be if it were a public highway, for according to the language of Heath, J., in Roberts v. Karr, (h) there could not be a partial dedication to the public; Lord Ellenborough, C. J., said, though it must be an absolute dedication to the public, still it might be definite as to time, and the Court overruled the objection.(i)

The correct distinction in cases of this kind appears to be that there may be a dedication of a way to the public for a limited purpose, as for a footway, horseway, or driftway; but there cannot be a dedication to a limited part of the public, as to the inhabitants of a parish and persons resorting to their houses. (k) Thus there may be a dedication of a highway, subject to a partial interruption during the continuance of a fair or market for a certain limited and not unreasonable time.(1) So where in front of a line of houses there was a footway; then a space of thirtythree feet wide between the footway and a carriageway, and the occupiers of the houses had always made use of so much of the intermediate space as was opposite to their respective houses, in such manner as suited their trades or occupations; but the public had at all times passed over the intermediate space as of right subject to such use of it by the occupiers; the Court of Queen's Bench seem to have been of opinion that this was a dedication to the public, subject to such use by the occupiers.(m) So where there had been a public highway over a quay in front of certain houses, and as far as living memory went there had been a user by the occupiers thereof to deposit anchors and other incumbrances thereon, the Court of Exchequer thought that in point of law a dedication might have been made subject to such user.(n)

A highway may be dedicated with obstructions or impediments which, if made in an existing highway, would be a nuisance. Thus where a cellar had an opening. into a footway, which was open during the day, but shut at night with a flap which slightly projected above the footway, and this state of things had existed as far as living memory went, it was held that the jury ought to draw the [*470 conclusion that it had existed as long as the footway, and that the dedication of the way to the public was with the reservation of the flap being continued there, and accepted by them subject to the inconvenience arising from it: and that such a dedication might lawfully be made, and consequently that the flap was no nuisance; though it would have been otherwise if it had been placed in an existing footway.(0)

Where a private right of way already exists, the owner of the land over which it runs can only dedicate that land to the public subject to such private right; for he can give nothing but what he himself has, i. e., a right of user not inconsistent with the private easement ;(p) and the acquiring a right of way by the public does not destroy a previously existing private right of way over the same line.(q)

But there can be no dedication of a way by an individual to the public for a limited time, whether certain or uncertain, and if dedicated at all by an individual, it must be dedicated in perpetuity.(r)

(h) 1 Camp. N. P. C. 262, n.

(i) Rex v. Northampton, 2 M. & S. 262. See Rex v. Marquis of Buckingham, 4 Camp.

N. P. 189.

(k) Poole v. Huskinson, 11 M. & W. 827.

(1) Elwood v. Bullock, 6 Q. B. 383 (51 E. C. L. R.).

(m) Le Neve v. Vestry of Mile End Old Town, 8 E. & B. 1054 (92 E. C. L. R.).

(n) Morant v. Chamberlin, 6 H. & N. 541.

(0) Fisher v. Prowse, 2 B. & S. 770 (110 E. C. L. R.); s. P., as to projecting steps, Cooper v. Walker, Ibid. See Robbins v. Jones, 15 C. B. (N. S.) 221 (109 E. C. L. R.), fully adopting Fisher v. Prowse.

(p) Reg. v. Chorley, 12 Q. B. 515 (64 E. C. L. R.).

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

(7) Reg. v. Lordsmere, post, p. 471; Dawes v. Hawkins, 8 C. B. (N. S.) 848 (98 E. C. L. R.); in this case an ancient way over a common was, without authority or interference from the owner of the soil, diverted by an adjoining proprietor, who substituted a new road for it, which was used for more than twenty years by the public, and then the original road was reopened to the public and used by them; and Erle, C. J., and Byles, J., held that these facts afforded no reasonable evidence of a dedication of the substituted road to the public, the public user thereof being referable to the right of the public to deviate on the adjoining land in consequence of the old road being stopped up. Williams, J., dissentiente.

Public roads are frequently created by Acts of Parliament, but in these cases the road will only continue to be a public road so long as the Act continues in force, and the performance of statute duty upon the road during the continuance of the Act is no adoption of the road so as to render the parish liable to repair it after the Act has expired. A road was made by the trustees appointed under the 45 Geo. 3, c. 7, which was to continue in force for twenty-one years, and from thence to the end of the then next session of Parliament, and which required the inhabitants to do statute duty upon the road: it was held that when the Act ceased to be in operation, the road made pursuant to its provisions was no longer a public road, and as, during the time the Act continued in force, the several parishes through which the road passed were compelled by the Act to do statute duty, there was no adoption of the road by those parishes during that period. As soon as the Act expired or was repealed, the several parishes, through which the road passed, could only be liable to repair by reason of common law obligation. Now a road becomes public by reason of a dedication of the right of passage to the public by the owner of the soil, and of an acceptance of the right by the public or the parish; and in this case the facts did not furnish any ground for presuming an adoption by the public. (s)1

Upon an indictment for non-repair of a common Queen's *highway, it ap*471] peared that the road was made under a turnpike Act, which was to continue in force for twenty-one years, and had been kept in force by subsequents Acts till the finding of the indictment. It was opened in 1850 for general traffic, a stagecoach had run along it, and it had been used by carts and carriages. It was proposed to prove in defence that the trustees had never put the road in good repair, and that it had never been properly fenced or finished so as to fulfil the requisitions of the Act; but as it had been so far completed as to have been used along the whole line for several years, Patteson, J., rejected the evidence as tending to prove what was immaterial. It was contended, after a verdict of guilty, that the township was not liable to repair a temporary turnpike road; that the way was improperly described, as it was not described as a way for a limited time, and that the evidence was improperly rejected, as unless the road had been completed by the trustees, the township had not become liable to repair. But it was held that this was a common Queen's highway at the time the bill was found, and that the township was liable to repair it, at least as long as the Act continued in force, and that there was no misdescription, and that after the road had been opened and used for so many years, it was much too late to raise any objection to its not having been fully completed.(t) Where a road was made by turnpike trustees under a temporary Act which expired in 1848, but the whole line authorized by the Act had never been completed for twenty-eight years it had been used by the public, and rates had been made, during that time, at the parish meetings, for the repair of the road, and the road had on many occasions been repaired, and the surveyor had been paid for such repairs, but during such time portions of the road were frequently not kept in sufficient repair, and in one part there was a hole a yard deep made by persons employed to repair the road in order to obtain materials, but vehicles could pass between that and the hedge, and the parish had not attempted to fill it up. Two or three bars or chains were put up shortly after the making of the road, and toll demanded and sometimes refused; but the chain and bars had been removed for more than twelve years. On an appeal against a conviction in 1857 for obstructing this road, the sessions confirmed the conviction, subject to the opinion of the Court of Queen's Bench, whether there was evidence that the said road ever became a highway compulsorily repairable by the parish; and that Court

(8) Rex v. Mellor, 1 B. & Ad. 32 (20 E. C. L. R.). See the remarks of Patteson, J., in Reg. v. Lordsmere, infra, that this decision proceeded on the old notion that an adoption was required, which was overruled in Reg. v. Leake, post, p. 496; Rex v. Winter, 8 B. & C. 785 (15 E. C. L. R.); 3 M. & R. 433.

(t) Reg. v. Lordsmere, 15 Q. B. 689 (69 E. C. L. R.).

1 All roads laid out by public authority must be regarded as public roads in the obstruction of which nuisance may be committed: State v. Mobley, 1 M Mullan 44.

held that there was such evidence, and that, though the fact that the road was originally made under the turnpike Act, might explain away such evidence in fact, it did not conclusively rebut it in law. (u)

Where an ancient highway is turned into a turnpike road the imposition of tolls does not prevent its continuing to be repairable by the parish.(v)

Where by an Act of Parliament trustees are authorized to make a road from one point to another, the making of the entire road is a condition precedent to any part becoming a highway repairable by the public. Trustees, being empowered to *make a turnpike road to extend twelve miles in length, completed only [*472 eleven miles and a half of the road, to a point where the new road intersected another public road, leaving half a mile at the extremity of the intended road unmade: it was held that the trustees not having completed the road which the Act authorized them to make, the burden of repairing it could not be thrown on the public.(w) And in a subsequent case the same decision was made, although the part had been made from twenty to thirty years, and repaired from time to time by the public.(x) And although in one case(y) where trustees were authorized to make a turnpike road and several branch roads from it, two learned judges expressed an opinion that each road, as soon as it was completed, and certified by two justices so to be, became a public highway, because the Act required the justices to certify as to each road respectively; yet it has since been held in a similar case() that not only the principal road but all the branch roads must be completed before the public can be made liable to repair any part. Acts of this kind are bargains made on behalf of the public, not on the great line of road merely, but on every part of the roads, for the branches may have been the consideration upon which consent was given to the making of the main road.

Where a highway has once existed no interruption or cesser of user will prevent its continuance as a highway. Where a highway was proved to have existed for forty years before 1827, and then to have been interrupted for more than twenty years, it was contended that such an interruption acquiesced in by the public was sufficient in law to exclude such right of way on behalf of the public; but it was held that the fact that a person had for more than twenty years prevented the public from doing what they had done before for forty years, did not destroy the right. An interruption for such a period was evidence that no right ever existed, but it might be met by counter evidence. (a)

By the common law an ancient highway cannot be changed without the King's license first obtained upon a writ of ad quod damnum, and an inquisition thereon found that such a change will not be prejudicial to the public: and it is said that if one change a highway without such authority, he may stop the new way whenever he pleases; and it seems that the King's subjects have not such an interest in such a way as will make good a general justification of their going in it as in a common highway; but that in an action of trespass, brought by the owner of the land, against those who shall go over it, they ought to show specially, by way of excuse, how the old way was obstructed, and the new one set out. And it is also said, that the inhabitants are not bound to keep watch in such new way, or to make amends for a robbery therein committed, or to repair it.(b)

*It is certain that a highway may be changed by the act of God; and there

fore it has been holden that if a water, which has been an ancient highway, by [*473

(u) Reg. v. Thomas, 7 E. & B. 399 (90 E. C. L. R.).

(v) Reg. v. Lordsmere, supra.

(w) Rex v. Cumberworth, 3 B. & Ad. 108 (23 E. C. L. R.); Rex v. Hepworth, Ibid. 110; Hullock, B., York Lent As. 1829.

8. P.,

(z) Rex v. Edge Lane, 4 Ad. & E. 723 (31 E. C. L. R.).

(y) Rex v. W. R. Yorkshire, 5 B. & Ad. 1003 (27 E. C. L. R.); Littledale and Taunton, JJ.

(z) Rex v. Cumberworth, 4 Ad. & E. 731 (31 E. C. L. R.). See per Lord Eldon in Blakemore. The Glamorganshire Canal Company, 1 M. & K. 162; and Reg. v. The Eastern Counties Railway Co., 10 A. & E. 531 (37 E. C. L. R.).

(a) Young v. Cuthbertson, I Macq. Sco. App. Cas. 455.

(b)1 Hawk. P. C. c. 76, s. 3; Burn's Just. tit. Highways, s. 11. The writ of ad quoa damnum seems virtually abolished by the new Highway Act, s. 84, infra, p. 475. See Woolrych's Highway Act 112.

degrees change its course, and go over different ground from that whereon it used to run, yet the highway continues in the new channel as it previously was in the old.(c) But it may well be doubted whether this position can be applied to roads, and it seems clearly inapplicable to a case where a public road is washed away by the sea. An indictment alleged that a certain part of a public highway, which had existed from time immemorial, was out of repair, and that the defendant was liable to repair it by reason of the tenure of his lands, and it was found by a special verdict that the sea had from time to time made incroachments upon the said lands, and carried away the soil and earth of the same, so that part of the space occupied by the said lands was occupied by the sea; and that there was an ancient highway as stated in the indictment, part whereof passed over the said lands, and that the incroachments of the sea had from time to time extended unto and over the said ancient highway, so that a portion of the said highway was covered by the sea and impassable, wherefore those, whose estate the defendant had, had, from time to time, gradually removed the same highway, and appropriated other parts of the said land for the site thereof, so that the public had had the uninterrupted use of a road for the purposes of the said highway, and that the same road had always been repaired by the defendant and those whose estate he had in lieu of so much of the ancient highway, and that the sea had made an incroachment in the month of March last, upon the part of the highway mentioned in the indictment; and carried away large quantities of the soil thereof, and that the highway was thereby rendered impassable. And it was held by the Court of Queen's Bench, that the defendant was entitled to be acquitted. (7) So where an indictment described a road as leading from a street to the German Ocean, and alleged that part of it was in great decay for want of due reparation, and it appeared that the road had formerly sloped gradually down towards the sea, but had been washed away from time to time by the incroachments of the sea, and at the time when the indictment was preferred the termination of the road had become a perpendicular cliff twenty feet high, which rendered it impossible for any cart or carriage to get down to the beach, but the surface of the existing road was in good repair up to where the same had been swept away by the destruction of the cliff; it was held that there did not exist any legal obligation upon the parish to provide an available carriageroad down to the beach. The indictment alleged that there was a highway, and that it was out of repair; but it is found that that part of the road alleged to be out of repair has been washed away by the sea, so that the subject of repair is not in existence; and in order to create an obligation to repair, there must be something in existence capable of being repaired. (e)

So where upon an indictment for non-repair of a highway *it appeared *474] that the highway alleged to be out of repair had passed along the top of a quay, which was a thick wall of solid masonry of considerable height, and the surface of it was composed of large pieces of granite mortared together, and had been used by persons going on foot and on horseback and with small carts used by fishermen, and two or three years before the sea had washed away a considerable portion of the quay leaving a gap, which completely broke off the communication. Maule, J., held that the defendants were entitled to be acquitted. Whatever might be the duty of the parish as to the road whilst the quay existed, they were not defaulters on this evidence. The interruption of the passage was not from the want of repair, but from the sea having washed away the wall, and there was no longer anything for them to repair.(f)

By the 5 & 6 Will. 4, c. 50, s. 80, the surveyor shall make every public cartway, leading to any market town, twenty feet wide at the least, and every public horseway eight feet wide at the least, and every public footway by the side of any carriageway three feet at the least, if the ground between the fences inclosing the same will admit thereof.(g) And by sec. 82, where it shall appear, upon the view (d) Reg. v. Bamber, 5 Q. B. 279 (48 E. C. L. R.). (e) Reg. v. Hornsea, Dears. C. C. 291. See Reg. v. Leigh, 10 A. & E. 398 (37 E. C. L. R.), as to sea walls washed away by an extraordinary tempest. (f) Reg. v. Paul, 2 M. & Rob. 307.

(c) 1 Hawk. P. C. c. 76, s. 4.

(g) 1 Hawk. P. C. c. 76, s. 16. The surveyor has no authority to pare away the bank

of two justices, that any highway is not of sufficient breadth, and may be widened and enlarged, the said justices shall order such highway to be widened and enlarged in such manner as they shall think fit, so that the said highway, when enlarged and diverted, shall not exceed thirty feet in breadth; and that neither of the said powers do extend to pull down any house or building, or to take away the ground of any garden, lawn, yard, court, park, paddock, planted walk, plantation, or avenue to any house or any inclosed ground set apart for building ground, or as a nursery for trees. The statute then proceeds to empower the surveyor to agree with the owners of the ground wanted for such purposes for their recompense; and provides, that if they cannot agree, the same may be assessed by a jury at the quarter sessions; and, after directing the proceedings in such event, it enacts that, upon payment or tender of the money so to be awarded and assessed, to the person, body politic or corporate, entitled to receive the same, or leaving it in the hands of the clerk of the peace of such limit, in case such persons, &c., cannot be found, or shall refuse to accept the same, for the use of the owner of or others interested in the said ground, the interest of the said person, &c., in the said ground shall be for ever divested out of them; and the said ground, after such agreement or verdict as aforesaid, shall be esteemed and taken to be a public highway, to all intents and purposes whatsoever.”(h)

expe

Sec. 84. "When the inhabitants in vestry assembled shall *deem it [*475 dient that any highway should be stopped up, diverted, or turned, either entirely or reserving a bridleway or footway along the whole or any part or parts thereof, (i) the chairman of such meeting shall, by an order in writing, direct the surveyor to apply to two justices to view the same, and shall authorize him to pay all the expenses attending such view, and the stopping up, diverting or turning such highway, either entirely or subject to such reservation as aforesaid, out of the money received by him for the purposes of this Act; provided nevertheless, that if any other party shall be desirous of stopping up, diverting, or turning any highway as aforesaid, he shall,(k) by a notice in writing, require the surveyor to give notice to the churchwardens to assemble the inhabitants in vestry, and to submit to them the wish of such person; and if such inhabitants shall agree to the proposal, the said surveyor shall apply to the justices as last aforesaid for the purposes aforesaid; and in such case the expenses aforesaid shall be paid to such surveyor by the said party, or be recoverable in the same manner as any forfeiture is recoverable under this Act; and the said surveyor is hereby required to make such application as aforesaid."

Sec. 85. "When it shall appear upon such view(7) of such two justices of the

of a fence by the side of a road under this clause: Alston v. Scales, 9 Bing. 3 (23 E. C. L. R.). See Lowen v. Kaye, 4 B. & C. 3 (10 E. C. L. R.) ; 6 D. & R. 20. (h) Sec. 82. It was decided that a similar power thus given to two justices by the 13 Geo. 3, c. 78, to order any highway to be widened extended to roads reparable ratione tenure; and that upon disobedience to such order the party might either be proceeded against summarily under the statute, or by an indictment as for an offence at common law: 1 Hawk. P. Č. c. 76, s. 57; Rex v. Balme, Cowp. 648. Sec. 83 provides for the costs of the proceedings at the sessions.

(1) This provision seems to have been introduced to get rid of the doubts entertained in Rex v. Winter, 8 B. & C. 785 (15 E. C. L. R.), as to whether justices could divert a road for carriages and continue it for foot passengers. An order for stopping up half the breadth of a highway under the 55 Geo. 3, c. 68, was bad, although the other half was not within the division of the justices who made the order: Rex v. Milverton, 5 A. & E. 841 (35 E. C. L. R.); 1 N. & P. 179.

(k) This seems virtually to do away with the writ of ad quod damnum, as the clause is imperative on the party desiring to stop up a highway to proceed under this section. C S. G.

(7) Actual inspection being the foundation of the jurisdiction of the justices, an order must have distinctly stated that the justices acted upon view. An order stating the view thus, "we having upon view found," Rex v. Justices of Cambridgeshire, 4 A. & E. 111 (31 E. C. L. R.); 5 N. & M. 440; or "we having upon view found, and it appearing to us," Rex v. Milverton, 5 A. & E. 841 (35 E. C. L. R.); 1 N. & P. 179, was good: but an order thus, "we having particularly viewed the public roads and footway hereinafter described, and we not being interested in the repair of the said roads and footway, and being satisfied that the highways," &c., was bad, because the clause containing the original and material