The number of persons using a way or repairing it will not make it a public way if it be not common to all the king's subjects. The freehold 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. (1) 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 of be entitled to use the way, or persons who may may be obliged to repair it, will not make it a public way, if it be not common to all the king's subjects. Thus where the commissioners under an inclosure act set out a private road for the use of the inhabitants of nine parishes, directing the inhabitants of six of those parishes to keep it in repair, it was held that no indictment could be supported against those six parishes for not repairing 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. () Though a highway is said to be the king's, yet this must be understood as meaning that in every highway the king and his subjects may pass and repass at their pleasure; for the freehold and all the profits, as trees, mines, &c. belong to the lord of the soil, or to the owner of the lands on both sides the way. (m) The rights, however, of the owner of the soil will be subject to those of the public as to their exercise of their right of way in its full extent. Thus it seems to be established, that if a common highway is so foundrous and out of repair as to become impassable, or and Wye Railway Company, 2 B. & A. 648. road, is a highway: but if it lead only (a) By Abbott, C. J. in Wood v. (h) Rex v. Hatfield, Cas. temp. Hardw. 315. (i) Per Bayley, J. in Rex v. Severn (k) Rex v. Severn and Wye Railway Company, 2 B. & A. 646. (1) Rex v. Richards, 8 T. R. 634. (m) 3 Bac. Abr. Highways (B) 3 Com. Dig. Chemin (A. 2.) 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. (7) tion of it by the owner of the soil to the public use. 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 by a dedicain London, though not a thoroughfare, for eight years, without any impediment (such as a bar set across the street, and shut at pleasure, which would shew the limited right of the public,) it 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. (4) But the erection of a bar, to prevent the passing of carriages, rebuts the presumption of a dedication to the public; 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 CHAP. XXX. 2.] What a Public Highway. 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 the 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 of 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 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; and therefore it has been holden that if a water, which has been an ancient highway, by degrees change its course, and go over 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 justices of peace to widen, divert, and change, highways as they should This power was in aid of the common judge most convenient. law, and in order to render the changing of highways less troublesome and expensive. 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 (a) Rex v. St. Benedict, 4 B. & A. 447. And see the case post, 321, as to the opinion of Bayley, J., that though there be a dedication of the road by the owner of the soil, and the public use it, the parish is not bound to repair, unless there has been some act of acquiescence or adoption on the part of the parish. (u) 1 Hawk. P. C. c. 76. s. 3. The writ of ad quod damnum is an original writ issuing out of, and returnable into the chancery, directed to the (w) 1 Hawk. P. C. c. 76. s. 4. A highway may be changed by act of God. 13 G. 3. c. 78. justices to gave power to widen and change high ways. This power of justices to or der roads to be widened ex tends to roads repairable ratione tenure. 13 G. 3. c. 78. in part by 55 G. 3. c. 68. 66 agree with the owners of the ground wanted for such purposes, for their recompence; and provides, that if they cannot agree, the same may be assessed by a jury at the quarter sessions: and, after directing the proceedings in such event, it enacts that, "upon payment or tender of the money so to be awarded and assessed, to the person or persons, bodies politic or corporate, entitled to "receive the same, or leaving it in the hands of the clerk of the 66 peace of such limit, in case such person, &c. cannot be found, or "shall refuse to accept the same, for the use of the owner of, or "others interested in the said ground, the interest of the said per66 son, &c. in the said ground shall be for ever divested out of "them; and the said ground, after such agreement or verdict as "aforesaid, shall be esteemed and taken to be a public highway, to "all intents and purposes whatsoever." (y). When such new highway is made, the old highway is to be stopped up, and the land thereof sold by the surveyor in the manner directed in the act but if such old road shall lead to any place which cannot, in the opinion of the justices, be accommodated with a convenient way or passage from the new highway, then the old highway is only to be sold, subject to the right of way and passage to such place. (z) It has been decided, that the power thus given to two justices to order any highway to be widened extends to roads repairable ratione tenure; and that upon disobedience to such order the party may either be proceeded against summarily under the statute, or by an indictment as for an offence at common law. (a) The nineteenth section of this statute then enacted, that highs. 19. repealed ways, bridleways, and footways, might be turned by the justices, at their special sessions, with the consent of the owners of the 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 Geo. 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 unnecessary highways, bridleways, and footways. 55 G. 3. c. 68. s. 2. Justices may, in certain cases, with the consent of the The second section of the statute 55 Geo. 3. then enacts, that when it shall appear, 66 upon the view of any two or more of the "said justices of the peace, that any public highway, or public "bridleway or footway, may be diverted, so as to make the same 66 nearer or more commodious to the public, and the owner or owners of the lands and grounds through which such new highway, bridleway, or footway so proposed to be made, shall convert, &c. high-sent thereto, (w) by writing under his or their hand and seal, or owners of the lands, by order at a special sessions, di ways, bridle ways, and footways. 66 (y) S. 16. There is a saving to the owners of the ground of mines, timber, &c. (z) Sect. 17. (a) 1 Hawk. P. C. c. 76. s. 57. Rex v. Balme, Cowp. 648. (w) There must be a consent of the person who is the owner of the estate |