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XIX. Books and Materials, &c., in whom vested, and by whom
to be kept, &c., p. 604.

XX. Costs on Informations and Complaints before Magistrates,
p. 605.

XXI. Inhabitants, &c., made competent Witnesses. Compelling
attendance of Witnesses, p. 606.

XXII. Mode of recovering, and Application of Penalties, p. 608.
XXIII. Forms of Proceedings, p. 610.

XXIV. Appeal against Rates and Proceedings. Want of Form,
&c. Certiorari, &c. Special Case, p. 610.

XXV. Actions for Damages, &c., p. 613.

XXVI. Amount of Fees to be taken, p. 615.

XXVII. Surveyor empowered to charge in Account Expenses of
Legal Proceedings, p. 616.

XXVIII. Exemptions from 5 & 6 Will. IV. c. 60, p. 616.
XXIX. Commencement of Act, p. 617.

XXX. Forms, p. 618.

The following contains a reference to the pages in this work where
the different sections of the following statutes will be found :-

5 & 6 Will. 4, c. 50:-§ 1, 512; § 2, 513; § 3, 513; § 4, 534, n.; § 5, 514;
$ 6, 534; § 7, 535; § 8, 535; § 9, 536; § 10, 536; § 11, 536; § 12, 537;
$13, 537; § 14, 538; 15, 538; § 16, 539; § 17, 539; § 18, 526; § 19, 527;
$20, 537; 21, 525; § 22, 526; § 23, 517; § 24, 527; § 25, 528; § 26, 528;
$27, 543; § 28, 544; § 29, 544; § 30, 545; § 31, 545; § 32, 545; § 33, 546;
$34, 546; § 35, 547; § 36, 548; § 37, 548; § 38, 548; § 39, 539: § 40, 539;
$41, 540;$42, 540; § 43, 541; § 44, 541; § 45, 564; § 46, 528; § 47, 529;
$48, 529; § 49, 529; § 50, 530; § 51, 530; § 52, 530; § 53, 530; § 54, 531;
$55, 532; 56, 533; § 57, 533; § 58, 518; § 59, 520; § 60, 520; § 61, 520;
$62, 525; § 63, 565; § 64, 565; § 65, 566; § 66, 567; § 67, 568; § 68, 568;
69, 569; § 70, 569; § 71, 570; § 72, 574; § 73, 584; § 74, 584; § 75, 585;
76, 571; § 77, 571; § 78, 572; § 79, 583; § 80, 564; § 81, 571; § 82, 551;
83, 553; § 84, 554; § 85, 554; § 86, 555; § 87, 555; § 88, 559; § 89, 559;
$90, 560; $91, 562; § 92, 563; § 93, 563; § 94, 588; § 95, 591; § 96, 599;
$ 97, 605; § 98, 601; § 99, 604; $100, 606; § 101, 608; § 102, 608; § 103, 609;
$104, 613; 105, 610; § 106, 611; § 107, 611; § 108, 611; § 109, 613;
110, 615; § 111, 616; § 112, 616; § 113, 616; § 114, 617; § 115, 617;
116, 617; § 117, 617; § 118, 610; § 119, 617; § 120, 617.

2 & 3 Vict. c. 45, s. 1, 570; s. 2, 570; s. 3, 570.

3 & 4 Vict. c. 26, s. 1, 607; s. 2, 607.

& 5 Vict. c. 51, s. 1, 531, n.

6&7 Vict. c. 85, s. 1, 608.

1. What is a highway.

Division of subject.

1. At common law

1. What is a Highway.

Herein as to what is a highway:—

1. At Common Law.

2. By Statute.

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 public ways. (R. v. Saintiff, 6 Mod. 255).

way.

Kinds of.

A common street.

Open river.

Banks of same.

Towing-path.

Bridge.

Flight of stairs leading to the Thames.

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 (b). (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.)

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. Wilor. 8 Ad. & E. 329, per Denman, C. J.) So is a navigable river. (See M 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 passage extends to all parts of the channel. (See Williams v. Wilcox, supra, për 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 such s creek or river, is strong prima facie evidence that it is a public naviga tion. (R. v. Montague, 4 B. & C. 598, per Bayley, J.) But it was ob served 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 pub 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 tie 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. Fo conberge, 1 Burr. 292). But in Ball v. Herbert (3 T. R. 263), Buller, J. denies that this principle prevails in English law. (See post, til. Rivers," » Vol. V.)

66

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. & Ald., 648; Young v. -, 1 Lord Raym. 725).

A bridge may be a common highway. (Reg. v. Sainthill, 2 Lord Raya, 1174; Salk. 359; S. C. Reg. v. Šaintiff, 6 Mod. 255; ante, “Bridges," Vol. I.).

A flight of stairs leading to the Thames is not necessarily a highway. (R. v. Limehouse, 2 Show. 455). And see as to a landing-place, Drinkwater v. Porter, 7 C. & P. 181.

(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.)

(b) The term "Cartway," means right for all carriages to pass. (R. v. Hatfield, Cas. temp. Hard. 315).

1. What is

a highway.

Railway.

A railway, it has been held, may be a highway, to be used in the particular mode in which railways are used. (R. v. Severn Railway Company, 2 B. & Ald. 646. See Rowe v. Shilson, 4 B. & Adol. 726). 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 Campb. 261; 3 T. R. 265).

It seemeth that any one of the above ways, which is common to all 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, s. 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 parish, house, or 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 words, that there may be a highway without a thoroughfare. (See Rugby Charity v. Merryweather, 11 East, 375, 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 v. Veal, (5 B. & Ald. 454; 1 D. & R. 20, S. C. and see R.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 one end of the passage."

There may be both an occupation way and a public highway over the same road, for it does not, on becoming a highway, cease to be an occupation way. (Brownlow v. Tomlinson, 1 Man. & G. 484-Per Denman, C. J., at Nisi Prius.)

As to the width of a highway, see post, 564.

As to the right of going on adjoining lands, &c., see post, 509.

Highway may be

circuitous.

Where it must

lead to.

There may be a highway without

a thoroughfare.

There may be an

occupation way and highway over

the same road.

Width of highway. 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 word 'highways' shall be construed to mean all roads, bridges, (not being county bridges, see sect. 21 of that act, post, 525), carriage-ways, cartways, 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.

A highway may be created :

-

1. By Prescription, 504.

1. By prescription.

Direct evidence of

way being public. Presumptive evidence of same.

Termini.

2. By Dedication, 505.

3. By Act of Parliament, 508.
4. By Necessity, 509.

1. By Prescription.]-The most common mode in which a highway is supported as being such, is by prescription. If all persons without distinction have indiscriminately, for a considerable space of time, without interruption, used and enjoyed a way, such way will be presumed to be a highway. A much shorter period of possession will suffice to establish a right in the public, than a right in a private person to a way. The more open and notorious the user is, so much the more is there ground for presuming the way a highway. If the way was used for the repairs of other highways, or the like, that would especially, if known to the owner of the soil, afford strong evidence of the public right. (See R. v. Wandsworth, 1 B. & Ald. 63; 3 Stark. Evid. 63).

The direct evidence that a way is public is, that it was made public under some statute or proceeding by writ ad quod damnum.

Presumptive evidence is derived from the termini and other circumstances 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. (4)), Although the termini of a road afford no conclusive evidence as to its 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 from 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).

Reputation.

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The performance of repairs upon a road under an act of Parliament, is no evidence of it being a public one. (See R. v. Mellor, 1 B. & Ad. 32). 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.. son, 8 Ad. & E. 99; Fowler v. Port, 7 C. & P. 792); or not pubis, (Drinkwater v. Porter, 7 Car. & P. 181). But such evidence arising post litem motam is inadmissible. (R. v. Cottar, 3 Campb. 444).

On an issue, whether or not certain land in a district repairing its own roads was a common highway, it was held, that it was admissible evidence of reputation, (though slight), that the inhabitants held a public meeting to consider of repairing such way, and that several of 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 the 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 s person, since deceased, had planted a willow on a spot adjoining the read, on ground of which he was a tenant, saying, at the same time, that he 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 shewing reputation, as a statement accompanying an act, or as the admission of an occupier against his own interest. (R. v. Bliss, 7 Ad. & E. 550).

A verdict upon issue taken on a public right of way, and finding it to be such, is afterwards evidence, although such issue be taken in an action of trespass between private parties, and be offered in evidence to prove the fact between other parties in a civil action. (Reed v. Jackson, 2 East, 357).

On a question whether a creek be a public navigable river or not, instances of persons going up it for the purpose of cutting reeds, and on parties of pleasure, without the consent of the person claiming exclusive property in the creek, are sufficient evidence for the jury to presume it a public river. (1 Marsh. 313; 5 Taunt. 704; S. C.)

2. How a

highway may be created.

Verdict.

Evidence that river public.

2. By Dedication.]-A way may become a public highway by a de- 2. By dedication. dication of it to the public by the owner in fee. Such dedication is

either express or implied.

tion.

With regard to an express dedication, it is said by Chambre, J., in Express dedicaWoodyer v. Hadden: (5 Taunt. 125): "We know, that in dedicating churches, there is, after the work is completed, a formal act of dedication; and, by analogy, not only until the work is completed, but until the owner has shewn some intention of dedicating the soil to the public, his right of excluding them continues." A formal declaration of such intention of dedicating a way to the public is sufficient. But in R. v. Ward, (Cro. Car. 266), it is said, that the mere laying out of a way, though more commodious to the public, does not give the public a right of way there.

It is not necessary that the dedication should be by deed. In Marquis of Stafford v. Coyney, (7 B. & C. 257), the court did not express any doubt as to the legality of the dedication, which was by parol dedication. Nor can anything but a parol dedication be presumed, where the public have used the way for not more than six or seven years, and, a fortiori, where they have used it for four or five years only. It is also difficult to see to whom a grant can be made; the public cannot be the grantees, nor can a deed-poll be inrolled in any official custody for the protection of the public. (And see per Lord Tenterden, C. J., in Allnutt v. Pott, 3 M. & R. 439; 1 B. & Adol. 309, S. C.)

This forms a distinction between public and private ways. A private way is an incorporeal hereditament, and is founded on a grant, or on a prescription, from which a grant may be presumed; (Hewlins v. Shippam, 7 D. & R. 783; 5 B. & C. 221, S. C.); and such grant cannot be presumed, unless a user of the way has continued without interruption for twenty years. (See Moore v. Rawson, 3 B. & C. 332; 5 D. & R. 234; 8. C.; 3 Bingh. 115).

With

respect to what is an implied dedication, Lord Ellenborough, in Implied dedicaR. v. Lloyd, (1 Campb. 260), says, generally, that if the owner of the soil tion. throws open a way, and marks by no visible distinction his intention to exclude the public, a dedication will be presumed. (So, in Sir John Lade v. Shepherd, 2 Stra. 1004; and Duncombe v. Smith, Wellb. 61; and see Surrey Canal Company v. Hall, 1 Scott's N. R. 264).

Where the owners of the soil suffered the public to have the free passage of a street in London, though not a thoroughfare, (ante, 503), for eight years, without any impediment, (such as a bar set across the street, and shut at pleasure (see post, 507)), which would shew the limited right of the public, it was held a sufficient time for presuming a dedication of the way to the public. (Trustees of the Rugby Charity v. Merryweather, 11 East, 375, note. Et vide Mansfield, C. J.'s, judgment, Woodyer v. Hadden, 5 Taunt. 142; and Davies v. Stephens, 7 Car. & P. 570).

And in another case, an inference of dedication was allowed, where the way had been used but for four or five years, and was in an unfinished state, being only partly paved. (Jarvis v. Dean, 3 Bingh. 447; 11 Moore, 354, S. C.)

Where a lease was granted of certain ground to be a passage for fiftysix years, evidence of the user of the road by the public three or four

When presumed.

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