be liable if the paving and flagging were not sufficient to bear a crowd such as reasonably might be expected to gather upon them. A way that is to be used by the public should be strong enough to hold up all persons lawfully using it. At all events, a jury might reasonably think so.

The rule was ultimately drawn up as follows:-To enter a nonsuit pursuant to the leave reserved, on the grounds,-first, that, on the finding of the jury that the locus in quo was a public highway, the liability to repair was on the parish,-secondly, that the obligation to repair, if not on the parish, was on the lessees,-thirdly, that the accident was occasioned by the negligence of the deceased: or for a new trial, on the ground that the several findings of the jury were against the weight of evidence.

Coleridge, Q. C., and Martin, in Easter Term last, showed cause.The main question is, whether the defendant by his negligence either caused or materially contributed to the accident which resulted in the death of the plaintiff's husband. Now, it is an undisputed fact that the paving and grating in question were out of repair. The defendant's attention had been called to it, a communication having been made to his agent Lane, recommending that an arch be turned under the flagging: and this was prior to the demise to the Messrs. Jeffs. There are numerous cases to show that one who, having notice of its existence, suffers a dangerous nuisance to continue, is responsible for the consequences. Salmon v. Bensley, R. & M. 189, and [*226 The King v. Pedly, 1 Ad. & E. 822 (E. C. L. R. vol. 28), 3 N. & M. 627, are to that effect. Littledale, J., in the last-mentioned case, says: "If a nuisance be created, and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time. of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance. But if, after the reversion is purchased, the nuisance be created by the occupier, the reversioner incurs no responsibility: yet, in such a case, if there were only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable. He is not to let the land with the nuisance upon it." In Rich v. Basterfield, 4 C. B. 783 (E. C. L. R. vol. 56), where an action. was brought against the owner of premises for a nuisance arising from smoke issuing out of a chimney, to the prejudice of the plaintiff in his occupation of the adjoining messuage,-on the ground that the defendant, having erected the chimney, and let the premises with the chimney so erected, had impliedly authorized the lighting of a fire therein, it was held that the action would not lie; the nuisance complained of, viz. the lighting of the fire, being the act of the tenant. Cresswell, J., in delivering the judgment of the court, said: "If The King v. Pedly is to be considered as a case in which the defendant was held liable because he had demised the buildings when the nuisance existed, or because he had re-let them after the user of the buildings had created a nuisance, or because he had undertaken the cleansing and had not performed it,-we think the judgment right, and that it does not militate against our present decision. But, if it is to be taken as a

*decision that a landlord is responsible for the act of his tenant

*227] in erecting a nuisance, by the manner in which he uses the premises demised,-we think it goes beyond the principle to be found in any previously decided cases; and we cannot assent to it." These cases are commented upon by this court in Todd v. Flight, 9 C. B. N. S. 377 (E. C. L. R. vol. 99), where it was held that an action lies against the owner of premises who lets them to a tenant in a ruinous and dangerous condition, and who causes or permits them so to remain. until by reason of the want of reparation they fall upon and injure the house of an adjoining owner; Erle, C. J., observing that they are authorities for saying, "that, if the wrong causing the damage arises from the non-feasance or the mis-feasance of the lessor, the party suffering damage from the wrong may sue him." It is upon that principle, it is submitted, that the defendant is liable here. Bishop v. Trustees of the Bedford Charity, 1 Ellis & Ellis 697 (E. C. L. R. vol. 102), may be distinguished, on the ground that the defendants had no notice of the insecure state of the grating. Fisher v. Prowse, 2 Best & Smith 770 (E. C. L. R. vol. 110), is also distinguishable. The present case falls precisely within the principle of Barnes v. Ward, 9 C. B. 392 (E. C. L. R. vol. 67). There, A., being possessed of land abutting on a public footway, in the course of building a house on such land, excavated an area, which, by the negligence of his work-people, was left unfenced, so that B., who was lawfully passing along the way, the night being dark, without any negligence or default of her own, fell into the area and was killed: and it was held that A. was liable, under the 9 & 10 Vict. c. 93, to an action by the husband, as administrator, for the benefit of himself and B.'s infant children. Maule, J., in delivering the judgment of the court, after referring to nearly all the authorities, says: "The result is,considering that the present case refers to a newly-made *ex*228] cavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care,-it appears to us, after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road; for, the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway." So here is a nuisance or danger created close to and connected with a public way; and the deceased, through no negligence of his own, but solely through the negligence and want of care of the defendant, fell through and met with his end. In Coupland v. Hardingham, 3 Campb. 393, which is cited with approbation in Barnes v. Ward, -the action was case for not railing in or guarding an area before a house in Westminster, whereby the plaintiff fell down into the area, and was severely hurt the defence was, that the premises had been in the same condition as far back as could be remembered, and before the defendant became possessed of them. But Lord Ellenborough held, that, however long the premises might have been in this condition, as soon as the defendant took possession of them he was bound to guard against the danger to which the public had before been exposed; and that he was liable for the consequences of having neglected so to do, in the same

manner as if he himself had originated the nuisance: and the learned judge said that the area belonged to the house, and it was a duty which the law cast upon the occupier of the house, to render it secure. In The King v. Watts, 1 Salk. 357, 2 Ld. Raym. 856, which was an indictment for not repairing a house standing upon the highway, ruinous and like to fall down, which the defendant occupied [*229 and ought to repair ratione tenuræ suæ, the defendant pleaded not guilty, and the jury found a special verdict, viz. that the defendant occupied, but was only tenant at will. And Lord Holt said: "The ratione tenure is only an idle allegation; for, it is not only charged, but found, that the defendant was occupier, and in that respect he is answerable to the public; for, the house was a nuisance as it stood, and the continuing the house in that condition is continuing the nuisance." In Corby v. Hill, 4 C. B. N. S. 556 (E. C. L. R. vol. 93), the owner of land having a private road for the use of persons coming to his house, gave permission to A., who was engaged in building on the land, to place materials upon the road. A. availed himself of this permission, by placing a quantity of slates there, in such a manner that the plaintiff in using the road sustained damage. It was held that A. was liable to an action for such injury. Cockburn, C. J., there says: "The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question: they held out this road to all persons having occasion to proceed to the asylum, as the means of access thereto. Could they have justified the placing an obstruction across the way whereby an injury was occasioned to one using the way by their invitation? Clearly they could not." And Willes, J., says: "One who comes upon another's land by the owner's permission or invitation, has a right to expect that the owner will not dig a pit thereon, or permit another to dig a pit thereon, so that persons lawfully coming there may receive injury. That is so obvious that it is needless to dwell upon it." That case, which is altogether undistinguishable from the present, as well as Hounsell v. Smyth, 7 C. B. N. S. 731 (E. C. L. R. vol. 97), are referred to in Bolch v. Smith, 7 Hurlst. & N. 736, where the Court of Exchequer held, as this court had done in Hounsell v. Smyth, that the defendant was under no obligation to fence against a [*230 danger on his own land, unless it was so placed as to amount to a public nuisance. It will be said that this place had become by dedication a part of the public highway, and consequently that the duty of keeping it in repair was by law cast upon the parish. It may, however, well be, that the public may acquire a right to go upon a man's land, and yet the parish may not be burthened with repair. This was a part of the defendant's premises, which for his own convenience he had allowed the public to use for the purpose of going to the shop windows. That there may be a conditional or partial dedication, is clear from Lade v. Shepherd, 2 Stra. 1004, The King v. Lloyd, 1 Campb. 261, The Marquis of Stafford v. Coyney, 7 B. & C. 257 (E. C. L. R. vol. 14), Cornman v. The Eastern Counties Railway Company, 10 Exch. 771, Le Neve v. The Vestry of Mile End Old Town, 8 Ellis & B. 1054, Morant v. Chamberlin, 6 Hurlst. & N. 541, and Fisher v. Prowse, 2 Best & Smith 770 (E. C. L. R. vol. 110). The user of this way by the plaintiff clearly was not an act of trespass.

[KEATING, J.-That is settled by the jury.] The public, then, having a right to go upon this spot, it was the defendant's duty to see that it was strong enough to bear such amount of traffic as might reasonably be expected in a London street. [BYLES, J.-The dedication here was prior to the General Highway Act, 5 & 6 W. 4, c. 50, and therefore the duty to repair the surface was by law cast upon the parish; The King v. Leake, 2 N. & M. 595, 5 B. & Ad. 469 (E. C. L. R. vol. 27).] A highway may be a highway for a limited purpose: Roberts v. Hunt, 15 Q. B. 17 (E. C. L. R. vol. 69), where Lord Campbell says that a man must calculate the consequences before he dedicates. In The King v. Pedly, 1 Ad. & E. 822 (E. C. L. R. vol. 28), 3 N. & M. 627, it was held, that, if the owner of land erect a building which is a nuisance or of which the occupation is likely to produce a *231] nuisance, and lets the land, he is liable to an indictment for such nuisance being continued or created during the term: so also, if he let a building which requires particular care to prevent the occupation from becoming a nuisance and the nuisance occurs for want of such care on the part of the tenant. And in Todd v. Flight, 9 C. B. N. S. 377 (E. C. L. R. vol. 99), it was held by this court that an action lies against the owner of premises who lets them to a tenant in a ruinous and dangerous condition, and who causes or permits them so to remain until by reason of the want of reparation they fall upon and injure the house of an adjoining owner. Brock v. Copeland, 1 Esp. N. P. C. 203, and Coupland v. Hardingham, 3 Campb. 393, also show that this action is maintainable. [BYLES, J.-The jury have found that this way was dedicated to the public with the gratings in it. Who would be bound to repair the substructure?] The owner of the premises undoubtedly. As to the verdict being against evidence, it does not appear that the learned judge who tried the cause is dissatisfied with the result.

Lush, Q. C., and David Keane, in support of the rule.-The first proposition is abundantly sufficient to dispose of this case. One who dedicates a way to the public incurs no liability and is burthened with no duty to keep it in repair. If the public choose to use it, they must take it cum onere. Having once made the dedication, the owner of the soil can do nothing to derogate from his grant. Fisher v. Prowse, 2 Best and Smith 770 (E. C. L. R. vol. 110), is precisely in point. It was there held, that, where an erection or excavation exists upon land, and the land on which it exists, or to which it is contiguous, is dedicated to the public as a highway, the dedication must be taken to be made to the *public and accepted by them *232] subject to the inconvenience or risk arising from the existing state of things. The defendant occupied a house adjoining to a public street, with a cellar belonging to it, which cellar had existed before the defendant had anything in the house. The mouth of this cellar opened into the footway of the street by a trap-door. During the day, this trap-door was open, but at night it was closed by a flap, which slightly projected above the footway, and it had so projected as long as living memory went back. The plaintiff, coming along the footway at night, stumbled over this flap, fell, and sustained injury, for which he brought an action: and it was held that the jury ought to draw the conclusion that the cellar-flap had existed as long as the

street, and that the dedication of the way to the public was with the cellar-flap in it, and subject to its being continued there, and therefore that the defendant was not liable, as the maintenance of such an ancient cellar-flap was not unlawful. Blackburn, J., in delivering the judgment of the court, says: "We think we must, on this reservation coupled with the evidence, take it to have been proved that there was no negligence on the part of the plaintiff contributing to the accident, and that the flap did cause obstruction to the footway to such an extent that if the flap had been put down for the first time after the highway was dedicated to the public, it would have been a nuisance for the consequences of which those who maintained the nuisance would be responsible. On the other hand, we must take it to have appeared that the flap continued in its original condition, and that the defendant had not altered it or suffered it to get out of repair, so as to increase the danger and obstruction beyond what always must have existed since it was there. And we think, that, on its being shown that the cellar-flap had *existed in its present condition as far [*233 back as living memory went, the jury ought to draw the conclusion that it had existed as long as the street, and that the dedication of the way to the public was with this cellar-flap in it, and subject to the reservation of its being continued there, so far as by law the highway could be subject to it." In Cooper v. Walker, 2 Best & Smith 770 (E. C. L. R. vol. 110), in which judgment was given at the same time as that of Fisher v. Prowse, the declaration was for negligently and improperly placing in a public street certain steps, so that the same were an obstruction to persons using the street, and dangerous to persons passing along it at night; and averring that the plaintiff, passing along the street, fell over them and was injured. The defendant pleaded that the street was subject to the right of the occupiers of a house adjoining it to have steps standing in the highway and leading up to the outer-door of the house, all persons passing along the highway being entitled to pass on foot over the steps as a part of the highway, which steps were part of the house; that, the street being lowered under the Metropolis Local Management Act, 18 & 19 Vict. c. 120, the old steps were necessarily removed, and the present steps placed in their room; and that the new steps were placed on the same part of the highway on which the old steps had stood, and caused no greater obstruction or danger than did the old steps: and it was held that the plea was good, as the former highway was subject to the right on the part of the occupiers of the defendant's house to keep these steps there, and the lowered highway was subject to a similar right. In delivering judgment, Blackburn, J., says (p. 779): "The law is clear, that, if after a highway exists anything be newly made so near to it as to be dangerous to those using the highway, such, for instance as an excavation, Barnes v. Ward, 9 C. B. 392 (E. [*234 C. L. R. vol. 67),-*this will be unlawful, and a nuisance; as it also is if an ancient erection, as, a house, is suffered to become ruinous, The Queen v. Watts, 1 Salk. 357: and those who make or maintain the nuisance in either case are liable for any damage sustained thereby, just as much as if the nuisance arose from an obstruction in the highway itself: but the question still remains, whether an erection or excavation already existing, and not otherwise unlawful