46. A Bill concerning Public Roads
Be it enacted by the General Assembly, that where any person or persons shall make application, to any county court, to have a new road opened, or a former one altered, within their county, for the convenience of travelling to their county court-house, to any public ware-house, landing, ferry, mill, lead or iron works, or to the seat of government, they shall appoint three or more fit and able persons, to be sworn before a Justice of the Peace, to view the ground along which such road is proposed to be conducted, and to report to them truly and impartially, the conveniencies and inconveniencies which will result, as well to individuals, as to the public, if such way shall be opened; and where the application is to alter a former road, they shall also view the former road, and report, in like manner, the comparative conveniencies and inconveniencies thereof.
Upon the return of the said viewers, if the court shall be of opinion that the road applied for will be convenient, they shall order summonses to be issued to the proprietors and tenants of the lands through which the same is proposed to be conducted, if they be found within the county, and if not, then to their agents therein, if any they have, to shew cause why such road should not be opened; upon the return of which summons, if any proprietor or tenant, so desire, the said court shall order their clerk to issue a writ, in the nature of a writ of ad quod damnum, to be directed to the sheriff, commanding him to summon and empannel twelve able and discreet freeholders of the vicinage, no ways related to any party, to meet at some certain place, on the grounds through which the said road is proposed to be conducted, and on a certain day, to be named by the court, and inserted in the said writ, of which notice shall be given by the sheriff to the said proprietors or tenants, or their agents, as before directed, if they were not present, in court, at the time of the order made: Which freeholders taking nothing (on pain of being discharged from the inquest and immediately imprisoned by the sheriff) either of meat or drink, from any person whatever, from the time they shall come to the said place until their inquest sealed shall be charged by the said sheriff impartially, and to the best of their skill and judgment to view the lands through which the said road is proposed to be conducted, and say to what damage it will be of to the several and respective proprietors and tenants who desired such writ, taking into estimation, as well the use of the lands, to be laid open for such road, as the additional fencing which will thereby be rendered necessary; and if the said inquest cannot be completed in one day, the sheriff shall adjourn the said jurors, from day to day, until the same be completed. Which inquest, sealed by the said jurors, together with the writ, shall be returned to the court, who thereupon, as well as upon other evidence, shall proceed to consider whether all circumstances weighed, it be better that the said road shall be opened; and if they be of opinion that the same shall be opened, they shall levy on their county, at their next levy to be laid, the damages so found, and the costs of the inquest, and direct them to be paid to those respectively entitled thereto. But if they shall be of opinion the said road ought not to be opened, the costs of such inquest shall be adjudged against the party applying for the said road. But it shall not be lawful for any court to order a road to be opened through any lot of land, in any town, without the consent of the owner and tenant thereof.
The several courts shall also divide all the public roads into precincts, and as often as it shall be necessary, appoint a surveyor over every precinct, whose duty it shall be to superintend the road in his precinct, and see that the same be cleared and kept in good repair; which surveyor shall continue in office until another shall be appointed, by the said court, in his stead.
All male labouring persons of the age of sixteen years or more, except such as are masters of two or more male labouring slaves of the age of sixteen years or more, shall be appointed by the court, to work on some public road; for every person so appointed, who, when required by the surveyor placed over him, shall, without legal cause or disability, fail to attend with proper tools for clearing the road, or shall refuse to work when there, or to find some other person equally able to work in his room, the sum of 1 for every day’s offence, shall be paid by himself, if he be a freeman of full age; if an infant, then by his parent, guardian, or master, and if a slave or servant, then by his overseer, if he be under one, or otherwise by his master.
The clerk of every county court, shall, within ten days after the appointment of any surveyor of a road, deliver a copy of the order to the sheriff of the county under the penalty of fifteen shillings, and the sheriff, within fifteen days after the receipt of such order, shall deliver the same to the surveyor under the penalty of fifteen shillings. And each clerk shall moreover, once in every year, fix up, in the court-house, a list of the names and precincts of all the surveyors of roads in his county, under the penalty of fifty shillings for every neglect.
Every surveyor of a road shall cause the same to be constantly kept well cleared and smoothed, and thirty feet wide at the least, and at the fork or crossing of every public road shall cause to be erected and kept in repair, from time to time, a stone, or otherwise an index on a post or tree, with plain inscriptions thereon, in large letters, directing to the most noted place to which each of the said roads shall lead, and may take stone or wood, for that purpose, from any adjoining land: And for the expence of setting up and inscribing such stones, posts or indexes, and keeping them in repair, the surveyor shall be reimbursed by the county court in their next succeeding levy; and where bridges and causeys are necessary, the surveyor shall cause them to be made twelve feet broad at the least, convenient and safe, and shall keep the same in repair; and for that purpose may cut and take, from the lands of any person adjoining, such and so much timber, earth, or stone, as may be necessary; the same being first viewed and valued by two honest house-keepers appointed and sworn, for that purpose, by a Justice of Peace, unless the owner shall freely give such timber, stone or earth for that use; but where a road leads through a city or town, the surveyor shall not take any timber, stone or earth, from any lot within the town, without the permission of the owner, but shall take the same from the lands nigh or adjacent to the said town, where it will do the least injury to the proprietor; and where the assistance of wheel carriages is necessary for making or repairing any causey, any Justice of Peace may issue his warrant, under his hand and seal, for impowering the surveyor to impress such necessary carriages, draught horses, or oxen, with their gear and driver belonging to any person, who, or their servants or slaves, are appointed to work on the road, and appointing two honest house-keepers, who, being sworn, shall value, by the day, the use of such carriages, draught horses, oxen and driver: Which valuation, with a certificate from the surveyor how many days the said things were imployed in the work, shall intitle the owner to an allowance for the same in the next county levy. And in the like manner shall the owner of timber, stone or earth taken for bridges or causeys, be intitled to the valuation thereof in the next county levy, upon a certificate from the two house-keepers who value the same. Every surveyor of a road, who fails to do his duty as aforesaid, shall forfeit fifteen shillings for every offence.
Where a bridge or causey shall be necessary, and the surveyor with his assistants cannot make or maintain the same, the court of the county are impowered and required to contract for the building and repairing such bridge or causey, and to levy the charge thereof in their county levy. And where such bridge or causey shall be necessary from one county to another, the court of each county shall join in the agreement for building and repairing the same, and the charge shall be defrayed by both counties, in proportion to the public tax or assessment paid by each. Upon every such contract or agreement, bond and security shall be given by the undertaker, payable to the Governor, and his successors, for the use of the county, or counties, as the case shall be, with condition for performing the same; and may be prosecuted, at the costs, and for the benefit of the county or counties, or any person sustaining a loss by the breach thereof, as often as it shall happen, until the whole penalty of the bond shall be paid. And all such contracts, made by county courts, or others appointed by them, shall be available and binding upon the Justices and their successors, so as to intitle the undertaker to his stipulated reward in the county levy; or to a recovery thereof, with costs, by action of debt against the Justices refusing to levy the same.
When the Justices of one county shall judge a bridge or causey over any place, between them and another county, to be necessary, they shall notify the same to the Justices of such other county, and require them to appoint three persons, to meet at the said place, on a certain day, to be named by the court requiring the same, to confer with three others, to be appointed by the said requiring court, and agree on the manner and condition of executing the same: Which six persons, or so many of them as meet, being not fewer than three, shall have power to agree on the manner and conditions of doing the said work, and to see that the same be done: And if the court so required shall fail to appoint persons to act on their behalf, or to do what on their part should be done towards executing and paying for the said work, the Justices of the court which made the requisition shall apply to the General Court for a writ of mandamus, to be directed to the Justices of the other court, commanding them to do what on their part they ought to have done and have failed to do, or to signify to them cause to the contrary thereof; upon the return of which writ, the General Court, if they shall be of opinion that the work is unnecessary, or that other sufficient cause is returned, shall quash the writ, or if they think otherwise, shall cause such further proceedings to be had as are usual in other cases of mandamus issuing from the said court: And the like method of proceeding, by way of mandamus, shall be used where the Justices of one county shall think it necessary to open a road, to their county line, for the convenience of passing to some public place in another, and the Justices of such other shall refuse to continue the road through their county.
If any person shall fell a tree into a public road, or into any stream of water whereon there shall be any public bridge, and shall not remove the same within forty eight hours, or shall kill, or fell, a tree within the distance of fifteen2 feet from the road, or shall cut, pull up, destroy, or deface, any stone or post erected for the direction of travellers, or the indexes, or inscriptions thereon, it shall be deemed a nuisance.
Every free man, of full age, so offending, or the parent, master or owner of every child, apprentice, servant or slave, so offending, with his or her knowledge, shall forfeit and pay ten pounds for every offence. And where any fence shall be made across a public road, the owner or tenant of the land, shall pay ten shillings for every twenty four hours the same shall be continued.
The owner or occupier of every dam, over which a public road passes, shall constantly keep such dam in repair, at least twelve feet wide, at the top, through the whole length thereof, and shall keep and maintain a bridge of like breadth, with strong rails on each side thereof, over the pier head, flood-gates, or any waste cut through or round the dam, under the penalty of ten shillings for every twenty four hours failure: But where a milldam shall be carried away, or destroyed, by tempest or accident, the owner or occupier thereof shall not be liable to the said penalties, from thenceforth, until one month after such mill shall have been so repaired as to have ground one bushel of grain for toll.
All the penalties in this act, not otherwise directed, shall be one moiety to the informer, and the other to the use of the county, recoverable, with costs, on warrant, petition, or action, as the case may be. Any Justice, who upon his own view, shall discover a road, bridge, causey or milldam, as aforesaid, out of repair, shall issue a warrant against the surveyor or other delinquent; and if no reasonable excuse be made for such default, may give judgment for the penalty, and costs, not exceeding twenty five shillings; or such offenders may be presented by the grand juries; in all which cases of conviction, on view of a Justice or presentment, or on private informations to Justices where there shall be no evidence to convict the offender but the informers own oath, the whole penalties shall be to the use of the county towards lessening the levy thereof, and shall be annually collected and accounted for by the sheriff in the same manner as county levies; and to enable the sheriff to make such collection, every Justice immediately, on conviction of any offender where the penalty is to be to the county, shall certify the same to the clerk of his county court, who shall yearly, before the first day of March, deliver to the sheriff a list of all the offenders so certified, and of all others convicted in court, within one year preceeding of any offence against this act.
Provided that prosecutions for any offence herein mentioned, shall be commenced within six months after the offence committed, and not after.3
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 33–5. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 174–80. This Bill was prepared by TJ; see Document iv, Part 5 in the present series.
It is possible that TJ intended, and may indeed have prepared, a road bill aimed at a reform of existing methods, for he mentioned such a bill in Notes on Virginia. Concerning this, Madison wrote TJ on 19 June 1786: “I observe that in your analysis of the Revisal, p. 251 of your notes, a Bill is mentioned for consigning our roads to undertakers, instead of the present vicious plan of repairing them. No such provision is comprized in the Road bill reported and printed [i.e., Bill No. 46]. If it be any where in existence I wish you could put me on the means of getting a sight of it. I conceive such a reform to be essential and that the Legislature would adopt it, if presented in a well digested form.” But no MS of such a road bill has been found.
Bill was presented by Madison 31 Oct. 1785, passed by House 30 Nov., and approved by Senate 5 Jan. 1786 (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 51, 65, 129, 144). Text of Act as adopted agrees with Bill as proposed save as indicated below. This Act was essentially a restatement and modification of the 1748 Act concerning highways, mill dams, and bridges (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, 64–9).
1. The Act reads: “seven shillings and six pence.”
2. The Act reads: “fifty”; the Act of 1748 read “sixty.”
3. The Act has an additional clause putting it into effect 1 Jan. 1787.