and all other roads now travelled," were granted to trustees for Christ Church, Mimico, and subsequently transferred by them to the Rector, under whom defendant held. One of such roads crossed defendant's land. It was proved that, during two years, statute labour had been performed upon it, and that it had been travelled for nearly fifty years. When the regular allowances were opened, defendant obstructed this road, and it appeared that other similar roads in the neighbourhood had been closed in the same manner: -Held that the road could not be considered a highway, for the evidence shewed not a perpetual dedication, but at most a permission to use until the proper allowance was opened, when, if not before, the defendant had a right to close it. (2) That it was not a highway under the 29 & 30 Vic., c. 51, s. 315, for it could not be said that statute labour had been usually performed" upon it; and as it was, in fact, only a substitute for the regular allowance, it might fairly be treated as "altered" within the spirit of that clause when the allowance was open. (3) That no right by dedication could have been gained by the public while the fee remained in the Crown, and the permission of the Rector for the time being, or his tenants, could not bind his successors. (a) The 315th clause of the 29 & 30 Vic., c. 51, cannot be taken to mean that every bye road or short cut used by the Indians across the plains or fiats is to be established as a permanent highway. It only means that roads which, under the provisions of that Act, are to acquire the character of legal highways, should have that same legal character where they passed through Indian lands, as in other parts of their course, although they might not be public allowances made in any original survey, (a) Reg. v. Plunkett, 21 U. C. Q. B. 536. nor had any public money been expended, or statute labour performed on them. (a) Where the defendant was convicted on an indictment charging him with having obstructed a "highway," on evidence which, as reported to the Court, did not shew that the alleged highway had been established by a plan, filed or signed by the owners of the adjoining lots, or by the general user of the public, it having been used by one or two persons only for a short time, or that any clearly defined portion of land had been marked off and used; but there appeared to have been merely an open space, not bounded by posts or fences, over which the owners of the adjoining land had been in the habit of passing in the carriage of goods, wood, etc., to the rear of the premises-Held, that there was not sufficient evidence to support the conviction, and it was, therefore, quashed. (b) The roads of joint-stock companies are not public roads or highways, within the meaning of 22 Vic., c. 54, S. 336 (c) Under Con. Stats. U. C., c. 54, s. 313, the fact of the Government surveyor having laid out a road in his plan of the original survey, would make it a highway, unless there was evidence of his work on the ground clearly inconsistent with such plan. (d) A public road, laid out in the original survey of Crown lands, by a duly authorized Crown surveyor, is a public highway, though not laid out upon the ground. After a road has once acquired the legal character of a highway, it is not in the power of the Crown, by grant of the soil, and freehold thereof, to a private person, to defeat the public of their right to use the road. (e) (a) Byrnes v. Bown, 8 U. C. Q. B. 181. (b) Reg. v. Ouellette, 15 U. C. C. P. 260. (c) Reg. v. Brown and Street, 13 U. C. C. P. 356. (d) Carrick v. Johnston, 26 U. C. Q. B. 69. (e) Reg. v. Hunt, 16 U. C. C. P. 145. The defendant being indicted for overflowing a highway with water, by means of a mill dam maintained by him, objected that there was no highway, and could be no conviction, because the road overflowed, which was an original allowance, had been in some places enclosed and cultivated. It was used, however, at other points, and those who had enclosed it were anxious that it should be opened and travelled, which, they said, was impossible, owing to the overflow. The overflow was at other parts than those so enclosed :-Held that the conviction was clearly right, and the 335th section of the 29 & 30 Vic., c. 51, did not apply, because no other road had been in use in lieu of the proper allowance, nor had any road. been established by law in lieu thereof. (a) The original public allowances for road made in the first survey of a township continued to be public highways, notwithstanding a new road deviating from any such allowance might have been opened under the provisions of the Statute 50 Geo. 3, c. 1, or might have been confirmed as a highway by reason of statute labour or public money having been applied upon it. (b) Where, in the original plan of a township, a piece of ground was laid out as a highway, which was subsequently granted by the Crown, in fee, to several individuals, and was occupied by them, and others claiming under them, for upwards of thirty years, and never had been used as a highway :-Held that an indictment for a nuisance for stopping up that piece of ground, claiming it as a highway, could not be sustained. (c) An indictment for obstructing a highway, laid out under 50 Geo. 3, c. 1, could not be supported when the highway had not been established in the manner marked out (a) Reg. v. Lees, 29 U. C. Q. B. 221. (b) Spalding v. Rogers, 1 U. C. Q. B. 269. (c) Rex v. Allan, 2 U. C. Q. B. Ö. S. 90. by that Statute, and could not, therefore, be considered as a public highway. And semble, in such a case, all the steps necessary to be taken before a highway could be legally established under that Act should be proved by the prosecutor to have been taken before the defendant could be found guilty. () Where the Crown granted a lot of land on the bank of Lake Ontario, and along the bank of the lake, and to Lake Ontario, it was held that the Crown had power to grant the beach up to high water mark; and in this case the grant being to a private individual, and having conveyed to him the land to the water of the lake, there was no common or public highway along the beach. (b) The actual sea shore may be granted by the Crown, and then there is no highway over it; and even when ungranted, unless by dedication, there is no highway against the will of the Crown. It would seem that in grants of land in our waters having a river or lake boundary, the grant extends to the water, and there is no place between the land conceded and the water on which to place the highway. (c) A Government survey will prevail in establishing a highway against the right of a party in possession, to whom a patent afterwards issues. (d) A highway, of which the origin was not clear, had been travelled for forty years across the plaintiff's lot, the patent for which was issued in 1836. The munici. pality, in 1866, passed a by-law shutting up the road; but no conveyance was ever made to the plaintiff:-Held that the user for thirty years after the patent would be conclusive evidence of a dedication against the owner, and (a) Rex v. Sanderson, 3 U. C. Q. B. O. S. 103. that such evidence was equivalent to a laying out by him, so that the road, under Con. Stat. U. C., c. 54, s. 336, was vested in the municipality. (a) Under 4 & 5 Vic., c. 10, the District Council could not open a new road, except by by-law; and where, therefore, no by-law was shewn :- Held that the road was not sufficiently established, and upon the evidence there was nothing to shew dedication. (b) A dedication of land to the public use takes effect from the intention of the person making it; and merely opening or widening a street, for the convenience of the person doing it, or leaving land open where it is immediately adjacent to a highway, and permitting the public to use it, will not constitute a dedication. (c) A. being owner of a large tract of land, laid out a plot for a town at the mouth of the river B., upon the map of which town a road was marked off, leading along the edge of the river, to its mouth. The road was made. originally at the expense of A., but afterwards repaired and improved by statute labour and public money, and holes filled up in the part upon which the obstruction complained of was erected. After indictment, and verdict of guilty, it was held that there was sufficient evidence of intention to dedicate the street by the plan, by user and the declaration of the owner to establish a dedication, and that the verdict of guilty was in accordance with the evidence. (d) One H. owned a block of land fronting on Elizabeth Street, in Toronto, and running back to the centre of the block, between Elizabeth and Teraulay Streets. In laying out the land, he ran a street or lane of forty feet from (a) Mytton v. Duck, 26 U. C. Q. B. 61. N |