r r u p t or interfere w i th t h e r igh t of t h e Crown to m a k e or to repair publ ic or pr iva te roads ways passages or streets in or t h r o u g h any lands whatsoever wi th in t he said Colony or any of t he towns or vil lages thereof where such r igh t shal l have been duly reserved to t h e Crown in t he g r a n t i n g of such lands or shal l otherwise belong to or be vested in t h e Crown.
34. A n d be i t fur ther enacted Tha t in all cases when it shall be deemed necessary or expedient to open l eng then or enlarge any streets passages squares m a r k e t s market -places quays or wharfs in any t o w n or towns w i th in t h e said Colony it shal l and may be lawful for t h e Governor of t h e said Colony for t h e t ime-being wi th t h e con sent of t h e Execu t ive Council as aforesaid by notice publ ished as aforesaid to declare t h e same and the r eupon t h e l ike proceedings shall be adopted applicable the re to as are hereinbefore provided for t h e m a k i n g or repa i r ing or erection of roads and br idges as aforesaid and
for a l lowing compensat ion for any damages or losses claimed by a n y individual in respect thereof as hereinbefore par t icu la r ly contained and
in such case i t shall a n d m a y be lawful for t h e Surveyor Genera l or
other officer or person appoin ted by t h e Governor for t h a t purpose to enter in to a n d examine al l such houses t enements or bui ldings as m a y be necessary and after t h e decision of t h e Commissioners as aforesaid as to any compensat ion claimed by any person in respect thereof to t ake down and remove such bui ld ings Avails and tenements as shall or m a y be requis i te for t h e purposes aforesaid Provided always Tha t whenever provision shall have been made in t he g ran t or lease from t h e Crown of any town al lotment for t he va lua t ion by arb i t ra t ion or otherwise of any bui ld ings erected upon t h e whole or any par t of the a l lo tment which t h e Crown shall have reserved a r igh t by such g ran t to resume recourse shall be had to the mode of va lua t ion there in expressed a n d such sums of money become due and payable as shall be assessed according there to .
35 . A n d be i t fur ther enacted Tha t no conviction unde r th i s
A c t shal l be quashed for w a n t of form or be removed by wr i t of certiorari or otherwise into t he Supreme Cour t and no warrant or
commi tmen t
commi tmen t shall he held void by reason of any defect there in pro vided it be al leged t h a t t h e p a r t y has been convicted and t h a t t he r e be good and valid convict ion to sus ta in t h e same.
36. A n d be i t fur ther enacted Tha t if any act ion or suit shal l be commenced agains t any person or persons for any t h i n g done in pu r suance of th i s Act t h e n and in every such case such act ion or suit shal l be commenced or prosecuted wi th in th ree m o n t h s after t h e fact commit ted and not -afterwards a n d t h e defendant in such action or su i t shal l and may plead t h e general issue a n d at t he t r i a l thereof give th is Act and t h e special m a t t e r in evidence and if t he m a t t e r or t h i n g complained of shall appear to have been done t inder t h e au tho r i t y and in t h e execut ion of th i s Ac t or if any such action or suit shall be b r o u g h t after t h e t ime l imited for b r ing ing the same t h e n t h e j u r y shal l find for t h e defendant a n d if t h e plaintiff shal l become nonsui t or discont inue his or her act ion after t he defendant shall have appeared or have a verdict against h i m or he r or if u p o n d e m u r r e r j u d g m e n t shal l be given against t h e plaintiff t h e defendant shal l and m a y recover t reble costs and have the l ike remedy for recovery thereof as any defendant h a t h in any cases by law.
37. A n d be it fur ther enacted T h a t all penal t ies a n d fines
levied and collected unde r and by v i r tue of th is Ac t shal l be appl ied to t he publ ic uses of t h e said Colony and t h e suppor t of t h e Govern
m e n t thereof.
S C H E D U L E R E F E R R E D TO. A.
S C H E D U L E O F R O A D S T O B E K E P T I N R E P A I R A T T H E
P U B L I C E X P E N S E .
T h e p r e s e n t R o a d f rom S y d n e y to t h e S o u t h H e a d of P o r t J a c k s o n l>y B e l l e Vue &c.
T h e W e s t e r n R o a d f rom S y d n e y b y P a r r a m a t t a E m u M o u n t V i t t o r i a a n d H o n e y s u c k l e
H i l l t o B a t h u r s t .
T h e R o a d f rom t h e P l o u g h I n n five a n d one q u a r t e r m i l e s f rom S y d n e y t h r o u g h L i v e r p o o l
a n d ac ross t h e C o w p a s t u r e B r i d g e a n d R a z o r b a c k t o L u p t o n ' s I n n .
T h e G r e a t S o u t h e r n R o a d f r o m L u p t o n ' s I n n t h r o u g h B e r r i m a t o w h e r e i t f o r m s t w o
b r a n c h e s a t M a r u l a n .
T h e S o u t h R o a d f rom M a r u l a n t o B u n g o n i a T o w n s h i p .
T h e S o u t h W e s t e r n R o a d f rom M a r u l a n to Grou lburn T o w n s h i p .
T h e R o a d f rom L i v e r p o o l t h r o u g h C a m p b e l l t o w n a n d M e n a n g l e t o S t o n e q u a r r y C r e e k .
T h e R o a d f rom P a r r a m a t t a t o B o w l e r ' s B r i d g e c o m m o n l y ca l l ed t h e D o g t r a p R o a d .
T h e R o a d f rom P a r r a m a t t a t o W i n d s o r a n d R i c h m o n d .
T h e N o r t h e r n R o a d f rom t h e turn-of f a t I r o n B a r k B r i d g e on t h e W e s t e r n R o a d s i x a n d
o n e t h i r d m i l e s f rom S y d n e y t o t h e P u n t a t B e d l a m P o i n t a n d t h e n c e b y K i s s i n g
P o i n t a n d P e n n a n t H i l l s to W i s e m a n ' s F e r r y .
T h e N o r t h e r n R o a d f rom W i s e m a n ' s F e r r y t o t h e W o l l o m b i b y B r o k e a n d L c m i n g t o n t o
M u s c l e B r o o k .
T h e B r a n c h f r o m t h e N o r t h e r n R o a d a t W o l l o m b i t o M a i t l a n d a n d t h e G r e e n H i l l s W h a r f .
T h e B r a n c h f rom t h e N o r t h e r n R o a d a t B r o k e l e a d i n g t h e n c e t o P a t r i c k ' s P l a i n s .
T h e R o a d f rom N e w c a s t l e t h r o u g h M a i t l a n d a n d P a t r i c k ' s P l a i n s t o t h e J u n c t i o n w i t h t h e
G r e a t N o r t h R o a d a t W a r k w o r t h .
No. XII.
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