to prove.(s) And where the indictment is for the obstruction or non-repair of highways which are described generally, a particular of the several highways obstructed or out of repair may be obtained (t)

[*457

All common nuisances are regularly punishable by fine and imprisonment: but, as the removal of the nuisance is usually the chief end of the indictment, the Court will adapt the judgment to the nature of the case. Where the nuisance, therefore, is stated in the indictment to be continuing, and does in fact exist at the time of the judgment, the defendant may be commanded by the judgment to remove it at his own costs:(u) but only so much of the thing as causes the nuisance ought to be removed; as if a house be built too high, only so much of it as is too high should be pulled down; and if the indictment were for keeping a dye-house, or carrying on any other stinking trade, the judgment would not be *to pull down the building where the trade was carried on.(v) So in the case of a glass-house, the judgment was to abate the nuisance, not by pulling the house down, but only by preventing the defendant from using it again as a glass-house.(w) But where the indictment does not state the nuisance to be continuing, a judgment to abate it would not be proper. In a case where this point arose, Lord Kenyon, C. J., said, "When a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in Rex v. Pappineau, et adhuc existit; and in such cases the judgment should be that the nuisance be abated. But in this case it does not appear in the indictment that the nuisance was then in existence; and it would be absurd to give judgment to abate a supposed nuisance which does not exist. If, however, the nuisance still continue, the defendant may be again indicted for continuing it."(x)

The 5 Will. & M. c. 11, s. 3 enacts, that if a defendant prosecuting a writ of certiorari (as mentioned in the Act) be convicted of the offence for which he is indicted, the Court of King's Bench shall give reasonable costs to the prosecutor if he be the party grieved, or be a justice, &c., or other civil officer, who shall prosecute for any fact that concerned them as officers to prosecute or present. Upon this clause it was decided, that persons dwelling near to a steam-engine, which emitted volumes of smoke affecting their breath, eyes, clothes, furniture, and dwelling-houses, and prosecuting an indictment for such nuisance, are parties grieved entitled to their costs, the defendants having removed the indictment from the sessions by certiorari, and been afterwards convicted.(y)

The 1 & 2 Geo. 4, c. 41, reciting the great inconvenience and injury sustained from the improper construction and negligent use of furnaces employed in the working of engines by steam, and that though such nuisance, being of a public nature, is abateable as such by indictment, the expense had deterred parties suffering thereby from seeking the remedy given by law, enacts that "it shall and may be lawful for the Court by which judgment ought to be pronounced, in case of conviction on any such indictment, to award such costs as shall be deemed proper and reasonable to the prosecutor or prosecutors, to be paid by the party or parties. so convicted as aforesaid; such award to be made either before or at the time of pronouncing final judgment, as to the Court may seem fit."

Sec. 2, if it shall appear to the Court by which judgment ought to be pronounced that the grievance may be remedied by altering the construction of the furnace, it shall be lawful for the Court, without the consent of the prosecutor, to make such

(s) Rex v. Curwood, 3 A. & E. 815 (30 E. C. L. R.).

(t) Rex v. Marquis of Downshire, 4 A. & E. 698 (31 E. C. L. R.); Reg. v. Inhabitants of Pembridge, June 26, 1841, Patteson, J., at chambers; and no affidavit is necessary, as the necessity for particulars appears on the face of the indictment: Reg. v. Probert, Dears. C. C. 32 (a); Reg. v. Flower, 7 D. P. C. 665.

(u) 2 Roll. Abr. 84; 1 Hawk. P. C. c. 75, s. 14; Rex v. Pappineau, 1 Str. 686.

(v) Rex v. Pappineau, supra; 9 Co. 53; Godb. 221.

(w) Co. Ent. 92 b.

(x) Rex v. Stead, 8 T. R. 142. A strong opinien was intimated upon the point when the same case was previously brought before the Court in another shape: Rex v. The Justices of Yorkshire, 7 T. R. 468.

(y) Rex v. Dewsnap, 16 East 194.

orders as shall be by the Court thought expedient for preventing the nuisance in future, before passing final sentence on the defendant.

*Sec. 3, the provisions relating to the payment of costs and the altera*458] tion of furnaces, shall not extend to the owners or occupiers of any furnaces or steam-engines, erected solely for the purpose of working mines of different descriptions, or employed solely in the smelting of ores and minerals, or in the manufacturing the produce of ores or minerals, on or immediately adjoining the premises where they are raised.

The 16 & 17 Vict. c. 128, 18 & 19 Vict. cc. 116, 121, and 23 & 24 Vict. c. 77, contain numerous excellent provisions for the removal of nuisances and the prevention of diseases, but they do not fall within the scope of this work.

Sec. II-Of Nuisances to Public Highways.

IN treating of nuisances to public highways, we may consider, in the first place, what is a public highway; secondly, of nuisances to a public highway by obstruction; and, thirdly, of nuisances to a public highway by the neglect, on the part of those who are liable, to put it in repair.

The word highway originally denoted a public way, which was raised above the level of the lands through which it ran. Such ways are of extreme antiquity. When the Israelites asked leave to pass through Edom, they said, (a) “ We will go by" the raised road or highway. (b) And it is very remarkable that the same way is called just before, (c) 122717, the king's track(d) or way. So that here we have the well-known expression, "the king's highway," which in our old records is alta regia via,(e) and in our year books haut chemin le Roy.(f) Long ago, however, highway has been applied not only to every public way on land but also on water.

Highway is said to be the genus of all public ways;(g) of which there are three kinds: a footway; (h) a foot and horseway, which is also a pack and prime-way; and a foot, horse and cartway.(i) Whatever distinctions may exist between these ways, it seems to be clear that any of them, when common to all the King's subjects, whether directly leading to a market-town, or beyond a town as a thoroughfare to other towns, or from town to town, may properly be called a highway; and that the last, or more considerable of them, has been usually called the King's *459] *highway.(k) But a way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village, which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village only, is not a highway, because it belongs not to all the King's subjects, but only to some particular persons, each of whom, as it seems, may have an action on the case for a nuisance therein.(7) But in a case, (m) where a public footway was

(a) Numb. xx. 19.

(b) Isai. Ixii. 11, shows this to be the correct meaning of the word.

(c) Numb. xx. 17.

(d) The English word "track" is either from the Hebrew word, d being changed into t, or from the Arabic, which is from the Hebrew with a similar change.

(e) 2 Inst. 701.

(g) Reg. v. Saintiff, 6 Mod. 255.

(f) 33 Hen. 6, 26.

(h) Where a perambulator, eighteen inches wide and fourteen pounds weight was pushed along a public footway leading from a road into a square, Byles, J., left it to the jury to say whether this was a usual accompaniment of a large class of foot passengers, and so small and light as neither to be a nuisance to other passengers or injurious to the soil: Reg. v. Mathias, 2 F. & F. 570. The jury were discharged.

(i) Co. Lit. 56 a. (k) Id. Ibid. 1 Hawk. P. C. c. 76, s. 1; Bac. Abr. tit. Highways (A.) And in a case where the terminus ad quem was laid to be a public highway, and it appeared in evidence that it was a public footway, it was held that the description was sufficient: Allen v. Ormond, 8 East 4.

(7) 1 Hawk. P. C. c. 76, s. 1. So by Hale, C. J., in Austin's case, 1 Vent. 189. A way leading to any market town, and common for all travellers, and communicating with any great road, is a highway: but if it lead only to a church, or to a house or village, or to fields, it is a private way.

(m) Rex v. Marchioness of Downshire, 4 A. & E. 232 (31 E. C. L. R.); 5 N. & M.

described as leading to a parish church, it appeared that the way led to an inclosure containing the site of the old parish church, which had been pulled down, and the new parish church, and that the path formerly went to the old church, and a new path led from it to the new church, and it was left to the jury whether the path up to the new church had been dedicated to the public, a verdict found for the crown, and no objection was made on the ground that there could not be a public way to a church. And where a road led to the house of the vicar of a parish and of three other persons, and to the parish church, but terminated there, and was not a thoroughfare, and the justices made an order under the 5 & 6 Will. 4, c. 50, s. 73, to remove a quantity of rubbish from it; it was held that they had jurisdiction to determine whether this was a highway or not.(n) In one case, a very learned judge 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.(o) It has been held, that where there never was a right of thoroughfare a jury might find that no public way existed; but it has never been settled that, where there had been a public right of passing through, the right of way was abolished by stopping one end of the passage by a legal order of justices. If the stoppage were legally made, that would not make the remaining passage not public (p) And where a public footway extended into two parishes, it was held that certain inclosure commissioners might stop up so much of the footway as lay in one of the parishes, and it seems to have been considered that the part which lay in the other parish remained a public way.(q)

It has since been expressly held, that there may be a public way over a place which is not a thoroughfare, and that it is a question for the jury whether it does exist or not. Where therefore a court opening into a public street had no thoroughfare through it, but contained fourteen or fifteen houses, and had been paved by commissioners under the 12 Geo. 3, c. 68, and always lighted by the parish, and the jury found that it was a *public highway; it was held that [*460 there might be a highway under these circumstances.(r) So a large square with only one entrance, or a promenade, the owner of which has, for many years, permitted all persons to go into and round it, may become a public highway.(s)

662. See also Williams's case, 5 Co. 72 b; 2 Roll. 84, pl. 15; Rex v. Reynell, 6 East

315.

(n) Williams v. Adams, 2 B. & S. 312 (110 E. C. L. R.).

(o) By Abbott, C. J., in Wood v. Veale, 5 B. & A. 454 (7 E. C. L. R.).

(p) Per Patteson, J., Rex v. Marquis of Downshire, 4 A. & E. 698 (31 E. C. L. R.); 6 N. & M. 92.

(9) Gwyn v. Hardwicke, 1 H. & N. 49.

(r) Bateman v. Bluck, 18 Q. B. 870 (83 E. C. L. R.).

(8) Per Lord Campbell, C. J., Ibid. In Campbell v. Lang, 1 Macq. Sco. App. Cas. 451, a public way terminating at the interior of the confluence of two rivers was claimed, and it was held that such a way might exist, as it might go further on so as ultimately to reach a good terminus; but Lord Cranworth, C., doubted whether there could be "a public right of way from a given public place, but neither terminating in a public place nor leading to a public place" by the law of Scotland "any more than it is by the law of England." In Young v. Cuthbertson, 1 Macq. Sco. Ap. C. 455, on the trial of an issue whether there existed a public right of way from Burntisland through the appellant's land to Staleyburn and Aberdour, after a verdict for the respondents, it was objected that the judge was wrong in holding it not necessary that a public way should terminate in a public place. Lord Cranworth, "Suppose a right of way from Hyde Park Corner to the Addison Road. It would not be necessary to prove that the Addison Road had been a public place for forty years. It would be enough to show that the way was public to Oxford. Besides, it may not always be indispensable to show an exit. The way may terminate in a cul de sac, such as Connaught Place ;" and in giving judgment his Lordship added, "then it is said that the issue was objectionable for this reason, that Staleyburn is not a public place; but even supposing that Staleyburn is not a public place, still if the right of way went beyond it, that would be sufficient. If, indeed, Staleyburn had been a mere private house, to which the public had been in the habit of going from Burntisland and returning back again, I believe the case would not have properly come within the description of a public right of way; for the owner might destroy the house, and shut up the way, and then there would be an end of it. But here the right of way extended further, it had a public terminus at each end." No authority is referred to in either of these cases. See Reg. v. Hawkhurst, post, p. 466.

VOL. I.-24

A custom for the freeman and citizens of a town on a particular day in the year to enter upon a close for the purpose of holding horse-races thereon, is a good custom.(ss)

There are many towns in which the market-places are large, and the public have clearly the right of passing backwards and forwards, over each and every part of them; and it should seem that an indictment alleging a right in the public to pass and repass in, over, and across each and every part of such a place would be valid. A question here presents itself whether there may not exist a public right of walking over a close in every direction, though there be but one entrance to the close. There certainly may be such a private right. A plaintiff alleged a right of private way over and along the terrace walk, and a user of that way for many years was proved, and also a grant of the free liberty, use, benefit and privilege of the terrace walk with other inhabitants; it was objected that the right proved was not a right of way, but a right to use the walk for pleasure only. That the right was altogether different from the right of way claimed. It was like the privilege which the builder of a square, who reserves the centre for a garden common to all the houses, grants to the tenants of the houses of walking about the garden; but the objection was overruled. Patteson, J., "I do not understand the distinction that has been contended for between a right to walk, pass and repass, forwards and backwards over every part of a close, and a right of way from one part of a close to another. What is a right of way but a right of way to go forwards and backwards from one place to another?" Wightman, J., "The right proved is a right of passage backwards and forwards over every part of the close; the right claimed is less than this; but it is included in it, being a right of way from one part of the close to another."() In an old case a defendant prescribed that all the inhabitants of a vill from time immemorial had been used to dance in a close at all times of the year at their free will for their recreation, and it was held that this was a good custom.(u) Now coupling these decisions with those as to public highways where there are no *thoroughfares, it may fairly be inferred that the public *461] may in point of law have a right of passing and repassing over every part of a close, whatever its shape or size may be.

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.(v) 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 in towing vessels, yet it is a common highway for that purpose.(w) 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 railway or tram-road was taken to be a public highway.(x)

The public have only a right to use the land over which a public road passes for the purpose of passage, and therefore a person cannot justify using a highway for the purpose of racing upon it.(xx)

The number of persons who may be entitled to use the way, or 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 there were not less than 250 persons who were liable

(ss) Mounsey v. Ismay, 1 H. & C. 729.

(1) Duncan v. Louch, 6 Q. B. 904 (51 E. C. L. R.).

(u) Abbott v. Weekly, 1 Lev. 177, cited by Lord Cranworth, C, Young v. Cuthbertson,

supra.

(v) Rex v. Hatfield, Cas. temp. Hardw. 315; s. c., 8 East. R. 6 (a).

(w) Per Bayley, J., in Rex v. Severn and Wye R. Co. 2 B. & A. 648. (x) Rex v. Severn and Wye R. Co., 2 B. & A. 646.

(xx) Sowerby v. Wadsworth, 3 F. & F. 734.

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.(y) 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 land on both sides the way.(z) The rights, however, of the owner of the soil will be subject to those of the public as to their exercise of the 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 even dangerous to be travelled over, or incommodious, the public *have a right to go upon the adjacent ground; and that it makes no differenne whether such ground be sown with grain or not. (a) But it is a right [*462 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 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 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 of the soil.()

A way may become a public highway by a dedication of it by the owner of the soil, to the public use. Thus where the owners of the soil suffered the public to have the free passage of a street in 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 show the limited right of the public), it was held a sufficient time for presuming dedication of the way to the public. (c) So where a street, communicating with a public road at each end, has been used as a public road for four or five years, it was held the jury might presume a dedication. (d) 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(e) yet it was held, that where a way had been used by the public

(y) Rex v. Richards, 8 T. R. 634.

(2) Bac. Abr. tit. Highways (B.); Com. Dig. Chemin (A.) 2. The Marquis of Salisbury v. Great N. R. Co., 5 C. B. N. S. 174 (94 E. C. L. R.). The presumption, that the soil of a road usque ad medium filum viæ belongs to the owners of the adjoining lands, applies to both public and private roads: Holmes v. Bellingham, 7 C. B. N. S. 329 (97 E. C. L. R.); Berridge v. Ward, 10 C. B. N. S. 400 (100 E. C. L. R.); Smith v. Howden, 14 C. B. N. S. 398 (108 E. C. L. R); Reg v. The Strand Board of Works, 4 B. & S. 526 (116 E. C. L. R.). (a) 1 Roll Abr. 390 (A.) pl. 1, and (B.) pl. 1. Absor v. French, 2 Show. 28; Taylor v. Whitehead, Dougl. 749.

(b) Sir John Lade v. Shepherd, 2 Str. 1004.

Lord

(e) Trustees of the Rugby Charity v. Merryweather, 11 East 375, in the note. Kenyon also said, "In a great case, which was much contested, six years was held sufficient." But some observations were made upon this doctrine; and it was somewhat shaken in the case of Woodyer v. Hadden, 5 Taunt. 125 (1 E. C. L. R.), post, p. 463, note (0).

(d) Jarvis v. Dean, 3 Bing. 447 (11 E. C. L. R.), the street was neither paved nor lighted, but highway and paving rates had been paid.

(e) Trustees of the Rugby Charity v. Merryweather, 11 East 375; Wood v. Veal, post

P. 464.