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Rights of Way. way: it was held, that on these pleadings the defendants were entitled to a
verdict on proving a right of footway over any part of the close, and were not bound to prove a right of way over the spot where the posts and bars stood. (Webber v. Sparkes, 10 Mees. & W. 485; 12 Law J., N. S. 41. See Wood v. Wedgewood, 1 C. B. 273, and Bracegirdle v. Peacock, 8 Q. B. 174.)
Statutory penalties are imposed on persons committing specified nuisances
on a highway by 5 & 6 Will. 4, c. 50, s. 72. Remedy for dis- Where a plaintiff suffers a particular injury from the obstruction of a turbance of public public way, a bill for an injunction will lie, and the Attorney-General need ways in equity.
not be a party. (Cook v. Mayor of Bath, L. R., 6 Eq. 177.) The vestry of a parish cannot sustain a suit to restrain the infringement of a public right of way, except as relators on an information by the Attorney-General. (l'estry of Bermondsey v. Brown, L. R., 1 Eq. 204.) The disturbance of the pavement of a town by an unincorporated gas company, without lawful authority, for the purpose of laying down gas pipes, is not a nuisance so serious and important that a court of equity will interfere by injunction to prevent it. (Att.-Gen. v. Cambridge Consumers Gas Company, L. R., 4 Ch. 71.)
Since the act 25 & 26 Vict. c. 42, the Court of Chancery refused an injunction in respect of a public footway, and made a reference to chambers to ascertain the amount of damages. (Wedmore v. Mayor, &c. of Bristol, 7 L. T., N. S. 459; 11 W. R. 136.)
As to the law of highways, see further, Shelford's Law of Highways,
3rd ed. Ownership of soil The freehold of the highway is in the owner of the freehold of the soil, in highway. although the public may pass and repass at their pleasure. (2 Inst. 705;
Sir John Lade v. Shepherd, 2 Str. 1044.) The owner of the soil is entitled to all profits, trees and mines upon or under the highway. (1 Roll. Abr. 392; 1 Burr. 143.) In the 82nd section of the stat. 5 & 6 Will. 4, c. 50, there is a saving of mines to the owner of lands taken for widening narrow roads. The soil in turnpike roads does not vest in the trustees thereof, who have only the control of the highway, without a special clause for that purpose. (Darison v. Gill, 1 East, 69. See also Rex v. Mersey Navigation, 9 B. & C. 95; Rex v. Thomas, Id. 114.) The owner of land adjoining only one side of the highway may maintain an action of trespass against one who suffers his cattle to depasture along the highway (Doraston v Payne, 2 H. Bl. 527; Sterens v. Whistler, 11 East, 51); or an action of ejectment for land over which there is a public right of way. (Goodtitle v. Atker, 1 Burr. 133; Doe v. Wilkinson, 3 B. & C. 413. And see Scales v. Pickering, 4 Bing. 448.)
The principle of the ownership of the soil being in the owner of the adjoining land is carried so far that a man may be a trespasser on land where the public have a right to pass and repass, where he is on the highway, not for that but for other and different purposes. Though the public have a right of passage over land which is a highway, they have no right to use it except as a highway. (See Dovaston v. Payne, 2 H. Bl. 527; Reg. v. Pratt, 24 L. J., M. C. 113.) To constitute the offence of trespassing upon land in search or pursuit of game, within section 30 of 1 & 2 Will. 4, c. 32, there must be a personal entering or being on land, but such land may be a highway. The defendant whilst on a highway carrying a gun and accompanied by a dog, sent the dog into a cover on one side of the highway, after which a pheasant rose and flew across the highway, and the defendant then being on the highway fired at the pheasant. B. was the lord of the manor and owner of the land on each side of the highway; the land on one side was let to a yearly tenant, B. reserving the right of entry for the purpose of killing game : it was held, that the defendant was properly convicted, under section 30, of committing a trespass by being upon land in the possession and occupation of B., and there in search of game. (Reg.v. Pratt, 4 El. & Bl. 860; 1 Dear., C. C. R. 502; 1 Jur., N. S. 681; 24 L. J., M. C. 113.)
The owner who dedicates to public use as a highway a portion of his land parts with no other right than a right of passage to the public, and may exercise all other rights of ownership not inconsistent with such dedi- Rights of Way. cation; and the appropriation, made to and adopted by the public, of a part of the street to one kind of passage and another part to another, does not deprive him at common law of any rights as owner of the land which are not inconsistent with the right of passage by the public. (St. Mary, Newington v. Jacobs, L. R., 7 Q. B. 47.)
The right of the owner of land abatting on a highway to the soil of the highway ad medium filum viæ is founded on a presumption of law which exists only in the absence of evidence of ownership. (Beckett v. Corporation of Leeds, L. R., 7 Ch. 421.) The presumption applies equally to a private as to a public road. (Holmes v. Bellingham, 7 C. B., N. S. 329; 6 Jur., N. S. 531; 29 L. J., M. C. 132.)
Where the boundary of property is described as abutting upon a highway, such boundary must be taken (in the absence of evidence the other way) to extend to the middle of such highway. (R. v. Strand Board, 4 B. & S. 526; 12 W. R. 828.)
The soil in roads set out under an inclosure act does not by presumption of law belong to the adjoining owners. (Rex v. Edmonton, i M. & Rob. 24; Rex v. Wright, 3 B. & Ad. 681.) Where the herbage of a road becomes vested by the General Inclosure Act, 41 Geo. 3, c. 109, s. 11, in the proprietors of allotments on each side, no presumption arises that the soil itself belongs to such proprietor. (Rex v. Hatfield, 4 Ad. & Ell. 156.) The ownership of the soil in a road set out under an inclosure act was held to remain in the lord of the manor, for that portion of the soil only is taken from him for which he received compensation and which is allotted to others. (Per Parke, B., Poole v. Huskisson, 11 Mees. & W. 827. See Reg. v. Tything, East Mark, 12 Jur. 332.)
The General Turnpike Act, 3 Geo. 4, c. 126, does not alter the presump- When soil in tion of law that the soil is vested in the owner of the adjacent land to the highway passes centre of the highway, nor vest the soil of turnpike roads in the trustees by conveyance. thereof. If the lord of the manor and owner of close A., adjacent to one side of a highway, and also of close B., adjacent to the opposite side, convey both in one deed to one vendee, the soil of the road passes to the vendee, although the acreage of each of the closes comprised within their fences respectively be stated in the conveyances, unless there be sufficient in the deed to show, as by marks on the indorsed map or plan of the property, that the soil of the road was intended to remain in the vendor. (Marquis of Salisbury v. Great Northern Railway Company, 5 C. B., N. S. 174; 5 Jur., N. S. 70; 28 L. J., C. P. 40.)
The ordinary rule of law is, that in the case of the sale of land adjoining a highway the soil of the highway, ad medium filum viæ, passes by the conveyance, and the fact that the land is set forth by admeasurement and referred to in a plan, which includes no portion of the highway, does not prevent the operation of such rule. (Berridge v. Ward, 10 C. B., N. S. 400; 7 Jur., N. S. 876.)
Strips of land lying along a highway, even though indirectly connected with parts of a waste, may well pass under a conveyance of the adjacent inclosure, though the deed purports to state the quantity of acres within the fences that were therein conveyed, if the words "more or less" were added. (Dendy v. Simpson, 7 Jur., N. S. 1058; 9 W. R. 743, Exch. Cham.: Simpson v. Dendy, 6 Jur., N. S. 1197; 8 C. B., N. S. 433.)
The presumption at law is, that waste land adjoining a road belongs to Ownership of the owner of the soil of the adjoining inclosed land, and not to the lord of waste adjoining the manor (Steel v. Prickett, 2 Stark. 463; Scoones v. Morrell, 1 Beav. highways. 251); whether such owner be a freeholder, copyholder, or leaseholder. (Doc d. Pring v. Pearsey, 7 B. & C. 304; 9 D. & R. 908.) The right to land adjoining either side of the road extends to the centre. (Cooke v: Green, 11 Price, 736.) The ground of this presumption is, that the road has been granted by the owners of the adjoining land, and that their ownership, therefore, extended to the middle of the road. Where the lord of a manor has conveyed land to A. and afterwards other land to B., and it appears that a narrow strip of land passed by one or other of the conveyances, but it is doubtful by which, no presumption arises in favour of A. from the
Rights of Way. fact that the strip of land lies between a highway and land indisputably
comprised in the conveyance to A. (White v. Hill, 6 Q. B. 787.)
The presumption of law, that slips of waste lands adjoining a highway belong to the owner of the adjoining inclosed land, may be rebutted by evidence tending to raise a contrary presumption. In an action by a rector, to recover a slip of land lying between the glebe and a highway, in order to rebut the presumption of ownership arising from contiguity, it was proved that the defendant and those under whom he claimed had occupied the spot in question for more than forty years, and during four or five successive incumbencies, without interruption; and that there were slips of land adjoining the piece in dispute, at either end, also lying between the glebe and the road, which were occupied adversely to the rector: it was held, that the whole case on both sides resting on presumption, it was properly left to the jury to say whether or not the evidence given on the defendant's part rebutted the presumption of law on which the plaintiff's case rested. (Doe d. Harrison v. Hampson, 4 Com. B. 267.)
The presumptive right of the owner of the adjoining land may be repelled by evidence of acts of ownership by the lord of the manor. (Anon. Lofft, 358.) Though primâ facie the presumption is, that a strip of land lying between a highway and the adjoining close belongs to the owner of the close, as the presumption also is, that the highway itself ad medium filum viæ does, such presumption is confined to that extent; for if the narrow strip be contiguous to, or communicate with, open commons or larger portions of land, the presumption is either done away, or considerably narrowed; for the evidence of ownership, which applies to the larger portions, applies also to the narrow strip which communicates with them.” (Grose v. West, 3 Taunt. 39; Headlam v. Hedley, Holt, N. P. C. 463.). Upon a question whether a piece of waste land, between a highway and inclosures, belonged to the plaintiff, the owner of the adjoining inclosure, or to the lord of the manor, it was held, that the lord might give evidence of grants by him of the waste between the road and the other inclosures of other persons at a distance from the spot claimed by the plaintiff, provided such evidence were confined to the road which passed by the spot claimed by the plaintiff. (Doe d. Barrett v. Kemp, 7 Bing. 332; 5 Mann. & R. 173; 2 Bing. N. S. 102. See Stanley v. White, 14 East, 332.)
By an inclosure act waste lands of a manor were to be allotted in certain proportions. A part of the waste land was not portioned out in the award of the commissioners: it was held, that the freehold of such land remained in the lord of the manor, as there was nothing in the act to transfer such freehold. (Packe v. Mee, 9 W. R. 336; Enart v. Graham, 5 Jur., N. S. 773.)
In a case where it was contended that balks are by presumption of law the property of the owner of the adjoining soil, Taunton, J., said, “Is there such a presumption? the common instance of a presumption of that kind is in the case of roads. Balks are strips of land lying between lands which are private property; if the presumption be as stated, it is at any rate not so familiarly known.” (Bailiffs of Godmanchester v. Phillips, 4 Ad. & Ell. 560.) It was held by the court in that case, that in presumption of law balks belong to the owners of the adjacent land, unless the contrary is proved. (16.)
Where two adjacent fields are separated by a hedge and ditch, the hedge primâ facie belongs to the owner of the field in which the ditch is not. If there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership. (Guy v. West, Selw. N. P. 1218. See as to acts of ownership of a ditch, Searby v. Tottenham Railway Company, L. R., 5 Eq. 409.) The rule about ditching is this: no man making a ditch can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land; he is of course bound to throw the soil which he digs out upon his own land, and after, if he likes it, he plants a hedge upon the top of it; therefore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser; no rule about four feet or eight feet has anything to do with it. (Per Lawrence, J., Vonles v. Miller, 3 Taunt.
138. See the judgment of Holroyd, J., 7 B. & C. 307, 308.) If a tree Rights of Way. grows near the confines of the land of two parties, so that the roots extend into the soil of each, the property in the tree belongs to the owner of the land in which the tree was first sown or planted. (Holder v. Coates, M. & M. 112. See Waterman v. Soper, 1 Lord Raym. 737; Masters v. Pollie, 2 Roll. R. 141; Anon. 2 Roll. R. 255.)
2. Private Rights of Way. There are four kinds of ways; (Co. Litt. 56 a;)—1, a foot-way-2, a Different kinds of horse-way, which includes a foot-way-3, a carriage-way, which includes ways. both horse-way and foot-way-4, a drift-way. Although a carriage-way comprebends a horse-way and a foot-way (Davies v. Stevens, 7 Carr. & P. 570), yet it does not necessarily include a drift-way. (1 Taunt. 279.) It is said, however, that evidence of a carriage-way is strong presumptive evidence of the grant of a drift-way. (Ibid.)
A way may be granted for agricultural purposes only (Reynolds v. Ednardes, Willes, 282), or for the carriage of coals only (Iveson v. Moore, 3 Ld. Raym. 291; 1 Salk. 15), or for the carriage of all other articles except coals. (Marquis of Stafford v. Coyney, 7 B. & C. 257; Jackson v. Stacey, Holt, N. P. C. 455.) A reservation in a lease of a right of way on foot, and for horses, oxen, cattle and sheep, does not give any right of way to lead manure. The term "leading" implies drawing in a carriage. A grant conferring a right "to lead manure” would be construed according to the usual mode of leading, that is, by drawing in a cart. In case for disturbance of a way, the plaintiffs claimed a right for themselves, &c., on foot to go, return, &c., and also to lead and carry away manure, but proved only a grant of way on foot and for horses, oxen, cattle and sheep. It was held a variance; for the term “ lead,” so used, implies drawing in a carriage. (Brunton v. Hall, 1 Q. B. 792; 1 Gale & D. 207.) The plaintiffs took issue upon a plea, traversing the whole right claimed in the declaration. The right actually interfered with was that of carrying away manure with a wheelbarrow. It was held, assuming this privilege to be covered by the grant, that the plaintiffs could not, by proving so much of the alleged right, entitle themselves to a verdict on the issue generally. (Ib. See 2 Q. B. 963.) Evidence of an user of a road with horses, carts, and carriages, for certain purposes, does not necessarily prove a right of road for all purposes, but the extent of the right is a question for the jury under all the circumstances. If the way is confined to a particular purpose, the jury ought not to extend it; but if it is proved to have been used for a variety of purposes, the jury may be warranted in finding a way for all. (Corling v. Higginson, 4 Mees. & W. 245. See Dave v. Heathcote, 25 I. J., Exch. 245; 26 Ib. 164; Hawkins v. Carbines, 27 L. J., Exch. 44; Ballard v. Dyson, 1 Taunt. 279; Jackson v. Stacey, Holt, N. P. C. 455; Allan v. Gomme, 3 P. & Dav. 589, 590.) A finding by the jury of a right of way for carting timber will not support a plea of a right of way for all carts, carriages, horses, and on foot, or even amount to a proof of any one of those rights taken separately so as to admit of the verdict being entered distributively on the issue joined on the plea. (Higham v. Rabbett, 5 Bing., N. S. 622; 7 Scott, 827.)
There may be both an occupation way and a public highway over the Public and private same road, for it does not on becoming a highway cease to be an occupa- ways co-existing. tion way. (Brownlow v. Tomlinson, 1 Man. & Gr. 484.). The acquiring a right of way by the public does not destroy a previously-existing right of way over the same line; but the private way must be previously existing. A private right of way cannot be proved by evidence of a public right. Å right of way had been granted in 1675; there was evidence that for ten years before the commencement of the action for obstructing the right of way, that part of the way had become public. It was held unnecessary to state in the declaration that such part had become public. (Duncan v. Louch, 6 Q. B. 904.) If the owner of land has 'granted to an individual the easement of an occupation way over it, then the subsequent absolute dedication by him of a footway to the public, in the same place, cannot be presumed, without also presuming, or proving in fact, a release of
Rights of Way. the easement by the individual; for without the release the owner can only
be supposed to have given what he himself had, a right of user not inconsistent with the easement. (Regina v. Chorley, 12 Q. B. 515.)
Commissioners of partition may award a right of way over the lands of one party to the lands of another party interested in the partition. (Lister v. Lister, 3 Y. & Coll. 540.)
A private estate act, enabling tenants for life to grant building leases, empowered the lessors to lay out and appropriate any part of the land authorized to be leased as and for a way, street, square, passage, or sewer, or other conveniences for the general improvement of the estate and the accommodation of tenants and occupiers: it was held, that exclusive private rights of way over land so appropriated for a way might be granted to particular lessees, as such appropriation did not confer a right of user by all the tenants and occupiers. (White v. Leeson, 5 H. & N. 53; 29 L. J.,
C. P. 105; 5 Jur., N. S. 1361.) Private rights of A private way is a right which one or more persons have of going over
the land of another. This may be claimed by express reservation, or by grant, or as necessarily incident to a grant of land: or it may be claimed by prescription, custom, or by virtue of an inclosure act. (Selw. N. P.
1266, 13th ed.) Express reserva- A right of way may be claimed by express reservation; as where A. tion of private grants lands to another, reserving to bimself a way over such land. (1 right of way.
Roll. Abr. 109, pl. 45; Com. Dig. Chimin (D. 2); and see Earl of Cardigan v. Armitage, 2 Barn. & Cr. 197; 3 Dowl. & R. 414.) Tindal, C. J., in Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967, observed, “A right of way cannot in strictness be made the subject either of exception or reservation. It is neither a parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception and the latter to a reservation. A right of way reserved (using that word in a somewhat popular sense) to a lessor, is, in strictness of law, an easement newly created by way of grant from the grantee or lessee, in the same way as the right of sporting or fishing.” (Šee Doe d. Douglas v. Lock, 2 Ad. & El. 705; Wickham v. Harker, 7 Mees. & W. 63.) In order to establish an easement claimed by lessors, as in the nature of a grant from the lessee, it would in general be essential to show the execution of the lease by the lessees. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967.) Where a lease not under the seal of a lessee contained a clause excepting and reserving from the demise " the fishing with a pathway for the fishermen"; it was held, that such a right was the subject of a grant and not the subject of a reservation or an exception: and that the clause was void as an exception, and not being under seal
could not operate as a grant. (Corcor v. Payne, I. R., 4 C. L. 380.) Express grant of A way may be claimed by grant, as where an owner of land grants to private right of another person a way through or over a particular close; (Com. Dig.
Chimin, D. 3;) so a covenant by an owner of land that another person shall have and use a way amounts to a grant. (Holme v. Seller, 3 Lev. 305.) Where the plaintiff claimed a right of way over the defendant's soil, and it appeared that in the defendant's lease, granting him all ways, without exception or qualification, there was a covenant for contributing with other occupiers of the lessor's property to the keeping up paths, &c. used in common by them, and it was proved that the plaintiff had always used the path in question, and that there was no other path to which the corenant could apply, it was held, that it might be inferred that the defendant took the soil demised to him, subject to the plaintiff's right of way. (Oakley v. Adamson, 8 Bing. 356; 1 Moore & Scott, 510.) Where certain houses, with a piece of ground, part of an adjoining yard, were leased to a tenant, together with all ways with the said premises or any part thereof used or enjoyed before; and at the time of the grant of the lease the whole of the yard was in the occupation of one person, who had always used and enjoyed a right of way to every part of that yard: it was held, that the lessee was entitled to such right of way to the part of the yard demised to him. (Kooystra v. Lucas, 5 B. & Ald. 830; 1 Dowl. & Ryl. 506; Staple v. Haydon, 6 Mod. 3.) If a right of way is appartenant