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along which ran an ancient footway, and between the canal and footway was a towing-path nine feet wide, and a strip of grass several feet in breadth, and the public were permitted to pass over the whole intervening space which was left unguarded and unlighted, it was held by the Court of Queen's Bench that the canal was not so near to" or "adjoining" the footway as to be a nuisance or to impose on the proprietors the duty to fence, light, or protect it; and a person passing in the night-time gone astray and fallen into it, the canal company were not liable, under Lord Campbell's Act, to his representative. And per Curiam: "We adopt on this subject the law as laid down in Hounsell v. Smyth (7 C.B. (N.S.), 731), that to throw upon the owner the obligation of fencing an excavation on land adjoining a public road or way, it ought to be shown that the excavation is so near thereto as to be dangerous to persons using the road in the line of the road." In Hardcastle v. South Yorkshire and River Dun Company (4 H. and N., 67), it was laid down that the excavation must be so adjoining the public way as that a false step might cause a person using the way to fall into the excavation; and it seems but reasonable that in such a case the owner of the land should be liable. But where, as here, the excavation is at some distance from the public way, the case is very different (Binks adx. v. South Yorkshire and River Dun Navigation Company).

Neglect of plaintiff to fasten gate opening on to railway.-Fawcett v. York and North Midland Railway Company (16 Q.B., 610), was cited in Haigh v. London and North Western Railway Company, where pony strayed on to line, and was killed. The evidence was that plaintiff's practice was to fasten gates by a catch by day, and a lock by night only, and that defendants knew it. The gate might have been blown open by the wind. The Court of Queen's Bench thought that the plaintiff had the means of making the gate secure, and had not used them, and confirmed the defendant's verdict.

Company bound to leave gate shut where tramway adjoins railway.— In Marfell v. South Wales Railway Company, the defendants' railway ran for some distance parallel to a tramway, being separated from it by a fence, also their property, down to a point where the tramway crossed the railway. At this point the defendants had placed gates which could be shut, so as to separate the tramway from the railway, but which by plaintiff's evidence never were shut. The plaintiff was licenced by defendants, on payment of a certain toll, to use the tramway with trucks and horses, one of which, alarmed at an approaching train, swerved from the tramway through one of the open gates on to the railway, and was killed by the engine. It was found that there was no negligence on plaintiff's part, but on defendants' in leaving the gate open; and it was held per Williams J., and Byles J. (Erle J.C. diss.), that the plaintiff had a right to expect ordinary care and diligence in keeping the gate shut, and that the defendants were liable for the value of the horse. And per Curiam the 8 and 9 Vict. c. 20, s. 68, which imposes on ruilway companies the obligation to fence as against adjoining owners, does not apply to cases like the present, where

adjoining land belonged to company. And per Byles J., "Suppose the defendants to be owners of a meadow, in which there is a deep chalk pit, fenced round by them to prevent cattle falling in, but with a gate in the fence to be used only by the defendants when they should desire to remove chalk from the pit. Suppose the defendants for reward to take in cattle to agist in that meadow the same question arises, Are the defendants under any obligation to exercise any degree of care in the use of the gate? It is clear on the authorities, that they are in the supposed case bound to exercise care in the use of the gate, and are responsible if they leave the gate open."

Sheep killed by a train.—In Besant v. the London and South Western Railway Company, the plaintiff was a farmer having land adjoining the defendants' line, and feeding his sheep on turnips. For this purpose he put them into a fold of which three sides were formed by hurdles, whilst a quickset hedge and a small ditch belonging to the railway made the fourth side. In the night the sheep got through the railway hedge on to the line, and 25 of them were killed. Mr. Baron Martin, in summing up, observed that by the Act of Parliament a duty was cast upon the railway company of making, keeping, and maintaining a proper fence between the line and the adjoining fields, for the words were, "That the company shall at all times make and maintain sufficient posts, rails, hedges, ditches, and mounds, or other fences, for separating the land, for the accommodation of the owners and occupiers of the lands adjoining the railway, and to prevent the cattle of the owners from straying thereout." The question in this case was whether this was such a fence. If sheep strayed in search of food, one would suppose they would go where there was plenty of food, and not upon a barren railway line. Was there any proof of negligence in the plaintiff in not placing hurdles to protect the sheep from the hedge, instead of using the hedge as one fence of the fold? If not, the other defences failed, and the company would be responsible. It was the duty of the company, and not of the plaintiff, to put up a sufficient fence for the purpose of preventing the sheep from straying. Why did the sheep stray? Was it not from the fence being insufficient? The jury must try the question as men of common sense. Probably the sheep were alarmed by a dog, for sheep were not straying animals. The jury found a verdict for the plaintiff, damages £30, in addition to the £20 paid into court, and a rule for a new trial was refused.

CHAPTER V.

ANIMALS.

DANGEROUS

Wilful negligence on part of plaintiff subject of special plea.—It is said that the fact of the plaintiff having brought the injury on himself by wilfully going within reach of the animal, after warning of its mischievous nature, must, if a defence, be specially pleaded (May v. Burdett.)

Bull baiting and cock fighting.-Under 12 and 13 Vict. c. 92, s. 3, whereby "every person who shall keep, or use, or act in the management of any place for fighting or baiting any bull, &c., shall be liable to a penalty," &c., "and every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, &c.,' other animal as aforesaid, shall forfeit and pay," &c.; this last offence can only be committed in a place so used as mentioned in the former part of the section (Clarke v. Hague).

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or

Depasturing a vicious horse.-Under the provisions of a local act, certain persons were empowered to make bye-laws for the regulation of the Common Parishes within the borough of Beverley. Among others they made a bye-law to this effect: "If any person shall stock or depasture or attempt to stock or depasture any bull, or entire or vicious horse .... on any part of the said common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock or cattle, shall respectively forfeit and pay for every such offence the sum of £5 to be levied and recovered according to the form of the statute in that behalf." It was held that this bye-law was divisible, and that although the latter part as to the owners of the animal was bad, the former part was good, and therefore that a person who depastured a vicious horse upon the common pastures might be ordered to pay the £5 penalty (Reg. on Prosecution of Beverley Common Pasture Masters v. Lundie).

Fighting cocks in a place not set apart for the purpose.-In Morley v. Greenhalgh, where the evidence proved that several cocks were fought on a certain day at a stone quarry, but did not show that in any other instance cocks had been brought there for that purpose, the Court of Queen's Bench held that Clarke v. Hague applied, and that the 12 & 13 Vict. c. 92 sec. 3 was "limited as there applied. If that was so, then this stone quarry was not a place kept or used for the purpose; for the words 'kept or used' were synonymous in the context, and meant a place kept and intended to be used for such a purpose. It was no offence under the statute, therefore, to assist in fighting cocks,

unless it was at such a place. Being so, the conviction could not be supported."

Cruelty to animals.-A cock is " a domestic animal" within the interpretation clause of the 12 and 13 Vict., c. 92, so as to render any person cruelly ill-treating it liable to the penalty imposed by sec. 2 of that act. Here spurs had been put by the appellant on a cock to enable it to fight a disabled cock (Budge v. Parsons).

CHAPTER VI.

WATER.

Lands gained from the sea.-In The Attorney General v. Chambers, Sc., the Crown claimed to have the medium line (the boundary of the rights of the Crown on the sea-shore) laid down as it would have existed but for artificial causes; and it was held on appeal by Lord Chancellor Chelmsford that lands imperceptibly gained from the sea by a party's lawful use of his own land, belong to the owner of the land adjoining, unless it can be shown that the operations were intended to produce this gradual acquisition of the sea-shore. And where a party claimed the sea-shore in front of his property, on the ground that he had turned his cattle upon the marsh, and that they had crossed the boundary separating the marsh from the sea-shore, and that he had done this for sixty years without interruption, it was held that where property is of a nature that cannot easily be protected against intrusion, and, if it could, it would not be worth the trouble of preventing it, mere user is not sufficient to establish a right (ib).

Incidents of the sea-shore.-The sea-shore below high-water mark, and without inhabitants, is an extra-parochial place, having a population less than two hundred persons within the meaning of sec. 6 of 18 & 19 Vict. c. 121 (Reg. on proson. of Earl Derby v. Gee and Others). Part of sea-shore between high and low-water mark is within and part of the adjoining county; so that the justices of the county have jurisdiction to take cognizance of offences committed therein, whether land be covered with water or not at the time the offence is committed. And per Cockburn C.J.: It is clear upon the authorities, as also upon Reg. v. Musson (27 L. J., N.S., Q. B., 222), where it was distinctly held that such part of the sea was within the county, that the justices had jurisdiction to entertain this matter, and that that jurisdiction ought to be exercised" (Embleton appt. v. Brown resp.).

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Property in accretions from a non-navigable river.—Accretions from the gradual change of the course of a non-navigable river, where there are no fixed boundaries, will become the property of the owner of the adjoining land (Ford v. Lacey).

No action lies for interception of water merely percolating through the earth.-By sec. 12 of 10 & 11 Vict. c. 17 (Waterworks Clauses Acts, 1847), powers for the execution of certain works are given; and it is provided that the undertakers shall make full compensation to all parties interested for all damage sustained by them through the exercise of such powers. In the execution of certain works authorized by