2. How a highway may be created. When land under lease. Crown lands. How presumption of dedication rebutted. years after the expiration of the lease was held to be evidence of a gif: to the public. (R. v. Hudson, Str. 909). 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 canal where it intersected any public highway, bridle-way, or footpath, and also for the use of the owners and occupiers of lands &c. adjoining to the canal. In 1804, the company erected a swivel bridge (of sufficient dimensions to allow a carriage to traverse it) across the canal, at a spot where there had formerly been a public way, which at the most was only a bridle-way. This bridge was originally intended for the exclusive a commodation (as a carriage-way) of the tenants of an estate adjoining. called the Rolls estate. The neighbourhood having become extremely populous, and a district church having being built near the bridge, the public, from 1822 to 1832, freely and without interruption used it as a carriage-way. In 1832, the company for the first time imposed a tel upon all carriages traversing the bridge, with the exception of those be longing to the tenants of the Rolls estate; and in 1840 they removed the old swivel bridge, and erected a convenient stone bridge in the place of it. In an action of trespass against the defendant for passing over the bridge without paying toll, the judge told the jury, that, supposing the bridge in question to have been originally erected for the exclusive accommodation of the tenants of the Rolls estate, still, if, in consequence of the acts of the company, an idea grew up in the minds of the pur that the company had dedicated the way to the public use, they might find such dedication:-Held, that this was not a misdirection; and that the evidence warranted the jury in finding a dedication. (Surrey Cana Company v. Hall, 1 Scott, N. R. 264 ; 1 M. & G. 392, S. C.) In this cas it was also held, that there was nothing in the nature or constitution of the company to prevent them from dedicating to the public a right of way, as any other individual or corporate body might do. 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, k., Wood v. Veal, 5 B. & Ald. 454; 1 D. & 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 Denman, Č.J., post, 507). In R. v. Barr, (4 Campb. 16), the acquiescence ef 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). The consent of the Crown will not be inferred from long use of awar by the public over Crown lands in the occupation of a tenant. (Harpr Charlesworth, 4 B. & Cres. 574; 6 D. & R. 572, S. C.) In fact, to bind the Crown, an express consent, it seems, is necessary. v. But in determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. (Barraclough. Johnson, 8 Ad. & E. 99; 3 Nev. & Per. 233; S. C., Surrey Canal Com pany v. Hall, 1 Scott's N. R. 264; Woodyer v. Hadden, 5 Taunt. 125). that Therefore, if it appear only that he has suffered a continual user, 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 land 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 find 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 no dedication, but a license only, resumable on breach of the agreement. (Barraclough v. Johnson, 8 Ad. & E. 99; 3 Nev. & Per. 233, S. C.) So, where a road was set out by commissioners under a local act, and certain persons only were by the act to use it, but in fact it had been used by the public for many years, it was held that this was not sufficient evidence of a dedication to the public. (R. v. St. Benedict, 4 B. & Ald.447; R. v. Lyon, 5 D. & R. 497. See Surrey Canal Company v. Hall, 1 Scott's N. R. 264, ante, 506). And where the plaintiff erected a street, leading out of a highway across his own close, and terminating at the edge of the defendant's adjoining close, which was separated by the defendant's fence from the end of the street for twenty-one years, during nineteen of which the houses were completed, and the street publicly watched, cleansed, and lighted, and both footways and half the horseway paved at the expense of the inhabitants, it was held, (dissentiente Chambre, J.), that this street was not so dedicated to the public; that the defendant, pulling down his wall, might enter it at the end adjoining to his land, and use it as a highway. (Woodyer v. Hadden, supra; and see 7 B. & C. 257). So, if there be an old way running along the side of my land, and, by my fences decaying, the public come on it, that is no dedication. (Trustees of British Museum v. Finnis, 5 C. & P. 460). The originally establishing a bar or obstruction is evidence to rebut the presumption of a dedication to the public, though it may have been down for some time; (Roberts v. Karr, 1 Campb. 262); and this, though the bar be across only part of the way. (Id. And see Lethbridge v. Winter, Id. 263, n). But the fact of a gate being kept across a way is not conclusive that it is not a public way, as the way may have been granted to the public, with a reservation of the right of keeping a gate across it, to prevent cattle straying. (Davies v. Stephens, 7 Car. & P. 570; Rex v. Bliss, 1 Jurist, 960). And in one case, Mr. Justice Park left it to the jury to decide whether a road, though originally meant to be a private one, had not subsequently been dedicated to the public, and the court held, that the case was for the jury. (R. v. Wright, 3 B.& Ad. 681). 2. How a highway may be created. Although the dedication of a way to the public may be partial or Partial dedication limited as to the sort of way, (as to a horseway, &c., see Marquis of Stafford v. Coyney, 7 B. & C. 257, per Holroyd, J.; Roberts v. Karr, 1 Camp. 262, n.), yet there cannot be a qualified dedication to the public, subject to a power of resumption to the grantor, for that would be the reservation of a right inconsistent with the dedication to the public. (Fitzpatrick v. Robinson and others, 1 Hudson & Brook, 585. See Blundell v. Catterall, 5 B. & Ald. 315; Lade v. Shepherd, 2 Str. 1004; Barraclough v. Johnson, 8 Ad. & E. 99; 3 Nev. & Per. 233, S. C.) Where a bridge was used only when the river was dangerous, it was still held a public bridge. (R. v. Devon, R. & M. 144; R. v. Northampton, 2 M. & Sel. 262, per Lord Ellenborough. And see Surrey Canal Company v. Hall, 1 Scott's N. R. 264; R. v. Marquis of Buckingham, 4 Camp. 189). Where a landowner suffered the public to use, for several years, a road through his estate for all purposes, except that of carrying coals, it was held, that this was either a limited dedication of the road to the public, or no dedication at all; but, at all events, that a person carrying coals along the road, after notice not to do so, was a trespasser. (The Marquis of Stafford v. Coyney, 7 B. & C. 257). Mr. Justice Bayley and Mr. Justice Holroyd thought that there might be such a limited dedication; but Littledale, J., doubted whether there could be. (See Roberts 7. Karr, supra. And see Cowling v. Higginson, 4 M. & W. 245). The dedication must be made by the owner in fee. Therefore, where Dedication must the land over which the way was claimed had been leased for ninety- be by owner in fee. nine years, though it had been paved and lighted by the public, and in 2. How a highway may be created. Consent of parish. Consent of public. 3. By act of Parliament. a public statute called one of the streets of Westminster, such user of the way, though extensive, being by the consent of the lessee only, was held not binding on the owner of the inheritance; and that when the lease expired, he might prevent the public from using it. (Wood v. Feal, 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 com pany, incorporated by act of Parliament, might dedicate to the public s right of way. It seems now to be decided that it is not requisite that the paris through which a road passes should consent to its dedication, in order a make it a public one. (R. v. Inhabitants of Leake, 5 B. & Adol. 469; 2 N. & M. 583, S. C. But see R. v. Mellor, 1 B. & Ad. 32). But as re 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 driftway or horseway set out under an inclosure act, shall be liable to be repaired by the parish, 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 substantial manner, to be viewed and certified by two justices of the peace. The absence of repair by the parish is a strong circumstance in point 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 parish in acquiescing or refusing its acquiescence seems to be immaterial in every other point of view. (R. v. Inhabitants of Leake, 5 B.& 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, exceeded their authority in awarding that private roads should be repaired by the township, it was held, upon the whole evidence, to be a proper question for a jury whether or not one of such private roads which had been re paired by the township, though originally intended to be private, had been dedicated to and adopted by the public. (R. v. Wright, 3 B.S Adol. 681. 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. Paddington 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. v. Mellor, 1 B. & Adol. 32). 3. By Act of Parliament.]—A highway may be created by an act of Parliament, containing a specific enactment as to it. (See Sutcliffe. Greenwood, 8 Price, 535). The provisions contained in the act must be strictly complied with, before the way can be established, or the liability to repair it enforced. Therefore, where notices were required to be given, but appeared not to have been given, the proceeding under the act was held invalid. (R. v. Haslingfield, 2 M. & Sel. 558). So, where trustees are authorized by an act of Parliament to make a road from one point to another, the making of the entire road is a con dition precedent to any part of it becoming a highway repairable by the public. (R. v. Cumberworth, 3 B. & Adol. 108; R. v. Hepworth, id. 110. See Blakemore v. The Glamorganshire Canal Navigation, 1 Myln. & K. 162; Wilkinson v. Bagshaw, Peake's Add. Cas. 165; and R. v. Eastern Counties' Railway Company, 10 Ad. & E. 531). Therefore, if trustees are authorized to make a turnpike-road from A. to C., the entire road must be completed before the public can be compelled to repair any part of it, even a part which has been finished between twenty and thirty years, and repaired from time to time by the public; and although it joins at the point to which it has been made another public road which is complete. (Rex v. Edge Lane, 4 Ad. & El. 723; 6 Nev. & M. 81, S. C.) And so, where trustees under a turnpike act were empowered to make a road from A. to B., and a branch from that road to C., it was held that the public were not compellable to repair the main road, though complete in its whole extent, till the branch was finished. (Rex v. Cumberworth (Inhabs.), 4 Ad. & El. 731; 1 Nev. & Per. 197, S. C.) But where a local turnpike act recited, "that the making and maintaining a new turnpike road from Leeds to join the Wakefield and Halifax turnpike road at a certain point, and several branch roads (therein also described) from and out of the said main turnpike road, would be an advantage to the inhabitants of Leeds and Halifax, and to the public in general;" and it authorized the making of the several roads, and enacted, "that the said new roads should not be respectively opened to the public, or become public roads, until two justices should have certified that the said roads respectively, and the works thereon respectively, were completely made and fit to be travelled upon throughout the whole length of such roads respectively." Littledale and Taunton, Js., expressed themselves of opinion, that the making of all the branch roads was not a condition precedent to the main road becoming a public road as soon as it was completed and fit to be travelled on; but that the main road, when so completed, and certified so to be by two justices, became a public road, although the branch roads were still unfinished. (R. v. The Justices of the W. R. Yorkshire, (case of the Leeds and Whitehall Roads), 5 B. & Adol. 1003). Where a railway was made under the authority of an act of Parliament incorporating the proprietors, and providing that the public should have the beneficial enjoyment of the railway, a mandamus was granted to compel the company to reinstate part of the railway which had been rendered impassable by taking up part of the iron tram plates thereon. (R. v. Severn and Wye Railway, 2 B. & Ald. 646). In one case it was held, that if a way has been recognized as public in an act of Parliament for making streets, squares, &c., it is not necessary that it should be adopted by the parish to make it a public way. (R. v. Lyon, 5 D. & R. 497) (a). All persons are presumed to have consented to an act of Parliament. But if an act of Parliament make a road public during a limited period, it is not a public road after such period has expired, unless it then be dedicated to the public, &c. (See R. v. Mellor, 1 B. & Adol. 36; R. v. Winter, 7 B. & C. 785; 3 M. & R. 463, S. C.) And see, ante, 508, as to the effect of user of the road by the public during such period. 2. How a highway may be created. 4. By Necessity.]-If a highway be impassable from being out of re- 4. By necessity. pair, or otherwise, the public have a right to pass in another line, and, for this purpose, to go on the adjoining ground; and it makes no difference whether it be sown with grain or not. (1 Roll. Ab. 390, a. pl. 1. and b. pl. 1; and see Ellison v. Isles, 11 Ad. & E. 665). And it is clear law, established by a number of cases, particularly that (a) See ante, 508, as to it not being necessary that the parish should consent to the way being a public one, in order to make it so. 2. How a highway may be created. of Absor v. French, (B. R. M. 30 Car. 2; 2 Show. 21; 2 Lev. 234, S. C.), and Henn's case, (Sir W. Jones, 296), that where a common highway is out of repair by the overflowing of a river or any other cause, passengers 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). is 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 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 inc sure), it is lawful for passengers to make gaps in his hedges to avoid th ill way, so that they do not go further into his inclosed grounds than s needful for avoiding the bad way. (Henn's case, Sir W. Jones, 26; 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. Harris, 4 M. & 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 away, and afterwards dig trenches in it to my hindrance, I may fill them up again. (God. 53). But if a way which a man has, become not passade, 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 the way 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. 32; and see Osborn v. Wise, 7 Car. & P. 761). (a) This was an action of trespass, river; that at several times the lane "The question is upon the grant of this way. Now, it is not laid to be a grant of a way generally over the land; but of a precise specific way. The grantor says, you may go in this parti cular line; but I do not give you a right to go either on the right or left. I entirely agree with my brother Wal ker, that, by common law, 'he who hath the use of any thing ought to repair it.' The grantor may bind himself, but here he has not done it. He has not undertaken to provide against the overflowing of the river; and for aught that appears, that may have happened by the neglect of the defendant. Highways are governed by a different principle. They are for the public service, and if the usual tract be impassable, it is for the general good that people should be entitled to pass in another line." |