In determining whether a river is public or private, its mere capacity during the spring freshets, or after heavy rains, to float down single sticks of timber or logs is of itself a very uncertain criterion of the public or private nature of the river, for there is no stream so small but which may at times suffice and be used for driving down a log or piece of timber, and, therefore, its breadth and its length and depth at ordinary times, and its capacity for floating rafts, etc., are proper to be considered. (a)

In Esson v. McMaster (b) it was held that a river which extended about twenty-eight miles into the country, and had been long used for navigation of boats and canoes, and for floating down logs and timber, was a common highway above where the tide flowed. All rivers above the flowing of the tide, and whether the property of the river be in the Crown, or in a subject, which afford a common passage, not only for large vessels but for boats. or barges, are, by the principles of the common law, public highways. (c)

The defendants under their act of incorporation, 19, Vic. c. 21, and as assignees of the Canada Company, claimed a right to erect any works for improving the navigation of the navigable river Maitland, and to be owners of the bed of the stream: Held, that the powers given for that purpose were distinct from those granted for the purposes of their railway, and that, admitting the ownership, it was still subject to the public right, and that any obstruction to the highway or easement of the river for the purposes of navigation, was indictable as a nuisance. (d)

An indictment will not lie for merely erecting piers in a navigable river; it must be laid ad commune no^enium,

(a) Rowe v. Titus, 1 Allen, 326.

(b) 1 Kerr, 501.

(c) Ib. 506, per Chipman, C. J. See also Perley v. Dibblee, 1 Kerr, 514. (d) Reg. v. B. & L. H. Ry. Co., 23 U. C. Q. B. 208.

and whether it was so or not must be decided by the jury. (a)

Where, on an indictment for a nuisance in obstructing the North Sydenham River and Queen's highway, by erecting a dam near lot 16, 13th Concession of Sombra, the evidence showed the river in question to be affected by the waters of the St. Clair-to be navigable much higher up than the defendant's dam at some seasons, and at all seasons for some miles above it; that vessels and boats of a certain size had, before the erection of the dam, passed without obstruction to a point higher up the river than the part where the dam was erected, though it did not appear to have been used to any great extent higher up the river than what was called the Head of Navigation, a point below the dam :-Held, that upon such evidence the jury were warranted in finding the stream to be a public navigable water course. (b)

It would seem that the English rule that the land covered by the waters of rivers, above the flux of the tide, belongs to the riparian proprietors does not prevail here. In our waters the grant extends to the water's edge, and the land covered with water and ungranted is the property of the Crown, (c) subject to the right of the public to pass over the water in boats, and to fish and bathe therein. (d)

In an action for obstructing a river by erecting a milldam, it is not a proper question for the jury whether the benefit derived by the public from the mill is sufficient to outweigh the inconvenience occasioned by the dam. (e) The provisions of Magna Charta and other early statutes

(a) Ross v. Corporation Portsmouth, 17 U. C. C. P. 204, per A. Wilson, J. (b) Reg. v. Meyers, 3 U. C. C. P. 305.

(c) Parker v. Elliott, 1 U. C. C. P. 489, per Sullivan, J.

(d) Atty. Genl. v. Perry, 15 U. C. C. P. 329. See, however, Fournier and Olivia, S. L. C. A. 427.

(e) Rowe v. Titus, 1 Allen, 326.

which prohibited weirs apply only to navigable rivers. (a) Weirs in such rivers are illegal, unless they existed before the time of Edward I. (b)

The 5 & 6 Wm. 4, c. 50, s. 72, which imposes a penalty on any person riding or driving by the side of any road, only applies to footpaths by the side of roads, and not to footpaths in general. (c)

Under 27 & 28 Vic., c. 101, s. 25, the owner is liable to a penalty if cattle, sheep, etc., are found straying along any highway, notwithstanding they are under the control of a keeper at the time. (d)

Three magistrates forming a part of the Court of Sessions, by whom the return of a precept issued under c. 62 of the Revised Statutes, for laying out a road is to be decided, are not the three disinterested freeholders contemplated by that Act. (e)

The laying out of a public highway by Commissioners of Highways under the Act, 5, Wm. 4. c. 2, does not become invalid by reason of the neglect of the Commissioners to deliver a return of such laying out within three months to the Clerk of the Peace, as directed by the 15th section, this being only a directory provision. (f)

On an indictment for nuisance to a highway, if the facts shew it to be a proceeding substantially for the trial of a civil right, the defendants may consent that the prosecutor select three or four of them, and proceed only against the latter, the other defendants entering into a rule to plead guilty if those on trial are convicted. This course may be adopted to prevent the charges of putting them all to plead. (g)

(a) Leconfield v. Lonsdale, L. R. 5 C. P. 657.

(b) Rolle and Whyte, L. R. 3 Q. B. 286.

(c) Reg. v. Pratt, L R. 3 Q. B. 64.

(d) Lawrence and King, L. R. 3 Q. B. 345.

(e) Reg. v. Chipman, 1 Thomson, 292.

(f) Brown v. M Keel, 1 Kerr, 311.

(9) Whelan v. Reg. 28 U. C. Q. B. 53, per A. Wilson, J.

Although a proceeding by indictment for a nuisance is criminal in form, the same evidence that would support a civil action for an injury arising from the nuisance will support the indictment. (a)

In Reg v. Rose (b) it was held that the minutes of the boundary line Commissioners produced in the case could not be considered a judgment, within the meaning of 3 Vic. c. 11, and that the defendant should therefore have been permitted to give evidence contradicting such minutes. The second section of this act which provides that every such judgment shall be filed is directory only, and the omission to file will not affect the validity of the judg

ment

If the indictment allege a nuisance to be near a certain lot, and the evidence shows it to be on it, this will be a fatal variance. (c) Such variance could probably now be amended under the 32 & 33 Vic., c. 29, s. 71.

It was doubtful whether after an indictment for nuisance to a highway had been removed by certiorari, and tried at the Assizes upon a nisi prius record, and the defendants found guilty on a motion afterwards made in term for judgment, upon the conviction the Court could under the 19 Vic., c. 43, s. 316, give judgment out of term. (d)

After a verdict of acquittal on an indictment for nuisance in obstructing a highway tried at a court of Oyer and Terminer, the Court will refuse a certiorari to remove the indictment, with a view of applying for a new trial, or to stay the entry of judgment so that a new indictment may be prepared and tried without prejudice, and this though the motion is made on the part of the Crown with

(a) Reg. v. Stephens. 2 U. C. L. J. N. S. 223, 14 W. R. 859.

(b) 1 U. C. L. J. 145.

(c) Reg. v. Meyers, 3 U. C. C. P. 305.

(d) Reg. v. G. T. R. Co., 17 U. C. Q. B. 165, per Robinson, C. J. See 29 & 30 Vic., c. 40. s. 4, et seq.

the assent of the Attorney-General. (a) But the Court will arrest the judgment on an indictment for nuisance, so that a new indictment may be preferred. (b)

After verdict of acquittal on an indictment for nuisance tried at the Assizes, a motion was made with the concur rence of the Attorney-General, for a certiorari to remove the indictment, with a view to obtain a new trial, but no ground was shewn by affidavit, and the new trial was moved for on the same day, being the fourth day of term-Held, that there was nothing to warrant the ordering of a certiorari, and that the motion for a new trial could not be entertained until the Court were in possession of the record. (c) When the case is tried at the Assizes the motion for a new trial need not be made within the first four days of the ensuing term, for the rule of practice requiring a party to move for a new trial within the first four days of term only applies when the trial has been on a record emanating from this Court. (d)

Obstructing the Execution of Public Justice.-An indictment for refusing to aid a constable in the execution of his duty, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not shew that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same as that which the prisoner made upon the constable; neither is it any objection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons already in custody. (e)

A magistrate's warrant of commitment upon a convic

(a) Reg. v. Whittier, 12 U. C. Q. B. 214.

(b) Reg. v. Rose, 1 U. C. L. J. 145; Reg. v. Spence, 11 U. C. Q. B. 31. (c) Reg. v. Gzowski, 14 U. C. Q. B. 591.

(d) Ib. 592, per Robinson, C. J.

(e) Reg. v. Sherlock, L. R. 1 C. C. R. 20; 35 L. J. (M. C.) 92.