proved whether or no the plaintiff has suffered any particular and substantial damage as apart from the general public.

In connection with the question of obstruction, and as in the case referred to immediately the question arose, under the Highways Act, 1835, it should be remembered that under that Act it is made by sect. 78 an offence for the driver of any vehicle to be at such a distance from it while passing on a highway that he cannot have the direction and government of the horses or cattle drawing the same. The object of the section is obviously to protect the public from any danger from neglect by the driver of his control over the vehicle. It is equally obvious that to leave such a vehicle standing by the roadside, while the driver is absent from his charge, not only is a danger to the public from the possibility of the horses and vehicle starting on unattended, but also may cause a serious obstruction. It is therefore a common-sense construction of the section to hold that a driver in such a case would be rightly convicted, inasmuch as the words "whilst it shall be passing upon such highway" apply equally whether the driver leaves his horses while they are moving, or first stops them and then leaves them (n).

So also under sect. 72 of the same Act it has been held, that to sustain a conviction against any person for riding, or driving any carriage or vehicle (e.g., a bicycle) on a footpath, it is unnecessary to prove actual injury, interruption, obstruction, or danger, but that the mere fact of being on such footpath is sufficient; the object of the Act is to prevent the possibility of injury, &c. to the highway or the public (o). Similarly, under the Regulations (1896) made under the Light Locomotives Act, 1896, it was held unnecessary to prove the presence of passengers on the highway, or that any vehicle or person was interrupted, interfered with, or incommoded by the driving of a locomotive at an excessive speed to the common danger of passengers, or at a speed greater than is reasonable and proper having regard to the traffic on the highway (p). In a case where the defendants were guilty of a nuisance, which might cause, and in fact did cause, an injury to an individual, by maintaining a low wall with spikes thereon in front of their premises and immediately abutting on the highway, it was held that they were liable

(n) Phythian v. Baxendale, (1895) 1 Q. B. 768; 64 L. J. M. C. 174. Brotherton v. Tittensor, 60 J. P. 72.

(p) Mayhew v. Sutton, 86 L. T. 18; 71 L. J. K. B. 46; and Smith v. Boon, 84 L. T. 593; 65 J. P. 486.

to the person so injured (7). The law of nuisance, when caused by obstructions on the highways, has been very fully discussed by North, J., and in his judgment he refers to the history of the law, and to the decided cases in reference to the assembling of people or carriages in consequence of some act on the part of the person charged with causing the nuisance by obstruction (r).

Before leaving this topic it should be noticed that, although under the Public Health Act, 1875, a local authority may, if in their opinion summary proceedings would afford an inadequate remedy (s), cause "any proceedings " to be taken against any person in any superior Court of law or equity to enforce the abatement or prohibition of any nuisance under the Act, or for the recovery of any penalties from or for the punishment of any persons offending against the provisions of the Act relating to nuisances, yet the proceedings to be so taken must be the ordinary proceedings sanctioned by the existing law for the purpose of obtaining the abatement of the nuisance; and it has been decided that, under this section, the local authority cannot take proceedings which no private person can take, and which are unknown to the law. Unless the nuisance complained of is the cause of special damage, and so ground for an action, it is necessary in such a case, as in the case of a private person, to obtain a fiat of the Attorney-General for proceedings (†).

Among other liabilities to which an owner of vehicles, especially locomotives, may be subject, is that of being compelled in certain instances to contribute to the expenses of the highway authorities whenever damage has been done to the highway by reason of the excessive weight of, or extraordinary traffic caused by the use of, such vehicles.

Sect. 23 of the Highways and Locomotives Act, 1878, provides that where by a certificate of their surveyor it appears to the authority which is liable or has undertaken to repair any highway, that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by

Fenna v. Clare & Co., (1895) 1 Q. B. 199; 64 L. J. Q. B. 238.
Barber v. Penley, (1893) 2 Ch. 447; 62 L. J. Ch. 623.

38 & 39 Vict. c. 55, s. 107.

(t) Tottenham Urban District Council v. Williamson & Sons, (1896) 2 Q. B. 353; 65 L. J. Q. B. 591; Wallasey Local Board v. Gracey, 36 Ch. D. 593 ; 56 L. J. Ch. 739.

excessive weight passing along the same, or extraordinary traffic thereon, such authority may recover in a summary manner from any person, by whose order such weight or traffic has been conducted, the amount of such expenses as are satisfactorily proved to have been incurred by reason of the damage arising from such excessive weight or extraordinary traffic. There is a proviso that an agreement may be entered into for payment of a composition in respect of such weight or traffic. As to the weight and construction of locomotives, see the Locomotives Act, 1861 (u), the Locomotives Act, 1865 (a), and the Highways and Locomotives Amendment Act, 1878 (y), and the Locomotives (Amendment) Act, 1898 (3). Under sect. 26 of the Act of 1878 the county authority (the County Council under the Local Government Act, 1888, s. 3 (viii.)) (a), has authority to make bye-laws with regard to the use of waggons, carts, or carriages of any kind upon highways. Under sect. 9 of the Locomotives on Highways Act, 1896 (b), the Local Government Board have power to vary the requirements of sect. 28 of the Highways and Locomotives Act, 1878, with regard to the construction and weight of locomotives. By sect. 1 of the Amendment Act, 1898, local authorities may permit waggons drawn or propelled by locomotives to carry weights in excess of those mentioned in sect. 4 of the Locomotives Act, 1861.

It has been decided that the meaning of the words "excessive weight" and "extraordinary traffic" is excessive and extraordinary with reference to the road and its ordinary user, and to the weight allowed under sect. 28 of the Act of 1878 (or any other weight allowed under the bye-laws or regulations alluded to) (c).

In ascertaining the meaning of "extraordinary expenses the test is not merely the taking into consideration "the average expenses of repairing highways in the neighbourhood;" that is an element to be considered, but in addition the state of the weather or of the roads at the time of the user must also be considered (d). In the case just referred

(u) 24 & 25 Vict. c. 70, see Appendix.
(x) 28 & 29 Vict. c. 83, see Appendix.
(y) 41 & 42 Vict. c. 77, see Appendix.
61 & 62 Vict. c. 29, see Appendix.
51 & 52 Vict. c. 41.

(b) 59 & 60 Vict. c. 36.

R. v. Ellis, 8 Q. B. D. 466.

(d) Lord Aveland v. Lucas, 5 C. P. D. 211; 49 L. J. C. P. 643.

to it was further held that the weight and traffic, mentioned in sect. 23, mean the weight and traffic, used with reference to the road itself, which are abnormal and beyond the ordinary traffic of the road.

Where the traffic is the ordinary and recognized traffic of the district (stone quarrying) and the loads used by the person sought to be charged are the usual ones, this is not "extraordinary traffic" for which he can be charged, even though the road may be worn out rapidly (e).

6

In discussing the above two cases, and others, in the Court of Appeal, Bowen, L. J., says, "The most important question we have to consider is the true meaning to be placed on the words damage caused by extraordinary traffic.' We may begin by observing that the object of the section is not to prohibit extraordinary traffic, but to lay the extra expense of damage done by such traffic to the road on the right shoulders, namely, upon those who caused the damage and to whose benefit it enured. The section, in the second place, distinguishes between excessive weight and extraordinary traffic. The damage done by extraordinary traffic may, therefore, in the eyes of the legislature, differ from that done by excessive weight. Traffic, thirdly, is a nomen collectivum' -a collective term-a noun of multitude. It does not, like 'excessive weight,' apply merely to a cargo carried by a single vehicle; it is large enough to include the continuous or repeated user of the road by various vehicles belonging to one owner. Finally, extraordinary traffic, according to the plain use of language, is traffic which is not of the common order of traffic. And, taking all these considerations together, and especially when we remember that the object of the section is to provide for the expense of such extraordinary traffic as does damage to a highway, we shall arrive at the following result, viz., that 'extraordinary traffic,' as distinct from 'excessive weight,' will include all such continuous or repeated user of the road by a person's vehicles as is out of the common order of traffic, and as may be calculated to damage the highway and increase the expenditure upon its repair" (f).

In a later case Lord Esher, M. R., in referring to Hill v. Thomas (g), said that the latter case appeared to distinctly

(e) Wallington v. Hoskins, 6 Q. B. D. 206; 50 L. J. M. C. 19.

(f) Hill v. Thomas, (1893) 2 Q. B. at pp. 339, 340; 62 L. J. M. C. 161. (g) Etherley Grange Coal Co. v. Auckland District Highway Board, (1894) 1 Q. B. at p. 41,

hold that the ordinary traffic on the particular road in question must be looked to, in order to see whether the traffic is extraordinary; and Kay, L. J. (h), said: "That case (Hill v. Thomas) appears to me to decide that, in determining whether there has been extraordinary traffic, regard must be had, not to all the roads in the neighbourhood, but to the particular road in question. If that road has been damaged by any person by traffic beyond its ordinary traffic, that person must pay for the damage."

It will be noticed in the wording of sect. 23 that the expenses incurred owing to the extraordinary traffic or excessive weight may be recovered from "any person by whose order such weight or traffic has been conducted." Under these words it has been held that a contractor is not liable, where the carting has been done by a sub-contractor (i), but that the actual person using the vehicles which do the mischief in question is liable (k). The question was discussed again in 1894 in the case of The Kent County Council v. Vidler; in that case Lord Esher, M. R., said (1): "The question is whether the respondents (appellants in the Court of Appeal) used the road by way of extraordinary traffic. That there was such traffic cannot be doubted, and it consisted in all the traffic taken by all the traction engines over the road. It may be that if the case of one of the owners of traction engines is taken, his user of the road would not amount to extraordinary traffic; but it is clear that if the whole of the traffic is taken it amounted to extraordinary traffic. The question is, who ordered that traffic? Firbank had to obtain ballast for the construction of the railway, and he entered into a contract with the respondents, who were to supply the ballast from time to time as Firbank might require. The respondents found that carrying the ballast themselves with their own horses and carts would be too expensive, and they therefore resolved that the work should be done by means of traction engines. They might have agreed with some person to have the contract taken off their hands; but this they did not do. What they did was to

(h) Ibid. at p. 42.

(i) Lapthorne v. Harvey, 49 J. P. 709.

(k) Barnett v. Hoo Local Board, 46 J. P. 805.

(7) (1895) 1 Q. B. at p. 451; 64 L. J. M. C. 77. See Kent County Council v. Lord Gerard (H. L., E.), (1897) A. C. 633. 61 & 62 Vict. c. 29, sect. 12. Epsom Urban District Council v. London County Council, post; Egham Rural District Council v. Gordon, post; Chesterfield Urban District Council v. Newton, post.