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said, he had great difficulty in conceiving that there can be a public highway which is not a thoroughfare, because the public at large cannot well be in the use of it. (a)
It is not to be understood by the term cart-way, that the way is to be used only with the particular vehicle called a cart; for if it is a common highway for carriages, it is a highway for all manner of things. (h) Many public highways however, as a footway, are to be used only in a particular mode. Thus, though a towing path is to be used only by horses employed in towing vessels, yet it is a common highway for that purpose. (i) And where a railway or tram road was made under the authority of an act of parliament, by which the proprietors were incorporated, and by which it was provided that the public should have the beneficial enjoyment of it, such rail-way or tram road was taken to be a public
highway. (K) The number The number of persons who may be entitled to use the way, or of persons using a way may be obliged to repair it, will not make it a public way, if it be or repairing it not common to all the king's subjects. Thus where the commiswill not make
nake sioners under an inclosure act set out a private road for the use of it a public way if it be the inhabitants of nine parishes, directing the inhabitants of six not common of those parishes to keep it in repair, it was held that no indictto all the king's sub
ment could be supported against those six parishes for not repairjects.
ing it; because it did not concern the public. It was argued, amongst other reasons in support of the indictment, that there was no other remedy; for that there were not less than 250 persons who were liable to the repair of the road, and that the difficulty of suing so many persons together was almost insuperable. But the court said that, however convenient it might be that the defendants should be indicted, there was no legal ground on which this indictment could be supported; that the known rule was that those matters only which concerned the public were the subject of an indictment; that the road in question, being described to be a private road, did not concern the public, nor was of a public nature, but merely concerned the individuals who had a right to use it; and that the question was not varied by the circumstance that many individuals were liable to repair, or that many others
were entitled to the benefit of this road. (1) The freehold
Though a highway is said to be the king's, yet this must be and the profits (as mines, understood as meaning that in every highway the king and his trees, &c.) of subjects may pass and repass at their pleasure; for the freehold å highway be- and all the profits, as trees, mines, &c. belong to the lord of the long to the lord of the
soil, or to the owner of the lands on both sides the way. (m) The
(K) Rex v. Severn and Wye Rail.
(1) Rex v. Richards, 8 T. R. 634. (h) Rex v. Hatfield, Cas. temp. (m) 3 Bac. Abr. Highways (B) 3 Com. Hardw. 315.
Dig. Chemin (A. 2.) ..(i) Per Bayley, J. in Rex v. Severn
even dangerous to be travelled over, or incommodious, the public have a right to go upon the adjacent ground; and that it makes no difference whether such ground be sown with grain or not. (k) But it is a right of passage only which is given up by the owner of the soil, even where the way is dedicated by him to the public. Thus where, in an action of trespass, a case was made that the place where the supposed trespass was committed was formerly the property of the plaintiff, who some years ago had built a street upon it, which had ever since been used as a highway, that the defendant had lands contiguous, parted only by a ditch, over which ditch he had laid a bridge, the end of which rested on the highway; and it was insisted, for the defendant, that by the plaintiff's having made this a street, it was a dedication of it to the public, and that he could not therefore sue as for a trespass on his private property; the court held that though it was a dedication to the public, so far as the public had occasion for it, which was only for a right of passage, it never was understood to be a transfer of the absolute property in the soil. (1)
A way may become a public highway by a dedication of it, by A way may bethe owner of the soil, to the public use. Thus where the owners come public of the soil suffered the public to have the free passage of a street
tion of it by in London, though not a thoroughfare, for eight years, without the owner of any impediment (such as a bar set across the street, and shut at the soil to the pleasure, which would shew the limited right of the public,) it public use. was held a sufficient time for presuming a dereliction of the way to the public. (m) And though if the land had been under lease during that time, or even for a much longer period, the acquiescence of the tenant would not have bound the landlord, without evidence of his knowledge; (n) yet it was held, that where a way had been used by the public for a great number of years over a close in the hands of a succession of tenants, the privity of the landlord, and a dedication by him to the public, might be presumed, although he was never in the actual possession of the close himself, and was not proved to have been near the spot. (0) And it was also held in this case that where a way has been so used, notice of the fact to the steward is notice to the landlord. (p) In a case where it appeared that a passage, leading from one part to another of a public street, (though by a very circuitous route) made originally for private convenience, had been open to the public for a great number of years, without any bar or chain across it, and without any interruption having been given to persons passing through it, it was ruled, that this must be considered as a way dedicated to the public. (9) But the erection of a bar, to prevent the passing of carriages, rebuts the presumption of a dedication to the public;
(k) 1 Roll. Abr. 390 (A) pl. J. and But some observations were made upon (B) pl. 1. Absor v. French, 2 Show. this doctrine; and it was somewhat 28. Taylor v. Whitehead, Dougl. 749. shaken in a late case of Woodyer v.
(2) Sir John Lade v. Shepherd, 2 Hadden, 5 Taunt. 125. Post.310, n. (1). Str. 1004.
(n) Trustees of the Rugby Charity (m) Trustees of the Rugby Charity v. Merryweather, 11 East. 375. Wood v. Merryweather, 11 East. 375. in the v. Veal, 310, note (a). note. Lord Kenyon also said, “ In a (o) Rex v. Barr, 4 Campb. 16. . “ great case, which was much con- (p) Id. ibid. “ tested, six years was held sufficient.” (q) Rex v. Lloyd, i Campb. 260.
although the bar may have been long broken down: and though such a bar do not impede the passing of persons on foot, no public right to a footway is acquired, as there can be no partial abandonment to the public. (r) And it has been ruled that the owner of the soil may replace the bar after it has been taken away for twelve years. (s) It must be observed, however, that in every case the facts must be such as are sufficient to shew that the owner meant to give the public a right of way over his soil, before a dedication by him will be presumed. Thus in a late case, where the plaintiff erected a street, leading out of a highway across his own close, and terminating at the edge of the defendant's adjoining close, which was separated by the defendant's fence from the end of the street for twenty-one years, during nineteen of which the houses were completed, and the street publicly watched, cleansed, and lighted, and both footways, and half the horseway paved, at the expense of the inhabitants, it was held, that this street was not so dedicated to the public, that the defendant, pulling down his wall, might enter it at the end adjoining to his land, and use it as a highway. (t) And nothing done by a lessee without the consent of the owner of the fee will give a right of way to the public. Thus in a late case of an action of trespass, and a justification under a public right of way, the facts were, that the place in question, which was not a thoroughfare, had been under lease from 1719 to 1818; but had been used by the public, as far back as living memory could go; and had been lighted, paved, and watched, under an act of Parliament, in which it was mentioned as one of the streets of Westminster : and that the plaintiff, who inclosed it after 1818, had previously lived for 24 years in its neighbourhood. But it was held, that even under these circumstances the jury were well justified in finding that there was no public right of way, inasmuch as there could be no dedication to the public by the tenants for ninety-nine years, nor by any one, except the owner of the fee. (a) And where the owner of the soil has been under a compulsory obligation to permit a qualified passage over his soil, the circumstance of a general passage having been used by the public for many years will not lead to the conclusion of a dedication to the public. Thus where a road was set out by commissioners under a local act, and certain persons only were by the act to use it, but in fact it had been used by the
(r) Roberts v. Karr, cor. Heath, J. " that eight years' acquiescence afterKingston Lent Ass. 1808. i Campb. “wards were sufficient: he says that 261, note (b).
“ in another case, six years were held to (8) Lethbridge v. Winter, Somerset “ be enough, not naming the case ;-if Spr. Assiz. 1808. cor. Marshal, Serjt. I “six, why not one? Why not half a Campb. 263. in the note.
“ year? It would then become neces(1) Woodyer and another v. Hadden, "sary for every reversioner, coming 5 Taunt. 125. Chambre, J. dissent. “ into possession of his estate after a In this case Mansfield, C. J. said, “ No “lease, instantly to put up fences all “ one can respect Lord Kenyon more“ round his property, to prevent de“ than I do; but I always thought, as “ dication.” And see Rex v. Hudson, “ to the Rugby case, (ante, 309, note 2 Str. 909. “ m.) there was reason to doubt. I (a) Wood v. Veal, 5 Barn. & Ald. “ never could discover when the dedi- 454. The case was decided independ“ cation began : he says that during ently of the fact of there not being “ the lease there was no dedication, but a thoroughfare.
public for nearly 17 years, it was held, that this was not sufficient evidence of a dedication to the public. (a)
By the common law an ancient highway cannot be changed An ancient without thc king's licence first obtained upon a writ of ad quod highway may damnum, and an inquisition thereon found that such a change will a writ of ad not be prejudicial to the public: and it is said that if one change quod damnum. a highway without such authority, he may stop the new way whenever he pleases; and it seems that the king's subjects have not such an interest in such new way as will make good a general justification of their going in it as in a common highway; but that in an action of trespass, brought by the owner of the land, against those who shall go over it, they ought to shew specially, by way of excuse, how the old way was obstructed, and the new one set out. And it is also said, that the inhabitants are not bound to keep watch in such new way, or to make amends for a robbery therein committed, or to repair it. (u)
It is certain that a highway may be changed by the act of God; A highway and therefore it has been holden that if a water, which has been may be
changed by an ancient highway, by degrees change its course, and go over act of God. different ground from that whereon it used to run, yet the highway continues in the new channel as it previously was in the old. (w)
By the statute 13 Geo. 3. c. 78. a power was given to the jus- 13 G. 3. c. 78. tices of peace to widen, divert, and change, highways as they should gave power
justices to judge inost convenient. This power was in aid of the common widen and law, and in order to render the changing of highways less trouble- change highsome and expensive.
ways. This statute enacts, that the surveyor shall make every public cartway, leading to any market town, twenty feet wide at the least; and every public horse-way or drift-way, eight feet wide at the least, if the ground between the fences inclosing the same will admit thereof. (x) And that where it shall appear, upon the view of two justices, that any highway between the fences thereof is not of sufficient breadth, and may be conveniently widened and enlarged, or that the same cannot be conveniently enlarged and made commodious for travellers, without diverting and turning the same, the said justices shall order such highway to be widened and enlarged, or diverted and turned, in such manner as they shall think fit, so that the said highway, when enlarged and diverted, shall not exceed thirty feet in breadth; and that neither of the said powers do extend to pull down any house or building, or to take away the ground of any garden, park, paddock, court, or yard. The statute then proceeds to empower the surveyors to
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(a) Rex v. St. Benedict, 4 B. & A. into the chancery, directed to the 447. And see the case post, 321, as to sheriff, to inquire by a jury whether the opinion of Bayley, J., that though such change will be detrimental to the there be a dedication of the road by public; which inquisition being a prothe owner of the soil, and the public ceeding only ex parte, is in its own use it, the parish is not bound to re- nature traversable; and heretofore the pair, unless there bas been some act party grieved might be heard against of acquiescence or adoption on the it before the chancellor. 2 Burn. Just. part of the parish.
Highways, s. 11. (u) i Hawk. P. C. c. 76. s. 3. The (w) i Hawk. P. C. c. 76. s. 4. writ of ad quod damnum is an original (x) I Hawk. P. C. c. 76. s. 15. wril issuing out of, and returnable
agree with the owners of the ground wanted for such purposes,
age to such place. (2) This power of It has been decided, that the power thus given to two justices justices to or- to order any highway to be widened extends to roads repairable der roads to be widened ex ratione tenure; and that upon disobedience to such order the tends to roads party may either be proceeded against summarily under the starepairable ra- tute, or by an indictment as for an offence at common law. (a) tione tenure.
The nineteenth section of this statute then enacted, that high13 G.3. c. 78. 3. 19. repealed ways, bridleways, and footways, might be turned by the justices, in part by 55 at their special sessions, with the consent of the owners of the G. 3. c. 68.
lands, so as to make them nearer and more convenient to the public; and provided for an appeal to the quarter sessions by persons injured by any such proceeding, or by the inclosure of any road by an inquisition upon a writ of ad quod damnum ; but this part of the section is repealed by a recent statute, 55 Gev. 3. c. 68. which recites, that it was expedient that more public notice should be given of any order or proceeding for diverting or stopping any such ways; and also that a greater facility of appeal to the quarter sessions against such order or proceeding should be given to any person aggrieved thereby: and also that the justices of peace should have power, under certain regulations, to stop up unneces
sary highways, bridleways, and footways. 55 G. 3. c. 68. The second section of the statute 55 Geo. 3. then enacts, that
Justices when it shall appear, “ upon the view of any two or more of the may, in certain cases, with the 6 said justices of the peace, that any public highway, or public consent of the “ bridleway or footway, may be diverted, so as to make the same
the “ nearer or more commodious to the public, and the owner or lands, by order at a special “ owners of the lands and grounds through which such new highsessions, di- « way, bridleway, or footway so proposed to be made, shall convert, &c. high- 66 sent thereto, (w) by writing under his or their hand and seal, or ways, bridleways, and footways.
(y) S. 16. There is a saving to the (a) 1 Hawk. P. C. c. 76. s. 57. Rex owners of the ground of mines, timber, v. Balme, Cowp. 648. &c.
(w) There must be a consent of the (2) Sect. 17.
person who is the owner of the estate