Highways :-(1) Dedication and Ownership--continued. was that the strip was part of the highway and the conservators exercised jurisdiction over it as a highway authority and were not entitled to an injunction to restrain the defendant from passing over the strip. Thames Conservators v. Dennis (Ch. D., 31 Oct, 1902), Times Newspaper, 1 Nov., 1902. Public Footpath -- Occupation Road Evidence as to Width of Where a public footpath and an occupation road are contained in a lane of varying breadth there is no presumption as there is in the case of an ordinary public highway bounded by fences that the right of the public extends over all the land lying between the fences. It is a question of evidence how far the public right extends in each particular case and the fact that the public have been allowed to wander anywhere between the fences is not conclusive that such user was of right instead of being merely permissive. Ford v. Harrow Urban District Council (K. B. D., 14 Feb., 1903), 88 L. T. 394; 67 J. P. 248; 1 L. G. R. 256. Roadside Strip -Right of Passage-Land Between Fences Separating Highway from Adjoining Land -Presumption of Dedica tion-" Once a Highway Always a Highway." In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way, primâ facie, and unless there be evidence to the contrary, extends to the whole space between the fences; and the public are entitled to the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot-passengers. All the ground that is between the fences is presumably dedicated as highway, unless the nature of the ground or other circumstances rebuts that presumption. It is an established maxim that once a highway always a highway. The public cannot release their rights, and the consent by a highway authority to an illegal encroachment is ineffectual. Mere disuse of a highway does not deprive the public of their rights. It makes no difference that a strip at the side of a highway had seventeen years ago been inclosed without opposition from the then highway authority, that a building had been erected, and that there had since the inclosure been uninterrupted possession. NEELD V. HENDON URBAN DISTRICT COUNCIL (1899) (81 L. T. 405) ; COUNTESS OF BELMORE 7. KENT COUNTY COUNCIL' ([1901] 1 Ch. 873) distinguished. Harvey v. Truro Rural District Council (Ch. D., 27 June, 1903), [1903] 2 Ch. 638 ; 72 L. J. Ch. 705 ; 89 L. T. 90; .68 J. P. 51; 1 L. G. R. 758; 19 T. L. R. 576. See Law and Legislation, 1901, p. 124. Roadside Wastes-Common or Waste Land-Presumption of Ownership-Animals Straying--Highway Act, 1864, s. 25. Effect should be given to evidence tending to rebut the presumption that the soil of the highway is vested in the owners of the adjoining lands; but even though the soil of wayside strips is so vested, the strips may apparently be "common or waste or uninclosed land" within the meaning of the exception in section 25 of the Highway Act, 1864 (27 & 28 Vict. c. 101), so that the owners of animals straying on such strips are not liable to a penalty under the section. Plumbley v. Lock (K. B. D., 31 Oct., 1902), 67 J. P. 237 ; 1 L. G. R. 54; 19 T. L. R. 14. New Street-Building Scheme-Crown Lease --Presumption that Under an Act of Parliament passed for the purpose of executing a scheme of street improvements in the metropolis, Commissioners laid out Regent Street and leased the houses in the street as they were built, including a house now sub-demised to the plaintiff. Upon the construction of the Act it was doubtful whether the Commissioners had any power to lease the soil of the street; and the house in which the plaintiffs were interested was described in the lease by dimensions and abuttals and by a map, and was referred to as abutting on a street then forming. The plaintiffs, on the presumption that the conveyance of a house adjoining a highway passes the soil of the highway usque ad medium filum claimed an injunction restraining the defendants from making in pursuance of a subsequent grant from the crown a subway in the soil of the street adjacent to the premises of the plaintiffs. Held that apart from any question as to the powers of the Commissioners, the presumption was rebutted by the surrounding circumstances, regard being had to the provisions of Act, and the terms of the lease. Mappin Brothers v. Liberty & Co., Ltd., and the Attorney-General (Ch. D., 12 Nov., 1902), [1903], 1 Ch. 118; 72 L. J. Ch. 63; 87 L. T. 523; 51 W. R. 264; 67 J. P. 91 ; 1 L. G. R. 167: 19 T. L. R. 51. Highway :-(2) Maintenance. Approaches to Bridge-Fences at Side Repair of Fences- Section 24 of a local Act, 10 Geo. 4, c. xlviii., required the defendants to make a good and sufficient fence on each side of any bridge carrying a carriage road over their canal, and section 26 provided that they should not be liable to repair any part of the roads approaching any bridge over the canal after the road had been made and used for one year and then put into good and sufficient repair by them; but they should not be exonerated from the future repair Highway :-(2) Maintenance-continued. of any bridges and of the wing walls, ramparts and side banks thereof. Held that under these enactments the defendants were not liable to repair the fences of the side bank and inclined embankments approaching a bridge. Decision of Chancery Division' (1902) (71 L. J. Ch. 660) affirmed. Attorney-General at the Relation of the Warwickshire County Council v. Oxford Canal Navigation (C. A., 24 Feb., 1903), 72 L. J. Ch. 285; 88 L. T. 250; 51 W. R. 386; 67 J. P. 130; 1 L. G. R. 282; 19 T. L. R. 277. Repair-Road Raised on Inclined Planes-Railways Clauses A railway company authorized to carry their railway across a highway on the level, constructed the railway at a higher level than the highway; and, in order to carry the highway across the railway, raised the highway and constructed, for the purpose of carrying it to the level of the crossing, permanent inclined planes on either side of the railway in pursuance of the powers conferred by section 16 of the Railway Clauses Act, 1845 (8 & 9 Vict. c. 20). Held that there was no obligation upon the railway company to repair the highway upon the inclined planes. West Lancashire Rural District Council v. Lancashire and Yorkshire Railway Co. (K. B. D., 16 July, 1903), [1903] 2 K B. 394 ; 72 L. J. K. B. 675; 89 L. T. 139; 51 W. R. 694; 67 J. P. 410; 1 L. G. R. 788; 19 T. L. R 625. Repair by Tramways Company-Accident-Liability of Company The promoters of a tramway are required by section 28 of the Tramways Act, 1870 (33 & 34 Vict. c. 78) at their own expense, at all times to maintain and keep in good condition and repair, with such materials and in such manner as the road authority shall direct and to their satisfaction a certain portion of the road comprising the tramline and a strip on each side. Such portion of a road was constructed by a tramway company of granite sets, which when worn by traffic became slippery and dangerous to horses in some states of the weather. The road authority required the company to remedy this either by placing sand daily thereon or by any other means rendering it safe and usable for traffic but the company did not do so. Held that the company were liable in damages where an accident occurred to a person by his horse slipping on the defective portion of the road which the company were under an obligation to maintain and keep in good condition and repair as provided by section 28 of the Act of 1870. Dublin United Tramways Co., Ltd. v. Fitzgerald (H. L., 27 Nov. 1902), [1903], A. C. 99; 72 L. J. P. C. 52 ; 87 L. T. 532; 51 W. R. 321; 67 J. P. 229; 1 L. G. R. 386; 19 T. L. R. 78. Se: Law and Legislation, 1902, p. 167. Default of Rural District Council-Appeal to County Council- Rule nisi granted for a mandamus to a county council as county authority under section 10 of the Highways and Locomotives Amendment Act, 1878 (41 & 42 Vict. c. 77), to make an order limiting a time for the performance of the duty of a rural district council in the matter of maintaining and repairing a certain highway within the jurisdiction of the district council where it had been reported by commissioners appointed by the county council that there had been default by the district council, and the county council whilst accepting the report had resolved to take no action. Rex v. Dorset County Council (K. B. D., 19 Dec., 1902), 67 J. P. 19. Highway: (3) Nuisances and Obstructions. Accident-Negligence of Servant of Contractor-Control by Local A contractor agreed to supply horses, harness and drivers for the purpose of working the watering vans of a metropolitan borough council and under the terms of the agreement the drivers were to work under the directions and control of the officers of the council. One of the drivers negligently left an upright key, more than 3 feet in length with a cross handle, standing in a water cock in the road and the plaintiff's cab collided with the key injuring himself and the cab. Held following JONES 7. LIVERPOOL CORPORATION (1885) (14 Q. B. D. 890) that both the contractor and the council were liable, the contractor as the master of the driver and the council (following PENNY 7. WIMBLEDON URBAN DISTRICT COUNCIL ([1899] 2 Q.B. 217)) on the ground that they authorized the use of the stop-cock and they could only do so with the liability to have the public protected. Mileham v. St. Marylebone Borough Council and Latter (K. B. D., 9 March, 1903), 67 J. P. 110; 1 L. G. R. 412. Accident-Laying of Sewer-Trench Filled in but Roadway not made Good-Misfeasance-Unlighted and Unfenced Heap in Roadway. An accident happened by the overturning of a hansom cab on an unlighted and unfenced heap of rubbish lying in a road where the defendants had been laying a sewer. The trench in which the sewer was laid had been negligently filled in and the surface was bad. It was in avoiding the founderous part of the road that the cab was driven against the rubbish. There was evidence to show that the defendants knew of the deposit of the rubbish. It was contended that the defendants were not liable in an action for damages, as on their part there was non-feasance only. Held that the defendants in throwing open the road where in respect of the trench it had not been made fit for traffic had committed an act of misfeasance, and that they were liable. Semble they would owing to their act of misfeasance Highway :-(3) Nuisances and Obstructions—continued. in respect of the trench have been liable if they had not known of the existence of the heap of rubbish. Bull v. Shoreditch Corporation (C. A., 19 Nov., 1902), 67 J. P. 37; 1 L. G. R. 81; 19 T. L. R. 64. Pulling Down Wall Abutting on Highway - Trespass by Local Plaintiff proposed to build a wall on his property as a boundary between it and the highway. He invited the surveyor of the defendants to inspect the place where he proposed to build. The defendants insisted that the wall should be built in a different position and when he had built it they without notice pulled it down. A new trial was granted on the ground that the jury were misdirected that the case was not one for exemplary damages but that the measure of damages was the plaintiff's out of pocket expenses. Davis v. Bromley Urban District Council (C. A., 5 May, 1903), 67 J. P. 275; 1 L. G. R. 668. Hospitals: Agricultural Lease-Reservation to Sell Land for "Building A reservation in an agricultural lease to the landlord of the right to sell any part of the land on allowing to the tenant £2 off the rent for every acre of "land sold for building sites" refers to the erection of buildings in the nature of dwelling-houses or shops, and does not include the sale for the site of a hospital to be erected by a local authority. English v. Tynemouth Corporation (K. B. D., 14 Jan., 1903), 67 J. P. 239; 1 L. G. R. 177. Houses let in Lodgings-see "Byelaws." Housing of the Working Classes-see "Compulsory Acquisition of Land." Income Tax : Thrift Fund-Contributions-Scheme under Local Act-Contri- By the Manchester Corporation Act, 1891 (54& 55 Vict. c. ccvii.), the corporation were authorised to establish by scheme a thrift fund. Officers and servants who entered the employment of the corporation after the passing of the Act were obliged to come within the scheme; but existing officers and servants had an option whether they would on certain terms and conditions be admitted to the benefit of the thrift fund. There were provisions for the repayment of con 1 Affirmed (H. L., 16th Feb., 1903), Times Newspaper, 17th Feb., 1903. |