Rights of
Way.

Creation of highways.

Presumption of dedication of ways to the public.

When an ordinary highway runs between two fences, one on each side, the right of passage which the public has along it extends prima facie, and unless there is evidence to the contrary, over the whole space between the fences (R. v. U. K. Electric Telegraph Co., 31 L. J. M. C. 166; Turner v. Ringwood Board, 9 Eq. 418). Where, by an inclosure award, a way was set out fifteen feet wide as a public bridlepath and footway, the public were held entitled to use the whole width for those purposes (Pullin v. Deffel, 64 L. T. 134).

A question having arisen whether a road admitted to exist was public or private, evidence was offered that a person, since deceased, had planted a willow on a spot adjoining the road, on ground of which he was tenant, saying, at the same time, that he planted it to show where the boundary of the road was when he was a boy: held, that such declaration was not evidence either as showing reputation, as a statement accompanying an act, or as the admission of an occupier against his own interest (R. v. Bliss, 7 Ad. & Ell. 550; see Papendick v. Bridgwater, 5 Ell. & Bl. 166). On an issue, whether land was a highway, it is admissible evidence of reputation that the inhabitants held a meeting to consider of repairing such way, and that several, since dead, signed a paper, stating that the land was not a highway, there being at the time no litigation (Barraclough v. Johnson, 8 Ad. & Ell. 99; see Nicholls v. Parker, 14 East, 331, n. to Outram v. Moorewood).

There are two ways by which highways may be created-(1) by statute, (2) by dedication (Cubitt v. Maxse, L. R. 8 C. P. 714).

A highway may be created by statute, e.g., the Public Health Act, 1875, 38 & 39 Vict. c. 55, s. 154; the Inclosure Acts, 41 Geo. 3, c. 109; 6 & 7 Will. 4, c. 115; or the Settled Estates Acts, 40 & 41 Vict. c. 18, s. 20; 45 & 46 Vict. c. 38, s. 16.

Where a highway is created by dedication, there must be both dedication by the owner and user by the public (Cubitt v. Maxse, L. R. 8 C. P. 715; A. G. v. Biphosphated Guano Co., 11 Ch. Div. 327). User by the public is evidence of the animus dedicandi; but a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment (Poole v. Huskinson, 11 M. & W. 830, adopted Healey v. Batley, 19 Eq. 388; Vernon v. S. James, 16 Ch. D. 456; Mann v. Brodie, 10 App. Cas. 386). The effect of interruptions was considered in Healey v. Batley, sup. As to the particulars which will be ordered when dedication as a highway is set up as a defence to an action of trespass, see Spedding v. Fitzpatrick, 38 Ch. Div. 410.

If a man opens his land, so that the public pass over it continually, the public, after a user of a very few years, will acquire a right of way; and a party not meaning to dedicate a way, but only to give a licence, should do some act to show that a licence only is intended. The common course is to shut up the way one day in every year (British Museum v. Finnis, 5 C. & P. 460; R. v. Broke, 1 F. & F. 514). The presumption of a dedication may be rebutted by proof of a bar having been placed across the street soon after the houses forming the street were finished; though the bar was soon afterwards knocked down, and the way had been since used as a thoroughfare (Roberts v. Carr, 1 Camp. N. P. C. 262, n.; and see Lethbridge v. Winter, Id. 263, n.) But 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 the reservation of the right of keeping a gate across it to prevent cattle from straying (Davies v. Stephens, 7 C. & P. 570; R. v. Bliss, 2 Nev. & P. 464).

In determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. 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 showing that he contemplated only a licence resumable in a particular event (Barraclough v. Johnson, 8 Ad. & El. 99). The mere setting out of an intended road, even where the public have traversed it, is not an irrevocable dedication (Hall v. Bootle, 44 L. T. 873). A dedication to the public may be presumed from a shorter time

than is necessary to establish a right of possession to land; and it has been presumed from an user by the public during a period of eight years, and even six years (Rugby Charity v. Merryweather, 11 East, 376). So where a court on one side of a public street in London was left open to the public, and occasionally used as a communication from one part of the street to another, a dedication to the public was presumed (R. v. Lloyd, 1 Camp. 268; 3 T. R. 265). Where a canal company originally erected a bridge for the use of the tenants of particular lands, but for ten years the public had crossed it without interruption: it was properly left to the jury to say, whether the company intended or not to dedicate it to the public (Surrey Canal Co. v. Hall, 1 M. & Gr. 382; see R. v. Wright, 3 B. & Ad. 681). The same evidence of user will raise a presumption of a dedication of a right of way over a sea wall or embankment by the owner of the soil, as in any other case of open and uninterrupted user by the public (Greenwich v. Maudslay, L. R. 5 Q. B. 397). A dedication to the public will not be presumed in the case of a wood with a path or track through it leading in different directions where people have wandered at pleasure and made tracks, and in dry weather have used such tracks, which were never repaired, and which in wet weather were hardly passable (Chapman v. Cripps, 2 F. & F. 864; Schwinge v. Dowell, Ib. 845). As to a footpath over a mountain, see Macpherson v. Scottish Society, 13 App. Cas. 744.

If a road has been used by the public for a great number of years, a dedication by the owner of the soil may be presumed, whoever he may be; and it is not material to inquire who the precise owner was, or whether he intended to dedicate the road to the public (R. v. East Mark, 11 Q. B. 877; R. v. Petrie, 4 El. & Bl. 737). Thus long user of a way across copyholds is evidence of dedication by both lord and copyholder (Powers v. Bathurst, 42 L. T. 123).

Rights of
Way.

Land acquired by a company for statutory objects may be dedicated if Who can the public user be not inconsistent with those objects (Grand Junctim Co. dedicate. v. Petty, 21 Q. B. Div. 273; see Mulliner v. Midland R. Co., 11 Ch. D. 611, the case of a private right of way). The Crown may dedicate (R. v. East Mark, 11 Q. B. 877; Turner v. Walsh, 6 App. Cas. 636; but see Harper v. Charlesworth, 4 B. & C. 591). A tenant for ninety-nine years Acts of cannot dedicate a way to the public, without the consent of the owner of tenants not the fee; and permission by such tenant will not bind the landlord after binding. the expiration of the term (R. v. Bliss, 7 Ad. & Ell. 555; Barraclough v. Johnson, 7 Ad. & Ell. 104; Pryor v. Pryor, 26 L. T. 760). In Wood v. Veal (5 B. & Ald. 454), the public had used a way over the locus in quo as long as could be remembered; but the land had been under a lease for ninety-nine years during the whole time, and it was left as a question for the jury, whether there had been a dedication to the public before the term commenced (8 Ad. & Ell. 104; see R. v. Lloyd, 1 Camp. 260; Baxter v. Taylor, 1 Nev. & M. 13; Bermondsey v. Brown, 1 Eq. 204). However, after a long lapse of time, and a frequent change of tenants, and from the notorious and uninterrupted use of a way by the public, it may be presumed that the landlord had notice of the way being used, and that it was so used with his concurrence (R. v. Barr, 4 Camp. N. P. C. 16; Davies v. Stephens, 7 C. & P. 570; see Deeble v. Lineham, 12 Ir. C. L. Rep. N. S. 1). Notice to the steward is notice to the landlord (R. v. Barr, sup.; Doe v. Wilson, 11 East, 56). And where a lease was granted of certain ground to be a passage for fifty-six years, evidence of the user of the road by the public three or four years after the expiration of the lease was held to be evidence of a gift to the public (R. v. Hudson, Str. 909). Where evidence was given of acts of user extending over nearly seventy years, but during the whole period the land crossed by the way had been on lease, it was held that the jury might presume from these acts a dedication at a time anterior to the lease (Winterbottom v. Derby, L. R. 2 Ex. 316). The question whether a termor could dedicate was raised, but not decided, in A. G. v. Biphosphated Guano Co., 11 Ch. Div. 335.

It seems that there may be a partial dedication of a highway to the Limited public; but where the owner of lands had, on the making a new road dedication.

Rights of
Way.

Assent of parish.

Repair of public ways.

over his property, given his consent thereto on condition of its not being used for coal carts, it was held, that if by law there could not be a restriction to a public way, the grant amounted only to a licence, which was revocable, and that, after notice, a person using such way with coal carts would be a trespasser (Stafford v. Coyney, 7 B. & C. 257; see Roberts v. Carr, 1 Camp. 262; R. v. Northamptonshire, 2 M. & S. 262). Although the dedication of a way to the public may be partial or limited as to the sort of way (as to a horseway, &c.), 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, 1 Hudson & Brook, 585; see Blundell v. Catterall, 5 B. & Ald. 315; Lade v. Shepherd, 2 Str. 1004; Barraclough v. Johnson, 3 Nev. & P. 233). Nor can there 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 (Poole v. Huskinson, 11 M. & W. 827; Bermondsey v. Brown, 1 Eq. 204). There can be no dedication to the public of land as a highway, with a reservation of a right of making cuts through the land when wanted for the purpose of drainage (R. v. Leake, 5 B. & Ad. 469). There can be no dedication of a way to the public for a limited time, certain or uncertain; if dedicated at all, it must be dedicated in perpetuity (Dawes v. Hawkins, 8 C. B. N. S. 848). A highway may be dedicated to the public, subject to a preexisting right of user by the occupiers of adjoining land, for the purpose of depositing goods thereon (Morant v. Chamberlin, 6 H. & N. 541). Where an erection or an excavation exists upon land, and the land upon which it exists or to which it is contiguous is dedicated to the public as a highway, the dedication must be taken to be made to the public and accepted by them, subject to the inconvenience or risk arising from the existing state of things (Fisher v. Prowse, 2 B. & S. 770). If a highway is dedicated to the public with a dangerous obstruction upon it, such as would have been a nuisance if placed upon an ancient way, no action can be maintained against the person dedicating it for the injury caused thereby (Robbins v. Jones, 15 C. B. N. S. 221). There may in law be a dedication to the public of a right of way, such as a footpath across a field, subject to the right of the owner of the soil to plough it up in due course of husbandry, and destroy all trace of it for the time (Mercer v. Woodgate, L. R. 5 Q. B. 26; Arnold v. Blaker, L. R. 6 Q. B. 433). In such a case the public have no right to deviate (Arnold v. Holbrook, L. R. 8 Q. B. 96).

In the case of dedications before the Highway Act, 1835, it was once contended that the assent of the parish was requisite to make a road a highway repairable by the parish (R. v. St. Benedict, 4 B. & Ald. 447; R. v. Mellor, 1 B. & Ad. 32; R. v. Edge Lane, 6 N. & M. 81). It has been held, however, that in these cases the assent of the parish is not requisite (R. v. Leeke, 5 B. & Ad. 469). Nor does the fact of an award directing repairs to be made by adjoining landowners prevent the road from becoming a highway repairable by the parish (R. v. Bradfield, L. R. 9 Q. B. 52). In the case of dedications since the Highway Act, 1835, parishes are not liable to repair the highway unless it is made to the satisfaction of the surveyor of the highways, and of two justices of the peace, who are to give a certificate to this effect, which certificate is to be enrolled (5 & 6 Will. 4, c. 50, s. 23). The section applies to roads which, on the 31st of August, 1835, were made and in progress of dedication (R. v. Westmark, 2 N. & Rob. 235). A road, however, may be a highway over which the public have the right of passing even in the case where the formalities of this section have not been complied with so as to throw the burden of repair on the parish (Roberts v. Hunt, 15 Q. B. 17).

Under the 9th section of the General Inclosure Act, 41 Geo. 3, c. 109, a road continued as well as a road newly made, under the award of commissioners of inclosure, must be declared by justices in special sessions to be fully completed and repaired, before the inhabitants of the district are liable to repair (R. v. Hatfield, 4 Ad. & Ell. 156).

See further as to the repair of highways, R. v. Cricklade, 14 Q. B. 735; Gwyn v. Hardwicke, 1 H. & N. 49; Dovaston v. Payne, 2 Smith's L. C. 154, 9th ed.; R. v. Stoughton, 2 Wms. Saund. 462, edit. 1871.

Rights of
Way.

Where there has been a public king's highway, no length of time during Extinction of which it may not have been used will prevent the public from resuming public ways. the right, if they think proper (R. v. Št. James's, Selw. N. P. 1264, 13th ed.; see 2 B. & Ald. 662; R. v. Montague, 4 B. & C. 598). The public cannot release their right to a public highway by non-user (Dawes v. Hawkins, 8 C. B. N. S. 848; see Freeman v. Tottenham R. Co., 13 W. R. 335), or by acquiescence in an obstruction (Pullin v. Deffel, 64 L. T. 134). A highway may be destroyed by the sea (R. v. Hornsea, 23 L. J. M. C. 59), or by a landslip (R. v. Greenhow, 1 Q. B. D. 793); and a way ceases to be a public highway when the access to it at both ends has become impossible (Bailey v. Jamieson, 1 C. P. D. 329). A public right of way may be extinguished by statute, either by express words (Wells v. London and Tilbury R. Co., 5 Ch. D. 126), or by implication (Yarmouth v. Simmons, 10 Ch. D. 518). The mere construction of a railway across a public footpath will not extinguish it (Cole v. Miles, 60 L. T. 145). A public right of way to a towing-path on the banks of a navigable tide river, is not destroyed by that part of the river adjoining the towing-path having been converted by statute into a floating harbour, although the user of the towing-path has been thereby increased (R. v. Tippett, 3 B. & Ald. 193).

Where an inclosure act directs that all ways not set out shall be deemed part of the lands to be allotted, an ancient towing-path upon the banks of the river, though not set out by the commissioners, still subsists, for it is not within their jurisdiction (Simpson v. Scales, 2 Bos. & P. 496; see Thackrah v. Seymour, 1 C. & M. 18). The 10th and 11th sections of the stat. 41 Geo. 3, c. 109, do not extinguish a right to take water from a well which the inhabitants of a parish had immemorially exercised before an inclosure act upon land formerly common which had been inclosed, although the ancient way to the well which existed before the inclosure had been extinguished under it (Race v. Ward, 7 Ell. & Bl. 384).

The Railways Clauses Act, 1845 (8 & 9 Vict. c. 20), sect. 16, does not empower a railway company to divert a public footpath so as to place it upon land of which the company has not acquired the ownership (Rangeley v. Midland R. Co., 3 Ch. 306).

The stopping of a highway is an ordinary case of a public nuisance; Remedy for and in the case of of a public nuisance the remedy is by indictment, or by disturbance information at the suit of the Att. Gen. In the case of a private of public nuisance the remedy is by action. But where that which is a public ways: nuisance is also a private nuisance to an individual by inflicting on him some special damage, the individual may have his private remedy by action (Soltau v. De Held, 2 Sim. N. S. 143, 145; see Wallasey Board v. Gracey, 36 Ch. Div. 593). Instances of indictments for public nuisances, By indictcaused by the obstruction of highways, will be found in R. v. Train, 2 B. ment. & S. 640; R. v. U. K. Telegraph Co., 2 B. & S. 647, n.; R. v. Longton Gas Co., 29 L. J. M. C. 118.

A private person cannot sue for damage arising from the disturbance of By action for a highway, unless he has sustained some special damage (Co. Litt. 56 a; damage. 5 Rep. 73 a; 2 Bing. 263, 266; Rose v. Groves, 5 M. & G. 613; Dobson v. Blackmore, 9 Q. B. 1002; Blagrave v. Bristol Waterworks Co., 1 H. & N. 369). When the plaintiff proved no damage peculiar to himself, beyond being delayed on several occasions in passing along the road, he was not entitled to maintain the action (Winterbottom v. Derby, L. R. 2 Ex. 316). So, an individual cannot maintain an action where the obstruction is temporary and the injury sustained by the plaintiff is only in common with others (Ricket v. Metropolitan R. Co., L. R. 2 H. L. 175; overruling Wilks v. Hungerford Co., 2 Bing. N. C. 281; Metropolitan Board of Works v. M'Carthy, L. R. 7 H. L. 243; Biggs v. London, 15 Eq. 376), But if the plaintiff can prove a particular damage to himself beyond the general damage to the public, and that such damage is direct and

Rights of
Way.

Remedy for disturbance of public ways by injunction.

Ownership of soil in highway.

substantial, an action can be maintained (Benjamin v. Storr, L. R. 9 C. P. 400). In Iveson v. Moore (1 Lord. Raym. 186), it was held, that the preventing of colliers from coming to a colliery by obstructing a public highway, by which the benefit of the colliery was lost, was such a damage as would enable a man to maintain an action for the nuisance (See Rose v. Miles, 4 M. & S. 101; Rose v. Groves, 5 M. & G. 620, post). And damages may be recovered on the ground of an unreasonable use of a highway either occasioning loss of custom to the plaintiff (Fritz v. Hobson, 14 Ch. D. 542), or rendering the plaintiff's dwelling uncomfortable (Benjamin v. Storr, L. R. 9 C. P. 400). As to the reasonable user of a highway, see remarks of Jessel, M. R., Original Hartlepool Co. v. Gibb, 5 Ch. D. 721. As to pleadings and evidence where a public right of footway is raised as a defence to an action of trespass, see Webber v. Sparkes, 10 M. & W. 485; Wood v. Wedgewood, 1 C. B. 273; and Bracegirdle v. Peacock, 8 Q. B. 174.

Statutory penalties are imposed on persons committing specified nuisances on a highway by 5 & 6 Will. 4, c. 50, s. 72.

The Att. Gen. can obtain an injunction to restrain interference with a highway without showing actual injury (A. G. v. Shrewsbury, 21 Ch. D. 752). Where a plaintiff suffers a particular injury from the obstruction of a public way, an action for an injunction will lie, and the Att. Gen. need not be a party (Cook v. Bath, 6 Eq. 177). The vestry of a parish cannot sustain a suit to restrain the infringement of a public right of except as relators on an information by the Att. Gen. (Bermondsey v. Brown, 1 Eq. 204; see Wallasey Board v. Gracey, 36 Ch. D. 593). The remedy of a parishioner in respect of interference with a churchway" is in the ecclesiastical court (Batten v. Gedye, 41 Ch. D. 507).

way,

A local authority cannot restrain the placing of telephone wires over a highway (Wandsworth v. United Telephone Co., 13 Q. B. Div. 904). The breaking up of the pavements of a town by an individual for the purpose of laying gas pipes, may be the subject of an indictment (R. v. Longton Gas Co., 29 L. J. M. C. 118); but it will not be restrained by injunction as a public nuisance, the injury not being either irreparable or continuous (A. G. v. Cambridge, &c. Co., 4 Ch. 71). Damages in a proper case may be awarded in substitution for an injunction (Wedmore v. Bristol, 11 W. R. 13), the jurisdiction of the court under Lord Cairns' Act not being affected by its repeal (Sayers v. Collyer, 28 Ch. Div. 103).

As to the law of highways, see further, Shelford's Law of Highways, 3rd ed.; Glen on Highways.

The freehold of the highway is in the owner of the freehold of the soil, although the public may pass and repass at their pleasure (2 Inst. 705; Lade v. Shepherd, 2 Str. 1044). The owner of the soil is entitled to all profits, trees and mines upon or under the highway (1 Roll. Abr. 392; 1 Burr. 143). In the 82nd section of the stat. 5 & 6 Will. 4, c. 50, there is a saving of mines to the owner of lands taken for widening narrow roads. The soil in turnpike roads does not vest in the trustees thereof, who have only the control of the highway, without a special clause for that purpose (Davison v. Gill, 1 East, 69; see also R. v. Mersey Navigation, 9 B. & C. 95; R. v. Thomas, Id. 114; Salisbury v. G. N. R. Co., 5 C. B. N. S. 174). The owner of land adjoining only one side of the highway may maintain an action of trespass against one who suffers his cattle to depasture along the highway (Dovaston v. Payne, 2 H. Bl. 527; Stevens v. Whistler, 11 East, 51); or an action of ejectment for land over which there is a public right of way (Goodtitle v. Atker, 1 Burr. 133; Doe v. Wilkinson, 3 B. & C. 413; and see Scales v. Pickering, 4 Bing. 448). And the owner of the soil can obtain an injunction to restrain a stranger from laying down pipes under the highway (Goodson v. Richardson, 9 Ch. 221). The principle of the ownership of the soil being in the owner of the adjoining land is carried so far that a man may be a trespasser on land where the public have a right to pass and repass, where he is on the highway not for that but for other and different purposes, e. g., sporting. Though the public have a right of passage over land which is a highway, they have no right to use it except as a highway (See Dovaston v. Payne, 2 H. Bl.