whom an injunction was sought for damaging the pier, alleged that a prescriptive right of way had existed for the public to get from B. Street on to the seashore, and submitted that this right was not taken away by the statutory powers conferred upon the plaintiffs; or, at all events, that a public right of way was preserved by the saving clause in the general Act in favour of the Crown, which is the protector of public rights. Held, that, the statutory powers having authorized the erection of the pier in such a way as to render the exercise of the right of way absolutely inconsistent with the existence of the pier, the right of way must be deemed to have been taken away by the statutory powers which authorized the erection of the pier. Semble, a saving clause in an Act of Parliament in favour of the Crown refers to rights of property, or rights in the nature of property, which belong to the Crown as Crown property.-Yarmouth Corp. v. Simmons, 26 W. R. 802; 47 L. J. Ch. 792; 38 L. T. 881; 10 Ch. 518.

1820

Creation by Statute.-A plea to an action of trespass for breaking plaintiff's close, that over and across, &c. was a common and public highway, for, &c. to pass along at pleasure, paying a certain toll, is not inconsistent or contradictory, particularly if not said to be immemorial, for it may be a highway created by Act of Parliament.-Sutcliffe v. Greenwood, 8 Price, 535.

1873

Strictness of Conditions.-Where an enclosure commissioner sets out a road on a map and on the land, but the road is not actually made nor the terms of the Enclosure Act strictly followed, nor is the road used by the public, the parish will not be liable to repair the road, and it is not a highway.—Cubitt v. Maxse, 21 W. R. 789; 42 L. J. C. P. 278; L. R. 8 C. P. 704; 29 L. T. 244.

1872

Rights reserved by Owner. Where the owner of land has dedicated a portion of it to the public as a highway, he retains all rights of ownership not inconsistent with the right of passage by the public, and the appropriation made to and adopted by the public of a part of a street to one kind of passage, and another part to another, does not diminish such rights of ownership. Therefore, where on a summons under the Highway Act, s. 72, it appeared that the owner of freehold premises adjoining a public street had caused heavily laden waggons to be dragged to and from his premises across the flagged footway, and had thereby injured it, the magistrate having found as a fact that such user was necessary to the reasonable enjoyment of the freehold premises, and was not inconsistent with the general welfare:-

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Held, that the summons was properly dismissed.-St. Mary (Newington) Vestry v. Jacobs, 20 W. R. 249; 41 L. J. M. C. 72; L. R. 7 Q. B. 47; 25 L. T. 800.

1834

When Completion a Condition Precedent.-The General Turnpike Act (4 Geo. 4, c. 95), s. 87, gives an appeal to the sessions to any person who shall think himself aggrieved by anything done by any two justices in pursuance of that Act, or any local turnpike Act; and declares that the determination of the sessions shall be final and conclusive, and that no proceeding to be had in pursuance of that Act shall be removed by certiorari. The sessions, on appeal against a certificate of two justices that a turnpike road, made under a local Act, had been completed and was fit to be travelled upon, having decided that the certificate was void in point of law, and having refused to go into the merits of the appeal in point of fact, this Court refused to grant a mandamus to them to hear the appeal on the ground that their decision was contrary to the local Act. 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 said 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." Semble, per Littledale and Taunton, JJ., 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.-Rex v. Yorkshire (W. R.) JJ., 5 B. & Ad. 1003; 3 W. & M. 86; 3 L. J. M. C. 54.

DEDICATION.

1825

Evidencing Intention.-The actual possession of Crown land, under a parol licence from the Crown, entitles the party so in possession to maintain trespass against a wrongdoer. Payment of a nominal rent to the Crown, the occasional occupation of the land by sporting over it, and taking the grass by a servant, constitute sufficient evidence of such actual possession. A party in possession under such circumstances has no legal title as against the Crown, but semble that

he is not an intruder upon the Crown. Where a public footway over Crown land is extinguished by an inclosure Act, but the public continue for twenty years afterwards to use the way, such user is not evidence of a dedication of the way to the public unless it appears to have had the consent of the Crown.-Harper v. Charlesworth, 6 D. & R. 572; 4 B. & C. 574; 3 L. J. (O. S.) K. B. 265; 28 R. R. 405.

There may be a dedication of a way to the public for a limited purpose, as for a footway, &c.; but there cannot be a dedication to a limited part of the public, as to a parish: and such a partial dedication is simply void, and will not operate in law as a dedication to the whole public. In order to constitute a dedication of a way to the public by the owner of the soil, there must be an intention so to dedicate, of which the user by the public is evidence, subject to be rebutted by contrary evidence of interruption by the owner.-Poole v. Huskinson (1843), 11 M. & W. 827.

1855

Indictment for obstructing a Highway.-Plea, not guilty. the trial it appeared that the alleged highway had been laid out as a projected street in 1827, and de facto used as a highway till 1836, when the defendants began to obstruct it, and soon after inclosed a portion of the road. The owners of the soil of the greater part of this road brought ejectment; the defendants entered into negotiations with them and had agreed to open the road, but finally, in 1853, broke off the negotiations, assigning as their reason that they had, since the negotiations commenced, acquired the fee of another part of the road. On that spot of which the defendants thus claimed the fee was the obstruction, the subject of the indictment. Evidence was given that that spot on which the obstruction now was made had been part of an estate settled in strict settlement, in 1823, on a tenant for life, with power to grant building leases, and for the trustees of the settlement to sell, with consent of the tenant for life. The first tenant in tail was still at the time of the trial an infant. The tenant for life, being called as a witness, said, inter alia, that in 1828 the whole of this property had been sold by his trustees, and he had had nothing to do with it since. The judge left it to the jury to say whether they would infer a dedication in 1829 from whoever was the owner of the fee. Verdict for the Crown. Held, a proper direction; for open user as of right by the public raises a presumptive inference of dedication requiring to be rebutted. And here the statement of the defendants that they acquired the fee in 1853, coupled with the evidence of the tenant for life that he had not had anything to do with it since 1828, was evidence that the fee was in 1829 not subject to the settlement, so that there was nothing to rebut the prima facie inference of dedication in 1829, arising from the public user as of right in that year.-R. v. Petrie, 4 El. & Bl.

737; 36 L. R. 829; 24 L. J. Q. B. 167; 1 Jur. (N. S.) 752; 3 W. R. 243; 6 Cox, C. C. 512.

Although a cul-de-sac may be a highway, and although the old doctrine that a highway must lead from one public place to another may not be strictly correct, yet where a road leads to a place which is not public, and which the public enter only by permission (as where it leads to the gates of a park), the user of the road by all persons who seek such entry, without evidence of user for any other purpose, is not a user sufficient to warrant the conclusion of a dedication to the public as a highway, and a liability in the parish to repair.-R. v. Hawkhurst (1862), 11 W. R. 9; 7 L. T. 268.

A bridge for every kind of traffic may be a street within 18 & 19 Vict. c. 120, s. 105, although it goes over a railway, and although before its erection a right of crossing existed for foot-passengers only. A user of a road for eighteen months, accompanied with a declaration of an intention to devote it to the use of the public, may be sufficient evidence of a dedication of a right of way to the public. The appellants, a railway company, agreed, by articles dated 12th June, 1868, with a water company to build a bridge to be devoted to the use of the public, in which bridge the water company might lay their pipes. The bridge was built and used by the public for eighteen months. By an indenture dated the 28th December, 1871, the appellants covenanted with the water company to retain the possession of the bridge (subject to the user thereof by the public) under their control. The vestry of the district paved the road of which the bridge formed part. Held, that the dedication of the bridge to the use of the public might be inferred; that the roadway over it was a new street within the meaning of the Metropolis Management Act, 1855, and that the appellants were liable under sect. 105 to contribute to the paving of the road.North London Ry. v. St. Mary (Islington) Vestry (1873), 21 W. R. 226; 27 L. T. 672.

1892

Highway-How created.-A tenant for life cannot dedicate a way as a highway as against the remainderman. It is by the continual passage of people who wish to go along a particular way that evidence of there being a highway is established. A new trial will not be granted on a point not taken at the trial until after the case on both sides was closed.-Eyre v. New Forest Highway Board, 8 T. L. R. 648; 56 J. P. 517 (C. A.).

1888

Public Right of Way-Evidence of User.-In an action claiming a public right of way over a track or natural mountain-pass about fourteen miles long, running through a thinly-populated district of

the Highlands of Scotland and connecting by the shortest route Braemar and Clova, it appeared from the evidence of user that the track in question had been used by the public on foot; by drovers twice a year driving sheep from a market held at Braemar to one held near Clova; that public subscriptions had been collected for a bridge in line of the track; that some distance up the disputed track there was an old milestone; and that a proprietor in planting trees had specially left a place for the track. Held (affirming the decision of the Court of Session, 14 Ct. of Sess. Cas. 4th Ser. 875), that the amount of user, having regard to the character of the district, was such as might have been expected if the track had been admittedly a public way and not the subject of mere tolerance, and that the evidence was sufficient to establish the right of way.-Macpherson v. Scottish Right of Way and Recreation Society, 13 A. C. 744 (H. L., Sc.).

1885

Public Right of Way-Non-user for a Long Period.—According to the law of Scotland the constitution of a public right of way does not depend upon any legal fiction, but upon the fact of user by the public as matter of right continuously and without interruption for forty years; and the amount of user must be such as might have been reasonably expected if the road in dispute had been an undoubted public highway. Also the user must be a user of the whole road as a means of passage from one terminus to the other, and must not be such a user as can be reasonably ascribed either to private servitude rights or to the licence of the proprietor. The continued exclusion of the public from the use of an alleged public road for thirty-seven years will not, per se, destroy a pre-existent right of public way, unless it is maintained for the prescriptive period of forty years; but it is strong evidence that no such public right ever existed. Per Lord Blackburn (pp. 385-6): "The case is to be governed by the law of Scotland. Any reference to English law is apt to mislead, unless the difference of the law of the two countries is borne in mind. In both countries a right of public way may be acquired by prescription. In England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since A.D. 1189. This was, no doubt, an unreasonably long period. And sometimes by legal fictions of presumed grants, and in part by legislation, the period required for prescription as to private rights has in many cases been practically cut down to a much shorter definite period. (See Angus v. Dalton, 6 A. C. 740.) But this has never been done in the case of a public right of way. And it has not been required, though in the way in which the evil of the period of prescription being too long has been