[*482

there had been such an ancient way leading through old inclosures into and across a common, which in parts was so narrow that the bridleway might be described as passing along a broad lane; in other parts the common opened into a broad field, across which persons using the way rode much as they pleased, so that in those parts there was no definite track. Certain commissioners under an Act 54 Geo. 3, c. 160, which incorporated the 41 Geo. 3, c. 109, were authorized "to stop up, divert, turn, or in any other way alter" any public ways over the common or old inclosures with the concurrence of two justices, and to set out new ways, which, when certified by two justices to be complete, were to be repaired by the parish, and they directed the common to be inclosed, and inade no alteration in the bridleway between the old inclosures; but ordered that across the common there should be set out a road thirty feet wide as a "public bridle-road" and as a "private carriage-road" for certain persons, and directed that the road should be repaired by those persons. The road was accordingly set out, and its termini were the same as those of the old bridleway, but it did not precisely follow the track over which the public were anciently accustomed to ride. No certificate or order of justices was proved: and it was held that the cases cited (c) related to roads stopped or diverted by the commissioners or left unnoticed in their award, and so impliedly stopped or diverted; but in this case there had been no stopping or diverting of the old road; that the road set out was in effect the same road, and that the parish was bound to do such repairs as were requisite to maintain the road as a public bridle-road.(d)

Upon an indictment against a parish for the non-repair of a highway it appeared that the road indicted was an ancient highway within the parish. In 1840 the parish was inclosed under an Act which incorporated the General Inclosure Act, 41 Geo. 3, c. 109. The award was made in June 1840, and under the heading of "public carriage-roads and highways" described the road indicted as "one public carriage-road and highway of the width of thirty feet." The commissioners had before the award made some alteration in the original road by straightening and widening it; but the whole of the original road was comprehended in the road set out in the award. It was admitted by the defendants that the road indicted was a public road, and that the parish had repaired it both before and after the award; but no steps had been taken by the commissioners for putting it into complete repair, and there never was any declaration by any justices at special sessions that the road had been fully formed, completed and repaired; and no proceedings had been taken under the 5 & 6 Will. 4, c. 50, s. 23. The road passed through allotable land on both sides, except that a small portion on one side was an old inclosure. It was objected that the proviso in sec. 9 of the 41 Geo. 3, c. 109, applied to roads continued by an award as well as to roads made under it; and that as the road had not been declared by any justices at special sessions to be formed, [*483 completed and repaired, the parish were not chargeable with the non-repair; and, upon a case reserved, after a verdict of guilty, the conviction was held wrong.(e)

Where an inclosure Act authorized commissioners to stop up any old road leading between or over certain old inclosures, provided there was an order of two justices, and the award in 1814 in pursuance of the powers of the Act and "by the concurrence and order of" two justices stopped up a public footpath; but no order of justices could be found; the footpath had been stopped up in pursuance of the award, and the site of it obliterated, and a private carriage-way had been made on the site of it, and persons prevented passing along it, and one person taken before a magistrate for so doing; and it was held that there was sufficient primâ facie evidence of the footway having been properly stopped; for the award must be

(c) Logan v. Burton, supra.

(d) Reg. v. Cricklade, 14 Q. B. 735 (68 E. C. L. R.), A. D. 1850. The Court pronounced no opinion on the effect of the order to repair the public bridleway further than that it did not relieve the parish from this indictment.

(e) Reg. v. East Hagbourne, Bell C. C. 135, A. D. 1859. No reasons for the decision were given. Reg. v. Hatfield was relied on for the defence, and Reg. v. Cricklade for the prosecution.

taken to have been rightly made, unless there were some inference to the contrary from subsequent enjoyment inconsistent with it.(ƒ)

Where an inclosure Act incorporated the 41 Geo. 3, c. 109, and authorized commissioners to stop up old roads, subject to the concurrence of two justices, and the commons were allotted in 1819, when a gate which had since been kept locked was put up across an old highway, but the road had since been used by foot passengers occasionally, and the award in 1830 set out new roads and directed the old roads to be stopped up, and a certificate of two justices that the new roads had been completed, under the 41 Geo. 3, c. 109, s. 9, was proved; but no order of justices for stopping the old road was proved; it was held that as there had been an inclosure of the road for about twenty-eight years, it was sufficient to warrant the Court, standing in the place of a jury, in presuming that everything was rightly done, and that an order of justices had been obtained, and that the user by foot passengers was not sufficient to rebut that presumption.(g)

Upon an indictment against the township of Gate Fulford for the non-repair of a highway, which it was alleged to be liable to repair by virtue of an inclosure Act and award, it appeared that Gate Fulford and Water Fulford were townships in the parish of Fulford, and the inclosure Act directed commissioners to allot certain lands in the manor of Fulford which (it was contended) were shown by the context to be all in the township of Gate Fulford, and to set out public and private roads in such lands, and the public roads so set out were to be repaired by the township of Gate Fulford. The award set out some roads, which it termed public highways and roads; some which it termed public carriage-roads, and others which it termed private carriage-roads: it then set out the road in question, which it termed simply a "carriage-road," and directed that it should be repaired by "the township of Fulford aforesaid," without specifying which township was meant. Another road also termed simply a "carriage-road" appeared to be set out as a private road. It was held that it sufficiently appeared that the road in question was made a public *road. The road in question ran through what was now understood to be *484] the township of Water Fulford; the township of Gate Fulford had, however, on many occasions repaired the road, but had also repaired roads in the township which were not public roads: it was held that, assuming the commissioners had power only to award as to lands in Gate Fulford, the Court would presume that the lands, on which the road was made, lay at the time of the award in Gate Fulford.(h)

A statute authorizing the making a new course for a navigable river, and turning the old part into a floating harbor, will not, without words for the purpose, put an end to a public towing-path upon that part; but such towing-path will be liable to be used as such for the purposes of the harbor; and it will make no difference though the river was a tide river, and at low water admitted of no navigation. By the 43 Geo. 3, power was given to carry part of the Bristol river along a new course, and to convert the old part into a floating harbor. There had immemorially been a towing-path on the north side, and whether that continued a public towing-path along the side of the floating harbor was the question. It was urged that it did not, because this was a tide river, not navigable at low water; and the floating harbor would make it usable at all times, and therefore increase the burthen on the land. But, after taking time to consider, the Court held, that as there were no words in the Act to annihilate the right of the public, that right would continue notwithstanding the improved state of the water within the bank; that such water being still applied to navigation purposes, for the use of the public, was still in a state to derive the benefit from the path for which the path had first been given to the public and judgment was given for the King.(i)

(f) Manning v. E. Counties R. Co., 12 M. & W. 237, A. D. 1843.

(g) Williams v. Eyton, 4 H. & N. 357, affirming the decision of the Court of Exchequer in 2 H. & N. 771, a. D. 1858.

(h) Reg. v. Gate Fulford, D. & B. C. C. 74. It was conceded that if any part of the road set out had been on land over which the commissioners had no jurisdiction, the award would have been bad as to the whole road.

(1) Rex v. Tippett, Mich. T. 1819, 3 B. & A. 192 (5 E. C. L. R.), and MS., Bayley, J. The indictment was for an obstruction of the public path.

In some instances a highway may, it seems, be in some measure changed or confined to a particular course by a private individual; as, "where it lies over an open field, and the owner of the field turns it to another part of the field for his own convenience, or incloses the field for his own benefit, leaving a sufficient way."(k) But in such case, as the public had clearly a right before such alteration to go upon the adjacent ground when the way was out of repair, the owner of the field can only make the alteration subject to the onus of making a good and perfect way.(1)

*Having thus inquired concerning the different sorts of highways, and the methods by with they may be changed, widened, or stopped up, we [*485 may now consider of nuisances to highways, by obstructions.

There is no doubt but that all injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or ploughing it up,(m) or by doing any other act which will render it less commodious to the King's subjects, are public nuisances at common law. (n) And if the tenant of the land plough the soil, over which another has a way, this is a nuisance to the way, for it is not so easy to him as it was before.(0) If a man with a cart use a common pack and prime way, so as to plough it up and render it less convenient for riders, that is indictable.(p) If there be a stile across a public footway of a certain height, and a man raises this stile to a greater height, it is a nuisance.(q) And it is clearly a nuisance at common law to erect a new gate in a highway, though it be not locked, and open and shut freely, because it interrupts the people in that free and open passage which they before enjoyed and were lawfully entitled to; but where such a gate has continued time out of mind, it shall be intended that it was set up at first by consent, on a composition with the owner of the land, on the laying out the road, in which case the people had never any right to a freer passage than what they continue to enjoy.(r)

It is a nuisance to suffer the highway to be incommoded by reason of the foulness of the adjoining ditches, or by boughs of trees hanging over it, &c.; and an occupier, as such, though at will only, is indictable for suffering a house standing upon the highway to be ruinous; and it is said that the owner of land next adjoining to the highway ought of common right to scour his ditches; but that the owner of land, next adjoining to such land, is not bound by the common law so to do, without a special prescription :(s) and it is also said that the owner of trees hanging over a highway, to the annoyance of travellers, is bound by the common law to lop them; and that any other person may lop them, so far as to avoid the nuisance.(t) The general highway Act also relates to offences of this description,

(*) 3 Salk. 182. But in Rex v. Warde, Cro. Car. 266, to an information for obstructing a highway, the defendants pleaded that the way was so foul that passengers could not pass without danger, and that C. Sands being seised in fee laid out a more commodious way in his land adjoining the highway; and the plea was held bad, because it did not appear by what authority he did it; for it is but at his pleasure, and he may stop it when he will, and the subjects have not such interest therein that they may justify going there, nor is any one bound to repair it. And in Rex v. Flecknow, 1 Burr. 465, Lord Mansfield said, "An owner of land over which there is an open road may inclose it by his own authority, or alter it under a proper authority, and by a legal course;" that is by a writ of ad quod damnum (now abolished), as is stated immediately afterwards.

(1) 3 Salk. 182. And see the cases collected in Rex v. Stoughton, 2 Saund. 160, a, note (12). And see also post, as to the repair of highways.

(m) Rex v. Griesly, 1 Vent. 4.

(n) 1 Hawk. P. C. c. 76, s. 144 ; 2 Roll. Abr. Nuisance (B.); Overton v. Freeman, 11 C. B. 867 (73 E. C. L. R.).

(0) 2 H. 4; 11 Vin. Abr. tit. Nuisance (G.).

(p) Per Curiam, Reg. v. Leach, 6 Mod. 145.

(g) Bateman v. Burge, 6 C. & P. 391 (25 E. C. L. R.), Park, J., J. A.

(r) 1 Haw. P. C. c. 75, s. 9, and c. 76, s. 146; Com. Dig. tit. Chemin (A.) 3; James v. Hayward, Cro. Car. 184; 2 Roll. Abr. Nuisance (C.).

(*) See post, p. 506, note (v).

(t) Bac. Abr. tit. Highways (E.); 1 Hawk. P. C. c. 76, ss. 5, 8, 147. But the building of a house in a larger manner than it was before, whereby the street became darker, has been held not to be a public nuisance by reason of the darkening: Rex v. Webb, 1 Lord Raym. 737.

imposing pecuniary penalties upon persons obstructing highways by means of trees or hedges; and penalties are also imposed upon persons laying stones, timber, or other matter, or leaving any carriage, so as to obstruct the passage of any highway; and also upon persons encroaching upon them.(u) Provision is also made for the punishment, by *similar penalties, of drivers of carriages who may create *486] annoyances in the public ways by their misconduct.(v) And with the view of preventing turnpike roads from being destroyed by the narrowness of the wheels of the carriages travelling thereon, and by the excessive burdens which might be carried in them, it is enacted, that if the tire of the wheels of any wagon, &c., shall deviate more than half an inch from a specified breadth, and shall be drawn on any turnpike road, the owner shall forfeit five pounds, and the driver forty shillings, for every such offence.(w) With respect to turnpike roads, similar provisions are contained in the general turnpike Acts, 3 Geo. 4, c. 126, and 4 Geo. 4, c. 95.

The mere fact that a part of a public highway has been used for twenty years by an innkeeper for the standing of the vehicles of his guests is no answer to a complaint for obstructing a "highway" under the 5 & 6 Will. 4, c. 50, s. 72. If the innkeeper could have made out an immemorial right, it might be that the highway might have been dedicated subject to that right; but there was no proof that the highway was dedicated after this usage began.(ww)

It has been held, that if a carrier carries an unreasonable weight, with an unusual number of horses, it is a nuisance to the highway, by the common law.(x) And upon an information for this offence, it was adjudged, though it was stated that the carrier went "with an unusual number of horses," without setting forth what number, yet the information was good, because it was the excessive weight which he carried that made the nuisance (y)

It appears to have been holden, that an indictment will not lie for setting a person on the footway in a street to distribute handbills, whereby the footway was impeded and obstructed;(z) nor for throwing down skins into a public way by which a personal injury is accidentally occasioned;(a) but acts of this kind, if improperly performed, might possibly be deemed nuisances, as it seems now to be well established that every unauthorized obstruction of a highway, to the annoyance of the King's subjects, is an indictable offence.(b) Thus, where a wagoner occupied one side of a public street in the city of Exeter, before his warehouses, in loading and unloading his wagons, for several hours at a time, both day and night, and had one wagon at least usually standing before his warehouses, so that no carriage could pass on that side of the street, and sometimes even foot passengers were incommoded by cumbrous goods lying on the ground on the same side, ready for loading, he was held to be indictable for a public nuisance, although it appeared that sufficient space was left for two carriages to have passed on the opposite side of the street.(c) Upon the same principle it has been held to be an indictable offence for stage-coaches to stand plying for passengers in the public streets; and Lord Ellenborough, C. J., said, "A stage-coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time; and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of

(u) 5 & 6 Will. 4, c. 50, ss. 64, 65, 69, 72, &c., which makes provision also for the removal of such annoyances by the surveyor and other persons. This statute does not say that every highway shall be thirty feet wide; and in a late case it was held that it did not authorize the surveyor to remove a fence in front of a house for the purpose of widening the road, which in that part was not more than twenty-four feet in breadth, such fence not being on the highway: Lowen v. Kaye, 4 B. & C. 3 (10 E. C. L. R.). (v) 24 Geo. 2, c. 43, and 1 & 2 Will. 4, c. 22, as to drivers in London, Westminster, and the neighborhood; and 5 & 6 Will. 4, c. 50, s. 78, as to drivers in general.

(w) 3 Geo. 4, c. 126, s. 5.

And as to furious driving, post.

(ww) Gerring v. Barfield, 16 C. B. (N. S.) 597 (111 E. C. L. R.).

(y) Rex v. Egerly, 3 Salk. 183.
(a) Rex v. Gill, 1 Str. 190.
(c) Rex v. Russell, 6 East 427.

another.(d) In the same *case his lordship intimated that there could be no doubt but that, if coaches, on the occasion of a rout, should wait an un- [*487 reasonable length of time in a public street, and obstruct the transit of his Majesty's subjects wishing to pass through it in carriages or on foot, the person who might cause and permit such coaches so to wait would be guilty of a nuisance (e)

So it is indictable for a party to exhibit at the windows of his shop, in a public street, effigies, and thereby attract a crowd to look at them, which causes the footway to be obstructed so that the public cannot pass as they ought to do, and that it is not at all essential that the effigies should be libellous; for the gravamen of the charge is the causing the footway to be obstructed, and it seems to be immaterial whether the crowd consisted of idle, disorderly, and dissolute persons or not. (f) Laying logs of timber in a highway has been already stated as one of the clear instances of nuisance.(g) And the party will not be excused by showing that he laid them only here and there, so that the people might have a passage through them by windings and turnings. (h) And though it is not a nuisance for an inhabitant of a town to unlade billets, &c., in the street before his house, by reason of the necessity of the case, yet he must do it promptly, and not suffer them to continue in the street an unreasonable length of time.(i) An obstruction to a public highway will not be excused on the plea of its being necessary for the carrying on of the party's business, though such obstruction be only occasional. The defendant, who was a timber merchant, occupied a small timber-yard close to a street, and, from the narrowness of the street and the construction of his own premises, he had, in several instances, necessarily deposited long sticks of timber in the street, and had them sawed into shorter pieces there before they could be carried into his yard and it was contended on his behalf that he had a right so to do, as it was necessary to the carrying on of his business: and that it could not occasion more inconvenience to the public than draymen taking hogsheads of beer from their drays, and letting them down into the cellar of a publican. But Lord Ellenborough, C. J., said, "If an unreasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway; but this must be done with promptness. So as to the repairing of a house, the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict and steady application of it. I cannot bring myself to doubt of the guilt of the present defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway into his timber-yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his *business."(k) [*488 And in repairing or rebuilding a house, care must be taken that the encroachment on the highway be not unreasonable. The owner will himself be responsible for any excess, if committed by his servants; for, according to Eyre, C. J., "suppose that the owner of a house, with a view to rebuild or repair, employ his own servants to erect a hoard in the street (which being for the benefit of the public, they may lawfully do), and they carry it out so far as to encroach unreasonably on the highway, it is clear that the owner would be guilty of a nuisance."(7) By an old Act, an ancient highway running over the land of Lord Stourton was

(d) Rex v. Cross, 3 Campb. 224.

(e) Rex v. Cross, 3 Campb. 224.

(f) Rex v. Carlisle, 6 C. & P. 636 (25 E. C. L. R.), Park, J., Bolland, B., and Sir J. Cross.

(g) Ante, p. 485.

(h) 2 Roll. Abr. 137; 1 Hawk. P. C. c. 76, s. 145.

(2) Id. Ibid. and Bac. Abr. tit. Highways (E.).

(k) Rex v. Jones, 3 Campb. 230.

(7) Bush v. Steinman, 1 Bos. & Pul. 407, 408. And the learned judge proceeds thus: "And I apprehend there can be but little doubt that he would be equally guilty if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose; for, in contemplation of law, the erection of the hoard would be equally his act."