Enabling Acts relating to specific turnpikes

General Turnpike Act 1773

General Turnpike Act 1822

Highways and Locomotives (Amendment) Act 1878: Inspectors should be familiar with the full text of Sections 13 and 16 which deals with the status of roads which ceased to be turnpikes after 31 December 1870 . The sections are sub-headed “Disturnpiked roads to become main roads, and half the expense or maintenance to be contributed out of county rate” and “Power to reduce main road to status of ordinary highway”.

Case Law

Northam Bridge Co. v London and Southampton Rail. Co. (1840) 1 Ry & Can Cas 653: A turnpike road is a road on which a turnpike is lawfully erected and on which the public are bound to pay tolls. The distinctive mark of a turnpike road is the right of turning back anyone who refuses to pay toll

R v French (1878) 3 QBD 187: Approves and follows the above judgment

Austerberry v Corporation of Oldham (1885) 29 Ch D 750: It is doubtful whether a highway subject to the condition that the public shall pay tolls to the owner for using it can be dedicated to the public

Midland Rail Co. v Watton (1886) 17 QBD 30: It would be incorrect to describe a road as a turnpike merely because the proprietors take toll for the use of it, without being subject to any statutory liabilities in respect of it, such as are imposed on the trustees of turnpike roads

R v Winter (1828) 8 B & C 785: R v Mellor (1830) 1 B & Ad 32: R v Thomas 1857: If a road had been a highway before the legislature made it a turnpike road, it remained as an ordinary highway if the powers of the Turnpike Act expired. If a road was first made under the Turnpike Act, upon the expiring of the Act the public right of passage was at an end unless some other means were taken to renew or continue the right

Other Publications

Halsbury’s Laws of England Vol.21 paragraph 20

Pratt and McKenzie’s: Law of Highways (21 st Edn.) London (Butterworth) 1967– pages 12 & 13

‘Documentary Evidence’ – a paper prepared by Christine Willmore, July 2002 (see annex 2 of these Guidelines)

Burns’ Justices of the Peace and Parish Officer 1800 (19 th Edn.)

GUIDANCE

Introduction

9.1, Turnpiking was mostly concerned with the repair and improvement of existing roads, with repairs being carried out by a Turnpike Trust. The creation of a Turnpike Trust for a particular road did not remove the statutory duty of maintenance from the Parishes through which the road passed. In general Turnpike Trusts were created for a fixed term, often 21 years, with the statutory authority being periodically renewed by Act of Parliament. The Enabling Acts contain a great deal of information and should be read in full: an Inspector relying on selective passages can be misled. It is also important to establish what general legislation was in force at the time the turnpike lapsed.

9.2, There is little guidance on turnpikes other than the relevant case law and that contained in specialist publications on highway law, such as Pratt and McKenzie (pages 12 and 13) and Halsbury, Vol.21, paragraph 20. Christine Willmore’s paper on ‘Documentary Evidence’ contains a short section on the topic (see annex 2 of these Guidelines).

Statute

9.3, Where a highway or turnpike had been lawfully diverted, the 1773 Act made provision for the liability for maintenance of the old section of road to be transferred to the new section of highway or turnpike with the liability to maintain the former section being extinguished. The 1773 Act also made provision for the erection of direction posts at cross roads, for depth posts at fords and for mile stones inscribed with the names and distances of the principal towns found on the road.

9.4, The 1822 Act made specific provisions for the disposal by sale of turnpike roads that had become superfluous and allowed the trustees to stop up any former roads, or such parts of them, which in their judgment had thereby become useless or unnecessary. However, roads leading to towns, villages, mills, churches, etc., to which the new roads did not directly lead, were to be kept open either as private or as public ways. While this does not appear to be covered in the previous legislation, Burns indicates that similar provisions were in force in 1800.

Case Law

9.5, The contention that the term ‘turnpike’ could apply to any route where toll was collected was disposed of by Austerberry v Corporation of Oldham and Midland Rail Co. v Watton, which make it clear that a turnpike can only be dedicated under statute. Case law also shows that turnpikes reverted to their original status when the turnpike ceased to operate. It is therefore important to establish the pre-turnpiking status of the way (see ‘Status’, next).

Status

9.6, Under the 1878 Act roads disturnpiked after 31 December 1870 were converted into main roads. Disturnpiked main roads could be declared by county authorities to be ordinary highways. This does not mean that all ex-turnpikes carry public rights. If a route was a public highway prior to becoming a turnpike, it automatically reverted to its original status. However, if a road was created specifically to be part of a turnpike and the enabling Act did not specify that it was to be a highway in perpetuity, the public right of passage would expire when the turnpike expired, unless this happened after 31 December 1870 or unless some other means were taken to renew or continue the right. The argument that a route cannot be public if the public have to pay to use it does not apply to turnpikes, where the collection of tolls was authorised by statute for the purpose of repair.

9.7, It is important to read fully the enabling Act of Parliament to determine the status of the route prior to turnpiking, and to determine if any new roads were authorised to be set out. It is also important to read the subsequent Acts that renewed the Turnpike Trust until its eventual winding up. The enabling Act will generally specify the lifespan of the Turnpike Trust (usually 21 years). The Acts will provide an indication of the status of the route prior to turnpiking and the powers of the Trustees to create new routes, to stop up others, to deviate the line of the turnpike and what was to happen to the former route if the turnpike was diverted. The enabling and renewal Acts will also give details of the tolls to be levied and may provide local authorisation for the erection of toll houses, toll bars and mileposts. The enabling Act may cover more than one route and may also refer to other roads in the vicinity to which the turnpike connects. (‘Putting the Guidelines into Practice’, Section 2 Part 3, refers).

Concluding Comment

9.8, Turnpike roads were public carriageways, and many retained this status when the turnpike ceased to operate. Others which were not public roads prior to turnpiking reverted to their original status when the relevant Turnpike Act lapsed or when the Trust was wound up. Some were stopped up. The status of former turnpikes is not always readily apparent and often can be established, on a balance of probability, only by a careful study of all the relevant evidence. The physical evidence of the route on the ground may now bear no resemblance to the physical conditions pertaining before or during the time of the turnpike, and assumptions made on the basis of current physical characteristics should be treated with caution.

(June 2005)