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2. How a years after the expiration of the lease was held to be evidence of a gift highway may to the public. (R. v. Hudson, Str. 909). be created. By their act of incorporation, (41 Geo. 3, c. xxxi.), the proprietors of
the Surrey canal were required to erect and maintain bridges over the
of way, as any other individual or corporate body might do. When land under But nothing done or suffered by a lessee, without the consent of the
owner of the fee, can give a right of way to the public as against the owner; (Trustees of Rugby Charity v. Merryweather, 11 East, 375, A.; Wood v. Veal, 5 B. & Ald.454; 1. & R. 20; (where the consent of the owner in fee was not inferred, though he had lived near the spot for twenty-four years); Barraclough v. Johnson, 8 Ad. & E. 104, per De. man, C.J., post, 507). In R. v. Barr, (4 Campb. 16), the acquiescence of the owner and landlord was inferred, where the way had been used? great many years, during successive tenancies, and the tenants had come plained of such user to his steward. (And see Davies v. Stephens, 7 Car.
& P. 570, and Doe d. Foley v. Wilson, 11 East, 55). Crown lands.
The consent of the Crown will not be inferred from long use of a TAT by the public over Crown lands in the occupation of a tenant. (Harper v. Charlesworth, 4 B. & Cres. 574; 6 D. & R. 572, S.C.) In fact, to bina
the Crown, an express consent, it seems, is necessary. How presumption But in determining whether or not a way has been dedicated to the of dedication
public, the proprietor's intention must be considered. (Barraclough v. rebutted.
Johnson, 8 Ad. & E. 99; 3 Nev, & Per. 233; S.C., Surrey Canal Conpaný v. Hall, 1 Scott's N. R. 264; Woodyer v. Hadden, 5 Taunt. 125).
Therefore, if it appear only that he has suffered a continual user, that may prove a dedication; but such proof may be rebutted by evidence of acts shewing that he contemplated only a license resumable in a particular event. (Barraclough, v. Johnson, supra). Thus, where the owner of lead agreed with an iron company, and with the inhabitants of a hamlet repairing its own roads, that a way over his land in such hamlet should be open to carriages, that the company should pay him 5s, a year, and ting cinder to repair the way, and that the inhabitants of the hamlet should lead and lay down the cinder, and the way was thereupon left open to all persons passing with carriages for nineteen years, at the end of which time a dispute arising, the passage was interrupted, and the interruption acquiesced in for five years; it was held that the evidence shewed 10
2. How a a public statute called one of the streets of Westminster, such user of the highway may way, though extensive, being hy the consent of the lessee only, was held be created. not binding on the owner of the inheritance; and that when the lease
expired, he might prevent the public from using it. (Wood v. Veal, 5 B. Ald. 454; 1 D. & R. 20, s. C.; Barraclough v. Johnson, 8 Ad. & E. 104, per Denman, C.J. And see Baxter v. Taylor, 1 N. & M. 13). See ante, 506, when the consent of the owner of the fee to the way being used will be presumed.
Trustees either for a public or private purpose, if owners in fee, may make the dedication, if the dedication be not inconsistent with the purposes of their trust. (R. v. Inhabitants of Leake, 5 B. & Adol. 469; 2 N. & M. 595, S. C.) In Rugby Charity v. Merryweather, (11 East, 375 (n.) the owners of the fee-simple were trustees. (See Rex v. Edmonton, (2.N. & M. 24), where the dedication was by churchwardens. And see Surrey Canal Company v. Hall, (ante, 506), where it was held that a canal company, incorporated by act of Parliament, might dedicate to the public a
right of way. Consent of parish. It seems now to be decided that it is not requisite that the parish
through which a road passes should consent to its dedication, in order in make it a public one. (R. v. Inhabitants of Leake, 5 B. & Adol. 18; 2 N. & M.583, S.C. But see R. v. Mellor, i B. & Ad. 32). But as it gards the liability of the parish to repair it, the recent enactment of 5& 6 Will. IV. c. 50, s. 23 (post, 517), provides, that no road or occupationway made at the expense of individuals, nor drift way or horseway set out under an inclosure act, shall be liable to be repaired by the pare, unless the party proposing to dedicate such highway to the public shall give notice thereof to the surveyor, and shall make the same in a $95stantial manner, to be viewed and certified by two justices of the peace.
The absence of repair by the parish is a strong circumstance in pout of evidence to prove that the road is not a public one. The fact of repair has a contrary effect. (See Davies v. Stephens, 7 Car. & P.570; R. v. Edmonton, 1 M. & Rob. 24, ante, 504); but the conduct of the panse in acquiescing or refusing its acquiescence seems to be immaterial in every other point of view. (R. v. Inhabitants of Leake, 5 B.8 Adol. 432; 2 N. & M. 583, S. C.)
Where commissioners, who were empowered under an inclosure act to set out public and private roads, the former to be repaired by the township, and the latter by such persons as they should direct, exceedel their authority in awarding that private roads should be repaired by the township, it was held, upon the whole evidence, to be a proper questida for a jury whether or not one of such private roads which had been te paired by the township, though originally intended to be private, bad been dedicated to and adopted by the public. (R. v. Wright, 3 B. }
Adol. 681. Consent of public. It is essential that the public should consent to it, by actual user of
otherwise. (See R. v. St. Benedict, 4 B. & Ald. 447 : R. v. Paddingtas Vestry, 9 B.& C.456; R. v. Leake, 3 N.& M.583; 5 B. & Adol. 469, S.C.?
The user of a road by the public during a period it is made a public one by virtue of an act of Parliament, is not such an adoption of it by them as to make it a public way after such period has elapsed. (R.T. Mellor, 1 B. & Adol. 32).
3. By act of Par. liament.
3. By Act of Parliament.]-A highway may be created by an actor Parliament, containing a specific enactment as to it. (See Sutclyo: Greenwood, 8 Price, 535). The provisions contained in the act must be strictly complied with, before the way can be established, or the liabili to repair it enforced. Therefore, where notices were required to given, but appeared not to have been given, the proceeding under act was held invalid. (R. v. Haslingfield, 2 M. & Sel. 558).
So, where trustees are authorized by an act of Parliament to make road from one point to another, the making of the entire road is a colle
2. How a of Absor v. French, (B. R. M. 30 Car. 2; 2 Show. 21; 2 Lev. 234, S.C.), highway may and Henn's case, (Sir W. Jones, 296), that where a common highway be created. is out of repair by the overflowing of a river or any other cause, pas
sengers have a right to go upon the adjacent ground.
So, if the water of a navigable river impairs or decreases a towing-path beside it, the public shall have a towing-path on the adjoining land (Young v, - , 1 Ld. Raym. 725).
It hath been holden, that if there be a highway in an open field, and the people have used time out of mind, when the ways are bad, to go by outlets on the land adjoining, such outlets are parcel of the way; for the King's subjects ought to have a good passage, and the good passage is the way, and not the beaten track only; from whence it follows, that if such outlets be sown with corn, and the beaten track be founderous, the King's subjects may justify going upon the corn. (1 Hawk. c. 76, s. 2. See Sir E. Duncombe's case, Cro, Car. 366).
And it has been held, that where a man incloseth and doth not make a good way, (as in such case he is bound to do, by reason of the inci sure), it is lawful for passengers to make gaps in his hedges to avoid it ill way, so that they do not go further into his inclosed grounds than a needful for avoiding the bad way. (Henn's case, Sir W. Jones, 298; Absor v. French, 2 Show. 21; Asser v. Finch, 2 Lev. 234; 1 Lord Rayn. 725, S. C.)
This privilege of going over the adjoining lands is confined to highways; and the grantee of a private way has no such privilege, generally speaking. (Taylor v. Whitehead, Dougl. 745 (a); Bullard v. Harnis 4 M. f Sel. 387; 1 Saund. 323, n. 6). If I have a private way without a gate, and a gate is hung up, an action lies upon the case, for I have not my way as I had before. (Litt. R. 267). So, if one grant me a way, and afterwards dig trenches in it to my hindrance, I may fill then up again. (God. 53). But if a way which a man has become not passable, or become very bad, by the owner of the land tearing it up with his carts, and so the same be filled with water, yet he who has they cannot dig the ground to let out the water, for he has no interest in the soil. But in such case he may bring his action against the owner of the land for spoiling the way, or perhaps he may go out of the way, upon the land of the wrong-doer, as near to the bad way as he can. (God. S-; and see Osborn v. Wise, 7 Car. & P. 761).
(a) This was an action of trespass,
“The question is upon the grant this way. Now, it is not laid to be i grant of a way generally over the land but of a precise specific way. 1 grantor says, you may go in this part cular line; but I do not give you right to go either on the right or lett I entirely agree with my brother a ker, that, by common law, be FDO bath the use of any thing ought to pair it.' The grantor may bind himsel, but here he has not done it. He has not undertaken to provide against the overflowing of the river; and for alle, that appears, that may have happen by the neglect of the defendant. High ways are governed by a different prie ciple. They are for the public services and if the usual tract be impassable, is for the general good that people should be entitled to pass in anotti line."