: 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.(ƒ) And it was also held in this case that where a way had been so used, notice of the fact to the steward is notice to the landlord.(g) 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 he considered as a way dedicated to the public.(h) But the erection of a bar to prevent the passing of carriages, rebuts the *presumption of a dedication to the public; although *463] 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.() And it has been ruled that the owner of the soil may replace the bar after it has been taken away for twelve years.(k) Where land is vested in fee in trustees for certain public purposes, they may dedicate the surface to the use of the public as a highway, provided such use be not inconsistent with the purposes for which the land is vested in them. Commissioners for drainage, being authorized by an Act to make drains and dispose of the earth in forming banks on the sides thereof, made a drain, and with the earth taken from it made a bank on one side of it, which had been used for twenty-five years, as a public highway: it not appearing that the cleansing of the drains or any other purpose of the Act had been or was likely to be interfered with by such user of the soil, it was held that a dedication might be made by the commissioners. (7) So a canal company may dedicate a way to the public, as other persons or corporate bodies may do. They are the masters of their own property; and though they may be answerable to the rest of the proprietors for failure of duty, there is no reason why the public may not by user gain a right of way against them as well as against any other individuals.(m) But it seems that there must be some owner who can dedicate the way to the public, otherwise the road will not become a public way.(n) In every case the facts must be such as are sufficient to show 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 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.(0) And nothing done by a lessee without the consent of the owner of the fee (f) Rex v. Barr, 4 Camp. 16. (h) Rex v. Lloyd, 1 Camp. 260. (g) Id. ibid. (i) Roberts v. Karr, cor. Heath, J., Kingston Lent Ass. 1808; 1 Campb. 261, note (b); but see post, p. 469. (k) Lethbridge v. Winter, Somerset Spr. Assiz. 1808, cor. Marshall, Serjt., 1 Campb. 263, in the note. (1) Rex v. Leake, 5 B. & Ad. 469 (27 E. C. L. R.) 2 N. & M. 583. (m) The Surrey Canal Co. v. Hall, 1 M. & G. 392 (39 E. C. L. R.). See this case, post, p. 468. (n) Rex v. Edmonton, 1 M. & Rob. 24. See the case, post, p. 507. (0) Woodyer v. Hadden, 5 Taunt. 125, Chambre, J., dissent. In this case Mansfield, C. J., said, "No one can respect Lord Kenyon more than I do; but I always thought, as to the Rugby case (ante, note (c)), there was reason to doubt. I never could discover when the dedication began; he says that during the lease there was no dedication, but that eight years' acquiescence afterwards were sufficient; he says that in another case, six years were held to be enough, not naming the case-if six, why not one? Why not half a year? It would then become necessary for every reversioner, coming into possession of his estate after a lease, instantly to put up fences all round his property, to prevent dediAnd see Rex v. Hudson, 2 Str. 909. cation." will give a right of way to the public. Thus in a case of an action of trespass, and In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate-there must be an animus dedicandi-of which the user by the public is evidence and no more; and a single act of interruption by the owner is of much more weight upon a question of intention to dedicate than many acts of enjoyment, (s) but it is sufficient to show that there has been such a user by the public as satisfies the jury that a dedication to the public was intended by the owner, whoever he might be. Thus where a road had originally been set out under a private inclosure Act over part of the waste of a manor, and had been used by the public generally ever since it had been so set out, being a period of fifty years, and a portion of the waste, had been allotted to the lord in respect of his interest in the soil, it was contended that the soil of the road had been taken out of the lord, and transferred to no other person, and that therefore there was no owner or none against whom a dedication could be presumed; for that there must have been an owner who knew that he was so, or his consent to the public user could not be presumed; and that if the crown were the owner, stronger evidence would be necessary to raise a presumption of a dedication than if the owner had been a private person. But the Court of Queen's Bench held that a dedication might be presumed even against the crown from long acquiescence in public user, and that the jury were rightly directed to con[*465 sider whether the *owner, whoever he might be, had consented to the public user in such a manner as to satisfy the jury that he intended to dedicate a highway to the public.(t) On an indictment for obstructing a highway it appeared that the way had been laid out as a projected street in 1827, and used as a highway till 1836, when the defendants began to obstruct it, and soon after enclosed a part of the road. The owners of the soil of the greater part of the road brought ejectment; and, after negotiations between them and the defendants, the latter agreed to open the road, but finally in 1853 broke off the negotiations, assigning as a reason that they had, since the negotiations commenced, acquired the fee of another part of the road, on (p) Wood v. Veal, 5 B. & A. 454 (7 E. C. L. R.). The case was decided independently of the fact of there not being a thoroughfare. (9) Harper v. Charlesworth, 4 B. & C. 574 (10 E. C. L. R.); 6 D. & R. 572. And as the user of a way while the land is in lease is no evidence against the reversioner, he cannot maintain an action against a person claiming a right to use the way: Baxter v. Taylor, 4 B. & Ad. 72 (24 E. C. L. R.); 1 N. & M. 13. (7) The Trustees of the British Museum v. Finnis, 5 C. & P. 460 (24 E. C. L. R.), Patteson, J. (s) Per Parke, B., Poole v. Huskinson, 11 M. & W. 827. (t) Reg. v. East Mark, 11 Q. B. 877 (68 E. C. L. R.), per Lord Denman, C. J. Enjoyment for a great length of time ought to be sufficient evidence of dedication, unless the state of the property has been such as to make dedication impossible." which was the obstruction in question. It was shown that that spot had been part of an estate settled in strict settlement in 1823, on a tenant for life, with power to grant building leases, and for the trustees of the settlement to sell with the consent of the tenant for life. The first tenant in tail was an infant at the time of the trial. The tenant for life proved that in 1828 the whole of the property had been sold by his trustees, and that he had had nothing to do with it since. The jury were told that there was evidence that the way had been for several years actually used by the public, from which user a dedication might be inferred, and were asked whether they inferred that there was a dedication, and at what time and by whom; and they found that there was a dedication in 1829 by whoever was then owner of the fee. And it was held that this direction was right; for when there is satisfactory evidence of such a user of a road, as to time, manner and circumstances, as would lead to the inference that there was a dedication by the owner of the fee, if it was shown who he was, it is not necessary to inquire who the individual was from whom the dedication, necessarily inferred from such user, first proceeded; and when such user is proved the onus lies on the person who seeks to deny the inference from it, to show negatively that the state of the title was such that that dedication was impossible, and that no one capable of dedicating existed. That here the statement of the defendants that they acquired the fee in 1853, and of the tenant for life that he had had nothing to do with the property since 1828, wa evidence that the fee was not subject in 1829 to the settlement, and therefore there was nothing to rebut the inference from the public user at that time.(u) It is not enough, however, to establish the right of the public, that the persons using the way reasonably believed, from the conduct of the owner, that they had acquired a right to it; an actual intention on the part of the owner to dedicate must be shown.(v) Where it appeared that a road ran from a highway to the lodge of a park as a carriage-way, but there was no road through the park but a bridleway leading to another highway; the park gates were sometimes locked, but persons on *466] foot and on horseback were allowed to pass through the park; but after rain, when the road was liable to be cut up, carriages were refused admission; there was no actual thoroughfare beyond the park gates, but there were private roads leading from the road to two farms; the surveyor of highways had been in the habit of taking stone from the park to repair the road, and had, after supplying other stone, used the whole for the purpose of repair; the parish, in conjunction with the adjoining parish, had done the repairs from time immemorial; and the road was used by every one who thought fit to use it, but there had not been any user of the road by the public except for the purpose of going to the park to seek admission there; and it was held that this was not such a dedication as would make the road a public highway.(w) Where the question was as to a right of way over a farm, it was not disputed that the road was a footway or a bridleway. A former lessee of the farm had made it for his own use. Persons had been allowed to pass along it on foot and on horseback, but heavy carts had been turned back, and there had always been gates. In 1838 permission had been asked to use the road, and in 1848 the defendant had agreed to pay something yearly for leave to use it, it was alleged, but as he said only to repair it. The parish had never repaired it. The way was claimed as a public way to Croham Hurst, an eminence which commands a pleasant prospect, and is therefore a resort for parties of pleasure. Bailiffs of former tenants, going back fifty or sixty years, gave evidence of the user of the right, and absence of all obstruction. Erle, J., told the jury that the question was whether they were satisfied that there had been a dedication of the road to the public by the owner. (u) Reg. v. Petrie, 4 E. & B. 737 (82 E. C. L. R.) If (v) Hall v. Crawford, Q. B. E. T. 1860. Bateman's Highway Acts 23, from which the text is an accurate copy. (w) Reg. v. Hawkhurst, 7 Law T. 268. Cockburn, C. J., thought the facts explained the user; and Wightman, J., thought the repairs might be referred to the bridleway. It was not doubted that there might be a highway, which was not a thoroughfare. See ante, p. 459. all the Queen's subjects had used the way at their free will at all times, that was strong evidence of such a dedication as a highway. But the evidence of such a user was to be well weighed, with reference to gates, to repairs, to permission, and the like. It was a matter of common experience that there were many farm roads which, as means of communication, were of great convenience, and which many persons used a long time before it became worth the owner's while to resort to any measures to prevent it. On the other hand, the fact of payment for the user would not be conclusive against the right, for it might be that a man was not in a position to enforce the right. Still it was a strong piece of evidence against the right. The strongest evidence in favor of the right was that of the bailiffs of former owners; for it would be within their province to prevent trespasses. Easy-minded men would not, however, be prepared to contest every user; and it was matter for the jury whether the evidence tended to show a farm road, or a highway for all the world, and whether the user as a highway had been submitted to by the owners. Beyond all doubt there might be user of a highway for purposes of pleasure. It was very material that there had been no repair by the parish, though this was not conclusive.() *Upon an indictment for stopping up a highway, witnesses, chiefly sea[*467 faring people, having proved that they had used the way without interruption for a great number of years; it was proposed to prove that the directions of the predecessor of the defendant to his servants were to allow seafaring men and pilots to make use of the way for purposes connected with their calling, but to turn back other persons. Pollock, C. B., "Even supposing these instructions to have been given and acted on, yet, unless it can be proved that they were communicated to the persons who used the path, and that they did so by virtue thereof, and not of right, their user was a user by the public, and the right of the way has been gained, if the user has been long enough. I do not think that such evidence, taken alone, would be relevant (y) Where there was a piece of garden ground in front of a house, with the fence on the side of a footpath and a road respectively, and there was a gate, which was kept bolted, at the footpath side, leading to the door of the house, and also gate-posts, but no gate near to the house at the road side, and people had frequently passed across the garden, but the defendant swore that they had no right to go that way, and that he had repeatedly sent persons back; it was held that there was no evidence to go to the jury of a public way.(z) In determining whether or not a way had been dedicated to the public, the intention of the proprietor must be considered. If it appear only that he has suffered a continual user that may prove a dedication: but such proof may be rebutted by evidence of acts showing that he contemplated a license only resumable in a particular event. Thus where the owner of land agreed with the Thorncliffe Iron Company, and with the inhabitants of a hamlet repairing its own roads, that a way over his land should be open to carriages, that the company should pay him £5 a year, and supply cinders for the repair of the road, and that the hamlet should lead and spread them, and from that time the road was used as a carriageroad without obstruction for nineteen years, when disputes arose, and the passage along the road with carriages was interrupted, and the interruption acquiesced in for five years: it was held that the evidence showed no dedication, but only a license to use the road, resumable on breach of the agreement. (a) So where in order to show that a road is a public highway evidence is given that repairs have been done to it by the surveyor of highways, it is competent to prove an agreement between the surveyor and an agent of a landowner, which tends to explain such repairs, and to show that the road had not been repaired as a parish road, but under a private bargain.(b) Where the owner of the soil has been under a compulsory obligation to permit a (z) Mildred v. Weaver, 3 F. & F. 30. (y) Reg. v. Broke, 1 F. & F. 514. Sed quære; for it is strong evidence to show that there was no animus dedicandi. See Hall v. Crawford, ante, p. 465. (z) Stone v. Jackson, 16 C. B. 199 (81 E. C. L. R.). (a) Barraclough v. Johnson, 8 Ad. & E. 99 (35 E. C. L. R.); 3 N. & P. 233. (b) Ferrand v. Milligan, 7 Q. B. 730 (53 E. Č. L. R ). 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, *468] and certain persons only were by the Act to use it, but in fact it had been used by the public for nearly seventeen years, it was held, that this was not sufficient evidence of a dedication to the public.(c) But where a canal company were required to make and maintain bridges over a canal for the use of the owners and occupiers of adjoining lands, and also where the canal was carried across any highway, bridleway or footpath; and in 1804 the company erected a swivel bridge at a spot where there was a public bridleway and footway, which bridge, as a carriage-way, was intended to be for the exclusive accommodation of the tenants of an adjoining estate. From 1810 to 1822 the public occasionally used the bridge with carriages. In 1822 a church was built near to the canal, streets were formed, and the neighborhood became very populous. From 1822 to 1832 the bridge was used by the public as a carriage-way, without interruption. In 1832 the company began to exact a toll from persons not tenants of the adjoining estate crossing the bridge with carriages, and in 1834 they removed the swivel bridge, and built a stone bridge in its stead. It was held that the evidence warranted the jury in finding that there had been a dedication. The fact of the public having the uninterrupted use of the way from 1822 to 1832 was a strong ground for inferring an intention on the part of the company to dedicate the way to the public. But if the matter rested on what took place since 1834, it could not be said that there had been a dedication to the public; but the previous period must be looked at, and if the public had acquired a right of way along the swivel bridge, the circumstance of the company erecting the stone bridge in its place could not have the effect of destroying that right.(d) Upon an indictment for encroaching upon a public highway, it appeared that in 1771, commissioners under an inclosure Act had been empowered to set out public and private roads, the former to be repaired by the township, the latter by such persons as the commissioners should direct. The public roads were to "be and remain sixty feet in breadth between the fences." The road in question was described in the award as a private road, and the width of eight yards; but in fact a space of sixty feet was left between the fences till the time of the alleged encroachment. The centre of this space was commonly used by the public as a carriage-road, and had been repaired by the township for eighteen years before the encroachment. The space said to be encroached upon was at the side of this road, and there was a diversity of evidence as to the use made of this space by the public, and its condition since the time of the award. The commissioners, in their award, directed that the township should repair as well the public as the private ways. Park, J., in summing up, observed that the commissioners had exceeded their authority in awarding that a private road should be repaired by the township; (e) but he left it to the jury to decide, whether the road, though originally meant to be a private one, had not subsequently been dedicated to the public, and they found a verdict of guilty, and it was held, that the case was for the jury, and that they had found a proper verdict.(ƒ) *It seems that there may be a partial dedication of a way, although *469] doubts have been entertained upon the subject. Where the owner of an estate permitted the public to use a road for several years for all purposes except that of carrying coals, Bayley and Holroyd, JJ., thought there might be such a partial dedication.(g) So where an indictment for non-repair of a bridge used “at all such times as and when it has been or is dangerous to pass through the river by the side of the bridge," was objected to because it did not show the bridge to be a public bridge, but only a bridge to be used on particular occasions, which could not (c) Rex v. St. Benedict, 4 B. & A. 447 (6 E. C. L. R.). (d) Surrey Canal Company v. Hall, 1 M. & G. 392. (e) Rex v. Cottingham, 6 T. R. 20, post, p. 507. (f) Rex v. Wright, 3 B. & Ad. 681 (23 E. C. L. R.). See this case also, post, p. 490. (g) Marquis of Stafford v. Coyney, 7 B. & C. 257 (14 E. C. L. R.), Littledale, J., doubted. And see Cowling v. Higginson, 4 M. & W. 245, where the Court seems to have been of opinion that there might be a partial dedication. |