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Elizabeth Street to the limit of his own property, which was not enclosed or separated from the land adjoining. A short time after, and about seventeen years before the finding of the indictment, M., the owner of the adjoining land to the east, fronting on Teraulay Street, erected a fence to enclose his own land, running across the head of the lane. II. had nothing to do with the putting up of this fence, and there was no concert between him and M. as to the plan of survey, or the laying out of their respective properties. G., owning land bought from M., abutting on the head of the lane, threw down the fence, so as to make a thoroughfare to his own premises. defendants, occupying lots in the lane, purchased from H., and contending that G. had no right to convert the lane into a thoroughfare to his own lot, re-erected the fence a few inches west of that pulled down, and thereupon G. procured them to be indicted for nuisance, in obstructing a public highway. A verdict of guilty was directed, subject to the opinion of the Court, on the facts above stated-Held that the jury should have been directed to find whether the lane, when first laid out, was dedicated by H. to the public as a highway generally, or whether, with reference to the Statute 13 & 14 Vic., c. 15, s. 1, there was an express reservation of any right by him. (a)

In order to prove that a way was, in fact, public, evidence was given of acts of user extending over nearly seventy years, but during the whole period the land crossed by the way had been in lease. The Judge told the jury that they were at liberty, if they thought proper, to presume from these acts a dedication of the way by the defendant, or his ancestors, at a time anterior to the land being leased :-Held a proper direction. (b)

(a) Reg. v. Spence, 11 U. C. Q. B. 31.

(b) Winterbottom v. Lord Derby, L. R. 2 Ex. 316.

A public highway may be established in this country by dedication and user; but if the question arises between the public and the owner of the land, in a newly settled part of the country, stronger evidence may be required than in a more settled and populous neighbourhood. Land was granted to the Corporation of St. John, in 1785, reserving a right to the Crown to enter on the land at any time, and erect barracks, batteries, etc. :— Held that this did not prevent the Corporation from dedicating a part of the land to the public for a highway, and that neither the running of lines across the land by officers of the Engineers, in 1816 and 1818, without proof of their instructions, nor the subsequent erection of a gate across the road, and occasionally closing the same, was sufficient evidence of the exercise of the reservation to vest the exclusive right to the land in the Crown, the road having, from that period, been constantly used by the public, and by the military only as a road. (a)

Dedication of a road to the public may be presumed from long user, and the expenditure of statute labour on the road; and a party may be convicted under the Act 5 Wm. 4, c. 2, s. 16, for encroaching upon such a road, as well as upon highways duly laid out under the Act. (b)

There may, in certain cases, be a limited or partial dedication of a road by the public. The plaintiff was the occupier of an arable field, across which a foot way, from time immemorial, had been used by every person at his pleasure; but the plaintiff and his predecessors had also, from time immemorial, ploughed up the foot way when, and in such parts, as they thought fit, and in

(a) Reg. v. Deane, 2 Allen, 233.

(b) Reg. v. Buchanan, 3 Kerr, 674. See as to dedication by the Crown, Cole v. Maxwell, 3 Allen, 183.

other parts lifted the plough across it. The defendants were surveyors of highways, and, in order to repair the foot way, placed materials on it, making it a hard causeway, so as to prevent the plaintiff from ploughing it up: -Held that the foot way was a highway, which, it must be assumed, had been dedicated to the public, subject to the condition that the owners of the soil might plough it up, and that there could at law be such a limited dedication, and that the right to plough up the footpath, and thereby temporarily interfere with the use of it by the public, was reasonable, and not inconsistent with the dedication. (a) So there may be a dedication of a way to the public, subject to a right of the owner of the land. through which it passes to have a gate, at certain seasons, run across it. (b)

The owner, who dedicates to public use, as a highway, a portion of his land, parts with no other right than a right of passage to the public over the lands so dedicated, and may exercise all other rights of ownership not inconsistent therewith; and the appropriation made to and adopted by the public, of a part of the street, to one kind of passage, and another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public. (c)

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, 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 than many acts of enjoyment. (d)

(a) Arnold v. Blaker, L. R. 6 Q. B. 433 (Ex. Chr.); Mercer v. Woodgate, L. R. 5 Q. B. 26; 39 L. J. (M. C.) 21, affirmed.

(b) Bartlett v. Pratt, 2 Thomson, 11.

(c) St. Mary Newington v. Jacobs, L. R. 7 Q. B. 53, per Mellor, J.

(d) Mercer v. Woodgate, L. R. 5 Q. B. 32, per Hannen, J.; Hawkins v. Baker, 1 Òldright, 423, per Des Barres, J.

To constitute a public highway by user, there must be an intention, expressed or implied, of dedication to the public on the part of the owner who permits such user. (a) Adoption by the public, and acquiescence, at least, if not user, are most material ingredients to constitute a binding dedication. (b)

The intention of the party to dedicate must be clear, and time is considered an essential ingredient. The act or assent of the public must be manifest and complete, and even then a subject cannot, by any spontaneous act of appropriation, impose a highway upon the public. If a highway, the public become bound to repair it, and, consequently, their adoption or assent becomes important. Such adoption and assent, in the case of allowances, are waived by the expenditure of public money in opening or repairing, the performance of statute labour, user, etc.; but, without some evidence of adoption by user, or other manifestation, an allowance for road at common law would continue an allowance only, and not a road in fact. (c) A reservation inconsistent with the legal character of a dedication would be void. (d)

It seems there may be a public highway without its being a thoroughfare; at all events, if a highway were stopped at one end so as to cease to be a thoroughfare, it would, in its altered state continue a highway. The old doctrine that a highway implied a thoroughfare, has been so far modified by more recent decisions that there may be in a square in a great city, lighted and paved at the public expense, which the public, in fact, frequent, passing along its three sides, or to the houses therein sit

(a) Leary v. Saunders, 1 Oldright, 17.

(b) Rex. v. Inhab. St. Benedict, 4 B. & A., 447, 12 Ea. 192; Rex v. Allan, 2 U. C. Q. B. O. S. 100, per Robinson, C. J.

(c) Ib. 103-4, per Macaulay, C. J.

(d) Arnold v. Blaker, L. R. 6 Q. B. 437, per Kelly, C. B.

uate, a highway in legal contemplation, although it is a cul de sac. (4)

But where such highway is claimed by dedication, the acts or declarations relied on to support it must be clear and unequivocal, with manifest intention to dedicate. There is a difference between a cul de sac in the city and one in the country; much stronger acts being required to establish a public highway by dedication in the latter than in the former. The mere acting so as to lead persons to suppose that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction. (b) The question of dedication or no dedication is a question of fact for the jury. (c)

Whether a certain road constitutes a highway or not is generally a mixed question of law and fact, depending much upon circumstances and the peculiar features of each case. (d) The expenditure of public money on road laid out thirty feet wide can only make it a public highway to that extent, and will not have the effect of extending it to a highway four rods wide. (e) Where a road has been used as a public highway, and the usual statute labour of the locality done upon it from year to year, this will, in the absence of explanation, establish the road as a public highway. (f) But where it appeared from the evidence that statute labour had been performed on part of the road in question, but only to a limited extent, and not from time to time, so as to shew it was a road "whereon the statute labour hath been usually performed" :-Held, not sufficient to establish the road as

(a) Hawkins v. Baker, 1 Oldright, 419-24; Rex v. Marquis, Devonshire, 4 A. & E. 713, per Patteson, J.

(b) Ib. 419. See also Poole v. Huskinson, 11 M. & W. 827; Bateman v. Bluck, 18 Q. B. 870, 21 L. J. Q. B. 406.

(c) Belford v. Haynes, 7 U. C. Q. B. 464; Reg. v. Gordon, 6 U. C. C. P. 213; Reg. v. G. W. R. Co.. 12 U. C. Q. B 251, per Robinson, C. J.

(d) Rex v. Allan, 2 U. C. Q. B. O. S. 102, per Macaulay, J.

(e) Basterach v. Atkinson. 2 Allen. 439.

(f) Reg. v. Hall, 17 U. C. C. P. 286, per J. Wilson, J.