li.3 CUTTIXG HEDGES BY SURVEYOPv. 



This 'was a substautial defect, and not one of form, and the snrveyor 

 was held liable in trespass for cutting the hedge, though (as the jury 

 found) he had not cut more thau the order required, and the owner had 

 not cut so much, and though the latter had acquiesced, as was contended, 

 in the goodness of the order by partially obeying it. The surveyor had 

 no power to act except in the owner's default, which could not take place 

 without a valid order. Lord Dcnman, C.J. said, " The attention of the 

 owner ought to be called to the manner in which he is required to do 

 what is ordered. It is not enough to call upon him to cause the hedge 

 to be cut, pruned, aud plashed, when he may well be in doubt what 

 those words mean, nor to direct him to remove the said obstruction 

 complained of, without pointing out Avhat the obstruction is, nor whether 

 it is specifically limited to the exclusion of the sun and wind." On the 

 second trial the verdict was for the plaintiff, and judgment being signed, 

 a writ of error was brought in the Exchequer Chamber, which awarded 

 a venire cle novo. It was held, inier alia, that the exclusion of the sun 

 and wind beiug one of the injuries complained of, the order was bad in 

 part as not stating the extent to which cutting, &c., should take place 

 with reference to that injury. And semlle to cut, &c., so as to prevent 

 the sun and wind from being excluded, would have been sufficient 

 without any more precise order as to the extent of cutting. And ^vr 

 Curiam, the order, though informal, is good in part, and gave authority 

 to the defendants to cut, pinine, and plash the hedges, so as to remove 

 the actual obstruction to the carriage-way, occasioned by the branches 

 of the thorns, bushes, and shrubs forming part thereof, but no further. 



On the new trial the jury had to inquire whether the defendants did 

 more than this, and assess the damages incurred by the plaintiff if they 

 did. In ex parte Whitemarsli the Court refused to grant a rule nisi for 

 a mandamus, to compel justices to issue their warrant to levy the 

 expenses of cutting a hedge, pursuant to this section, unless it appears 

 that a demand has been made of the expenses from the person sought to 

 be charged, and that the justices were informed of that demand. 



To justify a surveyor of hiyhivays {Evans v. Oaldey) in talcing dmvn a 

 fence, under the statute 5 & 6 ^Yilt. IV. c. 50, s. G9, two things must 

 concur — 1st, the fence must be within 15 feet of the centre of the road ; 

 aud 2nd, it must be on the road. Here the two places enclosed never 

 were part of the road, as no carriage ever did or could go along the steep 

 bank at the pound (where the road was 22 feet wide), or over the rough, 

 uneven ground at Nichol's (where the road was only 9 feet wide) ; and 

 MauU J. ruled that if these two places at which the fences were put up 

 had never l)een used l)y the public as a part of the road, the surveyor 

 had no right to pull down the fences because they were within 15 feet 



