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A common street.
1. Whot is a highway.
I. UWhat is a Highway. Division of sub Herein as to what is a highway:ject.
1. At Common Law.
2. By Statute. 1. At common 1. At common law.]—A highway is a right of passage for the public in Definition of high. general without distinction. The term “ Highway" extends to all pub
lic ways. (R. v. Saintiff, 6 Mod. 255). Kinds of.
There are three kinds of ways;—1. A footway (a);—2. A foot and horse way, which is also a pack or drift way;3. A foot, horse, and cart way (6). (1 Inst. 56).
A common street and a king's highway, though formerly distinguished, are now equally public ways. (R. v.Hammond, 1 Stra. 44; 10 Mod. 382,
S. C.) Open river.
An open river, common to all men, is a highway. (R. v. Hammond, 10 Mod. 382; 1 Hawk. P.C. c. 76, s. 1; Fitz. 279; Williams v. Wilcar, 8 Ad. & E. 329, per Denman, C. J.) So is a navigable river. (See Mila v. Rose, 5 Taunt. 705; 1 Marsh. 313, s. C.; R. v. Montague, 4 B. & C. 598; 6 D. & R. 616, S. C.) And it seems that the public's right of passare extends to all parts of the channel. (See Williams v. Wilcor, supra, per Denman, C. J. Every creek or river into which the tide flows is not, on that account, necessarily a public navigable channel, although sufficiently large for that purpose ; but the flowing of the tide into socha creek or river, is strong prima facie evidence that it is a public norization. (R. v. Montague, 4 B. &C. 598, per Bayley, J.) But it was observed by Mr. Justice Buller, 'in Ball v. Herbert, (3 T. R. 263), that & navigable river and a highway are perfectly distinct; and that if a river should happen to be choked up with mud, that would not give the pube lic a right to cut another passage through the adjoining lands; though it is quite clear, as observed by the same learned judge, that if the usual track of a highway become impassable, by the overflowing of a stream or otherwise, the adjacent ground will be open to passengers, and so become, in effect, a highway, until the removal of the obstruction. (Taylor v. Whitehead, Dougl. 746, &c.; Williams v. Wilcox, supra, per Denman, C. J.) If the water in a navigable river alter its course, the way alters with it. (Com. Dig. Chemin (A 1); and see Wellb. 20; and post, 510, 511).
In Callis on Sewers, p. 73, it is said that the use of the banks of the sea and of great rivers is common to all the King's liege people, as to the ships to the trees, to tow them, to lade and unlade merchandize, and to dry nets. (And see Young v. ---, 1 Lord Raym. 725; Pierce v. For conberge, 1 Burr. 292). But in Ball v. Herbert (3 T.R. 263), Buller, dog denies that this principle prevails in English law. (See post, til.
“ Rivers,” Vol. V.) Towing-path. Though a towing-path is to be used only by horses towing vessels,
yet it is a common highway for that purpose. (Per Bayley, J., 2 B. I
Ald., 648; Young v. 1 Lord Raym. 725). Bridge.
A bridge may be a common highway. (Reg. v. Sainthill, 2 Lord Raym. 1174; Salk. 359; S. C. Reg. v. Šaintiff, 6 Mod. 255; ante, “ Bridges," Vol. 1.).
A flight of stairs leading to the Thames is not necessarily a highway. leading to the
(R. v. Limehouse, 2 Show. 455). And see as to a landing-place, Drialwater v. Porter, 7 C. & P. 181.
Banks of same.
Flight of stair:
(a) A public footway or bridleway is a highway for foot passengers, or for horse passengers, &c. (R. v. Salop, 13 East, 97. Vide Allen' v. Ormond, 8 East, 4; Logan v. Burton, 8 D. & R.
299; 5 B. & Cres. 513, S. C.)
(6) The term “ Cartway," means a right for all carriages to pass. (R. T. Hatfield, Cas. temp. Hard. 315).
A railway, it has been held, may be a highway, to be used in the par- 1. What is ticular mode in which railways are used. (R. v. Severn Railway Com- a highway. pany, 2 B. & Ald. 646. See Rowe v. Shilson, 4 B. & Adol. 726).
Railway. The size of the way is not material. A right of way for all persons
Size of way. to pass and repass, with their carts and carriages, is not restrained, because all carriages cannot pass and repass. (R. v. Lyon, 5 D. & R. 497).
There may be a highway, though it be circuitous. (R. v. Lloyd, 1 Highway may be Campb. 261; 3 T. R. 265).
It seemeth that any one of the above ways, which is common to all where it must the Queen's people, whether it lead directly to a market town, or only from town to town, and do not terminate there, but is also a thoroughfare to other towns, may properly be called a highway. (1 Hawk.c. 76, 8.1). For there were highways before there were market towns. And if it were essential to the constituting of a highway that it should expressly lead from market town to market town, then it would follow, that the lord of a market, by forfeiting or surrendering his charter, might cause that to cease to be a highway which was a highway before; or the Queen, by granting a market in any place where there was no market before, might thereby consequently change the way to it from a private way into a highway. And therefore, the distinction which is taken in some books concerning this matter, seems to be very reasonable; that every way from town to town may be called a highway, because it is common to all the Queen's subjects; and consequently that a nuisance therein is a common nuisance, and punishable by indictment: but that a way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village which terminates there, and is for the benefit of the particular inhabitants of such perish, house, of village only, may be called a private way, but not a highway, because It belongeth not to all the Queen's subjects, but only to some particular persons, each of whom, as it seems, may have an action on the case for a nuisance therein. (1 Hawk. c. 76, s. 1; Austin's case, 1 Vent. 189, per Hale, C. J.; Wellb. 7; and Jarvis v. Dean, 3 Bingh. 447; 11 Moo. 354, S.C.) It seems the public may have a right to the use of a road, or, in other There may be a
highway without words, that there may be a highway without a thoroughfare. (See a thoroughfare. Rugby Charity v. Merryweather, îi East, 376, n.; R. v. Lloyd, 1 Campb. 260). But the correctness of this position is ably denied by Mr. WellBeloved, in his work on Highways, 7 to 19, citing Woodyer v. Hadden; (5 Taunt. 138); and the opinions of Abbott, C. J., Holroyd, and Best, Js., in Wood ý. Veal, (5 B. & Ald. 454; 1 D. & R. 20, s. C. : and see N. v. Marquis of Downshire, 4 Ad. & E. 698; 6 Nev. & Man. 92, S.C.), where, per Patteson, J., “ It has been held that, where there never was a right of thoroughfare, a jury might find that no public way existed; but it has never been settled that, where there had been a public right of passing through, the right of way was abolished by stopping De end of the passage." There may be both an occupation way and a public highway over the There may be an
occupation way same road, for it does not, on becoming a highway, cease to be an occu- dichavover pation way. (Browonlovo v. Tomlinson, 1 Man. & G. 484-Per Denman, the same road. C. J., at Nisi Prius.) As to the width of a highway, see post, 564.
Width of highway. As to the right of going on adjoining lands, &c., see post, 509.
Right of going on
adjoining lands. 2. Under the Highway Act.]—Sect. 5 of the General Highway Act, 2. By statute. 5 & 6 Will. IV. c. 50, enacts, that in the construction of that act, “ the Ford 'highways' shall be construed to mean all roads, bridges, (not Deing county bridges, see sect. 21 of that act, post, 525), carriage-ways, can ways, horseways, bridgeways, footways, causeways, churchways, and pavements,” (post, 514).
2. How a highway may
be created. How created.
II. How a Highway may be created.
1. By Prescription, 504.
1. By prescrip 1. By Prescription.]—The most common mode in which a highway is tion.
supported as being such, is by prescription. If all persons without dis.
R. v. Wandsworth, 1 B. & Ald. 63; 3 Stark. Evid. 63). Direct evidence of The direct evidence that a way is public is, that it was made public way being public. under some statute or proceeding by writ ad quod damnum. Presumptive evi Presumptive evidence is derived from the termini and other circundence of same.
stances of the road itself, and from the use and enjoyment of it by the
public. (R. v. Wandsworth, 1 B. & Ald. 63. See 11 East, 376, n. (a)). Termini,
Although the termini of a road afford no conclusive evidence as ta is being a highway, (11 East, 375; R. v. Lloyd, 1 Campb. 262), yet the circumstances of its leading from one market town to another, or iron one public road to another, coupled with user by the public, and without decisive evidence of interruption and permission by a private
owner, are conclusive as to the right of the public. (1 Vent. 189). Repairs by parish. Repairs of the way by a parish is strong evidence to shew that it is a
public highway ; (R. v. Wandsworth, 1 B. & Ald. 63: see post, 508); and evidence of repairs done by a parishioner, under an agreement with the parish that he should therefore be excused his statute duty, when that duty was enforceable, is virtually evidence of repairs by the parish. (Ibid.: and see Marquis of Stafford v. Coyney, 7 B. & Cres. 257).
The performance of repairs upon a road under an act of Parliament, 23
no evidence of it being a public one. (See R. v, Mellor, 1 B. & Ad. 32). Reputation.
Evidence of reputation is admissible to prove that the way is public, (Austin's case, Ventr. 189; B. N. P. 295 ; and see Barraclough v. Johtson, 8 Ad. & E. 99; Fowler v. Port, 7 Ć. & P. 792); or not pubis, (Drinkwater v. Porter, 7 Car. & P. 181). But such evidence arise, post litem motam is inadmissible. (R. v. Cottar, 3 Campb. 444)..
On an issue, whether or not certain land in a district repairing. 11 own roads was a common highway, it was held, that it was admissible evidence of reputation, though slight), that the inhabitants held : public meeting to consider of repairing such way, and that several or them, since dead, signed a paper on that occasion, stating that the land was not a public highway, there being at the time no litigation on t.2 subject. (Barraclough v. Johnson, supra).
But where the question in a cause was, whether a particular road, admitted to exist, was public or private, and evidence was offered that person, since deceased, had planted a willow on a spot adjoining the ro&d; on ground of which he was a tenant, saying, at the same time, that be planted it to shew where the boundary of the road was when he was boy: it was held, that such declaration was not evidence, either as sher ing reputation, as a statement accompanying an act, or as the admi sion of an occupier against his own interest. (R. v. Bliss, 7 Ad. Of die 550).