Motor Wagons in Somersetshire.
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A Typical Action is Lost by Clutton Rural District Council,
A case of great importance to owners of motor wagons was opened before His Honour Judge Austin, in the Bristol County Court on 25th June, the hearing being concluded on the 18th ultimo, and the decision was briefly reported in our last issue (page son). Mr. James Inskip, solicitor, appeared for the plaintiffs, and Mr. E. 13. Charles (instructed by Messrs. Hicks, Davis and Hunt) was counsel for the defendants. Judgment was given for the defendants, with
costs on scale " C." .
The facts were not much in dispute, though cross-examination showed that the plaintiffs had little real knowledge of the nature of the traffic on the road in question. The claim for ,4!82. ss. 6d. was made in respect of a mile of road which the Clutton R.D.C. repairs as lump-sum " contractors for the county main roads in its immediate dis
trict. These annual contracts have been the vogue in Somersetshire for many years, but have not given great or general satisfaction, as they have tended to bring about the starving of some of the main highways, and have also resulted in the county's adhering too long to local materials (mostly limestone) for repairs. The bad effect of this policy has been shown very clearly during the last few years, as the Rural Councils, having had to exceed their contracts in some cases on account of increase and alteration in character of traffic, have naturally turned to the County Council to reimburse them for their extra expenditure, but the County, in such cases, has made the extra grant conditional on the bringing of extraordinary traffic actions by the districts. More cases of this kind have recently been brought in the County of Somerset than in any other part of England, and, in nearly every instance, any damage that has been done has been the direct result of the laches of the Council in persisting in using soft, friable, local stone on the false assumption that it is an economy to do so. On this point, the County Surveyor of Hampshire says :— " Large as the additional quantities of superior and more costly material appear at first sight, they are the least that can be suggested as sufficient to replace the annual wear and tear, and provide for a moderate rate of improvement, and the consideration which deters the recommendation of a more rapid increase in the use of hard stone is solely the large initial cost, as there can be no question that the hard metal will result in ultimate economy of maintenance, and the sooner the change on the more important roads can be made the better. So greatly have the conditions changed in the last few years, on some of those trunk roads, that it will be a 'waste of money to continue much longer the use of local material, owing to the rapidity with which it is destroyed."
Such actions as the Council has brought have not been marked by any great degree of success, and it is therefore hoped that the County will now deside to spend less on law and more on preparing highways for up-to-date traffic. In delivering judgment in the present case, His Honour reviewed the facts with the greatest care, and summed up in such a masterly and logical way that the judgment will be of sufficient interest Lo our readers to warrant our reproducing it in full.
The Judgment. His Honour said :—
"This is an action brought by the Rural District of Clinton, against Lovell and Sons, to recover £82 5s. 6d. as the amount certified by their surveyor as extraordinary 'expenses incurred by the plaintiffs in repairing a highway, which the plaintiffs are liable to repair, between certain termini, by reason of damage caused and excessive wear, this being the sum paid for extraordinary traffic in consequence of the acts of the defendants. The action is, of course, founded on Section 23 of the Highways and Locomotives Amendment Act, 1878. The road in question is a portion which has been selected by the plaintiffs as being close to the mills owned by the defendants on a main road in the County of Somerset, a main road which the Council are liable to repair, and which, by a statutory arrangement, has been handed over tu the Clutton Rural District Council for the purpose of repair. Now the facts, when one really arranges them, are not seriously in dispute. The facts are almost agreed between Mr. Charles and Mr. Inskip, but the inference that ought to be drawn from the f4cts--the inference which is cardinal and fundamental to tbl.s..C.a.sial—is very much disputed between these learned advocates, Messrs. Lovell used to send over this portion of the. roaCI,'Which is now in question, up to the year 1904, a good deal of produce and merchandise in carts. In 1904, about the 9th March, they began to send their merchandise over the road in a steam lorry, and they have used that steam lorry from March, 1901, until the present time, and they are now using it. It is said that that traffic is-extraordinary, in the sense" of being exceptional and unusual.
"At the end of the plaintiffs' case, I was of opinion that Mr. Inskip had made out a splendid case, and I am still of the same opinion. The fact that ONE MAN USES A ROAD MUCH MORE THAN ANYONE ELSE, and mat such user increases the cost of repair, does not necessarily prove that the traffic he puts upon the road is extraordinary traffic within the meaning of the Act. To be ex. traorainary, traffic must be something exceptional or unusual, and, in my opinion, it most be something exceptional or unusual at the commencement of the period in respect .of which the claim is made. Otherwise, it seems to me, that glievous ininstice might be done to a man who might be conducting his business in a particular way for 20 years, using the road in a way which caused more damage to it than anybody else, and, at the end of 20 years, the persons liable to repair the highway might say to him, 'This is extraordinary traffic you have been carrying on all this time.' I am not saying that this is impossible, but it is a conclusion that I should be very, very disinclined to come to. In this case, the defendants had, in my opinion, during the period in respect of which this Claim is made, used the road with motor lorries much more than other people, and, in my opinion, their user has damaged the road and thrown extra expense upon the plaintiffs. The niguestion which, of course, I have to consider, is whether the defendants' traffic in the year beginning March, 1906, and ending March, 1907, was extraordinary as regards the nature of the vehicles used, or the number of tons carried over the road. In my opinion, it was not in either respect exceptional or unusual in March, 1906. Prior to that date, the road had been from time to time used by motor lorries, though not to the same extent as the defendants had used it. One miller, called Masters, used this road with a. motor lorry until the month of May, 1908; he used it for a period of 18 months. The road has also been used from time to time by heavy vehicles pl 0pelled. by mehanical power, and as to and from March, 1904, it has been used by the defendants with these motor lorries, carrying practically similar loads and practically to the same extent, because the increase in these years is not enough to be of practical importance without the indication of a word of complaint from the plaintiffs. Indeed, no complaint was made at all, until just before the commencement of these proceed. logs, and, in April, 1905, the plaintiffs' surveyor actually suggested the user of this road in preference to a less well-made road. "I entirely agree with what Mr. Inskip says, that the fact of the user of the road by one person, who uses it in an exceptional and extraordinary way to begin with, could not per cc and necessarily make by user ordinary traffic of this which was extraordinary before. But one has to look at all the. surroundina.° circumstances. When you find a road which has been used from time to time by various heavy vehicles, driven by mechanical power, when you find that the authority make no demur when it has been used in 1901, make no demur when it has been used in 1905 and 1906, and make no demur until the commencement of these proceedings: when one found the officer of the plaintiff recommending the user of the road, what conclusion was one to come to as an ordinary reason. able man? 'That that. officer thought and everybody thought, including the plaintiffs, that it
WAS NOT EXTRAORD:NARY USER.
They might have been wrong, but the chances are that they were right. When one comes to read Mr. Willcox's evidence, one sees really that what is at the bottom of this matter is an objection to pay for the wear of the roads by motor lorries. That is what it really means. Mr. Willcox very fairly said it is not a question of weight, and he says, 'I do not say the motor lorries are too heavy for the roads, but they go over them too often, and that is the main cause of the damage.' They went over it as often in 1904. "Whether I should have come to the conclusion that it was extraordinary traffic, if the action had been brought in respect of the first year's user, I do not know. It is difficult enough to decide the case before one, without having to consider what decision one might possibly have arrived at if the action had been brought earlier than it was. What is the usual means varies in course of time, in consequence of the varying circumstances of the neighbourhood, and the variation in the means of transit. Was the use of the motor lorries in the year in respect of which this claim is made something that could not be reasonably expected by the plaintiffs? In my opinion, I ought not to say so, and I decline to say so. If this were not so, if it were not possible that the user by the defendants, taken together with all the facts of the case, may make that traffic usual which a few years ago was extraordinary, the ridiculous consequence would follow, which I pointed out to Mr. Inskip, that a man might be picked out as a victim because he used the road more than others, and
made to pay the extra expense (however difficult to arrive at, still to be arrived at in the same way one has to arrive al damages generally) for all time and for ever. I do not believe that is the Law. I do not believe that it is the intention ol the Act. In my opinion, as soon as .
A NEW FORM OF TRANSIT IIAS BECOME USUAL,
the road authority must bear the expense of maintaining the road, so as to carry the traffic that must be reasonable. I find this traffic, from March, 1906, to March, 1907, was not unusual or exceptional, and so was not extraordinary traffic within the meaning of the Act. Therefore, there must be judgment for the defendants with costs on scale 'C.' If I am wrong in the view I have taken, if the Divisional Court comes to the conclusion that I have mis-directed myself in arriving at a conclusion on the facts, I fix for the purpose of appeal the amount of damages recoverable by the plaintiffs at the sum of R.45."